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https://www.courtlistener.com/api/rest/v3/opinions/1920330/ | 107 B.R. 548 (1988)
James R. KANDEL, Appellant,
v.
ALEXANDER LEASING CORP., et al., Appellees.
No. C88-715A.
United States District Court, N.D. Ohio, E.D.
December 21, 1988.
Thomas E. Lammert, Howard Mentzer, Rajko Radonjich, Akron, Ohio, for plaintiff.
John L. Woodard, Woodard & Bohse, Dover, Ohio, for defendants.
MEMORANDUM OPINION
DOWD, District Judge.
I. INTRODUCTION.
Before this Court is an appeal from the United States Bankruptcy Court regarding the compensation due the Trustee for services rendered in the bankruptcy proceedings of Alexander Leasing Corp. and George Alexander, Inc. It is the contention of the Trustee-appellant that the Bankruptcy Court erred as a matter of law in determining the basis for calculating the *549 amount of compensation he is statutorily entitled to for services rendered in the administration of a consolidated Chapter 11 proceeding. No response to the appellant's brief has been filed.
This Court's jurisdiction to hear appeals from a judgment, order or decree of a United States Bankruptcy judge is pursuant to 28 U.S.C. § 158(a).
Bankruptcy Rule 7052 provides that Rule 52 of the Federal Rules of Civil Procedure applies to adversary proceedings. As such, a bankruptcy court's findings of fact are to be accepted on appeal by the District Court unless found to be "clearly erroneous." 11 U.S.C. § 8013. On the other hand, it is well established that the clearly erroneous standard of review does not apply to a bankruptcy court's conclusions of law, which are freely reviewable by the District Court on Appeal.
II. BACKGROUND.
A. Facts.
The story begins with a coal broker, Seasons Coal Company, Inc., entering into a contract with the City of Cleveland to furnish coal for the Municipal Light Plant. George Alexander, dba Alexander Coal Company, provided the coal for the above contract. The City of Cleveland refused to pay for the coal, and on December 20, 1976, Seasons Coal Company, Inc. and Alexander Coal Company filed a law suit against the City of Cleveland. On July 1, 1981, a judgment was entered for plaintiffs in the amount of $1,231,780.20. Of that amount, it was determined by the Common Pleas Court, Cuyahoga County, that George Alexander, dba Alexander Coal Company, was entitled to $625,697.95. The Court of Appeals reversed, however, on April 18, 1984, the Ohio Supreme Court, 10 Ohio St. 3d 77, 461 N.E.2d 1273, reversed the Court of Appeals and reinstated the judgment of the trial court. On July 20, 1984, the City of Cleveland deposited the judgment amount with the Clerk of Courts.[1]
During the time the above litigation was in progress, Alexander Leasing Corp. and George Alexander, Inc. filed voluntary petitions under Chapter 11 of Title 11 of the United States Code on October 12, 1982 and July 1, 1983, respectively. Among the scheduled assets of the Alexander Leasing Corp. was the above-described obligation by the City of Cleveland.
In June, 1983, appellant James R. Kandel was appointed Trustee for the Alexander Leasing Corp. In February, 1986, the two related bankruptcy proceedings, upon motion of Trustee Kandel, were consolidated and thereafter administered by Kandel.
It is while the Alexander entities were making their way through bankruptcy proceedings that the litigation with the City of Cleveland, claimed as an asset by Alexander Leasing Corp., came to fruition. A receiver was appointed and ordered to distribute the monies pursuant to a March 21, 1985, Order by the Court of Common Pleas.[2] Nothing appears in the order to suggest that any monies were delivered to the Trustee.
*550 B. Trustee's Claim for Compensation.
All parties are in agreement that the method of calculating the compensation due a trustee appointed in a Chapter 7 or Chapter 11 proceeding is established by 11 U.S.C. § 326(a) as that statute existed prior to its amendment by the Bankruptcy Amendments and Federal Judgeship Act of 1984, which provides in pertinent part:
(a) In a case under chapter 7 or 11, the court may allow reasonable compensation under § 330 of this title of the trustee for the trustee's services, payable after the trustee renders such services, not to exceed fifteen percent on the first $1,000 or less, six percent on any amount in excess of $1,000 but not in excess of $3,000, three percent on any amount in excess of $3,000 but not in excess of 20,000, two percent on any amount in excess of $20,000 but not in excess of $50,000, and one percent on any amount in excess of $50,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims.
In his application for final compensation, the trustee asserted that the basis for determining the statutory fee should be $32,791.96[3] plus $1,231,780.20[4] and accrued interest. Alternatively, the trustee suggested that the $32,791.96 be added to $666,119.32, the latter being the sum disbursed by the state court receiver to the debtor, the holders of various secured claims against the debtor and certain administrative claimants of the debtor. The trustee argues he is entitled to inclusion of the payment of judgment in the statutory computation of his fee because he was responsible for the confirmed Plan of Arrangement implemented to distribute the judgment funds placed into the hands of the receiver in satisfaction of creditors of the bankrupt Alexander entities.
In the Response of the Debtor in Possession to the Trustee's Application, it was not disputed that the Trustee is entitled to statutory compensation based on $32,791.96, however, the debtor-in-possession disputed inclusion of $1,231,780.20 or $666,119.32 in the base amount for computing the statutory fee. Debtor-in-possession argues that the language of the controlling statute only permits compensation based on "all monies disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims," and that the monies resulting from judgment against the City of Cleveland were never delivered to the trustee so that he would be in a position to disburse or turn over the funds.
In his Memorandum of Decision addressing the matter of the trustee's compensation, the bankruptcy judge found that the only sums to come into the hands of the trustee were those totaling $32,791.96, and that, as a matter of fact, none of the monies from the judgment against the City of Cleveland were disbursed or turned over by the trustee. Applying this finding of fact to the language of 11 U.S.C. § 326(a) prior to its amendment in 1984, the bankruptcy judge held that the judgment monies were not "monies disbursed or turned over in the case by the trustee . . .," and thus not properly part of the base amount for calculation of the trustee's commission. Applying the formula of the statute to the amount of $32,791.96, the bankruptcy judge awarded the trustee $1,035.84 in compensation.
C. Appeal.
Appealing the bankruptcy court's decision, the trustee argues that the Bankruptcy Court's narrow interpretation of 11 U.S.C. § 326(a) excluding any portion of the judgment monies from the basis of the statutory calculation of his compensation is incorrect. In the alternative, the trustee argues that in the event the bankruptcy court's reading of the statute is correct, he is entitled to further compensation under the theory of quantum meruit.
*551 III. LAW AND DISCUSSION.
11 U.S.C. § 326(a) controls the determination of the amount of compensation to be awarded trustees appointed in a Chapter 7 or Chapter 11 proceeding. Because the bankruptcy proceedings involved in this case were instituted prior to 1984, the trustee's compensation in this case is limited by 11 U.S.C. § 326(a) as written prior to the 1984 Amendments, even though the trustee in this case was not appointed until after the effective date of the amendment. In re Orange Coast Plastic Molding, Inc., 64 B.R. 798 (Bkrtcy.C.D. Calif.1986).
11 U.S.C. § 326 permits the Court to award a trustee reasonable compensation for his services. The language of the statute is permissive rather than mandatory in that it fixes the maximum compensation of a trustee, and it is not to be construed as an entitlement to the maximum fee specified; the Court is to determine a reasonable compensation, within the limits of § 326, based upon "all monies disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor. . . ." See, 2 Collier on Bankruptcy, ¶ 326.01 (n. 1), at 326.
The bankruptcy judge made a finding of fact that "none of the proceeds from the settlement of the City of Cleveland's litigation was disbursed or turned over by the trustee," and that "the only sums to come into the trustee's hands were those totaling the aforementioned $32,791.96." Memorandum of Decision of United States Bankruptcy Judge, James H. Williams, in the United States Bankruptcy Court for the Northern District of Ohio, Case No. 682-01398, docket # 198. The language of the March 21, 1985 Order by the Court of Common Pleas speaks only of the judgment monies passing through the Court appointed receiver directly to the debtor-in-possession for distribution pursuant to the direction of the United States Bankruptcy Court, and makes no mention of the monies being transferring by or through the trustee. The trustee himself can point to no time in which the monies actually passed through his hands. As such, this Court finds the Bankruptcy Court's determination that the trustee never literally disbursed or turned over judgment monies to parties in interest is not clearly erroneous, and must be accepted by this Court.
Unlike the limited standard of review this Court may exercise with respect to the Bankruptcy Court's finding of fact, this Court may freely review the Bankruptcy Court's conclusions of law. While appellant asserts that the Bankruptcy Judge's Memorandum of Decision did not cite any case law to support his literal reading of § 326(a), appellant himself cites no cases which persuade this Court that compensation for services rendered in a fully administered case is appropriate for monies not handled pursuant to the language of § 326. Indeed, cases cited by appellant observe that a literal reading of § 326 is appropriately applied in fully administered cases. Matter of Stabler, 75 B.R. 135, 136 (Bkrtcy.M.D.Fla.1987); In re Woodworth, 70 B.R. 361, 362 (Bkrtcy.N.D.N.Y.1987); Matter of Parameswaran, 64 B.R. 341, 343 (Bkrtcy.S.D.N.Y.1986); Matter of Pray, 37 B.R. 27, 30 (Bkrtcy.M.D.Fla.1983).
Appellant's second argument in support of compensation is grounded in the theory of quantum meruit. This argument is based on case law which stands for the proposition that the trustee is entitled to compensation on a quantum meruit basis when the trustee performs substantial services but does not disburse any monies in cases not fully administered through no fault of the trustee. Matter of Stabler, 75 B.R. 135, 136 (Bkrtcy.M.D.Fla.1987); In re Woodworth, 70 B.R. 361, 362 (Bkrtcy.N.D. N.Y.1987); Matter of Parameswaran, 64 B.R. 341, 343 (Bkrtcy.S.D.N.Y.1986); Matter of Pray, 37 B.R. 27, 30 (Bkrtcy.M.D. Fla.1983). The appellant invites the Court to find that the case was not fully administered, and further find that he is entitled to additional compensation on a quantum meruit basis.
The Court declines to accept appellant's invitation. By appellant's own words, the "case was fully administered by and through the efforts of the Trustee." Brief of Appellant, p. 15 & 17 (docket # 4).
*552 IV. CONCLUSION.
This Court finds that the Bankruptcy Court made no material findings of fact that were clearly erroneous. In addition, this Court finds that the Bankruptcy Court's interpretation of 11 U.S.C. § 326(a) as excluding monies from the judgment against the City of Cleveland from the base amount used in calculating the trustee's compensation is correct as a matter of law. Finally, the Court is unpersuaded by the appellant's disingenuous argument that subject bankruptcy case was not fully administered, and denies appellant's request for quantum meruit compensation.
IT IS SO ORDERED.
JUDGMENT ENTRY
For the reasons set forth in the Memorandum Opinion filed contemporaneously with this Judgment Entry, IT IS HEREBY ORDERED, ADJUDGED and DECREED the decision of the Bankruptcy court limiting appellant-trustee's compensation to $1,035.84 is affirmed. This appeal is hereby dismissed.
NOTES
[1] The Order of the Court of Common Pleas, Exhibit C to the Application of Trustee for Final Compensation, contains two amounts, $1,231,780.20 and $1,231,708.20. It appears that a simple inversion has taken place. Although this Court is unsure which of the two numbers represents the correct amount, the difference represents such a small fraction of the total so as not to be material should appellant succeed.
[2] A copy of the Order is attached to the Application of Trustee for Final Compensation, and provides
[T]he Receiver, Timothy J. Potts is hereby instructed to pay over the balance of the funds, save only an amount sufficient to compensate the Receiver for his services, to George Alexander, Inc., Debtor-in-Possession, and John L. Woodard its attorney. Said funds to be transmitted to George Alexander, Inc., Debtor-in-Possession for deposit in the Debtor-in-Possession account in Bankruptcy Case No. 683-0725, Northern District of Ohio, Eastern Division, at Canton, Ohio, for further disposition and determination of the claims against said funds by the claimants to the fund and pursuant to direction of the United States Bankruptcy Court in the aforementioned case.
Upon determination of the compensation for Timothy J. Potts, by the court, he is instructed to payover any remamining [sic] balance, after payment of fees and expenses, to the Debtor-in-Possession in the United States Bankruptcy Court, Case No. 683-0725.
[3] All parties agree that this amount was received by the trustee in his administration of the Alexander Leasing Corp. case.
[4] This figure represents the amount paid into the state court by the City of Cleveland in payment of the judgment rendered against it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920334/ | 107 B.R. 91 (1989)
In re Lelia M. VIA, Debtor.
Lelia M. VIA, Plaintiff,
v.
COLONIAL AMERICAN NATIONAL BANK, Defendant.
Bankruptcy No. 7-89-00223-BKC-HPR, Adv. No. 7-89-0040.
United States Bankruptcy Court, W.D. Virginia, Roanoke Division.
September 25, 1989.
*92 Henry L. Woodward, Legal Aid Soc. of Roanoke Valley, Roanoke, Va., for debtor/plaintiff.
A. Carter Magee, Jr., Magee & Associates, Roanoke, Va., for defendant.
MEMORANDUM OPINION
H. CLYDE PEARSON, Chief Judge.
ISSUES
The issues before the court are:
I. Whether the debtor may recover payment to a creditor as an avoidable transfer of property pursuant to Bankruptcy Code § 522(h); and
II. If avoidable, whether the amount to be avoided is limited pursuant to Bankruptcy Code § 547(c)(7).
FACTS
The facts have been stipulated. On November 2, 1988, Colonial American National Bank ("defendant" or "bank") obtained judgment against debtor for $728.31 with costs, interest and attorney's fees. On November 29, 1988, bank obtained a garnishment summons to satisfy the judgment debt from debtor's wages at Community Hospital of Roanoke Valley. The return date on the garnishment was January 25, 1989. The garnishment summons was served but no wages were withheld from debtor's pay check.
On December 1, 1989, being advised of the garnishment and desiring to avoid the withholding, debtor arranged for payment to defendant-bank of the payoff sum of $779.35. In order to pay this sum, debtor obtained a loan from her mother. Upon satisfaction of the judgment, bank released the garnishment.
On February 9, 1989, debtor filed her Chapter 7 petition. On February 7, 1989, prior to the filing, debtor recorded a home-stead deed which claimed the benefit of her homestead exemption under Virginia Code § 34-4 for $770, listed as "refund of involuntary payment to" bank.
Debtor did not attempt to conceal her payment to the bank, but rather disclosed it in her Chapter 7 schedules as well as in the homestead deed. The trustee has not sought to avoid the transfer of the $779.35 made to the bank.
On March 3, 1989, debtor brought this adversary proceeding under Bankruptcy Rule 7001(1). The complaint seeks to recover the payment made to bank as an avoidable preference pursuant to 11 U.S.C. § 522(h).
*93 DISCUSSION
I. Whether the debtor may recover payment to a creditor as an avoidable transfer of property pursuant to Bankruptcy Code § 522(h).
Subsection (h) of 522 states:
(h) The debtor may avoid a transfer of property of the debtor or recover a setoff to the extent that the debtor could have exempted such property under subsection (g)(1) of this section if the trustee had avoided such transfer, if
(1) such transfer is avoidable by the trustee under section 544, 545, 547, 548, 549, or 724(a) of this title or recoverable by the trustee under section 552 of this title; and
(2) the trustee does not attempt to avoid such transfer.
The trustee in bankruptcy is given the authority to avoid certain transfers under § 547. Pursuant to § 522(h), a debtor is allowed to step into the shoes of the trustee to avoid such a transfer if the trustee does not. This is true even as to property which the debtor has exempted. § 522(g).
In order for the debtor to succeed in recovering the payment made to bank by stepping into the trustee's shoes, she must establish the following preconditions: 1) The trustee has not attempted to avoid a transfer which the trustee could have avoided under one of the sections set forth in § 522(h)(1); and 2) the property could be exempted under 522(g)(1).
Addressing the threshold condition, the debtor contends that the trustee has not attempted to avoid the transfer and that he could so avoid the transfer under § 547(b). That subsection states:
(b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made
(A) on or within 90 days before the date of the filing of the petition; or
(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of the transfer was an insider; and
(5) that enables such creditor to receive more than such creditor would receive if
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
The trustee has not attempted to avoid the transfer. The court finds no dispute that the requirements for a voidable transfer exist in the present case: there was a transfer of debtor's property (1) to a creditor, bank; (2) for an antecedent debt, evidenced by bank's prepetition judgment; (3) made while the debtor was insolvent, section 547(f) presumes debtor to have been insolvent on and during 90 days immediately preceding the date of the filing of the petition; (4) made within 90 days of the filing of the petition, debtor transferred property 70 days prior to filing petition; and (5) enabled bank to receive more than it would have received in this debtor's no-asset Chapter 7 case.
Since the trustee could have avoided the transfer, and he has not attempted to avoid such transfer, the first precondition is satisfied. The remaining condition is whether the debtor meets the requirements of 522(g)(1).
Subsection (g) of 522 states:
(g) Notwithstanding sections 550 and 551 of this title, the debtor may exempt under subsection (b) of this section property that the trustee recovers under section 510(c)(2), 542, 543, 550, or 553 of this title, to the extent that the debtor could have exempted such property under subsection (b) of this section if such property had not been transferred, if
(1)(A) such transfer was not a voluntary transfer of such property by the debtor; and
*94 (B) the debtor did not conceal such property; or
(2) the debtor could have avoided such transfer under subsection (f)(2) of this section.
The court finds that the debtor meets the requirements of section 34-4 of the Virginia Code, which, by way of 522(b), entitle her to claim a homestead exemption in the disputed property, up to the amount of $5,000. The court also finds no issue of concealment because debtor's petition openly disclosed the transfer and claim for refund of the payment. The pivotal issue is therefore whether the debtor's payment to defendant-bank was a voluntary transfer under 522(g)(1)(A).
It is the bank's position that the debtor is not entitled to the exemption because she voluntarily transferred money to it. It is the debtor's position that the transfer was involuntary and she is thus entitled to exemption under 522(g). The definition of "voluntary transfer" as used in subsection 522(g) is not defined in the Bankruptcy Code.
In the case of In re Hoffman, 96 B.R. 46 (W.D.Pa.1988), the court defined "voluntary transfer" as one which occurs "when the Debtor, with knowledge of all essential facts and free from persuasive influence of another chooses of her own free will to transfer property to the creditors."
It is well settled that a debtor's payment through a garnishment is involuntary and recoverable by the debtor pursuant to sections 522 and 547, see In re Baum, 15 B.R. 538, 540 (Bankr.E.D.Va. 1981). The problem in the case at bar is that the payment was not made through garnishment, but to avoid the garnishment.[1] In this case the debtor responded to the issuance of the garnishment summons by obtaining a loan to pay the creditor in order to avoid the withholding against her wages. The substance and result is the same.
The bank contends that an "arms length" negotiation to release a garnishment in return for present payment comports with the general notion of voluntariness, and for that reason, the transfer was voluntary. This court declines to accept the bank's argument, and finds that the debtor's payment is inherently involuntary where payment was made to bank attending such imposing circumstances and compulsion as a judgment lien coupled with a garnishment summons against debtor's wages.
The debtor in this case cites In re Washkowiak, 62 B.R. 884 (Bankr.N.D.Ill.1986) and In re Ricke, 84 B.R. 408 (Bankr.W.D. Pa.1988) to support her position of an involuntary transfer. Washkowiak indicates that satisfaction of an involuntary debt created by a judgment lien is not voluntary. 62 B.R. at 886. Ricke indicates that an involuntary debt created by a judgment lien alone is not enough to make the payoff involuntary, but coupled with or in response to an execution which would result in the payment on the lien, would make the payoff involuntary. 84 B.R. at 409. In present case, the judgment lien and garnishment summons against the debtor were obviously not "voluntary" on her part. This court follows the better reasoning in Washkowiak and Ricke in that a payment made in response to legal coercion is not voluntary.
This court believes that the purpose for disallowing a voluntary transfer made by a debtor who claims an exemption in property, is not to allow the debtor a windfall which would enable him to benefit from his own voluntary act. Here, the debtor only made payment when she was fearful and certain that wages would be taken through the garnishment. The issuance of the garnishment summons resulted in a coerced payment made by the debtor because of the threat of losing her wages and the inherent threat to her employment through legal compulsion. Garnishment has been so devestating on employees that state and federal *95 remedial laws have been enacted governing such action.
It is clear from the timing and circumstances of the payment that the debtor would not have made the transfer had the garnishment not been issued. Immediately after the garnishment was issued, the debtor obtained a loan and made the payment. There was nothing voluntary about debtor's payment to bank except that she made it. Furthermore, the debtor does not gain any real windfall by paying bank, because she could have recovered the amount if it had been paid through the garnishment.
II. If avoidable, whether the amount to be avoided is limited pursuant to Bankruptcy Code § 547(c)(7).
Bankruptcy Code § 547(c) contains exceptions to the trustee's avoidance power. Bank contends that § 547(c)(7), should be read to give a creditor a "safe harbor" of $599.99 anytime it receives payment on its debt. This court is not persuaded by bank's contention.
Subsection (c)(7) states:
(c) the trustee may not avoid under this section a transfer
. . .
(7) if, in a case filed by an individual debtor whose debts are primarily consumer debts, the aggregate value of all property that constitutes or is affected by such transfer is less than $600.00.
This court is in agreement with the debtor's argument that the obvious reading of 547(c)(7) does not say that a transfer is avoidable only to the extent it exceeds $600.00. Attention is directed to the reasoning of In re Vickery, 63 B.R. 222 (Bankr.E.D.Tenn.1986). In Vickery, the trustee attempted to avoid a transfer under Section 547 and a creditor likewise argued for retention of the first $599.99 under 547(c)(7). The court rejected the argument:
The wording of the exception clearly makes $600 a cutoff point on the trustee's right to recover and more importantly on his decision to bring suit. A payment of $599 is protected but a payment of $601 is not. Creditors who have received preferential payments of less than $600 can expect not to be sued by the trustee. Likewise, the trustee is given a good reason not to bring suit for amounts so small that litigation costs do not justify bringing suit. The legislative history is minimal, but the court believes this type of cutoff point is exactly what Congress had in mind. The legislative history reflects that the exception was intended to stop recoveries by bankruptcy trustees of small installment payments made in the ninety days before bankruptcy. In re Johnson, 53 B.R. 919, 921 note 4 (Bankr.N.D.Ill.1985), citing S.Rep. No. 446, 97th Cong., Sess. 24 (1982).
In re Vickery, 63 B.R. at 223.
In light of the clear wording of 547(c)(7) and the well reasoned decision in Vickery, this court finds that the entire amount transferred is recoverable. It is further apparent that the exclusion of the trustee's action to recover less than $600 is not necessarily binding on a debtor seeking to claim as exempt what to a distressed debtor is a large sum less than $600, if not voluntarily made in the first instance.
Accordingly an ORDER will be entered that the debtor's complaint to recover a preference be GRANTED; that the entire $779.35 paid to defendant-bank be turned over to debtor; and that this adversary proceeding is closed.
NOTES
[1] Garnishment is obviously not "voluntary" on the Debtors part. In re Shorts, 63 B.R. 2 (Bankr.D.Dist.Col.1985). In re Bennett, 35 B.R. 357 (Bankr.Ill.1984). The reports of the House and Senate give as example of involuntary transfer "(such as by the fixing of a judicial lien)". H.R.Rep. No. 595, 95th Cong, 1st Sess 362 (1977) S Rep No. 989, 95th Cong, 2nd Sess 76 U.S.Code Cong. & Admin.News 1978, pp. 5787, 5862, 5963, 6317 (1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920354/ | 107 B.R. 8 (1989)
In the Matter of CENTURY BRASS PRODUCTS, INC., Debtor.
Bankruptcy No. 2-85-00197.
United States Bankruptcy Court, D. Connecticut.
October 31, 1989.
*9 Frederic E. Mascolo, Moynahan, Ruskin, Mascolo, Mariani & Minnella, Waterbury, Conn., for Frank Santaguida, claimant.
Robert A. White, Murtha, Cullina, Richter & Pinney, Hartford, Conn., for debtor.
David J. Heinlein, Rogin, Nassau, Caplan, Lassman & Hirtle, CityPlace, Hartford, Conn., for Plan Adm'r.
Richard Levy, Jr., Milgrim, Thomajan & Lee, P.C., New York City, Counsel and Representative for Retired Employees of debtor.
MEMORANDUM AND ORDER RE: OBJECTION TO REQUESTS OF FRANK SANTAGUIDA FOR PAYMENT OF ADMINISTRATIVE EXPENSE
ROBERT L. KRECHEVSKY, Chief Judge.
I.
ISSUE
The parties to this proceeding are at issue over the allowance of two administrative expense claims filed by Frank Santaguida (Santaguida).[1] Claim No. 1566, filed on August 8, 1988, is in the amount of $120,000.00 and asserts the consideration for the debt or ground of liability as a "Post Petition Agreement." Claim No. 1426, filed on December 31, 1987, seeks $9,275.76 for 1985, 1986 and 1987 "Vacation Pay."
II.
BACKGROUND
On March 15, 1985, Century Brass Products, Inc., the debtor, filed a bankruptcy petition under chapter 11. Santaguida, an employee of the debtor since 1978, was then a vice-president of the debtor employed under an employment agreement dated December 1, 1983 and covering a period commencing December 1, 1983 and ending April 15, 1986. The debtor's attempts to reorganize its business ceased on June 30, 1986, when the Court of Appeals for the Second Circuit reversed the bankruptcy and district courts' rulings that the debtor, pursuant to 11 U.S.C. § 1113, was authorized to reject a collective bargaining agreement. See In re Century Brass Products, Inc., 795 F.2d 265 (2d Cir.1986). Shortly thereafter, the debtor, the unsecured creditors' committee (committee) and other interested parties determined, in effect, to terminate the debtor's corporate existence and immediately to start a search for buyers for the debtor's business and assets.
In August 1986, Lewis Segal, the debtor's then president, during an informal meeting, suggested to Robert A. White (White), one of the debtor's attorneys, and to Jerome E. Caplan (Caplan), attorney for the committee, that new employment contracts be entered into with three of the debtor's officers, including Santaguida. The proposed contracts would include substantial severance-pay benefits in order to provide security for the officers in light of a threatened stockholder replacement of the debtor's board of directors. Both White and Caplan advised Segal that such agreements would require notice to creditors, a hearing, and court approval. Segal was further advised that if a court hearing were sought, the proposed agreements would likely be contested, court approval was not certain, and the estate had too many other problems with which to deal. Segal, who during the trial denied recalling any such advice, went ahead and secured the board of directors' approval (two members *10 voting, including Segal) of the agreements, including the one with Santaguida. The agreement, dated September 9, 1986, stated, on page one, that it was "Privileged and Confidential" and that it was based upon "potentially disturbing circumstances arising from the Chapter 11 proceeding." The parties to the agreements did not submit them to the court for approval, and neither White, Caplan nor any members of the committee were aware of their existence for approximately a year after their execution. The debtor terminated Santaguida's employment on April 30, 1988.
During 1987, buyers for the bulk of the debtor's assets were found. After many months of negotiation with representatives of former salaried and union employees, secured creditors, the State of Connecticut (concerning serious environmental problems), The Pension Benefit Guaranty Corporation and many other parties, the debtor proposed a plan of liquidation to distribute the sales proceeds. The overriding function of the plan was to resolve by compromise the numerous administrative-expense claims which, in amount, exceeded the sales proceeds. Unsecured, nonpriority creditors were advised in the disclosure statement that they likely will receive nothing from the estate. The plan recently has been confirmed, and the Santaguida and one or two other administrative-expense claims remain to be resolved.
In order to secure the vital information of the total amounts sought by the administrative-expense claimants, the court, on November 25, 1987, entered an order setting January 4, 1988 as the last date, with certain exceptions, by which a request for payment of an administrative expense could be filed. The debtor sent notice of this bar date by December 1, 1987 to all potential claimants, including Santaguida, and he concedes that he timely received such notice.
III.
CLAIM NO. 1566
The debtor, the committee[2] and the Representative for Retired Employees are the objectors to Santaguida's claims. They first assert that claim No. 1566, having been filed on August 8, 1988, seven months after the January 4, 1988 bar date, is untimely and thereby barred on that account alone. Santaguida contends that he was not told until May, 1988 that the debtor would not recognize the enforceability of his contract, and, accordingly, he had no reason to file a claim on January 4, 1988.[3] He asserts that the court should apply the "excusable neglect" standard under Bankruptcy Rule 9006(b),[4] despite his lack of a motion for enlargement of time, and permit his claim to be considered. The court received testimony from both White and Roy C. David, the debtor's president following the resignation of Segal, that by September 1987, they had separately advised Santaguida that his severance-pay agreement was unenforceable because it had never been noticed to creditors and presented to the court for approval. I credit this testimony and conclude that Santaguida, even assuming (but not deciding) the validity of his argument of "ignorance of a claim," should have known that he held a disputed *11 claim and that his claim had to be filed by January 4, 1988. Furthermore, I find that no equitable considerations exist to overcome Santaguida's disregard of the bar date in light of the significance of the bar date to arrive at a final resolution of this case. See In re South Atlantic Financial Corp., 767 F.2d 814 (11th Cir.1985); In re Century Brass Products, Inc., 72 B.R. 68 (Bankr.D.Conn.1987); Hassett v. Weissman (In re O.P.M. Leasing Services, Inc.), 48 B.R. 824 (S.D.N.Y.1985).
The objectors further assert that the agreement, not having been noticed to creditors and approved by the court, is invalid and avoidable. Code § 363(c)(1) authorizes a debtor in possession operating the debtor's business under Code § 1108[5] to enter into "transactions . . . in the ordinary course of business, without notice or a hearing. . . ." Transactions not in the ordinary course of business obviously require notice and hearing and court authorization.[6]See § 363(b)(1). Santaguida asserts, and the objectors deny, that his severance-pay agreement was entered into in the ordinary course of business. The agreement provided for one year of severance pay to Santaguida upon his termination by the debtor, continued use of a car for one year with all costs paid by the debtor, continued payment by the debtor for medical insurance for one year, payment by the debtor for all legal fees and expenses incurred by Santaguida as a result of his termination, and no need for Santaguida to mitigate any damages. Segal acknowledged, while testifying, that during his prior seven years of service as president of the debtor, no comparable agreement had ever been entered into. The severance-pay provisions represented a radical departure from any prior severance-pay benefits granted to any of the debtor's employees.
The accepted test for determining whether a transaction is within the ordinary course of business was first and best articulated in Armstrong World Industries, Inc. v. James A. Phillips, Inc. (In re James A. Phillips, Inc.), 29 B.R. 391 (S.D.N.Y.1983).
The legislative history of § 363 provides no test or guideline concerning the scope of the "ordinary course of business" standard. Nonetheless, the apparent purpose of requiring notice only where the use of property is extraordinary is to assure interested persons of an opportunity to be heard concerning transactions different from those that might be expected to take place so long as the debtor in possession is allowed to continue normal business operations under 11 U.S.C. § 1107(a) & § 1108. The touchstone of "ordinariness" is thus the interested parties' reasonable expectations of what transactions the debtor in possession is likely to enter in the course of its business.
Id. at 394. (Citations omitted). See also Burlington N.R.R. Co. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.), 853 F.2d 700, 704-06 (9th Cir.1988); Committee v. Johns-Manville Corp. (In re Johns-Manville Corp.), 60 B.R. 612 (Bankr.S.D.N.Y. 1986), rev'd on other grounds, 801 F.2d 60 (2d Cir.1986); Johnston v. First Street Companies (In re Waterfront Companies, Inc.), 56 B.R. 31 (Bankr.D.Minn.1985).
Utilizing this test, I have no hesitancy whatsoever in concluding that the nature of Santaguida's agreement required notice to creditors, a hearing and court approval in order to be effective. It is clearly the type of transaction which creditors expect to have notice of in view of its potential impact on increasing the administration expenses of an estate. Creditors do not anticipate that, based upon a fear of change of corporate control, substantial severance-pay benefits secretly will be granted to selected management employees. Furthermore, with the troubled history *12 of this case in mind, it is more likely than not that had a contested hearing been held on the approval of this agreement, approval would not have been granted.
The objectors have advanced additional substantive reasons why Claim No. 1566 should not be allowed, but in view of the findings and conclusions already reached, it would unduly lengthen this ruling to discuss them.
Claim No. 1566 will be disallowed, and it is
SO ORDERED.
IV.
CLAIM NO. 1426
By this claim, timely filed on December 31, 1987, Santaguida seeks two-and-one-half weeks of annual vacation pay for the years 1985 and 1986 and one week for 1987, all at the weekly pay rate of $1,538.46. He attached to his claim a copy of page one of a "Standard Practice" form from the debtor's "Salaried Employee Manual." This document states that employees with five to ten years' service qualify for two-and-one-half weeks of annual vacation pay.
At trial, Santaguida testified that he was too busy to take a vacation in 1985 and 1986. He claimed he took two weeks' vacation in 1987, but that it was company policy to allow three weeks' vacation after seven years' service, so that he had one week due for 1987.[7] By agreement with the chairman of the committee, he took his full vacation time in 1988, prior to his termination at the end of April 1988.
Joseph Formica, a former vice-president of the debtor, called by Santaguida as a witness, testified on cross-examination that, under the debtor's company policy, employees lost vacation time if not taken in the year earned. The objectors introduced into evidence page two of the debtor's "Salaried Employee Manual" which, with exceptions not material, stated that "Vacations must be taken within the calendar year." The objectors also produced a written report, prepared under Santaguida's direction and dated September 24, 1987, which set out vacation entitlements, "based on present Century Brass written policy," of those employees who, due to the sale of the debtor's business, were being terminated. That report showed Santaguida's entitlement as $4,410.95, apparently even including vacation time from prior years. Santaguida testified that he took additional vacation time in 1987 after September 24th.
Since an administrative expense not only is an allowance against the estate but also enjoys a priority over other claims, any administrative claim must be subject to the strict scrutiny of the court. See Matter of Cott Corp., 47 B.R. 487, 491 (Bankr. D.Conn.1984). The burden is on the claimant to prove by a preponderance of the evidence the validity of his claim. Matter of Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986); In re U.S. Lines, Inc., 103 B.R. 427 (Bankr.S.D.N.Y.1989). Santaguida's post-trial brief addresses none of the discrepancies between Claim No. 1426 and the testimony received at trial, but simply asserts that Santaguida never "negotiated away" his right to vacation pay. I conclude that Santaguida has failed to establish, by a preponderance of the evidence, that he is entitled to payment for accrued vacation time for the years 1985, 1986 and 1987.
The Plan Administrator's post-trial brief concedes that Santaguida is entitled to unpaid wages for the last week of April 1988. Accordingly, Claim No. 1426 will be allowed for that amount. It is
SO ORDERED.
ORDER
The objections of the debtor, the unsecured creditors' committee and the Representative for Retired Employees in the above-captioned case, Century Brass Products, Inc., to two administrative expense claims, Claim No. 1566 and Claim No. 1426, *13 filed by Frank Santaguida, having been heard, and the court having filed a Memorandum of Decision containing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, ADJUDGED AND DECREED that Claim No. 1566 is disallowed, and it is
FURTHER ORDERED, ADJUDGED AND DECREED that Claim No. 1426 is allowed in an amount equal to unpaid wages for the last week of April 1988 and is disallowed for accrued vacation time for the years 1985, 1986 and 1987.
NOTES
[1] 11 U.S.C. § 503, entitled "Allowance of administrative expenses," provides in part:
(a) An entity may file a request for payment of an administrative expense.
(b) After notice and a hearing, there shall be allowed administrative expenses . . . including
(1)(A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case. . . .
11 U.S.C. § 503 (1988).
[2] Under the provisions of the confirmed plan, the committee has been replaced by the Plan Administrator, and counsel for the committee became counsel for the Plan Administrator.
[3] The claim filed on August 8, 1988 is dated June 17, 1988.
[4] Bankruptcy Rule 9006(b) provides:
(b) Enlargement.
(1) In General. . . . when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
Bankr.R. 9006(b).
"Excusable neglect is present when a party fails to meet an obligation due to `unique or extraordinary' circumstances `which [are] beyond the reasonable control' of the delinquent party." Hassett v. Weissman (In re O.P.M. Leasing Services, Inc.), 48 B.R. 824, 830 (S.D.N.Y. 1985) (citations omitted).
[5] Section 1108 provides:
"Authorization to operate business.
Unless the court, on request of a party in interest and after notice and a hearing, orders otherwise, the trustee may operate the debtor's business."
11 U.S.C. § 1108 (1988).
[6] Section 549 states that postpetition transactions which are "not authorized under this title or by the court" may be avoided. 11 U.S.C. § 549 (1988).
[7] The "Standard Practice" form from the debtor's "Salaried Employee Manual" states that an employee must have at least ten years of service before he or she is entitled to three weeks' vacation per year. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920245/ | 91 B.R. 718 (1988)
Joseph E. HUDAK, Plaintiff,
v.
Robert WOODS, Michael S. Geisler and Richard O'Brian, Defendants.
Civ. Act. No. 87-1999.
United States District Court, W.D. Pennsylvania.
October 21, 1988.
Joseph Hudak, Robert O. Lampl, William G. Suter, Jr., Pittsburgh, Pa., for plaintiffs.
Raymond J. Seals, Pittsburgh, Pa., for James Shepard & Debbie Hardy.
Charles F. Scarlata, Pittsburgh, Pa., for Woods & O'Brian.
Michael S. Geisler, Pittsburgh, Pa., pro se.
Yaier Y. Lehrer, Norma Chase, Pittsburgh, Pa., for Geisler.
MEMORANDUM OPINION
ROSENBERG, District Judge.
The defendant filed a Motion to Dismiss this action and to dissolve an injunction previously entered for the following reasons: 1) that the plaintiff failed to file briefs as the defendants indicate were mandated by the court; 2) that in part, the action is merely a relitigation of a matter which was the subject of a criminal prosecution in the Allegheny County Court of Common Pleas; and 3) that this court lacks jurisdiction over this matter because it is grounded in the pendency of a bankruptcy petition which has since been dismissed.
As to the first contention that the plaintiff failed to file briefs, the defendant evidently is not cognizant of the fact that briefs are not a matter of record, but are only documents usually requested by the court to aid the court in defining facts and in presenting authority which the court might desire. In this case, the court actually saw no need for briefs because it merely suggested that if the parties wished to file briefs, they could do so within certain periods of time. That did not make it mandatory *719 for anyone to file briefs and, therefore, this contention is without merit.
As for the defendants' contention that this is now relitigation of what occurred in the Common Pleas Court, that, too, is without merit because while there were considerable references made to actions in the Court of Common Pleas which involved the plaintiff as brought by the defendant Woods, there was nothing in the instant case which relitigated anything which occurred there. So, this contention lacks merit.
As for the third contention that this court has no jurisdiction for the reasons which they set forth, the movants again show a lack of knowledge of the processes in which this case has arrived in this court. The bankruptcy case was originally filed in that court, Bankruptcy No. 87-1851, as an involuntary action brought by counsel, Yaier Y. Lehrer, presenting the involuntary bankruptcy petition. The second matter in this action was the bankruptcy adversary proceeding docket at 87-00356. The adversary proceeding was brought before this court, as the docket entries show, on September 16, 1987 as motion for a temporary restraining order and this court withdrew the matter from bankruptcy court and assigned to the United States District Court this adversary proceeding. It stated "this withdrawal is for the purpose of correcting and modifying the same as an appropriate action for a preliminary injunction, Civil Action No. 87-1999," and was assigned to this judge in this court. Jurisdiction was accepted, received, retained by court order on September 22, 1987, and still exists in this court.
When the defendants in their motion to dismiss set forth the fact that "this court lacks jurisdiction over this matter in as much as the court's original jurisdiction was grounded on the pendency of a bankruptcy petition which has long sinced been dismissed" (Def. Motion to Dismiss, p. 2 (11), they refer to Item 24 in the bankruptcy proceeding 87-1851 dated November 30, 1987, the stipulation for the withdrawal of the bankruptcy petition on behalf of Woods, signed on November 30, 1987 modified December 2, 1987 and certified that "all creditors had been advised of this motion to dismiss." The case was dismissed and the case is closed.
This court was not notified of this action. It appears, given the complicated nature of this case, that perhaps all creditors of the Hudak law firm were not properly notified in this case and a general averment or certification to this effect is insufficient for this court.
The matter before me now involves the alleged contempt of a preliminary injunction entered by this court on September 30, 1987. This court's powers of contempt are not limited by the dismissal of the underlying action. The District Court's power to punish for contempt is inherent and includes the bankruptcy courts. Preferred Surfacing, Inc. v. Gwinnett Bank & Trust Co., 400 F.Supp 280 (N.D.Ga.1975). Additionally, the defendant omits at least one important fact evident to this court upon inspection of the bankruptcy records. The underlying bankruptcy matter (87-1851) was not merely dismissed; it was dismissed pursuant to the stipulation for withdrawal of bankruptcy petition on behalf of G. Woods dated November 30, 1987. It would certainly, in the least, be inequitable for this court to allow any party to attempt to defeat the provisions of a preliminary injunction and avoid contempt by stipulating to a dismissal of another matter.
This court was not notified that the parties stipulated to the withdrawal of the related bankruptcy matter. It is the belief of this court that the parties may have consented to the withdrawal of the underlying bankruptcy matter illegally and may have perpetrated fraud on this court by failure to notify this court of its intention when all parties had actual knowledge that this court had taken jurisdiction of the adversary matter relating to the bankruptcy.
When this court accepted this case and acted in the issuance of a temporary restraining order, it did so also as a court of equity. With the aid of the parties, the temporary restraining order was eventually converted into a preliminary injunction, and thereafter, on October 1, 1988 into a permanent injunction. Under these circumstances, this court acted within the jurisdiction *720 granted in bankruptcy statutes because the jurisdiction did not supplant the statute providing that the district court of all civil actions arising under the laws of the United States, but merely supplemented that statute; therefore, the statute conferring upon the district court original jurisdiction of all civil actions arising under the laws of the United States provides an additional, independent basis for federal district court's jurisdiction in bankruptcy cases. A general order revesting original bankruptcy jurisdiction in the district court, as was done in this case, vests jurisdiction in the district judges as district judges. (Emphasis added.) Matter of UNR Industries, Inc., 725 F.2d 1111 (7th Cir.1984). In any event, even if this action has been precipitously processed before an uninformed member of the bankruptcy court as did occur, the dismissal of the bankruptcy case does not mandate the dismissal of all pending adversary proceedings. Stardust Inn, Inc. v. Doshi, 70 B.R. 888 (Bkrtcy.E.D.Pa.1987). Further, even if the dismissal as averred exists as indicated in the docket of the bankruptcy proceeding, it would matter little because the jurisdiction granted to the bankruptcy court is broad and nothing in the statute governing jurisdiction of the bankruptcy court prohibits continuance of jurisdiction over an adversary proceeding, which arose in or was related to a bankruptcy case, following dismissal of the underlying bankruptcy case. In re Pocklington, 21 B.R. 199 (Bkrtcy.S. D.Cal.1982). The defendants by their motion to dismiss attempt to sidetrack this case.
If the bankruptcy judge who signed the dismissal order had been fully informed and had known that the district court had transferred and removed to that court the adversary proceeding involving the injunctive processes and hearings and the work and time that the district court had expended, it is doubtful that the judge would have allowed withdrawal of the bankruptcy case itself. Whether he did or did not have knowledge, the bankruptcy judge did not have jurisdiction to overrule or take over itself any matter which a district court judge was actively engaged in performing. A bankruptcy court does not have such a power and this court neither approved the withdrawal of the bankruptcy action nor received notification of its removal, and it would not have agreed to relinquish its jurisdiction after the time involved and the serious consequences that could occur by an unthinkable action. To do so, would be a waste of the time and money for all involved in the injunctive proceeding and the contempt hearings which followed and would be an enormous injustice to the plaintiff in this case and to all related individuals who have suffered immensely because they would have been left in the same position as if the injunctive proceeding had never been brought. The hundreds of worried and helpless divorce and bankruptcy cases would still be stranded by such an insensitive and preposterous action. Furthermore, it would only open the gates to additional litigation in many ways by many people including that of the plaintiff himself.
Assuming, nevertheless, as a matter of consideration, of which this court does not approve, that the withdrawal of the bankruptcy proceeding on November 30, 1987, in the bankruptcy court ended the dependent action of the adversary matter taken over by this court on October 1, 1987 when it issued a permanent injunction, the defendant would not be helped even by the bankruptcy judges themselves. Even in the most controversial of cases, In re Pocklington, Supra, where a statement was made that as a general rule dismissal of a bankruptcy case results in the dismissal of all adversary proceedings filed in that case, the Pocklington court said that it did not follow that rule, but instead retained jurisdiction over an adversary proceeding without that bankruptcy court, even though the underlying bankruptcy case was dismissed. That judge also noted that Section 349 of the Bankruptcy Code clearly contemplates continuation of jurisdiction in appropriate circumstances. In another case, In re Rush, 49 B.R. 158 (Bkrtcy.N.D.Ala.1985), which held with the thinking of the judge in Pocklington, the judge in this case held that there was authority that an adversary *721 proceeding may have an individual life after the closing of the main bankruptcy case.
The majority of all the bankruptcy cases hold as did the judge in Stardust Inn, Inc., Supra, that "the court could retain jurisdiction over an adversary proceeding although the main bankruptcy case had been dismissed." Since this court had informed and made public as a matter of record that it accepted jurisdiction in this adversary proceeding, that it continues to act in its regard and expended a large amount of court time and research time, that it had two hearings on it and did not reject or deny its jurisdiction, but continues to perform arduously the burden which it has assumed in this injunctive proceeding as an adversary bankruptcy matter, I cannot permit it to be said than an uninformed bankruptcy judge could possibly deprive it of its jurisdiction. Accordingly, this third basis for the dismissal of this action before this court is completely without merit.
For all of the aforementioned reasons, the motion of the defendants will be denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920247/ | 921 So. 2d 753 (2006)
In re Jane DOE, a minor.
No. 1D05-6144.
District Court of Appeal of Florida, First District.
February 22, 2006.
John B. Carr, Pensacola, for appellant.
*754 PER CURIAM.
Appellant, a minor we will refer to by the pseudonym Jane Doe, appeals an order denying her petition for judicial waiver of parental notification of pregnancy. We previously reversed that order by unpublished order, and now write to explain the basis for our decision.
The Parental Notice of Abortion Act became effective on June 30, 2005, and is codified at section 390.01114, Florida Statutes.[1] The law generally calls for notification of the parents of a minor who seeks termination of her pregnancy by the physician. It also allows for a waiver of parental notice by petitioning the circuit court for such relief. Paragraphs (4)(c) and (d) of the statute establish three grounds for granting a waiver and one, involving child abuse or sexual abuse of the minor by a parent, is inapplicable in this case. Instead, appellant sought a waiver based on section 390.01114(4)(c), which provides in relevant part as follows:
If the court finds, by clear and convincing evidence, that the minor is sufficiently mature to decide whether to terminate her pregnancy, the court shall issue an order authorizing the minor to consent to the performance or inducement of a termination of pregnancy without the notification of a parent or guardian.
With respect to this ground, Doe alleged in her sworn petition that both she and the father planned to attend college, and that they had no reservations with their decision. She added that she had considered the emotional consequences and has a strong support system with friends, teachers, and a counselor to assist her if necessary.
Appellant also relied on paragraph (4)(d) of the statute, which provides in relevant part:
If the court finds, by a preponderance of the evidence, ... that the notification of a parent or guardian is not in the best interests of the petitioner, the court shall issue an order authorizing the minor to consent to the performance or inducement of a termination of pregnancy without the notification of a parent or guardian.
With respect to this ground, Doe alleged that her parents often blame one another when she encounters problems, and she feared that knowledge of her decision to terminate her pregnancy could jeopardize their marriage.
At the hearing on her petition, Doe testified that she is in the 11th grade and receives good grades. She is scheduled to graduate from high school next year, works part-time, intends to attend college, and plans to be a teacher or guidance counselor. She stated that she has been considering the prospect of terminating her pregnancy for about two weeks, and had consulted with her best friend, her friend's family, and her boyfriend. She is "really close" to her best friend's mother and had discussed the matter with her. Doe indicated that they had talked about it and "I believe that the emotional distress would be better if I took responsibility and had it all for myself rather than everyone else, like my family having to deal with it rather than just me because it's my decision." She stated that her friend's mother had called the clinic to learn the details of the procedure and then had conveyed that information to her, and that she had also researched the potential risk factors of the *755 procedure on the internet. She indicated that no one else had influenced her decision, although she had sought the opinions of others. She reiterated, "but it's solely it's pretty much my decision. I've made it like 99 percent on my own."
With respect to notifying her parents, Doe stated that she was not sure how her parents would react and whether they would remove her from school. She added that whenever her parents had small problems with her like missing a curfew, they would fight amongst themselves about it. Doe thus expressed her fear that it might break up her parents' marriage and cause "a big problem along with my problem too." She went on to testify that her boyfriend had not put any pressure on her to terminate her pregnancy, but he knows that it is best to do so. She added that "he knows that we are not ready for this and we made an immature decision. We didn't think of all of the consequences that would come with it. And we're just trying to start over, you know." Asked if she believed herself to be capable of making this decision, Doe replied that she was. She stated that if she was upset about it, she has a teacher and guidance counselor at her school that she could talk to, and that her best friend's family was also available to help her, but that she believed herself to be mature enough to take responsibility for her decision.
In its written order denying appellant's petition, the trial court cited to various factors in support of its conclusion that she had failed to demonstrate that she was sufficiently mature to decide whether to terminate her pregnancy. First, it noted that Doe had turned 17 less than one month prior to the hearing. Secondly, she had not personally discussed the potential ramifications of the procedure with medical professionals. Third, Doe's testimony that she has a support system in place in the event she has problems dealing with the procedure suggested to the court that she has no understanding of the risks involved and is incapable of determining them on her own. Next, the court listed various factors that it concluded were indicative of an immature thought process on the part of appellant, including her testimony that the decision was 99% her own, that her reasons for wanting the procedure mainly involved the likelihood of conflict between her parents,[2] and her admission that neither she nor her boyfriend had adequately considered the potential consequence of the behavior that resulted in her pregnancy. The court thus concluded that in view of appellant's demeanor and presentation in court, as well as her testimony, it did not feel that she possessed sufficient maturity to decide whether to terminate her pregnancy without parental consent.
We are well aware of the presumption of correctness that attaches to a trial court's order, and the deference owed to those determinations of a finder of fact that are supported by competent, substantial evidence. However, as the court observed in In re Doe, these principles are less compelling when the evidence is undisputed and is presented to a judge sitting without a jury, and an appellate court is not required to disregard record evidence that disproves the lower court's findings or reveals its ruling to be an abuse of discretion. Doe, 30 Fla. L. Weekly at D2577, ___ So.2d at ___.
With these considerations in mind, we conclude that the reasons cited by the trial court do not support the conclusion that *756 appellant is not sufficiently mature to decide whether to terminate her pregnancy. Appellant's age, which places her less than one year from being outside the scope of the parental notification law is, if anything, a factor that weighs positively in support of her position. The undisputed testimony established that appellant is a good student, is employed part-time, and has formulated a plan for her future. That she had not yet at the time of the hearing personally discussed the ramifications of a termination of pregnancy with medical professionals does not distinguish her from many other similarly situated women, both minors and adults, and any suggestion by the trial court that she is unable to determine or understand the potential risks and ramifications is without support in the record. Likewise, the fact that she had consulted with others in whom she places trust and has given some consideration to their views is not indicative of an immature thought process, nor is the fact of her concern for the stability of her family. Although Doe admitted that her pregnancy was the result of an immature decision, her willing acknowledgment of that fact supports her stated belief that she presently possesses sufficient maturity to decide whether to terminate her pregnancy. Finally, although the trial court also based its finding that Doe lacked sufficient maturity on its observation of her demeanor and presentation at the hearing, it failed to describe any articulable facts supporting the conclusion that Doe's demeanor was indicative of immaturity.
Moreover, the trial court's order reflects on its face a deviation from the statutorily-mandated inquiry into whether appellant is "sufficiently mature to decide whether to terminate her pregnancy." In denying relief, the trial court stated that it "does not feel that [appellant] possesses sufficient maturity to decide whether to terminate this pregnancy without parental consent." (emphasis added). However, whether appellant should be required to secure the consent of her parents or anyone else before terminating her pregnancy is simply not an issue, and should not have factored in any way into the trial court's decision. See In re T.W., 551 So. 2d 1186 (Fla.1989) (invalidating parental consent to abortion statute and holding that women, including minors, are entitled under Florida's constitutional right to privacy to determine themselves, and as a private matter, whether to terminate a pregnancy).
Finally, the trial court erred in failing to address Doe's alternative claim that she was entitled to a judicial waiver pursuant to section 390.01114(4)(d) because the notification of her parents is not in her best interests. Doe's unrefuted testimony established that she feared that notifying her parents would result in conflict between them and might lead to the dissolution of their marriage. While the trial court omitted any findings of fact concerning the "best interests" claim and we are not in a position to supply those findings, appellant's concern for her parents and the consequent impact on her family would appear to constitute a sufficient basis for concluding that a judicial waiver of notification would be in her best interests, and her testimony established that her fears in this regard are not without some basis in experience.
We are not unmindful of the extraordinarily difficult circumstances faced by trial judges in matters such as this, and our decision is not intended as criticism of the trial judge in this case. Unless requested otherwise by the minor, the trial court is required by section 390.01114(4)(b) to rule and issue written findings of fact and conclusions of law within 48 hours after filing of the petition, and the statutory procedure does not contemplate the ordinary adversarial process as a means of reaching the factual determinations required by the *757 law. Nonetheless, where a waiver petition is denied, it is imperative that the trial court's order address all of the grounds for relief pled by the petitioner, that it confine itself to the appropriate factors set forth in the statute, and that it articulate specific findings of fact that reasonably and rationally support the conclusion reached. We are compelled to conclude that the trial court's order in this case does not satisfy these requirements.
BARFIELD and DAVIS, JJ., concur; HAWKES, J., dissents with written opinion.
HAWKES, J., dissenting.
The majority acknowledges a trial court's findings of fact that are supported by competent, substantial evidence are due great deference. However, most of the majority opinion outweighs the facts found by the trial court to reach a different conclusion. Because appellate courts are not permitted to reweigh the trial court's factual findings, I would affirm.
NOTES
[1] Case law interpreting the statute is predictably minimal at this point, but we do commend the thoughtful analyses set forth in both the majority and dissenting opinions in In re Doe, 30 Fla. L. Weekly D2575, ___ So.2d ___, 2005 WL 3007102 (Fla. 2d DCA Nov. 10, 2005), in which the Second District addressed a case similar in many respects to this one.
[2] As we interpret her testimony, Doe's decision to terminate her pregnancy was not primarily driven by her concern for her parents. Instead, that was the basis for her belief that a waiver of the notification requirement was in her best interests. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920266/ | 107 B.R. 808 (1989)
In re SAL CARUSO CHEESE, INC., Debtor.
Bankruptcy No. 88-01008.
United States Bankruptcy Court, N.D. New York.
July 17, 1989.
Frank G. Pratt, Utica, N.Y., for debtor.
Kim F. Lefebvre, Richard D. Croak, Albany, N.Y., Office of U.S. Trustee.
Kernan & Kernan, Utica, N.Y. (Gregory A. Hamlin, of counsel), for Key Bank of Central New York, N.A.
MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
STEPHEN D. GERLING, Bankruptcy Judge.
The United States Trustee ("UST") has moved the Court for an order converting this voluntary Chapter 11 case to a case under Chapter 7, or in the alternative, dismissing the case, contingent upon payment of all fees due and owing it pursuant to 28 U.S.C. § 1930(a)(6) (West 1989).
The UST's motion, made pursuant to § 1112(b) of the Bankruptcy Code, 11 U.S.C. §§ 101-1330 (West 1979 & Supp. 1989) ("Code"), was initially made returnable before this Court on August 31, 1988 and then adjourned to September 28, 1988 at which point Key Bank of Central New York, N.A. ("Key Bank") appeared in support. Thereafter, the UST and Sal Caruso Cheese, Inc. ("Debtor") executed a Stipulated Order entered October 7, 1988 which, while not disposing of the merits of the motion, did, in pertinent part, require the Debtor to file a Plan and Disclosure Statement by November 9, 1988, provide the UST with proof of insurance on certain real property of the Debtor, and segregate rents being received from that same property, or face immediate conversion to Chapter 7.
The motion was further adjourned on consent of the UST and Debtor's counsel to the date on which the hearing on the approval of Debtor's Disclosure Statement was scheduled and was thereafter adjourned several times until February 24, 1989, when an evidentiary hearing was commenced in Utica, New York. That hearing was resumed and concluded on March 3, 1989, and the Court took the matter under submission on March 23, 1989.
JURISDICTIONAL STATEMENT
The Court has jurisdiction of the parties and subject matter pursuant to 28 U.S.C.A. §§ 1334 and 157 (West Supp.1989). This is a core proceeding, 28 U.S.C.A. § 157(b)(2)(A) and (O). The following constitutes *809 findings of fact and conclusions of law rendered in accordance with Bankruptcy Rules ("Bankr.R.") 1007, 1009, 1017, 2002, 7052, 9006, 9014 and 9017.
FACTS
On June 30, 1988, the Debtor, a closely held New York corporation, filed a voluntary petition pursuant to Chapter 11 of the Code, listing $734,530.81 in debt and $720,296.49 in property and identifying Salvatore R. Caruso ("Caruso") as its president and the sole stockholder of its 100 registered shares of common stock. See Movant's Exhibit A (copies of Petition, Schedules A-1, A-2, A-3 and amendments filed October 4 and December 15, 1988, Statement of Financial Affairs For Debtor Engaged In Business ("Statement") and related exhibits). Caruso is also a Chapter 13 debtor before this Court. In an Exhibit A, the Debtor claimed $409,318.00 in total assets and $702,871.00 in current and short term liabilities, referencing to an April 30, 1988 balance sheet. Id.
Schedule B-1 identified "1004 Tilden Avenue, Utica, New York, Belle Avenue, Utica, New York, 1326 Rutger Street, Utica, New York, 1012 Tilden Avenue, Utica, New York" as real property, with a market value of $168,500.00, in which the Debtor held a "fee title" interest. Id. In an Order entered January 31, 1989, the Court approved the sale of the Rutger Street property for the sum of $40,000.00 and the application of the net proceeds of $37,206.00 to the City of Utica ("City"). The City was listed in Schedule A-2 as holding a claim for $75,569.39 secured by a first mortgage on 1010 Tilden Avenue, Utica, New York ascribed a market value of $168,500.00. Id.
Included in Schedule B-2 as the Debtor's personal property was $59,455.54 in inventory, down from $62,946.00 as of April 30, 1988 in item four of the Statement, $84,098.22 in accounts receivables, $120,000.00 of equipment at 1010 Tilden Avenue, six vehicles valued at $79,000.00 (one 1985 Mercedes-Benz truck, two 1984 Chevrolet trucks, one 1984 International truck, one 1986 Ford truck and an "Omega"), $9,242.73 in Key Bank checking account # XXXXXXXXX and a $200,000.00 counterclaim in a state court action commenced by Moscahlades Bros., Inc. Id. A statement dated June 30, 1988 for the Key bank checking account indicated a balance of $2,525.71 on that date. See Movant's Exhibit O (copies of bank statements from March 31, 1988 through July 14, 1988).
The Order setting August 9, 1988 as the first meeting of creditors pursuant to Code § 341, as well as containing notice of the automatic stay and a November 7, 1988 bar date for filing proofs of claim was circulated to all entities on the mailing matrix upon its entry July 12, 1988. It appears from the case docket that the Code § 341 meeting was either adjourned to or continued on September 27, 1988, October 25, 1988, November 8, 1988, November 27, 1988, January 24, 1989 and March 7, 1989. The Debtor filed a Resolution on July 15, 1988 empowering Caruso to take the necessary steps on its behalf to facilitate the bankruptcy. On August 1, 1988, the UST appointed the committee of unsecured creditors pursuant to Code § 1102(a)(1).
At the time of filing, it appears that the Debtor, which specialized in retail and wholesale cheese processing and distribution, was a going concern located in Utica, New York. Prior to the fall of 1987, the Debtor had also produced cheese for sale, but had since terminated that portion of its business. Federal income tax returns for the years 1985, 1986 and 1987 indicated gross receipts or sales in those years of between $2.3 million and $3.8 million. See Movant's Exhibit E (copy of proof of fire loss).
When it filed its Chapter 11 petition, the Debtor was engaged in litigation with the United States Department of Labor regarding the status of its truck driver/salesmen and so reflected in its Schedule A-1 as a disputed claim for $80,000.00 and at item twelve of its Statement. See Movant's Exhibit A. That litigation was continued postpetition in the United States District Court for the Northern District of New York when that Court apparently concluded that the stay imposed pursuant to Code § 362(a) *810 was inapplicable. An Order Authorizing Compromise Pursuant To Bankruptcy Rule 9019(a) was entered December 20, 1988, wherein the Court approved a settlement in the sum of $30,000.00.
Subsequent to filing, and on or about August 11, 1988, the Debtor's main business premises at 1010 Tilden Avenue were substantially destroyed by a fire, effectively causing a cessation of all of Debtor's business operations. Debtor's Amended Disclosure Statement noted that this interruption to its business resulted in a reduction to its work force of one employee, Caruso. See id. at 2.
On September 9, 1988, the Court, on application of the Debtor, appointed the licensed public adjustment firm of Basloe, Levin & Cuccarro, Ltd. ("Basloe") to independently prepare, present and adjust the claim for the loss or damage caused by the fire as demanded by its insurer carrier under its three policies. See Movant's Exhibit P (copy of letter from Bouck, Holloway, Kiernan and Casey, Esqs. to Sal Caruso Cheese, Inc. (Sept. 9, 1988)); Movant's Exhibit R (copy of transcript of Caruso's sworn examination conducted on November 4, 1988). Completed on November 4, 1988 and filed on November 7, 1988, the proof of fire loss fixed the Debtor's loss at $440,154.94 which was approximately allocated to a building loss of $300,154.94, a building contents loss of $120,000.00 including plant, store and office stock, supplies and equipment and a business interruptions loss of $20,000.00. See Movant's Exhibit E. It also indicated that the Debtor's business was "completely closed" and that it would take in excess of twelve months to rebuild the premises. See id.
At the time of the hearing on this contested matter, the Home Insurance Company, Debtor's insurer, had not voluntarily paid any portion of the fire loss and Debtor's counsel had demanded a written explanation for its failure to pay the Debtor's claim. See Debtor's Exhibit 8 (copy of letter from Frank G. Pratt, Esq. ("Pratt") to Bouck, Holloway, Kiernan & Casey, Esqs. (Feb. 22, 1989)).
On November 7, 1988, the Debtor filed a Disclosure Statement and Plan of Reorganization.
At the hearing held before the Court on the instant motion, Caruso, who identified himself as the Debtor's president and sole stockholder, testified that it was his intention to utilize the yet to be received fire insurance proceeds to reopen the Debtor's retail store first and then revive its wholesale operation.
On cross-examination by the UST, Caruso testified that on the night of the fire he was playing cards with several men at an athletic club, but that he could only recall the name of one of the card players. Caruso also recalled being questioned by the insurance company's attorney about a container of gasoline found at the fire scene but did not remember being told that the fire marshall is alleged to have found that an accelerant had been used in connection with the fire. See generally Movant's Exhibit R.
In preparing the proof of fire loss, Caruso utilized a list of equipment he had made in October or November of 1987 when the Debtor ceased cheese production. Caruso denied that any of the equipment listed in the proof of loss had been transferred prior to the fire to Falbo Dairy of Carbondale, Pennsylvania ("Falbo"), owned by his cousin, or Cheese's of Monroe ("Monroe").
Caruso also testified that he had been a patient at the Duke Medical Center in North Carolina, suffering from uncontrolled diabetes, in the spring of 1988 prior to the filing. Caruso acknowledged that since the filing of the petition he draws the sum of $250.00 per week from the Debtor. However, he was unclear on whether that weekly amount, from which no tax is deducted, is treated as salary or the repayment of prepetition loans he made to the Debtor. The answer to question nineteen in the Statement regarding withdrawals indicated that he was the recipient of "$12,750.00 (1986 W-2)." See Movant's Exhibit A.
Caruso filed three separate proofs of claim in this Chapter 11 case totalling $174,563.54, based upon loans made to the *811 Debtor between 1984 and 1988 and pre-petition wages. See Movant's Exhibits G, H, I (copies of proofs of claim filed by Salvatore R. Caruso on Oct. 3 and 18, 1988). He acknowledged that there were no written notes evidencing the loans he personally made to the Debtor as reflected on the proof of claim and that the Debtor had made substantial payments to him personally during the same period. However, Caruso was unsure whether some of these payments were salary or loan reductions. See Movant's Exhibit I.
Schedule A-3 listed a claim in the amount of $189,000.00 to Caruso and his wife, Desdemona Caruso ("Mrs. Caruso"), for "loans to corporation." See Movant's Exhibit A. Caruso's priority and unsecured wage claims were added to Schedules A-1 and A-2, respectively, in amendments filed October 4, 1988. See id. Mrs. Caruso filed a proof of claim in the amount of $34,476.95 on October 18, 1988, attaching the same account sheet appended to Caruso's proof of claim, Movant's Exhibit I, which showed an aggregate balance as of August 31, 1988 of $205,933.35 from loans made from 1984 to 1988.
On direct examination by the UST, Caruso acknowledged that within ninety days prior to filing the petition, Debtor was making payments to Jefferson Cheese Mfg. Inc. ("Jefferson"), a major supplier, on past due accounts, as well as paying for current deliveries. See Movant's Exhibit C (copies of invoices and checks from March 18, 1988 through July 26, 1988, reflecting payments of $4,250.00 which exceeded the amounts due on seven matching invoices and bore notations such as "old balance" and "on account").
Caruso was uncertain about whether the Debtor had been sued by Jefferson pre-petition and indicated that a suit may have occurred while he was at the Duke Medical Center. On cross-examination, however, Caruso identified a letter with an attached Stipulation dated June 1, 1988, which settled litigation pending in the District Court commenced by Jefferson against the Debtor. The Stipulation provided for payment by the Debtor to Jefferson of $60,257.45 at nine percent interest in minimal monthly installments of $1,500.00. See Debtor's Exhibit 4 (copy of letter from Robert O. Wilhelm, Esq., to the Clerk of the District Court (June 1, 1988), which attached Stipulation of Settlement signed by Wilhelm, Pratt and Caruso (June 1, 1988)). See also Debtor's Exhibit 3 (copies of summons and complaint (Apr. 1, 1988) and acknowledgement of service on Secretary of State, New York State (Apr. 5, 1988) in Jefferson Cheese Mfg., Inc. v. Sal Caruso Cheese, Inc.).
Said Stipulation was listed in the Debtor's Statement at item eleven, and Jefferson, originally appearing in Schedule A-2 as the holder of a claim for $58,007.51 secured by Caruso's personal guaranty, was subsequently relocated to Schedule A-3 to reflect its unsecured status in an amendment filed on October 4, 1988. See Movant's Exhibit A.
Caruso acknowledged that the Debtor had made no effort to date to recover any preferential payment made to Jefferson and that he was personally obligated for Debtor's outstanding obligation to Jefferson.
On direct examination Caruso also indicated that prior to filing, the Debtor had owed approximately $60,000.00 to Falbo. Schedule A-3 lists Falbo as the holder of an unsecured claim in the amount of $33,579.10, as well as lists an unsecured claim of $7,525.13 to Falbo Pizza Crusts/Pizza Crust Co. of Pa., Inc., with a different street address in Carbondale, Pennsylvania. See id. Neither entity filed proofs of claim. Caruso acknowledged a payment by Debtor to Falbo on April 15, 1988 of $12,000.00 "on account" but was unclear on whether the payment was made on a past due account, since he was at Duke Medical Center on that date. See Movant's Exhibit F (copies of invoices and checks from Dec. 11, 1987 through Apr. 18, 1988).
Falbo entered into an agreement with the Debtor after the August 1988 fire and, without Court authorization, to continue marketing Falbo cheese products under the Debtor's name in the Syracuse, New York area. Caruso testified that Falbo was simply *812 utilizing packaging material previously purchased from the Debtor and although the Debtor was receiving no consideration from Falbo for the use of its labels, the arrangement was keeping Debtor's name active in the Syracuse market. Caruso acknowledged that prior to the fire, the Debtor was receiving forty cents per pound for all cheese Falbo sold under its label in the Syracuse area.
Caruso further acknowledged that the Debtor also transferred a "multivac" cheese packer to Falbo prior to the date of filing, in the early part of 1988, without receiving any monetary consideration. He testified that he presumed "Falbo could take money off the bill" in return for the transfer. Caruso could not recall how much of a credit was taken against Falbo's bill in return for the cheese packer.
Frank Aceto, III ("Aceto"), a former employee of the Debtor, testified on direct examination by the UST that while employed as a warehouse dispatcher, he supervised the transfer of a cheese cooker, cheese molder and a cheese packer to Falbo in late April or early May 1988 at Caruso's request. Caruso conceded that there was no reference to these transfers in response to Question fourteen of the Debtor's Statement. See Movant's Exhibit A. Aceto also testified that, with the exception of two items, all of the equipment had been moved out of the Debtor's plant prior to the fire, including a piece of equipment in which he had an indirect interest. But see Movant's Exhibit E (Part E, two page list of 514 pieces of equipment and machinery damaged or destroyed in fire). Aceto stated that his attorney had recently received a letter indicating that that item of equipment had also been lost in the fire.
Caruso identified a 1988 Ford truck purchased by Debtor in June 1988, but presently in the possession of "Dino's Sausage," pursuant to an unauthorized postpetition agreement whereby Dino's took over the truck payments due and owing Marine Midland Bank. Dino's Sausage & Meat Co., Inc. was listed in Schedule A-3 as holding an unsecured claim for $741.93 while the amendments filed on October 4, 1988 added Marine Midland Bank, N.A.'s claim of $8,083.00 secured by a 1988 Chevrolet truck valued at $15,280.00 to Schedule A-2. See id. The Debtor's subsequently filed Amended Disclosure Statement stated that Dino's Sausage had offered $15,000.00 for the 1988 Chevrolet truck, and attached a "bid." See Movant's Exhibit D at 4. Court authorization to conduct this sale, as well as the sale of a 1984 Chevrolet truck for $800.00, was granted in an Order entered June 5, 1989.
During July of 1988, Caruso acknowledged that the Debtor transferred a substantial amount of "production" equipment to Monroe, a West Virginia company, at an agreed price of $10,000.00, almost all of which was identified as an existing asset of the Debtor in an appraisal attached to the Amended Disclosure Statement. Compare Movant's Exhibit L (copy of list of thirty-one pieces of equipment on Debtor's stationery bearing notation of "Received Bill W. Wicklin, Cheese of Monroe, Paid S. Caruso 7/22/88") with Movant's Exhibit D at 4 (Copy of list of twenty-six pieces of equipment, dated Nov. 9, 1988). Caruso testified that he only intended to sell some of the Debtor's equipment to Monroe for $10,000.00 since it had an appraised value of $16,650.00, but that he had not been at Debtor's place of business when someone named "Bill" from Monroe showed up to take delivery.
Testifying on direct examination by the UST, William Guy ("Guy"), Monroe's president, indicated that he had contacted Caruso in mid-July concerning the purchase of the equipment and had travelled to Utica with others on July 16, 1988 to complete the sale. Guy testified that he believed that a mozzarella cooker was to be included in the equipment but it was not there and, thus, a reduced purchase price of $10,000.00 was agreed upon with Caruso. Guy also was directed by Caruso to deliver a cashier's check in the sum of $10,000.00 payable to his wife, Mrs. Caruso, as she owned the equipment.
On July 22, 1988, Monroe sent four trucks to Utica to pick up the equipment. Guy testified that Caruso was not at Debtor's *813 plant on that date but Mrs. Caruso was present and requested that two checks of $5,000.00 each be made payable to Caruso, as he owned the equipment. See Movant's Exhibit K (two checks dated July 22, 1988, each made out to Sal Caruso and signed by Bill W. Wickline). Guy explained that the checks were drawn pursuant to her instructions on the personal account of "Bill Wickline" as Monroe had not yet established a bank account.
Shortly after issuing the checks and transporting the equipment back to West Virginia, Guy alleged that Monroe was advised by a "route driver" that the Debtor had filed bankruptcy. He then called Mrs. Caruso to verify the filing and to advise her that they were stopping payment on the two checks. Mrs. Caruso denied the filing and told Guy to call Pratt, the Debtor's attorney. Pratt acknowledged the Debtor's filing to Guy on the telephone and advised him that he would clear the matter up.
Later, Guy testified, Pratt contacted him and told him that the purchase price was $16,650.00, not $10,000.00, and that if the balance wasn't paid, Pratt would ask the Bankruptcy Court to order the return of the equipment. Guy also related a telephone call from Caruso at the end of July 1988 in which Caruso admonished Guy for causing a problem with the sale and indicated that the sale was none of his (Caruso's) wife's business.
On cross-examination, Guy acknowledged the advice of his counsel that the equipment sale required court approval but denied that Pratt gave him similar advice. Guy testified that as of the date of the hearing, Monroe still desired to complete the purchase of the equipment. As of the hearing, Debtor had not applied to the Court for an order approving the sale of the equipment in the possession of Monroe. However, a sale of the twenty-six pieces of equipment to Monroe was approved nunc pro tunc by Order entered May 31, 1989.
On direct examination by the UST, Dale Salerno ("Salerno"), Debtor's bookkeeper since 1981, identified four checks, numbered 14204 through 14207, that were drawn on Debtor's account and dated between June 15th and June 24, 1988 in the sum of $5,000.00 each, payable to Mrs. Caruso. Three of these four checks were dated prior to other checks with lower numbers and Salerno could not recall if she had been asked by Mrs. Caruso to back date them. See Movant's Exhibit M (copies of checks 14204, 14205, 14206, 14207); Movant's Exhibit N (copy of Debtor's check register).
Salerno denied any knowledge of crediting the Falbo account for equipment transferred by Debtor to Falbo. She reaffirmed that no payroll taxes were withheld from the $250.00 per week paid to Caruso but could not recall that sum being treated as a repayment of any loans made by Caruso to the Debtor.
On cross-examination, Salerno verified that she had actual knowledge of Mrs. Caruso personally paying Jefferson $16,000.00 or $17,000.00 in the spring of 1988 to insure its continued delivery of cheese. In support of Salerno's assertion, Debtor offered three checks dated 1/17, 4/21 and 6/13/88, drawn on Mrs. Caruso's personal account in the total sum of $20,076.95: two checks were made payable to "Sal Caruso Cheese" while the third was payable to "Cash" but bore the notation "For Bank Ck for Caruso Cheese." See Debtor's Exhibit 10 (copies of three checks drawn on two accounts under the names of Desdemona Jones and Desdemona Jones Caruso). Mrs. Caruso stated that Jefferson required a bank check which was why she had made out the three checks to the Debtor or cash.
Mrs. Caruso, on direct examination by the UST, explained that she believed the four checks of $5,000.00 each were drawn on insufficient funds when she received them, but she had wanted to prove to Caruso that Debtor owed her $20,000.00 because it was a "husband-wife thing." She also thought that at least one of the checks might be good and denied knowledge of any banking regulation requiring the reporting to the Internal Revenue Service of disbursements of funds in excess of $10,000.00.
*814 Mrs. Caruso denied any formal involvement in Debtor's business, indicating that for thirty years she had been a partner in a nursing home chain with capital assets of between four to five million dollars. She did acknowledge becoming involved in Debtor's business in the spring of 1988 while her husband was hospitalized at Duke Medical Center. She further indicated that the Debtor's business was experiencing cash flow and bookkeeping problems shortly after she stepped in and that Debtor's checks began to "bounce."
Mrs. Caruso admitted that she was aware of the Debtor's Chapter 11 filing in July when she received the $10,000.00 for the equipment sold to Monroe and for that reason she turned the checks over to Pratt who advised her that the equipment could not be sold absent a court order. She also recalled telling the people from West Virginia to make the checks out to "Sal" since in her mind Sal and Sal Caruso Cheese, Inc. are one and the same.
Mrs. Caruso instituted new procedures after she took over Debtor's operations in the spring of 1988 which prevented checks from being issued on insufficient funds and controlled the amount of inventory on hand. See Debtor's Exhibit 12 (bookkeeping worksheet from March 28 through August 6, 1988). She stated that these practices were continued upon her husband's return to the business.
Mrs. Caruso contradicted Aceto's testimony indicating that there was packing and shredding equipment on the Debtor's premises at the time of the fire. She also opined that the Debtor would need at least $5,000.00 to reopen the retail operation, and that she had those funds, but added that no steps have been taken to reopen because they have been waiting for the fire insurance money.
On cross-examination, Mrs. Caruso indicated a lack of family members to assist operating the Debtor's business in the future and believed that Debtor might have to hire an expert to run the business as she did to operate her nursing homes.
Finally, Mrs. Caruso identified a list of equipment, dated June 21, 1988, which was prepared by Caruso and reflected a value of $11,500.00, attached to a signed handwritten note indicating delivery to Falbo on the same date of equipment valued at $11,000.00. See Debtor's Exhibit 13 (list of 7 pieces of equipment on Debtor's letterhead with attached handwritten note). Mrs. Caruso agreed that she was not aware, however, of any credits taken against the Debtor's bill due and owing Falbo as a result of the transfer of equipment.
Debtor filed an Amended Disclosure Statement one week before the evidentiary hearing on the instant motion was commenced and its approval hearing has been adjourned pending the resolution herein. It summarized the Debtor's Plan of Reorganization, originally filed with its first Disclosure Statement on November 7, 1988. The Plan contemplates an effective date upon receipt of the fire insurance proceeds at which time all priority claims, consisting of professional fees and the Department of Labor settlement, would be paid in full. The Plan also proposes to pay secured creditors under the terms of their agreements or reaffirmation agreements after certain sales of real and personal property are conducted to reduce the claims, and contemplates full payment of allowed unsecured claims, without interest, over sixty months following the effective date of the Plan. See Movant's Exhibit D at 2.
Said Amended Disclosure Statement also indicated an expected decision from the Home Insurance Company on the Debtor's fire claim within sixty days, and if the payment was not acceptable, planned an "early suit." Id. at 5. The Plan contemplated a reactivation of the cheese business financed by the insurance proceeds, the profits of which would then service its debt, reduced by the sale of certain nonessential real and personal property.
The Amended Disclosure Statement also noted the completion of all discovery, save examinations before trial, in Moscahlades Bros., Inc. v. Sal Caruso Cheese, Inc., pending in Supreme Court, New York County, which arose out of nonpayment for cheese products, and characterized the entire lawsuit, including its own $200,000.00 *815 counterclaim for loss of business and reputation damage, as difficult. Id. at 5.
To date, neither the Amended Disclosure Statement or Plan have been approved nor has the Debtor received fire insurance proceeds or appeared to have instituted a complaint against its insurer. One operating report, dated August 26, 1988, was filed on September 22, 1988 for the period July 1, 1988 through August 26, 1988, indicating total receipts and disbursements of $196,472.78 and $165,699.71, respectively, and a balance of $30,773.07 in an unidentified bank. See Movant's Exhibit B. Payments during the month of July included $14,698.70 to Jefferson, $19,895.45 to Falbo, $260.00 to Caruso for auto repair, as well as a $1,000.00 draw and $6,700.56 in "listed" payroll. See id. From August 1 to August 26, 1988, among the payments listed were $8,448.87 to Jefferson, $13,376.10 to Falbo, $72.50 to Caruso for auto expense and a $1,750.00 draw and $4,930.76 in "listed" payroll. See id.
In Interim Orders entered September 16, 1988, November 7, 1988 and February 1, 1989, the Debtor was restrained from using more than $2,000.00 per month from its pre-petition inventory and accounts receivable. These Orders resulted from Key Bank's motion pursuant to Code § 363 and a loan it had made to the Debtor in February 1988, originally made returnable August 29, 1988 and adjourned pending the resolution of the instant motion. The Interim Orders also directed the Debtor to pay to Key Bank a total of $70,000.00 and deposit all proceeds from pre- and post-petition accounts receivable and inventory into an interest-bearing, debtor-in-possession account at Norstar Bank of Upstate New York in Utica.
Key Bank was listed in Schedule A-2 as the holder of a claim of $128,930.88, secured by inventory and receivables. See Movant's Exhibit A. The Debtor's Amended Disclosure Statement indicated that Key Bank's claim had been reduced to $59,000.00 pursuant to the Interim Orders. See Movant's Exhibit D at 3-4.
ARGUMENTS
In anticipation of an evidentiary hearing originally scheduled for September 28, 1988, the UST argued that the Debtor's failure to file timely and complete operating reports, its unauthorized use of Key Bank's cash collateral, and the increase in officer salaries post-petition, all point to the Debtor's breach of its fiduciary responsibilities as a debtor-in-possession and constitute "cause" under Code § 1112(b). The UST additionally relies upon Code § 1112(b)(1) by noting a) the inaccurate picture produced by the operating report, due to the exclusion of various expenses, and b) its two primary assets consisting of lawsuits, one stemming from the rejection of its insurance claim from a fire "determined to be arson" which destroyed most of its business premises and inventory on August 11, 1988 and terminated its business operations. See Memorandum Of Law In Support Of United States Trustee's Motion Pursuant To 11 U.S.C. Section 1112(b) To Convert Case To Chapter 7 Or Dismiss Case at p. 11 (rec'd & filed Sept. 21, 1988).[1]
In a supplemental memorandum of law filed on March 23, 1989 following the evidentiary hearing referred to herein, the UST notes the filing of additional financial data by the Debtor covering the period October 1, 1988 through November 30, 1988 but nothing for December 1988, January or February 1989. It also cites to Debtor's failure to disclose the pre-petition transfer of equipment to Falbo in its Statement or at the Code § 341 meeting of creditors. Finally, the UST refers to the unauthorized post-petition transfer of equipment outside the ordinary course of business *816 to Monroe, followed by a representation in its Amended Disclosure Statement that the sale of this same equipment would presumably occur in the future, rather than acknowledging that the sale had already occurred some eight months earlier. The UST postures that these factors are sufficient to warrant conversion of this case to Chapter 7 so that a trustee may pursue the avoidance of both of these asset transfers.
In closing arguments, the UST had also pointed to 1) the agreement with "Dino's Sausage," again without court authorization, where Debtor gave the use of its truck in return for Dino's alleged assumption of payments to a secured creditor, 2) Debtor's failure to pursue obvious pre-petition preferences made to Falbo and Jefferson, 3) the filing of unsubstantiated claims by Caruso against the Debtor, and 4) the Debtor's inaction regarding its questionable fire insurance claim.
Conversely, Debtor argued that its preferential payments to Jefferson were necessary to keep Debtor's business afloat and that any payment to Mrs. Caruso on the eve of bankruptcy filing was simply intended to reimburse her for monies actually loaned to Debtor in 1988. Debtor also defended the agreement with "Dino's Sausage" as being in the ordinary course of its business and opined that an auction sale of Debtor's assets by a trustee would not generate any amount close to that which could be obtained by the Debtor in the Chapter 11 context.
The Debtor contended that it has complied with the directions by the UST and the Court as required by the Code and states that its creditors would not get paid in full in Chapter 7, as in the Chapter 11 case. The Debtor observed that no unsecured creditor appeared in opposition to its Disclosure Statement hearing and that the UST did not show that a Chapter 7 trustee would be better able than itself to collect and utilize the fire insurance proceeds.
While admitting that its business has been inoperative since the fire on August 12, 1988, the Debtor claims that the UST has also not met its burden on demonstrating that there is no reasonable likelihood of its ability to rehabilitate. It assures the Court that its insurance carrier will be responding to its claim shortly. The Debtor states that its "sole shareholder, through his wife, has offered to furnish funds necessary to reopen the retail business in the very near future, and such action, together with the clean-up of debris is certainly calculated to best preserve the value of assets available to take care of all legitimate property claims." See Answering Affidavit at para. 18 (Mar. 23, 1989).
Finally, Debtor points to the unsecured loans made by Caruso and his wife to continue its operation shortly before the filing, which it claims was precipitated by the Department of Labor dispute which it settled at a substantially reduced amount, as a hallmark of its good faith.
DISCUSSION
Code § 1112(b) provides for the conversion or dismissal of a Chapter 11 proceeding, whichever is in the best interests of creditors and the estate, if cause is established. "Cause" is enumerated in ten non-exclusive categories, see Code § 102(3), and may also be established by the filing and maintaining of the Chapter 11 without good faith. See In re Copy Crafters Quickprint, Inc., 92 B.R. 973, 985 (Bankr. N.D.N.Y.1988) (and cases cited therein); In re Dade Corp., 17 B.R. 887, 890-91 (Bankr. M.D.Fla.1982). The lack of good faith in maintaining the case must rest on the totality of circumstances, and involves finding an intent to abuse the judicial process and the purposes of the reorganization process, which may include the breach of a debtor's fiduciary duty. See In re Garsal Realty, Inc., 98 B.R. 140, 151-52 (Bankr.N.D.N.Y. 1989); In re Copy Crafters Quickprint, Inc., supra, 92 B.R. at 985; In re Telemark Management Co., Inc., 41 B.R. 501, 507 (Bankr.W.D.Wis.1984); Ward v. Guglielmo (In re Guglielmo), 30 B.R. 102, 109 (Bankr.M.D.La.1983); In re Paul Kovacs & Co., Inc., 16 B.R. 203, 205 (Bankr.D. Conn.1981).
The concept of the debtor-in-possession as a fiduciary of the estate, the creditors and the Court, stems from its assumption *817 of the rights and powers of a trustee and extends to a corporation's officer, director, shareholder or managing employee where the facts disclose control and/or management. See Wolf v. Weinstein, 372 U.S. 633, 649-53, 83 S. Ct. 969, 979-81, 10 L. Ed. 2d 33 (1963); Mosser v. Darrow, 341 U.S. 267, 270, 71 S. Ct. 680, 681-82, 95 L. Ed. 927 (1951); Pepper v. Litton, 308 U.S. 295, 306-07, 60 S. Ct. 238, 245-46, 84 L. Ed. 281 (1939); In re Martin Custom Made Tires Corp., 108 F.2d 172, 173 (2d Cir.1939). Accord In re Grinstead, 75 B.R. 2, 3 (Bankr. D.Minn.1985) (plan confirmation terminates debtor-in-possession status, the estate and the former's obligation to act as a fiduciary of the latter). As a fiduciary, the debtor is obligated to protect and conserve property in its possession, as well as to provide voluntary and honest disclosure of financial information a reasonable "quid pro quo" for its temporary relief from substantial financial obligations. See In re Photo Promotion Ass., Inc., 72 B.R. 606, 611 (Bankr. S.D.N.Y.1987), citing to Devers v. Bank of Sheridan, Montana (In re Devers), 759 F.2d 751, 754 (9th Cir.1985) and Northwestern National Bank of St. Paul v. Halux, Inc. (In re Halux, Inc.), 665 F.2d 213, 216 (8th Cir.1981); Travelers Insurance Co. v. Plaza Family Partnership (In re Plaza Family Partnership), 95 B.R. 166, 172 (E.D.Cal.1989); In re Valley Park Group, Inc., 96 B.R. 16, 23 (Bankr.N.D.N. Y.1989); Paccar Financial Corp. v. Pappas (In re Pappas), 17 B.R. 662, 667 (Bankr.D.Mass.1982).
The bankruptcy court has wide discretion to determine if cause exists and how to ultimately dispose of the case. See S.Rep. No. 989, 95th Cong., 2d Sess. 117-18, reprinted in 1978 U.S.CODE CONG. & ADMIN. NEWS 5787, 5903-04; H.R.Rep. No. 595, 95th Cong. 1st Sess. 405-06, reprinted in, 1978 U.S.CODE CONG. & ADMIN. NEWS 5963, 6361-62. See also Koerner v. Colonial Bank (In re Koerner), 800 F.2d 1358, 1367 (5th Cir.1986); In re Crosby, 93 B.R. 798, 801 (Bankr.S.D.Ga.1988); In re Ledges Apartments, 58 B.R. 84, 87, 88 (Bankr.D.Vt.1986). Conversion or dismissal of a Chapter 11 case is a drastic measure and the burden is on the movant to prove it is warranted and not premature. See id. at 87 (citations omitted); In re McDermott, 78 B.R. 646, 651 (Bankr.N.D. N.Y.1985).
The Court has carefully examined the trial record, including the candor, demeanor and testimony of the five witnesses and the twenty-three exhibits received into evidence, the memoranda submitted by both of the parties herein, and taken judicial notice, as indicated, of the bankruptcy case record. The record evinces a parade of episodes between the Debtor, its insiders and counsel and Jefferson, Monroe, Falbo and Dino's Sausage that appear to have been carried out in direct violation of Code §§ 363, 541, 547, 548, 549, and 1107(a), notwithstanding the subsequent "curing" of the transfers to Monroe and Dino's Sausage upon the entry of nunc pro tunc Orders. See, e.g., Cedar Tide Corp. v. Chandler's Cove Inn, Ltd. (In re Cedar Tide Corp.), 859 F.2d 1127, 1133 (2d Cir. 1988), appeal pending.
For example, it would appear that the Debtor listed several pieces of equipment in its proof of fire loss that it sold to Monroe two weeks prior to the fire. Additionally, the Amended Disclosure Statement filed February 17, 1989 represented its current ownership of all the equipment sold to Monroe at the end of July 1988 and then authorized by the Court nunc pro tunc. No such order was entered with respect to the transfer of equipment to Falbo on June 21, 1988, as conceded by Mrs. Caruso and confirmed by Aceto's convincing testimony. Plus, the pre and postpetition payments to Falbo and Jefferson appear to have been made within ninety days of the filing and still remain to be recovered by the estate, even though stopped by Key Bank's Interim Order. Moreover, the petition and schedules evidence a host of inconsistencies such as the transfer to Dino's Sausage of a vehicle not listed in Schedule B-2, the incorrect exercise of exemptions, the lumping of four parcels of real property with one market value in Schedule B-1 and another parcel 1010 Tilden Avenue listed as collateral for the City's loan in Schedule A-2 with the *818 same market value and yet not listed in the prior schedule. These discrepancies, when added to the negative responses in the Statement, cast doubt on all of the Debtor's disclosures and severely compromise its ability to act with integrity within the context of its Chapter 11.
The Debtor's obligation to file "periodic reports and summaries of the operation of its business" pursuant to Code § 704(8) as made applicable through Code §§ 1106(a) and 1107(a) and Bankr.R. 2015(a)(3) and X-1007(b) remains in force, even given the cessation of its business because of the August 11, 1988 fire. The Order Directing Duties Of Debtor In Possession entered July 6, 1988 has not been vacated or amended and the collection of accounts receivable and $2,000.00 monthly disbursements, including payments to Caruso, presumably continues and must be reported and monitored. See Movant's Exhibit (showing post-petition activity in pre-petition account); Movant's Exhibit B (operating report from July 1, 1988 through August 26, 1988).
Thus, even charitably characterizing the aforementioned activities with Jefferson, Monroe, Falbo and Dino's Sausage and Caruso, and Mrs. Caruso as "shenanigans," the Court is more than convinced that this case should be converted to a Chapter 7 proceeding so that an independent trustee can objectively determine the affairs of the estate and begin to maximize its value for the benefit of Debtor's creditors. See In re Copy Crafters Quick Print Inc., supra, 92 B.R. at 973. That this was a task that the Code requires of debtors-in-possession as well, including the Debtor here, has apparently escaped the attention of the Debtor throughout the almost thirteen months of this Chapter 11 proceeding. See Code §§ 1107, 1108.
The record reveals an absolute disregard of the strictures of the Bankruptcy Code or at best a calculated strategy of selective compliance. Indeed, the Debtor's post-petition compliance with the Code appeared to be an afterthought triggered by the UST's actions herein, and demonstrates that it had to be ordered to do those things required by statute. The Court would note that the one operating report on file is misleading and incomplete. For instance, it indicates draws to Caruso in excess of what he testified he received and inconsistent with his compensation historically, exclusive of money for auto expenses, as well as additional payroll expenses that appear questionable in light of the depressed state of the Debtor's business post-petition in July and the fire on or about August 11, 1988, which reduced its employees to one Caruso.
This Court does not believe that a debtor should be coddled into complying with the Code and then congratulated upon each instance of substantial compliance. The Debtor's role as a fiduciary is a self-executing one. The Court finds cause in the Debtor's breach of its fiduciary obligation to the creditors and the estate that no amount of nunc pro tunc orders can rectify.
Chapter 11 is not a game to be used for sport against creditors for the benefit of insiders. It is part of Title 11's intricate statutory scheme, enacted by Congress under the authority of Article I of the Constitution of the United States, to provide entities in financial distress with the breathing room to get back on their feet while simultaneously protecting the rights of those entities, generally speaking the creditors, unfortunate enough to have become involved with a debtor. See generally M. Bienenstock, BANKRUPTCY REORGANIZATION 2-4 (1987) (discussing "Equity Policy" and "Reorganization Policy"). It functions as a shield, in exchange for certain sacrifices, such as honest and continued public disclosure, and is never to be used as a sword. Chapter 11 relies upon informed negotiation largely through the debtor's duty as a fiduciary of the estate and the creditors. See In re Denrose Diamond, 49 B.R. 754, 759 (Bankr.S.D.N.Y. 1985). Any lapse in that obligation would severely impair the Chapter 11 process, which is thus policed by Code § 1112(b). Accord United Savings Ass'n. Of Texas v. Timbers Of Inwood Forest Ass., Ltd. (In re Timbers Of Inwood Forest, Ass., Ltd.), 808 F.2d 363, 370-72 (5th Cir.1987) (panel *819 en banc reinstating 793 F.2d 1380 (1986)), aff'd, 484 U.S. 365, 108 S. Ct. 626, 98 L. Ed. 2d 740 (1988).
While the Court is inclined to be lenient with a witness' occasional lapses of memory, it cannot be so generous with Caruso, who repeatedly gave ambivalent answers to critical questions and seemed to have no grasp of the business he operated as its sole officer and shareholder. The Court realizes that Caruso was apparently very ill in the months prior to the filing and understands that a bankruptcy filing is almost always attended by financial chaos and a certain degree of mismanagement. However, the Court finds the Debtor's questionable pre and post-petition conduct, as committed through its sole officer and shareholder, to so taint Caruso's demeanor and evasive responses as to render his testimony wholly unconvincing, especially when compared to the testimony and demeanor of Guy and Aceto.
Likewise, the Court finds less than credible the testimony of the Debtor's other insider, Mrs. Caruso. It does not ring true for a woman who is independently engaged in a business requiring a certain degree of financial acumen, and who possessed sufficient management ability to implement new procedures during the time her husband was at Duke, to claim ignorance of basic banking, sale and title procedures. Nor is the Court persuaded that she had only a passing interest in the Debtor necessitated by her husband's absence. Caruso testified that he returned from Duke prior to the filing and yet it was Mrs. Caruso who met the people from Monroe on July 22, 1988 and who, as relayed by Salerno's testimony, appeared to have ready access to the Debtor's books up to the date of filing, knowledge of its precarious financial situation, and the apparent urgency of paying Jefferson.
The insider status of Caruso and Mrs. Caruso, Code § 101(30)(B)(i, ii, iii, vi), (39), subjects all their transactions with the Debtor, including the alleged loans, to a greater scrutiny than "arms length" transactions. See In re Athos Steel and Aluminum, Inc., 69 B.R. 515, 521 (Bankr.E.D. Pa.1987) cited in In re Crouse Group, Inc., 75 B.R. 553, 557-58 (Bankr.E.D.Pa. 1987) (quoting Wolf v. Weinstein, supra, 372 U.S. at 649, 83 S. Ct. at 979). See, e.g., Code § 547(b)(4)(B); Levy v. Runnells (In re Landbank Equity Corp.), 83 B.R. 362 (E.D.Va.1987); Chittenden Trust Co. v. Sebert Lumber Co., Inc. (In re Vermont Toy Works, Inc.), 82 B.R. 258 (Bankr.D.Vt. 1987). Indeed, the record suggests an alter ego relationship between the Debtor and the Carusos, as in its attempt to defend its good faith by pointing to their loans and their corresponding treatment of corporate assets, like vehicles and cash, as their own. While the Court is cognizant that this pattern of behavior often characterizes many closely-held corporations, the imposition of the bankruptcy filing forbids any semblance of activity approaching self-dealing among the debtor's representatives and creates a new and separate entity, the estate, see Code § 541(a), to which new obligations are owed. See id. 300-09.
Moreover, assuming arguendo the bona fides of their loans to the Debtor, a question not presently before the Court, equitable subordination pursuant to Code § 510(c) is certainly a possibility should certain facts be established. See, e.g., McChesney v. Owoc (In re Shelter Enterprises, Inc.), 98 B.R. 224, 230-32 (Bankr.W. D.Pa.1989); In re Vermont Toy Works, Inc., supra, 82 B.R. at 331-33. It is not likely that Caruso would cause the Debtor to scrutinize such matters against him. Id. at 304.
The Court would again stress that Chapter 11 is not a free-for-all for debtors and their insiders to carry on with impunity and without accountability. Were this Debtor to have exercised good faith and an honesty of intention in its pre and post-filing conduct, the Court presumably would have been willing to allow it to pursue its Chapter 11 reorganization although that reorganization is claimed to be wholly dependent upon a monetary recovery which may never occur.
However, the Debtor is not entitled to that vote of confidence because its activity has been in direct violation of the Code and *820 it has apparently done nothing with its cheese business since the fire but collect its accounts receivable and segregate them for Key Bank's benefit. Prudent business sense would perhaps have dictated an effort to revitalize the retail business at an alternate location or at least explore the possibilities of doing so. "The cessation of business, as evidenced by an absence of inventory, employees, equipment and/or income, makes unlikely the ability to rehabilitate." In re Denrose Diamond, supra, 49 B.R. at 757 (citations omitted). The record unequivocally discloses that the Debtor is "sitting tight," with the benefit of the automatic stay until, as indicated, its fire insurance claim is honored and, additionally, does not indicate a suit against the Home Insurance Company. This is no "viable corporation, with a place of business [at which the debtor] continues to conduct business on a gradually increasing scale." In re National Safe Center, Inc., 54 B.R. 239, 241 (Bankr.D.Hawaii 1985). While the insurer's decision is admittedly not an event within its control, the Court is not convinced that there has been a bona fide attempt or intent at rehabilitation.
Mrs. Caruso testified that it would take at least $5,000.00 to reopen the retail store and that she had the funds. Furthermore, the petition, schedules and the one operating report indicated the presence of funds for such expenditures. Yet no movement has been made towards that end. Thus, this financial wherewithal indicates the Debtor's ability to operate, while severely blunted by the fire, and suggests that its termination was not solely because of the fire and rests on other undisclosed factors.
The apparent unwillingness to begin the process of reviving its business from capitalizing on its assets, such as "packaging," trademark and good-will, used by Falbo post-petition without consideration, to recapturing preferential transfers of money and property, to actively setting up shop in another location is further evidence of the "absence of a reasonable likelihood of rehabilitation," notwithstanding the questionable fire insurance claim.[2] "There is no assurance that this debtor could make a phoenix-like emergence from its ashes even if it were to succeed in its claim against the insurance company." D & F Meat Corp., 68 B.R. 39, 41 (Bankr.S.D.N.Y.1986).
It is also clear that the fire, as well as any post-petition transfers still unauthorized, and the pre-petition transfers, which would appear to stand a good chance of being avoided, are contributing to "a continuing loss or diminution of the estate." Furthermore, the absence of a significant loss is because "there is no operation or any business." In re Tracey Service, Co., Inc., 17 B.R. 405, 409 (Bankr.E.D.Pa.1982). See also In re CCN Realty Corp., 23 B.R. 261, 262-63 (Bankr.S.D.N.Y.1982). Hence, cause under Code § 1112(b)(1) has been established.
A cursory review of the Plan, indicates that it is unrealistic in terms of implementation in setting a starting date geared to the receipt of the fire insurance proceeds which is, as indicated, a nebulous exercise in speculation. Moreover, no amended plan of reorganization was filed with the Amended Disclosure Statement on February 17, 1989 to reflect subsequent events that have transpired since the November 7, 1988 date of the Plan or to provide alternative and concrete financing plans. Thus, the Debtor has exhibited "an inability to effectuate a plan" within the meaning of Code § 1112(b)(2).
The thirteen month lapse since the filing invokes Code § 1112(b)(3) "unreasonable delay by the debtor that is prejudicial to creditors" although the apathy of the majority of the creditor body in this bankruptcy proceeding, including two creditors holding secured claims, would seem to indicate otherwise. It is true that the claims of Key Bank and the City, the two largest secured creditors, have been approximately cut in half by post-petition payments authorized by the Court. The silence of Jefferson and Falbo leads the Court to uneasily *821 question whether or not they too have "been taken care of" although there are no corresponding Orders.
However, these four creditors only account for approximately forty percent of the total debt listed by the Debtor in its petition and the Court would note that Key Bank has joined in the motion. The Court does not find controlling the inactive posture of the unsecureds since it is unfortunately a constant in most bankruptcies and their protection is within the purview of the UST's role. The Court concludes that there has been unreasonable delay on the Debtor's part, with no end in sight, which has been prejudicial to the creditors.
As the record does not indicate otherwise, the Court assumes that the UST fees remain unpaid and that Code § 1112(b)(10) is still relevant.
The Court would note that each event described herein standing alone would probably not establish an entitlement in this court of equity to the relief requested by the UST. However, the sum total of all these events and transgressions creates a congery of cause within the meaning of Code § 1112(b), sealed by the questionable testimony of the Debtor's two insiders. The weight of this cause cannot be deflected by the "good faith" of the insiders in allegedly making approximately $200,000.00 of unsecured loans to the Debtor before the filing to keep the business running or the pro forma settlement of a priority claim.
The record thus demonstrates that the UST has met its burden of proof since it discloses behavior on the part of the Debtor and its insiders that contradicts the letter and the spirit of Chapter 11, as well as contemplates a rehabilitation that is unrealistic. See In re McDermott, supra, 78 B.R. at 651. To deny the UST's requested relief would be a miscarriage of justice and equity. "The purpose of § 1112(b) is not to test a debtor's good faith; it is to provide relief where the debtor's efforts, however heroic, have proven inadequate to the task of reorganizing his affairs within a reasonable amount of time." A. Illum Hansen, Inc. v. Tiana Queen Motel, Inc. (In re Tiana Queen Motel, Inc.), 749 F.2d 146, 152 (2d Cir.1984), cert. denied, 471 U.S. 1138, 105 S. Ct. 2681, 86 L. Ed. 2d 699 (1985).
The Court finds conversion, rather than dismissal, to be in the best interests of the creditors and the estate because judicial and administrative oversight is essential to stem any further dissipation of assets by self-interested insiders to the further detriment of both entities. The appointment of an independent and disinterested trustee upon conversion would thus ensure the prompt liquidation of the assets, including the objective pursuit of pre and post-petition transfers, pending claims and the remaining real and personal property.
Accordingly, the Court grants the UST's motion to convert and denies its motion to dismiss based upon Code § 1112(b).
IT IS SO ORDERED.
NOTES
[1] Of the five grounds contained in the UST's motion, filed August 18, 1988, four have largely been rendered moot by subsequent events in the case: 1) the December 20, 1988 entry of an Order approving the Debtor's settlement with the Department of Labor after a hearing on November 7, 1988 attended by the UST, 2) the scheduling of the "341" meeting on six different dates and times, as indicated on the docket sheet and generally referred to in the UST's supplemental memorandum of law, 3) the Debtor's filing of an operating report on September 22, 1988, and 4) the Debtor's filing of a Disclosure Statement and Plan of Reorganization on November 7, 1988 and an Amended Disclosure Statement on February 17, 1989.
[2] The record does not support, and the Court does not make a finding, as to whether or not the fire was determined to be arson, as set forth in the UST's initial memorandum of law at page 11. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920269/ | 462 Pa. 67 (1975)
337 A.2d 885
In the Matter of Paul A. DANDRIDGE, Judge of the Court of Common Pleas of Philadelphia County.
Supreme Court of Pennsylvania.
Argued March 14, 1975.
Decided May 13, 1975.
*68 Dilworth, Paxson, Kalish, Levy & Coleman, William T. Coleman, Jr., Steven L. Friedman, Philadelphia, for respondent.
*69 Michael vonMoschzisker, Deputy Atty. Gen., Eastern Regional Dir., Richard E. McDevitt, Philadelphia, for the Board.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
JONES, Chief Justice.
The Judicial Inquiry and Review Board instituted formal proceedings against Judge Paul A. Dandridge by written notice served on June 3, 1974, charging the Judge as follows:
"It is charged that PAUL A. DANDRIDGE, Judge of the Court of Common Pleas of Philadelphia County, has violated the Constitution of Pennsylvania, Article V, Section 17(b), as follows:
`Justices and judges shall not engage in any activity prohibited by law and shall not violate any canon of legal or judicial ethics prescribed by the Supreme Court. . . .'
IN THAT PAUL A. DANDRIDGE, on or about December 6, 1972, accepted the net proceeds from a testimonial dinner in his honor for his own personal use, in violation of Paragraph 32 of the Canons of Judicial Ethics in effect at that time, which provided that:
`A judge should not accept any presents or favors from litigants, or from lawyers practising before him or from others whose interests are likely to be submitted to him for judgment',
and it is further charged that his conduct in accepting such monies gives the appearance of impropriety."
"WHEREFORE, said PAUL A. DANDRIDGE is subject to discipline, suspension or removal from office pursuant to Article V, Section 18(d) of the Pennsylvania Constitution."
*70 A hearing on the matter was conducted on June 19, 1974, before a panel of three members of the Board. On September 3, 1974, the full Board, consisting of nine members, issued its Report. The Board concluded that the charges against Judge Dandridge were proven and recommended that Judge Dandridge be privately admonished and that, within a reasonable time, Judge Dandridge should turn over to the Commonwealth an amount[1] equal to the monies received by Judge Dandridge after the testimonial dinner given in his honor. The Board stated that it reached its conclusions and recommendations in spite of Judge Dandridge's "exemplary service as a trial judge . . . his noteworthy efforts in civic activities, and . . . his excellent reputation for judicial temperament and integrity," and in spite of what the Board described as "the unfortunate and improper practice which apparently exists in Philadelphia County of some judges retaining proceeds from dinners held in their honor."
After argument before the entire Board on October 22, 1974, the Board issued a final order on November 25, 1974, affirming its prior Report. On December 19, 1974, before Judge Dandridge's thirty-day period for appeal expired under Rule 17 of the Rules of Procedure Governing the Judicial Inquiry and Review Board, this Court issued an Order adopting the recommendations of the Board. On December 20, 1974, a Petition to Vacate the Order of December 19, 1974, and a Petition Pursuant to Rule 17 of the Rules of Procedure Governing the Judicial Inquiry and Review Board were filed with this Court on behalf of Judge Dandridge.
On January 10, 1975, this Court issued an Order that the two petitions be held under advisement and that attorneys for Judge Dandridge and the counsel assigned by *71 the Attorney General under Rule 5(a) of the Judicial Inquiry and Review Board were to file briefs.
Upon consideration of the briefs and the oral argument held March 14, 1975, we hereby vacate our Order of December 19, 1974, as having been entered prematurely. Upon consideration of the entire proceedings however, we are convinced that Judge Dandridge has not been denied his constitutional rights and we are confident that the findings of fact, conclusions and recommendations of the Board in this matter are just and proper.
I
It is urged on Judge Dandridge's behalf that he was charged only with a violation of Canon 32 of the Canons of Judicial Ethics[2] which Canons were in existence at the time the allegedly improper conduct took place but which were repealed and superseded by the Code of Judicial Conduct adopted by this Court on November 21, 1973, effective January 1, 1974. There was no saving clause provision in the November 21, 1973, order. Counsel for Judge Dandridge argues that the charges should be dismissed as having no basis in authority.
The answer to this argument is that the charges were not simply restricted to a violation of Canon 32. It was also charged:
"that his conduct in accepting such monies gives the appearance of impropriety." (See charge, supra p. 886).
*72 This language was tantamount to a charge of violation of Canon 4[3] of the now repealed Canons of Judicial Ethics. Judge Dandridge and the dissenting opinion of Justice Nix seem to say that because the words "Canon 4" are not in the charge, due process is violated by the finding that he gave the appearance of impropriety. Failure to cite in the Notice any specific Canon or Rule does not render the Notice vague. Rule of Procedure 2(b) of the Board merely requires this:
"The notice shall specify in ordinary and concise language the charges against the judge and the alleged facts upon which such charges are based, and shall advise the judge of his right to file a written answer to the charges against him within twenty (20) days after service of the notice upon him." (Emphasis added).
Even a criminal indictment that fails to include a statutory citation will stand. Commonwealth ex rel. Robinson v. Baldi, 175 Pa.Super. 550, 106 A.2d 689, 690-91 (1954). See Pa.R.Crim. 213(b), 19 P.S. Appendix.
Furthermore, even though Canons 4 and 32 have been repealed, there is no dispute about the fact that these Canons were in effect at the time when the dinner was held and when Judge Dandridge received the money. And the standards which proscribed that conduct are carried forward without interruption to this day by the Code of Judicial Conduct. The proscriptions of old Canon 4 regulating the appearances of impropriety are now entirely embodied within the language of the new Canon 2:
"A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities."
*73 Although the language of Canon 32 does not survive in the new Code, the earlier prohibition against accepting improper gifts is encompassed in the language of new Canon 5, subd. C(1):
"A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves."
More persuasively, the present Canon 2 was clearly intended to carry forward the proscription of old Canon 32 as applied to a matter such as the evidence discloses in this case. The Reporter's Notes to the current American Bar Association Code of Judicial Conduct, in discussing Canon 5C(4) (a) (not adopted by this Court, but which permits accepting a gift incident to a public testimonial) say:
"In subsection (4) (a) the Committee identified several types of gifts that, as a matter of common sense and in deference to common usage, are made exceptions to the literal language of the general prohibition. A judge is allowed to accept a gift incident to a public testimonial to him, books supplied without cost to him for official use, and an invitation to him and his spouse to attend without cost a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice. The judge must keep in mind, however, that the standard of impropriety and the appearance of impropriety in Canon 2 is applicable to this area of his conduct. Therefore, the circumstances surrounding each gift that falls within (4)(a) must be considered to determine if the requirement of Canon 2 is met. (Emphasis supplied).
*74 II
The repeal of any statute providing for criminal sanctions removes the authority for proceedings based on alleged violations of the statute in question. Genkinger v. Conam, 32 Pa. 99 (1858); Commonwealth v. Gross, 145 Pa.Super. 92, 21 A.2d 238 (1941); Commonwealth v. Beattie, 93 Pa.Super. 404 (1928); Scranton City v. Rose, 60 Pa.Super. 458 (1915). As the Supreme Court of the United States has recognized:
". . . [W]hen the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct."
Bell v. Maryland, 378 U.S. 226, 230, 84 S. Ct. 1814, 1817, 12 L. Ed. 2d 822 (1964).
But, assuming arguendo that Judge Dandridge is entitled to the full complement of constitutional rights which would be available in a criminal proceeding,[4] these authorities are of no help to him. His argument and the dissenting opinion fail to recognize that, even though a statute is repealed, if some or all of its provisions are reenacted so that the conduct prohibited in the first statute remains censured by the re-enactment, there is nothing which interferes with the power of the State to prosecute the matter without interruption. Commonwealth v. Beattie, supra.[5] In this case, the improper conduct of accepting a large gift from lawyers and potential litigants was clearly forbidden by the terms of the Canons of Judicial *75 Ethics which were in effect at the time the violation occurred. Judge Dandridge had unequivocal notice that such conduct was a violation. The new Code of Judicial Conduct, in broader terms, censures the very same conduct. And there was no lapse which would render null and void the proceedings of the Judicial Inquiry and Review Board.
III
Finally, we feel compelled to address Judge Dandridge's complaint that he has been "prosecuted" discriminatively in light of the fact that a practice allegedly exists among some Philadelphia judges to retain testimonial dinner proceeds. The Recommendations of the Board made mention of this practice. Such practice has been specifically condemned at least since the adoption by this Court of the Canons of Judicial Ethics in 1965. Furthermore, those Canons had been adopted by the Pennsylvania Bar Association in 1949. Ignorance of the Canons and misconduct by others are no defense. There is no evidence in this record that the Judicial Inquiry and Review Board has turned its head on specific violations by other judges or that any particular instances were brought to its attention. And the record is equally barren of any suggestion that Judge Dandridge was singled out by the Board; that he is a "scapegoat." If discrimination was to be established, Judge Dandridge had the burden of placing the appropriate evidence on the record.
Accordingly, it is hereby ordered:
1. That the Order of this Court, entered December 19, 1974, at Judicial Inquiry and Review Board Docket 47, having been entered prematurely, the said order is hereby vacated;
2. That the findings of fact, conclusions and recommendations of the Board in this matter be and hereby are adopted as being just and proper;
*76 3. That the Board is hereby authorized, in accordance with its recommendation, "to admonish Paul A. Dandridge concerning his conduct in accepting the proceeds of a testimonial dinner for his own personal use;"
4. That on or before June 15, 1975, Judge Dandridge transfer and pay over to the Commonwealth of Pennsylvania for its use the sum of twenty-three thousand, five hundred ($23,500.00) dollars, being an amount equal to the proceeds of said testimonial dinner which Judge Dandridge had accepted.
NIX, J., filed a dissenting opinion.
MANDERINO, J., dissents.
NIX, Justice (dissenting).
The majority opinion after confessing error in prematurely issuing the initial Order of this Court of December 19, 1974, proceeds by employing tortuous and strained reasoning to reach a result that compounds its original mistake. The benefit of oral argument, further study of the briefs, and the cases cited therein force me to conclude that my vote in support of the December 19, 1974 Order was in error and occasion this dissent.
To support its ultimate conclusion that the recommendations of the Judicial Inquiry and Review Board should be adopted the majority offers several bases, all of which I believe are fallacious. First, the majority argues that the language of the formal charge served upon Judge Dandridge included an averment of a violation of former Canon 4[1] in addition to a violation of the now repealed *77 Canon 32. The clear and unambiguous language of the charge refutes this contention.[2] I agree with the majority's observation that a charge need not necessarily identify an alleged canon violation by its number. However, due process at the very least demands that an accused be supplied with fair notice and knowledge of the precise nature of the charges that have been leveled.
In In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682 (1948), the United States Supreme Court observed:
"We further hold that failure to afford the petitioner a reasonable opportunity to defend himself against the charge of false and evasive swearing was a denial of due process of law. A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense a right to his day in court are basic in our system of jurisprudence; . . . ." Id. at 273, 68 S.Ct. at 507.
It is equally significant that the Court, in Oliver, supra, rejected a distinction offered by the State of Michigan that this was not a classic criminal case but rather a proceeding before an investigating grand jury. Further, *78 the United States Supreme Court resolved any doubt as to the applicability of these principles to the instant cause by applying these standards to a disbarment proceeding. In the Matter of John Ruffalo, 390 U.S. 544, 88 S. Ct. 1222, 20 L. Ed. 2d 117 (1968) that Court stated:
"These are adversary proceedings of a quasi-criminal nature. Cf. In re Gault, 387 U.S. 1, 33, 87 S. Ct. 1428, 1446, 18 L. Ed. 2d 527 [, 549]. The charge must be known before the proceedings commence. They become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused. He can then be given no opportunity to expunge the earlier statements and start afresh.
How the charge would have been met had it been originally included in those leveled against petitioner by the Ohio Board of Commissioners on Grievances and Discipline no one knows.
This absence of fair notice as to the breach of the grievance procedure and the precise nature of the charges deprive petitioner of procedural due process." (footnote omitted) Id. at 551-52, 88 S.Ct. at 1226.
A review of this record forces the view that Judge Dandridge was reasonably led to believe that he was required to respond only to a violation of Canon 32. Today's belated attempt by the majority to support its findings based on other grounds offends due process. See, generally, In re Ruffalo, supra.
Judge Dandridge was first notified that he was the subject of investigation by a letter dated May 22, 1974 from the Executive Director of the Judicial Inquiry and Review Board. He was specifically advised in that correspondence that his conduct with reference to the testimonial dinner in question was being scrutinized as to possible violations of Canons 4 and 32. Additionally the letter set forth each canon in full. However, when the actual charges were preferred, the violation of Article V, Section 17(b) which expressly covers canon violations *79 was clearly limited in scope to a violation of Canon 32. This Canon was not only referred to by number but was quoted in full therein.[3]
While in my judgment the preceding facts would have justified the conclusion that the only charge to be met was that of an alleged violation of Canon 32, the record of the hearing reflects that counsel for Judge Dandridge, out of an abundance of caution, made repeated efforts to establish conclusively that the only charge then pending was a Canon 32 violation. If this in fact was not also the opinion of counsel for the Board and the members of the Board present at the hearings, no one attempted to disabuse Mr. Coleman of his now alleged misconception.
At the hearings on June 19, 1974, and October 22, 1974, the following colloquy occurred:
"MR. von MOSCHIZISKER: May the record show the document (charge, as quoted earlier) I referred to has been seen by Mr. Coleman?
MR. COLEMAN: That is the charge that the Judge is here to meet, and no other charge. That is what I want to clear up.
JUDGE HOFFMAN: That is the only charge I am acquainted with. If there are any other charges, we members of the Board are not aware of them. That is the matter that we are hearing today.
MR. von MOSCHIZISKER: May the record show I offer Commission's Exhibit 1 in evidence for the limited purpose of establishing what the charge is, and what the only charge is?
MR. COLEMAN: Yes.
JUDGE HOFFMAN: It may be received.
*80 MR. COLEMAN: I object to No. 5, Your Honor.
MR. von MOSCHIZISKER: I only offer it so 4 can be understood, not as substantive evidence.
MR. COLEMAN: I want to keep the record straight. You recall I specifically asked at the beginning of these hearings I asked what is the charge. The document was introduced and when you read that, you will find that the only Canon cited is Canon 32. This letter also deals with Canon 4. I think it is quite significant that when the letter went to Judge Dandridge on May 22, 1974, saying that there was an investigation with respect to Canon 32 and Canon 4, that when your Board got around to issuing the charge, it issued the charge only on 32. I want to make it quite clear, and that is the reason I am objecting.
MR. von MOSCHIZISKER: I am offering it only in aid of interpreting the declaration by the Judge in Exhibit 4. I am not offering Exhibit 5 to prove any substantive facts.
JUDGE HOFFMAN: For that limited purpose we will have it admitted.
........
MR. COLEMAN: . . . Now then at that time which is your Docket 47, the only Canon cited with which he is being charged with, is the Canon 32. There is nothing in there about Canon 4; that drops out.
Secondly, the other thing cited is the Constitution of Pennsylvania, which merely said that Justices cannot engage in anything that is in violation of a Canon.
But obviously, you have to point to the Canon. At the beginning of a hearing, I raised this question and I said, I take it we're here with respect to what is in the charging letter.
Judge Hoffman said that's correct. That is only Canon 32; there was nothing about Canon 4."
*81 In my view it is therefore clear that all parties were content to proceed under the one allegation, i.e. a violation of Canon 32. Due process would be offended by an attempt at this late date, after the record has been closed, to justify censure based upon any other grounds.
Next, Judge Dandridge contends that the charge under Canon 32 must be dismissed because, although the conduct occurred while Canon 32 was in effect, the charge was not brought until Canon 32 had been repealed without a saving clause. I agree.
The majority attempts to argue that the proscriptions of former Canon 32 have been carried forward under the New Judicial Code of Ethics. To support this claim it relies upon the Reporter's Notes to a Canon in the Code of Judicial Conduct recommended by the American Bar Association which were rejected by this Court. See, Comment, Canon 5c(4)(a).
Further, where language in a subsequent statute is viewed as carrying over the proscriptions of a former enactment, it is necessary that the language of the latter act clearly manifests the intent to perpetuate the former provision. This intent of the drafters can only be found where either the subsequent provision re-enacts the exact language of the former act or contains language so similar as to justify the inference that such an intention existed. See, generally, Commonwealth v. Beattie, 93 Pa. Super. 404, 413, 414 (1928) (where the new language was characterized as "almost in ipsissimis verbis," id. at 414.)
While the subject matter of the new Canons 2 and 5 subd. C(1) touches upon the same general area (as do most of the canon provisions), there is not that similarity between former Canon 32 and Canons 2 and 5, subd. C(1) of the new code which would justify the finding of the exception to the general axiom that repealed rules are inoperative and cannot provide a basis for subsequent proceedings.
*82 In Genkinger v. Commonwealth, 32 Pa. 99 (1858), the Supreme Court stated that where the statute charged is repealed pending the proceedings the court is without the power to conclude the proceedings. Similarly in Scranton City v. Rose, 60 Pa.Super. 458, 462 (1915), the Superior Court stated that "[i]t is well settled that all proceedings which have not been determined by final judgment, are wiped out by a repeal of the act under which the prosecution for the offense took place." This is because "there [is] no offense . . . for . . . [which] to punish." Commonwealth v. Gross, 145 Pa. Super. 92, 99, 21 A.2d 238, 241 (1941). "The repealed statute, in regard to its operative effect, is considered as if it had never existed except as to matters and prosecutions past and closed." Commonwealth v. Beattie, supra, 93 Pa.Super. at 412 (1928).
Although these cases are criminal, undoubtedly this principle is equally applicable to judicial disciplinary proceedings. Indeed the United States Supreme Court has labeled disbarment proceedings "quasi-criminal." Ruffalo, supra 390 U.S. at 551, 88 S. Ct. 1222. See also, In re Greenberg, 457 Pa. 33, 318 A.2d 740 (1974) (Concurring Opinion, Nix, J. at 457 Pa. 45, 318 A.2d 740.)
Accordingly, the power of the Board to proceed under Canon 32 no longer existed at the time the charge was instituted, thus there is no basis for the censure the majority now seeks to impose. I therefore dissent.
NOTES
[1] That amount is $23,500.00, which sum, the Board found, "was in no sense a token or memorial gift such as is usually given at dinners or other occasions honoring individuals."
[2] The Canons of Judicial Ethics were adopted by this Court on February 11, 1965, and are reported at 425 Pa. xxiii-xxxvi. Canon 32 read:
"A judge should not accept any presents or favors from litigants, or from lawyers practicing before him or from others whose interests are likely to be submitted to him for judgment."
[3] Canon 4:
"A judge's official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behavior, not only upon the Bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach."
[4] A disciplinary proceeding such as this is constitutionality labeled as "quasi-criminal" (In re: Ruffalo, 390 U.S. 544, 551, 88 S. Ct. 1222, 20 L. Ed. 2d 117 (1968)). There is no requirement however to grant the full panoply of constitutional rights available to a criminal defendant.
[5] Cf. Section 2 of the Statutory Construction Act of 1970, P.L. 707, No. 230, as amended by act of December 6, 1972, P.L. 1339, No. 290, 1 Pa.S. § 1962.
[1] Canon 4 of the Canons of Judicial Ethics adopted by this Court on February 11, 1965 provided.
"A judge's official conduct should be free from impropriety and the appearance of impropriety: he should avoid infractions of law; and his personal behavior, not only upon the Bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach."
The former Code has been supplanted by the new Code of Judicial Conduct adopted November 21, 1973 and made effective January 1, 1974.
[2] Judge Dandridge was served with written notice which provided:
"It is charged that PAUL A. DANDRIDGE, Judge of the Court of Common Pleas of Philadelphia County, has violated the Constitution of Pennsylvania, Article V, Section 17(b), as follows:
`Justices and judges shall not engage in any activity prohibited by law and shall not violate any canon of legal or judicial ethics prescribed by the Supreme Court. . . .'
IN THAT PAUL A DANDRIDGE, on or about December 6, 1972, accepted the net proceeds from a testimonial dinner in his honor for his own personal use, in violation of Paragraph 32 of the Canons of Judicial Ethics in effect at that time, which provided that:
`A judge should not accept any presents or favors from litigants, or from lawyers practicing before him or from others whose interests are likely to be submitted to him for judgment', and it is further charged that his conduct in accepting such monies gives the appearance of impropriety.
WHEREFORE, said PAUL A. DANDRIDGE, is subject to discipline, suspension or removal from office pursuant to Article V, Section 18(d) of the Pennsylvania Constitution."
[3] While, concededly, disciplinary action may be instituted for conduct other than specific canon violations under Article 5, § 18(d), e.g. misconduct in office, neglect of duty, failure to perform duties or conduct which prejudices the proper administration of justice, it is equally as clear that specific canon violations are appropriately listed as violations under Article 5, § 17(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619946/ | 13 So. 3d 167 (2009)
Raymond Burns ELY, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-1627.
District Court of Appeal of Florida, Second District.
June 12, 2009.
*168 DAVIS, Judge.
Raymond Burns Ely challenges the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. We affirm in part, reverse in part, and remand for further proceedings.
Ely entered open no contest pleas to aggravated stalking, making harassing telephone calls, and making obscene telephone calls. The trial court sentenced him to five years in prison on the stalking charge and to two days in jail on each of the other charges. He subsequently filed a rule 3.850 motion alleging seven claims of ineffective assistance of counsel. We affirm claims one through six without comment.
However, in his seventh claim, Ely alleged that counsel was ineffective for coercing a plea by giving erroneous advice regarding sentencing and that had he been accurately advised, he would not have entered his plea and would have instead proceeded to trial.[1] Ely maintained that counsel advised him that if he entered an open plea, the trial court would sentence him according to his guidelines scoresheet. Ely further alleged that counsel told him, "You score for probation. The worst you could get would be work-release or house arrest. The judge can't give prison time without an aggravating factor, which there are none in your case." The trial court, however, ultimately sentenced Ely to five years in prison.
In summarily denying this claim, the postconviction court stated, "Once the Court advised Defendant that he could receive five years in prison for the aggravated stalking and one year in jail for the misdemeanors, Defendant could not reasonabl[y] rely on counsel's advice that he would get probation, house arrest, or work camp `if' there were no mitigating factors." To support this contention, the court cited Scheele v. State, 953 So. 2d 782 (Fla. 4th DCA 2007).
While the postconviction court is correct in its reading of Scheele, such is not the law in the Second District. See Johnson v. State, 757 So. 2d 586 (Fla. 2d DCA 2000). In Johnson, "[t]he [postconviction] court... found that because Johnson was informed prior to his plea of what his potential *169 sentence was, his claim [that counsel's misadvice rendered his plea involuntary] was without merit." Id. at 587. This court, however, disagreed, stating, "Johnson's awareness of the maximum sentence he faced does not vitiate his claim that his attorney had assured him that his actual sentence would be much less than the maximum." Id.; see also Velazquez v. State, 973 So. 2d 1206, 1208 (Fla. 2d DCA 2008) (addressing a claim of ineffectiveness for failure to properly advise defendant regarding the possible sentence he faced and concluding that Velazquez's "motion should be considered based on the extent to which he relied on counsel's advice, if any, concerning the possibility of a lesser sentence in deciding to plead guilty rather than proceed to trial").
In the instant case, Ely specifically alleged in his motion that his counsel advised him that he would be sentenced pursuant to the guidelines; that based on the guidelines, he would score for probation or community control; and that "[t]he judge can't give prison time without an aggravating factor, which there are none in your case."
Furthermore, at the plea hearing, Ely's counsel advised the trial court that he and the assistant state attorney disagreed as to the scoresheet calculation and that the trial court would have to address the issue. Counsel represented to the court that the proper calculation would show a suggested sentence of probation, while the State insisted that the appropriate sentence would be two years in prison. The trial court acknowledged that there was still a scoresheet issue to be resolved, proceeded with the plea colloquy, and set sentencing for a future date so that a pretrial investigation could be conducted and the scoresheet issue could be resolved. During the colloquy, the trial court advised:
There is also a count of Obscene Telephone Call. Aggravated Stalking is a third-degree felony punishable by five years in prison; the misdemeanors are first-degree misdemeanors punishable by a year in the county jail apiece [sic]. You understand that's the most the judge could sentence you to, and the most he could sentence you to is seven years?
Although the trial court did advise Ely that he could possibly receive a seven-year prison sentence, at the time of such advice, Ely was aware that there was still a scoresheet dispute to be settled, and according to the allegation in his motion, his attorney had advised him that if he scored out to probation, he would receive probation. His counsel further had advised him that for the judge to exceed the guideline sentence he would have to find aggravating circumstances but that there were none in his case. Based on these facts and allegations, we cannot conclude that the transcript attached to the order denying relief clearly refutes Ely's allegation of misadvice of counsel or that the trial court's informing him that he could be sentenced to seven years necessarily advised him that he could not rely on the representations of his counsel. See Johnson, 757 So.2d at 587.
If the allegations of Ely's motion are correct, trial counsel based the advice he gave Ely on pre-Criminal Punishment Code procedure, which limited the court's discretion in determining the maximum sentence. Such advice would amount to deficient performance because Ely was to be sentenced under the Criminal Punishment Code, which allows the trial court to impose a statutory maximum sentence without limitation.
In conclusion, since Ely would not necessarily have been put on notice that he could not rely on counsel's advice and since *170 the giving of such advice would be deficient performance that prejudiced him, Ely has stated a sufficient claim for ineffective assistance of counsel that is not refuted by the attachments to the order. Accordingly, we must reverse the summary denial of claim seven and remand the claim for further consideration. If the court again summarily denies this claim, it must attach portions of the record that conclusively refute the claim. Otherwise, the court must conduct an evidentiary hearing.
Affirmed in part, reversed in part, and remanded.
WHATLEY, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.
NOTES
[1] In the requested relief section of his motion, Ely asked that he be allowed to withdraw his plea. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619937/ | 762 F. Supp. 480 (1991)
ETHICON, INC. and Inbae Yoon
v.
UNITED STATES SURGICAL CORP.
Civ. No. B-89-386(JAC).
United States District Court, D. Connecticut.
April 17, 1991.
*481 *482 David F. Dobbins, Harman A. Grossman, Richard H. Savage, Patterson, Belknap, Webb & Tyler, New York City, for plaintiffs.
Sanford M. Litvack, Clark E. Walter, Theresa M. Gillis, Dewey Ballantine, New York City, for defendant.
RULING ON CROSS-MOTIONS FOR PRELIMINARY INJUNCTION
JOSÉ A. CABRANES, District Judge:
CONTENTS
I. INTRODUCTION 484
II. FINDINGS OF FACT 485
A. General Information Parties 485
B. General Information Trocars 486
C. '773 Patent 487
1. Validity of the Patent 487
a. Was there a Prior Publication? 487
b. Was the Alleged Prior Publication "Enabling"? 489
c. Is the Device Claimed in the '773 Patent Obvious in Light of the
Markelov Prospectus? 490
*483
d. Was there a Failure to Disclose the "Best Mode" for Practicing
the Invention? 490
2. Infringement of the Patent 491
a. Does the Surgiport Infringe Claim 50 of the '773 Patent? 491
b. Does the Surgiport Infringe Claim 34 of the '773 Patent? 492
c. Does the Surgiport Infringe the '773 Patent Under the Doctrine
of Equivalents? 492
3. Irreparable Harm to Plaintiffs 493
4. The Balance of Hardships/Good Faith 493
5. The Public Interest 494
D. '030 Patent 495
1. Validity of the Patent 495
a. Is the '030 Patent Obvious in Light of the '773 Patent? 495
b. Was There a Prior Public Use of the '030 Patent Before
February 24, 1985? 495
2. Infringement of the Patent 496
a. Does the Endopath Infringe Claim 1 of the '030 Patent? 496
b. Does the Endopath Infringe the '030 Patent Under the Doctrine
of Equivalents? 497
3. Irreparable Harm to Defendant 498
4. The Balance of Hardships/Public Interest 498
III. DISCUSSION 498
A. '773 Patent 499
1. Likelihood of Success on the Merits 499
a. Validity 500
(i) Prior Publication 500
(ii) "Enabling" 501
(iii) Obviousness 501
(iv) Best Mode 501
(v) Summary 502
b. Infringement 502
(i) Claim 50 502
(ii) Claim 34 503
(iii) Doctrine of Equivalents 504
(iv) Summary 504
c. Conclusion 504
2. Irreparable Harm 504
3. Balance of Hardship 505
4. Public Interest 505
5. Summary 505
B. '030 Patent 505
1. Likelihood of Success on the Merits 505
a. Validity 506
(i) Obviousness 506
(ii) Prior Use 506
(iii) Summary 507
b. Literal Infringement 507
(i) Triangular Base 507
(ii) Triangular-Shaped Opening 507
(iii) Parabolically Shaped Bevels 508
(iv) General Registry 508
c. Doctrine of Equivalents 508
d. Summary 509
2. Irreparable Harm 509
3. Balance of Hardships 509
4. Public Interest 509
5. Summary 509
IV. CONCLUSION 510
*484 This case concerns "trocars" sharp-pointed surgical instruments used to establish a path of entry into an anatomical cavity through which a camera as well as other instruments may be inserted in order to perform minimally invasive surgical procedures. Prior to 1987, the only trocars generally available were reusable instruments made from stainless steel. Within the last ten years, doctors have improved the "classic" trocar by including a spring-loaded safety shield that snaps forward to cover the sharp point once the trocar has penetrated the anatomical wall. In addition to the safety shield, the parties to this action currently manufacture and sell trocars that are disposable, guaranteeing that the trocars are both sharp and sterile. The projected growth in the use of disposable safety trocars, particularly for procedures such as cholecystectomies (gall bladder removals), means that there is much at stake in determining who has the right to manufacture and sell these surgical instruments.
Ethicon, Inc. ("Ethicon") and Dr. Inbae Yoon ("Yoon") have brought this action against United States Surgical Corporation ("USSC"), and USSC has counterclaimed against plaintiffs. Plaintiffs seek a preliminary injunction that would enjoin defendant from continuing to sell all safety trocars currently being marketed under the name of "Surgiport" until it may be determined whether USSC has infringed U.S. Patent No. 4,535,773 ("'773 Patent"). Defendant has cross-moved for a preliminary injunction, claiming that Ethicon has infringed U.S. Patent No. 4,654,030 ("'030 Patent"), and USSC seeks an order enjoining Ethicon from continuing to sell all safety trocars currently being marketed under the name of "Endopath" and any other surgical trocars that employ the same safety shield configuration as the "Endopath."
After an evidentiary hearing lasting eleven days, the parties submitted post-hearing findings of fact and conclusions of law. After final argument on March 13, 1991, the motions were deemed submitted for decision.
I. INTRODUCTION
This is a dispute between Ethicon and USSC, two leading manufacturers of medical and surgical devices. Dr. Inbae Yoon, a doctor and inventor of surgical instruments, entered into an agreement with Ethicon to license his patent for a trocar with a spring-loaded safety shield the '773 Patent. USSC has marketed a disposable trocar with a spring-loaded safety shield since 1987, and in 1989, Ethicon sued USSC for infringement of Yoon's '773 Patent. USSC denies that it is infringing the patent and contends further that Yoon's '773 Patent is invalid.
Ethicon has filed a motion for a preliminary injunction which, if entered, would compel USSC to refrain from selling and manufacturing the Surgiport pending a final resolution of the dispute at trial. To grant Ethicon's motion for a preliminary injunction, the court must conclude: (1) that Ethicon is reasonably likely to succeed on its claims at trial; (2) that Ethicon can show that it is being irreparably harmed by USSC's conduct; (3) that the balance of hardships tips in Ethicon's favor; and (4) that the issuance of the injunction is in the public interest.
After a full evidentiary hearing and the submission of post-hearing memoranda of law, I have concluded the following:
(1) Ethicon is reasonably likely at trial to sustain its burden in showing that the '773 Patent is valid;
(2) Ethicon is not reasonably likely at trial to prevail on its claim of infringement;
(3) Ethicon has failed to show that it is being irreparably harmed by USSC's sale of the Surgiport;
(4) Ethicon has not shown that the balance of hardships tips in its favor; and
(5) Ethicon has not shown that this injunction would be in the public interest.
Therefore, Ethicon's motion for a preliminary injunction is denied.
*485 USSC owns the rights to the '030 Patent, which describes a particular configuration of the trocar cutting head and the trocar safety shield. USSC claims that Ethicon's disposable trocar, the Endopath, infringes the '030 Patent because it uses the cutting head and safety shield covered by the patent.
USSC has filed a motion for a preliminary injunction which, if entered, would prevent Ethicon from selling and manufacturing the Endopath pending a final resolution of the dispute at trial. As in the case of the '773 Patent, the court must consider: (1) the likelihood that USSC will succeed on its claims at trial; (2) whether USSC is being irreparably harmed by Ethicon's conduct; (3) the balance of hardships; and (4) the public interest.
After a full evidentiary hearing and the submission of post-hearing memoranda of law, I have concluded the following:
(1) USSC is reasonably likely at trial to sustain its burden in showing that the '030 Patent is valid;
(2) USSC is not reasonably likely at trial to prevail on its claim of infringement;
(3) USSC has failed to show that it is being irreparably harmed by Ethicon's sale of the Endopath;
(4) USSC has not shown that the balance of hardships tips in its favor; and
(5) USSC has not shown that this injunction would be in the public interest.
Therefore, USSC's motion for a preliminary injunction is also denied.
II. FINDINGS OF FACT
Based on the testimony presented at the evidentiary hearing and on the exhibits admitted in full during the course of the hearing, I hereby make the following findings of fact:
A. General Information Parties
1. Yoon is a medical doctor who resides in Phoenix, Maryland. He is the inventor of the '773 Patent issued by the United States Patent and Trademark Office on August 20, 1985. The '773 Patent describes and claims a spring-loaded safety shield as part of a trocar.
See Amended Complaint (filed Dec. 13, 1989) ("Complaint"), ¶¶ 3 & 7; Plaintiffs' Exhibit ("PX") 8 (Defendant's Exhibit ("DX") 44) ('773 Patent).
2. It is undisputed that Ethicon is a New Jersey corporation having its principal place of business in Somerville, New Jersey and that it is a wholly-owned subsidiary of Johnson & Johnson, Inc. engaged in the sale and manufacture of a variety of medical and surgical devices.
See Complaint, ¶ 2.
3. Ethicon is the exclusive licensee of rights in the '773 Patent. Yoon licensed Ethicon in an agreement dated June 27, 1988 and amended on November 15, 1989.
See PX 55 (License and Royalty Agreement); PX 56 (DX 46) (Agreement Amendment).
4. USSC is a Delaware corporation with its principal place of business in Norwalk, Connecticut. USSC sells and manufactures a variety of medical instruments, including surgical stapling devices and other minimally invasive surgical products.
See testimony of Bruce Lustman (Oct. 16, 1990), Hearing Transcript ("Tr.") 532.
5. Since February 1987, USSC has manufactured and sold a line of surgical trocars with spring-loaded safety shields under the name "Surgiport." USSC's current Surgiport product line consists of 3mm, 5mm, 7mm, 8mm, 10mm, 11mm and 12mm size trocars.
See testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 475-77; DX 70A (chart showing USSC's laparoscopic instruments); PX 3a (11 mm Surgiport); PX 3b (7 mm Surgiport); PX 3c (8 mm Surgiport).
6. In January 1990, Ethicon introduced its safety trocar, the "Endopath," in 5mm, 7/8mm and 10/11mm sizes.
See testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 491-92; DX 70B (chart showing Ethicon's laparoscopic instruments).
7. EndoTherapeutics Corporation ("Endo") is a small California company that owns the rights to the '030 Patent. In April 1985, it began marketing the "Endoport," *486 a disposable safety trocar. In June 1986, Endo entered into an exclusive licensing agreement with USSC for rights in the '030 Patent.
See PX 25 (DX 102) ('030 Patent); testimony of Dr. Frederic H. Moll (Oct. 24, 1990), Tr. 1272-73; DX 1 (License Agreement between Endo and USSC dated June 12, 1986).
B. General Information Trocars
8. A trocar is a surgical instrument used to establish a path of entry into an anatomical cavity. It is used primarily in laparoscopy, a minimally invasive procedure whereby a small incision is made into the abdomen through which a tube is inserted, permitting the surgeon to introduce a camera or similar viewing system as well as surgical instruments into the cavity.
See testimony of Dr. Martin Weisberg (Oct. 16, 1990), Tr. 350; testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 669.
9. The "classic" trocars consist of a tube (the cannula) and a cutting element (the obturator or stylet). The obturator, which fits within the cannula, is a shaft with a sharp piercing tip at its end. The "classic" trocar does not include a safety shield.
See testimony of Dr. Sergei Markelov (Sept. 26, 1990), Tr. 59-60, 74.
10. To make the requisite hole, the trocar is pressed against the body until the obturator punctures the body wall and extends into the cavity. Once that is done, the surgeon removes the obturator, leaving the cannula protruding through the body wall so that instruments can be inserted to view internal organs, drain fluids or perform surgical procedures. More than one trocar is often used in a given procedure.
See DX 9 (Zucker & Bailey, Atlas of Endo Cholecystectomy 5 (1990)); testimony of Dr. Martin Weisberg (Oct. 16, 1990), Tr. 351; testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 479; testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 675.
11. In laparoscopic surgical procedures, the wall of the body cavity is separated from the internal organs by the introduction of gas into the body cavity. This process is known as insufflation. Insufflation can be performed through a Verres needle prior to the insertion of a trocar or after insertion of the trocar by the introduction of gas through the outer jacket of the trocar.
See testimony of Dr. Martin Weisberg (Oct. 16, 1990), Tr. 359-61; PX 22 (Verres Needle); PX 5 (videotape of laparoscopic surgery performed with safety trocars).
12. There are a variety of surgical techniques, including choledoscopy, where trocars are used without insufflation.
See testimony of Dr. Martin Weisberg (Oct. 16, 1990), Tr. 384.
13. From 1962, when trocars were first used in laparoscopy, until 1987, the only trocars available on a wide-scale basis were reusable (or non-disposable) devices made from stainless steel.
See DX 9 (Zucker & Bailey, Atlas of Endo Cholecystectomy 1); testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 459-60; testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 672-74.
14. Reusable trocars have several disadvantages, including the need to sharpen the piercing tip and the need to disassemble, sterilize and reassemble the device after each use.
See testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 459-61; testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 672-74.
15. The "classic" trocars those without safety shields are potentially dangerous because they may perforate vital organs. At least three doctors claim to have developed a spring-loaded safety shield that represents a modification to the standard trocar: Dr. Sergei Markelov, who applied for a Soviet inventor's certificate for the spring-loaded safety trocar on February 4, 1980; Yoon, who applied for a U.S. Patent for his spring-loaded safety trocar on March 26, 1982; and Dr. Frederic H. Moll, who applied for a U.S. Patent on August 24, 1983.
See DX 18 (letter of Feb. 4, 1980 from Rector, Tselinograd Medical Institute to All-Union Scientific Research Institute *487 of State Expert Patent Analysis); PX 8 (DX 44) ('773 Patent); DX 101 (U.S. Patent No. 4,601,710); testimony of Dr. Frederic H. Moll (Oct. 24, 1990), Tr. 1244-45.
C. '773 Patent
16. The '773 Patent discloses and claims products and methods relating to trocars with insufflation capacity and safety shields designed to prevent injury to body organs upon the trocar's penetration into the body cavity.
See PX 8 (DX 44) ('773 Patent).
17. One embodiment of the safety trocar appearing in Figure 1 of the '773 Patent discloses a cylindrical spring-loaded safety shield which encases the obturator or cutting shaft and which is in turn encased by the trocar's outer jacket. This embodiment of the invention is typical of the devices covered by Claim 50, and the associated method of use of this embodiment is typical of the methods covered by Claim 34 of the '773 Patent.
See PX 8 (DX 44) ('773 Patent).
1. Validity of the Patent
a. Was there a Prior Publication?
18. Dr. Sergei Markelov has been a surgeon for seventeen years, and he is a chief physician of the Tselinograd district in the Soviet Union. From 1978 to 1988 he was affiliated with the Tselinograd State Medical Institute ("Institute"), a hospital and medical teaching and research facility located in the city of Tselinograd within the republic of Kazakhstan. Kazakhstan is the second largest republic in the Soviet Union.
See testimony of Dr. Sergei Markelov (Sept. 26, 1990), Tr. 52-54, 84-85; DX 12 (Markelov Autobiography); DX 41 (excerpt from Directory of Soviet Research Organizations).
19. During the period between 1978 and 1980, an American exhibition of modern agriculture was presented in Tselinograd. Americans visited the city during the period of the exhibition.
See testimony of Dr. Sergei Markelov (Sept. 26, 1990), Tr. 56-57; DX 63 (copy of brochure entitled "Agriculture in the USA" used at exhibition in Tselinograd).
20. In early 1978, while working in the emergency hospital of the Institute, Dr. Markelov became concerned about the serious risk of perforation of internal organs posed by standard reusable trocars. Dr. Markelov conducted an extensive search of literature and patents from the USSR, United States, Great Britain, France, West Germany and Japan to determine if anyone had found a solution to this problem. Since he found that no one had provided an answer to the problem, Dr. Markelov proceeded to seek his own solution.
See testimony of Dr. Sergei Markelov (Sept. 26, 1990), Tr. 63-65.
21. By March 1979, Dr. Markelov had designed and developed a safety trocar incorporating a spring-loaded safety shield that would spring into place to cover the cutting tip of the obturator upon penetration of the abdominal wall. Dr. Markelov explained that once the design was complete he had thirty instruments manufactured at a major manufacturing facility in Tselinograd, the Industrial Association Tselinogradselmash, so that he could test and use them in actual surgery.
See testimony of Dr. Sergei Markelov (Sept. 26, 1990), Tr. 65, 68-69, 71; DX 15 (acknowledgement from factory to Dr. Markelov that thirty trocars were manufactured between February and March 1979).
22. Between March and September 1979, Dr. Markelov used his safety trocar in a number of successful operations in the emergency room of the Institute. In February 1980, the Institute assembled the materials needed to apply for an "inventor's certificate" and submitted them to the State Committee for Inventions ("State Committee"), the national Soviet agency that administers the Soviet Patent system.
See testimony of Dr. Sergei Markelov (Sept. 26, 1990), Tr. 71-72, 76-79; DX 16 (Statement of Results for testing of the trocar for laparocentesis); DX 17 (statement of Conclusion from Secretary of Science and Patent Expert of the Institute); DX 18 (supporting letter from Rector *488 of Institute to All-Union Scientific Research Institute of State Expert Patent Analysis).
23. Dr. John A. Martens is an expert on the Soviet patent system and on the Soviet system for managing scientific information. His testimony concerning the way the system itself functions was generally credible.
24. In the Soviet system, an inventor has the option to apply for either an "inventor's certificate" or a patent. If he chooses the former, he transfers all rights in the invention to the State and will receive only the "benefit" of public recognition. A patent, on the other hand, permits the inventor to retain the right to license his invention to the State, thereby receiving potential royalties. Both would give an inventor international priority according to applicable international conventions. If the criteria of patentability are established to the satisfaction of the State Committee, an inventor's certificate or patent will be issued.
See testimony of Dr. John A. Martens (Oct. 23, 1990), Tr. 1033-37.
25. The Center for Scientific and Technical Information ("CSTI") network, which came into existence in the 1960's, plays an important role in the rapid dissemination of new technological information through the Soviet system.
See testimony of Dr. John A. Martens (Oct. 23, 1990), Tr. 1024-28.
26. It is the responsibility of each CSTI, such as the Tselinograd Center, to distribute promptly to the other Centers all important technological information materials printed by them and the concurrent responsibility of all receiving Centers to index the material promptly for use by the interested public. The primary goal of the CSTI network is the speedy, effective dissemination of new scientific developments.
See testimony of Dr. John A. Martens (Oct. 23, 1990), Tr. 1024-25, 1053-54.
27. As of January 1981, there were 111 CSTIs dispersed geographically throughout the Soviet Union in such cities as Moscow, Leningrad, Riga, Kiev and Minsk.
See testimony of Vladimir Shevchenko (Oct. 22, 1990), Tr. 892; DX 71-A (map of Soviet Union indicating locations of CSTI centers as of January 5, 1981); DX 71-B (chart listing CSTI centers as of January 5, 1981).
28. These CSTI were open to and used by a broad cross-section of the Soviet public, including scientists, students, information specialists and engineers.
See testimony of Vladimir Shevchenko (Oct. 22, 1990), Tr. 902-03; testimony of Dr. John A. Martens (Oct. 23, 1990), Tr. 1047-48, 1060-62; DX 75 (article entitled "Certain Issues of Utilization of Patent Holdings Accumulated by the Inter-Branch Agencies for the STI"), table 3; DX 30 (affidavit of Pyotr Tarasov).
29. Mr. Pyotr Tarasov, the Director of the Tselinograd Center since 1973, states in his affidavit that the Markelov Prospectus was printed and disseminated to other CSTIs, in accordance with applicable laws, within 10 to 15 days of its January 5, 1981 printing. Because plaintiffs were unable to cross-examine Mr. Tarasov, I credit this affidavit only in so far as it corroborates Dr. Martin's testimony.
See DX 30 (affidavit of Pyotr Tarasov).
30. On July 18, 1980, the State Committee acknowledged receipt of the Institute's application for an inventor's certificate, naming Dr. Markelov as inventor. This acknowledgment confirmed that the date on which the application was received was June 17, 1980. This is the key date for establishing priority of invention.
See testimony of Dr. Sergei Markelov (Sept. 26, 1990), Tr. 79; DX 19 (acknowledgement from State Committee of the USSR for Inventions and Discoveries).
31. In mid-1980, after the State Committee acknowledged Dr. Markelov's application, Dr. Markelov prepared a written document which he called a "prospectus." He sent copies of this document, which contained drawings of his trocar and a description of its operation, together with some manufactured safety trocars, to approximately eight doctors within the Soviet Union for their review and use. He encouraged these physicians to utilize the trocars *489 and report back to him. He placed no obligation of secrecy of any kind upon the doctors. He received letters back from several colleagues.
See testimony of Dr. Sergei Markelov (Sept. 26, 1990), Tr. 80-82, 84-89; DX 20 (prospectus entitled "Trocar for Laparocentesis"); DX 21 (letter from Dr. Voronezh to Dr. Markelov, Oct. 9, 1980); DX 22 (letter from "Petya" to Dr. Markelov, Jan. 3, 1981).
32. In late 1980, after receiving favorable reports from his colleagues, Dr. Markelov prepared a second prospectus describing his device ("Markelov Prospectus"). He did this in order to disclose to physicians and others on a broader scale both how the device worked and how it could be made. He had this second prospectus printed at an official publishing house, the Tselinograd Center for Scientific and Technical Information ("Tselinograd Center"). He gave one of his trocars to an expert draftsperson who prepared a drawing of the instrument for inclusion in the prospectus.
See testimony of Dr. Sergei Markelov (Sept. 26, 1990), Tr. 90-96; id. (Sept. 27, 1990), Tr. 144.
33. The Tselinograd Center printed the prospectus on January 5, 1981. Dr. Markelov requested and received 150 copies of his prospectus so that he could personally distribute them to interested physicians and scientists.
See testimony of Dr. Sergei Markelov (Sept. 26, 1990), Tr. 91, 96-97; DX 23 (prospectus entitled "Trocar").
34. Dr. Markelov's personal copy of the Markelov Prospectus indicates that only 150 copies were printed. It is undisputed, however, that this exhibit is a copy of one of the original 150 prospectuses printed by the Tselinograd Center for Dr. Markelov's personal use. If additional copies had subsequently been printed, this fact would not be indicated on the back of one of the original 150 copies.
See DX 23 (Markelov Prospectus); testimony of Dr. Regina Jouk (Oct. 24, 1990), Tr. 1169-71.
35. Dr. Markelov sent about 20 or 30 prospectuses to physicians in major areas of the USSR. In addition, he disseminated his prospectus to approximately forty doctors, professors and medical students at a February 20, 1981 meeting of the Tselinograd Surgical Society (the "Society"), an organization of about 100 surgeons practicing in the Tselinograd region.
See testimony of Dr. Sergei Markelov (Sept. 26, 1990), Tr. 97, 99-100.
36. At the meeting of the Society, Dr. Markelov demonstrated his safety trocar, distributed copies of his prospectus, and answered questions from the other members. At the conclusion of the meeting, the Society voted to recommend Dr. Markelov's trocar for broad use in surgical practice.
See testimony of Dr. Sergei Markelov (Sept. 26, 1990), Tr. 99-102; DX 24 (excerpts from transcript of the Society's meeting on February 20, 1981).
b. Was the Alleged Prior Publication "Enabling"?
37. Dr. Stephen J. Tricamo is Head of the Mechanical Engineering Department at the Stevens Institute of Technology, in Hoboken, New Jersey. He is an expert in mechanical design, design of machine components, and design of mechanical systems. His testimony concerning whether someone skilled in the art could make the device described in the Markelov Prospectus was generally credible. Professor Ernesto E. Blanco, Adjunct Professor in the Department of Mechanical Engineering, Division of Design, of the Massachusetts Institute of Technology, is an expert in the design of surgical instruments. However, his testimony concerning whether a person skilled in the art of making surgical instruments could construct a trocar by reading the Markelov Prospectus, including the illustration, text, and description of the purpose of the instrument, was generally not persuasive.
See DX 43 (curriculum vitae of Dr. Stephen J. Tricamo); testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 727-30; See PX 6 (curriculum vitae of Professor Ernesto E. Blanco).
*490 38. The illustration of the trocar included in the Markelov Prospectus is not drawn to scale. It does not contain an indicated scale that would permit one to use the drawing alone to make a model of the trocar.
See testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 738; DX 84 (excerpt from J. Duff, Problems in Industrial Technical Illustration 2).
39. One skilled in the art of making surgical instruments would examine the illustration contained in the Markelov Prospectus in light of the entire disclosure. The device described is a surgical trocar to be used in laparocentesis, as indicated in the written text of the document. One skilled in the art would have knowledge of the reusable trocars in use at the time of the Markelov invention.
See testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 741-43.
40. The illustration of the trocar contained in the Markelov Prospectus contains certain "gaps," but these are conventional exaggerations that one skilled in the art of making surgical instruments would recognize as a means of clarifying both that spaces between the structures exist and that the structures themselves have certain thicknesses. In light of the purpose of this type of trocar, one skilled in the art would know that there could not be wide gaps if the device were to perform as intended.
See testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 742-43; DX 85 (excerpt from T. French & C. Vierck, A Manual of Engineering Drawing for Students and Draftsmen 220 (1953)).
c. Is the Device Claimed in the '773 Patent Obvious in Light of the Markelov Prospectus?
41. The testimony of Professor Ernesto E. Blanco on the question of whether the device claimed in the '773 Patent (the "Yoon trocar") was obvious in light of the Markelov Prospectus was generally credible. The testimony of Dr. Stephen J. Tricamo on this question was unpersuasive.
42. In the Markelov Prospectus, the trocar safety shield is retained within the cannula after it pierces the body wall because "stops" connected to the shield run up against the end of the grooves in the cannula. This is an "external" mechanism for stopping the safety shield from falling out of the open end of the cannula. In the Yoon trocar, the shield is restrained internally because of a reduction in the diameter of the cannula.
See testimony of Professor Ernesto E. Blanco (Oct. 25, 1990), Tr. 1482-87; PX 8 (DX 44) ('773 Patent), fig. 1.
43. Because of these grooves, the device claimed by the Markelov Prospectus (the "Markelov trocar") cannot be used, by itself, for procedures requiring insufflation.
See testimony of Professor Ernesto E. Blanco (Oct. 15, 1990), Tr. 230-31; testimony of Dr. Martin Weisberg (Oct. 16, 1990), Tr. 391; testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 708.
44. However, the Markelov trocar may be adapted for use in insufflation.
See testimony of Dr. Sergei Markelov (Sept. 27, 1990), Tr. 170-71; testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 708.
45. All of the embodiments shown in the '773 Patent reveal an outer jacket that completely encloses the safety shield, suggesting that the Yoon trocar was intended to prevent the leakage of fluid, both liquid and gas.
See testimony of Professor Ernesto E. Blanco (Oct. 15, 1990), Tr. 237-38.
d. Was there a Failure to Disclose the "Best Mode" for Practicing the Invention?
46. When Yoon filed his patent application, he believed that there would be less risk of injury to internal organs if the safety shield did not lock rigidly over the cutting tip, but rather, was flexible (but not so much as to expose the cutting tip) when it came into contact with internal organs.
See PX 109 (DX 91) (deposition testimony of Dr. Inbae Yoon (Apr. 5, 1990), at 215-16).
47. There are advantages in having a safety shield that does not lock automatically. *491 For example, were a trocar to lock prematurely, "tenting" might occur when the blunt end of the safety shield is unable to pierce the peritoneum. This could cause tearing and other trauma to the peritoneum.
See testimony of Dr. Martin Weisberg (Oct. 16, 1990), Tr. 399, 401.
48. Each of the commercial embodiments of the safety trocar the Surgiport marketed by USSC and the Endopath marketed by Ethicon incorporates safety shield locking devices.
See testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 466-67; testimony of Dr. Martin Weisberg (Oct. 16, 1990), Tr. 402.
2. Infringement of the Patent
a. Does the Surgiport Infringe Claim 50 of the '773 Patent?
49. Dr. Stephen J. Tricamo's testimony concerning whether USSC's Surgiport infringes Claim 50 of the '773 Patent was entirely credible. To the extent that Professor Ernesto E. Blanco's testimony contradicted that of Dr. Tricamo on the question of infringement of Claim 50, it was not persuasive.
50. In order for a safety shield to permit "longitudinal interior passage" of the obturator, the obturator must be insertable and removable from the shield.
See testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 756-58.
51. The drawings and specification of the '773 Patent confirm that the safety shield of the Yoon trocar permits "longitudinal interior passage" of the obturator by having a shield which is part of and fastened to the cannula.
See PX 8 (DX 44) ('773 Patent), fig. 1.
52. In the Surgiport, the obturator and safety shield are joined as a unit, and the cannula is wholly separate. Hence, unlike the Yoon embodiment, the obturator in the Surgiport does not indeed, it cannot pass through the safety shield, as required by Claim 50.
See testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 755-58.
53. To provide a proper channel through the body, the obturator of the trocar must be removed.
See, e.g., testimony of Dr. Sergei Markelov (Sept. 26, 1990), Tr. 60.
54. When the drafters of the '773 Patent intended to describe movement "back and forth" when, for example, they described the movement of the safety shield between the accommodating means (cannula) and the shaft (obturator) they used the words "reciprocating longitudinally." When they intended to describe the shield's capacity to have the obturator go in and out, they used the words "longitudinal interior passage."
See PX 8 (DX 44) ('773 Patent), col. 26, lines 54-56; testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Dr. 756, 819-21.
55. The Yoon embodiment was intended to have an obturator that passed through both the shield and cannula. Figure 1 of the '773 Patent depicts a device where the obturator would be inserted in and removed from the shield and cannula. The Yoon prototype confirms the conclusion that the "longitudinal interior passage" phrase in the Claim means a device where the obturator passes into and out of the cannula/shield unit.
See testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 755-58; PX 8 (DX 44) ('773 Patent), fig. 1; DX 60 (Yoon Prototype).
56. In the case of USSC's Surgiport, the safety shield is removed from the cannula with the obturator.
See testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 768; see also PX 3a (11mm Surgiport); PX 3b (7mm Surgiport); PX 3c (8mm Surgiport).
57. Figure 28C of the '773 Patent does not show a device where the safety shield is removed from the cannula. It shows how the Yoon trocar may be assembled. It does not expand, or alter, the claim as written.
See PX 8 (DX 44) ('773 Patent), col. 15 lines 43-48; testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 765-68.
*492 b. Does the Surgiport Infringe Claim 34 of the '773 Patent?
58. Dr. Stephen J. Tricamo's testimony concerning whether USSC's Surgiport infringes Claim 34 of the '773 Patent was entirely credible. To the extent that Professor Ernesto E. Blanco's testimony contradicted that of Dr. Tricamo on the question of infringement of Claim 34, it was not persuasive.
59. Claim 34 describes how to use the Yoon trocar, not how to manufacture it.
See testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 858; DX 83 ('773 File Wrapper), Amendment at 11.
60. Claim 34 of the '773 Patent was expressly amended to require "inserting an elongate implement having a sharp distal end axially into said [receiving] elongate member and said reciprocating member...." In order to infringe Claim 34, the Surgiport would have to be used in such a way that the obturator is inserted into both the cannula and the safety shield at the same time.
See DX 83 ('773 File Wrapper), Amendment at 5 (emphasis added); see also testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 859-60.
61. The obturator and safety shield of the Surgiport are manufactured as a single unit. The surgeon would never have occasion to "insert" the obturator of the Surgiport into the safety shield.
See testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 850-51, 860.
c. Does the Surgiport Infringe the '773 Patent Under the Doctrine of Equivalents?
62. The '773 Patent is not a wholly novel device. Its incorporation of a safety shield is a significant improvement to the "classic" trocars already in use, but the Yoon trocar is not of such novelty and importance as to mark a distinct step in the progress of the art.
See PX 109 (DX 91) (deposition testimony of Dr. Inbae Yoon (Apr. 6, 1990), at 360).
63. The advantages of the safety shield in the Yoon trocar are primarily psychological. There is no medical evidence that it saves lives or avoids injury.
See testimony of Dr. Martin Weisberg (Oct. 16, 1990), Tr. 389.
64. The basic difference between the Surgiport and the Yoon trocar is that in the Surgiport, the safety shield and obturator are a single unit; unlike in the Yoon trocar, neither the safety shield nor the obturator can be removed without the other.
See testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 755-56.
65. By removing the shield from the cannula, the Surgiport leaves a wider path of entry for endoscopes and other instruments. In order to use the same size instruments as with the Surgiport, a surgeon would be required to use a Yoon trocar with a larger diameter. The room taken up by the safety shield would require an increased wound size of up to 20%.
See testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 682-83; testimony of Dr. Stephen J. Tricamo (Oct. 18, 1990), Tr. 760.
66. The Yoon trocar, in which the safety shield protrudes beyond the cannula while in the body, permits air leakage at the juncture of the cannula and shield. If the shield/cannula unit is not inserted far enough into the abdomen, this juncture may be positioned so that the gas leaks into the abdominal wall, thereby causing a painful condition known as subcutaneous emphysema.
See testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 680.
67. Because the safety shield in the Yoon trocar remains in the body and extends about one centimeter beyond the end of the cannula, the shield impairs the operative viewing field. This is especially so if the Yoon instrument is pushed further into the body to prevent the leakage described above, see Findings of Fact, No. 66.
See testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 679-80.
68. The protruding spring-loaded safety shield found in the Yoon embodiment may cause tissue that is being removed during *493 an operation to become dislodged and subsequently lost in the abdomen.
See testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 683.
69. Because the cutting tip and safety shield in the Surgiport are a single unit, the cutting tip is protected when the obturator is removed from the cannula. In contrast, the cutting tip of the Yoon embodiment is exposed upon removal from the cannula, thereby creating risks of cutting operating room personnel and transmitting viral infections.
See testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 681.
3. Irreparable Harm to Plaintiffs
70. USSC had been the only company selling disposable safety trocars before Ethicon entered the market. Even now that Ethicon's Endopath is competing with the Surgiport, USSC has approximately 95% of the total market. If a company is alone in the market with a good product, surgeons become accustomed to the product, grow to depend on it, and grow accustomed to buying it. This product acceptance is "goodwill" that money cannot buy.
See testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 494, 500-03.
71. Surgeons are generally reluctant to try an equivalent product once they have become accustomed to using a particular product.
See testimony of Dr. Martin Weisberg (Oct. 16, 1990), Tr. 355-56.
72. USSC promotes the use of its Surgiports together with its Endo Clip Applier for use in laparoscopic gall bladder removals ("cholecystectomies"), a relatively innovative procedure which allows patients to undergo major surgery with minimal cosmetic scarring and activity restrictions. The Endo Clip Applier may also be used with Ethicon's Endopaths.
See testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 480-82; testimony of Dr. Martin Weisberg (Oct. 16, 1990), Tr. 422.
4. The Balance of Hardships/Good Faith
73. USSC initially became interested in the possible development of a disposable safety trocar as a result of its contact with Endo in 1985. Endo had developed a disposable safety trocar, called the Endoport, which it had begun to market in 1985. Recognizing the potential for a disposable trocar and believing that the product would fit well with its line of disposable surgical stapling devices, USSC entered into negotiations with Endo for a license to the product. This effort culminated in an exclusive license agreement dated June 12, 1986.
See PX 4 (DX 104) (Endoport); testimony of Bruce Lustman (Oct. 16, 1990), Tr. 534-35; DX 1 (License Agreement between Endo and USSC dated June 12, 1986).
74. USSC worked on developing and redesigning the Endoport and planning its introduction on a national scale. Finally, in February 1987, USSC introduced a new, re-designed safety trocar the Surgiport.
See testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 465-76.
75. In the summer of 1987, several months after the national introduction of the Surgiport, Yoon approached USSC and asserted that the device infringed his '773 Patent.
See testimony of Bruce Lustman (Oct. 16, 1990), Tr. 536-37.
76. In October 1987, USSC and Yoon reached an agreement on the essential terms of a license, which was confirmed in writing in March 1988. USSC believed that it shortly would have a formal written agreement.
See testimony of Bruce Lustman (Oct. 16, 1990), Tr. 537-40; DX 4 (letter from Attorney Presta to Attorney Libsohn dated March 11, 1988 confirming agreement); PX 111 (DX 58) (deposition testimony of Frank R. Presta (Dec. 5, 1989), at 92-96, 102-05); PX 110 (DX 92) (deposition testimony of Thomas R. Bremer (Apr. 24, 1990), at 111-15).
77. In March 1988, at about the same time he was negotiating the agreement *494 with USSC, Yoon contacted Ethicon about a possible license.
See DX 48 (confidential Disclosure Agreement between Yoon and Ethicon (Mar. 1, 1988)); DX 49 (letter from Yoon to Dr. Alan Levy dated March 4, 1988).
78. Yoon reached an agreement with Ethicon in June 1988.
See PX 55 (License and Royalty Agreement).
79. In early 1989, Yoon, acting through new counsel, and with the knowledge of Ethicon, contacted USSC and advised it of the 1988 agreement with Ethicon and of his willingness and ability to grant USSC a non-exclusive license. This was the first notice USSC had of the fact that Yoon had negotiated an agreement with Ethicon.
See testimony of Bruce Lustman (Oct. 16, 1990), Tr. 541-42; DX 5 (letter from Attorney Goldstein to Leon Hirsch dated February 7, 1989).
80. In March 1989, representatives of USSC met with Yoon's lawyers, who informed them that Yoon had entered into a non-exclusive licensing agreement with Ethicon and was free and eager to enter into a similar agreement with USSC.
See testimony of Bruce Lustman (Oct. 16, 1990), Tr. 542-55.
81. In June 1989, Mr. Lustman and Mr. Bremer from USSC met Yoon in Washington, D.C. The parties agreed on the amount of a license fee, the commencement date of royalties (with Yoon free to select either of two options), and the royalty rate.
See testimony of Bruce Lustman (Oct. 26, 1990), Tr. 546-55; DX 6 (Mr. Lustman's notes written at June 14, 1989 meeting).
82. It is undisputed, however, that no formal agreement had been reached at the June 1989 meeting. Plaintiffs filed this suit in July 1989. They filed their motion for a preliminary injunction in August 1990.
See PX 110 (DX 92) (deposition testimony of Thomas R. Bremer (Apr. 24, 1990), at 159-60).
83. In September 1989, after Ethicon had filed suit, USSC sent a proposed draft of an agreement to Yoon offering $2.2 million in paid-up royalties for five years and 5% on sale, for the rest of the life of the patent. In October 1989, Yoon entered into the Amended License Agreement with Ethicon.
See PX 104 (proposed license agreement between Yoon and USSC dated September 20, 1989); PX 56 (DX 46) (Agreement Amendment).
5. The Public Interest
84. USSC has conducted seminars and teaching sessions to familiarize surgeons with its disposable trocar.
See testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 481-82, 495; testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 686-87; DX 9 (Zucker & Bailey, Atlas of Endo Cholecystectomy (1990)).
85. USSC has educated more than ten thousand obstetricians, gynecologists, and general surgeons in the use of the Surgiport. Annual sales of the product have gone from about $5 million in 1987 to more than an estimated $50 million in 1990, as a result of USSC's efforts.
See testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 482, 485, 495.
86. USSC has effectively developed the market for disposable safety trocars in this country, and its product is by far the predominant trocar in the market. Laparoscopy has become one of the most rapidly growing areas of surgery.
See testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 494; testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 671-72.
87. USSC has introduced a cannula made out of special radiolucent material, which allows surgeons to obtain unobstructed x-rays during surgery, thereby enhancing patient safety. This is not available in Ethicon's product line.
See testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 478, 492-93; testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 676-77; DX 70A (chart showing USSC's laparoscopic instruments); DX 70B (chart showing Ethicon's laparoscopic instruments).
*495 88. Ethicon's Endopaths come in 7/8 mm and 10/11 mm sizes, permitting surgeons to use different size instruments through a single trocar without having to attach an adapter. This flexibility makes the Endopaths somewhat more convenient to use.
See testimony of Dr. Martin Weisberg (Oct. 16, 1990), Tr. 376.
89. While there are differences between USSC's Surgiport and Ethicon's Endopath, these differences are not significant. While surgeons may prefer one over the other, they are for most purposes interchangeable.
See testimony of Dr. Martin Weisberg (Oct. 16, 1990), Tr. 386; testimony of Dr. Karl Zucker (Oct. 17, 1990), Tr. 703-04.
90. Were USSC forced to discontinue the sale and manufacture of its Surgiport pending trial, the disruption of substantial long term relations with its customers could spill over and affect other USSC products because of hospital purchasing procedures. Furthermore, such an injunction could mean the loss of jobs by as many as 350 factory employees.
See testimony of Bruce Lustman (Oct. 16, 1990), Tr. 568-72; testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 496-97.
D. '030 Patent
91. On February 9, 1990, USSC asserted a counterclaim charging plaintiff Ethicon with infringement of the '030 Patent. USSC charges that the Endopath, which Ethicon began to market and sell in January 1990, infringes the '030 Patent.
See Answer to Amended Complaint and Amended Counterclaims (filed Feb. 14, 1990), ¶¶ 109-15.
92. The '030 Patent was issued to Endo on March 31, 1987. Endo had applied for the patent on February 24, 1986.
See PX 25 (DX 102) ('030 Patent).
93. The '030 Patent claims a safety trocar having a pyramidal cutting head and safety shield with a triangular-shaped opening a design intended to reduce the force required for the safety trocar to penetrate the body wall.
See testimony of Dr. Frederic H. Moll (Oct. 24, 1990), Tr. 1258; testimony of Dr. Stephen J. Tricamo (Oct. 25, 1990), Tr. 1347.
1. Validity of the Patent
a. Is the '030 Patent Obvious in Light of the '773 Patent?
94. Dr. Stephen J. Tricamo's testimony that the '030 Patent is obvious in light of the '773 Patent was generally credible. To the extent that Professor Ernesto E. Blanco's testimony contradicted that of Dr. Tricamo on the question of the obviousness of the '030 Patent, it was not persuasive.
95. The '030 Patent teaches that the shield retracts to the base of the cutting head and that the opening conforms to the base of the cutting head. Neither the '773 Patent nor any other art discloses either of those features.
See testimony of Dr. Stephen J. Tricamo (Oct. 25, 1990), Tr. 1347-1350, 1706-07; PX 8 (DX 44) ('773 Patent); DX 101 (copy U.S. Patent No. 4,601,710); PX 25 (DX 102) ('030 Patent); DX 121A (photograph of Endoport tip); DX 122A (photograph of Endopath tip).
96. During prosecution of the application for the '030 Patent, the patent examiner reviewed both the '030 Patent and U.S. Patent No. 4,601,710 ("'710 Patent"), an earlier Moll patent. The '710 patent is cited in the '030 Patent as prior art. The invention of the '030 Patent was found patentable over the tapered tubular shield shown in the '710 Patent.
See testimony of Dr. Stephen J. Tricamo (Dec. 18, 1990), Tr. 1704-05; DX 101 ('710 Patent); PX 25 (DX 102) ('030 Patent).
b. Was There a Prior Public Use of the '030 Patent Before February 24, 1985?
97. Dr. William Kennett used an Endoport safety trocar (the product practicing the '030 Patent) in performing a clinical procedure on February 8, 1985. Dr. Philip Darney used Endoports in three clinical procedures on February 15, 1985. These tests were necessary experiments to ascertain *496 the viability of the device in actual surgery on humans. Endo's records, including the reports received and the evaluations made, confirm the non-public nature of these uses.
See testimony of Dr. Frederic H. Moll (Oct. 24, 1990), Tr. 1260-72; DX 109 (reports of clinical tests of Endoport); DX 110 (report by Dr. William Kennett of clinical test of Endoport); DX 111 (report by Dr. Philip D. Darney of clinical test of Endoport).
98. The circumstances and contexts of the tests, including Dr. Moll's and the other physicians' presence and supervision, reveal that the tests were experimental in nature and intended to be confidential.
See testimony of Dr. Frederic H. Moll (Oct. 24, 1990), Tr. 1262-72, 1321-22.
99. The first time Dr. Moll showed a prototype of the trocar to anyone other than those advising Endo was at the annual meeting of the Association of Operating Room Nurses, held on February 25, 1985. No one from Endo solicited any sales or took any orders either at or prior to the meeting. The first Endoport trocars, other than those exclusively used for test purposes, were not made until April 1985.
See testimony of Dr. Frederic H. Moll (Oct. 24, 1990), Tr. 1272-73.
2. Infringement of the Patent
a. Does the Endopath Infringe Claim 1 of the '030 Patent?
100. Professor Ernesto E. Blanco's testimony concerning whether the Endopath infringes Claim 1 of the '030 Patent was credible. To the extent that Dr. Stephen J. Tricamo's testimony contradicted that of Professor Blanco on the question of the Endopath's infringement of Claim 1 of the '030 Patent, it was not persuasive.
101. Claim 1 is limited to a device whose cutting head has a triangular "base." The base is the planar figure articulated by three line segments, each of which marks the boundary between the planar side surface of the cutting head and the planar side of the shaft below it. In other words, the '030 specification shows that there is a triangular "base" where each of the three planar surfaces of the pyramidal cutting head intersects with a planar side of the shaft. The three lines of intersection define a triangular cross-section, which is the "base."
See testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1600; PX 25 (DX 102) ('030 Patent).
102. The surfaces of the cutting head of the Endopath merge smoothly into the cylindrical shaft. There is no intersection of planes there are no line segments to define a triangular base where the cutting edges terminate.
See testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1600.
103. A person of ordinary skill in the art would not consider the cutting tip of the Endopath to have a triangular base simply because a hypothetical triangular cross-section connecting the points where the three cutting edges terminate could be drawn.
See testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1600-01; PX 2b (10/11 mm Endopath).
104. A triangle is a two-dimensional figure formed by three intersecting straight lines. A triangle has length and width, but no height.
See testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1594, 1596.
105. A person skilled in the art would not describe the cross-section of the opening of the Endopath safety shield as a triangular-shaped opening. The opening of the Endopath safety shield is cut into a sphere.
See testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1594, 1599.
106. The "bevels" on the Endoport safety shield have substantially the same slopes as the surfaces of the cutting head and they act as extensions of those surfaces when the shield is retracted. This is exactly what is embodied in the Endoport safety trocar pursuant to the '030 Patent.
See PX 25 (DX 102) ('030 Patent), col. 3, lines 27-31; PX 4 (Endoport); testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1615-17.
*497 107. The Endopath's safety shield contains rounded "bulges" at its distal end. A bulged or curved surface cannot be said to have a slope. The surface of each bulge has a constantly changing or infinite number of slopes.
See testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1615-16; PX 2b 65 (10/11 mm Endopath).
108. The rounded bulges on the Endopath's safety shield are not "generally parabolically shaped." A parabola is a two-dimensional figure which corresponds to a cross-section of a cone.
See PX 34 (model of cross-section of a cone); testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1618, 1631-32.
109. The opening of the Endopath safety shield cannot be said to be formed by the bases of the three parabolic bevels. The opening of the Endopath's shield is not formed by imaginary lines but rather by three arcs corresponding to the periphery of the inside surface of each of the three rounded bulges.
See testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1618, 1631.
110. General registry means coincidence of the periphery of two figures.
See testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1601-05.
111. The device claimed by the '030 Patent (the "Moll trocar" or Endoport) shows that the triangular shield opening aligns perfectly with the triangular base. Each edge of the opening is parallel and adjacent to the base, such that the three lines defining the opening of the shield and the three lines defining the base of the cutting tip are so aligned that they could be superimposed upon each other.
See PX 25 (DX 102) ('030 Patent), fig. 8; testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1668-69; PX 28 (model of '030 tip and shield).
112. When the Endopath's shield is retracted to its fullest extent, the tip of each of the three arcs of the rounded bulges touches an imaginary line formed by connecting points at the proximal end of the two cutting edges that define each slope of the cutting head. Three points of contact are insufficient for "general registry."
See testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1610-11.
b. Does the Endopath Infringe the '030 Patent Under the Doctrine of Equivalents?
113. The Moll trocar has a safety shield with a triangular opening the edges of which have a certain width. These "ledges" create a discontinuity in the cutting process during insertion. Once the surgeon has inserted the Moll trocar up to the ledges of the safety shield, the cutting process is over, and the ledged shield expands the hole until it reaches the maximum diameter.
See testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1636-37.
114. The tip of the Endopath's safety shield does not have ledges. The transition from the cutting head to the cannula is made over the shield's three rounded bulges which are separated by gaps at the shield's distal end. Expansion over the bulges is smoother than forcing a triangular ledge through the insertion being cut by the sharp edges of the cutting head. The Endopath's "bullet-nosed" safety shield reduces trauma to tissue during penetration, even though the bulged safety shield requires more force to penetrate.
See testimony of Professor Ernesto E. Blanco (Dec. 18, 1990), Tr. 1637-38.
115. The testimony of James V. Martin, Director of Operations of Ethicon and former project manager for the development of the Endopath, was generally credible concerning the development and purpose of the Endopath.
116. Ethicon had two design purposes with respect to the Endopath's "bullet-nosed" safety shield. First, the Endopath's shield was designed to reduce the trauma to surrounding tissue by distributing over a greater area the force exerted by the safety shield. Second, Ethicon sought to improve safety by decreasing the time needed for the safety shield to snap forward to cover the cutting tip upon penetration of the body wall. By decreasing *498 the distance that the safety shield retracts and by increasing the force of the spring, the speed with which the safety shield snaps forward is increased. This has the disadvantage of increasing the force needed to retract the safety shield.
See testimony of James V. Martin (Dec. 18, 1990), Tr. 1553-57, 1569-70.
117. The force needed to retract fully the safety shield of the Endopath is less than that needed to retract the safety shield of the Surgiport. However, the Endopath requires a greater maximum force to penetrate than is required by a Surgiport of comparable size.
See testimony of James V. Martin (Dec. 18, 1990), Tr. 1587-90; DX 136 (memorandum entitled "Ethicon Endopath-Porvair Penetration Characteristics"); see also testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 523.
118. An advertisement for the Endopath claims that it was "designed for easy penetration." This refers to the minimization of trauma to surrounding tissue, not the reduction in the force required to penetrate the body wall. Ethicon never intended to suggest, and the advertisement itself never suggests, that reduction in penetration force was a design goal.
See testimony of James V. Martin (Dec. 18, 1990), Tr. 1559-62; DX 124 (Endopath advertisement).
119. Ethicon's European patent application for the Endopath never mentions that the purpose of the Endopath is to reduce penetration force.
See testimony of John V. Martin (Dec. 18, 1990), Tr. 1566-70; DX 126 (Ethicon European Patent Application).
3. Irreparable Harm to Defendant
120. USSC has exclusive rights to the '030 Patent, see Findings of Fact, No. 7, but it does not practice the '030 Patent. In other words, the Surgiport's safety shield does not align itself with the base of the cutting head, and the shield's opening is not triangular-shaped. Like the Moll trocar, the Surgiport reduces penetration force, but it does so through an alternative design.
See testimony of Dr. Stephen J. Tricamo (Oct. 25, 1990), Tr. 1367-70.
121. It is likely that USSC's market share will be reduced by Ethicon's continued sale of the Endopath.
4. The Balance of Hardships/Public Interest
122. Were the injunction against Ethicon to enter, USSC would be the sole presence in the disposable trocar market until Ethicon is able to develop an alternatively designed cutting tip and safety shield.
123. USSC has a full line of trocar products and is currently, and has been consistently, able to supply the market for disposable safety trocars. There is currently no trocar model or size offered by Ethicon that is not included as part of USSC's product line.
See testimony of Lee R. Cohen (Oct. 16, 1990), Tr. 492.
III. DISCUSSION
Both parties invoke the court's authority under federal patent law to "grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable." 35 U.S.C. § 283 (1988). After eleven days of testimony and over one-hundred exhibits, it is easy to forget that we have not had a full trial on the merits. The court's findings with respect to the underlying issues of validity and infringement of both the '773 and '030 Patents are unavoidably tentative, and they have been made for the sole purpose of resolving the pending motions for preliminary injunction. See University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 1834, 68 L. Ed. 2d 175 (1981). Despite how it may appear, I intimate no view whatsoever on the underlying merits of the complaint and counterclaim in this action. See Illinois Tool Works, Inc. v. Grip-Pak, Inc., 906 F.2d 679, 681 (Fed.Cir.1990) (preliminary injunction lies within sound discretion of district court "after a hearing in which neither party [is] required to prove his case in full and in light of findings and *499 conclusions not binding at trial" (emphasis in original)).
The standards for awarding a preliminary injunction are "no more nor less stringent in patent cases than in other areas of the law." H.H. Robertson, Co. v. United Steel Deck, Inc., 820 F.2d 384, 387 (Fed.Cir.1987). A party seeking a preliminary injunction must establish a right thereto in light of four factors:
1) a reasonable likelihood of success on the merits; 2) irreparable harm; 3) the balance of hardships tipping in favor of the requesting party; and 4) that the issuance of an injunction is in the public interest.
Chrysler Motors Corp. v. Auto Body Panels, Inc., 908 F.2d 951, 952 (Fed.Cir.1990); see also Hybritech, Inc. v. Abbott Laboratories, 849 F.2d 1446, 1451 (Fed.Cir.1988); T.J. Smith & Nephew, Ltd. v. Consolidated Medical Equip., Inc., 821 F.2d 646, 647 (Fed.Cir.1987).
No one of these factors is dispositive. The Court "must weigh and measure each factor against the other factors and against the form and magnitude of the relief requested." Hybritech, 849 F.2d at 1451. The absence of an adequate showing with regard to any one factor may be sufficient, "given the weight or lack of it assigned to other factors, to justify the denial" of the preliminary injunction. Chrysler, 908 F.2d at 953.
A. '773 Patent
To prevail on their motion for preliminary injunction, plaintiffs must show that (1) there is a reasonable likelihood that they will prove at trial by a preponderance of the evidence that defendant has infringed the '773 Patent and that they will carry their burden on the question of the patent's validity; (2) they are currently being irreparably harmed; (3) the balance of hardships tips in their favor; and (4) the issuance of a preliminary injunction is in the public interest.
1. Likelihood of Success on the Merits
A patent is presumed valid. 35 U.S.C. § 282 (1988). The movant, therefore, need not prove affirmatively that the patent is valid. On a preliminary injunction motion, "[t]his presumption of validity places the burden of persuasion as well as the burden of going forward on the party asserting invalidity." Chrysler, 908 F.2d at 953. Once the alleged infringer makes out a prima facie case of invalidity, the burden shifts to the patentee to establish validity. U.S. Environmental Products, Inc. v. Westall, 911 F.2d 713, 716 (Fed.Cir. 1990); TP Laboratories, Inc. v. Professional Positioners, Inc., 724 F.2d 965, 971 (Fed.Cir.), cert. denied, 469 U.S. 826, 105 S. Ct. 108, 83 L. Ed. 2d 51 (1984).
When a patentee "clearly shows" that the patent is infringed, "a court may, after a balance of all of the competing equities, preliminarily enjoin another from violating the rights secured by the patent." Atlas Powder Co. v. Ireco Chemicals, 773 F.2d 1230, 1233 (Fed.Cir.1985). Proof of patent infringement must be shown by a preponderance of the evidence. Lemelson v. United States, 752 F.2d 1538, 1547 (Fed. Cir.1985).
The interpretation of the claims of a patent is a question of law. Windsurfing Int'l, Inc. v. AMF, Inc., 782 F.2d 995, 1000 (Fed.Cir.), cert. denied, 477 U.S. 905, 106 S. Ct. 3275, 91 L. Ed. 2d 565 (1986). The court is to interpret words in a claim according to ordinary meaning absent evidence that the inventor used them differently. ZMI Corp. v. Cardiac Resuscitator Corp., 844 F.2d 1576, 1579 (Fed.Cir.1988). "[I]t is fundamental that claims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention." United States v. Adams, 383 U.S. 39, 49, 86 S. Ct. 708, 713, 15 L. Ed. 2d 572 (1966). The purpose of the patent system is to provide clear notice to others of what would constitute infringement. United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 232, 63 S. Ct. 165, 167, 87 L. Ed. 232 (1942); Great Northern Corp. v. Davis Core & Pad Co., 782 F.2d 159, 166 (Fed.Cir.1986).
*500 a. Validity
(i) Prior Publication
Although the party defending against a claim of infringement by challenging the patent's validity ultimately has the burden of proving invalidity at trial "by clear and convincing evidence," Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 872 (Fed.Cir.1985), on a motion for a preliminary injunction, plaintiffs "retain the burden of showing a reasonable likelihood that the attack on [the] patent's validity would fail." H.H. Robertson, Co. v. United Steel Deck, Inc., 820 F.2d 384, 387 (Fed.Cir.1987). The defendant's challenge to the validity of the '773 Patent rests primarily on the existence of the Markelov Prospectus which defendant claims is a prior "printed publication" within the meaning of 35 U.S.C. § 102(b).[1] There is no dispute that Yoon filed the '773 Patent Application on March 26, 1982, making March 26, 1981 the relevant date for the question of prior publication.
The section 102(b) bar is grounded in the principle that "once an invention is in the public domain, it is no longer patentable by anyone." In re Hall, 781 F.2d 897, 898 (Fed.Cir.1986). Public accessibility is the touchstone when determining whether a document constitutes a "printed publication" that would bar a patent under 35 U.S.C. § 102(b). Id. at 899; In re Bayer, 568 F.2d 1357, 1359 (C.C.P.A.1978). The question is whether defendant has shown that the Markelov Prospectus was "sufficiently accessible, at least to the public interested in the art, so that such a one by examining the reference could make the claimed invention without further research or experimentation." In re Hall, 781 F.2d at 899.
In In re Hall, the Court of Appeals for the Federal circuit considered whether a doctoral thesis submitted to the Department of Chemistry and Pharmacy at Freiburg University in what used to be called the Federal Republic of Germany was "sufficiently accessible" to the public. In the absence of evidence establishing a specific date of cataloguing and shelving, the court concluded that "competent evidence of the general library practice may be relied upon to establish an approximate time when a thesis became available." Id.
In Freeman v. Minnesota Mining & Mfg. Co., 693 F. Supp. 134 (D.Del.1988), aff'd in part and vacated in part on other grounds, 884 F.2d 1398 (Fed.Cir.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 1794, 108 L. Ed. 2d 794 (1990), the court confronted a factual situation remarkably similar to the one in this case. In Freeman, the question was whether an extract from the records of a clinical conference of the Moscow Experimental Laboratory for Experimental Eye Surgery (now the Moscow Eye Institute, ("MEI")) held in 1975 was sufficiently accessible to invalidate a subsequent patent. The party alleging invalidity sought to prove that the extract was publicly accessible by relying on evidence offered by the head of the MEI who testified that "he was at the conference, that the report was given to a librarian, and that it was indexed and shelved shortly after the conference." Id. at 149. The court rejected this argument, concluding that "[t]here is no reliable evidence that the library was open to the public in 1975, nor is there any evidence that the Protocol was actually indexed and shelved in the library in 1975." Id. In light of the presumption of validity, the court held that there was not "clear and convincing evidence of the accessibility of a one-page document in a library in an [i]nstitute in Moscow such that it would anticipate Freeman's patent under Section 102(b)." Id.
Based on the substantial record before me, I conclude that plaintiffs have met their burden of showing that it is reasonably likely that the attack on the '773 Patent's validity would fail. See H.H. Robertson, 820 F.2d at 387. Defendant has taught the court much about how scientific *501 information is disseminated throughout the Soviet Union, but it was unable to show that the Markelov Prospectus was actually catalogued and indexed according to the regulations in place. Although the court in In re Hall suggested that there is no absolute requirement that specific indexing and cataloguing information be available, In re Hall, 781 F.2d at 899, there was no dispute that the doctoral dissertation was eventually placed in the library the only question was when it was actually catalogued. In contrast, the defendant in this case has only been able to offer evidence suggesting how the system was designed to work. See Findings of Fact, Nos. 25-26.
The dissertation at issue in In re Hall could be found in the library of the University of Freiburg; a paper distributed to at least six people, which the court in Massachusetts Institute of Technology v. AB Fortia, 774 F.2d 1104, 1108-09 (Fed.Cir. 1985), found to be prior art, was delivered to an international conference in the United States (Birmingham, Alabama). With no credible evidence that the Markelov Prospectus was actually disseminated and publicly available in the Soviet Union prior to March 26, 1981, I simply cannot conclude that it constituted a prior "printed publication" within the meaning of 35 U.S.C. § 102(b) sufficient to invalidate the '773 Patent.
(ii) "Enabling"
Because I have found that the Markelov Prospectus was not sufficiently available to the relevant public to qualify as a prior printed publication, it is not necessary to reach the question of whether or not it would have permitted someone skilled in the art to "`recognize and comprehend therefrom the essentials of the claimed invention without need of further research or experimentation.'" In re Wyer, 655 F.2d 221, 226 (C.C.P.A.1981) (quoting I.C.E. Corp. v. Armco Steel Corp., 250 F. Supp. 738, 743 (S.D.N.Y.1966)); see also In re Donohue, 766 F.2d 531, 533 (Fed.Cir.1985). However, the credible evidence presented at the hearing was that the Markelov Prospectus would have permitted one skilled in the art to build the claimed invention a trocar with a safety shield. See Findings of Fact, Nos. 37-40.
(iii) Obviousness
Section 102(b) bars an application for patent only if the "complete invention claimed was embodied in or obvious in view of the thing" described in the prior printed publication. Timely Products Corp. v. Arron, 523 F.2d 288, 302 (2d Cir.1975); see also In re Corcoran, 640 F.2d 1331, 1333 (C.C.P.A.1981) (quoting Timely Products approvingly). The question is whether there are any "material" differences between the Yoon trocar and the invention disclosed in the Markelov Prospectus. Baker Oil Tools, Inc. v. Geo Vann, Inc., 828 F.2d 1558, 1565 (Fed.Cir.1987).
Even if the Markelov Prospectus were deemed to be a prior "printed publication" under 35 U.S.C. § 102(b), the credible evidence presented at the hearing indicates that the Markelov Prospectus discloses a device materially different from the Yoon trocar. See Findings of Fact, Nos. 41-45. In particular, the external mechanism for stopping the safety shield would prohibit the use of the Markelov trocar alone for any procedures requiring an air-tight valve assembly. It is clear from the '773 Patent itself that the Yoon trocar was designed to prevent the leakage of fluid, both liquid and gas. See Findings of Fact, No. 45. For this reason, I find that the Markelov Prospectus does not disclose a device that anticipates the Yoon trocar.
(iv) Best Mode
Finally, defendant argues that the '773 Patent is invalid because it did not disclose a safety shield locking mechanism which, according to defendant, violates the "best mode" doctrine of 35 U.S.C. § 112.[2] The purpose of this requirement is "to ensure that the public, in exchange for the rights given the inventor under the patent laws, obtains from the inventor a full disclosure of the preferred embodiment of the invention." *502 Dana Corp. v. IPC Ltd. Partnership, 860 F.2d 415, 418 (Fed.Cir.1988), cert. denied, 490 U.S. 1067, 109 S. Ct. 2068, 104 L. Ed. 2d 633 (1989). Defendant appears no longer to be pressing this argument. Compare Defendant's Pre-Hearing Memorandum in Opposition to Plaintiffs' Motion for a Preliminary Injunction (filed Aug. 31, 1990) at 14-15 with Defendant's Post-Hearing Memorandum in Opposition to Plaintiffs' Motion for a Preliminary Injunction (filed Dec. 4, 1990) at 3-12. In any event, the credible testimony at trial shows that, at least at the time Yoon applied for the patent, there was some doubt concerning the "best mode" of practicing the invention. See Findings of Fact, Nos. 46-48.
(v) Summary
For the reasons stated above, I find that plaintiffs are likely to succeed at trial in proving by a preponderance of the evidence that the '773 Patent is valid.
b. Infringement
In order to establish that the Surgiport infringes a claim of the '773 Patent, Ethicon would have to show at trial that each element of the claim is found in the Surgiport. In interpreting patent claims, the court ought to give words their ordinary meaning unless there is evidence that the inventor intended to use them differently. ZMI Corp. v. Cardiac Resuscitator Corp., 844 F.2d 1576, 1579 (Fed.Cir.1988); Envirotech Corp. v. Al George, Inc., 730 F.2d 753, 759 (Fed.Cir.1984). Plaintiffs have limited their infringement action to Claims 50 and 34 of the '773 Patent.
(i) Claim 50
Both parties are in agreement that the only issue on the question of "literal" infringement of Claim 50[3] is whether the phrase "longitudinal interior passage" means that the safety shield must permit the obturator to be inserted and removed from the shield or whether the phrase means that the shield must permit the obturator to move back and forth within the shield.[4] Plaintiffs assert that there is nothing in the language of Claim 50 discussing the removal of the obturator, and they insist that defendant is purporting to add an additional element to the Claim that would affirmatively require that the obturator be removed from both the cannula and the safety shield. "Modification by mere addition of elements of functions, whenever made, cannot negate infringement without disregard of the long-established, hornbook law...." Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 1482 (Fed.Cir.), cert. denied, 469 U.S. 924, 105 S. Ct. 306, 83 L. Ed. 2d 240 (1984) (emphasis in original).
Defendant rejects this characterization of its defense, arguing that the plain language of element 3 of the Claim means that the obturator can be removed from the safety shield something that simply cannot be done with the Surgiport. Based on *503 the credible evidence presented at the hearing, see Findings of Fact, Nos. 49-57, I am persuaded that the Surgiport does not infringe Claim 50 of the '773 Patent. "To determine whether a claim limitation is met literally, where expressed as a means for performing a stated function, the court must compare the accused structure with the disclosed structure, and must find equivalent structure as well as identity of claimed function for that structure." Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931 (Fed.Cir.1987), cert. denied, 485 U.S. 961, 108 S. Ct. 1226, 99 L. Ed. 2d 426 & 485 U.S. 1009, 108 S. Ct. 1474, 99 L. Ed. 2d 703 (1988). In light of the fact that the Yoon trocar was intended to have an obturator that passed through both the shield and cannula, see Findings of Fact, No. 55, the credible evidence presented at the hearing indicates that the phrase "longitudinal interior passage" means a device where the obturator passes into and out of the cannula/shield unit. This interpretation is justified further by the fact that when the drafters of the patent specifically intended to mean "back and forth" movement, they used the phrase "reciprocating longitudinally." See Findings of Fact, No. 54.
(ii) Claim 34
As in the case of Claim 50, the parties are in essential agreement on the precise question with respect to the infringement of Claim 34[5]: Does the Claim require the obturator to be inserted into the cannula and into the safety shield at the same time?[6] Plaintiffs rely on the proposition that "[i]nfringement is not avoided by a mere reversal or transposition of parts or components, or a mere change in form without a change in function." Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 671 F. Supp. 1369, 1399 (S.D.N. Y.1987), aff'd, 868 F.2d 1251 (Fed.Cir.1989). Defendant argues, however, that element 2 in Claim 34 "inserting an elongate implement having a sharp distal end axially into said elongate member and said reciprocating member until said sharp distal end is positioned inside said bearing surface and inside said elongate member distal end" ought to be interpreted in light of the fact that Yoon amended the Claim during the prosecution of the patent specifically to include the words "and said reciprocating member." See Findings of Fact, No. 60.
Based on the credible evidence presented at the hearing, I find that Claim 34 means that the obturator should be inserted into the cannula and the shield at the same time. The fact that Yoon deliberately amended the Claim to include the limitation that the obturator be inserted into the cannula and into the safety shield suggests that it is proper to interpret the method Claim as requiring the simultaneous insertion of the obturator into both the cannula and the safety shield. Because it is impossible in the Surgiport to insert the obturator into the cannula and the safety shield at the same time, see Findings of Fact, Nos. 61 & 64, the Surgiport does not infringe Claim 34 of the '773 Patent.
*504 (iii) Doctrine of Equivalents
Under the doctrine of equivalents, "infringement may be found (but not necessarily) if an accused device performs substantially the same overall function or work, in substantially the same way, to obtain substantially the same overall result as the claimed invention." Pennwalt, 833 F.2d at 934 (footnote omitted and emphasis in original). An invention that is not "a wholly novel device, or one of such novelty and importance as to mark a distinct step in the progress of the art, as distinguished from a mere improvement or perfection of what had gone before," Westinghouse v. Boyden Power Brake Co., 170 U.S. 537, 562, 18 S. Ct. 707, 718, 42 L. Ed. 1136 (1898), is not "pioneering," and such a device would be entitled to a narrower range of equivalents than would a pioneering invention. See Perkin-Elmer Corp. v. Westinghouse Elec. Corp., 822 F.2d 1528, 1532-33 (Fed.Cir.1987); Findings of Fact, No. 62.
There are significant medical differences between the functioning of the Yoon trocar and that of the Surgiport, see Findings of Fact, Nos. 64-69, and these differences are sufficient to avoid infringement under the doctrine of equivalents. Whether the safety shield remains inside the cannula (as in the Yoon trocar) or is removed with the obturator (as in the Surgiport) has a significant effect on the width of the path of entry for endoscopes and other instruments. In order to use the same size instruments as with the Surgiport, a surgeon would be required to use a Yoon trocar with a larger diameter. The Yoon trocar would require an increase in the size of the incision. See Findings of Fact, No. 65. The safety shield in the Yoon trocar protrudes beyond the cannula while in the body, impairing vision during laparoscopy and permitting air leakage which can lead to painful complications. See Findings of Fact, Nos. 66-67. Furthermore, the Surgiport's cutting tip is protected when the obturator/safety-shield assembly is removed from the patient, protecting the surgical staff from cuts and diseases. See Findings of Fact, No. 69. In sum, the Surgiport does not infringe the '773 Patent under the doctrine of equivalents.
(iv) Summary
For the reasons stated above and based on the full record before me, I find that plaintiffs are not likely to succeed in proving by a preponderance of the evidence that the Surgiport infringes Claims 50 or 34 of the '773 Patent or that the Surgiport infringes the '773 Patent under the doctrine of equivalents.
c. Conclusion
For all of the reasons stated above, plaintiffs have failed to show that there is a reasonable likelihood that they will prove at trial by a preponderance of the evidence that defendant has infringed the '773 Patent. Although plaintiffs are likely to prevail on the question of validity that is, defendant is not likely to prove by clear and convincing evidence that the '773 Patent is invalid plaintiffs have not shown a reasonable likelihood of success on the merits of their infringement claim.
2. Irreparable Harm
A patentee who has made a strong showing of likelihood of success in proving infringement is entitled to a presumption of irreparable harm; however, this presumption is rebuttable. Illinois Tool Works, Inc. v. Grip-Pak, Inc., 906 F.2d 679, 682 (Fed.Cir.1990); Roper Corp. v. Litton Sys., Inc., 757 F.2d 1266, 1272 (Fed.Cir.1985). The court's conclusion that plaintiffs have failed to demonstrate a reasonable likelihood of success on the merits arguably obviates the need for any further discussion. Even had plaintiffs made a reasonable showing of a likelihood of success a conclusion which I believe is not supported by the evidence the presumption of irreparable harm "requires at a minimum a strong showing of both patent validity and infringement." Chrysler Motors Corp. v. Auto Body Panels, Inc., 908 F.2d 951, 954 (Fed.Cir.1990) (emphasis added).
Plaintiffs have presented evidence suggesting that defendant's continued dominance of the market will permit surgeons to become accustomed to using and buying the Surgiport. See Findings of Fact, No. 70. Surgeons, once they become *505 used to using a particular product, are not generally comfortable with switching to an equivalent product. See Findings of Fact, No. 71.
However, the credible evidence presented at the hearing does not support plaintiffs' claim of irreparable harm. First, plaintiffs waited over one year after acquiring the rights to the '773 Patent to file their motion for preliminary injunction, see Findings of Fact, Nos. 3 & 82, making implausible plaintiffs' assertions of serious, non-compensable injury. Even were it appropriate to apply the presumption of irreparable harm to this case, the presumption is substantially rebutted by the plaintiffs' delay in seeking an injunction. See T.J. Smith & Nephew, Ltd. v. Consolidated Medical Equip., Inc., 821 F.2d 646, 648 (Fed.Cir. 1987). Plaintiffs' argument that they wanted to wait until they had a product to offer in place of the Surgiport before filing suit nonetheless undermines their claim for extraordinary relief. If they could afford to wait over one year to bring suit when they had no product in the market, they ought to be able to wait until trial now that they have introduced their alternative to the Surgiport.
3. Balance of Hardship
Since the introduction of the Surgiport in 1987, defendant has developed the market through a combination of innovation and education. See Findings of Fact, Nos. 84-87. The effect on defendant of the issuance of the preliminary injunction would be devastating to its business. See Findings of Fact, No. 90.
Plaintiffs have argued that defendant has willfully infringed the patent and that it acted in bad faith throughout the negotiations with Yoon. See Plaintiffs' brief on '773 Patent at 15-20. The court has already concluded that, on the record as it currently stands, defendant has not infringed the '773 Patent. Therefore, there is certainly no question of a willful infringement. Furthermore, the credible testimony presented at the hearing suggests that USSC negotiated with Yoon in good faith and that the fact that no agreement between USSC and Yoon was reached was at least as much Yoon's fault as it was defendant's. See Findings of Fact, Nos. 73-83. The balance of hardships on this motion does not tip in plaintiffs' favor.
4. Public Interest
While there are differences between USSC's Surgiport and Ethicon's Endopath, these differences are not substantial. See Findings of Fact, No. 89. Although USSC has certain products that are not yet available in Ethicon's product line, see Findings of Fact, No. 87, Ethicon's products are somewhat more flexible in that they are made to accommodate surgical instruments of more than one size, see Findings of Fact, Nos. 6 & 88. The public has an interest in competition between these two highly respected and innovative companies. Plaintiffs have failed to show that issuing a preliminary injunction that would force USSC to halt all production of the Surgiport would serve the public interest.
5. Summary
For all of the reasons stated above and based on the full record before me, plaintiffs' Motion for Preliminary Injunction (filed Aug. 15, 1990) is denied.
B. '030 Patent
To prevail on its motion for preliminary injunction, defendant must show that (1) there is a reasonable likelihood that it will prove at trial by a preponderance of the evidence that Ethicon has infringed the '030 Patent and that it will bear its burden on the question of the patent's validity; (2) it is currently being irreparably harmed; (3) the balance of hardships tips in its favor; and (4) the issuance of a preliminary injunction is in the public interest.
1. Likelihood of Success on the Merits
In order to justify granting defendant's motion for preliminary injunction, the court must be satisfied that defendant is likely to succeed at trial to prove by a preponderance of the evidence both that the '030 *506 Patent is valid and that Ethicon's Endopath infringes the patent.
a. Validity
Ethicon's invalidity defense rests on two arguments: (1) Ethicon claims that the '030 Patent is obvious in light of the '773 Patent; and (2) Ethicon argues that the '030 Patent is invalid because the invention was "in public use" more than one year before the filing of the patent application.
(i) Obviousness
Under the patent law, an invention that is "obvious" in light of prior art cannot be patented.[7] "The test is whether the subject matter of the claimed inventions would have been obvious to one skilled in the art at the time the inventions were made, not what would be obvious to a judge after reading the patents in suit and hearing the testimony." Panduit Corp. v. Dennison Mfg. Co., 774 F.2d 1082, 1092 (Fed.Cir.1985), vacated on other grounds, 475 U.S. 809, 106 S. Ct. 1578, 89 L. Ed. 2d 817 (1986). Plaintiffs claim that the cutting tip/safety shield configuration of the Moll trocar would have been obvious in light of the specification in the '773 Patent that the safety shield may "provide a smooth transition and thereby facilitate penetration of the inner and outer sleeves through a puncture wound." PX (DX 44) ('773 Patent), col. 15, lines 60-63. Defendant rejects this argument, insisting that it is the structure claimed in the patent the triangular-shaped opening and the positioning of the retracted safety shield not the purpose of the patent itself that ought to be the subject of inquiry on the question of obviousness. See USSC's Post-Hearing Reply Memorandum in Further Support of its Motion for a Preliminary Injunction (filed Feb. 26, 1991), at 2 & n. 2.
Based on the credible evidence at trial, I find that the triangular-shaped safety shield opening and the shield's position when fully retracted are not "obvious" in light of the prior art. See Findings of Fact, Nos. 94-96. Even if the question of obviousness were uncertain and I do not believe that the evidence leaves much doubt on this score the court ought to presume that the patent is valid absent "clear and convincing evidence" of obviousness. See id. at 1097; see also Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 872 (Fed.Cir.1985) (presumption of validity is particularly important where obviousness question is "close"). Defendant is likely to prevail at trial in proving that the '030 Patent was not "obvious" in light of prior art.
(ii) Prior Use
Plaintiffs argue that the '030 Patent is invalid because there was at least one public use of the Endoport before February 24, 1985.[8]See Findings of Fact, No. 97. A public use is "any use of [the] invention by a person other than the inventor who is under no limitation, restriction or obligation of secrecy to the inventor." In re Smith, 714 F.2d 1127, 1134 (Fed.Cir. 1983). Plaintiffs argue that the surgeons who used the Endoport in February 1985 did not sign confidentiality agreements and that, therefore, the Endoport was in public use prior to the critical date. In addition, they argue that prior laboratory tests had already demonstrated that the Endoport worked for its intended purpose and that the invention had already been "reduced to practice" by the time these alleged experimental uses occurred.
Under the patent laws, the period of "experimental use" continues until after the inventor "conducts tests needed to convince himself that the invention is capable of performing its intended purpose in its intended environment." Gould Inc. v. United States, 579 F.2d 571, 583, 217 Ct. Cl. 167 *507 (1978); see Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 550-51 (Fed.Cir.1990). Prior to the February 1985 experiments, Endo had not tested the Endoport on human beings. See Findings of Fact, No. 97. The credible evidence presented at trial suggest conclusively that these tests were experimental and that they were conducted confidentially. See Findings of Fact, No. 98. There was no public use of the Endoport before February 24, 1985.
(iii) Summary
For the reasons stated above and based on the full record before me, I find that defendant is likely to succeed at trial in proving by a preponderance of the evidence that the '030 Patent is valid.
b. Literal Infringement
Defendant has limited its claim of infringement to Claim 1 of the '030 Patent.[9] The questions on literal infringement are the following: (1) Does the Endopath have a pyramidal cutting head with a triangular base? (2) Does the Endopath's safety shield have a "triangular-shaped opening"? (3) Does the Endopath have "three generally parabolically shaped bevels"? and (4) Is the Endopath's safety shield in "general registry" with the base of the cutting head when the shield is retracted?
(i) Triangular Base
Defendant argues that the Endopath infringes the first element of Claim 1 of the '030 Patent because the Endopath's cutting tip "has a pyramidal portion, which has three planar surfaces." USSC's Post-Hearing Memorandum in Support of its Motion for a Preliminary Injunction (filed Feb. 5, 1991) ("Defendant's Memorandum") at 6. Plaintiffs argue that the base of the cutting head is cylindrical not triangular because the cutting tip merges smoothly into the obturator shaft. Plaintiff Ethicon's Post-Hearing Memorandum of Law in Opposition to Defendant's Counter-Motion for a Preliminary Injunction Corrected Copy (filed Feb. 21, 1991) ("Plaintiffs' Opposition") at 12.
The credible evidence presented at the hearing supports plaintiffs' interpretation of the language of the claim. See Findings of Fact, Nos. 102-03. There is no line segment connecting the proximal ends of the cutting edges of the Endopath which, when connected, would form the "base" of the cutting head. At a minimum, it is a close question. It is not now likely that defendant will succeed by a preponderance of evidence at trial to prove that the base of the Endopath "cutting head" is "triangular."
(ii) Triangular-Shaped Opening
Defendant argues that the Endopath infringes the second element of Claim 1 because the safety shield has a "triangular-shaped opening to receive [the cutting] head." The testimony at the hearing focused primarily on the question of whether the phrase "triangular-shaped opening" required a mathematically precise triangle as in the case of the Moll trocar itself or whether "triangular" simply means that it generally resembles a triangle. Plaintiffs have argued that the "opening" of the Endopath safety shield is three dimensional because it is cut out of a sphere. See Plaintiffs' Opposition at 2. A triangle is a two-dimensional figure; by definition, a three-dimensional opening cannot be triangular.
The credible testimony presented at trial supports plaintiffs' position. See Findings of Fact, Nos. 104-05. Defendant understands the adjective "triangular" to mean something less precise than the noun "triangle," and (at a minimum) this simply makes no grammatical sense. Even if the two-dimensional projection of the Endopath safety shield opening could be characterized *508 as "triangular," this projection does not represent the "opening" of the safety shield. The opening is three-dimensional; it is cut into a sphere. See Findings of Fact, No. 105. The opening is not triangular-shaped.
(iii) Parabolically Shaped Bevels
Defendant argues that the Endopath infringes the third element of Claim 1 because it has a safety shield the opening of which is "formed by the bases of three generally parabolically shaped bevels in the front edge of the shield." Defendant argues that the Endopath has two sets of bevels: the "bulges" on the outside of the shield and the "generally parabolically shaped bevels" on the inside of the shield. See Defendant's Memorandum at 9. Although the Moll trocar itself has six parabolically shaped bevels (three inside, three outside), defendant argues that the Endopath infringes this element of Claim 1 because the Claim only requires that the opening be formed by three generally parabolically shaped bevels. Id., n. 6.
Plaintiffs insist, however, that the purpose of the bevels is to provide a smooth transition between the tip and the shield in order to reduce penetration force, and this makes sense only if the bevels to which the patent refers are on the outside of the safety shield. See Plaintiffs' Opposition at 9. The credible evidence presented at the hearing generally supports plaintiffs' argument. See Findings of Fact, Nos. 106-09. Even if the "bulges" could properly be characterized as bevels that are parabolically shaped, the three-dimensional opening of the Endopath safety shield simply cannot be formed by the bases of these bevels.
(iv) General Registry
Defendant's final argument on literal infringement is that the opening of the Endopath safety shield is in "general registry" with the base of the cutting head when the shield is in its retracted position. Plaintiffs argue that even if the base of the cutting head were properly considered to be "triangular" a conclusion that the court has already rejected the three-dimensional opening of the safety shield cannot be in general registry with the two-dimensional triangular base.
The credible evidence presented at the hearing supports plaintiffs' contention. See Findings of Fact, No. 112. Defendant argues that the tips of the three arcs at the distal end of the Endopath safety shield are in "general registry" with the base of the cutting tip, but the "opening" of the safety shield is not defined simply by the tips of the three arcs. The opening of the Endopath safety shield is three-dimensional, see Findings of Fact, No. 105, and it is defined by the curves of three arcs at the distal end of the safety shield. There is no question that the three curves of the arcs are not in general registry with the base of the cutting head.
c. Doctrine of Equivalents
Defendant argues that, even if the Endopath does not literally infringe Claim 1 of the '030 Patent, the differences between them are so insignificant that the Endopath infringes the patent under the doctrine of equivalents. By having the opening of the safety shield conform to the pyramidal cutting head and by having the shield retract only to the base of the cutting head, the Moll trocar requires less force to penetrate the body wall. Defendant claims that the Endopath performs this same function reduction of penetration force in substantially the same way, by creating a relatively smooth transition from the cutting head to the safety shield and by retracting the shield only to the base of the head.
Plaintiffs assert that the Endopath safety shield does not perform the function of reducing the penetration force indeed, plaintiffs suggest that the shape of the shield actually increases the penetration force. Instead, the "bullet-nosed" design was intended to reduce the trauma to surrounding tissue as the trocar is inserted into the body wall. See Findings of Fact, Nos. 114-16. Furthermore, the decision to decrease the distance that the safety shield would have to travel from its fully retracted position to a position fully covering the sharp end of the obturator and the decision to increase the force of the spring were *509 made for the purpose of minimizing the time it would take for the safety shield to cover the obturator point. See Findings of Fact, No. 116.
Defendant's reliance on the advertisement announcing that the Endopath was "designed for easy penetration" is misplaced, for this is perfectly consistent with plaintiffs' claim that the purpose of the Endopath's design was to accomplish a less traumatic penetration. See Findings of Fact, No. 118. Similarly, Ethicon's European patent application nowhere claims that the design of the Endopath's safety shield reduces penetration force. See Findings of Fact, No. 119. In sum, defendant is not likely to succeed at trial in demonstrating that the Endopath and the Moll trocar perform substantially the same function in substantially the same way to achieve substantially the same result.
d. Summary
For all of the reasons stated above, defendant has failed to show that there is a reasonable likelihood that it will prove at trial by a preponderance of the evidence that plaintiffs have infringed the '030 Patent. Although defendant is likely to prevail on the question of validity that is, plaintiffs are not likely to prove by clear and convincing evidence that the '030 Patent is invalid defendant has not shown a reasonable likelihood of success on the merits of its infringement claim.
2. Irreparable Harm
Defendant relies on the presumption of irreparable harm that would flow from a strong showing of likelihood of success on the merits of its infringement claim. See, e.g., H.H. Robertson Co. v. United Steel Deck, Inc., 820 F.2d 384, 390 (Fed.Cir.1987). As in the case of the '773 Patent, the moving party has failed even to make a reasonable showing of likelihood of success on the merits; without a strong showing, no presumption of irreparable harm is warranted. Chrysler Motors Corp. v. Auto Body Panels, Inc., 908 F.2d 951, 954 (Fed.Cir.1990).
Defendant claims that it has presented independent evidence of harm for which no amount of monetary relief would be sufficient compensation. Defendant's Memorandum at 17. While it is certainly possible that USSC may lose customers to Ethicon as a result of the Endopath's "bullet-nosed" safety shield, this would not, standing alone, constitute irreparable harm to a company controlling approximately 95% of the total market. See Findings of Fact, No. 70.
3. Balance of Hardships
Defendant argues that, because Ethicon has been in the disposable trocar market for a comparatively short period of time and because Ethicon would not be prevented from reintroducing a disposable trocar with a different tip and safety-shield configuration, plaintiffs would not suffer undue hardship were defendant's cross-motion for preliminary injunction granted.
Defendant currently controls most of the market for disposable trocars, and should the court grant its motion, it would effectively enjoy a monopoly until plaintiffs were able to reintroduce an alternatively designed trocar. See Findings of Fact, No. 122. Under these circumstances, I cannot conclude that the balance of hardships tips in defendant's favor.
4. Public Interest
As already discussed with respect to the '773 Patent, the public interest in a free and open competition between two exceptional companies is significant. While "public policy favors protection of the rights secured by the valid patents," Smith Int'l, Inc. v. Hughes Tool Co., 718 F.2d 1573, 1581 (Fed.Cir.), cert. denied, 464 U.S. 996, 104 S. Ct. 493, 78 L. Ed. 2d 687 (1983), the court has already found that defendant is not likely to prove at trial that its "rights secured by the valid patent" are being infringed by plaintiffs' trocar. Under these circumstances, the public interest is in the continuing competition between the parties.
5. Summary
For the reasons stated above and based on the full record before me, defendant's *510 Motion for Preliminary Injunction (filed Aug. 16, 1990) is denied.
IV. CONCLUSION
To summarize:
(1) Ethicon is reasonably likely at trial to sustain its burden in showing that the '773 Patent is valid;
(2) Ethicon is not reasonably likely at trial to prevail on its claim of infringement;
(3) Ethicon has failed to show that it is being irreparably harmed by USSC's sale of the Surgiport;
(4) Ethicon has not shown that the balance of hardships tips in its favor; and
(5) Ethicon has not shown that this injunction would be in the public interest.
For all of the reasons stated above, plaintiffs' Motion for Preliminary Injunction (filed Aug. 15, 1990) is DENIED.
(1) USSC is reasonably likely at trial to sustain its burden in showing that the '030 Patent is valid;
(2) USSC is not reasonably likely at trial to prevail on its claim of infringement;
(3) USSC has failed to show that it is being irreparably harmed by Ethicon's sale of the Endopath;
(4) USSC has not shown that the balance of hardships tips in its favor; and
(5) USSC has not shown that this injunction would be in the public interest.
For all the reasons stated above, defendant's Motion for Preliminary Injunction (filed Aug. 16, 1990) is DENIED.
It is so ordered.
NOTES
[1] The relevant portion of section 102(b) reads as follows: "A person shall be entitled to a patent unless ... the invention was patented or described in a printed publication in this or a foreign country ... more than one year prior to the date of the application for patent in the United States." 35 U.S.C. § 102(b) (1988).
[2] The relevant portion of section 112 reads as follows: "The specification shall ... set forth the best mode contemplated by the inventor of carrying out his invention." 35 U.S.C. § 112 (1988).
[3] Claim 50 reads as follows:
A surgical instrument for providing communication through an anatomical organ structure, comprising:
[1] means having a shaft terminating in a sharp distal end for puncturing an anatomical structure when subjected to force along the longitudinal axis of said shaft;
[2] means having a length less than a length of said puncturing means, including a first sleeve defining a first lumen for accommodating longitudinal interior passage of said puncturing means through said first lumen;
[3] shielding means including a second sleeve defining a second lumen permitting longitudinal interior passage of said shaft inside said second lumen, having a bearing surface at its distal end protrusible beyond the distal end of said first lumen, said bearing surface tapering radially inward to form a close fit around said shaft, for reciprocating longitudinally within said first lumen between said accommodating means and said shaft; and
[4] means contacting said shielding means for biasing a section of the distal end of said shielding means to protrude beyond the distal end of said first lumen and permitting said section of said shielding means to recede towards the proximal end of said accommodating means when said bearing surface is subjected to force along its longitudinal axis.
PX 8 (DX 44) (copy of '773 Patent), col. 26, lines 36-63 (emphasis added).
[4] See Post Trial Brief of Plaintiffs (filed Nov. 20, 1990) ("Plaintiffs' Brief on '773 Patent") at 1; Defendant's Post-Hearing Memorandum in Opposition to Plaintiffs' Motion for a Preliminary Injunction (filed Dec. 4, 1990) ("Defendant's Memorandum on '773 Patent") at 12.
[5] Claim 34 reads as follows:
A method for providing communication through an anatomical organ structure, comprising the steps of:
[1] biasing an axial reciprocating member having a distal end bearing surface to assume a rest position with said bearing surface extending beyond the distal end of an elongate member encircling and receiving said bearing surface;
[2] inserting an elongate implement having a sharp distal end axially into said elongate member and said reciprocating member until said sharp distal end is positioned inside said bearing surface and inside said elongate member distal end;
[3] placing said reciprocating member against the cavity wall of an anatomical organ structure;
[4] pushing said reciprocating member against the cavity wall until said reciprocating member assumes a suspense position between said elongate member and said elongate implement wherein said sharp distal end touches said cavity wall;
[5] forcing said sharp distal end through said cavity wall until said bearing surface reaches the boundary between said cavity wall and the interior of said cavity; and
[6] permitting said reciprocating member to assume said rest position within the interior of said cavity.
PX 8 (DX 44) ('773 Patent), col. 23, line 56 to col. 24, line 13.
[6] See Plaintiffs' Brief on '773 Patent at 8; Defendant's Memorandum on '773 Patent at 14.
[7] "A patent may not be obtained ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." 35 U.S.C. § 103 (1988).
[8] "A person shall be entitled to a patent unless ... the invention was ... in public use ... more than one year prior to the date of the application for patent in the United States." 35 U.S.C. § 102(b) (1988). Endo applied for the patent on February 24, 1986. See Findings of Fact, No. 92.
[9] The relevant portion of Claim 1 reads as follows:
[1] the piercing tip has a pyramidal cutting head that has a triangular base and
[2] the protective shield has a triangular-shaped opening to receive said head
[3] said opening being formed by the bases of three generally parabolically shaped bevels in the front edge of the shield and
[4] being in general registry with the base of the head when the shield is in said retracted position.
PX 25 (DX 102) ('030 Patent), col. 6, lines 11-17. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/538019/ | 898 F.2d 145Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Robert Allen GOODEN, Plaintiff-Appellant,v.TOWN OF CLARKTON, NC, A municipal corporation; LindaRevels; Steve Prince; Lawrence McDougald, FormerCommissioners, Town of Clarkton; Wade Tart; Roy Butler,Cathy McEwen, Present Commissioners, Town of Clarkton; W.A.Hall, Building Inspector, Town of Clarkton; Ralph Smith,Chief of Police, Town of Clarkton; Dan Meshaw, individuallyand as Mayor, Town of Clarkton; TOMMY BAYSDEN, and theirsuccessors in office, Defendants-Appellees.Robert Allen GOODEN, Plaintiff-Appellant,v.W.A. HALL, Building Inspector, Town of Clarkton, NorthCarolina, Defendant-Appellee,andTown of Clarkton, NC, A municipal corporation; LindaRevels; Steve Prince, Lawrence McDougald, FormerCommissioners, Town of Clarkton; Wade Tart; Roy Butler;Cathy McEwen, Present Commissioners, Town of Clarkton; DanMeshaw, individually and as Mayor, Town of Clarkton; TommyBaysden, and their successors in office; Ralph Smith, Chiefof Police, Town of Clarkton, Defendants.
Nos. 88-3630, 89-2019.
United States Court of Appeals, Fourth Circuit.
Argued: Oct. 30, 1989.Decided: March 7, 1990.Rehearing and Rehearing In Banc Denied March 30, 1990.
Appeals from the United States District Court for the Eastern District of North Carolina, at Wilmington. Franklin T. Dupree, Jr., Senior District Judge. (CA-87-56-CIV-7).
Argued: Joseph Michael McGuinness, Swartz & Swartz, Boston, Mass., for appellant.
Hoyt Gold Tessener, Womble, Carlyle, Sandridge & Rice, Raleigh, N.C., for appellees.
On Brief: Marland C. Reid, Gregory Kornegay, Law Student, Reid, Lewis & Deese, Washington, D.C., for appellant.
E.D.N.C.
AFFIRMED.
Before PHILLIPS and WILKINSON, Circuit Judges, and JAMES C. FOX, United States District Judge for the Eastern District of North Carolina, sitting by designation.
PER CURIAM:
1
These consolidated appeals arise from an action filed by plaintiff-appellant Robert Gooden against the Town of Clarkton, North Carolina, and various town officials. Appellant alleges that defendants violated his substantive due process and equal protection rights by refusing to give him a permit to rebuild a condemned structure owned by his parents, and violated his Fourth Amendment rights by arresting him for building without a permit. He also advances various state law claims, among them that defendant Hall's disparaging reference to him as a homosexual was defamatory and constituted the intentional infliction of emotional distress.
2
We affirm the district court's judgment for defendants both on the constitutional and state claims in this case.
I.
3
On September 15, 1982, a fire destroyed a wood frame structure owned by plaintiff's parents and known as Lee's Grill in Clarkton, North Carolina. Plaintiff Robert Gooden, a resident of California, was operating Lee's Grill because his father was ill. After the fire, defendant Hall, the local building inspector, condemned the Lee's Grill building because he determined that it was more than 50 percent destroyed. See N.C. State Building Code Secs. 102(d)(2) & 105.12 (1984); N.C.Gen.Stat. Sec. 160A-426 (1987).
4
The building remained unused until the spring of 1985 when plaintiff began using it for storage and recreational purposes. Subsequently, plaintiff's mother Gertrude Gooden, who still owned the building, received a letter informing her of the condemnation and requesting that she appear at a public hearing. Both plaintiff and his mother attended the hearing. Eventually Mrs. Gooden received an approximately $70,000 insurance settlement on the property based upon a determination that it was almost totally destroyed.
5
On June 20, 1985, Hall obtained a warrant for plaintiff's arrest because Gooden had violated a stop order forbidding him to move or reconstruct the condemned building without a permit. See N.C.Gen.Stat. Sec. 160A-417; N.C. State Building Code Sec. 105.3(b). Gooden was not incarcerated and was released on his promise to return for trial. The criminal charges were eventually dismissed.
6
The Town of Clarkton subsequently filed a civil action against plaintiff on June 25, 1985, seeking to enjoin Gooden from performing any further work on the Lee's Grill building, and ordering that it be demolished. An official notice of condemnation was posted on the structure. The condemnation was later rescinded, however, along with all other condemnation actions by any Clarkton official, pending an investigation by the Town Council.
7
On May 12 and 13, 1986, plaintiff requested a building permit to perform further work on the condemned structure, but submitted no plans or specifications. North Carolina law requires that applicants provide specifications and drawings at the discretion of the Inspection Department. N.C. State Building Code Sec. 105.4(c). Defendant Hall indicated that he would not grant plaintiff's request until plans and specifications were submitted.
8
On August 12, 1986, defendant Baysden, the town trash collector, publicly assaulted plaintiff by striking him about the head, shoulders and stomach. Plaintiff and Baysden each secured warrants charging each other with assault. Baysden pled guilty to the criminal charges brought against him in Bladen County District Court. The charges against plaintiff were dismissed. The retention by the Town of Clarkton of defendants Hall and Baysden is the basis of plaintiff's negligent retention claim.
9
Plaintiff brought suit in United States District Court for the Eastern District of North Carolina against defendants Town of Clarkton and various officials and employees of the town in their individual and official capacities alleging federal and state constitutional claims (denial of the right to due process, equal protection, and freedom from unreasonable seizure) and state tort claims (malicious prosecution and abuse of process, defamation, assault and battery, negligent retention of town employees, and intentional infliction of emotional distress).
10
The district court granted summary judgment in favor of defendants on plaintiff's substantive due process and equal protection claims and on his claims of unreasonable seizure, malicious prosecution, abuse of process, and negligent retention. The intentional infliction claim against defendant Hall was tried to a jury which found for plaintiff and awarded $20,000 in compensatory and $10,000 in punitive damages. Subsequently, the district court granted defendant Hall's motion for judgment notwithstanding the verdict. This appeal followed.*
II.
11
Appellant argues that defendants' actions violated various of his constitutional rights and that the Town of Clarkton negligently retained employees Baysden and Hall despite their alleged misconduct. The district court fully considered and rejected these claims and we agree with the court's analysis. Plaintiff's substantive due process and equal protection claims fail because he did not meet the statutory requirements for a building permit. Gooden was neither the owner of the property in question, nor did he submit plans and specifications as required by the North Carolina State Building Code. See N.C. State Building Code Secs. 105.4-5 & 302.4. Thus, any denial of such a permit by defendant could not violate Gooden's constitutional rights. It simply cannot be argued that Hall was "arbitrary and capricious" in denying the permit, see Marks v. City of Chesapeake, 883 F.2d 308, 310-11 (4th Cir.1989), since plaintiff had no legitimate claim to it. Allegations of a denial of due process ring hollow unless plaintiff possesses some underlying right or interest of which he could be deprived. The equal protection claim amounts to little more than a rehash of plaintiff's due process contentions. Plaintiff simply failed to show that similarly situated individuals were given building permits without meeting the statutory requirements.
12
Further, we agree with the district court that plaintiff's unreasonable seizure claim fails because the uncontradicted evidence shows that at the time of his arrest plaintiff was engaged in the very acts with which he was charged in the warrant. Finally, as the district court properly concluded, a negligent retention claim may not lie where the record is devoid of evidence that the Town of Clarkton had any knowledge of previous misconduct by the employees whose negligent retention is alleged.
III.
13
Appellant further argues that the motion for JNOV on his claim of intentional infliction of emotional distress against defendant Hall was improperly granted. He contends that defendant Hall engaged in a continuous course of conduct over several years with intent to cause him emotional distress. While the allegations are various, they boil down to the following: appellant alleges that Hall arbitrarily denied Gooden a building permit, called him a "queer," stated that he intended to "get" Gooden, and used a colloquial vulgarism with reference to Gooden and the district attorney. We hold, as did the district court, that none of the three elements of the claim has been established.
14
A claim of intentional infliction of emotional distress requires proof of three elements under North Carolina law: (1) extreme and outrageous conduct by the defendant, (2) which is intended to cause or recklessly does cause, (3) severe emotional distress to the plaintiff. Dickens v. Puryear, 276 S.E.2d 325, 335 (N.C.1981). The tort is reserved for conduct which is "utterly intolerable in a civilized community." Hogan v. Forsyth Country Club Co., 340 S.E.2d 116, 123 (N.C.Ct.App.1986) (quoting Restatement (Second) Torts, Sec. 46 comment (d) (1965)).
15
We agree with the district court that appellant has simply failed to satisfy the elements required to make out a claim of intentional infliction of emotional distress. First, defendant's conduct was not "extreme and outrageous." Appellant argues that defendant Hall refused to issue him a building permit in order to carry out a personal vendetta against Gooden and cause him emotional harm. However, as noted in the district court's discussion of appellant's constitutional claims, Hall's actions were entirely appropriate under the North Carolina Building Code. Gooden was neither the owner of the building nor did he submit plans and specifications as required. It would be anomalous to hold that Hall acted "outrageously" when he correctly applied the law.
16
Hall's crude remarks about appellant surely constitute offensive conduct. However, courts have not held that every instance, even of indisputably offensive conduct, gives rise to a claim of intentional infliction of emotional distress. For example, "mere insults, indignities [and] threats" are not actionable under the rubric of this tort. Hogan, 340 S.E.2d at 123 (quoting Restatement (Second) Torts, Sec. 46 comment (d) (1965)). The "law [does not] intervene in every case where someone's feelings are hurt." Id. In Johnson v. Bollinger, 356 S.E.2d 378 (N.C.Ct.App.1987), the court refused to impose liability where a defendant shook his hand in plaintiff's face, shouted profanities in a loud and offensive manner and said he would "get" plaintiff. The court reasoned that, although the behavior was offensive, the facts did not evidence the "extreme [or] outrageous conduct" necessary to make out a cause of action for intentional infliction of emotional distress. Id. at 382.
17
The instant case stands in sharp contrast to West v. King's Dept. Store, Inc., 365 S.E.2d 621 (N.C.1988), relied on by appellant. In West, the defendant store manager confronted plaintiffs in front of other customers and loudly and falsely accused them of stealing merchandise despite evidence of paid receipts. Similarly, Hall's alleged statements do not approach the situation in Woodruff v. Miller, 307 S.E.2d 176 (N.C.Ct.App.1983), also relied on by appellant. In Woodruff a long-time high school principal recovered because defendant posted a thirty-year-old criminal conviction on the local post office "Wanted" board alongside posters for unapprehended criminals. Each of the above cases involved the intentional subjection of plaintiffs to severe and excruciating public ridicule which differentiates them from cases which involve nothing more than the daily commerce in unkind comment.
18
In sum, the totality of Hall's behavior is simply not comparable to North Carolina cases imposing liability for intentional infliction of emotional distress. For example, Hall's actions did not involve sexual harassment, Hogan v. Forsyth Country Club Co., 340 S.E.2d 116 (N.C.Ct.App.1986); Brown v. Burlington Industries, Inc., 378 S.E.2d 232 (N.C.Ct.App.1989), physical abuse, Dickens v. Puryear, 276 S.E.2d 325 (N.C.1981), or harassment in the work place, Dixon v. Stuart, 354 S.E.2d 757 (N.C.Ct.App.1987); English v. General Electric Co., 683 F.Supp. 1006 (E.D.N.C.1988). While Hall's conduct merits condemnation, his acts fall within the range of "rough language, and ... occasional acts that are ... inconsiderate and unkind," but against which we all are "expected and required to be hardened." Johnson, 356 S.E.2d at 382.
19
Plaintiff fares no better on the remaining two elements of his cause of action. For example, the infliction of emotional distress must be intended. But as the district court noted:
20
Even if it were possible to consider the evidence regarding defamation in support of plaintiff's cause of action for emotional distress, plaintiff would still have the burden of proving that Hall intended by his defamatory statements to cause the plaintiff emotional distress. Here plaintiff's evidence fails him. Hall offered testimony, largely uncontradicted, that plaintiff's reputation in the Clarkton community was that he was a homosexual. This testimony by several witnesses to the effect that it was common knowledge that plaintiff was a homosexual, supports Hall's contention that he certainly did not intend to cause Gooden extreme emotional distress. Rather, it supports the inference that Hall merely intended to state what he understood to be common knowledge in the community and that in no aspect of the matter could this be considered extreme and outrageous conduct.
21
Finally, we also agree with the district court that plaintiff's evidence is insufficient to sustain a jury verdict on the element of the extremity of distress actually suffered. The record contains only plaintiff's bare assertions of loss of sleep and emotional strain, but no allegation that he sought medical attention or discussed the problem with friends and neighbors or was unable to function day to day. No corroborating evidence of mental distress was presented by plaintiff or any other witness. We cannot say that appellant has suffered emotional distress "of a very serious kind." Stanback v. Stanback, 254 S.E.2d 611, 622 (N.C.1979) (quoting Prosser, The Law of Torts, Sec. 12 (4th ed. 1971)); West, 365 S.E.2d at 625.
IV.
22
Appellant finally argues that, at the close of the evidence, the trial court improperly forced him to choose between causes of action for emotional distress and defamation. We agree that the forced election between plaintiff's claims of intentional infliction of emotional distress and defamation was inappropriate. However, much of what we have said in the previous section is pertinent to the present claim. Since the district court found evidence, largely uncontradicted, that Gooden had a reputation in the community for being a homosexual, the record does not support a cause of action for defamation. A directed verdict on this claim would thus have been warranted. See Tyson v. L'Eggs Products, Inc., 351 S.E.2d 834, 840 (N.C.Ct.App.1987) (To recover for defamation "plaintiff must allege and prove that the defendant made false defamatory statements of or concerning the plaintiff's reputation" (emphasis added).); Williams v. State Farm Mut. Auto Ins. Co., 312 S.E.2d 905, 907 (N.C.Ct.App.1984) ("To be actionable, the statement must be false.").
V.
23
For the foregoing reasons the judgment of the district court is in all respects
24
AFFIRMED.
*
The jury returned a verdict against defendant Baysden for assault and battery, slander, and malicious prosecution, and awarded damages of $55,002. Baysden did not appeal | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1619967/ | 762 F. Supp. 1310 (1990)
Anthony Kyle WINFREE, Plaintiff,
v.
MORRISON INCORPORATED d/b/a Ruby Tuesday, Defendant.
No. CIV-1-88-344.
United States District Court, E.D. Tennessee, S.D.
March 20, 1990.
Steve McKnight, John Mac Coon, Asst. U.S. Atty., Theresa Ball, U.S. Dept. of Labor, Office of the Sol., Nashville, Tenn., for plaintiff.
Cornelius R. Heusel, N. Victoria Holladay, Kullman, Inman, Bee & Downing, New Orleans, La., for defendant.
MEMORANDUM
EDGAR, District Judge.
Plaintiff Anthony K. Winfree brings this action pursuant to 38 U.S.C. § 2022 seeking wages lost as a result of defendant Morrison Incorporated's alleged violation of the Veterans Reemployment Rights Act. The Court conducted a bench trial on March 14 and 15, 1990. For the reasons that follow, this suit will be DISMISSED.
*1311 I. Facts
Morrison owns and operates various restaurants and cafeterias. Among these is a chain of restaurants known as Ruby Tuesday. Plaintiff Winfree began working at Ruby Tuesday restaurants in Knoxville, Tennessee, while he was a student there at the University of Tennessee. In early 1986, he was working at the Ruby Tuesday restaurant on Brainerd Road in Chattanooga, Tennessee, as one of several assistant managers. His immediate superior was the restaurant manager, Walter Grayson. Next above Grayson in the chain of command was Mark Ingram, the area manager, who was responsible for the Brainerd Road restaurant, as well as other Ruby Tuesday restaurants in the area.
In January 1986, Winfree advised Grayson that he had enlisted in the Marine Corps Reserves delayed entry program and that he would be leaving in June 1986 for approximately six months active duty in the Marine Corps. Prior to that time, Winfree's performance as an assistant manager had been average. From this point on, however, Winfree's service as an employee went steadily downhill.
One manifestation of this decline was that Winfree carried or possessed a number of weapons in and around the restaurant from time to time. These included a nine-millimeter Taurus pistol, an AR-15 assault rifle, a .22 rifle, and other weapons such as a butterfly knife and Japanese "throwing stars." Sometime in the spring of 1986, he was arrested by National Park Police at Lookout Mountain, Tennessee, for unlawfully carrying a .45-caliber weapon in his vehicle. At that time, Winfree also had the nine-millimeter Taurus on his person. This was apparently not detected by park police. At some point, Winfree attempted to fashion a silencer for the .22 rifle, and actually tested the silencer by shooting the weapon in the basement of the restaurant.[1] On at least one other occasion, Winfree carried a pistol into a Chattanooga bar.[2]
Winfree decided to get into the boot camp frame of mind early. He wore camouflage combat fatigues to work and obtained a burr haircut. Meanwhile, his work performance slipped noticeably. He was short tempered with other employees and developed a "hit list" which he talked about to fellow employees. Among those on the "hit list" were Grayson and Ingram. People moved up and down the list depending on what they had done to Winfree in the recent past. Even though he was an assistant manager, Winfree more than once served liquor in the restaurant to his under-aged girlfriend in violation of state law and restaurant policy.
On February 14, 1986, Winfree was given an evaluation by Grayson which, especially under the category of Management Skills, found Winfree obviously lacking. For the most part, this evaluation showed that the plaintiff "needed improvement." Listed as "totally unsatisfactory" was "Leadership." On this point, the evaluation says, "Respect of employees and managers has gone down drastically in last couple of months. No. 1 priority."
Meanwhile, Winfree and others, including a fellow employee, were vying for the attentions of a young woman. At one point, while this female was at her apartment with the other employee, Jeff Francis, Winfree came to the apartment, beat on the door, said he had an M-16 in his trunk and would kill Francis. Happily, no violence actually resulted. The young woman declined Winfree's offer of marriage but, according to Winfree, said that she would wait for him while he did his Marine Corps service.
Morrison did not terminate Winfree before he left for the Marines in June 1986. Morrison, of course, knew that Winfree *1312 was going into the Marines and just hoped that he wouldn't come back.
While Winfree was doing his tour in the Marines, he corresponded with a female friend of his, Beverly Weathers, who was a fellow assistant manager at Ruby Tuesday. When Winfree was informed that his "waiting" young woman had married a Jeff Wells, he wrote Weathers,
All of this is making me think serious weird thoughts too. Don't laugh (you probably won't since this is me) but I had thoughts of eliminating Jeff Wells before I left. Somehow, no matter what Ronna said, I still felt him to be a threat. Gee, I guess I should've listened to myself. Unfortunately, I didn't have the resources then to do the job like I do now.
In another letter, he wrote:
I really miss you and everyone at Rubes, even "Fat Boy"![3] I guess the old crew keeps thinning out. Hey, if you hear Ingram talking any shit about me let me know; if you want rid of him, let me know, I can take care of it now! Yes, the Marines will teach you to kill!
Weathers was understandably concerned about this. On the one hand, she did not want to reveal the contents of personal correspondence with her friend. On the other hand, she was very much concerned about Winfree and about what he might do to someone if he came back to work at Ruby Tuesday. She gave these letters[4] to Walter Grayson. When Winfree applied for reemployment at Ruby Tuesday in October 1986, Morrison became justifiably concerned about the safety of its employees and decided to deny Winfree reinstatement as an employee when he completed his tour of duty in November. Morrison so informed Winfree. Before Morrison made this decision, however, it obtained the advice of an attorney in Washington, D.C. who spoke with someone at the U.S. Department of Labor regarding whether Morrison was obliged to reemploy Winfree under these circumstances. Morrison received advice that it did not have to reemploy Winfree.
Morrison did not want Winfree to know that Weathers had turned over the letters because it, and Weathers, were very concerned about what Winfree might do. Morrison advised Winfree that he would not be rehired because of his "work performance and attitude." Winfree was advised not to go on company property or to contact any local or area management of the company. Winfree did so anyway twice: once to pick up an employment application and once just for the heck of it. The second time he was advised to leave. When he refused to do so, the police were called, whereupon Winfree disappeared.
The investigation conducted by the United States Department of Labor ("USDOL") of Winfree's veterans reemployment complaint was shoddy and insensitive. Morrison attempted to protect Weathers and its other employees by giving copies of the letters to USDOL personnel in Washington, D.C., rather than to the USDOL area agent, who was headquartered in Nashville, Tennessee. The area agent, apparently in a bit of turf pique, and with full knowledge of the possible risk that release of the identity of the recipient of the letters might entail, nevertheless revealed all to Winfree. To make matters worse, the regional investigator then made a phone call to Weathers wanting to know why she would do such a disloyal thing to turn over Winfree's letters to Morrison, and advised Weathers that the USDOL could obtain another job for her if she (Weathers) was being pressured by Morrison. On April 8, 1987, the USDOL, without interviewing a single Morrison management employee, advised Morrison's counsel that it had until April 22, 1987, to reinstate Winfree, or the matter would be referred to the U.S. Department of Justice for suit. This case was filed in this Court on August 19, 1988. Technically, the U.S. Attorney filed the case. However, most of the pleadings are signed by the Office of the Solicitor of the U.S. Department of Labor, and the Solicitor's *1313 Office represented Winfree in this Court at the trial.
It should also be noted that after the conclusion of its "investigation," but well before suit was filed, the USDOL knew that Gary Gerbitz, District Attorney General for Hamilton County, Tennessee, at Morrison's request had referred Winfree's letters to Mr. Walter Michulick, who has a masters degree in clinical psychology and who often consults with local law enforcement upon various matters, including threat analysis. Mr. Michulick had concluded in a report dated December 2, 1989, that:
After reading your letter and the copies of Mr. Winfree's letters, certain facts stood out. First, the contents of the letters suggest violent thoughts. We now know that he is able to take violent thoughts which most men have and reduce them to writing, thus making them more solid. This coupled with his training will allow these thoughts to be made operational. With this type of background, the only thing left before acting out, is a situation which would call for violence in his mind.
His relations with women as indicated by his letters suggests a need for security and a need to impress. If he is trying to impress, I can see little problem. If he feels that his security is being threatened, then everything is in place for him to act on it.
After he completes his training as a zealot Marine, if he is still unable to transfer his affections to "BELV" or other women, I can see his former girlfriend and Mr. Wells being at risk. I do not see the violence reaching the level of murder as a planned act. I do believe that physical contact is evident and may run its course to the point of a lethal act.
II. Legal Analysis
Winfree is entitled to the protection of the Veterans Reemployment Rights Act by virtue of 38 U.S.C. § 2024(c) in that he as a member of a reserve component of the Armed Forces, was on active duty for 12 consecutive weeks, and made timely application for reemployment.
38 U.S.C. § 2021(a)(B)(i) provides that the plaintiff "if still qualified to perform the duties of such position, be restored by such employer to the employer's successor in interest to such position or to a position of like seniority, status and pay...." 38 U.S.C. § 2021(b)(3) further provides that those who are reinstated by the employer "shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces."
It is clear that the Veterans Reemployment Rights Act is designed to protect veterans, including reservists and guardsmen, from discrimination arising from their military duties. Monroe v. Standard Oil Co., 452 U.S. 549, 558-559, 101 S. Ct. 2510, 2516, 69 L. Ed. 2d 226 (1981); Burkart v. Post-Browning, Inc., 859 F.2d 1245, 1247 (6th Cir.1988). It follows then, that if adverse action taken by the employer is not motivated by a veteran's military service, then the employee is not entitled to relief under this statute. Burkart, 859 F.2d at 1250. There is no need to determine in this case whether the burden of proof should be allocated as it is under Title VII of the Civil Rights Act of 1964, see Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), or in some other manner. Regardless of who has the burden of proof in this case, it is clear that Morrison's failure to reemploy Winfree was not causally related to his service in the United States Marine Corps. See Henry v. Anderson County, 522 F. Supp. 1112, 1115 (E.D.Tenn.1981). Morrison refused to reinstate Winfree because he was not a good performer prior to his departure and because it had genuine fears about the safety of its employees as a result of matters which occurred after he entered active duty with the Marines.
It may well be that Morrison's fears were unjustified. We can all certainly hope so. Nevertheless, under these facts, Morrison was clearly warranted in taking *1314 the action it did. There is nothing wrong with being a gung ho Marine. This country needs them. However, an employer can reasonably expect a Marine or any other serviceperson to confine military service to the military. Moreover, it goes without saying that service in the Armed Forces of this country does not include even idle talk about harming civilians.
An appropriate judgment will enter.
JUDGMENT
For the reasons expressed in the memorandum opinion filed herewith, judgment is entered for the defendant. Since the United States Department of Labor is a real party in interest, see Taylor v. Perini, 503 F.2d 899 (6th Cir.1974), costs are assessed against the United States Department of Labor in accordance with 28 U.S.C. § 2412.
SO ORDERED.
NOTES
[1] The record does not reveal whether this silencer was ever registered to Winfree as required by 26 U.S.C. § 5845(a) and 26 U.S.C. § 5861(b).
[2] The weapons were on Ruby Tuesday property in violation of company policy. The manager and other assistant managers also occasionally had weapons on the property, primarily for protection of cash receipts at the end of the day. The evidence is inconclusive as to whether the plaintiff continued to carry weapons on company property after being explicitly advised of the company policy.
[3] Store manager, Walter Grayson.
[4] Actually, one letter and a page from another letter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620754/ | 916 So. 2d 529 (2005)
William Wallace ALLRED
v.
Wiley FAIRCHILD; Fairchild-Windham Exploration Company, A Partnership; John M. Fairchild, Michael B. Moore and Mark A. Fairchild, Trustees of the Marie L. Fairchild Life Insurance Trust; B.R. Noel, Mark A. Fairchild and John M. Fairchild, Executors of The Estate of Wiley Fairchild, Deceased.
No. 2004-CA-00882-SCT.
Supreme Court of Mississippi.
December 8, 2005.
*530 Otis Johnson, Keith R. Raulston, Jackson, attorneys for appellant.
Lawrence Cary Gunn, Hattiesburg, attorney for appellees.
EN BANC.
GRAVES, Justice, for the Court.
¶ 1. William Wallace Allred ("Allred") filed suit on December 19, 1990 against Wiley Fairchild ("Fairchild") alleging that he was due a commission for services rendered in connection with the sale of oil and gas leases, minerals and royalties in a transaction hereafter referred to as the Windham Properties. To compensate Allred for his services in connection with the Windham Properties purchase, Fairchild agreed to convey to Allred a 10% interest in the properties "after payout."[1] Fairchild also agreed to keep Allred informed as to the status of the payout.
FACTS AND PROCEDURAL HISTORY
¶ 2. In the late 1980's a dispute arose between Allred and Fairchild for Fairchild's refusal to furnish payout information to Allred and for his refusal to assign Allred the 10% interest in the Windham Properties. Allred's complaint sought enforcement of the agreement of 10% interest in the Windham Properties after payout, imposition of a constructive trust, accounting, actual damages, and other relief. Fairchild admitted that he told Allred that he would pay $2,250,000.00 for the Windham Properties, but denied that there was an agreement to pay Allred a commission.
¶ 3. The case was tried in the Chancery Court of Covington County, Mississippi and on December 16, 1998, the special chancellor held that Allred was not entitled to any relief. The chancellor further found that payout of the Windham Properties had occurred in July of 1981. Allred appealed the decision to this Court.
¶ 4. On May 31, 2001, this Court reversed and remanded the chancellor's decision. On remand, the chancery court awarded Allred over $6,000,000.00. On May 22, 2003, Allred filed a costs bill with the chancery court. The costs bill was in the amount of $79,858.35. The sum of $79, 235.35 represented fees paid to Oscar Hartman ("Hartman"), an oil and gas accountant, for his work preceding and during the trials. On May 23, 2003, Fairchild filed an objection to the costs bill. Allred filed a motion for assessment of costs and response to defendant's objection.
¶ 5. The chancery court rendered its opinion on Allred's motion for the assessment of fees to Hartman as costs and denied the motion. On April 1, 2004, the *531 chancery court found that there were no exceptional circumstances to warrant Allred's recovery of the fees paid to Hartman and declined to grant the fees to Allred.
On April 29, 2004, Allred filed an appeal to this Court, raising two issues:
I. The chancery court erred in finding that there were no exceptional circumstances that would authorize the chancery court to exercise discretion and grant accounting fees as expenses to Allred.
II. The chancery court erred in finding that there was no evidence to show that the accountant's fees were reasonable.
DISCUSSION
I. Whether the chancery court erred in finding that there were no exceptional circumstances that would authorize the court to exercise discretion and grant accounting fees as costs and expenses to Allred.
¶ 6. We will reverse a chancellor's decision only where he is manifestly wrong. Hans v. Hans, 482 So. 2d 1117, 1119 (Miss.1986). A chancellor's findings will not be disturbed unless he is manifestly wrong, clearly erroneous or an erroneous legal standard applied. Tinnin v. First United Bank of Mississippi, 570 So. 2d 1193, 1194 (Miss.1990); O.J. Stanton & Co. v. Mississippi State Highway Commission, 370 So. 2d 909, 911 (Miss.1979). However, the chancery court's interpretation and application of the law is reviewed under a de novo standard. Weissinger v. Simpson, 861 So. 2d 984, 987 (Miss.2003).
A. Did exceptional circumstances exist and did the chancery court abuse its discretion in not awarding accounting fees to Allred?
¶ 7. Allred contends that the undisputed facts and circumstances require this Court to reverse the decision of the chancery court and award Allred the accounting fees which he paid to Hartman. Fairchild counters that Allred has not cited a single precedent, rule, statute, or any legal authority that would justify the imposition of expert witness fees as costs.
¶ 8. Fairchild argues that Allred is not entitled to recover accounting fees as costs under Mississippi Rule of Civil Procedure 54(d) which states:
Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs, and this provision is applicable in all cases in which the State of Mississippi is a party plaintiff in civil actions as in cases of individual suitors. In all cases where costs are adjudged against any party who has given security for costs, execution may be ordered to issue against such security. Costs may be taxed by the clerk on one day's notice. On motions served within five days of the receipt of notice of such taxation, the action of the clerk may be reviewed by the court.
However, the comments to Mississippi Rule of Civil Procedure 54(d) state:
Although costs has an everyday meaning synonymous with expenses, taxable costs under Rule 54(d) is more limited and represents those official expenses, such as court fees, that a court will assess against a litigant. Costs almost always amount to less than a successful litigant's total expenses ... Absent a special statute or rule, or an exceptional exercise of judicial discretion, such items as attorney's fees, travel expenditures, and investigatory expenses will not qualify either as statutory fees or reimbursable costs. These expenses must be borne by the litigants.
*532 ¶ 9. Fairchild argues that this case is distinguished from Memphis Hardwood Flooring Company v. Daniels, 771 So. 2d 924 (Miss.2000), in that expert witness fees were awarded specifically because there is a statute, Miss.Code Ann. § 95-5-10(3), which allows expert witness fees and attorney fees to be assessed as court costs under Mississippi's timber trespass statute. Fairchild is also correct when he asserts that in Selleck v. S.F. Cockrell Trucking, Inc., 517 So. 2d 558 (Miss.1987), the plaintiff was awarded expert witness fees not as "costs," but as sanctions against the defendant as a penalty for jury tampering. Allred has not requested that we award the accounting fees as sanctions for Fairchild's fraudulent conduct, but that we assess the fees against Fairchild as costs.
¶ 10. Allred relies solely upon the exercise of exceptional judicial discretion as referenced in the comments to Rule 54(d) and argues that but for Fairchild's fraud, he would not have incurred the costs and expenses of payout determination and accounting for the monies due to him. Exceptional circumstances must exist in order for the court to exercise exceptional judicial discretion. We must look to the record to determine whether or not exceptional circumstances exist.
In Allred I, we stated:
... Allred cites an extensive list of alleged discovery violations in support of his assertion that Fairchild committed fraud. Allred's contention is that Fairchild purposely lied, withheld evidence and did everything possible to cover up the fact that he owed Allred a percentage of the Windham Properties. This fraud has allowed Fairchild to benefit from the 10% interest due Allred per their oral agreement. As such, Fairchild should not be allowed to benefit from his wrongdoing as a matter of law. (785 So. 2d 1064, paragraph 8).
The Court also established that "it was this confidential relationship [between Allred and Fairchild] that allowed Fairchild to conceal the truth concerning the payout so long." Id. Finally, this Court found that:
Furthermore, Fairchild made numerous false representations and swore under oath to them, including: denying the existence of an oral contract, until presented with the evidence of one; denying the existence of any documented proof of the contract when P-67 (a February, 1974 memo) evidenced the existence of a contract; sworn testimony that payout records were never kept when, in fact, his long-time secretary testified that they were; failure to turn over many highly relevant documents, even after compelled to do so. Id. at P. 1070 (paragraph 17).
¶ 11. Based upon the evidence present in the record, we found Fairchild's actions to be riddled with fraud and deception and that the confidential relationship between the parties allowed Fairchild to perpetrate the fraud for a substantial period of time. We also determined that Fairchild denied the very existence of an oral contract, until he was presented with documented evidence that an oral contract existed.
¶ 12. Moreover, this Court has previously held that extra-contractual damages may be appropriate even in cases where a party's conduct does not warrant punitive damages. Universal Life Ins. Co. v. Veasley, 610 So. 2d 290, 295 (Miss.1992). It is axiomatic that one is liable for the full measure of the reasonably foreseeable consequences of their actions. Id. at 295. It was entirely foreseeable by Fairchild that his breach of the contract and his continued denial of its existence would lead to substantial litigation and accounting costs. *533 Those costs should be borne by Fairchild. Considering these facts, Allred has proven that exceptional circumstances existed.
B. Did the chancery court err when it failed to exercise exceptional judicial discretion?
¶ 13. When the chancellor refused to exercise exceptional judicial discretion and award the accounting fees to Allred, the chancellor stated as follows:
Here, I think the facts would bear out that both parties for the sake of argument, assuming that this matter had not reached the litigation stage, would have still employed an accountant to determine what their respective positions would be and respective amounts due from and owing to the other. I don't find that the misconduct as cited by the Supreme Court necessitated the hiring of an accountant anymore so then one would have been otherwise.
Based upon the language used by the chancellor, he is strictly using hindsight to speculate as to what the parties would have done absent litigation instead of solely relying on the record before him. All evidence in the record points to a conclusion different from that reached by the chancellor. According to the record, in the 20 years that Allred did business with Fairchild, Allred never did his own accounting. Fairchild's office personnel always conducted the accountings and were responsible for maintaining the records on the Windham Properties. Fairchild advised his personnel not to generate and maintain accounting records. Through the custom and practice of the parties, Allred relied upon Fairchild to perform the accounting. Until a dispute arose between the parties, Allred never employed an accountant to determine the status of his financial dealings with Fairchild, primarily because he trusted Fairchild to provide an honest and accurate accounting of funds. The chancellor was manifestly wrong in determining that Allred would have initially hired an accountant absent litigation. The chancery court decision is reversed.
II. Whether the chancery court erred in finding that there was no evidence before the court to show that the accountant's fees were reasonable.
¶ 14. The chancery court cites Martin v. Martin, 566 So. 2d 704 (Miss. 1990) and McKee v. McKee, 418 So. 2d 764 (Miss.1982), as guidelines for properly determining accountant's fees. Martin and McKee specifically discuss determining the reasonableness of attorney's fees in divorce cases. However, a case that appears to be more on point with the chancellor's assumption that accounting fees are determined in the same manner as attorney's fees is Smith v. Dorsey, 599 So. 2d 529, 550 (Miss.1992). In the Smith case, this Court found no abuse of discretion in the chancellor's awarding of expert fees as well as attorney's fees where taxpayers successfully challenged a school board's illegal expenditure of public funds. Inasmuch as it is appropriate to examine prior case law, i.e. Martin and McKee, it is equally appropriate to examine and apply Miss.Code Ann. § 9-1-41 which states:
In any action in which a court is authorized to award reasonable attorneys' fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court's own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.
Hartman is a certified public accountant who attached an affidavit which was submitted *534 with the costs bill detailing the services he rendered. Hartman charged an hourly rate of $150-$165 while his assistant's rate was $50 per hour. He stated that these rates were fairly conservative and reasonable for the knowledge, skill, and expertise needed to perform oil and gas accounting matters and were well within the range of fees charged by certified public accountants.
¶ 15. The chancery court erred in finding that there was nothing before it to show that Hartman's fees were reasonable. But for the fraud of Fairchild, Allred would not have incurred this expense. Therefore, we reverse and render the decision of the chancery court and award Allred $79,235.35 in costs which represents the accounting fees and expenses he incurred.
CONCLUSION
¶ 16. We find that the chancellor erred in deciding that there were no exceptional circumstances that would authorize him to exercise discretion and grant accounting fees as expenses to Allred. We also find that the chancellor erred in holding that there was nothing before him to show that the accountant's fees were reasonable. For the foregoing reasons, we reverse and render the judgment of the Chancery Court of Covington County. Allred is entitled to $79,235.35 in costs.
¶ 17. REVERSED AND RENDERED.
SMITH, C.J., COBB, P.J., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE OPINION. WALLER, P.J., DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.
NOTES
[1] In the oil and gas industry the term "payout" refers to that point in time when income, including proceeds from production and sale of oil, gas and other minerals from the properties, has equaled the cost and expense of acquiring the properties and operating them. Therefore, with the exception of some minor overhead expenses, the income derived translates into profits. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1619949/ | 980 S.W.2d 672 (1998)
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
Katherine VELA, Appellee.
No. 04-97-00206-CV.
Court of Appeals of Texas, San Antonio.
July 22, 1998.
*673 Andres Cedillos, Texas Dept. of Public Safety, Asst. Director of Hearings, San Antonio, Loren E. Svor, Texas Dept, of Public Safety, Asst. General Counsel, Austin, for appellant.
Mario Del Prado, Del Prado & Del Prado, P.C., San Antonio, for appellee.
Before STONE, GREEN and ANGELINI, JJ.
ANGELINI, Justice.
The Texas Department of Public Safety (DPS) appeals a judgment vacating an administrative decision to suspend Katherine Vela's driver's license. The trial court vacated the suspension of Vela's license because Vela was not given an administrative suspension hearing within forty days from the time she received notice of suspension. The DPS raises four points of error, contending that it has a right to continue an ALR hearing upon request by the defendant or upon its own motion, that Vela is estopped from complaining that her hearing was held more than forty days after she received notice of suspension, and that there is no mandatory forty day rule. Because we find the requirement that a hearing be held within forty days of notice of suspension is not mandatory, we reverse the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning of August 16, 1996, Bexar County Sheriff's Deputy Richard Esqueda stopped Katherine Vela after he observed her driving in an erratic manner. When Deputy Esqueda approached and spoke with Vela, he suspected that she was intoxicated. Deputy Esqueda noticed that Vela swayed when she stood, slurred her speech, and smelled of alcohol. He performed a series of field sobriety tests, and, based upon his observations, he arrested Vela for driving while intoxicated. Vela was subsequently asked to perform an intoxilyzer breath test, which she agreed to do. She gave two breath samples, both of which revealed alcohol concentrations above the legal limit. Vela was then served with notice of license suspension pursuant to TEX. TRANSP. CODE ANN. § 524.011 (Vernon Pamph.1998).
Vela contacted the DPS and requested a hearing pursuant to TEX. TRANSP. CODE ANN. § 524.031 (Vernon Pamph.1998). Arrangements were made for a telephonic hearing. The DPS scheduled the hearing for September 24, 1996, the thirty-ninth day after Vela received notice of suspension. Shortly thereafter, Vela retained an attorney to represent her during the administrative hearing. Vela's attorney instructed her to contact the DPS again and request that her hearing be changed from a telephonic hearing to an in-person hearing.
Vela's second request was treated as a request for continuance by the DPS. The hearing was rescheduled for September 26, 1996, and Vela was notified of the setting. However, on September 19, 1996, the State Office of Administrative Hearings sua sponte continued the case from September 26, 1996, to October 11, 1996, because there was no administrative law judge available to conduct the hearing on September 26. At the hearing on October 11, Vela moved for judgment based upon the fact that the hearing was being held on the fifty-sixth day after receipt of notice in violation of the forty day rule set forth in the Texas Transportation Code. The administrative law judge denied Vela's motion, heard evidence on the DPS's petition for suspension, and rendered a decision in favor of the DPS affirming its right to suspend Vela's driver's license. Vela appealed the administrative decision to the County Court at Law, which reversed the administrative decision and entered judgment that Vela's driver's license could not be suspended by the DPS.
ARGUMENT AND AUTHORITY
A driver's license suspension under the Texas Transportation Code takes effect on the fortieth day after the date notice of suspension is received. TEX. TRANSP. CODE ANN. § 524.021(a)(1),(2) (Vernon Pamph. 1998) (emphasis added). The code further provides that, once a hearing is requested pursuant to section 534.031, the hearing shall be held before the effective date of the suspension. TEX. TRANSP. CODE ANN. § 524.032(a) (Vernon Pamph.1998) (emphasis *674 added). This language seems to suggest that, when a hearing is requested, the hearing must take place within forty days of the service of notice of suspension. Vela argues that the language of the two provisions speaks for itself, creating a mandatory time period within which the DPS must conduct a hearing. On the other hand, the DPS contends that the Transportation Code, when considered in its entirety and in conjunction with the Texas Administrative Code, does not contemplate a mandatory forty day rule.
The Austin Court of Appeals recently addressed this issue in favor of the DPS. See Texas Dept. of Public Safety v. Guerra, 970 S.W.2d 645 (Tex.App.Austin 1998, n.w.h.). Although the Transportation Code does not specifically provide that a hearing must be held within forty days of notice of suspension, the court in Guerra agreed that the interplay between sections 524.021 and 524.032(a) suggests that such a requirement was the probable intent of the Legislature. See Guerra, 970 S.W.2d at 647-48. However, the court, following the supreme court's instructions for interpreting whether a statue is mandatory or directory, determined that the forty day rule created by the two sections is merely directory. See id. at 648-49 (citing Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956)). We agree.
In reaching its decision, the Guerra court noted that other provisions of chapter 524 of the Transportation Code suggest that suspension hearings may be held later than forty days after notice of suspension. Particularly, both the licensee and the DPS are permitted to reschedule a hearing, and nothing in the code requires the rescheduled hearing to be held in the forty day time period. See TEX. TRANSP. CODE ANN. §§ 524.032(b), (c), 524.039 (Vernon Pamph. 1998). In fact, the code provides that suspension is stayed until the date of a final decision by the administrative law judge. TEX. TRANSP. CODE ANN. §§ 524.032(d), 524.037 (Vernon Pamph.1998). Such a provision would be unnecessary if a mandatory forty day rule applied.
The Guerra court further observed the Legislature's failure to attach a consequence when a hearing is held outside the forty day period, noting that "absence of words stating the consequences of a failure to act within the time specified" supports a conclusion that a statute is directory. See Guerra, at 649-50 (quoting Chisholm, 287 S.W.2d at 945). We agree that the Legislature could have easily implemented consequences for noncompliance if it had intended a mandatory forty day requirement. See Nash v. Civil Service Comm'n, 864 S.W.2d 163, 166 (Tex.App. Tyler 1993, no writ).
The court, in Guerra, also pointed out the impracticality of a strict forty day rule where the procedural nature of a suspension hearing is not within the DPS's exclusive control. A suspension hearing must be heard by an administrative law judge employed by the State Office of Administrative Hearings, at a location designated by the State Office of Administrative Hearings, with the State Office of Administrative Hearings making arrangements for recording the hearing. TEX. TRANSP. CODE ANN. §§ 524.033, 524.034 (Vernon Pamph.1998). Under these circumstances, it is not realistic to hold the DPS to a strict forty day requirement when it is at the procedural mercy of SOAH. The present case provides a perfect illustration of the effects of a mandatory requirement. After Vela obtained a continuance, her hearing was again rescheduled, this time by SOAH, because no administrative law judges were available to hear the case on the scheduled hearing date. If a mandatory forty day requirement were in place, the DPS would suffer the consequences of acts taken by SOAH over which it has no control.
Every effort should be made by the DPS to conduct a hearing within forty days of notice of suspension; however, where good cause is shown for a delay, we find there is no mandatory requirement that a hearing be held within forty days. Accordingly, we sustain the DPS's fourth point of error and reverse the judgment of the trial court. Because the record reflects that the trial court, as a result of its misinterpretation of the Transportation Code, did not address the merits of the suspension, we remand this case for a determination of whether the suspension was reasonably supported by substantial evidence. See Texas Dep't of Public *675 Safety v. Valdez, 956 S.W.2d 767, 770 (Tex. App.San Antonio 1997, no writ). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620017/ | 13 So. 3d 705 (2009)
STATE of Louisiana
v.
Terrance L. MOSLEY.
No. 08-KA-1318.
Court of Appeal of Louisiana, Fifth Circuit.
May 12, 2009.
*707 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Walter G. Amstutz, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, James A. Williams, Rachel Yazbeck, Attorneys at Law, Gretna, LA, for Defendant/Appellant.
Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
FREDERICKA HOMBERG WICKER, Judge.
In this criminal matter, bearing docket number 08-KA-1318, defendant/appellant Terrance L. Mosley appeals his jury trial conviction of possession with intent to distribute marijuana, a violation of La.R.S. 40:966(A). In a separate appeala companion case on this Court's docketbearing docket number 08-KA-1319 he appeals his habitual offender life sentence.
Mr. Mosley assigns the following errors in the present appeal 08-KA-1318: (1) The trial court erred by accepting Lieutenant Lloyd as an expert and allowing him to give an opinion on the ultimate issue. (2) It was error for the state to introduce "other crimes" evidence through the testimony of Ms. Morgan. (3) The evidence was insufficient to support this conviction. For the reasons that follow, we affirm.
Procedural History
The state filed a bill of information charging Mr. Mosley and the codefendant Theodore J. Jones with possession with intent to distribute marijuana. A jury trial proceeded as to Mr. Mosley alone. At trial, the state introduced evidence that Mr. Jones pleaded guilty to possession with intent to distribute marijuana. The twelve-person jury rendered a verdict of guilty as charged as to Mr. Mosley. Mr. Mosley filed a motion for new trial which the trial judge denied. Thereafter the trial court sentenced Mr. Mosley to 25 years at hard labor.[1] On the same day, the state filed a habitual offender bill of information, alleging that Mr. Mosley was a third felony offender. The habitual offender finding *708 and sentencing are the subject of the separate appeal. A review of that appellate record indicates that on August 22, 2008, the trial judge held a habitual offender hearing and found Mr. Mosley to be a triple felony offender.[2] It also indicates that on August 25, 2008, the trial judge vacated the previous 25-year sentence and sentenced Mr. Mosley to imprisonment for the remainder of his natural life without benefit of parole, probation, or suspension of sentence.[3]
This timely appeal followed the conviction and original 25-year sentence.
Facts
Lieutenant Russell Lloyd of the Gretna Police Department testified that he has been the commander of the Criminal Investigations Division for more than 19 years. He has been involved with narcotics investigations for 13 years. On February 14, 2008, Lieutenant Lloyd was assigned to a multi-jurisdictional crime task force which included the Gretna and New Orleans police departments as well as the Jefferson and Plaquemines Parish sheriffs offices. Its purpose was to combat crime on the Westbank. On that evening he patrolled the David Development/Avondale area. He and other officers were riding in an unmarked vehicle, and they wore plain clothes with police shirts instead of uniforms.
Lieutenant Lloyd testified that at the intersection of Alma and Wayne Streets, he passed behind a red Camaro occupied by two men. Mr. Mosley was sitting in the passenger seat. Mr. Jones was the driver. The car drew his attention because it had two license plates: a temporary tag and a "hard" plate. The car was also parked on the street, facing against traffic. The officer testified that duplicate license plates and parking on the wrong side of the street are traffic violations.
Lieutenant Lloyd stated that he pulled his vehicle in front of the car to prevent the occupants from moving it. When the lieutenant exited his vehicle, he saw Mr. Mosley reach toward the floorboard in front of him as if he were trying to hide something. The officers had both occupants get out of the car. Lieutenant Lloyd then inspected the floorboard in front of the seat where Mr. Mosley had been sitting. Lieutenant Lloyd stated that he saw a gallon-size plastic zip-lock bag that contained green vegetable matter, and he removed the bag. He stated that there was nothing else on the passenger floorboard of the vehicle. Lieutenant Lloyd arrested Mr. Mosley and Mr. Jones.
Lieutenant Lloyd testified that following the arrests, he searched the Camaro. In the back seat, he found an open Adidas brand gym bag containing a second gallon bag filled with green vegetable matter. The bag was directly behind Mr. Mosley on the passenger side within arm's reach. Lieutenant Lloyd stated that he searched Mr. Mosley's person and recovered $400.00. He found $513.00 on Mr. Jones' person.
At trial, the parties stipulated to the chemist's report. The report shows that the two plastic bags of green vegetative matter tested positive for marijuana. One bag of marijuana had a net weight of approximately 430.40 grams, and the other bag had a net weight of approximately 436.90 grams. Thus, the sum of those *709 weights was 867.3 grams. The parties further stipulated that if the chemist were called to testify she would testify in accordance with her report. The jury had the opportunity to view the two bags that the officer seized and which were introduced into evidence.
Defense witness Yolanda Morgan testified that Mr. Mosley is her daughter's boyfriend, and that he was arrested beside her Alma Street residence in Westwego, Louisiana after visiting there. She stated that she has known Mr. Mosley for one and one-half years, and during that time she has not known him to sell narcotics. She said she had smelled marijuana on him on occasion. When she asked him about it, he told her that that was all he did. Ms. Morgan stated that at the time of the arrest, one of the police officers asked her if she knew Mr. Mosley. She replied that she did, but that she did not know the man arrested with him. Ms. Morgan told the officers that Mr. Mosley had just left her house, and that he did not have anything in his hands at that time.
Law and Discussion
Sufficiency
Mr. Mosley raises trial errors in addition to arguing that the evidence at trial was insufficient. In particular, he argues that Lieutenant Lloyd's opinion testimony regarding the issue of Mr. Mosley's intent to distribute should be disregarded. However, when the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So. 2d 731, 734 (La.1992). Therefore, Lieutenant Lloyd's testimony is considered in our discussion of the sufficiency of the evidence. The assigned error regarding his expertise is discussed separately.
The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Cummings, 95-1377, p. 2 (La.2/28/96), 668 So. 2d 1132, 1133. Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, "assuming every fact to be proved that the evidence tends to prove." State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So. 2d 583, 592, cert, denied, Draughn v. Louisiana, ___ U.S. ___, 128 S. Ct. 537, 169 L. Ed. 2d 377 (2007) citing La.R.S. 15:438 and State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So. 2d 649, 657, cert, denied, 535 U.S. 940, 122 S. Ct. 1323, 152 L. Ed. 2d 231 (2002) (quotations in original). This statutory test works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury. Neal, supra, 00-0674 at 9, 796 So.2d at 657, citing State v. Rosiere, 488 So. 2d 965, 968 (La.1986).
Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. State v. Chism, 436 So. 2d 464, 469 (La.1983). The trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. Id.
*710 Constitutional law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Spears, 05-0964, p. 3 (La.4/4/06), 929 So. 2d 1219, 1222 citing State v. Mussall, 523 So. 2d 1305, 1309 (La.1988). Rather, the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protection of due process of law. Spears, supra, 05-0964 at 3, 929 So.2d at 1222-23 (Citations omitted).
The crime of possession with intent to distribute marijuana requires proof that the defendant knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute it. La.R.S. 40:966(A); State v. Brown, 04-1194, p. 7 (La.App. 5 Cir. 4/26/05), 902 So. 2d 542, 547, writ denied, 05-1637 (La.2/3/06), 922 So. 2d 1173.
At trial, the state introduced evidence of Mr. Mosley's 1996 conviction for possession with intent to distribute cocaine, and his 1997 conviction for cocaine distribution. Lieutenant Lloyd, whom the trial court accepted as an expert in the field of narcotics-related investigations, testified that he "charged" Mr. Mosley and Mr. Jones with possession of marijuana with intent to distribute at the time of their arrest based on the large quantity of money and marijuana the men had in their possession, and because there was no paraphernalia in the car that indicated personal consumption. The officer said he did not find any joints, "roaches" (the remains of previously smoked marijuana cigarettes), or cigarette rolling papers in the car to indicate that the two men had used marijuana.
According to Lieutenant Lloyd, the marijuana weighed the equivalent of two pounds. On cross-examination, Lieutenant Lloyd stated that the quantity in and of itself does not make a distribution case. He admitted that he saw no transaction involving narcotics. He testified that he saw Mr. Mosley sitting in the car where there was approximately one pound of marijuana or 400 grams. He stated that marijuana is not perishable. While it might dry out over time, it can still be smoked. He agreed that some indications of a distributor are that a person would have a scale, packaging materials and other bags to transfer the greater amount into smaller amounts.
Mr. Mosley argues that, at most, the state proved he was attempting to purchase marijuana from Mr. Jones. Mr. Mosley asserts that the state failed to exclude the reasonable inference that he went to the car to purchase one of the bags of marijuana for his personal use based on the following evidence: (1) Marijuana is not a perishable item. (2) Quantity alone does not establish distribution. (3) There were no observable drug transactions. (4) There were no items associated with drug transactions. (5) Mr. Mosley's conviction for distribution was 10 years ago. (6) The marijuana was not packaged for individual sales.
Specific intent is defined as that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La.R.S. 14:10. The intent to distribute may be established by proving circumstances surrounding the defendant's possession which give rise to reasonable inferences of intent to distribute. State v. Carey, 07-674, p. 4 (La.App. 5 Cir. 12/27/07), 975 So. 2d 27, 29, *711 writ denied, 08-0430 (La. 11/10/08), 996 So. 2d 1064.
In the absence of circumstances from which an intent to distribute may be inferred, mere possession of a drug does not amount to evidence of intent to distribute, unless the quantity is so large that no other inference is possible. State v. Hearold, 603 So.2d at 735-36. The following factors are useful in determining whether circumstantial evidence is sufficient to prove the intent to distribute a controlled dangerous substance: 1) previous attempts to distribute the drug; 2) whether the drug was in a form consistent with distribution to others; 3) the amount of the drug; 4) expert or other testimony showing the amount found in the defendant's possession to be inconsistent with personal use only; and 5) paraphernalia evidencing an intent to distribute. Hearold, supra, 603 So.2d at 735; State v. House, 325 So. 2d 222, 225 (La.1975). We agree with the Fourth Circuit that by describing the factors as "useful," the Supreme Court did not require that the evidence fall squarely within the listed factors to be sufficient for the jury to find the requisite intent to distribute. State v. Cushenberry, 94-1206, p. 4 (La.App. 4 Cir. 1/31/95), 650 So. 2d 783, 786.
Furthermore, in discussing the first element of the five-factor formula, the House and Hearold courts specifically refer to evidence of the defendant's prior attempts to distribute the drug involved in the current offense. But the Hearold court suggests that evidence of distribution of any illegal drug would be sufficient to support an inference of intent to distribute. Addressing the testimony about the defendant's prior drug activity, the court stated: "This evidence of prior drug distribution, if admissible and when considered with the other evidence pertaining to the amount of drugs found in the bag, could provide a basis for a rational trier of fact to conclude beyond a reasonable doubt that defendant intended to distribute the methamphetamine in his possession in accordance with his longstanding drug dealing operation." Hearold, supra, 603 So.2d at 736 (Emphasis added).
Large sums of cash may also be considered as circumstantial evidence of intent to distribute a controlled substance. State ex rel. B.L., 02-923, p. 4 (La.App. 5 Cir. 1/28/03), 839 So. 2d 246, 248 citing Hearold, supra, 603 So.2d at 736 and State v. Taylor, 99-1154, p. 15 (La.App. 5 Cir. 2/29/00), 757 So. 2d 63, 72, writ denied, 00-1021 (La.3/30/01), 788 So. 2d 441.
Mr. Mosley's convictions show that he had a history of narcotics distribution, but not marijuana distribution in particular. However, Mr. Mosley's prior history of narcotics distribution was useful in determining whether circumstantial evidence was sufficient to prove the intent to distribute marijuana. Also, the jury could have reasonably excluded the hypothesis that Mr. Mosley only intended to purchase the marijuana given the sheer quantity of the marijuana seized, the large sums of cash, and the absence of paraphernalia indicating personal consumption.
In this case we conclude that the evidence is sufficient to support an ultimate finding that the reasonable findings and inferences permitted by the evidence exclude every reasonable hypothesis of innocence. Despite evidence supporting some contrary inferences, a trier of fact reasonably could have found that Mr. Mosley had specific intent to distribute the marijuana in his possession.
Therefore, this assignment lacks merit.
Expert Testimony
Mr. Mosley makes a two-pronged argument on appeal. First, he argues that the trial court erred in accepting Lieutenant *712 Lloyd as an expert witness without first performing the "gatekeeping" function outlined by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) to determine whether the expert testimony is reliable. He argues that Lieutenant Lloyd had no scientific credentials and he did not use a scientific method in making his conclusions. Instead, his conclusions were based on conjecture. He specifically objects to Lieutenant Lloyds testimony that he believed Mr. Mosley intended to distribute marijuana. Second, he argues that the trial court erred in allowing Lieutenant Lloyd to give opinion testimony outside his field of expertise. In this regard, he argues that the court erred in accepting him as an expert witness insofar as his competence to evaluate the evidence to determine whether the evidence met the criteria for possession or possession with intent to distribute. He asserts that only an expert in packaging, distribution, and retail sales of marijuana could testify in such manner.
At trial, defense counsel objected when the prosecutor, during direct examination, asked Lieutenant Lloyd whether a "roach," which remains after someone smokes a marijuana cigarette, is an item consistent with personal use of marijuana. Defense counsel argued that the prosecutor was attempting to elicit testimony regarding the ultimate issue of fact without first qualifying the witness as an expert. The prosecutor responded by conducting a voir dire of the lieutenant's qualifications.
The officer testified that he had extensive experience involving several thousand narcotics cases. He stated that he participated in undercover operations and attended numerous schools where he had been trained in the field. He had supervised others in narcotics-related events and at the time of trial was supervising them. He had taught in the training academy or in other forums regarding narcotics-related matters. In his experience as a police officer in the narcotics field he knew the difference between distribution, simple possession, and procession with intent to distribute cases. No one had ever previously attempted to qualify him as an expert in the field of narcotics.
On cross-examination after the state's tender of the witness as an expert in the field of narcotics-related investigations, the officer testified that he had not written any books or articles on the subject of use or distribution of narcotics. With regard to his undercover work, he had not infiltrated organizations that sell marijuana or other narcotics and stayed undercover for any length of time other than a day or two at the most. While in his undercover capacity he had never been a part of the inner core of any organization that distributed drugs or narcotics.
In response to the prosecutor's redirect on the tender, the officer testified that he was part of the Department of Justice Task Force involving narcotics. Thereafter, the prosecutor again tendered Officer Lloyd as an expert in the field of street level narcotics investigation. In response, defense counsel stated that he had no problem with qualifying the lieutenant as an expert in investigation. He stated, however, that he objected to the officer's testifying as an expert in the quantities that would distinguish street level users from sellers.
The trial judge qualified the officer, without objection, as an expert in the field of narcotics-related investigations. He deferred ruling on defense counsel's objection to the officer's testifying as an expert in the quantities that would distinguish street level users from sellers.
*713 After being qualified, Lieutenant Lloyd testified regarding the quantities of marijuana, which based on his experience, were consistent with distribution or simple possession. He also testified regarding the indicia for personal use.
He stated that based on his experience in marijuana investigations, distribution of marijuana could involve as little as one joint or one cigarette if the person sold that quantity. He explained that on the other hand, if a person were not attempting to sell that amount, the case would be simple possession rather than distribution. He would be concerned that a person had the intent to distribute when he had a larger quantity than one joint or two joints. He stated that a joint would be indicative of simple possession because that amount would be for personal use. The officer testified that quantity in and of itself does not make a distribution case. He testified that some indications of a distributor are that a person would have a scale, packaging materials and other bags to transfer the greater amount into smaller amounts. He explained that cases of distribution or possession with intent to distribute are not limited to those cases in which baggies and scales and other such items are found. He stated that this case was consistent with possession with intent to distribute marijuana.
Lieutenant Lloyd testified that he did not find any indications of personal consumption in this case. His determination to "charge" the defendants with possession with intent to distribute marijuana was based on the money that was on the defendants, the quantity of marijuana, and the fact that there was nothing else involving personal consumption in the car. He stated that the defendants could not explain where the money came from.
For the first time on appeal, Mr. Mosley argues the trial court erred in accepting Lieutenant Lloyd as an expert witness without first performing the "gatekeeping" function outlined by the United States Supreme Court in Daubert to determine whether the expert testimony is reliable.
The state responds that Mr. Mosley did not preserve the error because defense counsel accepted the officer as an expert in narcotics-related investigations. The state is partially correct. Defense counsel never requested a Daubert hearing. In Cheairs v. State DOTD, 03-0680, p. 8 (La.12/3/03), 861 So. 2d 536, 541 (rehearing granted in part on other grounds), the Supreme Court recognized a distinction between challenging the reliability of the methodology used by the expert, which is addressed by a Daubert inquiry, and the expert's qualifications to testify competently regarding the matters he intends to address.
Here, at trial defense counsel never challenged the reliability of the methodology used. In fact, he accepted Lieutenant Lloyd as an expert in narcotics investigations. He challenged Lieutenant Lloyd's expert's qualifications only as to his testifying regarding quantities that would distinguish street level users from sellers.
Thus, defense counsel qualified his acceptance and he objected to any testimony as to drug quantities that would distinguish street level users from sellers. Although the trial judge never specifically ruled on the objection, he nonetheless allowed Lieutenant Lloyd to testify regarding this distinction. We view the trial judge's actions in noting the objection and allowing the state to continue questioning Lieutenant Lloyd in the area of quantities that would distinguish street level users from sellers as a tacit overruling of defense counsel's objection.
*714 Therefore, having failed to challenge the reliability of the methodology used by the expert that issue is not preserved for appeal. Accord: State v. Addison, 05-378, p. 22 (La.App. 5 Cir. 12/27/05), 920 So. 2d 884, 898, writ denied, 06-1087 (La.11/9/06), 941 So. 2d 36 ("[T]he defendant did not preserve this issue for appeal and this assignment of error will not be addressed.").
Even so, we disagree with Mr. Mosley's assertion that Lieutenant Lloyd needed scientific credentials and a scientific method in order to testify as an expert about the differences between street sellers and users. In State v. Addison, 05-378, pp. 18, 20 (La.App. 5 Cir. 12/27/05), 920 So. 2d 884, 895, 897, writ denied, 06-1087 (La.11/9/06), 941 So. 2d 36, the defendant raised a similar argument. He argued that the trial court committed reversible error by accepting the officer as an expert because he did not have scientific credentials to prove his expertise, his assessments were based on total conjecture and he did not employ any kind of scientific method in arriving at his conclusions. Although we concluded that the issue was not preserved on appeal, we found that the defendant failed to show how the officer's qualifications were so lacking that he should not have been qualified as an expert in the area. We considered the officer's training and experience, and found that the trial court did not abuse its broad discretion in finding the officer was competent to testify as an expert.
We now turn to the issue that is properly before us. The issue is whether Lieutenant Lloyd was competent to testify regarding quantities that would distinguish street level users from sellers. In other words, could Lieutenant Lloyd give an expert opinion regarding packaging, distribution, and retail sales of marijuana when he was never specifically qualified as an expert in those areas? Stated differently, could Lieutenant Lloyd give an expert opinion regarding packaging, distribution, and retail sales of marijuana based on his qualifications as an expert in narcotics investigations?
As a general matter, under La. C.E. art. 702, "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... in the form of an opinion or otherwise." State v. Higgins, 03-1980, p. 33 (La.4/1/05), 898 So. 2d 1219, 1239, cert, denied, Higgins v. Louisiana, 546 U.S. 883, 126 S. Ct. 182, 163 L. Ed. 2d 187 (2005). In reviewing an expert's qualifications, "the trial judge is vested with wide discretion in determining the competence of an expert witness. Competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge; h[er] rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error." Id., quoting State v. Stucke, 419 So. 2d 939, 944 (La.1982) (citing State v. Drew, 360 So. 2d 500 (La.1978)).
In State v. Grant, 41,745 (La.App. 2 Cir. 4/4/07), 954 So. 2d 823, writ denied, 07-1193 (La.12/7/07), 969 So. 2d 629, the defendant argued that an agent was not properly qualified as an expert to give an opinion regarding the manner in which the cocaine was packaged, or that the small bags contained individual dosage amounts. The Third Circuit concluded that the contemporaneous objection rule precluded the defendant from raising this issue on appeal due to the fact that he did not object to the issue at trial. Even so, the court concluded that the record clearly supported the fact that the agent possessed the requisite specialized knowledge in order to offer an expert opinion regarding the dosage *715 amounts in which cocaine is sold. The court explained that the agent testified that he had been a police officer for more than six years, assigned to the Caddo-Shreveport Narcotics Task Force for more than three years, and that he had worked undercover for the task force. 41,745 at 9-10, 954 So.2d at 832.
In State v. Johnson, 513 So. 2d 832 (La. App. 2 Cir.1987), writ denied, 519 So. 2d 124 (La.1988), the defendant, similar to Mr. Mosley, agreed that the officer was an expert in narcotics investigations, but he objected to his testimony defining a "courier" and explaining how cocaine was distributed on the street. The Second Circuit found no merit to the assignment noting in part that the defendant did not explain how one could be an expert in narcotics investigation and not know these things.
Likewise, in the instant case, Mr. Mosley did not explain how one could be an expert in narcotics investigation and not know the distinction between street level dealers and sellers.
Furthermore, Lieutenant Lloyd testified regarding his extensive experience in narcotics investigations. We hold that the officers extensive training, teaching, supervisory, and on-the-job experience were sufficient to qualify him to offer opinions regarding various aspects of narcotics distribution. His experience encompassed the consumption habits of marijuana users. Defense counsel fails to show that Lieutenant Lloyds testimony exceeded his status as a narcotics investigator or encroached upon the expertise which only a person qualified as an expert in packaging, distribution and retail sales of marijuana would possess. We conclude that the trial judge did not abuse his discretion in allowing Lieutenant Lloyd to give his expert opinion regarding the distinction between street level dealers and sellers.
Accordingly, this assignment of error lacks merit.
Previous Convictions
Mr. Mosley complains that the trial court erred in allowing the state to introduce records of his prior narcotics convictions during its cross-examination of defense witness, Ms. Morgan. The state responds that defense counsel placed the defendant's good character at issue upon questioning Ms. Morgan's knowledge of whether or not the defendant sells drugs. Therefore, according to the state, defense counsel opened the door for the state to cross-examine the witness as to the defendant's bad character. In his reply brief, the defendant contends that the state is incorrect because Ms. Morgan's testimony does not qualify as general reputation testimony. Mr. Mosley asserts that the state never questioned the witness concerning the general reputation of the defendant in the community. Rather, defense counsel only questioned the witness concerning drug sales on the part of Mr. Mosley. Therefore, his character was never an issue.
Under direct examination by defense counsel, Ms. Morgan testified she has known defendant for one and one-half years, and that she has never known Mr. Mosley to sell narcotics. Ms. Morgan testified that, to her knowledge, Mr. Mosley only smoked marijuana; he did not sell marijuana or any other drug.
Before beginning his cross-examination of Ms. Morgan, the prosecutor requested a bench conference, during which he told the judge he believed defense counsel had opened the door to questions regarding Mr. Mosley's prior drug convictions. Defense counsel responded that Ms. Morgan had only known Mr. Mosley for a year, and that the state was only entitled to question the witness about events that had occurred during that period. The judge *716 concluded that defense counsel opened the door and he allowed the evidence of the prior drug convictions, over defense counsel's objection.
The prosecutor asked Ms. Morgan whether she would be surprised to learn that Mr. Mosley had pleaded guilty on February 5, 1996 and June 17, 1997 to the crimes of possession with intent to distribute cocaine and distribution of cocaine, respectively. Each time she responded that she did not know him then. The trial judge overruled defense counsel's objections to the questions and his objection to the state's introduction into evidence of certified copies of Mr. Mosley's two prior convictions.
A witness may be cross-examined on any matter relevant to any issue in the case. La.C.E. art. 611. Article 404 of the Louisiana Code of Evidence generally disallows the admission of evidence of a person's character or a trait of his character for the purpose of proving he acted in conformity therewith on a particular occasion. However, as a limited exception to the general rule, Article 404(A)(1) allows admission of evidence of a pertinent trait of a defendant's charactersuch as a moral qualityoffered by an accused, or by the prosecution to rebut the character evidence. Under La.C.E. art. 405(A), a character witness may be cross-examined regarding relevant specific instances of conduct.
In State v. Hurst, 01-1817 (La.App. 4 Cir. 9/25/02), 828 So. 2d 1165, writ denied, 03-0709 (La.3/19/04), 869 So. 2d 840, the defendant was convicted of second degree murder. The defendant's mother was called by the defense as a character witness at trial. The defense counsel questioned the mother as to whether she had ever known her son to be violent or to carry a gun. She responded that the defendant was not violent, and that she had not seen a gun. On cross-examination, the prosecutor asked her about the defendant's prior arrests for armed robbery, possession of cocaine and possession of marijuana, and his conviction for theft of goods valued at under $100.00. Hurst, 01-1817 at 7-8, 828 So.2d at 1170.
On appeal, the defendant argued the trial court erred in overruling his objections to the state's questions regarding his prior criminal history. Citing La.C.E. art. 405, the Fourth Circuit held the questions were proper rebuttal to the character testimony elicited from the defendant's mother. Similarly, by questioning Ms. Morgan regarding whether she knew Mr. Mosley to be a drug dealer, defense counsel in the instant case opened the door to rebuttal questioning by the state. Therefore, the questions were proper.
Based on the foregoing, this assignment of error lacks merit.
Error Patent
The record was reviewed for errors patent. La.C.Cr.P. art. 920; State v. Oliveaux, 312 So. 2d 337 (La.1975); State v. Arceneaux, 07-692, p. 13 (La.App. 5 Cir. 3/25/08), 983 So. 2d 148, 155, writ denied, 08-0892 (La.11/10/08), 996 So. 2d 1067. This review indicates there are no errors patent that require corrective action.
Decree
For the preceding reasons, the conviction is affirmed.
AFFIRMED.
NOTES
[1] Although the minute entry/commitment indicates that Mr. Mosley was unrepresented by counsel at the time he was sentenced to serve 25 years, the transcript shows otherwise. According to the transcript, which prevails, Mr. Mosley was represented by attorney Harry Boyer. See: State v. Lynch, 441 So. 2d 732, 734 (La. 1983) (Since there is a discrepancy between the minutes and the transcript, the transcript must prevail.).
[2] Under Rule 2-1.14 of the Uniform Rules-Courts of Appeal, any record lodged in this Court may be used, without necessity of duplication, in any other case on appeal or on writ. State v. Wallis, 03-1415, p. 2, n. 3 (La.App. 5 Cir. 3/30/04), 871 So. 2d 552, 553, n. 3 citing State v. Bradley, 02-1130 (La.App. 5 Cir.3/11/03), 844 So. 2d 115, 118.
[3] Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620075/ | 13 So. 3d 1057 (2009)
THE FLORIDA BAR
v.
MITCHELL (JEROME).
No. SC09-1058.
Supreme Court of Florida.
July 2, 2009.
Decision without published opinion. Disbarred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620082/ | 955 So. 2d 437 (2006)
CHOICE BUILDERS, INC.
v.
COMPLETE LANDSCAPE SERVICE, INC., and Alex Lawley.
2040507.
Court of Civil Appeals of Alabama.
August 18, 2006.
Certiorari Denied October 13, 2006.
*438 James A. Kee, Jr., and Jon M. Hughes of Kee & Selby, LLP, Birmingham, for appellant.
John E. Medaris, Pelham, for appellees.
Alabama Supreme Court 1051717.
On Application for Rehearing
CRAWLEY, Presiding Judge.
The opinion of this court issued on March 31, 2006, is withdrawn, and the following is substituted therefore.
Robert Morin and Carleen Morin sued Choice Builders, Inc. ("CBI"), along with several other companies, in 2001. Among other things, the Morins alleged that CBI had negligently supervised the construction of a retaining wall behind their house. CBI, as a third-party plaintiff, sued Complete Landscape Service, Inc., and Alex Lawley (collectively "CLS"), alleging that CLS was obligated to indemnify CBI to the extent CBI might be held liable to the Morins for any damages. CLS moved for a summary judgment as to CBI's claims. The trial court granted that motion and, finding no just reason for delay, made that order final pursuant to Rule 54(b), Ala. R. Civ. P. CBI timely appealed, whereupon this appeal was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.
Although the underlying circumstances of this case are somewhat complicated, the facts as they relate to CBI's claims against CLS, and CLS's defenses to those claims, are simple. The Morins' suit against CBI initially alleged only that when CBI built the Morins' house the installation of an exterior insulation and finishing system was improperly performed. Later, in January 2003, the Morins amended their complaint to allege that CBI had negligently supervised the construction of a retaining wall behind the Morins' house. Only the portion of the Morins' action relating to the retaining wall is relevant to this appeal.
*439 The record indicates that before constructing the Morins' house in 1993 CBI built a wooden cross-tie retaining wall at the rear of the Morins' lot. Robert Morin testified in his deposition that in 2000 he noticed that the retaining wall was bulging outward. At that time Mr. Morin contacted Terry Phillips, a representative of CBI, who visited the site and looked at the wall. Phillips allegedly stated that the wall should have been a concrete wall. Following that discussion, the Morins began construction of a new concrete wall approximately 15 feet away from the wooden cross-tie wall. The old wall was left standing during the construction of the new wall. Mr. Morin testified that on Labor Day of either 2001 or 2002, before the completion of the new wall, the wooden cross-tie wall collapsed. As a result, Mr. Morin claimed, portions of his house jutted out over empty space, and he feared his house would fall down the hill the wall had previously held in place.
Consequently, the Morins amended their complaint against CBI in January 2003 to allege that CBI's negligence during the installation of the wooden cross-tie wall had led to its collapse. In February 2003, CBI, as a third-party plaintiff, sued CLS, the subcontractor it had used during the construction of the wooden wall. CBI alleged that it was CLS's faulty construction of the wooden cross-tie retaining wall that had led to the collapse of the wall. In short, CBI asserted that if it were found liable to the Morins, then CLS would be liable to CBI for those damages. More specifically, CBI argued that, based upon CLS's negligence, breach of contract, and breach of warranty, CLS is obligated to indemnify CBI for any damages it may owe the Morins.
CLS moved for a summary judgment, arguing that because the Morins and CBI were aware of the wall bulging outward in 2000, the two-year statute of limitations imposed by § 6-2-38(l), Ala.Code 1975, expired before the Morins amended their complaint or CBI brought its claims against CLS.[1] Additionally, on appeal CLS elaborates upon several arguments it loosely made at the trial-court level in support of its motion for a summary judgment, including that CBI did not dispute any of the facts CLS alleged in its motion for a summary judgment; that the doctrine of spoliation of evidence mandates summary judgment because the wooden wall has been completely destroyed by the Morins; that other explanations for the collapse of the wooden wall exist besides CLS's negligence or the breach of any contract or warranty; that there was no indemnity agreement between CLS and CBI; and that there was no contract or warranty between CLS and CBI.
"`The standard of review applicable to a summary judgment is the same as the standard for granting the motion. . . .' McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957, 958 (Ala.1992).
"`A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to *440 make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present "substantial evidence" creating a genuine issue of material fact"evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).'
"Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So. 2d 1349, 1350 (Ala. 1994)."
Singleton v. State Farm Fire & Cas. Co., 928 So. 2d 280, 283 (Ala.2005)(opinion on application for rehearing).
In its brief to this court, CBI argues that its action against CLS is timely based on our supreme court's holding in Ex parte Stonebrook Development, L.L.C., 854 So. 2d 584 (Ala.2003), which addressed the issue of when the statute of limitations begins to run on an indemnity claim.
The facts in Stonebrook are substantially similar to the facts of this case. In Stonebrook, the plaintiff was a corporation formed for the purpose of establishing a residential neighborhood. Stonebrook, 854 So.2d at 586. The defendant in Stonebrook used plans prepared by the third-party defendant to make a bid on the plaintiff's project. Id. After the defendant was sued because of its late performance on the project, the defendant sued the third-party defendant in an indemnity action alleging negligence. Id. As in Stonebrook, the statute-of-limitations issue before us concerns an indemnity action alleging negligence on the part of a third-party defendant. The Morins sued CBI because the wooden cross-tie wall that CBI had contracted to build collapsed. CBI in turn sued CLS because CLS was the subcontractor that CBI had relied upon to perform the construction of that wall.
In Stonebrook, the supreme court, quoting this court, observed that "`[f]acing the possibility of paying monetary damages to another party, and actually paying such damages, are not the same.'" 854 So.2d at 589. In Stonebrook, our supreme court held that the accrual of a negligence cause of action that a third-party plaintiff has against a third-party defendant does not begin until it is determined the third-party plaintiff is liable for damages. 854 So.2d at 591; see also American Commercial Barge Line Co. v. Roush, 793 So. 2d 726, 729-30 (Ala.2000).[2]
Although the court in Stonebrook was interpreting § 6-5-221, Ala.Code 1975, it specifically noted that the operative principles behind that statute of limitations were the same as those under § 6-2-38, Ala. Code 1975, which contains the statute of limitations at issue in this case. Ex parte Stonebrook, 854 So.2d at 590.
Although CLS argues that the statute of limitations began to run when the Morins and the representative of CBI observed *441 the bulging wall in 2000, that is only true in regard to the claims the Morins may have against CBI or CLS, not in regard to the indemnity claim that CBI has against CLS. Although it is true that the Morins might have suffered actual injury or loss at that point because they then, allegedly, were compelled to build the concrete wall to replace the wooden cross-tie wall, CBI had not yet suffered any injury or loss. CBI only faced the possibility of paying monetary damages to the Morins when the Morins observed the bulging wall. CBI's indemnity action based on negligence against CLS would not accrue until the trial court adjudicated its liability to the Morins.
The cases CLS cited in its brief to this court for the proposition that CBI's third-party indemnity claim against CLS is untimely, Chandiwala v. Pate Construction Co., 889 So. 2d 540 (Ala.2004), and Certain-Teed Corp. v. Russell, 883 So. 2d 1266 (Ala. Civ.App.2003), are not relevant to this case because they do not pertain to when a claim for indemnity accrues. Rather, those cases concern when a plaintiff's cause of action for damage to his or her home accrues. Although such cases would perhaps be relevant in a defense against the Morins' action, see Rule 14(a), Ala. R. Civ. P., they are not relevant in maintaining a defense solely against CBI's indemnity claim. Consequently, CBI's action against CLS is timely.[3]
CLS also argues that CBI, in its response to CLS's motion for a summary judgment, did not contest any of the facts asserted by CLS. We note that those factual averments were more properly applicable to the Morins' claims, not CBI's indemnity claim. Were we to hold that a third-party plaintiff must dispute the same facts against a third-party defendant that it must assert against the plaintiff in making its defense, we would force a nonsensical requirement upon third-party plaintiffs.
CLS also makes a spoliation argument in favor of affirming the trial court's summary judgment; however, that argument is inapplicable to this case. CLS asserts that because the wooden cross-tie wall has been removed by the Morins the doctrine of spoliation of evidence warrants summary judgment in its favor. Spoliation is "`an attempt by a party to suppress or destroy material evidence favorable to the party's adversary.'" Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So. 2d 84, 93 (Ala.2004)(quoting Wal-Mart Stores, Inc. v. Goodman, 789 So. 2d 166, 176 (Ala. 2000)). And, "where the plaintiff is guilty of spoliation, the sanction of dismissal of the claim may be warranted." Id. In this case, CBI has not been alleged to have attempted to suppress or destroy material evidence favorable to CLS. No facts have been alleged to indicate that CBI destroyed the old wall.
The other arguments that CLS raises in its appellee's brief or in its brief in support of its application for rehearing were not argued at the trial-court level as a reason for entering a summary judgment against CBI; thus we will not now consider those arguments on appeal. Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala.2003)(stating that the general rule that permits an appellate court to affirm a trial court on any ground, *442 even one not argued to the trial court, fails in application where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a summary-judgment movant fails to assert to the trial court a particular argument, thus not triggering the responding party's burden to produce substantial evidence on that issue or to argue that issue).
Because CBI sued CLS, at most, two months after CBI was sued by the Morins, its third-party action against CLS seeking indemnification was timely. Furthermore, because the other arguments that CLS made to this court or to the trial court are inapplicable to this case, we reverse the trial court's summary judgment and remand this case for further proceedings.
APPLICATION OVERRULED; OPINION OF MARCH 31, 2006, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.
NOTES
[1] Although CBI's claims against CLS are based both in contract and in negligence, both parties on appeal discuss the statute-of-limitations issue as if only the shorter two-year limitations period applicable to negligence actions is applicable. Also, although CBI seeks indemnity from CLS, the substantive legal theories upon which the indemnity is sought are (1) negligence, (2) breach of contract (i.e., breach of an oral contract between CBI and CLS, whereby CLS was required to construct the wall in a proper manner), and (3) breach of warranty.
[2] "`[O]ur courts have long recognized that non-contract causes of action accrue only when the plaintiff actually suffers injury or loss.'" Ex parte Stonebrook Dev., L.L.C., 854 So.2d at 589 (quoting Matthews Bros. Constr. Co. v. Stonebrook Dev., L.L.C., 854 So. 2d 573, 578 (Ala.Civ.App.2001)).
[3] See also Rule 14, Ala. R. Civ. P., which was "`adopted to prevent third-party claims, which are contingent on the outcome of original actions against third-party plaintiffs, from being dismissed as premature when brought in the same proceeding as the original action.'" Ex parte Stonebrook Dev., L.L.C., 854 So.2d at 590-91 (quoting Matthews Bros. Constr. Co., 854 So.2d at 579 n. 3.). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620070/ | 585 N.W.2d 526 (1998)
7 Neb. Ct. App. 833
In re ESTATE OF Edward J. ROLENC, also known as Edward J. Rolenc, Sr., deceased.
Edward ROLENC et al., Personal Representatives of the Estate of Edward J. Rolenc, deceased, Appellees,
v.
Mary Jo GABEL and Rita Hruska, Appellants.
No. A-97-544.
Court of Appeals of Nebraska.
October 27, 1998.
*527 Richard K. Watts, of Mills, Watts & Reiter, Osceola, for appellants.
Robert J. Bierbower, David City, for appellees.
SIEVERS and MUES, JJ., and HOWARD, District Judge, Retired.
MUES, Judge.
INTRODUCTION
Mary Jo Gabel and Rita Hruska appeal the judgment of the Butler County Court denying their motion to set aside its order admitting the will of Edward J. Rolenc, also known as Edward J. Rolenc, Sr. (the decedent), to probate.
BACKGROUND
On December 16, 1996, Edward Rolenc, Jean McGarry, and Bridget Wilson (hereinafter referred to as the proponents) filed a petition for formal probate of the will of the decedent. The proponents alleged that the decedent had died on December 10, that they were the nominated personal representatives, that no other personal representative had been appointed, and that to the best of their knowledge, they believed the will dated June 13, 1990, was validly executed. The petition further alleged that the will either was in the possession of the court or accompanied the petition. A copy of the will has not been included in our record.
A hearing on the petition was held January 9, 1997, at 11:30 a.m. At the hearing, the court inquired whether there were any objections to the admission of the will to probate. Gabel informed the court that she had not had an opportunity to review the will. She was given a copy of the will, and the court again inquired whether Gabel had any objections to it. Gabel asked the court how long a time she had to contest the will. The court informed her, "Until 11:30 today." The court further stated that "[p]ublic notice was given on December 19th in the Banner Press that the petition for formal probate of the will was on file," and that "this will was on file with the court for review beginning on" that date.
Gabel informed the court that her attorney had called the previous day and requested a copy of the will be faxed to him and that he had again called that morning. The court explained that it was not ordinary practice to fax documents long distance but stated that a copy of the will had been faxed to Gabel's attorney at approximately 10 a.m. that morning. *528 The court informed Gabel that it was going to grant the proponents' motion for formal probate of the will and stated that if Gabel had any objections, she would need to talk to her attorney and ask the court to set aside the order. The court recommended that it be done within the next 10 days.
On January 15, 1997, Gabel and Hruska (hereinafter referred to as the contestants) filed an objection to the petition for probate of the will, alleging that the will was not executed with the formalities required by Nebraska statutes, that the decedent did not have testamentary capacity at the time he executed the will, and that the will was the result of the undue influence of the proponents. As noted, a copy of the will has not been included in our record; however, according to an April 17 journal entry of the court, the contestants are daughters of the decedent and were expressly disinherited.
A hearing on the contestants' "objection" was held on March 6, 1997. At the hearing, counsel for the contestants requested that the objection be treated as a motion to set aside the order. Counsel explained that the contestants had misunderstood the court and were under the impression that they had 10 days to object to the petition for formal probate. The court took the matter under advisement and ultimately granted counsel's request, and hereafter we will treat the objection as a motion to vacate. In the court's order, filed March 18 the court noted:
Neb. Rev.Stat. § 30-2437 provides:
"[f]or good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal." The Objections filed by Contestants do not provide the court with any information from which the court could conclude that good cause exists.
The court gave the contestants until March 31, "to provide a statement of good cause in support of the motion" and scheduled a hearing for April 10.
On March 31, 1997, the contestants filed a "Statement of Good Cause." The statement was sworn to by Gabel. In it, she averred that on December 24, 1996, counsel for the proponents mailed her a notice that the petition for formal probate had been filed and a hearing had been set; that Gabel did not receive said notice until December 27; and that Gabel was entertaining relatives until January 2, 1997. Gabel further averred that between the time of the decedent's death, December 10, 1996, and the holiday season, she had a "significant outbreak" of "shingles," which prevented her from leaving the house and operating a motor vehicle. Gabel stated that she had "reason to believe, based upon facts known to her, that the will offered for probate" was objectionable because it was not executed with the formalities required by Nebraska statutes, the decedent lacked testamentary capacity at the time he executed the will, and the will was the result of undue influence exercised upon the decedent by the proponents.
A hearing was held April 10, 1997. No evidence was offered at the hearing, and counsel for the contestants stated that he "would ... submit [the matter] based upon the statement of good cause that's been filed with the Court." In a journal entry filed April 17, the court denied the motion, stating:
The court concludes that the summary allegations of counsel in support of the motion to vacate do not constitute a demonstration of a meritorious objection. The court further concludes that no issues of law exist with respect to the execution of the Will, and that no facts were presented from which the court can conclude that a meritorious factual issue exists with respect to the execution of the Will. The motion to vacate is therefore denied.
The contestants have timely appealed.
ASSIGNMENTS OF ERROR
The contestants allege, restated, that the county court erred in finding that they had failed to show good cause why the order admitting the decedent's will to probate should be vacated.
STANDARD OF REVIEW
Appeals of matters arising under the Nebraska Probate Code, Neb.Rev.Stat. §§ 30-2201 through 30-2902 (Reissue 1995 & Cum.Supp.1996), are reviewed for error on *529 the record. In re Guardianship of Zyla, 251 Neb. 163, 555 N.W.2d 768 (1996); In re Conservatorship of Estate of Martin, 228 Neb. 103, 421 N.W.2d 463 (1988). When reviewing an order for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303 (1997). On questions of law, an appellate court has an obligation to reach its own conclusions independent of those reached by the lower courts. In re Guardianship of Zyla, supra.
DISCUSSION
The county court determined that the will was in substantial conformity with the provisions of § 30-2329, which sets forth the requirements for execution of a self-proved will. The court concluded that "in order for the Contestants to prevail on their motion, they must demonstrate, by affidavit or evidence produced at the hearing, facts sufficient to warrant further hearing on their claims of undue influence and lack of capacity." Because the contestants offered no such evidence, the court found that the contestants had failed to show good cause why its order admitting the decedent's will to probate should be set aside.
Section 30-2437 provides that for good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal. In Devries v. Rix, 203 Neb. 392, 279 N.W.2d 89 (1979), the Nebraska Supreme Court discussed the meaning of "good cause" in the context of § 30-2437. The court, analogizing the good cause requirement of § 30-2437 with the good cause requirement necessary to vacate a default judgment, stated:
[T]he situation that existed here was no different than where default judgment is entered and a timely application ... to vacate is filed together with a tendered defenselack of testamentary capacity and undue influencewhich, if true, would require the vacation of the decree admitting the will to probate. As stated in Steinberg v. Stahlnecker, 200 Neb. 466, 263 N.W.2d 861 (1978) ... "Our law is well settled. Where a judgment has been entered by default and a prompt application has been made at the same term to set it aside, with the tender of an answer or other proof disclosing a meritorious defense, the court should on reasonable grounds sustain the motion and permit the cause to be heard on the merits."
Devries v. Rix, 203 Neb. at 401-02, 279 N.W.2d at 94-95.
"`A meritorious or substantial defense or cause means one which is worthy of judicial inquiry because it raises a question of law deserving some investigation and discussion or a real controversy as to the essential facts.'" Steinberg v. Stahlnecker, 200 Neb. 466, 468, 263 N.W.2d 861, 862-63 (1978).
"[G]ood cause as used within the provisions of section 30-2437 ... means a logical reason or legal ground, based on fact or law, why an order should be modified or vacated." Devries v. Rix, 203 Neb. at 403-04, 279 N.W.2d at 95.
In In re Estate of Christensen, 221 Neb. 872, 381 N.W.2d 163 (1986), the Nebraska Supreme Court further expounded upon the meaning of good cause and adopted three criteria to be considered in determining whether to grant a motion to set aside an order admitting a will to probate: A court should consider whether neglect is excusable, whether a movant has alleged a meritorious objection to admission of a will to probate, and whether prejudice results from setting aside the probate order.
Quoting Craig v. Rider, 651 P.2d 397 (Colo. 1982), the Nebraska Supreme Court observed:
"[A] rule of liberality is to be applied in evaluating promptly filed motions to set aside default judgments, and particularly orders of probate. We conclude that the burden of inquiry and promptness of decision that the trial court considered necessary do not comport with the excusable neglect standard, especially when considered in the light of the rule of liberality appropriate here...."
In re Estate of Christensen, 221 Neb. at 876, 381 N.W.2d at 165.
*530 It seems apparent that the county court's denial of the motion here was based on the contestants' failure to sufficiently demonstrate a meritorious objection. Timeliness of the motion was certainly not an issue, and no suggestion is made by the court that failure to file an objection earlier was inexcusable or prejudiced the proponents, the other two prongs of the criteria of In re Estate of Christensen. Without detailing the evidence, suffice it to say that we believe that the failure to file the objection on or before January 9, 1997, was excusable and that granting the motion would not unduly prejudice the proponents. Obviously, any interruption in the probate process would not be viewed as beneficial by the proponents, but the law clearly allows will contests and that alone cannot be viewed as prejudicial under In re Estate of Christensen.
Turning now to the meritorious objection prong, we note that the county court's decision was premised in large part upon the failure to adduce evidence. As stated, it was the county court's view that to prevail on the motion to vacate, the contestants must demonstrate "by affidavit or evidence produced at hearing" facts to warrant further hearing on their claims. We believe the trial court placed too heavy a burden on the contestants. We do not read Nebraska law to require the offer of evidence as a precondition to the grant of such a motion. Devries v. Rix, 203 Neb. 392, 401, 279 N.W.2d 89, 94 (1979), speaks of a "timely application ... with a tendered defense" (emphasis supplied), and In re Estate of Christensen talks of "allegations" of a meritorious objection.
While the offer of evidence in some form may be the preferred method to persuade a court to vacate its order under § 30-2437, it is not an absolute necessity. A successful motion to vacate grants the moving party an opportunity to prove the merits of his or her allegations. See Devries v. Rix, supra. It would be nonsensical to require the movant to fully prove those allegations as a condition to a grant of such motion.
The contestants argue that evidence was offered through the statement of good cause. They are incorrect. The April 10, 1997, hearing was conducted telephonically, with the judge and the contestants' attorney participating via telephone conference. This procedure apparently occurred without objection by any of the parties. The statement of good cause was not marked as an exhibit and offered into evidence, although the contestants' attorney did state the motion was being submitted "based upon" the statement. Therefore, the statement cannot be considered as evidence on this appeal. See State v. Williams, 253 Neb. 111, 568 N.W.2d 246 (1997). Nevertheless, we see nothing to preclude consideration of the statement, as well as the original objection, as the contestants' "tender" of their objections or as their "allegation" of a defense to probate.
The proponents strongly urge that the decision of the trial court was correct because the motion and the statement of good cause were not factually specific but merely conclusory as to the alleged undue influence and lack of testamentary capacity. The proponents rely on the Colorado case Craig v. Rider, 651 P.2d 397 (Colo.1982), quoted extensively by the Nebraska Supreme Court in In re Estate of Christensen. The Colorado Supreme Court in Craig stated:
A movant must support a claim of meritorious defense by averments of fact, not simply legal conclusions. [Citations omitted.] The factual allegations must be set forth with sufficient fullness and particularity to show that a defense is "substantial, not technical; meritorious, not frivolous; and that [it] may change the result upon trial...."
651 P.2d at 403.
The proponents further contend that Gabel's statement lacks the "fullness and particularity" to show that the defenses asserted are substantial and not frivolous. Brief for appellees at 11. They point to the case Steinberg v. Stahlnecker, 200 Neb. 466, 263 N.W.2d 861 (1978), where the denial of a motion to set aside a default judgment was affirmed. The Nebraska Supreme Court held that the statement of the defendant's attorney to the effect that the defendant had a "`good and sufficient defense to the claim,'" id. at 468, 263 N.W.2d at 862, was *531 not sufficient, alone, to merit setting aside the default.
It is true that the motion and Gabel's statement fail to state the factual basis for the conclusions that "based upon facts known to her," the will was executed without testamentary capacity and was the result of undue influence by the proponents. We are mindful that the court in In re Estate of Christensen, 221 Neb. 872, 381 N.W.2d 163 (1986), did not expressly rely on the above language from Craig in resolving that appeal, but our Supreme Court was not addressing the merits of the objection as we are in the present case. And the allegations in the instant matter are more particular than those in Steinberg, but the lack of any factual allegation to support the absence of testamentary capacity and the presence of undue influence is similar to the attorney's conclusory statements in Steinberg, which were deemed insufficient to merit the setting aside of a default.
The contestants argue that it is unreasonable to expect that the full facts surrounding the decedent's execution of his will could be garnered and tendered so quickly after decedent's death. We do not totally disagree. But we recall that there was some opportunity between the filing of the motion to vacate on January 15, 1997, and the final hearing on April 10 to buttress the conclusions with factual support. As stated, good faith allegations are sufficient. And in other contexts, full-blown discovery is seldom completed before necessary allegations must be presented. In any event, the contestants sought no additional time to supplement the time given them by the trial court in its March 18 order. In this order, the trial court forewarned that the allegations of the contestants' initial pleading were not sufficient to make their showing of good cause. The subsequently filed statement of good cause and the hearing of April 10 failed to illuminate further the merit of the asserted defenses.
We note that the quoted language from Craig has a certain familiarityit is reminiscent of the rules of this state associated with formal pleadings. See McCurry v. School Dist. of Valley, 242 Neb. 504, 496 N.W.2d 433 (1993) (proper pleading requires petition to state in logical and legal form facts which constitute cause of action, define issues to which defendant must respond at trial, and inform court of real matter in dispute). It is the facts well pleaded, not the theory of recovery or legal conclusions, which state a cause of action. Id.
But we need not graft formal pleading rules or the language of Craig onto the meritorious objection branch of good cause under § 30-2437 to resolve this appeal. It is sufficient for our purpose simply to say that a movant must support a claim of meritorious objection or defense by good faith averment of facts, not simply legal conclusions. That is a reasonable burden, given that the task of the trial court is to evaluate whether the objection has sufficient merit to justify reopening an issue already resolvedthe will's admission to probatethus subjecting the estate to potentially protracted estate litigation.
A judicial abuse of discretion exists when reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. State v. Krutilek, 254 Neb. 11, 573 N.W.2d 771 (1998). Denying the contestants' motion to vacate based on bare, conclusory statements cannot be viewed as untenable and as unfairly depriving them of a substantial right and denying a just result. The trial court did not abuse its discretion by refusing to vacate its order when it was provided neither with particulars surrounding the decedent's alleged lack of testamentary capacity nor with the circumstances upon which the claim of undue influence was predicated. Accordingly, we affirm the order of the county court denying the contestants' motion to set aside the order admitting the will to probate.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620076/ | 585 N.W.2d 518 (1998)
7 Neb. Ct. App. 805
Ray and Velda COFFEY, Appellees and Cross-Appellants,
v.
Don MANN, d/b/a Mann Custom Homes, Inc., Appellant and Cross-Appellee.
No. A-97-569.
Court of Appeals of Nebraska.
October 20, 1998.
*520 Alan L. Plessman, of Plessman Law Offices, Lincoln, for appellant.
David H. Hahn, of Hahn Law Office, Lincoln, for appellees.
IRWIN, C.J., and HANNON and INBODY, JJ.
IRWIN, Chief Judge.
I. INTRODUCTION
Don Mann, doing business as Mann Custom Homes, Inc. (hereinafter referred to as "Mann"), appeals from an order of the district court granting Mann's motion for new trial, but denying his alternative motion for judgment notwithstanding the verdict in this breach of contract action, wherein the jury assessed damages of $71,361 against Mann. Ray and Velda Coffey cross-appeal from the court's order granting Mann a new trial. For the reasons stated herein, we affirm.
II. BACKGROUND
In 1987, the Coffeys purchased land between Lincoln and Hickman, Nebraska. In *521 late 1988, the Coffeys entered into an agreement with Mann to have Mann build a new house on the property. Mann provided the Coffeys with a written contract setting out the terms of the parties' agreement. The evidence at trial indicated that no one ever signed the written contract, but that the parties agreed that the writing embodied the terms of their agreement. Mann constructed the house pursuant to the terms of the written contract.
After the Coffeys had been residing in the house for more than 1 year, they hired a contractor to finish the basement in the house. At that time, they discovered that several 2 by 4's composing the loadbearing wall in the basement had severely bowed and that Mann had used untreated lumber in making the sill plate on the foundation of the house.
On August 23, 1993, the Coffeys filed a petition against Mann. Mann filed an answer on September 24. The Coffeys filed an amended petition on October 5, 1995, upon which the case proceeded to trial. In the amended petition, the Coffeys alleged five causes of action. In essence, the Coffeys alleged that Mann breached the contract between the parties. The Coffeys alleged that the contract provided that Mann was to gain approval of the building plans from the city building department and that he failed to do so. The Coffeys alleged that had Mann gained such approval, proper construction of the load-bearing wall and the use of treated lumber for the sill plate of the foundation would have been ensured. Additionally, the Coffeys alleged that Mann's construction of the house constituted a breach of both a provision in the contract and an implied warranty for good, substantial, and "workmanlike" construction. A copy of the unsigned contract was attached to the petition.
At the conclusion of the trial, Mann moved to have the case dismissed or, in the alternative, to have a directed verdict entered in Mann's favor. The court overruled the motion. The jury returned a verdict in favor of the Coffeys in the amount of $71,361, which represents the cost of having the house raised and the load-bearing wall and sill plate replaced.
On March 3, 1997, Mann filed posttrial motions. Mann moved the court for a judgment notwithstanding the verdict or, in the alternative, a new trial. Mann listed 13 reasons for a new trial being granted, such as "[i]rregularity in the proceedings," "[i]rregularity in Orders of the court," "[m]isconduct of the jury and the opposing party(ies)," "[e]rror in the assessment of the amount of recovery," "[t]he verdict and decision are contrary to law," "[e]rror of law occurring at the trial," "[t]he Court's instructions to the jury were not supported by the evidence and did not constitute proper statements of the law," and "[t]he Court erred in overruling the undersigned party(ies) objections." Mann did not specify the basis for any of these "reasons" or indicate what specific actions of the court constituted "irregularity" or "error."
On April 17, 1997, the trial court granted the motion for new trial. In essence, the court determined that error had been committed in instructing and allowing the jury to determine the effect of a provision of the 1985 edition of the Uniform Building Code, which allowed the city of Lincoln to permit the use of untreated lumber for sill plates under certain circumstances. The court determined that the Uniform Building Code provision did allow such exemptions from the requirement of treated lumber being used and that the Coffeys had the burden to prove that treated lumber was required. As a result, the court felt a new trial was warranted because the jury should not have been allowed to decide that issue. In a minute entry on April 28, the court noted that in light of the ruling on the motion for new trial, the motion for judgment notwithstanding the verdict was overruled. This appeal timely followed.
III. ASSIGNMENTS OF ERROR
In the direct appeal, Mann has assigned three errors. Mann asserts that the district court erred in overruling both the motion to dismiss and the motion for directed verdict at the end of the evidence, and in overruling the motion for judgment notwithstanding the verdict.
*522 In the cross-appeal, the Coffeys have assigned one error. The Coffeys assert that the district court erred in sustaining Mann's motion for new trial.
IV. ANALYSIS
1. DIRECT APPEAL
In the direct appeal, Mann has challenged the district court's order overruling Mann's motion to dismiss, motion for directed verdict, and motion for judgment notwithstanding the verdict. Mann has asserted that each ruling was erroneous for the same reasons. Mann asserts that each motion should have been sustained because (1) the Coffeys failed to properly plead the corporation, Mann Custom Homes, as a defendant; (2) the Coffeys pled that the case was based on a written contract, but proved the existence only of an oral contract; (3) the Coffeys failed to properly plead the municipal ordinance upon which the alleged violations of the Uniform Building Code were based; and (4) the Coffeys failed to prove any violations of the Uniform Building Code.
We note that the record does not indicate that Mann made any of these arguments to the trial court, but, rather, made the various motions, which were overruled with argument.
In ruling on a motion to dismiss, a trial court may sustain the motion only by resolving the controversy as a matter of law, and may do so only when the facts are such that reasonable minds can draw but one conclusion. Robinson v. Bleicher, 251 Neb. 752, 559 N.W.2d 473 (1997); Bonge v. County of Madison, 5 Neb.App. 760, 567 N.W.2d 578 (1997), rev'd on other grounds 253 Neb. 903, 573 N.W.2d 448 (1998). In a court's review of evidence on a motion to dismiss, the nonmoving party is entitled to have every controverted fact resolved in his or her favor and is entitled to have the benefit of every reasonable inference which can be drawn therefrom, and where the plaintiff's evidence has met the burden of proof and the plaintiff has made a prima facie case, the motion to dismiss should be overruled. Robinson v. Bleicher, supra.
When a motion for directed verdict made at the close of all the evidence is overruled by the trial court, appellate review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, and the issues should be decided as a matter of law. Tapp v. Blackmore Ranch, 254 Neb. 40, 575 N.W.2d 341 (1998); Bahrs v. R M B R Wheels, Inc., 6 Neb.App. 354, 574 N.W.2d 524 (1998). The party against whom the motion is directed is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every reasonable inference which can be drawn therefrom. Bahrs v. R M B R Wheels, Inc., supra. See, also, Blose v. Mactier, 252 Neb. 333, 562 N.W.2d 363 (1997).
On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of every proper inference deducible from the evidence. Hulett v. Ranch Bowl of Omaha, 251 Neb. 189, 556 N.W.2d 23 (1996); McWhirt v. Heavey, 250 Neb. 536, 550 N.W.2d 327 (1996). In order to sustain such a motion, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion. Hulett v. Ranch Bowl of Omaha, supra; McWhirt v. Heavey, supra.
(a) Pleading Corporation as Defendant
Mann first asserts that the amended petition states a cause of action against Mann personally, but not against the corporation, Mann Custom Homes. The parties agreed at trial that Mann dealt with the Coffeys as an agent of the corporation, and the Coffeys knew of his corporate identity at all relevant times. Mann asserts on appeal that because he was acting as an agent of the corporation, he cannot be held personally liable for any damages and that the Coffeys failed to properly plead the corporation as a defendant to secure a verdict against the corporation.
*523 It is true that a longstanding tenet of the law is that if a contract is made with a known agent acting within the scope of his or her authority for a disclosed principal, the contract is that of the principal only and the agent cannot be held personally liable thereon. Hecker v. Ravenna Bank, 237 Neb. 810, 468 N.W.2d 88 (1991); State Securities Co. v. Svoboda, 172 Neb. 526, 110 N.W.2d 109 (1961); Micro/Mini Systems, Inc. v. Boyle, 4 Neb.App. 841, 552 N.W.2d 302 (1996). It is apparent that the contract in the present case was between the Coffeys and Mann's corporation, Mann Custom Homes. As such, it is true that Mann cannot be personally liable for any damages for breach of contract. The question then is whether the Coffeys pled their cause of action against the corporation or against Mann personally.
Mann did not raise in any motion or pretrial memorandum that there was an issue concerning the sufficiency of the pleadings to allege a cause of action against the corporation. In both the caption and the body of the amended petition, the Coffeys alleged their causes of action against "DON MANN, d/b/a Mann Custom Homes, Inc." Additionally, the petition alleged that "Don Mann, d/b/a Mann Custom Homes, Inc., is, a private building construction contractor...." The Coffeys attached a copy of the contract prepared by Mann, which provides that Mann Custom Homes is referred to in the contract as "the Contractor." The court instructed the jury that one of the parties was a corporation.
It is true that the pleadings and the proof must agree in order for a party to receive a judgment. See, Associated Wrecking v. Wiekhorst Bros., 228 Neb. 764, 424 N.W.2d 343 (1988); One Pacific Place v. H.T.I. Corp., 6 Neb.App. 62, 569 N.W.2d 251 (1997). Contrary to Mann's assertions, however, we do not conclude that the Coffeys pled that the contract was with Mann personally but proved that the contract was with the corporation. On the facts of this case, we conclude that the Coffeys adequately pled the existence of the corporation as a defendant and that the contract was entered into with the corporation. The caption and body of the amended petition, in effect, indicated that the suit was brought against Mann doing business as a corporation. As such, we find no error by the trial court in denying Mann's motions for dismissal, directed verdict, or judgment notwithstanding the verdict.
(b) Written Contract Versus Oral Contract
Mann next asserts that the pleadings and proof in this case did not match because the Coffeys pled the existence of a written contract, while the proof at trial indicated that the parties had an oral contract. As noted above, Mann prepared and presented the Coffeys with a written contract. However, none of the parties signed the contract. Nonetheless, the parties agreed at trial that the writing comprised the terms of their agreement.
We note that the Nebraska Supreme Court has held that in the absence of a statute requiring a signature or an agreement by the parties that a contract shall not be binding until it is signed, signatures of the parties are not essential for establishing a binding contract if manifestation of mutual assent is otherwise shown. In re Estate of Mathews, 134 Neb. 607, 279 N.W. 301 (1938). Other jurisdictions have similarly held. Lynge v. Kunstmann, 94 Ill.App.3d 689, 50 Ill. Dec. 146, 418 N.E.2d 1140 (1981); Serv. Emp. Intern., Etc. v. Cedar Rapids, Etc., 222 N.W.2d 403 (Iowa 1974); McInnis v. Southeastern Automatic Sprinkler Co., 233 So. 2d 219 (Miss.1970); Ikovich v. Silver Bow Motor Co., 117 Mont. 268, 157 P.2d 785 (1945). See, also, 17 C.J.S. Contracts § 62 (1963). Even if neither party signs a contract, it may still be binding if there has been mutual assent. Serv. Emp. Intern., Etc. v. Cedar Rapids, Etc., supra.
The Iowa Supreme Court quoted Corbin on Contracts as follows:
1 Corbin on Contracts, section 31, p. 114 states:
"If a written draft of an agreement is prepared, submitted to both parties, and each of them expresses his unconditional assent thereto, there is a written contract. So far as the common law is concerned, the making of a valid contract requires no *524 writing whatever; and even if there is a writing, there need be no signatures unless the parties have made them necessary at the time they express their assent and as a condition modifying that assent."
Serv. Emp. Intern., Etc. v. Cedar Rapids, Etc., 222 N.W.2d at 407-08.
In the present case, the parties do not dispute that the unsigned written contract comprised the terms of their agreement. Mann testified as such. Nonetheless, Mann asserts on appeal that the Coffeys proved at trial that there was an oral contract to follow the terms of the written document and that the proof therefore did not match the pleading of a written contract. We disagree.
The record in this case indicates that both parties expressed mutual assent to the terms of the unsigned written contract through their respective acceptance of benefits. The Coffeys accepted the house built according to the contract, and Mann accepted payment for the work he proceeded to do according to the contract. Additionally, we note that in the answer to the original petition, Mann did not dispute the existence of a written contract, but, rather, alleged that there had not been a breach of "any term or condition of the contract" and that Mann had "fully performed under the contract." Mann did not file an answer to the amended petition.
Mann testified at trial that the unsigned written contract set forth the understanding between the parties and that the house was constructed on the basis of the unsigned written contract. Because the parties unconditionally manifested their assent to the terms of the written contract, although they did not sign it, there was no fatal variance between the pleadings and the proof in this case. A written contract was pled, and a written contract was proved. As such, the district court did not commit error in denying Mann's motions for dismissal, directed verdict, or judgment notwithstanding the verdict on this basis.
(c) Pleading City Ordinance
Mann asserts in the direct appeal that the Coffeys failed to properly plead the existence and content of the building provisions of the Lincoln Municipal Code. At trial, the Coffeys established, and Mann admitted, that Mann represented to them that the house would be built according to the municipal building code. It was alleged at trial that the municipal building code would have required the use of treated lumber for the sill plate and would have required a more secure construction of the load-bearing wall in the basement. As alleged in the petition, approval of the building plans would have required compliance with these code provisions.
The evidence at trial indicated that the municipal building code did not apply to this property, which was located in a rural area on approximately 160 acres. Nonetheless, Mann testified that he told the Coffeys the house would be built in compliance with the municipal building code, that is, according to the same code as all houses constructed by Mann, and the same code as a house built "on A Street" in Lincoln.
The amended petition alleged that the "City Building Code requires use of treated lumber" and that the "City Building Department would have insured [sic] the plans and specifications of the structure called for treated lumber ... and would have insured [sic] proper construction of the load bearing wall...." We conclude that the Coffeys adequately pled the existence and general content of the relevant portion of the municipal building code. As such, the district court did not err in failing to sustain Mann's motions for dismissal, directed verdict, or judgment notwithstanding the verdict.
(d) Evidence of Violations of Uniform Building Code
Finally, Mann asserts that his motions should have been granted because the Coffeys failed to adduce adequate proof at trial that any provisions of the Uniform Building Code had been violated. According to the evidence at trial, the Lincoln Municipal Code adopted the Uniform Building Code. As noted above, the Coffeys based one of their causes of action on alleged violations of the municipal building code as one way in which Mann allegedly breached the contract. We note that the Coffeys also presented four other causes of action which were not based upon violations of the municipal building code but were based upon Mann allegedly failing *525 to perform in a good, substantial, workmanlike manner.
The Coffeys presented testimony from King Little, a structural engineer. Little testified that at the time of trial, he was under an ongoing contract with the city of Lincoln, reviewing building plans to determine if they complied with the municipal building code. Little opined that the sill plate and the load-bearing wall both failed to comply with certain building code provisions. Little did acknowledge on cross-examination that there were certain qualifying exemptions to the requirement that treated lumber be used for sill plates, although he was not aware of whether any exemptions had been allowed during the time the Coffeys' house was being constructed.
Mann presented the testimony of Gary Sherwood, a former Lincoln building inspector. Sherwood testified that upon his inspection of the Coffeys' house, he saw no violations of the municipal building code. Sherwood did acknowledge on cross-examination, however, that there was a "problem" with the construction even though there were no code violations.
Mann asserts on appeal that Sherwood was a more qualified expert to give testimony concerning compliance with the building code and that the trial court should have believed Sherwood's testimony "as a matter of law." Brief for appellant at 16. The weight to be given to expert testimony, and the credibility of witnesses, is a fact question to be decided by the fact finder at trial. Toombs v. Driver Mgmt., Inc., 248 Neb. 1016, 540 N.W.2d 592 (1995); Doyle v. Union Ins. Co., 202 Neb. 599, 277 N.W.2d 36 (1979). As a result, the district court did not commit error in denying Mann's motions for dismissal, directed verdict, or judgment notwithstanding the verdict on this basis.
2. CROSS-APPEAL
In the cross-appeal, the Coffeys assert that the district court should not have granted Mann's alternative motion for a new trial. As noted above, the district court granted the motion because of an error concerning admission of portions of the Uniform Building Code and submission of issues concerning the code to the jury.
The Coffeys acknowledge that the exhibit containing the portions of the code were objectionable and not admissible. The Coffeys assert, however, that Mann made the wrong objection at trial and that Mann should have been deemed to have waived the error. It is true that if a party fails to make a proper objection to evidence, the party is deemed to have waived the right to challenge the admissibility of evidence on appeal. See, Fales v. Books, 5 Neb.App. 372, 558 N.W.2d 831 (1997); State v. Fahlk, 2 Neb.App. 421, 510 N.W.2d 97 (1993), rev'd on other grounds 246 Neb. 834, 524 N.W.2d 39 (1994). However, the decision of whether to grant or deny a motion for new trial is within the discretion of the trial court, and the court's decision in that regard will be upheld on appeal absent an abuse of discretion. Ray Tucker & Sons v. GTE Directories Sales Corp., 253 Neb. 458, 571 N.W.2d 64 (1997); Jessen v. DeFord, 3 Neb.App. 940, 536 N.W.2d 68 (1995).
Although it appears that Mann did make the wrong objection at trial, the district court was acting within its discretion in determining that the evidence should not have been admitted and that its erroneous admission and submission to the jury prejudiced the outcome of the trial. We do not find an abuse of discretion on the facts of this case. The cross-appeal is without merit.
V. CONCLUSION
Finding no merit to Mann's assertions on the direct appeal or to the Coffeys' assertion on the crossappeal, we affirm.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620092/ | 980 S.W.2d 550 (1998)
335 Ark. 216
Thomas and Alisa CUMMINGS, Appellants,
v.
BIG MAC MOBILE HOMES, INC. and Bank Services, Appellees.
No. 98-194.
Supreme Court of Arkansas.
November 19, 1998.
*551 William G. Almand, Little Rock, for appellants.
Stephen Cobb, North Little Rock, for appellees.
ROBERT L. BROWN, Justice.
The issues raised by appellants Timothy and Alisa Cummings in this case are whether the trial court erred in concluding that an exception to the exhaustion-of-remedies doctrine did not apply and whether the regulations at issue exceeded the legislative authority granted to the Arkansas Manufactured Housing Commission. We hold that an exception to the rule requiring an exhaustion of administrative remedies does apply in this case, and we reverse the trial court.
On January 9, 1995, the Cummingses purchased a new 1995 Classic Express mobile home from appellee Big Mac Mobile Homes, Inc., for $20,870.50. From the time the mobile home was delivered to the Cummingses, it leaked water from the roof each time it rained, and the water ran down the interior walls. Big Mac made four unsuccessful attempts to repair the water leak: (1) on January 16, 1995; (2) on February 3, 1995; (3) on February 15, 1995; and (4) on May 10, 1995. On April 17, 1996, the Cummingses revoked their acceptance of the mobile home by letter to Big Mac, tendered the mobile home to Big Mac, and demanded return of payments made on the mobile home. Big Mac refused the tender.
On July 9, 1996, the Cummingses filed a complaint for breach of the sales contract and alleged that the mobile home was in a "structurally defective condition" when delivered to them and that this nonconformity substantially impaired its value to them. The Cummingses further alleged that they had tendered the mobile home to Big Mac and that Big Mac had refused the tender. They sought damages in excess of $30,000 for breach of contract. The requested damages included payments made on the purchase price of the mobile home and premiums for casualty insurance. Big Mac then filed a third party complaint against Classic Housing, Inc., the manufacturer of the mobile home, and prayed for judgment over in the event Big Mac was found liable.
On May 5, 1997, Big Mac moved to dismiss the complaint due to failure to exhaust administrative remedies. Specifically, Big Mac asserted that the Cummingses had failed to file a complaint with the Arkansas Manufactured Home Commission.[1] On September 2, 1997, the Cummingses filed an Amended and Substituted Complaint and joined BankAmerica Housing Services as a party defendant and as assignee of the Big Mac installment sales contract on the mobile home, but they alleged no wrongdoing against that party. The stated purpose for joining BankAmerica Housing was to bind that party in the event of a judgment against Big Mac. On September 22, 1998, the trial court granted Big Mac's motion to dismiss without explanation. The Cummingses filed a Motion for Findings of Fact and Conclusions of Law and for Reconsideration. On October 21, 1997, findings of fact and conclusions of law were entered by the trial court, and on October 22, 1997, the motion for reconsideration was denied. The Cummingses filed a timely appeal from the order denying reconsideration of the dismissal.
The Cummingses first contend that there was error on the part of the trial court in failing to apply an exception to the doctrine of exhaustion of administrative remedies. The doctrine of exhaustion of administrative remedies provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed statutory *552 administrative remedy has been exhausted. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S. Ct. 459, 82 L. Ed. 638 (1938); Delta School of Commerce, Inc. v. Harris, 310 Ark. 611, 839 S.W.2d 203 (1992); Dixie Downs, Inc. v. Arkansas Racing Comm'n, 219 Ark. 356, 242 S.W.2d 132 (1951). A basic rule of administrative procedure requires that an agency be given the opportunity to address a question before a complainant resorts to the courts. See Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993); Truck Transp. Inc. v. Miller Transporters, Inc., 285 Ark. 172, 685 S.W.2d 798 (1985).
However, in Barr v. Arkansas Blue Cross and Blue Shield, Inc., 297 Ark. 262, 761 S.W.2d 174 (1988), this court recognized that exhaustion of administrative remedies is not required where no genuine opportunity for adequate relief exists, where irreparable injury will result if the complaining party is compelled to pursue administrative remedies, or where an administrative appeal would be futile. See also Regional Care Facilities, Inc. v. Rose Care, Inc., 322 Ark. 780, 912 S.W.2d 406 (1995); Delta School of Commerce, Inc. v. Harris, supra; Arkansas Motor Vehicle Comm'n v. Cantrell Marine, Inc., 305 Ark. 449, 808 S.W.2d 765 (1991). Thus, inadequate or futile administrative remedies need not be exhausted before other remedies are pursued. See Coit Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561, 109 S. Ct. 1361, 103 L. Ed. 2d 602 (1989).
We turn then to the applicable statutes. The General Assembly first enacted Act 419 of 1977, now codified, as amended, at Ark.Code Ann. §§ 20-25-101 through XX-XX-XXX (Repl.1991, Supp.1997), to provide for the establishment of the Arkansas Manufactured Home Commission, for the adoption of uniform standards for the building of manufactured homes, and for enforcement of those standards by penalties. Subsequently, by Act 346 of 1987, now codified at Ark.Code Ann. §§ 20-29-101 through XX-XX-XXX (Repl. 1991), procedures for filing complaints before the Commission and for awarding damages for the actual cost of repairs were enacted. Section 20-29-105 specifically deals with the filing of these complaints:
(a) All consumer, licensee, installer, dealer, or manufacturer complaints shall be filed with the commission. The commission shall determine, by hearing or whatever procedure it establishes, if any standard adopted by the commission has been violated and, if so, the actual cost of repairs to the manufactured home, if any, suffered by the aggrieved party or parties.
(b) The amount of damages awarded by the commission shall be limited to the actual cost of repairs to the manufactured home and shall not include attorneys' fees. On appeal to the circuit court from an award of the commission, the jurisdiction of the circuit court shall be limited to the actual cost of repairs to the manufactured home. The circuit court shall not have jurisdiction to award punitive or exemplary damages for claims covered by the provisions of this chapter, attorneys' fees, or court costs.
Section 20-29-106 then addresses available damage awards:
(a) Upon a finding by the commission that a standard has been violated, the commission shall direct the respondent licensee, dealer, installer, or manufacturer to pay the awarded amount to the complainant.
(b) If the amount is not paid within thirty (30) days following the written decision of the commission and no appeal of the decision has been filed in the circuit court, the commission shall, upon request, pay from the Manufactured Housing Recovery Fund the amount of the award to the complainant if:
(1) The amount is not in excess of ten thousand dollars ($10,000) for any one (1) violation of the respondent licensee, installer, dealer, or manufacturer;
The Commission later adopted rules which mirror the authority granted by these statutes. See Section XII, Rules and Regulations for Manufactured Homes (1993).
Under the Arkansas statutes and the Commission rules, it is clear that the Commission only provides a remedy for damages for the actual cost of repairs when one of its standards *553 has been violated. But in the case at hand, damages for repairs is not the remedy requested. Indeed, the Cummingses assert that their mobile home is beyond repair. They seek the remedy of revocation of acceptance, under the Uniform Commercial Code, due to a nonconformity which substantially impairs the mobile home's value to them. See Ark.Code Ann. § 4-2-608 (Repl.1991). Following a tender of the mobile home to Big Mac, they seek return of the sales price paid. To ask for this remedy before the Commission would be manifestly futile because this remedy is simply not available.
The case of Delta School of Commerce v. Harris, supra, provides authority for our holding today. In Harris, this court held that an administrative remedy was inadequate for its failure to allow the plaintiff/students' requested relief of consequential damages, including lost wages and out-of-pocket expenses. The students' complaint was that the school had made fraudulent statements which induced them to enroll, and they sought actual, consequential, and punitive damages. Prior to this action, the U.S. Secretary of Education had adopted federal regulations pursuant to its statutory grant of authority which allowed a student to file a complaint with the Secretary. The federal regulations provided that if a student's complaint was valid, the Secretary could initiate an action to fine the institution, or limit, suspend, or terminate the institution's eligibility to participate in the Higher Education Assistance Act, and take "other appropriate action." We affirmed a damage award by the jury in favor of the students and held that because the federal regulations did not allow the Secretary to pursue consequential damages for a student, such as lost wages and out-of-pocket expenses, the administrative remedy was inadequate. That is precisely the situation we have in the case at bar.
We conclude that when a plaintiff prays for relief that is clearly not available at the administrative level, exhaustion of other available administrative remedies is not required. See Delta School of Commerce, Inc. v. Harris, supra. See also O & G Indus., Inc. v. Planning and Zoning Comm'n, 232 Conn. 419, 655 A.2d 1121 (Conn.1995) (an administrative remedy is adequate only if it can provide the plaintiff with the relief it seeks and judicial review of the administrative decision); Maresca v. Town of Ridgefield, 35 Conn.App. 769, 647 A.2d 751 (Conn. App.Ct.1994) (administrative remedy inadequate when employee sought money damages and reinstatement was the only administrative remedy available).
We do note where the trial court made a finding of fact in the instant case that filing a claim with the Commission would not be futile. That finding was clearly erroneous. We view Big Mac's motion to dismiss due to failure to exhaust administrative remedies as a Rule 12(b)(6) motion to dismiss for failure to state facts upon which relief may be granted. See Ark. R. Civ. P. 12(b)(6). See also Taylor v. U.S. Treasury Dept., 127 F.3d 470 (5th Cir.1997). It is settled law that when deciding a Rule 12(b)(6) motion to dismiss, such as we have here, a trial court must treat the facts alleged in the complaint as true and view them in the light most favorable to the nonmoving party. See Hames v. Cravens, 332 Ark. 437, 966 S.W.2d 244 (1998). Moreover, a trial court looks only to the allegations in the complaint when deciding a motion to dismiss. See Hames v. Cravens, supra; Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). Here, the allegations in the complaint are that the mobile home is structurally defective and that repairs by Big Mac have been ineffective. Accepting these allegations as true, as the trial court was required to do, a remedy to reimburse for repairs would be no remedy at all. Even if the trial court's order is considered one for summary judgment, the issue of the inadequacy of the remedy is a genuine issue of material fact between the parties, rendering summary judgment inappropriate. See Ark. R.Civ. P. 56(c).
Finally, we observe that the statutory schemes that establish the Commission and provide consumer recovery do not in any way indicate that the General Assembly intended to preempt a consumer's remedies at law. In fact, one provision of the Code establishing the Commission suggests just the opposite. See Ark.Code Ann. § 20-25-110(c) *554 (Repl.1991). Section 20-25-110 requires a mobile home manufacturer to issue a warranty guaranteeing that the mobile home is free from material defects and built in a workmanlike manner. Subparagraph (c) of § 20-25-110 states that: "The warranty shall be in addition to, and not in derogation of, all other rights and privileges which the buyer may have under any other law or instrument." This provision is clear that with regard to manufacturers the administrative scheme is not meant to be exclusive of other remedies at law that consumers might have.
In short, it appears patently clear to this court and beyond any serious dispute that the remedy sought by the Cummingses, on its face, is not available at the Commission level. We hold that in light of the fact that an administrative remedy was unavailable, it would have been a futile act to require the appellants to file their complaint seeking revocation of acceptance first with the Commission. We reverse and remand the matter to the trial court for further proceedings. Because we reverse on this point, we need not address the Cummingses' second point that the Commission's regulations, as interpreted by the trial court, would exceed the Commission's legislative authority.
Reversed and remanded.
THORNTON, J., dissents.
RAY THORNTON, Justice, dissenting.
I would affirm the findings of the trial court on the grounds that appellants must exhaust their administrative remedies before the Arkansas Manufactured Home Commission before pursuing judicial relief in this matter. I respectfully dissent from the majority opinion that by choosing not to claim damages but rather to seek the rescission of a contract to purchase more than a year after the purchase contract was entered into, appellants should be allowed to deprive the administrative agency of its authority and responsibility to determine whether standards had been violated, and, if so, to award appropriate damages. See Ark.Code Ann. § 20-29-105 (Repl.1991).
In my view, the Legislature created the Commission to provide protection to consumers who purchased defective manufactured homes. Recognizing the special problems associated with recovering damages from dealers and manufacturers who had inadequate financial resources or were otherwise judgment-proof, the Legislature provided a Recovery Fund to underwrite damages up to $10,000.00 per unit. However, no limitation was imposed upon the maximum remedy to be recovered from the manufacturer or dealer which violated the standards.
The rationale for the establishment of a recovery fund to protect the consumer is similar to the principle that an award from the Worker's Compensation Commission generally does not require a proof of fault for recovery for work-related injuries. As we stated in Brown v. Finney, 326 Ark. 691, 694, 932 S.W.2d 769, 771 (1996), the purpose behind the Worker's Compensation Act
... was to change the common law by shifting the burden off all work-related injuries from individual employers and employees to the consuming public with the concept of fault being virtually immaterial. See Simmons First Nat'l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985). With the passage of such statutes, employers gave up the common law defenses of contributory negligence, fellow servant, and assumption of the risk and, likewise, employees gave up the chance of recovering unlimited damages in return for certain recovery in all work-related cases. Id.
Brown, 326 Ark. at 694, 932 S.W.2d at 771.
Here, the Legislature clearly intended that all actions concerning defects in manufactured housing should be addressed by the Commission, but did not statutorily provide that the remedy be exclusive. The majority has properly cited the applicable provisions of Ark.Code Ann. § 20-29-105, but I wish to emphasize the first sentence of that statutory provision: "All consumer, licensee, installer, dealer, or manufacturer complaints shall be filed with the Commission." Ark.Code Ann. § 20-29-105(a)(Repl.1991). While I agree with the majority that this delegation is not statutorily exclusive as provided in the workers' compensation law, hopefully all members of the court would agree that in the absence of a statutory delegation of exclusive jurisdiction, *555 the jurisprudential doctrine of exhaustion controls.
The jurisprudential-exhaustion doctrine is a "long settled rule of judicial administration [which mandates] that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Taylor v. U.S. Treasury Dept., 127 F.3d 470, 476 (5th Cir. 1997), citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S. Ct. 459, 82 L. Ed. 638. Arkansas courts have previously held that exhaustion of administrative remedies is not required where irreparable injury will result if the complaining party is compelled to pursue administrative remedies, or where an administrative appeal would be futile. Delta School of Commerce, Inc. v. Harris, 310 Ark. 611, 618, 839 S.W.2d 203, 207 (1992); Barr v. Arkansas Blue Cross and Blue Shield, Inc., 297 Ark. 262, 267, 761 S.W.2d 174, 177 (1988). Here, the majority has determined that the case, as pleaded, requests relief not available to appellants under the administrative remedy available before the Manufactured Home Commission, and that therefore the remedy is inadequate and need not be exhausted. This conclusion is flawed, in my view, simply because the remedy of damages for the entire purchase price, which is available through administrative action, is adequate.
As the majority quite correctly notes, the General Assembly provided for the establishment of the Arkansas Manufactured Home Commission to adopt uniform standards for the building, selling, and installation of manufactured homes, and to enforce those standards and deter violations through penalties. Act 346 of 1987, codified at Ark.Code Ann. §§ 20-29-101 through XX-XX-XXX (Repl.1991), outlines procedures for filing consumer complaints before the Commission, which is empowered to award damages for the cost of repairs. Under these sections, the Arkansas Manufactured Home Commission is authorized to collect annual assessments of manufacturers, dealers, and installers of manufactured homes to contribute to a recovery fund whose purpose is to pay awards for claims and complaints filed with the Commission. Section 20-29-105 provides:
All consumer, licensee, installer, dealer, or manufacturer complaints shall be filed with the Commission. The Commission shall determine by a hearing or whatever procedure it establishes first, if any, standard adopted by the Commission has been violated, and, if so, the actual cost of repairs to the manufactured home, if any, suffered by the aggrieved party or parties.
Ark.Code Ann. § 20-29-105(a)(Repl.1991).
It seems clear to me that if a structure as substantial as a manufactured home is truly beyond repair, the limit of recovery which could be awarded by the Commission would be the cost of a new home.
Upon finding that a standard has been violated, the Commission shall direct the respondent to pay the awarded amount. If the amount is not paid, and the award is not appealed to circuit court, the Commission may pay the award to the complainant from the Recovery Fund, so long as the amount is not in excess of $10,000.00, and the complainant agrees to subrogate his claim to the Commission. Ark.Code Ann. § 20-29-106(a)-(b)(Repl.1991).
The language of the statute providing that "All consumer, licensee, installer, dealer, or manufacturer complaints shall be filed with the Commission" clearly indicates the Legislature's intention that disputes such as these be brought before the Commission. This effectuates the legislative goal that the Commission enforce the state's standards and penalize violators. The majority's opinion defeats these goals; agency enforcement of state standards is impossible where the Commission is not made aware of violations. A basic rule of administrative procedure requires that an agency be given the opportunity to address a question before a complainant resorts to the courts. Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993).
Furthermore, the Legislature has revealed its intention that this is a remedy which must be exhausted in the following provisions concerning appeals to circuit court:
Appeals from a decision of the Commission shall be to the Circuit Court in accordance with the Arkansas Administrative Procedure Act. Such appeal shall stay that *556 portion of the Commission order which directs payment of the damage. Neither the respondent nor the Commission shall be required to pay damages to the complainant until such time as a final order of the Circuit Court, Court of Appeals, or Supreme Court is issued.
On appeal, the Circuit Court jurisdiction in awarding damages to be paid from the fund shall be limited in amount to (a) the amount determined by the Commission, or (b) the limits set forth herein. The Court shall not award attorneys' fees or court costs to be paid by the fund.
Ark.Code Ann. § 20-29-107 (Repl.1991).
The amount of damages awarded by the Commission shall be limited to the actual cost of repairs to the manufactured home and shall not include attorneys' fees. On appeal to the Circuit Court from an award of the Commission, the jurisdiction of the Circuit Court shall be limited to the actual cost of repairs to the manufactured home. The Circuit Court shall not have jurisdiction to award punitive or exemplary damages for claims covered by the provision of this chapter, attorneys' fees, or costs.
Ark.Code Ann. § 20-29-105(b)(Repl.1991).
While appellants argue that they seek a remedy which is beyond the power and authority of the Commission to grant, a plain reading of the above-quoted statutory language reveals no limits on the compensatory damages that may be granted to a complainant by the Commission; indeed, damages for the full amount of the manufactured home may be appropriate, thus effecting a rescission of the sales contract. The only remedies which are unavailable from the Commission are those for attorney's fees and exemplary damages. This limitation on recovery, like the limitation on an action in tort in workers' compensation cases, is offset by the availability of up to $10,000.00 from the Commission's Recovery Fund, just as the worker's tort claim is offset by the assured recovery for work-related injuries.
The majority opinion relies strongly upon the language of the Code regarding consumer's rights in addition to the warranty on the manufactured home which is required by the statutes. It seems clear to me that this provision relating to warranties, coupled with the Commission's authority to award damages, negates any conclusion that proceeding before the Commission would be futile. I agree with the trial court's conclusion that administrative remedies should be exhausted before the courts accept jurisdiction, and respectfully dissent from the majority's opinion.
NOTES
[1] Big Mac erroneously cites Act 419 of 1977 as authority for its motion. Act 346 of 1987 provides for complaints to the Commission for costs of repairs. See Ark.Code Ann. § 20-29-105 (Repl.1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620770/ | 916 So. 2d 926 (2005)
Richard Edward PARKER, Appellant,
v.
Margaret J. PARKER, Appellee.
No. 4D04-1266.
District Court of Appeal of Florida, Fourth District.
November 30, 2005.
*927 Scott A. Lazar of Koltun & Lazar, P.A., Miami, for appellant.
No appearance for appellee.
TAYLOR, J.
Richard Parker [former husband] appeals an order dismissing his petition for relief based on fraud. The petition alleged that Margaret Parker [former wife] defrauded the former husband during their marital dissolution by misrepresenting the paternity of a minor child born during the marriage. According to the former husband, this misrepresentation resulted in his child support obligation. We conclude that the trial court correctly dismissed the petition, because the petition, which alleged intrinsic fraud, was not brought within one year of the dissolution decree.
The Facts
The petition filed by appellant alleged that the parties were married on June 26, 1996. A minor child was born of the marriage on June 10, 1998. The former wife represented to the former husband that he was the biological father, and the former husband had no reason to suspect otherwise.
On December 5, 2001, when the child was three and a half years old, the parties entered into a marital settlement agreement which obligated the former husband to pay $1,200 monthly in child support. This agreement was based on the former wife's representation that the former husband was the child's biological father. The marital settlement agreement was incorporated into the final judgment of dissolution dated December 7, 2001. During the dissolution of marriage proceeding, the former wife represented to the court and the former husband that the former husband was the child's biological father.
On or about March 28, 2003, the former wife filed a motion for contempt and enforcement, alleging that the former husband owed her certain monies for child support and the child's medical expenses. One week later, the former husband subjected the child to DNA paternity testing. The testing excluded the former husband as the child's biological father.
Immediately after the child's fifth birthday, the former husband filed this independent action, alleging that at all material times, the former wife knew that the former husband was not the child's biological father due to sexual relations she had with another man. He claims that she purposefully concealed the fact that he was not the child's biological father to collect child support from him.
*928 Procedural Setting
The trial court dismissed the petition with prejudice. The de novo standard of review applies to an order granting a motion to dismiss. Lopez-Infante v. Union Cent. Life Ins. Co., 809 So. 2d 13 (Fla. 3d DCA 2002). In ruling on a motion to dismiss, courts are limited to the four corners of the complaint, must accept the allegations as true, and may not speculate as to what facts may ultimately be proven at trial. Id.
As a preliminary matter, we note that the husband filed this petition as an action for compensatory damages for past and future child support obligations. He did not file a motion for relief from judgment pursuant to Florida Rules of Civil Procedure 1.540, even though his petition alleges that the former wife perpetrated a fraud upon the court by falsely stating that the former husband was the biological father of the minor child. However, in his brief, he asks us to either consider this as a fraud on the court or remand so that he can amend to argue that theory in his pleading. Because he has not suggested that there are any additional facts which he seeks to add by amendment, we accept his invitation to treat this as if he had alleged in his petition that this was fraud on the court under Rule 1.540.
Because we are faced here with an attempt to upset the marital presumption of legitimacy in favor of a conclusion of illegitimacy and adultery, we are in territory "fraught with difficult social issues." Lefler v. Lefler, 722 So. 2d 941, 943 (Fla. 4th DCA 1998) (Klein J., concurring) (Lefler I). One report states that as many as ten percent of all children born to married women during the 1940's were the product of adultery. Chris W. Altenbernd, Quasi-Marital Children: The Common Law's Failure in Privette and Daniel Calls for Statutory Reform, 26 FLA. ST. U.L.REV. 219, 227-28 (1999) (citing Jared Diamond, The Third Chimpanzee 85-87 (1992)). There is little reason to suspect that this number has declined.
The advancing technology has made the temptation to DNA test a child even greater:
While testing at one time involved a blood draw, many laboratories now offer testing with sample collection by mail... using cheek swabs. Testing hair and other materials easily collected without the knowledge or cooperation of the subject is increasingly available.
Mary J. Anderlik, Disestablishment Suits: What Hath Science Wrought?, 4 J. CENTER FOR FAMILIES, CHILD. & CTS. 3, 4 (2003). Thus, the instant case presents a question which can be expected to recur with increasing frequency.
Florida Paternity Law
In Daniel v. Daniel, 695 So. 2d 1253 (Fla.1997), the trial court had required the former husband to pay child support as part of the marital dissolution decree, despite the fact that the child born during the marriage was not his biological child. The Second District Court of Appeal reversed. The Florida Supreme Court approved that decision, declaring it:
... the well-settled rule of law in this state that "a person has no legal duty to provide support for a minor child who is neither his natural nor his adopted child and for whose care and support he has not contracted."
Id. at 1254 (quoting Albert v. Albert, 415 So. 2d 818, 820 (Fla. 2d DCA 1982)). Thus, had the former husband in this case presented the DNA test results at the time of dissolution, Daniel would have controlled and he would have no child support obligation. However, because he did not present these test results until more than a *929 year after the dissolution decree, he runs headlong into principles of res judicata.
In State, Department. of Health & Rehabilitative Services v. Robison, 629 So. 2d 1000 (Fla. 3d DCA 1993), the court held that because the dissolution decree discussed "the minor children born of the marriage," the attempted re-determination of the paternity of the children was barred on res judicata grounds. Id.; see also Vereen v. Vereen, 581 So. 2d 1004 (Fla. 1st DCA 1991) (post-dissolution paternity testing was barred by res judicata); State, Dep't. of Health and Rehabilitative Servs. Office of Child Support Enforcement v. Wright, 498 So. 2d 1008 (Fla. 2d DCA 1986) (post-dissolution paternity issue res judicata); Decker v. Hunter, 460 So. 2d 1014 (Fla. 3d DCA 1984) (same).
In D.F. v. Department of Revenue, 823 So. 2d 97, 100 (Fla.2002), the Florida Supreme Court stated bluntly:
We hold that a final judgment of dissolution of marriage which establishes a child support obligation for a former husband is a final determination of paternity. Any subsequent challenge of paternity must be brought under the provisions of Florida Rule of Civil Procedure 1.540.
Relief from Judgments in Florida
Florida Rule of Civil Procedure 1.540(b) permits relief from judgments on grounds of fraud "whether heretofore denominated intrinsic or extrinsic" within one year of the judgment. This claim was brought outside one year, so this main fraud provision does not apply. See Anderson v. Anderson, 845 So. 2d 870, 872 (Fla.2003) (stating that presumed father acted within "one-year window" after divorce decree to set aside paternity based on fraud). However, this rule further provides:
This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.
Fla. R. Civ. P. 1.540(b) (2004). The former husband argues, and we agree, that his action is essentially an attempt to set aside the dissolution decree's paternity and child support obligations for fraud on the court, i.e., extrinsic fraud. See Dep't. of Revenue v. Byrd, 710 So. 2d 1036 (Fla. 1st DCA 1998) (stating that seven year old paternity judgment could be set aside only on ground of extrinsic fraud); State Dep't. of Revenue v. Harris, 684 So. 2d 231, 232 (Fla. 2d DCA 1996) (stating that in the paternity context the only way to get relief from judgment after one year is by showing extrinsic rather than intrinsic fraud).[1]
The distinction between intrinsic and extrinsic fraud is "elusive," particularly where the circumstances appear to be somewhat of a "hybrid" nature. Guerriero v. Schaub, 579 So. 2d 370, 371 (Fla. 4th DCA 1991). "Extrinsic fraud, which constitutes fraud on the court, involves conduct which is collateral to the issues tried in a case." Cerniglia v. Cerniglia, 679 So. 2d 1160, 1163 (Fla.1996). The leading Florida case on extrinsic fraud, DeClaire v. Yohanan, 453 So. 2d 375, 377 (Fla.1984), summed up the concept, stating that extrinsic fraud occurs "where a defendant has somehow been prevented from participating in a cause." 453 So.2d at 377. It *930 defined intrinsic fraud as "fraudulent conduct that arises within a proceeding and pertains to the issues in the case that have been tried or could have been tried." Id. The court went on to state:
When an issue is before a court for resolution, and the complaining party could have addressed the issue in the proceeding, such as attacking the false testimony or misrepresentation through cross-examination and other evidence, then the improper conduct, even though it may be perjury, is intrinsic fraud and an attack on a final judgment based on such fraud must be made within one year of the entry of the judgment.
Id. at 380.[2]
In Winston v. Winston, 684 So. 2d 315, 319 (Fla. 4th DCA 1996), we stated:
Where a claim of fraud rests on the contention that a party has been misled as to the meaning or effect of documents actually presented to the court, the claim rests on intrinsic fraud. This is so even though some of the allegedly fraudulent or deceitful acts or omissions may have occurred extrajudicially.
Presumably, this would apply to the marital settlement agreement in this case.
In Guerriero, 579 So.2d at 371, we stated:
Generally, where a party can raise an issue in the initial case, any improper or fraudulent conduct by the opposing party, even if egregious, is deemed to be intrinsic to that proceeding. Generally, extrinsic fraud is found where a party is prevented from participating in an action by conduct which is collateral to the issues in the cause.
We believe that the basic misrepresentation alleged in this case concerned an issue that could have been raised in the dissolution proceedings, rather than an issue collateral to those proceedings.
The former husband relies primarily upon the first district's decision in M.A.F. v. G.L.K., 573 So. 2d 862, 863 (Fla. 1st DCA 1990). There, the court held that the wife's concealment from the husband that he was not the biological father of the children born during the marriage was extrinsic fraud upon the court, so that the husband's petition to vacate his child support obligations was not barred by the doctrine of res judicata.
In Lefler v. Lefler, 776 So. 2d 319, 322 (Fla. 4th DCA 2001) (Lefler II), we disagreed with M.A.F. Lefler II may be distinguishable because the trial court there found that the husband had reason to question the child's parentage but did not act. However, our rationale in Lefler II went to the heart of the intrinsic/extrinsic dichotomy, irrespective of this reliance factor, stating that:
... the wife's failure to disclose the child's true parentage would not constitute extrinsic fraud, regardless of whether her silence was relied on by the husband in entering into a marriage settlement agreement as to child support.
Id. at 322. We adhere to that view and certify conflict with the first district's decision in M.A.F.[3]
The Law in Other Jurisdictions
Our research discloses numerous cases wherein courts in other jurisdictions have considered this extrinsic fraud question. *931 The prevailing view appears to be that the nondisclosure of true paternity presents a question of intrinsic fraud.
Texas appellate courts have the highest number of reported cases on this issue. They have consistently ruled that concealment or misrepresentation of paternity during divorce proceedings involves intrinsic fraud. See Temple v. Archambo, 161 S.W.3d 217 (Tex.App.Corpus Christi 2005); Martindale v. Reno, 132 S.W.3d 462 (Tex. App.-Eastland 2003); Ince v. Ince, 58 S.W.3d 187 (Tex.App.-Waco 2001); Freeman v. Freeman, 1998 WL 830533 (Tex. App.-Austin 1998) (not designated for publication); see also Wise v. Fryar, 49 S.W.3d 450 (Tex.App.-Eastland 2001).
The most recent decision in Temple is typical. There the former wife was alleged to have represented to the former husband that he was the father. After the divorce it became apparent to him that his daughter did not look like him. Paternity testing then excluded him as the father. The court stated:
Paternity, although not contested, was an issue agreed to by the parties and addressed and resolved by the trial court.... The decree establishes the parent-child relationship. Temple did not allege any act on the part of Archambo that prevented him from contesting the issue of paternity.... He did not allege that he could not contest paternity at the final divorce hearing or that he was denied that defense as a matter of law. We conclude that Temple alleged only intrinsic fraud because his "meritorious defense" could have been fully presented at the original proceeding.
Temple, 161 S.W.3d at 225-26 (citations omitted). Although not as developed, Arkansas law is similar. See Graves v. Stevison, 81 Ark.App. 137, 98 S.W.3d 848 (2003); State Office of Child Support Enforcement v. Mitchell, 61 Ark.App. 54, 964 S.W.2d 218 (1998).
The Vermont Supreme Court's decision in Godin v. Godin, 168 Vt. 514, 725 A.2d 904 (1998), took a slightly different tack in reaching the same result. That court held that the mother's representation in the original divorce proceeding that the child was "born of the marriage" merely signified that the child was born while the parties were legally married, so that it was not a materially false statement. It went on to hold that the mere non-disclosure to an adverse party of facts pertinent to a controversy does not constitute fraud on the court for purposes of vacating the judgment. Godin was a 4-1 decision. However, even the dissenter recognized that the wife's affirmative representations to the court were not as to a collateral matter, but were as to "central facts upon which the divorce court must act to protect the children before it." Id. at 916 (Dooley, J. dissenting).
In Miller v. Miller, 956 P.2d 887, 905 (Okla.1998), the Oklahoma Supreme Court found that the former wife's misrepresentations during the divorce decree were intrinsic fraud, as perjury is the prototypical example of intrinsic fraud. It continued:
The remaining acts of fraud which plaintiff alleges, the original premarital fraud and the ongoing misrepresentation of paternity prior to the divorce, were not perpetrated by Judy in the procurement of the support order and therefore, do not constitute the kind of fraud which will warrant the intervention of equity to order vacation of a judgment and restitution.
Id.
In Mr. G v. Mrs. G, 320 S.C. 305, 465 S.E.2d 101, 103 (1995), the familiar fact pattern yielded a similarly familiar result:
*932 Here, the alleged fraud, Mrs. G.'s lying to Mr. G about paternity of the child in controversy, is intrinsic, not extrinsic, because the alleged misrepresentation relates directly, not collaterally, to a matter determined in the former proceedings, namely the question of the child's paternity.
In the early 1980s, the Alabama courts ruled that references in a divorce decree to the parties' minor child rendered paternity res judicata and that the former wife's misrepresentations to the court were not extrinsic fraud. Stewart v. Stewart, 392 So. 2d 1194 (Ala.Civ.App.1980); see also Anonymous v. Anonymous, 473 So. 2d 502 (Ala.Civ.App.1984). These rulings would later be largely superseded by the Alabama legislature's adoption of legislation permitting the challenge of paternity at any time based on DNA testing. Of course, Florida has no such legislation.
We note that Nevada has held that a wife's misrepresentations of paternity are extrinsic fraud which will permit reopening the divorce decree. See Love v. Love, 114 Nev. 572, 959 P.2d 523 (1998). However, we disagree with this apparent minority view.
Policy Considerations
Because the effect of our conclusion is to create a one-year window after the divorce to perform any DNA testing or be forever barred, we now discuss whether a time-based limitation is supportable as a matter of policy. There is ample authority that post-dissolution challenges to paternity should not be permitted beyond a "relatively brief passage of time." In re Paternity of Cheryl, 434 Mass. 23, 746 N.E.2d 488, 495 (2001) (quoting Nancy Darlene M. v. James Lee M., 195 W.Va. 153, 464 S.E.2d 795 (1995)).
We consider it significant that many states have legislatively adopted a "statute of limitations" approach based on the age of the child. The original Uniform Parentage Act (UPA), which has been adopted by 19 states (in whole or in part) mandated a five-year limitations period, so that any petition to disestablish would have to be brought by the child's fifth birthday or be forever barred. Theresa Glennon, Somebody's Child: Evaluating the Erosion of the Marital Presumption of Paternity, 102 W. VA. L.REV. 547, 566 (2000). Several other states (including California and Oklahoma) and the 2000 version of the UPA (adopted by four states), now provide for a two-year limitations period from the child's birth. See Anderlik, supra, at 14. Had the minor child in this case lived in any of these states, his legitimacy would be safe from disruption, as he was five years old at the time this petition was filed.
In her dissenting opinion in Mr. G, Judge Hearn pointed out a potential policy ramification of refusing a post-dissolution disestablishment suit:
The holding that the allegations of fraud contained in Mr. G's complaint cannot serve as the basis for attacking a judgment may be interpreted by the Family Court bar to require every male litigant in a domestic proceeding to request and secure a blood test.
465 S.E.2d at 106 (Hearn J., dissenting). While this view appears a bit extreme, there may be some merit in telling divorcing fathers who are in doubt to "test now, or forever hold your peace."
Many courts state that there is an overriding special concern for the finality of judgments in this area. See Paternity of Cheryl, 746 N.E.2d at 495 ("compelling public interest in the finality of paternity judgments"); see also Matter of Paternity of JRW, 814 P.2d 1256, 1265 (Wyo.1991) (stating that finality is especially important in divorce cases because of the emotional *933 involvement which magnifies matters); Hackley v. Hackley, 426 Mich. 582, 395 N.W.2d 906, 914 (1986) (stating that there is no area of the law requiring more finality and stability than family law).
In Ince, 58 S.W.3d at 191, the Texas appeals court said of the parental relationship established by the divorce decree:
The relationship was ... recognized, confirmed and became final under all the rules and with the formalities and solemnities accorded the creation and recognition of other legal relationships. The judgment at issue in this case should not be set aside because one of the individuals involved has become unhappy with the continued existence of it.
The Vermont Supreme Court agreed that finality is important, taking the view that the public interest primarily derives from the interests of the child:
Thus, the State retains a strong and direct interest in ensuring that children born of a marriage do not suffer financially or psychologically merely because of a parent's belated and self-serving concern over a child's biological origins. These themes underlie the conclusion, reached by numerous courts, that the public interest in finality of paternity determinations is compelling, and that the doctrine of res judicata therefore bars subsequent attempts to disprove paternity.
Godin, 725 A.2d at 910.
The fundamental choice in these cases is between the interests of the legal father on the one hand and the child on the other. The Vermont Supreme Court stated:
Although we understand plaintiff's interest in ascertaining the true genetic makeup of the child, we agree with the many jurisdictions holding that the financial and emotional welfare of the child, and the preservation of an established parent-child relationship, must remain paramount. Where the presumptive father has held himself out as the child's parent, and engaged in an ongoing parent-child relationship for a period of years, he may not disavow that relationship and destroy a child's long-held assumptions, solely for his own self-interest.
Id.; see also In re Marriage of Wendy M., 92 Wash.App. 430, 962 P.2d 130, 134 (1998) (stating that while former husband had an interest in avoiding erroneous child support, he could not sacrifice the child's interest to protect his own); Hackley v. Hackley, 426 Mich. 582, 395 N.W.2d 906 (holding that best interests of child must prevail over unfairness to former husband challenging paternity nine years after his divorce).
The main issue affecting the child in a disestablishment suit is the psychological devastation that the child will undoubtedly experience from losing the only father he or she has ever known. See Paternity of Cheryl, 434 Mass. 23, 746 N.E.2d 488, 495-96; Marriage of Wendy, 962 P.2d at 133; Mr. G, 465 S.E.2d at 104-05. As Theresa Glennon pointed out, these children are hit with a "double-whammy." First, they must endure the trauma of divorce, then experience the pain of their parentage in dispute. Glennon, supra, at 549-50.
We realize that as judges, we cannot order a man to love a child. In Paternity of Cheryl, the Massachusetts Supreme Court stated that it harbored no illusions about its ability to protect the child fully from the consequences of the former husband's decisions. Still, it felt that relieving the former husband of his financial obligations might itself "unravel the parental ties, as the payment of child support `is a strand tightly interwoven with other forms of connection between father and child,' and often forms a critical bond between them." Paternity of Cheryl, 746 N.E.2d at *934 499 (quoting Bowen v. Gilliard, 483 U.S. 587, 617, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) (Brennan, J., dissenting)). Or, as the Iowa Supreme Court more bluntly put it, "We hope that David's heart will follow his money." Dye v. Geiger, 554 N.W.2d 538, 541 (Iowa 1996).
Other courts have been less kind. The Vermont Supreme Court in Godin, said:
The fact that plaintiff chose for self-serving purposes to jeopardize his relationship with Christina is beyond our control. We need not, however, award plaintiff a financial windfall for his conduct, or deprive Christina of not only a father's affection, but also the legal rights and financial benefits of the parental relationship.
725 A.2d at 911; see also Niccol Kording, Nature v. Nurture: Children Left Father-less and Family-less When Nature Prevails in Paternity Actions, 65 U. PITT. L.REV. 811, 851 (2004). By refusing to set aside paternity decrees based on belated requests, courts "will help deter other parents who might otherwise seek, for financial or other self-serving reasons, to dissolve their parental bonds." Godin, 725 A.2d at 911.
Stability and continuity of support, both emotional and financial, are essential to a child's welfare. Paternity of Cheryl, 746 N.E.2d at 495. Indeed, one of the factors most important to a child's post-divorce adjustment is the degree of economic hardship. Glennon, supra, at 561.
We recognize that the former husband in this case may feel victimized. However, Theresa Glennon argues cogently that:
[w]hile some individuals are innocent victims of deceptive partners, adults are aware of the high incidence of infidelity and only they, not the children, are able to act to ensure that the biological ties they may deem essential are present.... The law should discourage adults from treating children they have parented as expendable when their adult relationships fall apart. It is the adults who can and should absorb the pain of betrayal rather than inflict additional betrayal on the involved children.
Anderlik, supra, at 18 (quoting Theresa Glennon, Expendable Children: Defining Belonging in a Broken World, 8 DUKE J. GENDER L. & POLICY 269, 275(2001)).
Conclusion
In sum, we conclude, along with the majority of states, that the issue of paternity misrepresentation in marital dissolution proceedings is a matter of intrinsic fraud. It is not extrinsic fraud, or a fraud upon the court, that can form the basis for relief from judgment more than a year later. Any relevant policy considerations that would compel a different result are best addressed by the legislature.
For the reasons stated above, we affirm the trial court's dismissal of the former husband's petition for relief based on fraud.
Affirmed.
WARNER and KLEIN, JJ., concur.
NOTES
[1] We note that there is a special rule, Fla. Fam. L.R.P. 12.540, which provides that there is no time limit for motions for relief from judgments in family law cases where the motion is based on a fraudulent financial affidavit. However, the Florida Supreme Court has not extended such relief to those in the former husband's situation by adopting a similar rule to permit paternity challenges based on DNA testing at any time.
[2] The "fraud" at issue in DeClaire was a husband's false financial affidavit, which the court found was intrinsic fraud. This ruling ultimately led to the special family law rule discussed in the earlier footnote.
[3] We see no distinction between the wife's silence about paternity in Lefler II and the affirmative misrepresentation of paternity alleged here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620851/ | 13 So. 3d 1 (2007)
Nathaniel WOODS
v.
STATE of Alabama.
CR-05-0448.
Court of Criminal Appeals of Alabama.
August 31, 2007.
Opinion on Return to Remand December 21, 2007.
*4 Glennon Fletcher Threatt, Jr., Birmingham, for appellant.
Troy King, atty. gen., and Jasper B. Roberts, Jr., asst. atty. gen., for appellee.
SHAW, Judge.
A Jefferson County grand jury indicted Nathaniel Woods for four counts of capital murder for his involvement in the shootings of four Birmingham police officers. In case no. CC-04-4133, Woods was charged with intentionally causing the death of Carlos Owen by shooting him with a firearm while Owen was on duty as a police officer, in violation of § 13A-5-40(a)(5), Ala.Code 1975; in case no. CC-04-4134, Woods was charged with intentionally causing the death of Harley A. Chisolm III, by shooting him with a firearm while Chisolm was on duty as a police officer, in violation of § 13A-5-40(a)(5), Ala.Code 1975; in case no. CC-04-4135, Woods was charged with intentionally causing the death of Charles R. Bennett by shooting him with a firearm while Bennett was on duty as a police officer, in violation of § 13A-5-40(a)(5), Ala.Code 1975; and in case no. CC-04-4384, Woods was charged with intentionally causing the death of Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett by one act or pursuant to one scheme or course of conduct by shooting them with a firearm, in violation of § 13A-5-40(a)(10), Ala.Code 1975. Pursuant to the State's motion, the trial court consolidated the cases for trial.[1] The trial began on October 3, 2005, and on October 10, 2005, the jury found Woods guilty of all charges. The penalty phase of *5 the trial was conducted before the jury the following day, and the jury recommended, by a vote of 10 to 2, that Woods be sentenced to death. On December 2, 2005, the trial court held the final sentencing hearing. The parties presented evidence and argument for the court's consideration, and the court took the matter under advisement. On December 9, 2005, the trial court accepted the jury's recommendation and sentenced Woods to death. On January 3, 2006, Woods filed a motion for a new trial. On January 23, 2006, the trial court held a hearing on the motion, and it denied the motion that day.
The evidence adduced at trial indicated the following. Birmingham police officers Carlos Owen, Harley A. Chisolm III, Charles R. Bennett, and Michael Collins were on duty on June 17, 2004. Officer Collins testified that he was on patrol when he heard a radio transmission from Officer Owen, announcing that he was getting out of his patrol car on 18th Street at "the green apartments." (R. 492.) Officer Collins was familiar with the apartments because they were in an area that had "been a drug problem area for years." (R. 493.) The apartments were located four or five blocks from the police precinct. Officer Collins went to the green apartments to back up Officer Owen, and he parked behind the apartments a few minutes after he heard Officer Owen's radio call. Before Officer Collins arrived, Officer Owen had been checking the license tags and the vehicle identification numbers of the vehicles located behind the apartments (R. 965-67), and he was standing near the back door of one of the apartments when Officer Collins arrived. Officer Owen told Officer Collins that a man at the back door had cursed at him and yelled at him and had told him to "get the fuck off his property." (R. 495.) Officers Owen and Collins went to the back door of the apartment; Officer Collins testified that Nathaniel Woods was the man standing inside the doorway of the apartment. Woods then cursed at both officers repeatedly and told them to "[g]et the fuck off our property." (R. 498.) Officer Collins saw a female in a white T-shirt behind Woods. Officer Collins testified that it appeared that a third person was also inside the apartment because someone pulled a window covering back and said "[f]uck the police" several times. (R. 501.)
Officer Collins testified that Woods told Officer Owen "[y]ou always hide behind that badge and gun," and "[t]ake off that badge and I will fuck you up." (R. 501.) Officer Owen then took off his badge, but Woods stayed behind the door. At that point, a female neighbor walked up to Officer Owen and called him by his nickname, Curly; after they spoke, Officer Owen put his badge back on and he and the female neighbor walked toward his patrol car. Officer Chisolm then arrived in his patrol car, and the other officers told him what had occurred. Officers Collins and Owen drove into the alley behind the apartments and spoke about the incident. Officer Owen said that the man at the door had told him that his name was Nathaniel Woods. Officer Collins checked Woods's name using the in-car computer; specifically, he checked the City of Birmingham's files in the event that Woods had been arrested in Birmingham, and he checked the National Crime Information Center ("NCIC") files. The NCIC files indicated that a person named Nathaniel Woods, with an address in that area and of an age near the age Officer Collins estimated Woods to be, had an outstanding misdemeanor assault warrant from the City of Fairfield Police Department. However, Officer Collins testified that, at that point, he could not verify that the man in the apartment was the same person who had the outstanding warrant for his arrest.
*6 Officers Collins and Owen contacted Officer Chisolm by radio and asked him to go to the precinct to print out a picture of the person wanted by the Fairfield Police Department so they could determine whether that person was the person who had identified himself to Officer Owen as Nathaniel Woods. They also asked Officer Chisolm to contact the Fairfield Police Department to confirm that the warrant was still outstanding. Another officer later saw Officer Chisolm sitting at the NCIC computer at the Birmingham Police Department; he was printing a picture of a mug shot, and he had a printout of a "hit confirmation," indicating that Nathaniel Woods had an outstanding warrant. Fairfield Police Department dispatcher Jackie Buchanan confirmed that a warrant for Woods had been issued on February 18, 2004, and that it remained outstanding. Officer Chisolm received a radio call from a Birmingham dispatcher at 1:17 p.m., informing him that the Fairfield Police Department had confirmed that the warrant was still active. Officer Chisolm then radioed the Birmingham dispatcher that he, Officer Owen, and Officer Collins would be leaving the precinct momentarily to try to arrest Woods. (R. 975.) Officer Chisolm radioed Officer Steven Sanders and told Officer Sanders that he had a suspect with an outstanding warrant who had been taunting the police, that is, standing inside a door saying, "You can't get me. You can't get me," and then running back into the apartment. (R. 639-40.) Officer Sanders told Officer Chisolm that he would drive to the address on 18th Street to assist Officer Chisolm in serving the warrant, but that he was approximately 10 minutes from the address.[2]
While the police were confirming the validity of the warrant for Woods's arrest, Woods remained at the apartment. Marquita McClure, Woods's girlfriend, testified that in June 2004 she was living in the apartment with Woods, whom she called by the nickname "Nate." Kerry Spencer, Woods's codefendant in this case, also lived in that apartment, and McClure knew Spencer by his nickname, "Nookie." Another young woman, Markesha Williams, was staying at the apartment and Spencer's brother, Courtney, also occasionally came to the apartment. McClure testified that Woods and Spencer were close friends, and that the two sold drugs from the apartment. She testified that the pair used a "doorman," someone who stood at the back door to look out for the police or to see if someone they did not know was trying to come inside. McClure also testified that guns were kept in the apartment; she saw long guns and revolvers, and she testified that Woods and Spencer carried the guns with them while they were in the apartment. McClure said that she saw Spencer walking around the apartment with a long gun strapped to his back on the day of the shootings, and she testified that the night before the shootings both Spencer and Woods were in the backyard shooting guns.
McClure testified that on the morning of the shootings, Woods had been outside but came inside and was standing at the screen door when Officer Owen drove up. She heard Woods and Officer Owen talking like they were angry, and when she walked into the room, she heard Woods tell Officer Owen to take his badge off. McClure said that Officer Owen took his badge off, and then the next-door neighbor came over and told Officer Owen to put his badge back on, which he did. The officers left soon after. While Woods and Officer Owen were talking, McClure said, Spencer was standing at the window of the back bedroom. After the police left, Woods and *7 Spencer said they did not like the police and they said, "I'll kill the mother fuckers." (R. 549.) She had on previous occasions heard Spencer make similar statements, but she did not pay attention when Woods or Spencer made these statements because she did not take them seriously.
McClure left the apartment to run an errand, and she asked Woods to come with her. However, Woods told her that he was going to stay with Spencer in case the police came back. McClure said that when Woods walked her outside to the car, Woods was carrying his revolver. McClure did not return before the shootings took place.
Officer Collins testified that after the officers received confirmation from the Fairfield Police Department that the warrant against Woods was valid, he and Officers Owen and Chisolm drove to the green apartments to serve the warrant. As they arrived at Woods's apartment, Officer Bennett arrived; Officer Collins said that he did not know how Officer Bennett was notified of their attempt to execute the warrant at the apartment. Officers Chisolm and Bennett went to the front of the apartment, and Officers Collins and Owen went to the back of the apartment. Officer Collins testified that, as he and Officer Owen walked toward the back door, a man who had been working on one of the vehicles parked near the apartment walked away and said, "I don't want no part of this. I don't want nothing to do with this. I don't want no part of this." (R. 650.) Woods was again standing inside the screen door, and he immediately began cursing and telling the officers to "get the fuck out" of there. (R. 650.) Officer Owen told Woods that they had a warrant for his arrest on a misdemeanor assault charge from Fairfield and that he needed to step outside. Officer Collins said that Woods refused to come outside and that he responded to Officer Owen's request by saying, "Fuck you. I don't have no warrant. Fuck you." (R. 651.) Woods repeatedly stated that there was no outstanding warrant for his arrest, and he demanded to see the warrant. The officers then called Officer Chisolm on the radio and asked him to come to the back of the apartment with the picture and the NCIC printout. Officer Chisolm walked around to the back of the apartment and showed Woods the mug shot and the NCIC printout, but Woods continued to argue that he had "no papers," i.e., that a warrant had not been issued. Officer Chisolm told him that he was under arrest and to step outside. Officer Collins testified that Woods told the officers that "[i]f you come in here, we'll fuck you up." (R. 694.)
Officer Collins testified that, all of a sudden, Woods turned and ran from the kitchen further into the apartment. Officer Chisolm grabbed the screen door, opened it, and followed Woods inside the apartment. Officer Owen then went into the apartment; Officer Collins followed behind him. None of the officers had their weapons drawn when they entered the apartment. Officer Collins testified that when he stepped into the kitchen of the apartment, he saw that Officers Chisolm and Owen were in the doorway between the kitchen and the living room and they appeared to be holding Woods. He could hear Woods say, "Okay. I give up. Just don't spray me with that mace." (R. 654.) Officer Collins then heard someone radio that "[t]hey are coming out the front door." (R. 656.) Officer Collins testified that Officers Chisolm and Owen had the doorway blocked, so he turned and ran toward the back door so that he could join Officer Bennett at the front door. As he turned, Officer Owen said to him, "`Mike, they are going out the front.'" (R. 656-57.)
*8 Officer Collins testified that, as he got to the back door, he heard "a little shuffling behind me and shooting started." (R. 657.) He heard numerous shots and he felt a slapping sensation on his leg by his holster. Officer Collins testified that he ran toward the back of his patrol car for cover. He twice radioed the dispatcher that shots had been fired. From his position behind his patrol car, Officer Collins radioed a "double aught" call, a seldom-used radio code meaning that an officer needs all possible assistance because his life is in danger. Officer Collins saw Kerry Spencer standing at the doorway of the apartment shooting in his direction; he could hear the bullets hit the vehicle, and he could hear glass shattering. Several other officers then arrived at the scene. Later that afternoon, Officer Collins discovered that his holster had a hole in the side, as did his pants, and that he had sustained an injury to the back of his upper right thigh. He found a metal fragment in the lining of his pants pocket near the hole in his pants.
Carolyn Lavender, a sergeant with the Birmingham Police Department assigned to communications, testified about the radio transmissions among several of the officers and dispatchers on the day of the shooting. Sgt. Lavender testified that a dispatcher contacted Officer Chisolm at 1:17 p.m. and notified him that the Fairfield arrest warrant on Woods had been confirmed. Officer Chisolm notified the dispatcher that he and Officers Owen and Collins would be leaving the precinct soon to try to arrest Woods on the warrant. The next radio transmission involving Woods came at 1:24 p.m., from an unidentified officer who stated, "They are going out the front." (R. 975.) Two seconds later a transmission of "[s]hots fired," was made; another "[s]hots fired" transmission was radioed four seconds after that. (R. 975-77.) At 1:25 p.m., Officer Collins radioed "double aught."
Several officers who responded to the double-aught call testified at trial. Officer Hugh Butler testified that he was less than a mile from the green apartments when he heard the call. When he arrived, he saw that another officer was already at the scene and was standing to the side of the front door, armed with a shotgun. When Officer Butler walked toward the front door, he saw Officer Bennett on the ground, face up, "obviously dead with a hole in his face and smoke coming out if it." (R. 708.) As he ran up to the doorway, he looked behind him and noticed that Officer Terrance Hardin and another officer had arrived. One of the officers called out that there was a weapon in the grass; that weapon was an SKS assault rifle with a magazine attached. Officer Hardin picked up the assault rifle and secured it in Officer Butler's patrol car. Officer Butler called into the apartment for Officer Owen and Officer Chisolm, but he received no answer. He called for anyone else in the apartment to surrender, but received no response to that directive. He and several other officers then entered the apartment. Officer Butler testified that he saw Officers Owen and Chisolm and that they were dead. When Officer Fred Alexander saw Officer Bennett outside the apartment, he radioed dispatch to report that an officer was down. When Officer Alexander saw that Officers Owen and Chisolm were dead, he radioed dispatch to advise that two other officers were down. The officers found a handgun in the bathroom and two long guns, one with the stock sawed off, in a bedroom. After the officers cleared the apartment and determined that no one else was inside, they then went outside and found Officer Collins. Sgt. Ruben Parker, who was retired at the time of trial, testified that he and Officer J.D. Gray responded to *9 the double-aught call, and they kept a perimeter around the scene when they arrived. Sgt. Parker said that another officer was near Officer Bennett's body and noticed a Glock brand gun that was 6 to 12 inches from Officer Bennett's right hand. Sgt. Parker kept the gun until he turned it over to an evidence technician.
Many officers canvassed the neighborhood after the shootings. Sgt. Daniel Carr, who was retired at the time of trial, testified that he came upon a house where three black males were sitting on the porch. He testified that one of the men was Woods, and he said that Woods appeared to be very relaxed as he sat on the porch and spoke with the officer. After Sgt. Carr confirmed by looking at a photograph that the man looked like one of the suspects, he asked Woods for his name and Woods gave Sgt. Carr his full name. Woods was taken into custody. When Woods was patted down, the officers found no identification on him, but they found two .22 caliber bullets in a pants pocket. At 2:56 p.m., an officer radioed that Woods was in custody. (R. 977-78.)
Sgt. James Blanton testified that on the day of the shootings, he was working in the vice-narcotics division of the Birmingham Police Department, but when he heard the double-aught call, he and his partner closed their operation and responded to the location of the shooting. After completing some searches of houses in the area, he was informed that a suspect was in a residence at a certain address on 18th Street. Sgt. Blanton arrived at that residence and he saw his partner attempting to coax Kerry Spencer out of the attic. Sgt. Blanton said that he and a detective saw Spencer's hands moving toward them, so they reached into the attic and pulled Spencer out.
Fernando Belser, whose nickname is "Blue," was inside the apartment when the officers were shot and killed. Belser testified that he had been staying at the apartment on 18th Street with Woods and Spencer for three or four months. He said that Woods's girlfriend, Marquita McClure, and Spencer's girlfriend, Markesha Williams, were also staying at the apartment in June 2004. Belser testified that Woods and Spencer made money by selling drugs from the apartment and that he was the "doorman" at the apartment. He stated that a "doorman" determines who gets to come inside to purchase drugs and handles most of the transactions of money and drugs between the purchaser and drug dealer. According to Belser, drug purchasers would come in the back door of the apartment, and were generally not permitted past the kitchen into the living room unless Woods or Spencer gave them permission. Belser testified that "[i]f somebody tried to go past the through the kitchen into the living room without permission, or if they tried to go and they were being told to stop in the kitchen, they would probably, you know, get hurt pretty bad or something could happen to them ...." (R. 754.) Belser testified that Woods and Spencer were the primary purveyors of drugs in the apartment and that they sold mostly crack cocaine. On an average day, Belser said, Woods and Spencer sold drugs to 100 to 150 customers and a lot of money flowed through the apartment.
Belser testified that handguns and shotguns were kept in the apartment and that Woods and Spencer carried guns on them. Woods typically carried a small handgun, but Spencer carried all kinds of guns, including an assault rifle. Belser testified that he first saw the SKS assault rifle used in the shooting the night before when Spencer test-fired it outside the apartment. Belser testified that, before the day of the shootings, he had heard Spencer say *10 that he did not like the police, that he was tired of them harassing him, and that if they did not stop harassing him, he would "light them up," meaning that he would shoot them. (R. 762.) Belser also said that he had heard Woods make statements similar to those Spencer had made.
Belser testified about the police officers' first stop at the apartment on June 17, 2004; that testimony was substantially similar to that given by other witnesses. Belser left the apartment after the officers did, and he was gone for an hour or two. After he returned, the police came back a second time. According to Belser, Woods was standing inside the screen door at the back of the house when Officers Owen and Chisolm arrived in the back. He heard Woods and Officer Chisolm discussing a warrant, then Woods began to "retreat, backpedal" into the living room. (R. 771.) Belser said that Officer Chisolm then snatched the screen door open and came inside the kitchen. Officer Chisolm walked just past the threshold between the kitchen and the living room, shaking a can of Mace, and Woods told Officer Chisolm not to spray him with the Mace. Belser testified that he did not see Officer Chisolm spray the Mace; that he did not cough or smell anything; and that Woods was not coughing. At that point, Belser said, Spencer came out of the bedroom carrying the SKS assault rifle that was later recovered in the yard of the residence. Belser said that Spencer opened fire on Officer Chisolm and Officer Chisolm tried to return to the kitchen. Belser did not look toward the kitchen anymore after Spencer began shooting but knew that Spencer fired several shots into the kitchen and out of the back of the apartment. (R. 813-14.) Woods tried to go out of the front door, Belser said, but when Woods opened it, Woods told Spencer that they had "another one right there." (R. 778.) Because the front door opened inward, Belser's view was blocked, and he could not see anyone outside. Spencer turned and fired shots out the front door. Belser testified that Woods then ran out the front door and that Spencer followed him within seconds; the pair ran across the street. Belser walked to the front door and saw Officer Bennett on the ground; the shooting had stopped, he said, and he stepped over the officer's body and walked down the street.
On cross-examination, Belser acknowledged that he had previously pleaded guilty to felony charges of possession of a forged instrument. He continued to maintain that Spencer and Woods had expressed that they were tired of the police messing with them and that he had heard Spencer say that he would "light them up" and that Woods agreed with Spencer. However, when Belser was asked whether he could determine whether Spencer and Woods were serious when they made such remarks, Belser replied that it was hard to say with Spencer. He added that it was "just hard to say if he meant it or not because he kept a certain demeanor. He beseems like he was dead serious, but he would be joking. And then you would think he was joking, but he would be dead serious ...." (R. 803-04.) Belser also testified that if he had believed that Spencer and Woods intended to shoot police officers, he would not have stayed at the apartment. Finally, Belser testified that, when Woods opened the front door and announced there was "another one," he did not tell Spencer to shoot him; instead, Belser said, when Woods opened the door and saw the other officer, "it scared him." (R. 815.)
John Prather testified that he lived in a four-room house commonly known as a "shotgun-style house" located on 18th Street in Ensley at the time of the shooting. He said that he was familiar with the *11 green apartments and could see them from his house. On the day of the shooting, he was watching television in the middle room of the house, the bedroom; two acquaintances were also in the house, a young woman named Marshay and Michael Scott. Prather testified that he heard many sirens that afternoon and, suddenly, two men kicked open his back door. He identified Woods as one of the men and said that Spencer was the second man. According to Prather, Woods and Spencer came into his bedroom and sat down; Spencer sat to his right and Woods sat to his left, near a heater. Prather said that he was concerned for his safety, and he asked Woods and Spencer what was going on. They told him that he would be taken care of when it was all over, and he knew they were talking about paying him, though no specific dollar figure was mentioned. Prather said that he overheard Woods tell Spencer, "You came through for me." (R. 842.)
Prather testified that he became restless after he saw reports on the television involving the three officers being shot at the green apartments, and he knew that Woods and Spencer were involved. Although he was very apprehensive about getting up, Prather said, he eventually got up and walked out of the bedroom and into the living room. Prather then walked out of his house and sat on the porch of the house next door. According to Prather, Woods followed him and sat on the steps at the house next door. Police were all around the area. After approximately 10 minutes, Prather walked back to his house and sat on the banister of his porch; Woods followed him and sat on the steps of his porch. Prather testified that a police officer walked over and spoke with Woods, and Woods gave the officer his name and surrendered. Finally, Prather testified that when Woods first burst into his house, he did not appear to have a hard time breathing, and his eyes had no tears and his nose was not running.
Michael Scott testified that he was in Prather's house, which was approximately one block from the green apartments, when he heard shots fired. He admitted that he had previously been inside the green apartments to purchase cocaine; he said he had purchased drugs approximately 10 times from Woods and Spencer. After he heard the shots fired that day, he yelled to Prather, and he then heard a commotion in the back of the house. Scott said that he turned and saw Woods and Spencer come through the back door of Prather's house. Woods walked into the living room where Scott was standing. Woods was not coughing and he had no trouble breathing, Scott said; Scott also said that Woods had no tears and his nose was not running. Woods said, "They fucked with the wrong niggers. We shot their asses" (R. 860), and then said something about having been sprayed with Mace. According to Scott, Woods then went into the bedroom with Prather and Spencer. When Prather came into the living room and suggested to Scott that they go outside, he turned to see where Spencer had gone and heard a commotion in the attic, so he assumed that Spencer had climbed into the attic. Scott said that a police officer eventually came to the porch and recognized Woods from a photograph he was holding, and that Woods was taken into custody.
Officer Cedric Clifton testified that he was working in the evidence-technician unit of the Birmingham Police Department on June 17, 2004, and that he photographed the scene and collected evidence at Prather's house. Officer Clifton testified that he collected a wallet from beneath the couch in the living room that contained Woods's identification card and Social Security card, among other things. *12 He also found a 9mm handgun in the attic of the residence next to the entryway to the attic. The gun was loaded, and it had 1 round in the chamber and 10 rounds in the clip. Officer Clifton testified that in the bedroom, behind the heater, he recovered a second handgun, a Beretta brand 9mm gun. Officer Clifton testified that "[t]he weapon had been hit right behind where you pull the trigger," and that he was not able to remove the magazine from the weapon as a result of the damage. (R. 945.) Subsequent testimony established that the Beretta handgun found behind the heater in Prather's house was Officer Owen's service weapon. (R. 944, 1194.) Officer Clifton was unable to locate any fingerprints on the weapon.
Evidence technicians and a crime-scene investigator photographed and diagramed the scene where the shooting occurred and collected evidence from the apartment, in the front and back yards, and in a nearby vacant lot. The officers testified that they collected numerous weapons, shell casings, spent bullets, and live ammunition from the scene. Finally, Officer Chester White, an evidence technician, testified that he received a Glock 19 9mm semiautomatic weapon from Sgt. Ruben Parker. That gun had been located near Officer Bennett's body and was identified as his service weapon. Officer White testified that the gun was fully loaded. Officer White also received the SKS assault rifle that had been found in the front yard of the residence; two live rounds remained in the assault rifle. Three loaded weaponsa shotgun, a rifle, and a revolverwere also recovered from other rooms in the apartment. Officer White photographed the bodies of the deceased officers and removed their duty belts and items from their pockets. Officer Owen had no weapon on his duty belt, and the gun holster on the belt had been damaged. When he collected Officer Chisolm's duty belt, Officer White noted that the holster that usually contained a Mace canister was empty and that the canister of Mace was located near the back door of the apartment. Officer White testified that, after he received information from the coroner about the gunshot wound to Officer Bennett's face, he returned to the scene and dug a bullet from the ground beneath where Officer Bennett's head had been lying.
Charles Underwood, an investigator in the forensics unit of the Birmingham Police Department, testified that he photographed the backyard of the apartment and collected shell casings there. He observed bullet holes in Officer Collins's patrol carin the radiator, the windshield, and the strobe light bar of the carand bullet holes in another car parked behind the apartment. A vehicle in front of the apartment had bullet holes in the front fender and in the hood. Inv. Underwood collected bullet fragments from inside Officer Collins's patrol car and from the car parked in front of the apartment. Inv. Underwood also collected two spent shell casings from the front yard near Officer Bennett's body. Finally, Inv. Underwood testified that he conducted a trajectory examination of the cars so that he could determine the path the bullets took when they were fired and where the barrel of the gun was in relation to where the shots were fired.
Dr. Gary Simmons, a forensic pathologist with the Jefferson County Coroner's Office, testified that he conducted the autopsies on the three officers. He provided details of the examinations of each officer's body, and concluded that each had died of multiple gunshot wounds. Dr. Simmons testified that Officer Chisolm and Officer Owen sustained several gunshot wounds to the back that then exited the front of the body; that the stippling on the skin indicated that when the bullet was fired into *13 Officer Bennett's face, the gun was 12 inches or less from him; and that one of the bullets fired at Officer Chisolm was fired from less than two feet away. Dr. Simmons testified that the more serious wounds the officers sustained, as opposed to the graze wounds, were typical of those caused by high-powered rifles because the bullets left large holes in the bodies, particularly as the bullets exited the bodies. Dr. Simmons recovered bullet fragments from each officer's body and secured them for further analysis. Dr. Simmons testified that Officers Chisolm and Bennett were wearing bulletproof vests, but he noted that several bullets went through the vests because those vests are typically made to stop bullets from handguns, not from high-powered rifles.
Mitch Rector, a firearm-and-toolmark examiner with the Birmingham Police Department, testified that he examined the weapons, bullet fragments, and shell casings recovered in this case. He identified numerous shell casings and bullets that had been fired from the SKS assault rifle recovered at the scene. Rector testified that some of the bullet fragments recovered during the autopsies of Officers Bennett and Chisolm had been fired from the SKS assault rifle. The fragments recovered from Officer Owen's body were similar to the type of bullet fired from the SKS assault rifle, but he could not state conclusively that the fragments were from a bullet fired by the SKS assault rifle he tested. Rector testified that he examined the officers' weapons and that Officer Bennett's weapon and Officer Chisolm's weapon functioned normally, but that Officer Owen's firearm had a large defect in the metal near the trigger guard that severely damaged the gun and rendered it inoperable. In addition, the holster on Officer Owen's duty belt was damaged, and Rector testified that the damage to the gun and holster were typical of what he would expect if they had been struck by a high-velocity bullet such as one fired by an SKS-type rifle. Rector also found that a portion of a bullet had been left inside Officer Owen's holster, and he stated that the appearance of the bullet fragment was consistent with what is commonly found in SKS ammunition. None of the shell casings recovered at the scene had been fired from any of the officers' weapons. Finally, Rector testified that he conducted a distance study regarding the gunshot wound to Officer Bennett's face to determine how far the muzzle of the SKS assault rifle was from his face when it was fired. He determined that the end of the barrel of the SKS assault rifle was from two to six inches from the officer's face when it was fired.
Greg Parker testified that on December 4, 2003, before the shootings in this case, he was employed as a police officer by the City of Fairfield. While he was assisting other officers who were attempting to serve a warrant, Woodswho was not the person the officers were looking forcame from behind the residence and walked toward him. Officer Parker said that Woods was wearing a long trench coat, that he had his hands in his pockets, and that he looked suspicious. Officer Parker told Woods to remove his hands from his pockets because his job made him suspicious of people with their hands in their pockets because they might have a firearm; Officer Parker also told him that a sudden movement could get him shot. Officer Parker said that, in response, Woods "said he could have shot me." (R. 1308.) Officer Parker asked Woods if he had a gun, and Woods said he did, so Officer Parker and the other officers restrained him. The officers removed from Woods's pants what appeared to be an operational handgun but was actually a pellet gun. Woods was arrested on a charge of menacing.
*14 William Powell, a Jefferson County deputy sheriff assigned to the jail, testified that when Woods was in jail on December 14, 2004, after the shootings in this case, he closed the door of Woods's cell, and Woods called him derogatory names and then told him that he was "hiding behind [his] badge just like the other three mother fuckers." (R. 1318.) Woods also told Deputy Powell that if he won his case and was released, he was going to come looking for him. Deputy Powell filed a report on the incident.
Deputy Vince Gillum testified that he was employed by the Jefferson County Sheriff's Office and that he was assigned to the jail. He stated that, on June 22, 2005, he observed contraband on the wall of Woods's cella drawing pasted to the wallso he removed it. The drawing was admitted into evidence, and we have examined it. The drawing depicts two men shooting firearms. One man is shooting an assault rifle and three flaming skulls are depicted in the blasts from that weapon, and the other man is shooting two handguns. The drawing contains a heading at the top, "NATE $ NOOKIE," and depicts street signs at an intersection of "18th Street and Ensley." When Deputy Gillum removed the drawing, Woods said that the drawing was his and that he wanted it back.
Deputy Sheriff Tonya Crocker testified that she was also assigned to the jail and that on July 29, 2005, she searched Woods's cell. She found some broken razors and some drawings that concerned her. After obtaining a search warrant, Deputy Crocker seized several items from the bunk where Woods slept. The items included a handwritten document and two copies each of two separate drawings depicting "Nate" and "Nookie" shooting on 18th Street. One of the drawings depicted flaming skulls coming from the blast of what appears to be an assault rifle and the other drawing depicted a police car with many bullet holes in it.
Detective Phillip Russell of the Birmingham Police Department testified that the trial court had ordered Woods to provide handwriting samples, so he obtained those samples from Woods using the procedure he had been instructed to use by the handwriting analyst who would later examine the samples. Det. Russell was instructed to have Woods repeatedly rewrite the words on the document found in his cell. We have reproduced those words exactly as they appear on the document:
"Seven execution styles murders
I have no remorse because I'm the fuckin murderer
Haven't you ever heard of a killa
I drop pigs like Kerry Spencer
So when I walk around strapped
One time bust the caps and watch pigs clapse
Snapp, adapt to this because I needs no adapter
this is just the first chapter."
(State's Exhibit 337-A.) Det. Russell testified that the document appeared to be an adaptation of the lyrics of a rap-style song by an artist named Dr. Dre, which he located by an Internet search.
Steven Drexler testified that he had recently retired from the Alabama Department of Forensic Sciences, where he had been with the questioned document and handwriting unit. He testified that he compared Woods's known writing samples that were obtained by Det. Russell with the writing on the document obtained during the search of Woods's cell. Drexler testified that, in his opinion, the document was written by Woods.
Woods presented several witnesses in his defense. Markesha Williams testified that she had known Kerry Spencer for *15 about five days and that she had visited Spencer at the green apartments. She was at the apartment on the day of the shooting. Williams testified that, when the officers first came to the house, she heard Woods and Spencer talk back and forth with the police. She stated that Spencer told an officer that if the officer took his badge off Spencer would come outside, so the officer took his badge off, but Spencer remained inside. She said that the police left after approximately 10 minutes. She testified that, after the police left, Woods said that if the police kept coming back he was going to shoot them but that she did not take him seriously. Later, Williams saw two police cars drive down the back alley. She went into the living room, and Woods was standing at the screen door. When the two officers came to the door, Williams said, Woods asked them why they kept coming back "messing with `em." (R. 1451.) Williams testified that after Woods and the police argued, the officers "snatched the door off the hinges," wrestled Woods to the ground, and beat him. (R. 1452.) She said that she did not see anyone spray Mace; that she has asthma; and that she would have gotten sick if she had smelled or been around Mace. Williams testified that Courtney Spencer woke up his brother, who was sleeping; that Kerry Spencer went into the bedroom and looked out the window; and that he returned to the living room and grabbed the gun. Spencer said something to the police and then started shooting. Williams said that a third officer opened the front door, and Spencer shot him. She testified that Woods got up off the ground after the shooting started and that he was panicky. Williams testified that Woods did not open the door and he did not tell Spencer that another officer was at the front door. She said that she was the first person to run from the apartment after the shooting; that she did not see Woods or Spencer running from the apartment; and that she did not see who shot Officer Bennett in the face. Williams acknowledged that, when she gave a statement to the police after the shooting, she had said that based on what she had heard Woods and Spencer say after the police left the first time, she knew there would be a confrontation if the police returned, and that when the police officer asked if Woods and Spencer had planned the confrontation, she told him that it was planned. However, at trial, she testified that what she meant by her statement was that she expected a verbal confrontation, and that she did not expect anyone to shoot a police officer.
Brandon Carter, an inmate, testified that he knew Woods from being incarcerated with him. He identified some of the drawings removed from Woods's cell during the search and testified that he had copied them from the original and had given the copies to Woods. Carter testified that Woods did not ask him to draw the pictures for him.
Travis Dumas, also an inmate, testified that he, like Fernando Belser, had worked as a "doorman" at the apartment from which Woods and Spencer sold drugs. He testified that he was at the apartment during the morning of the shooting and that he was awakened by someone kicking the front door. According to Dumas, Woods went to the front door and argued back and forth with the person. Dumas said that he recognized the voice of the person as Officer Owen's voice because Officer Owen had been patrolling his neighborhood for many years. He heard Officer Owen tell Woods that he would be back. Dumas said that while Woods argued with Officer Owen at the front door, Spencer was arguing with officers at the back door; Dumas recognized Officer Chisolm as one of the officers at the back *16 door. After the police left, Dumas heard Spencer say that if the police came back, he was going to "bust `em," meaning he was going to shoot them. (R. 1503.) Dumas said that he did not take Spencer's comment seriously because he had heard other people talk about shooting the police before and he had said it himself. Dumas testified that he left the house to steal items from a grocery store nearby, and that after he "stole a whole bunch of everything," he tried to return to the apartment but he could not because the police were everywhere. (R. 1504.)
Woods also called codefendant Kerry Spencer to testify on his behalf; Spencer invoked his Fifth Amendment privilege and refused to testify. However, the trial court permitted the attorneys for the State and for Woods to read into the record Spencer's testimony from his own trial.[3] At his trial, Spencer admitted that he sold drugs from the apartment where the shooting occurred. He testified that he bought the SKS assault rifle the night before the shooting, and that he had test-fired it in the backyard. On the day of the shooting, Spencer said, Officer Owen kicked the front door of the apartment early in the morning, between 6:00 a.m. and 8:00 a.m. He and Woods looked out the window and recognized the officer. Spencer said that Officer Owen returned to the apartment later that morning, parked in the backyard, and said something to Woods, who was standing at the back door, about stolen cars. Woods cursed at Officer Owen repeatedly, Spencer testified, and told him to get off the property. Spencer said that he went to a window in the bedroom and also cursed at Officer Owen; he told the officer to "get his weak ass the fuck on." (R. 1548.) He said that Officer Owen told him that he had enough body bags for him too. According to Spencer, Officer Collins then drove into the yard and Officer Owen spoke to him. Officer Owen returned to the back door and tried to get him and Woods to come outside, but they continued to curse at him. Woods told Officer Owen that he hid behind his badge; Spencer said he agreed with Woods and told Officer Owen that if he took his badge off, they would come outside. Officer Owen then took the badge off and told them to come out, but they refused. Spencer said that a female neighbor then walked over and told Officer Owen to stop acting like that, and he put his badge back on and left soon after. Before he left, Spencer said, Officer Owen said he would be back when he got off work.
Spencer testified that he then heard Woods speaking to someone and he saw that Woods was speaking to Officer Chisolm. Spencer said that he told the officer that he needed "to get the fuck away from the apartment. That he a fuck boy.... Basically just telling him get the fuck on." (R. 1555-56.) He said that Officer Chisolm let them know that the police would be back and led Spencer to believe that he would be killed when they returned. Spencer said that he was in fear for his life. Spencer also said that neither he nor Woods gave their names to either of the officers.
Spencer testified that he was asleep on the couch when the officers returned; the SKS assault rifle was beside his leg. He said that he heard a snap and got up and went into the bedroom so he could look out the window. Spencer stated that he saw the police cars outside and that he then heard a struggle, but that he did not know *17 the police were in the house. Spencer said that when he came out of the bedroom, Woods was coming out of the kitchen holding his face as if he were in pain; that he heard something beside him; and that, as he turned around, he saw Officer Chisolm raise his gun so he opened fire. (R. 1571.) Spencer said that he believed that the officer was going to shoot him and that he had no alternative but to fire his weapon. Spencer fired until Officers Chisolm and Owen were down. Spencer said that the front door then opened and that he saw Officer Bennett with a gun, so he shot him.
Spencer said that he did not know if other officers were in the front of the apartment, so he went toward the back door. He saw Officer Owen's gun on the floor beside him, and he took the gun because he did not want to be shot. He opened the back door and saw Officer Collins standing outside the apartment; Officer Collins took a few steps toward him with his gun in his hand. Spencer testified that he walked out of the apartment and that he and the officer looked eye-to-eye, and that the officer then ran behind his patrol car. Spencer said that he waited until Officer Collins was behind the car and then he fired a couple of shots into the windshield. He said that he could have shot and killed Officer Collins, but that he had no reason to because the officer posed no threat to him. Spencer stated that he then went to the front door and cautiously walked outside, holding the gun at his side, pointing down. While he was standing next to Officer Bennett, Spencer said, the officer's hand "jumped and touched me, you know, and automatically, reflex, you know, I quickly shot." (R. 1575.) After he shot Officer Bennett at close range, he threw the gun down and ran to a neighbor's house. Spencer testified that he did not intend to kill any of the police officers but that he did what he had to do to avoid being shot and to stay alive. However, on cross-examination, Spencer acknowledged that in a prior statement to the police, he had said that he shot the officers because he was "pissed off." (R. 1599.)
In addition to Spencer's testimony from his trial, the testimony of Randall Washington, who was declared an unavailable witness, from Spencer's trial was also read into evidence at Woods's trial. Washington testified at Spencer's trial that he was in the backyard of the apartment working underneath Courtney Spencer's car when the police arrived to arrest Woods. He heard someone say, "They're back." (R. 1639.) While the police were walking toward the apartment, Courtney Spencer raised his hand and said, "`I don't have anything to do with this. I'm just over here getting my car worked on,'" and he walked away. (R. 1624.) Washington said that he stayed under the car because he had an outstanding warrant for his arrest for unpaid fines, and he did not want to be arrested. Washington heard Officer Owen say to someone at the back door that he had a warrant; Officer Owen said this to the person more than once. Washington next saw another officer walk around from the side of the apartment at a fast pace toward the screen door. Washington said that he then heard a snap and saw the police officer snatch open the screen door and enter the apartment. A second officer followed him, Washington said, but he did not see a third officer. Washington testified that, one to three minutes later, he heard gunshots. He stayed beneath the car until the shooting stopped, then he ran away.
In rebuttal, the State recalled Det. Phillip Russell. Det. Russell testified that, when Spencer gave his statement to the police on the afternoon of the shooting, he admitted that he had killed the three officers, but, contrary to his testimony at his trial, he repeatedly denied taking Officer *18 Owen's gun. Det. Russell also testified that Spencer did not say in his statement, as he did at his trial, that he was the one who shot Officer Bennett in the face. Finally, Det. Russell testified that he had asked Spencer where Woods was while Spencer was shooting, and Spencer said, "`Nate hadhe was running with me.'" (R. 1643.)
On appeal, Woods raises several issues, many of which he did not raise by objection in the trial court. Because Woods was sentenced to death, his failure to object at trial does not bar our review of these issues; however, it does weigh against any claim of prejudice he now makes on appeal. See Dill v. State, 600 So. 2d 343 (Ala.Crim.App.1991), aff'd, 600 So. 2d 372 (Ala.1992); Kuenzel v. State, 577 So. 2d 474 (Ala.Crim.App.1990), aff'd, 577 So. 2d 531 (Ala.1991).
Rule 45A, Ala. R.App. P., provides:
"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."
"Plain error" has been defined as error "`so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.'" Ex parte Womack, 435 So. 2d 766, 769 (Ala. 1983), quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). "To rise to the level of plain error, the claimed error must not only seriously affect a defendant's `substantial rights,' but it must also have an unfair prejudicial impact on the jury's deliberations." Hyde v. State, 778 So. 2d 199, 209 (Ala.Crim.App.1998), aff'd, 778 So. 2d 237 (Ala.2000). This Court has recognized that "`[t]he plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" Burton v. State, 651 So. 2d 641, 645 (Ala.Crim. App.1993), aff'd, 651 So. 2d 659 (Ala.1994), quoting United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985), quoting in turn United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982).
I.
Woods contends that the trial court erred when it admitted testimony from several witnesses about Woods's collateral bad acts. Specifically, he argues that the trial court erred when it permitted Officer Collins to testify that he searched the City of Birmingham's computerized files for Woods's name; when it permitted witnesses to testify about Woods's selling drugs from the green apartments and having guns in his possession there; and when it admitted State's Exhibit 332, a drawing of men shooting on 18th Street that was removed from the wall of Woods's cell, and State's Exhibit 333, the lyrics Woods wrote. Woods argues that the evidence was improperly admitted as character evidence in violation of Rule 404, Ala.R.Evid., that it was irrelevant and prejudicial and thus admitted in violation of Rules 401 and 403, Ala.R.Evid., and that it was admitted without a limiting instruction to the jury.
Rule 404(b), Ala.R.Evid., provides, in pertinent part:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, *19 identity, or absence of mistake or accident...."
Even if the evidence of a collateral bad act fits into an exception to the general exclusionary rule, the trial court must determine whether the evidence is relevant and probative, Rule 401, Ala.R.Evid., and whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, Rule 403, Ala. R.Evid.
The State provided notice before trial to Woods that it intended to introduce certain evidence pursuant to Rule 404(b), Ala. R.Evid., including an arrest warrant from the Fairfield Police Department. Woods filed an objection to the State's motion and filed several motions in limine in which he sought to preclude admission of, among other things, the drawings and writings seized from his jail cell and several statements he had made before the shooting. The trial court reserved ruling on a majority of the motions until it had heard some of the evidence at trial. Before the State offered the collateral-act evidence at trial, the trial court held a hearing outside the presence of the jury and permitted the parties to present their arguments to the court about each piece of evidence the State intended to introduce pursuant to Rule 404(b). The trial court sustained several of Woods's objections and admitted other evidence offered by the State. The court informed the parties that it would instruct the jury about the limited purpose for which the evidence was offered, and the record reflects that the trial court instructed the jury several times during the trial, including in its oral charge to the jury, about the limited purpose for which the evidence was being offered; it also instructed the jury several times that the weight to be given the evidence was for the jury to determine.
A.
Woods argues that the trial court erred when it overruled his objection to Officer Collins's testimony about searching the City of Birmingham's computerized files for Woods's name. The record reflects that Woods did not object until after Officer Collins had testified that he checked Woods's name in the City of Birmingham's files, and after he explained that "[t]he city has files if you have been arrested." (R. 507.) Woods then objected but stated no grounds for the objection. Therefore, this issue was not properly preserved for review, see Shouldis v. State, 953 So. 2d 1275, 1284 (Ala.Crim.App.2006) (holding that to preserve an alleged error in the admission of evidence, "a timely objection must be made to the introduction of the evidence, specific grounds for the objection should be stated and a ruling on the objection must be made by the trial court"), and we review it under the plain-error rule. See Rule 45A, Ala.R.App.P.
The State correctly argues that evidence of Officer Collins's search through the City of Birmingham's files was not offered as Rule 404(b) evidence, but rather, was offered as part of Officer Collins's explanation of the steps he took to gain information about Woods. Officer Collins did not testify that he found any prior arrests for Woods in the search of the files, although he did testify that he located "a Nathaniel Woods" and "an address in close proximity to this location," and with a date of birth that was close to the age he guessed Woods to be. (R. 507.) However, he did not testify that the person he located in the files was Woods in this case, nor did he testify that the person had a prior arrest. Officer Collins's testimony cannot fairly be considered testimony regarding any prior bad act of Woods's, and the brief reference to searching the City of Birmingham's files did not violate Rule *20 404(b). Therefore, we find no error, plain or otherwise, as to this claim.
B.
Woods also argues that the trial court erred when it permitted Marquita McClure to testify that Woods sold drugs from the apartment, that she had seen Woods carrying a gun before the shootings, and that she had seen Woods and Spencer shooting guns the night before the shootings; when it permitted Fernando Belser to testify that Woods sold drugs from the apartment and that Woods and Spencer sometimes made as many as 150 drug sales per day, that guns were kept in the apartment, and that Woods carried a gun; and when it permitted Michael Scott to testify that he had previously purchased cocaine from Woods at the apartment.[4] Woods alleges that the foregoing testimony violated Rule 404(b) and that it was inherently prejudicial. As Woods admits in his brief, he did not object at trial to any of this testimony; therefore, we review this claim under the plain-error rule. See Rule 45A, Ala.R.App.P.
During opening statements, both attorneys for the State and for Woods went into detail about the drug operation Woods and Spencer ran together, about drug sales from the apartment, and about the guns in that apartment, including the SKS assault rifle Spencer purchased the night before the shooting. Officer Collins, the first witness to testify at trial, testified that when he heard a call on the police radio indicating that Officer Owen had gotten out of his patrol car at the green apartments, he was familiar with that location because it had "been a drug problem area for years." (R. 493.) When Officer Collins arrived at the green apartments and heard Woods cursing with "venom and hatred," he was "shocked ... because at most drug houses they don't want contact with the police because us being there and us being in the area or having contact with them hurts their business." (R. 498.) McClure, Belser, and Scott later testified about the drug sales by Woods and Spencer from the apartment, and Belser and McClure testified about the guns in the apartment and the guns Woods and Spencer carried on their persons. As part of his defense, Woods presented testimony from Markesha Williams about the drug sales in the apartment and about seeing at least one gun there. In addition, Travis Dumas, another defense witness, testified that he had acted as a "doorman" at the apartment, which he characterized as a "dope house," where his job was to watch out for the police and to assist people who were there to purchase drugs from Woods and Spencer. Dumas also testified that he saw Spencer with the assault rifle, and that, when the police arrived the day of the shootings, he thought "they were probably going to bust it because there's probably some drugs in the house." (R. 1508.) Woods also presented testimony from Spencer, who testified that he and Woods operated a crack house, a "24-7 operation" (R. 1541), and that they had "plenty of guns" in the apartment (R. 1536). Finally, during closing arguments, the attorneys for both the State and for Woods made numerous references to Woods being a drug dealer, to Woods and Spencer operating a crack house, and to the presence of guns in the apartment. For example, defense counsel stated, "Yes, he was a drug dealer. He was caught up in using drugs, and he sold drugs out of that apartment. Yes, he had a .44, which was found in the *21 house and was not fired." (R. 1715-16.) Counsel also stated: "So he's got a big mouth. He's got a bad attitude. There's lots of guns in the house. He sold drugs. He says bad things. He has drawings we don't like." (R. 1719.)
Clearly then, the jury heard not only in the arguments of counsel but also in the testimony of numerous witnesses that Woods and Spencer were operating a drug business in their apartment and that they had numerous guns in the apartment. However, Woods objects on appeal to the testimony of only three witnesses and argues that their testimony about guns and drugs was improper character evidence and was inherently prejudicial. Although we agree that testimony from McClure, Belser, and Scott regarding Woods's drug sales and gun possession was prejudicial to Woods, we do not find that the testimony was inadmissible or that its admission constituted error. To the contrary, the testimony of those three witnesses and the others who testified about the drug sales and gun possession, in addition to counsel's arguments, established that drug sales and weapons were part of the res gestae or the continuous transaction of events in this case. Furthermore, the testimony established Woods's motive and intent, which were primary issues in the trial.
"Evidence of the accused's commission of another crime or act is admissible if such other incident is inseparably connected with the now-charged crime. Such collateral misconduct has historically been admitted as falling within the res gestae of the crime for which the accused is being prosecuted. Most modern courts avoid use of the term `res gestae' because of the difficulty in measuring its boundaries. The better descriptive expression is perhaps found in the requirement that the collateral act be contemporaneous with the charged crime. This rule is often expressed in terms of the other crime and the now-charged crime being parts of one continuous transaction or one continuous criminal occurrence. This is believed to be the ground of admission intended when the courts speak in terms of admitting other acts to show the `complete story' of the charged crime. The collateral acts must be viewed as an integral and natural part of the circumstances surrounding the commission of the charged crime.
"Two theories have been adopted for justifying the admission of collateral misconduct under the present principle. Some courts hold that such contemporaneous acts are part of the charged crime and, therefore, do not constitute `other crimes, wrongs, or acts' as is generally excluded under Rule 404(b). Other courts hold that Rule 404(b) is applicable to these collateral acts but that they are offered for a permissible purpose under that rulei.e., that such acts are merely offered, rather than to prove bad character and conformity therewith, to show all the circumstances surrounding the charged crime."
C. Gamble, McElroy's Alabama Evidence § 69.01(3) (5th ed. 1996) (footnotes omitted).
In Johnson v. State, [Ms. CR-99-1349, March 11, 2005] ___ So.3d ___ (Ala.Crim. App.2005), rev'd on other grounds, Johnson v. State, [Ms. 1041313, October 6, 2006] ___ So.3d ___ (Ala.2006), Johnson had been convicted of capital murder for her involvement in the shooting death of her former husband, who had testified as a witness for the State of Alabama in a bigamy case against Johnson. On appeal, Johnson argued that the trial court had erred when it admitted evidence of her prior conviction for bigamy, when it admitted testimony about her previous adulterous *22 relationships, and when it admitted testimony that she had solicited her codefendant, who was her current husband at the time of the murder, to beat up a man she had previously dated. After discussing the res gestae or "complete story" exception to the exclusionary rule, this Court upheld the admission of all of the challenged evidence.
Specifically, evidence about the bigamy conviction was admissible, this Court held, because the State had been required to prove that the victim had been a witness and that there was a causal relationship between his participation as a witness and his murder. With regard to evidence about Johnson's previous adulterous relationships, we held that testimony about the details of those relationships were also admissible; we stated:
"Although those acts were not strictly a part of the res gestae of the murder, they tended to explain and relate to the killing; those acts were a part of one continuous transaction wherein the murder became the culmination of all of the circumstances. While somewhat peripheral, those acts were all links in the chain of events culminating in the murder."
Johnson, ___ So.3d at ___. We also upheld the admission of testimony that Johnson had promoted an altercation between her codefendant-husband and a man with whom she had had an adulterous affair and stated, "[T]hat evidence, although not directly linked to the instant offense, was relevant and material because it helped to explain the relationship between the co-conspirators and illustrated the nature of Johnson's conduct as a catalyst in the murder." Johnson, ___ So.3d at ___. Thus, acts and circumstances, though not necessarily a part of the crime itself, are admissible when they are part of a continuous transaction and tend to explain and relate to the killing.
Here, both parties presented evidence indicating that Woods and Spencer operated a lucrative drug business, which they protected with an arsenal of weapons and "doormen" to restrict entry to the apartment, and which was disrupted by the presence of police officers on the premises. That testimony provided the jury with the context in which the shootings occurred, and it demonstrated in some detail that Woods and Spencer were equal partners in the business and that they had an equal interest in ensuring that the business was not disrupted. The evidence was necessary to the State's case because it provided the background for the charged offenses and demonstrated that Woods and Spencer were inseparably connected to the charged offenses. Thus, the evidence was admissible as part of the res gestae. The evidence also established that Woods had the motive, intent, and opportunity to commit the murders, and it was relevant to show his state of mind when the police officers came to the door the day of the shootings. Therefore, the evidence was properly admitted into evidence, and we find no error, plain or otherwise, as to this claim.
In addition, this Court notes that the evidence about Woods's participation in the drug business, about Woods being armed, and about the presence of weapons in the apartment that was introduced through the testimony of McClure, Belser, and Scott, and about which Woods now complains, was, as noted above, also introduced in detail through the testimony of several other witnesses, including those called by the defense.
"Testimony that is inadmissible may be rendered harmless by prior or subsequent lawful testimony to the same effect or from which the same facts can be inferred. McFarley v. State, 608 So.2d *23 430, 433 (Ala.Crim.App.1992). `The erroneous admission of evidence that is merely cumulative is harmless error.' Dawson v. State, 675 So. 2d 897, 900 (Ala.Crim.App.1995)."
Tinker v. State, 932 So. 2d 168, 188 (Ala. Crim.App.2005). Therefore, even if the testimony of McClure, Belser, and Scott had been erroneously admitted, and we do not hold that it was, it would have been harmless because it was cumulative to other testimony to the same effect.
C.
Woods next argues that the trial court erred when it admitted State's Exhibit 332, a drawing removed from his jail cell titled "Nate $ Nookie" that depicts two men shooting on 18th Street with three flaming skulls coming from the gunfire of an automatic weapon, and State's Exhibit 333, a document containing modified lyrics from a rap-style song. He argues that the exhibits "were so very prejudicial that they should have been excluded even if relevant under [Rule 401, Ala.R.Evid.], by the weighing test provided for in [Rule 403, Ala.R.Evid.]" (Woods's brief at p. 52.)[5]
Rule 403, Ala.R.Evid., provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
"`The admission or exclusion of evidence is a matter within the sound discretion of the trial court.' Taylor v. State, 808 So. 2d 1148, 1191 (Ala.Crim. App.2000), aff'd, 808 So. 2d 1215 (Ala. 2001). `The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion.' Ex parte Loggins, 771 So. 2d 1093, 1103 (Ala.2000). In addition, `[t]rial courts are vested with considerable discretion in determining whether evidence is relevant, and such a determination will not be reversed absent plain error or an abuse of discretion.' Hayes v. State, 717 So. 2d 30, 36 (Ala.Crim.App.1997)."
Gavin v. State, 891 So. 2d 907, 963 (Ala. Crim.App.2003).
This Court has held:
"Whenever a person is on trial for a criminal offense, evidence of the defendant's post-crime conduct that may fairly be inferred to have been influenced by the criminal act is admissible. The post-crime conduct of the defendant shows his or her state of mind which has been characterized by our courts as consciousness of guilt, and may be admitted as circumstantial evidence of guilt. Conley v. State, 354 So. 2d 1172, 1179 (Ala.Cr.App.1977). When post-crime conduct is introduced as circumstantial evidence of a defendant's guilt, there must be a link between the defendant and the evidence. See Stewart v. State, 398 So. 2d 369, 375 (Ala.Cr.App.), cert. denied, 398 So. 2d 376 (Ala.1981); see C. *24 Gamble, McElroy's Alabama Evidence, § 190.03 (5th ed. 1996)."
Ballard v. State, 767 So. 2d 1123, 1130 (Ala. Crim.App.1999).
1. The drawing.
Before the State offered these exhibits into evidence, the trial court held a hearing on the issue. At that hearing, the State argued that the drawing taken from the wall of Woods's cell demonstrated a consciousness of guilt of the murders of the officers. Woods argued that he did not draw the picture, and the State stipulated that Woods did not draw it. However, the State argued: "Our contention is it's a glorification of what occurred on June 17th. His name is on this paper, as well as an individual that if this Court allows in will testify that this is him stooped down shooting a weapon." (R. 1291.) The court noted that "[i]t's got `Nate and Nookie' on it" (R. 1291), but Woods continued to argue that he did not draw the picture and also argued that the drawing did not constitute conduct or an admission. The court then said, "[A] drawing taped on his cell wall showing him and the co-defendant, it's even got the address down there where the shooting occurred, both of them firing and blazing away with guns. Don't you think that might show some consciousness of guilt?" (R. 1293.) The following then occurred:
"[Woods's counsel]: Your Honor, I don't know whichfirst of all, the evidence is very clear that Kerry Spencer is the only person shooting out there. I don't know which of these people is supposed to be Nathaniel Woods, but there's absolutely no evidence that Nathaniel Woods ever even had a weapon at the time the shooting occurred.
"THE COURT: That's not the issue under complicity.
"[Woods's counsel]: But that's the issue in this picture and the prejudice outweighing the probative value.
"THE COURT: Well, that's a [Rule] 403 argument. I hear you, but I overrule you."
(R. 1294-95.)
The drawing was properly admitted as relevant evidence of Woods's post-crime conduct. This Court has previously examined the admissibility of post-crime conduct. In B.H. v. State, 941 So. 2d 345, 349 (Ala.Crim.App.2006), the State presented testimony that when B.H. was questioned about whether he had committed a particular sexual act with the child victim, his demeanor changed, and he averted his eyes. This Court stated that the testimony provided circumstantial evidence indicating that B.H. was guilty of the offense with which he had been charged.
In Ballard v. State, 767 So. 2d 1123 (Ala. Crim.App.1999), Ballard was charged with theft from a boutique. Approximately one year after the theft, Ballard's son found a fraudulent invoice from the boutique in a van Ballard sometimes drove. This Court held that the trial court correctly admitted the invoice as evidence of Ballard's consciousness of guilt over Ballard's objection that there was insufficient evidence connecting the invoice to her and held that the probative value of the evidence outweighed the danger of unfair prejudice.
Although a search of Alabama cases revealed no case involving post-crime drawings, a Colorado court has considered this precise issue. In People v. Masters, 33 P.3d 1191 (Colo.App.2001), aff'd, 58 P.3d 979 (Colo.2002), Masters was convicted of the murder and sexual mutilation of a woman, and the Colorado Court of Appeals upheld the admission of drawings and narratives depicting scenes of violence and sex that Masters had created after the crime. The Court stated that the evidence was *25 relevant to show Masters' guilty knowledge and noted that one exhibit in particular "reasonably could be interpreted to correspond to events on the night of the victim's death." Masters, 33 P.3d at 1199. The Court also determined that the probative value of the narratives and drawings outweighed the risk of undue prejudice. We find the Colorado Court's reasoning to be relevant here.
The drawing taken from Woods's cell can be interpreted as depicting the shooting of the three police officers on 18th Street. The drawing depicts Woods as an active participant in that crime, and although Woods did not draw the picture, his nickname was prominently written at the top of the page, along with Spencer's nickname, and the drawing was important enough to Woods that he hung it on the wall of his cell. Moreover, when a deputy removed the drawing, Woods told the deputy that the picture was his and that he wanted it back. As the State argued at trial, the drawing glorified the shooting and Woods's involvement in it. The post-crime drawing was relevant to Woods's intent and it indicated a consciousness of guilt. Because Woods's defense was that he was not involved in the shooting and that he was an innocent bystander, the fact that he displayed a drawing depicting his partnership in the shooting with Spencer held substantial probative value.
Evidence offered against a defendant at trial is usually prejudicial. However, the probative value of evidence is substantially outweighed by its prejudice only when it is unduly and unfairly prejudicial. See e.g., Hurley v. State, 971 So. 2d 78, 81-82 (Ala. Crim.App.2006), and the cases quoted therein; and Irvin v. State, 940 So. 2d 331, 346 (Ala.Crim.App.2005), and the cases quoted therein. Here, we do not find the evidence to be unduly and unfairly prejudicial, and we find no error in the trial court's determination that the probative value of this evidence was not substantially outweighed by undue prejudice. Finally, we note that the trial court gave a limiting instruction to the jury when the drawing was admitted and again during its final charge.
Therefore, we find no error, plain or otherwise, as to this claim.
2. The lyrics.
Woods also argues that the trial court erred in admitting State's Exhibit 333, the lyrics adapted from a rap-style song that include the phrases, "I have no remorse because I'm the fuckin murderer," and "I drop pigs like Kerry Spencer." (C. 2087.) During the hearing on the State's proffer of evidence pursuant to Rule 404(b), the trial court overruled Woods's objections to State's Exhibit 333; however, it does not appear that the State ever introduced that exhibit into evidence before the jury. Rather, the State introduced Exhibit 337-A, which appears to be the original document and which contains the same language as that in Exhibit 333, which appears to be a photocopy of State's Exhibit 337-A. However, the expert handwriting analyst determined that the original document had been written by Woods. Therefore, out of an abundance of caution, we will address this claim of error and evaluate the trial court's admission of State's Exhibit 337-A.
At the hearing on the admissibility of this evidence, defense counsel argued that Woods had modified the lyrics of a rap-style song, and that it constituted improper character evidence. The trial court quoted from the lyrics and stated: "That's almost an admission." (R. 1298.) Finding that the lyrics could be construed as an indication of Woods's consciousness of guilt, the trial court ruled that the evidence was admissible and stated that it would instruct the jury that the evidence *26 was offered for a limited purpose. (R. 1300.)
During the trial, Det. Russell testified that he obtained State's Exhibit 337-A and he read into the record the words from the lyrics, which included the phrases, "I'm a fucking murderer," and "I drop pigs like Kerry Spencer." (R. 1359.) The trial court gave a limiting instruction to the jury when the exhibit was admitted and again during its final jury charge.
As discussed above with regard to the drawing, the question before us is whether, as Woods contends, the probative value of the lyrics was substantially outweighed by the danger of undue prejudice and, thus, in admitting it the trial court abused its discretion. We find no abuse of discretion.
Woods argued at trial that he did not know that Spencer was going to shoot the officers and that he was not involved in the shooting. Evidence that Woods copied and retained possession of lyrics to a rap-style song that he had modified to indicate that he was a killer and that he had watched "pigs" collapse and that he had no remorse contradicted his claim and was highly relevant to his intent and as an indication of his consciousness of guilt. As with the drawing, we acknowledge that admission of the lyrics was prejudicial to Woods's case; however, based on our analysis in the previous section of this opinion regarding post-crime actions, we conclude that nothing in the record warrants a finding that the lyrics Woods modified and copied after the shooting were unduly or unfairly prejudicial or that the probative value was substantially outweighed by any undue prejudice. The lyrics were properly admitted as post-crime evidence of Woods's consciousness of guilt of the crimes charged.
Therefore, we find no error, plain or otherwise, as to this claim.
II.
Woods contends that the evidence was insufficient to sustain his conviction as an accomplice pursuant to § 13A-2-23, Ala.Code 1975. Specifically, he argues that there was no evidence indicating that he possessed or fired a gun during the shooting and that there was no physical or forensic evidence linking him to the crime. Woods made motions for a judgment of acquittal at the close of the State's case and again at the close of all the evidence.
This Court has often stated the standard for challenges to the sufficiency of the evidence. In Oliver v. City of Opelika, 950 So. 2d 1229 (Ala.Crim.App.2006), we stated:
"`"In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution."' Ballenger v. State, 720 So. 2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So. 2d 485, 488 (Ala.Crim. App.1984), aff'd, 471 So. 2d 493 (Ala. 1985). `"The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt."' Nunn v. State, 697 So. 2d 497, 498 (Ala.Crim.App. 1997), quoting O'Neal v. State, 602 So. 2d 462, 464 (Ala.Crim.App.1992). `"When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision."' Farrior v. State, 728 So. 2d 691, 696 (Ala.Crim.App. 1998), quoting Ward v. State, 557 So.2d *27 848, 850 (Ala.Crim.App.1990). `The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.' Ex parte Bankston, 358 So. 2d 1040, 1042 (Ala.1978)."
950 So.2d at 1230.
Section 13A-5-40(c), Ala.Code 1975, allows for a capital-murder conviction based on principles of accomplice liability. The statute states:
"A defendant who does not personally commit the act of killing which constitutes the murder is not guilty of a capital offense defined in subsection (a) of this section unless that defendant is legally accountable for the murder because of complicity in the murder itself under the provisions of Section 13A-2-23, in addition to being guilty of the other elements of the capital offense as defined in subsection (a) of this section."
Section 13A-2-23, Ala.Code 1975, Alabama's complicity statute, provides:
"A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
"(1) He procures, induces or causes such other person to commit the offense; or
"(2) He aids or abets such other person in committing the offense; or
"(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make."
The Commentary following § 13A-2-23 states that "[e]ach person who joined [the] unlawful enterprise is responsible for the results whether committed by one or all, Carlisle v. State, 36 Ala.App. 241, 58 So. 2d 638 [(1951)], cert. denied, 257 Ala. 282, 58 So. 2d 641 (1952)."
"`"Aid and abet `comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary.'" Jones v. State, 174 Ala. 53, 57, 57 So. 31 (1911), quoted in Radke v. State, 292 Ala. 290, 292, 293 So. 2d 314 (1974). If the jury is convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, the fact that the defendant is an aider and abettor is established. Jones, supra; Raiford v. State, 59 Ala. 106, 108 (1877). "The culpable participation of the accomplice need not be proved by positive testimony, and indeed rarely is so proved. Fuller v. State, 43 Ala.App. 632, 198 So. 2d 625 [(1966)]. Rather, the jury must examine the conduct of the parties and the testimony as to the surrounding circumstances to determine its existence." Miller v. State, 405 So. 2d 41, 46 (Ala.Cr.App.1981); Watkins v. State, 357 So. 2d 156, 159 (Ala.Cr.App. 1977), cert. denied, 357 So. 2d 161 (Ala. 1978).'
"Quoted with approval in Travis v. State, 776 So. 2d 819, 862-3 (Ala.Crim. App.1997), aff'd, 776 So. 2d 874 (Ala. 2000), cert. denied, 531 U.S. 1081, 121 S. Ct. 785, 148 L. Ed. 2d 681 (2001)."
Pilley v. State, 930 So. 2d 550, 565 (Ala. Crim.App.2005), quoting Gwin v. State, 456 So. 2d 845, 851 (Ala.Crim.App.1984).
In Buford v. State, 891 So. 2d 423 (Ala. Crim.App.2004), we further explained:
"`"Such facts as the defendant's presence in connection with his companionship, his conduct at, before, and after the commission of the act, are potent circumstances from which participation *28 may be inferred." Sanders v. State, 423 So. 2d 348, 351 (Ala.Crim. App.1982). However,
"`"`[t]he mere fact that a person witnesses a crime does not make him an accomplice.' Nelson v. State, 405 So. 2d 392, 397 (Ala.Cr.App.1980), reversed on other grounds, 405 So. 2d 401 (Ala.1981). `The mere presence of a person at the time and place of a crime is not sufficient to justify his conviction for the commission of the crime.' Dolvin v. State, 391 So. 2d 129, 133 (Ala.Cr.App.1979), reversed, 391 So. 2d 133 (Ala.1980). However, `if presence at the time and place a crime is committed, in conjunction with other facts and circumstances, tends to connect the accused with the commission of the crime, then the [trier of fact] may find the accused guilty.' Dolvin, 391 So.2d at 137. `[P]resence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred.' 22 C.J.S. Criminal Law § 88(2)(d) (1961). Gibson v. State, 49 Ala.App. 18, 20, 268 So. 2d 49 (1972).
"`"....
"`"Although mere presence at the time and place of a crime is not sufficient to justify a conviction for the commission of that crime, presence is a factor to be considered by the [trier of fact] in determining the guilt of the accused because `mere presence does establish a "material fact, which is the opportunity of defendant to commit the offense."' German [v. State], 429 So.2d [1138,] 1141 [(Ala.Crim.App. 1982)].
"`"To make one accused of a crime an accomplice, `the State must adduce some legal evidence implying that he either recruited, helped or counseled in preparing the [crime] or took or undertook some part in its commission. Criminal agency in another's offense is not shown merely by an exhibition of passivity.' Pugh v. State, 42 Ala.App. 499, 502, 169 So. 2d 27 (1964)."
"`Payne v. State, 487 So. 2d 256, 261-62 (Ala.Crim.App.1986). See also Webb v. State, 696 So. 2d 295 (Ala. Crim.App.1996).'
"Harris v. State, 854 So. 2d 145, 151-52 (Ala.Crim.App.2002).....
"Also, `"[i]ntent, ... being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence."' Seaton v. State, 645 So. 2d 341, 343 (Ala.Crim.App.1994), quoting McCord v. State, 501 So. 2d 520, 528-29 (Ala.Crim.App.1986). Intent ""may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances.'"' Farrior v. State, 728 So. 2d 691, 695 (Ala. Crim.App.1998), quoting Jones v. State, 591 So. 2d 569, 574 (Ala.Crim.App.1991) quoting in turn, Johnson v. State, 390 So. 2d 1160, 1167 (Ala.Crim.App.1980). `"The intent of a defendant at the time of the offense is a jury question."' C.G. v. State, 841 So. 2d 281, 291 (Ala.Crim. App.2001), aff'd, 841 So. 2d 292 (Ala. 2002), quoting Downing v. State, 620 So. 2d 983, 985 (Ala.Crim.App.1993)."
891 So.2d at 428-29.
Reviewing the evidence in the light most favorable to the State and according the State all reasonable inferences from the evidence, we find that the State presented sufficient evidence to submit the case to the jury and that the trial court did not err when it denied the motions for a judgment of acquittal. The State established that *29 Woods and Spencer had engaged in a hostile, profanity-laced argument with Officers Owen and Collins on the morning of the shootings, and that Woods threatened Officer Owen by stating: "Take off that badge and I will fuck you up." (R. 501.) Officer Sanders testified that Officer Chisolm had told him that Woods had taunted the police by saying, "You can't get me," and then running into the apartment. (R. 639.) Marquita McClure and Markesha Williams testified that, after the police left, Woods stated that he would kill the police. Fernando Belser testified that Spencer said that if the police did not stop harassing him, he would "light `em up," and that Woods had said "[b]asically the same thing" Spencer had said. (R. 762.) McClure asked Woods to leave the apartment with her, but Woods told her that he wanted to stay with Spencer in case the police came back.
Officer Collins testified that when the officers returned to the apartment to arrest Woods, a man who had been outside said that he wanted no part of what was to take place. When the officers told Woods that they had a warrant for his arrest and attempted to take him into custody, Woods cursed them and refused to come outside. He told the officers, "`If you come in here, we'll fuck you up.'" (R. 694.) He then turned and ran toward the back of the apartment, causing the officers to pursue him to the doorway between the kitchen and the living room. Belser had previously testified that no one went beyond the kitchen area of the apartment unless Woods or Spencer invited them, and he said that anyone who did so could "get hurt pretty bad" or "something could happen to them." (R. 754.) Spencer appeared with the assault rifle, and he fired it repeatedly, shooting Officers Owen and Chisolm multiple times. Woods told Spencer that another officer was at the front door, and Spencer turned and also shot Officer Bennett multiple times.
Spencer and Woods ran from the apartment together; they ran to John Prather's house because Woods knew Prather. After they burst into Prather's house, Spencer and Woods let Prather know that he would be compensated for letting them stay there, and Prather deduced that the pair had been involved in the shooting nearby. Woods told Spencer, "You came through for me," Prather said. (R. 842.) Michael Scott was inside Prather's house when Woods and Spencer entered, and he heard Woods say something like, "`They fucked with the wrong niggers. We shot their asses.'" (R. 860.) Scott described Woods's demeanor as calm, not upset, when he made this statement.
After Woods was arrested, Officer Owen's weapon was recovered from Prather's house, behind a heater near where Woods had been sitting. Although Spencer testified at his trial that he took Officer Owen's gun before he left the apartment, in his statement to the police on the afternoon of the shooting, Spencer denied taking the weapon, thus permitting an inference that Woods walked into the kitchen after the shooting and took the officer's weapon before he and Spencer left the apartment.
While Woods was in jail, a deputy found hanging on the wall of his cell a drawing with the heading "Nate $ Nookie." The drawing depicted two men shooting firearms near a street sign indicating the intersection of "18th Street and Ensley"; the drawing depicted three flaming skulls in the gun blast from the automatic weapon one of the men is shooting. The apartment where the officers were killed was on 18th Street in Ensley. When the deputy took the drawing, Woods protested, stating that the drawing was his and that he wanted it back. In addition, modified rap-style *30 song lyrics were taken from Woods's cell; the document included the statements, "I'm a fuckin murderer" and "I drop pigs like Kerry Spencer." (State's Exhibit 337-A.) Steve Drexler, a document examiner, testified that based on his comparison of that document with a known sample of Woods's handwriting, he had determined that Woods was the person who wrote the words on the document seized from his cell.
Finally, the State presented testimony about Woods's other hostile actions toward law-enforcement personnel. A former officer of the Fairfield Police Department, Greg Parker, testified that in December 2003 Woods had acted in a menacing way toward him and had told Officer Parker that he could have shot him; Woods was found to be in possession of a pellet gun when he made the statement. While he was in jail awaiting trial on these charges, Woods told Deputy William Powell that the deputy was hiding behind his badge "just like the other three mother fuckers," and that if he won his case, he was going to come looking for Deputy Powell. (R. 1318.)
When defense counsel made the motion for a judgment of acquittal after the State presented its case, counsel argued that the State had not presented sufficient evidence to convict Woods under a complicity theory and that the evidence was insufficient to warrant submission of the case to the jury. The trial court replied:
"Let me ask you this. What about the statements that have been testified to by the people inside the apartment after the officers left at 10:30 or 11 o'clock and before they came back a little after 1? What if the jury believed your client said what those witnesses said he said? And what if they believe what Mr. Prather and Mr. Scott said? And what if they believe what's written in some of the documents your client wrote up in the jail cell? Doesn't that make it a jury issue as to whether he's a co-conspirator ... in this case?"
(R. 1425-26.) We agree with the trial court.
The evidence presented at trial, as summarized previously in this opinion and as more succinctly summarized above by the trial court, was sufficient to establish a prima facie case for each count of capital murder and provided sufficient evidence of Woods's complicity in the murders of the police officers. "Such facts as the defendant's presence in connection with his companionship, his conduct at, before, and after the commission of the act, are potent circumstances from which participation may be inferred." Sanders v. State, 423 So. 2d 348, 351 (Ala.Crim.App.1982), citing Smith v. State, 57 Ala.App. 151, 326 So. 2d 680 (1975). The State presented evidence about Woods's actions before, during, and after the crime from which the jury could have determined that Woods was an active participant in the murders.
Moreover, to the extent that Woods argues that the State did not prove that he ever touched the murder weapon and that the State did not present any physical or forensic evidence that linked him to the shootings, we note that the State is not required to present evidence that Woods touched the gun, or that the police found blood spatter, gunshot residue on his hands, or any other physical or forensic evidence. The law of complicity, as set out at the beginning of our discussion of this issue and as explained in the judge's charge to the jury, did not require proof of physical evidence to establish Woods's guilt. Rather, as the judge correctly charged the jury: "[W]hen two or more people enter upon an unlawful purpose with a common intent to aid and encourage each other in anything within that common *31 design or plan, each is legally criminally responsible for everything that may reasonably flow from that common criminal enterprise." (R. 1759.)
The State presented sufficient evidence, including Woods's actions before, during, and after the crime, from which the jury could have found that Woods had planned the shootings with Spencer and that he was present during the shootings and encouraged and assisted Spencer in the commission of the crimes. Because the State presented legally sufficient evidence, the trial court correctly denied Woods's motions for a judgment of acquittal and presented the case to the jury for its resolution.
III.
Woods contends that the trial court committed reversible error in several evidentiary rulings during the penalty phase of the trial. Specifically, he argues that the trial court erred when it sustained the State's objections to the testimony of Cynthia Sherman, Woods's aunt, and when it precluded his cousin, Shena Carter, from testifying about the impact Woods's execution would have on her. He also argues that the trial court erred when it overruled his objections to victim-impact testimony from the officers' widows.
A.
The principles relevant to the admission of proposed mitigating evidence in a capital-murder trial are well established.
"The United States Supreme Court had declared that a defendant convicted of capital murder must be allowed to present at the sentencing hearing a broad range of proposed mitigating evidence. The Court held:
"`[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'
"Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)(footnotes omitted).
"By statute, Alabama law allows a broad spectrum of evidence to be offered as mitigation:
"`In addition to the mitigating circumstances specified in Section 13A-5-51, mitigating circumstances shall include any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant offers as a basis for a sentence of life imprisonment without parole instead of death, and any other relevant mitigating circumstance which the defendant offers as a basis for a sentence of life imprisonment without parole instead of death.'
"§ 13A-5-52, Ala.Code 1975.
"Our Supreme Court has previously stated:
"`To determine the appropriate sentence, the sentencer must engage in a "broad inquiry into all relevant mitigating evidence to allow an individualized determination." Buchanan v. Angelone, 522 U.S. 269, 276 (1998). Alabama's sentencing scheme broadly allows the accused to present evidence in mitigation. Jacobs v. State, 361 So. 2d 640, 652-53 (Ala.1978). See 13A-5-45(g), Ala.Code 1975 ("The defendant shall be allowed to offer any mitigating circumstance defined in Sections 13A-5-51 and 13A-5-52."). "[E]vidence about the defendant's background and character is relevant *32 because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." California v. Brown, 479 U.S. 538 (1987) (O'Connor, J., concurring specially).'
"Ex parte Smith, [Ms. 1010267, March 14, 2003] ___ So.3d [___, ___ (Ala. 2003)].
"Evidence proffered in mitigation by the defendant must be relevant, however, and the determination of relevance is a decision for the trial court to make in the sound exercise of its discretion. Knotts v. State, 686 So. 2d 431, 444 (Ala. Crim.App.1995), aff'd, 686 So. 2d 486 (Ala.1996). We stated in Knotts:
"`The determination of the relevancy of evidence lies within the sound discretion of the trial court. Borden v. State, 522 So. 2d 333 (Ala.Cr.App. 1988); C. Gamble, McElroy's Alabama Evidence, § 21.01(6) (4th ed. 1991). Here, the trial court was required to admit all relevant mitigating evidence of the appellant's character or record and any circumstances pertaining to the offenses. The question before us is whether the trial court abused its discretion in refusing to admit evidence pertaining to members of the appellant's family.'"
Beckworth v. State, 946 So. 2d 490, 504-05 (Ala.Crim.App.2005).
During the testimony of Woods's aunt, Cynthia Sherman, defense counsel asked the following question:
"Now, I want you, if you could, just take your time though, but I want you to tell the ladies and gentlemen of the jury anything that's on your heart about how you feel now, okay? If you have anything to tell them before they make up their minds today or tomorrow, whenever they do, about the sentencing? Do you have anything you would like to say?
(R. 1802.) The State did not object to this open-ended question, and Sherman began to answer it as follows:
"Well, first of all, I would like to say that through all of thisand I know my heart goes out to the family. And I know it just don't seem right for me saying that, but I'm sorry. I would like the jury to know that I got a phone call last night from my nephew, and he told me to be strong and"
(R. 1803.) The State then objected and the trial court sustained the objection. Woods did not, following the State's objection, make an offer of proof to show what Sherman would have testified to if she had been permitted to complete her answer. Rather, defense counsel then asked Sherman to "tell the jury what you would like them to do" and "why," and Sherman testified at length that she would like the jury to recommend a life-imprisonment-without-parole sentence so that Woods would have the opportunity to see his children, to communicate with his family, to be an asset to others in prison, and "to find out what God has for him to do ...." (R. 1804.)
"`The general rule is that if a trial court excludes evidence offered by a defendant, it is the defendant's responsibility to make an offer of proof to preserve for appellate review any error in the trial court's refusal to accept the evidence. However, if the substance of the evidence sought to be admitted is apparent from the context within which the questions were asked, no offer of proof is necessary.'
"Myers v. State, 601 So. 2d 1150, 1152 (Ala.Crim.App.1992)."
*33 Hart v. State, 852 So. 2d 839, 844 (Ala. Crim.App.2002). See also C. Gamble, McElroy's Alabama Evidence § 425.01(4) (5th ed.1996) ("If the trial court sustains an objection made to a question which does not on its face show what is the expected answer, it then becomes the duty of the questioning party, in order to predicate review upon this as an erroneous ruling, to make an offer of proof.")
It is unclear from the context of the record what Sherman might have testified was "on her heart," and Woods's counsel at oral argument conceded that it was unclear what Sherman's answer would have been. An offer of proof was necessary to preserve this argument for review; therefore, we review the claim under the plain-error rule. See Rule 45A, Ala. R.App.P.
The trial court did not abuse its discretion when it sustained the objection. Defense counsel's invitation to Sherman that she say anything on her heart about how she felt was not designed to, nor did it, elicit relevant mitigating evidence of Woods's character or record or any circumstances of the offense. Sherman's discussion of a telephone call with Woods was not relevant mitigating evidence. Although a defendant's right to present proposed mitigating evidence is quite broad, evidence that is irrelevant and unrelated to a defendant's character or record or to the circumstances of the crime is properly excluded. See Beckworth v. State, 946 So.2d at 507 (evidence that Beckworth's father was currently charged with sexually abusing Beckworth's daughter was properly excluded because it was irrelevant). Because Sherman's testimony was not relevant as mitigation, the trial court properly exercised its discretion when it sustained the State's objection to her testimony. Therefore, we find no error, plain or otherwise, as to this claim.
During the testimony of Woods's cousin, Shena Carter, defense counsel asked, "Can you tell me what kind of effect if the jury were to give Nathaniel the death penalty and he were to be executed, what sort of effect that would have on you?" (R. 1809.) The trial court sustained the State's objection. Defense counsel told the trial court that she was offering the testimony as evidence of "execution impact." (R. 1809.) However, as with the testimony of Sherman, discussed above, Woods did not make an offer of proof to show the substance of Carter's testimony and to preserve this alleged error for review. Therefore, we review this argument under the plain-error rule. See Rule 45A, Ala.R.App.P.
As noted above, a defendant is permitted to present a wide range of proposed mitigation, but that range is not unlimited. The proffered evidence must be relevant and it must be related to the defendant's character or record or the circumstances of the offense. Carter's testimony about the effect of Woods's execution on her does not relate to any of those relevant topics. Although Alabama appellate courts have apparently not addressed this precise issue, Texas courts have done so. In Roberts v. State, 220 S.W.3d 521 (Tex.Crim. App.2007), defense counsel requested permission to ask Roberts's niece how she would be affected if Roberts received the death penalty. The prosecutor objected on the ground that the testimony would not be relevant, and the trial court sustained the objection. On appeal, the Texas Court of Criminal Appeals held that the issue had not been preserved because Roberts failed to make an offer of proof, and then stated: "Moreover, we have previously decided that a trial court does not abuse its discretion in excluding `execution-impact' testimony." Roberts, 220 S.W.3d at 532, citing Jackson v. State, 33 S.W.3d 828, 834 (Tex.Crim.App.2000). Other state *34 courts have also held that execution-impact testimony is irrelevant because it does not relate to a defendant's character or record or the circumstances of the crime. See Commonwealth v. Harris, 572 Pa. 489, 524-25, 817 A.2d 1033, 1054 (2002) (citing cases upholding exclusion of third-party or execution-impact testimony).
Because the testimony concerning the impact Woods's execution would have on Carter was not relevant, we hold that the trial court did not abuse its discretion when it precluded that portion of Carter's testimony. Therefore, we find no error, plain or otherwise, as to this claim.
B.
Woods also makes the following argument on appeal:
"Paradoxically, the Court allows over defense objections very similar testimony from Bobbie Owen (T. 1840); and even allows the widow to introduce photographs of the victim[']s grandchildren into evidence (T. 1841) (C. 2095-2099), after refusing to allow defense witness[es] to talk about the very same issues. Susan Bennet [sic] is allowed to testify as to similar material (T. 1847) and introduce photographs of her child (T. 1846) (C. 2094). Stacy Sellers, [the widow of officer Chisholm], is even allowed to talk about painting a bedroom in anticipation of trying to have a child (T. 1849). In all these instances, defense counsel ... promptly objected, stating the basis of each objection for the record.
"The admission of testimony by the victim's widows about the victim's relationships with the children and grandchildren, on rebuttal, in the [penalty] phase constituted error and was inherently unfair from the same judge who sustained State's objections to similar evidence when offered by defense witnesses."
(Woods's brief at pp. 58-59.)
Bobbie Owen testified that she and Officer Owen had five children. Defense counsel objected that the testimony was not related to a statutory aggravating circumstance. Ms. Owen testified without objection that they had nine grandchildren, and she named several of them. When the State offered into evidence photographs of some of the grandchildren, defense counsel stated, "Same objection under Rule 401 and 403, Alabama Rules of Evidence, Judge." (R. 1841.) The trial court overruled the objection and admitted the photographs into evidence. As for Woods's assertion that Susan Bennett testified "as to similar material (T. 1847) and introduce[d] photographs of her child (T. 1846)," the record reflects that Ms. Bennett testified without objection that she and Officer Bennett had one child who was six years old at the time of the trial. When the State offered into evidence a photograph of the child, defense counsel objected "under 401, 401(b) and 403[, Ala. R.Evid.,] as improper testimony. In addition to that, we would like to add to the record our objection that this is in fact not rebuttal of anything that was said by witnesses in ... the defense case." (R. 1846.) The trial court overruled the objection and admitted the photograph into evidence. (R. 1847.) Stacey Sellers, Officer Chisolm's widow, testified without objection that she and Officer Chisolm had no children, but that they planned to have children. When the prosecutor asked Ms. Sellers if they had done anything in preparation for having children, defense counsel objected on the ground that the testimony was not relevant, was not rebuttal testimony, and was not about an aggravating circumstance. (R. 1848.) The trial court overruled the objection, but the prosecutor asked another question. Ms. Sellers later *35 testified without objection that she and Officer Chisolm had recently painted a bedroom "in hopes of having a child and that's never going to happen." (R. 1849.)
Woods argues that the admission of the foregoing testimony was "inherently unfair" because, he says, the court had sustained the State's objections to similar testimony offered by defense witnesses. We note, first, that Woods did not enter timely objections to much of the testimony he now argues was improperly admitted. Thus, we review the arguments as to that testimony under the plain-error rule.
In Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), the United States Supreme Court held:
"[A] State may properly conclude that for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. `[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.' Booth [v. Maryland], 482 U.S. [496, 517 (1987)] (White, J., dissenting) (citation omitted). By turning the victim into a 'faceless stranger at the penalty phase of a capital trial,' [South Carolina v.] Gathers, 490 U.S. [805, 821 (1989)] (O'Connor, J., dissenting), Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder."
501 U.S. at 825, 111 S. Ct. 2597. The Supreme Court further stated:
"We thus hold that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated."
Payne, 501 U.S. at 827, 111 S. Ct. 2597. The Supreme Court recognized that victim-impact evidence "is designed to show instead each victim's `uniqueness as an individual human being,' whatever the jury might think the loss to the community resulting from his death might be." Payne, 501 U.S. at 823, 111 S. Ct. 2597.
Here, the testimony provided by the officers' widows was offered to show that each officer's death caused a unique loss to his family and to show the impact the murders had on the family members. Part of that testimony, the portion about which Woods apparently is complaining here, was elicited to show that Officer Owen was married and had children and grandchildren, that Officer Bennett was married and had a child, and that Officer Chisolm was married and had planned to start a family. This testimony was offered in rebuttal to the evidence Woods offered as mitigationthat he was a father of three children whom he loved very much. This was legitimate victim-impact evidence, which we have previously held to be admissible during the penalty phase of a capital-murder trial. See e.g., Belisle v. State, 11 So. 3d 256, 317 (Ala.Crim.App. 2007). The trial court did not abuse its discretion when it permitted the witnesses *36 to testify about the victims and their families.[6]
To the extent Woods argues that he was precluded from presenting testimony similar to that presented by the officers' widows, the record discloses otherwise. Cynthia Sherman, Woods's aunt, testified about their relationship and stated that if Woods received a sentence of life imprisonment without parole, he could communicate with his family and see his children. Woods's cousin, Shena Carter, testified that Woods has three children, that Woods appeared to love his children and that they loved him, and that Woods was loving toward his friends and his family. Woods's mother, Pamela Woods, testified about their family and Woods's upbringing, and also stated that Woods has three children. In addition, Woods testified before the jury that he has three children, and he gave their names and ages; a photograph of his children was admitted into evidence.
Therefore, the trial court committed no error, plain or otherwise, when it permitted the forgoing testimony during the State's rebuttal case.
IV.
Woods contends that he was denied the effective assistance of counsel during the penalty phase of his trial because, he says, his attorneys did not meet the minimum standards for representation of a defendant facing the death penalty set forth in the American Bar Association ("ABA") guidelines. Specifically, he appears to argue that counsel's performance did not meet the guidelines because counsel did not consult with a mitigation expert and because counsel did not present evidence of additional mitigating factors, such as his mental state and that he was acting under extreme duress or the domination of another person. These arguments were not raised below, so we review them under the plain-error rule. See Rule 45A, Ala. R.App.P.
The principles governing our review of this argument were set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), in which the United States Supreme Court held:
"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not *37 functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."
466 U.S. at 687, 104 S. Ct. 2052.
The record before us contains no support for Woods's allegations. Before trial the prosecutor stated that he was not familiar with Rita Briles, one of Woods's attorneys, and he wanted to be sure that they were "not running into some issue here where she doesn't statutorily qualify to be appointed in a capital case." (R. 78.)[7] Briles informed the court that she had 12 years' experience and the court stated that she appeared to be qualified. Cocounsel Cynthia Umstead then stated: "In addition to that, Judge, both Ms. Briles and I meet the ABA standards for appointed counsel as recently passed or adopted by the Circuit Court Judges Association of having the 12 hours of capital litigation training every other year." (R. 78.) However, the record before us contains no evidence about the scope of counsel's mitigation investigation, about which Woods now appears to complain. The record does reflect that during a pretrial hearing held on December 3, 2004, the trial court granted a defense motion for funds for a private investigator and informed Woods that if he required additional funds he could file a motion to establish the need for the funds. The court then considered a defense motion to retain a psychologist. Woods argued that he needed the evaluation for "mitigating purposes," and the trial court stated: "If you want a mitigation expert, which I assume that's what it sounds like you are asking for, I will give you twenty-five hundred dollars for that and you can use whoever you want to." (R. 44.) Thus, Woods's assertion that trial counsel "conducted an inadequate investigation into possible mitigating evidence" (Woods's brief at p. 70) is unsupported by the record and, in fact, the record provides an inference that counsel intended to hire a mental-health expert as part of their mitigation investigation. Furthermore, this Court has quoted with approval the following from Grayson v. Thompson, 257 F.3d 1194 (11th Cir.2001):
"`An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption [of effective representation]. Therefore, "where the record is incomplete or unclear about [counsel]'s actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment."' Chandler v. United States, 218 F.3d 1305, 1314 n. 15 (11th Cir.2000) (en banc) (quoting Williams v. Head, 185 F.3d 1223, 1228 (11th Cir. 1999))."
257 F.3d at 1218. See, e.g., Brooks v. State, 929 So. 2d 491, 497 (Ala.Crim.App. 2005); Robitaille v. State, 971 So. 2d 43, 73 (Ala.Crim.App.2005) (both cases quoting Grayson). Based on the record before us, we conclude that Woods has failed to establish that counsel's performance was deficient.
As to the prejudice prong, Woods argues that "there is a reasonable probability that had counsel conducted a reasonable investigation *38 into possible mitigating evidence, the balance between the aggravating circumstance[s] and the mitigating circumstances would have tipped further in favor of a sentence of life imprisonment without the possibility of parole." (Woods's brief at p. 69.) However, other than a brief assertion that counsel failed to "put on evidence of [Woods's] mental state" (Woods's brief at p. 69), Woods has not identified any specific mitigating evidence that existed that he believes counsel failed to discover and present. Significantly, we have nothing in the record before us regarding Woods's mental state, and the record is equally silent as to any additional mitigating factors that allegedly existed but were not discovered or presented by defense counsel. Furthermore, nothing in the record before us indicates that, if some as-yet-unidentified evidence had been offered as mitigation, the jury would have recommended a sentence of life imprisonment without parole and that the trial court would have imposed a sentence of life imprisonment without parole.
This Court will not find plain error with regard to trial counsel's performance based on an argument supported by only speculation from a silent record.
V.
Finally, Woods argues that the jury-verdict-override sentencing scheme of Alabama's capital-murder statute is unconstitutional, and he sets forth several specific reasons in support of his argument. Woods, however, does not have standing to raise any argument about the constitutionality of Alabama's statute regarding jury verdict override.
The jury in this case recommended by a vote of 10 to 2 that the trial court impose a death sentence on Woods. When the trial court sentenced Woods to death, it did not override a jury recommendation of life imprisonment without parole. Therefore, none of Woods's arguments concerning the alleged unconstitutionality of the override provisions of Alabama's death-penalty statute have any application to Woods's case, and he has no standing to challenge them in this proceeding.[8] As this Court noted in Beckworth v. State, 946 So. 2d 490 (Ala. Crim.App.2005), in analyzing an analogous issue:
"As to his claim that Alabama's death-penalty statute is unconstitutional because it permits the execution of mentally retarded defendants and because it contains no standards for determining whether a defendant is mentally retarded, we find that these allegations of error need not be addressed because we have already held that the trial court correctly determined that Beckworth is not mentally retarded. J.L.N. v. State, 894 So. 2d 751 (Ala.2004); Gavin v. State, 891 So. 2d 907, 935-38 (Ala.Crim.App. 2003) (both cases holding that a defendant cannot challenge the constitutionality of a statute when he cannot show that the statute's alleged unconstitutional feature adversely affected him)."
Beckworth, 946 So.2d at 511.
Because Woods did not receive a recommendation of life imprisonment without parole *39 from the jury in his case, Woods does not have standing to raise arguments about the constitutional validity of the override provisions of the statute. He is therefore not entitled to review of, or relief on, these allegations of error.
VI.
In accordance with Rule 45A, Ala.R.App. P., we have examined the record for any plain error with respect to Woods's capital-murder convictions, whether or not brought to our attention or to the attention of the trial court. We find no plain error or defect in the proceedings during the guilt phase of the trial.
However, our review of the record reveals that, in its sentencing order, the trial court did not "enter specific written findings concerning the existence or nonexistence of ... any additional mitigating circumstances offered pursuant to Section 13A-5-52," as required by § 13A-5-47(d), Ala.Code 1975. (Emphasis added.) Although the trial court thoroughly addressed and made specific fact findings regarding the statutory aggravating circumstances and statutory mitigating circumstances, it did not make specific findings regarding the existence or nonexistence of nonstatutory mitigating circumstances offered pursuant to § 13A-5-52. The trial court stated in its order that it had considered all the matters presented, including "the testimony heard at trial and at the sentencing hearing before this Court, both in mitigation and aggravation, considering the nonstatutory evidence of mitigation of the defendant's background, the pre-sentence investigation report and the recommendation of the jury contained in its advisory verdict of death ...." (C. 108; emphasis added.) Thus, although it is clear from the order that the trial court considered the evidence Woods offered as nonstatutory mitigation, it is not clear whether the trial court found any of the evidence to constitute nonstatutory mitigation.
In Morrow v. State, 928 So. 2d 315 (Ala. Crim.App.2004), this Court addressed a similar situation:
"In addition, in its order, the trial court stated the following regarding nonstatutory mitigating circumstances:
"`The Judge, just as the jury, is entitled to consider anything, any matter that the Court might find in any way to be mitigating in order to consider the same and balance the same with the aggravating circumstances as found by the Court. There was evidence and testimony presented during the trial and sentencing phases of the Defendant's home life, early family life, lack of education and lack of a functional and traditional family unit. The Court has carefully considered all of the evidence presented during all stages of the trial in this cause, as well as the Court's observation and evidence admitted during all proceedings, pretrial and posttrial with regard to this case and the Court finds that mitigating circumstances exist with regard to this case.'
"(C. 17.) The trial court indicated that it found nonstatutory mitigating circumstances to exist, but it failed to identify which nonstatutory mitigating circumstances it found to exist. As this Court stated in Roberts v. State, 735 So. 2d 1244 (Ala.Crim.App.1997), aff'd, 735 So. 2d 1270 (Ala.1999):
"`In capital cases, it is the duty of this court to independently determine whether the sentence of death is appropriate in a particular case. In order to reach this conclusion, we must reweigh the aggravating circumstances and the mitigating circumstances as found by the trial court.'
"735 So.2d at 1269 (emphasis added). See also Guthrie v. State, 689 So. 2d 935 *40 (Ala.Crim.App.1996), aff'd, 689 So. 2d 951 (Ala.1997). Although `the trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating,' Williams v. State, 710 So. 2d 1276, 1347 (Ala.Crim.App.1996), aff'd, 710 So. 2d 1350 (Ala.1997), in order for this Court to conduct its review of the death sentence, the trial court must specifically identify in its sentencing order those nonstatutory mitigating circumstances that it did find to exist."
928 So.2d at 326-27. More recently, in Scott v. State, 937 So. 2d 1065 (Ala.Crim. App.2005), this Court remanded the case for clarification of the sentencing order, noting in part:
"In a listing of mitigating circumstances the court found not to exist, the court included, `Any other mitigating circumstance offered pursuant to § 13A-5-52, Code of Alabama 1975.' (C. 77.) In the next paragraph of the sentencing order, however, the court stated, `The Court considered the evidence presented by the defendant as evidence of non-statutory mitigating factors.' (C. 77.) Although the trial court need not list and make findings as to each item of alleged nonstatutory mitigating evidence offered by a defendant, Reeves v. State, 807 So. 2d 18, 48 (Ala.Crim.App.2000), it must make a clear finding regarding the existence or nonexistence of nonstatutory mitigating evidence offered by a defendant. § 13A-5-47(d), Ala.Code 1975. The sentencing order is unclear as to whether the court found any nonstatutory mitigating circumstances to exist. On remand, this ambiguity must be clarified."
937 So.2d at 1087-88.
As in Morrow and Scott, because the trial court here did not enter specific findings as to the existence or nonexistence of nonstatutory mitigating circumstances, we must remand this case to the trial court for it to amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances. If it finds it necessary, the trial court may reweigh the aggravating and mitigating circumstances and resentence Woods. The trial court's amended sentencing order shall be submitted to this Court within 42 days of the date of this opinion. We pretermit our plain-error review of Woods's death sentence pending the trial court's return to remand.
AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS TO SENTENCING.
BASCHAB, P.J., and McMILLAN, WISE, and WELCH, JJ., concur.
On Return to Remand
SHAW, Judge.
On August 31, 2007, this Court affirmed Woods's convictions for four counts of capital murder for his involvement in the shooting deaths of Birmingham police officers Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett; however, we remanded this case for the trial court "to amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances," see § 13A-5-52 and § 13A-5-47(d), Ala.Code 1975, and, if necessary, to reweigh the aggravating and mitigating circumstances and resentence Woods. Woods v. State, 13 So. 3d 1, 40 (Ala.Crim.App.2007). The trial court has complied with our instructions and has submitted on remand an amendment to its sentencing order that satisfies the statutory requirements.
*41 In our original opinion, in accordance with Rule 45A, Ala.R.App.P., we examined the record for any plain error with respect to Woods's capital-murder convictions and found no plain error or defect in the proceedings during the guilt phase of the trial. We have now reviewed Woods's sentence in accordance with § 13A-5-53, Ala.Code 1975, which requires that, in addition to reviewing the case for any error involving Woods's capital-murder convictions, we shall also review the propriety of the death sentence. This review shall include our determination of the following: (1) whether any error adversely affecting the rights of the defendant occurred in the sentence proceedings; (2) whether the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence; and (3) whether death is the appropriate sentence in this case. Section 13A-5-53(b) requires that, in determining whether death is the proper sentence, we must determine: (1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether an independent weighing by this Court of the aggravating and mitigating circumstances indicates that death is the proper sentence; and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
After the jury convicted Woods of the capital offenses charged in the indictment, a separate sentencing hearing was held before the jury in accordance with §§ 13A-5-45 and -46, Ala.Code 1975. After hearing evidence concerning the aggravating and mitigating circumstances, after being properly instructed by the trial court as to the applicable law,[1] and after being correctly advised as to its function in reference to the finding of any aggravating and mitigating circumstances, the weighing of those circumstances, if appropriate, and its responsibility in reference to the return of an advisory verdict, the jury by a vote of 10-2 recommended that Woods be sentenced to death.
*42 Thereafter, the trial court held another hearing, in accordance with § 13A-5-47, Ala.Code 1975, to aid it in determining whether it would sentence Woods to life imprisonment without the possibility of parole or to death as recommended by the jury. The trial court ordered and received a written presentence investigation report, as required by § 13A-5-47(b). In its sentencing order and the amendment to that order, the trial court entered specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, Ala. Code 1975, each mitigating circumstance enumerated in § 13A-5-51, Ala.Code 1975, and any mitigating circumstance found to exist under § 13A-5-52, Ala.Code 1975, as well as written findings of fact summarizing the offense and Woods's participation in it.
In the sentencing order and the amendment, the trial court found the existence of four statutory aggravating circumstances: (1) that Woods knowingly created a great risk of death to many persons in the commission of the offense, see § 13A-5-49(3), Ala.Code 1975; (2) that the offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody, see § 13A-5-49(5), Ala.Code 1975; (3) that the offense was committed to disrupt or hinder the lawful exercise of a government function or the enforcement of laws, see § 13A-5-49(7), Ala.Code 1975; and (4) that Woods intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct, see § 13A-5-49(9), Ala.Code 1975. The trial court found that no statutory mitigating circumstances existed. The trial court also heard testimony regarding Woods's character and record and any of the circumstances of the offense that Woods offered as a basis for sentencing him to life imprisonment without the possibility of parole instead of death, see § 13A-5-52, Ala.Code 1975, and after considering the proffered evidence, the trial court found that no nonstatutory mitigating circumstances existed.
The trial court's sentencing order and the amendment to that order reflects that, after considering all the evidence presented, the arguments of counsel, the presentence report, and the advisory verdict of the jury, and after weighing the aggravating circumstances against the absence of mitigating circumstances, the trial court found that the aggravating circumstances clearly outweighed the nonexistent mitigating circumstances. Accordingly, the trial court sentenced Woods to death. The trial court's findings concerning the aggravating circumstances and the mitigating circumstances are supported by the evidence, and we find no plain error or defect in the penalty phase of the proceedings.
Woods was convicted of intentionally causing the deaths of Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett while each was on duty as a police officer, and he was convicted of intentionally causing the deaths of Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett by one act or pursuant to one scheme or course of conduct by shooting them with a firearm. These offenses are defined by statute as capital offenses. See § 13A-5-40(a)(5) and (10), Ala.Code 1975. We take judicial notice that similar crimes have been punished capitally throughout the state. See, e.g., McNabb v. State, 887 So. 2d 929 (Ala.Crim.App.2001), aff'd, 887 So. 2d 998 (Ala.2004), and the cases cited therein dealing with the murder of a police officer; and Hyde v. State, [Ms. CR-04-1390, Sept. 28, 2007] ___ So.3d ___ (Ala. Crim.App.2007), and the cases cited therein dealing with the murder of two or more people pursuant to one act.
*43 After carefully reviewing the record of the guilt phase and of the penalty phase of Woods's trial, we find no evidence indicating that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. The findings and conclusions of the trial court are amply supported by the evidence. We have independently weighed the aggravating circumstances against the absence of mitigating circumstances, and we concur in the trial court's judgment that the aggravating circumstances clearly outweigh the nonexistent mitigating circumstances, and we agree that death is the appropriate sentence in this case. Considering the crimes committed and considering Woods, we find that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases.
Based on the foregoing, Woods's sentence of death is affirmed.
AFFIRMED.
BASCHAB, P.J., and McMILLAN, WISE, and WELCH, JJ., concur.
NOTES
[1] In case no. CC-04-4136, Woods was also charged with and convicted of the attempted murder of Michael Collins, in violation of §§ 13A-6-2 and 13A-6-4, Ala.Code 1975. The trial court sentenced Woods to life imprisonment for the attempted-murder conviction. Woods did not file a notice of appeal with respect to that conviction; therefore, it is not before this Court in this appeal.
[2] By the time Officer Sanders arrived at the apartment, the officers had been shot.
[3] Spencer was also convicted of capital murder for his involvement in the shooting of the police officers and was sentenced to death. His appeal is currently pending in this Court and is docketed as case no. CR-04-2570.
[4] We note that McClure, Belser, and Scott testified before the hearing on the evidence the State proposed to admit pursuant to Rule 404(b), and that none of this testimony was discussed at that hearing.
[5] Woods also argues that the evidence was inadmissible because, he says, it was not a statement of general opinion or reputation evidence, but instead included statements regarding specific conduct. It is unclear from Woods's argument whether he addresses this particular challenge to all of the evidence he discusses in this issue, or only to the exhibits discussed in this portion of the argument. Regardless of that ambiguity, we note that Woods appears to be attempting to apply Rule 405(a), Ala.R.Evid., which states that evidence of character may be made by testimony as to reputation or in the form of an opinion. None of the evidence discussed here was offered as character evidence, however, so Rule 405 is inapplicable.
[6] During the State's rebuttal case at the penalty phase, the prosecutor asked Bobbie Owen what she thought the appropriate sentence would be in this case, and defense counsel objected and cited Rules 401 and 403, Ala. R.Evid. (R. 1841-42.) When the prosecutor asked the same question of Susan Bennett and Stacy Sellers, Woods did not object. Each witness testified that she thought a death sentence would be appropriate. On appeal, Woods does not raise this issue. We note, nonetheless, that the trial court acted well within its discretion to permit this testimony because during the defense case, Woods asked the witnesses what sentence they believed was appropriate and they testified that a life-imprisonment-without-parole sentence would be appropriate for him. (R. 1804, 1810-11, 1819, 1825-26.) See, e.g., Ex parte D.L.H., 806 So. 2d 1190, 1193 (Ala.2001) ("When one party opens the door to otherwise inadmissible evidence, the doctrine of `curative admissibility' provides the opposing party with `the right to rebut such evidence with other illegal evidence.' McElroy's Alabama Evidence, § 14.01, p. 49 (5th ed. 1996)."). Testimony from a victim's family member as to a sentencing recommendation is generally not admissible in a capital case. See, e.g., Stallworth v. State, 868 So. 2d 1128, 1176 (Ala. Crim.App.2001). Because Woods offered such testimony at the penalty phase of his trial, however, we find that, under the facts of this case, no plain error occurred as a result of the State's witnesses' testimony in rebuttal about a recommended sentence.
[7] Section 13A-5-54, Ala.Code 1975, provides that an indigent defendant in a capital-murder trial "must be provided with court appointed counsel having no less than five years' prior experience in the active practice of criminal law."
[8] In footnote 27 of his brief, Woods makes the following argument:
"As a perfect example of the arbitrary and capricious nature of the application of this law, in the Kerry Spencer case, the jury found that life without parole was the appropriate penalty (for the self-admitted shooter of the three police officers) following [t]he punishment phase. The Court (the same trial judge as in the instant case Judge Tommy Nail) overrode the jury's verdict in Spencer and imposed a sentence of death by lethal injection."
(Woods's brief at pp. 71-72; emphasis added.) Woods has implicitly acknowledged that his arguments concerning the override provisions have nothing to do with his own case.
[1] Although not raised by Woods at trial or in this appeal, we note that, during its charge to the jury at the penalty phase, the trial court stated that the prosecution had the burden of disproving a disputed mitigating circumstance by a preponderance of the evidence, and the court then stated: "The burden of disproving it by a preponderance of the evidence means that you are to consider that the mitigating circumstance does not exist unless taking the evidence as a whole it is more likely than not that the mitigating circumstance does not exist." (R. 1875; emphasis added.) Immediately after it gave this instruction, however, the trial court then correctly stated: "Therefore, if there is a factual dispute over the existence of a mitigating circumstance, then you should find and consider that mitigating circumstance unless you find the evidence is such that it is more likely than not that the mitigating circumstance did not exist." (R. 1875.) The incorrect instruction could have been a mere slip of the tongue on the part of the trial court or, perhaps, is the result of an error made by the court reporter in transcribing the court's oral charge. The possibility of court-reporter error is supported by the fact that Woods did not object to the instruction, and that the remainder of the trial court's jury charge is substantially similar to the Alabama Proposed Pattern Jury Instructions for Use in the Sentence Stage of Capital Cases Tried Under Act No. 81-178. "`This Court may take notice of typographical errors which are "plainly ... self-corrective, clerical mistake[s]." Stewart v. State, 137 Ala. 33, 34 So. 818, 821 (1903).' Kuenzel v. State, 577 So.2d [474, 523 (Ala.Crim.App.1990), aff'd, 577 So. 2d 531 (Ala.1991)]." Simmons v. State, 797 So. 2d 1134, 1173 (Ala.Crim.App. 1999) (footnote omitted). Based on our review of the court's oral charge as a whole, we conclude that the jury was properly informed, and understood, that the burden was on the State to disprove any mitigating circumstances offered by Woods, despite the single misstatement by the trial court. Therefore, no plain error occurred as a result of this instruction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3038423/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3531
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Billy Cole, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: August 4, 2005
Filed: August 9, 2005
___________
Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
___________
PER CURIAM.
Billy Cole appeals the district court’s1 denial without prejudice of his 18 U.S.C.
§ 3582(c)(2) sentence-reduction motion, in which he sought reduction based on
Amendment 591 to the Sentencing Guidelines and Blakely v. Washington, 542 U.S.
296 (2004). Amendment 591 does not affect Cole’s sentence, and he has not stated
any other basis for modification under section 3582(c)(2). Accordingly, we affirm.
See 8th Cir. R. 47B.
______________________________
1
The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1620130/ | 955 So.2d 764 (2007)
Shermeker POLLARD and Trellvion Gaines, A Minor, by and through his Natural Mother, Legal Guardian, and Next Friend, Shermeker Pollard
v.
SHERWIN-WILLIAMS COMPANY.
No. 2003-CT-02030-SCT.
Supreme Court of Mississippi.
February 15, 2007.
Rehearing Denied May 24, 2007.
*765 Michael Casano, John Timothy Givens, Jackson, Timothy W. Porter, Patrick Malouf, Ridgeland, attorneys for appellants.
Katherine A. Smith, John G. Corlew, Jackson, Paul Michael Pohl, Richard H. Deane, attorneys for appellee.
EN BANC.
ON WRIT OF CERTIORARI
RANDOLPH, Justice, for the Court.
¶ 1. The plaintiffs originally filed suit against The Sherwin-Williams Company ("Sherwin-Williams"); NL Industries, Inc.; Martin Floor Covering; Robert Case, individually; Fayette Lumber and Supply Co.; William Darsey, individually; Darsey Hardware Co.; Darsey Hardware and Furniture Co.; and Hirsh's Store, alleging that Trellvion Gaines ("Trellvion") had been seriously injured by ingesting lead found in paint. Sherwin-Williams is the only defendant in this appeal. Plaintiffs assert liability against Sherwin-Williams by virtue of exposure to Sherwin-Williams-brand paint containing lead and Sherwin-Williams' failure to warn of the dangers caused by scraping paint containing lead in preparation for the application of non-lead paint. The circuit court granted summary judgment in favor of Sherwin-Williams when it adopted the "Report and Recommendation" of a special master. The Court of Appeals affirmed the dismissal solely on the statute of limitations issue. In granting the plaintiffs' petition for writ of certiorari, this Court now considers whether the "minor saving statute" should apply and, if so, whether Sherwin-Williams was otherwise entitled to summary judgment. After due consideration, this Court reverses the judgment of the Court of Appeals and the circuit court's blanket grant of summary judgment, finding that genuine issues of material fact exist as to numerous claims. Therefore, this case is remanded to the trial court for further proceedings in accordance with this opinion.
FACTS
¶ 2. Trellvion alleges cognitive deficiencies were caused by exposure to paint containing lead in a home built in the 1930s in Fayette, Mississippi. In December of 1978, the home was purchased by Johnny Crawford. In 1979, Doris Gaines, Trellvion's maternal grandmother, moved into the home. By the mid-1980s, Shermeker Pollard, Gaines' daughter, was also living in the home. In 1991, Pollard gave birth to Trellvion. From birth until the home was substantially destroyed by fire on June 4, 1994, Trellvion lived in the home.
¶ 3. Reverend Martin Lias swore that in the early 1930s, he observed the house being painted with white Sherwin-Williams brand paint.[1] Reverend Lias further swore that it was "lead paint" because "[t]he people that were painting [the house]" told him that.[2] According to *766 Gaines, the exterior and interior of the house had been painted white before she moved in with Crawford. Thereafter, the house was painted by Gaines and Vernon Collier, a local house painter, on numerous occasions between 1979 and 1994. According to Gaines, the home was painted once in the late 1970s, twice in the 1980s, and once in the early 1990s.
¶ 4. Gaines swore that she and Collier painted the entire inside and outside of the home in the late 1970s, using Sherwin-Williams "lead paint" purchased at Darsey's Hardware in Fayette, Mississippi, along with white exterior "lead paint" which Crawford had at the house. Crawford swore that he had previously purchased ten to fifteen gallons of white Sherwin-Williams "lead paint." Gaines stated the paint she purchased was Sherwin-Williams "lead paint," because that is what she specifically asked for, that is what the label provided, and "[it's] the only paint [she] ever bought." She ordered the paint and Collier picked it up. By affidavit, Collier swore he used "lead containing . . . Sherwin-Williams paints [he] had purchased from Darsey's Hardware" on the Crawford home.[3] Collier asserted that his opinion that the paint contained lead was based upon personal painting experience. Specifically, he stated that "[l]ead is a hardener" and in cleaning up the paint on this project, "[i]t wasn't like the regular other paints when . . . you wipe it and the paint come right on the rag." Gaines said the exterior was painted white, the kitchen was painted blue, and the remainder of the interior was painted pink.
¶ 5. As to the first 1980s painting, Gaines stated that she and Collier painted the dining room blue, her bedroom pink, and the interior doors white. This "lead paint" was purchased from Porter's in Natchez, although Gaines could not identify the brand of paint.
¶ 6. Regarding the second 1980s painting, Gaines stated she and Collier painted the den, the interior doors, and frames using Sherwin-Williams brand "lead paint" purchased at the Sherwin-Williams store in Natchez, and she knew the "lead paint" was Sherwin-Williams brand, "because that's what [she] asked for." This testimony was corroborated by her sister, Mildred. Additionally, Collier stated that the bathroom was painted green on this occasion, although he could recall no other details about the paint used.
¶ 7. Gaines swore that, for the early 1990s painting, she sent Collier to Fayette Lumber and Supply to pick up white and candy stripe colored "lead paint" for the bay windows, but she could not identify a brand. Collier's affidavit provided that:
even around 1991, I purchased for use, and painted on the house where Trellvion was living when he was diagnosed with lead poisoning, some Dutch Boy, Sherwin-Williams paints and other paints, some of which I believe contained lead, and which were purchased from Darsey's Hardware, Hirsch's Hardware and Fayette Lumber and Supply. . . .
Collier's and Mildred Gaines' deposition testimony was that Sherwin-Williams brand paint was used during this project.
¶ 8. During the painting project in the early 1990s, Trellvion was an infant. Gaines observed Trellvion eating paint chips that were "swept to the side" during the project. In September of 1993, blood tests confirmed that Trellvion had been excessively exposed to lead.
*767 ¶ 9. On November 28, 2000, the Chancery Court of Jefferson County, Mississippi, appointed Pollard as Trellvion's legal guardian for the purpose of asserting the present action. That same day, Pollard filed a complaint in the Circuit Court of Jefferson County, Mississippi, against Sherwin-Williams and the other initial defendants on behalf of herself and Trellvion. Pollard and Trellvion subsequently filed two amended complaints alleging that Sherwin-Williams was liable for damages caused by Trellvion's exposure to "lead paint" and "lead paint" residuum based on strict liability, negligence, fraudulent concealment, and misrepresentation. The second amended complaint specifically provided that:
13. In connection with his exposure to an environment containing Defendants' lead during the "exposure period," the minor, Plaintiff, Trellvion Gaines, inhaled or otherwise came into contact with injurious amounts of Defendants' lead, having neither knowledge nor reason to believe that the Defendants' lead which he was living with, near or around was dangerous.
14. The minor plaintiff was also exposed to lead dust, chips and other debris which resulted from the scraping, sanding and other removal of lead paint from his dwelling which occurred during the required procedure for application of defendants' non-lead based paints.
As a result thereof, the second amended complaint alleged that Trellvion:
has suffered physical and mental pain and anguish, other mental damages, loss of wage earning capacity and will continue to sustain damages of the above type in the future including, but not limited to, physical and mental pain and anguish, other mental and psychological damages, intellectual, cognitive, and behavioral injury, disability, future medical expenses and loss of the enjoyment of life.
Moreover, the second amended complaint alleged that Pollard "has suffered mental pai[n] and anguish in addition to expenses for medical treatment of [Trellvion], expenses in traveling to and from medical treatment for [Trellvion], other monetary, mental and emotional damages and injuries and . . . will continue to sustain damages of the above type in the future. . . ."
¶10. After the parties agreed to the appointment of a special master, Sherwin-Williams filed its motion for summary judgment. On May 5, 2003, the "Special Master's Report and Recommendation" recommended granting Sherwin-Williams' motion for summary judgment. The June 11, 2003 order of the circuit court adopted the "Special Master's Report and Recommendation" and granted Sherwin-Williams' motion for summary judgment. Thereafter, a motion to reconsider was denied and the final judgment of the circuit court dismissed the case with prejudice.
¶11. Before the Court of Appeals, the plaintiffs raised numerous issues, claiming that the circuit court erred in dismissing their claims with prejudice. The issues included:
([1]) whether the trial court erred in finding that Sherwin-Williams owed no duty to warn under Mississippi law of the dangers associated with surface preparation on its non-lead-based paint cans when it was foreseeable that lead paint may be scraped off in preparation for applying non-lead-based paint; ([2]) whether the trial court erred in finding that state common law was preempted by the Federal Hazardous Substance[s] Act; ([3]) whether the trial court erred in finding that Sherwin-Williams's lead-based paint was not defectively designed; and ([4]) whether the trial *768 court erred in finding that Pollard['s] . . . claims were barred by the statute of limitations.
Pollard v. Sherwin-Williams, 955 So.2d 859, 2005 WL 2141454, *1, 2005 Miss.App. LEXIS 622, at *3-4 (Miss.Ct.App.2005). In affirming the circuit court, the Court of Appeals considered only the statute of limitations issue. After their motion for rehearing was denied by the Court of Appeals, the plaintiffs filed a petition for writ of certiorari with this Court. This Court granted the petition.
STANDARD OF REVIEW
¶ 12. "The Supreme Court's review on the grant of certiorari shall be conducted on the record and briefs previously filed in the Court of Appeals and on any supplemental briefs filed." Miss. R.App. P. 17(h). The trial court's grant of a motion for summary judgment is reviewed by this Court de novo. See Wilner v. White, 929 So.2d 315, 318 (Miss.2006).
¶ 13. The Mississippi Rules of Civil Procedure provide summary judgment "shall be rendered forthwith 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 judgment as a matter of law." Miss. R. Civ. P. 56(c) (emphasis added). The Comment states that Miss. R. Civ. P. 56 "provides the means by which a party may pierce the allegations in the pleadings and obtain relief by introducing outside evidence showing that there are no fact issues that need to be tried." (Emphasis added). Conversely, the Comment provides that "summary judgment is not a substitute for the trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried. . . . [I]t cannot be used to deprive a litigant of a full trial of genuine fact issues." (Emphasis added). In Daniels v. GNB, Inc., 629 So.2d 595 (Miss. 1993), this Court addressed its review of a granted motion for summary judgment as follows:
[i]n our de novo review, this Court:
looks at all the evidentiary matters before [us] admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt.
[Mantachie Natural Gas District v. Mississippi Valley Gas Company, 594 So.2d 1170, 1172 (Miss.1992)]. . . . Furthermore, in Mink v. Andrew Jackson Casualty Co., 537 So.2d 431, 433 (Miss. 1988) [citing Ratliff v. Ratliff, 500 So.2d 981 (Miss.1986)], this Court said:
[a]ll motions for summary judgment should be viewed with great skepticism and if the trial court is to err, it is better to err on the side of denying the motion. When doubt exists whether there is a fact issue, the non-moving party gets its benefit. Indeed, the party against whom the summary judgment is sought should *769 be given the benefit of every reasonable doubt.
[Id.] at 433. A motion for summary judgment should be overruled unless the trial court finds, beyond any reasonable doubt, that the plaintiff would be unable to prove any facts to support his claim. McFadden v. State, 580 So.2d 1210 (Miss.1991). If facts are in dispute, it is not the province of the trial court to grant summary judgment thereby supplanting a full trial with its ruling. "Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried." Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983). . . .
Daniels, 629 So.2d at 599 (emphasis added).
ANALYSIS
I. Whether the circuit court erred in dismissing Pollard's claims on the basis of the statute of limitations and, separately, whether the Court of Appeals erred in holding that the statute of limitations had run in an action where a minor child was an injured party?[4]
¶ 14. The plaintiffs argue that the statute of limitations of Miss.Code Ann. § 15-1-49 (Rev.2003) is tolled by the "minor savings statute," Miss.Code Ann. § 15-1-59 (Rev.2003), until the minor achieves majority. By contrast, Sherwin-Williams urges this Court to affirm the exception adopted by the Court of Appeals. The Court of Appeals held that Miss.Code Ann. § 15-1-59 was inapplicable "since these claims were filed on behalf of [Trellvion] by and through his natural mother, legal guardian, and next friend. . . ." Pollard, 955 So.2d at 859, n. 2, 2005 WL 2141454, *4, n. 2, 2005 Miss.App. LEXIS, at *7, n. 2.
¶ 15. The applicable statute of limitations is provided by Miss.Code Ann. § 15-1-49(1), which states:
(1) [a]ll actions for which no other period of limitation is prescribed shall be commenced within three (3) years after the cause of such action accrued, and not after.
Miss.Code Ann. § 15-1-49(1).
¶ 16. However, as to Trellvion's claims, this section must be read in conjunction with Miss.Code Ann. § 15-1-59, the "minor saving statute," which provides:
[i]f any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.
Miss.Code Ann. § 15-1-59 (Rev.2003).
¶ 17. Both statutes refer to the accrual date of the cause of action. This Court has determined that "the cause of action accrues and the limitations period begins to run when the plaintiff can reasonably be held to have knowledge of the injury or disease." Schiro v. American Tobacco Co., 611 So.2d 962, 965 (Miss.1992) (quoting Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 709 (Miss.1990)). In September *770 of 1993, blood lead lab tests confirmed significantly elevated readings of lead, indicative of excessive exposure to lead. As such, Trellvion's cause of action accrued no later than September of 1993. As Pollard's claim is derivative, her cause of action accrued no later than September of 1993. As the original complaint was not filed until November 28, 2000, the three (3) year statute of limitations applicable to Pollard's claims had already expired. However, because Trellvion was a minor at the time his cause of action accrued,[5] his claims are tolled by Miss.Code Ann. § 15-1-59.
¶ 18. While the scope of Miss.Code Ann. § 15-1-59 has been limited,[6] there is no applicable law denying Trellvion protection afforded by the aforementioned statute. In Taylor v. General Motors Corp., 717 So.2d 747 (Miss.1998), this Court recognized the protection afforded by Miss. Code Ann. § 15-1-59 when a father represented his own interests and those of his minor son. See id. at 750. In Taylor, the father and son were involved in a car wreck and a Louisiana attorney was hired to represent them both. See id. at 747. The lawsuit was filed against the automobile company and an insurer three (3) days prior to the expiration of the three (3) year statute of limitations, but was ultimately dismissed. See id. at 747-50. On appeal, this Court affirmed the dismissal with the caveat that:
the dismissal is without prejudice as to the claim of Taylor's minor son, against whom the statute of limitations, pursuant to Miss.Code Ann. § 15-1-59 (1995), does not begin to run until the son attains his twenty first birthday. The minor's claim remains viable for the time period should a determination be made to pursue the same.
Id. at 750 (emphasis added).
¶ 19. "The purpose of the savings statute is to protect the legal rights of those who are unable to assert their own rights due to disability." United States Fid. & Guar. Co. v. Melson, 809 So.2d 647, 653 (Miss.2002) (quoting Rockwell v. Preferred Risk Mut. Ins. Co., 710 So.2d 388, 391 (Miss.1998)). As Trellvion was a minor at the time his cause of action accrued, as well as at present, his claims are tolled by the "minor saving statute" and not barred by Miss.Code Ann. § 15-1-49. Therefore, the Court of Appeals erred in barring Trellvion's claims.
II. Whether the circuit court erred in granting Sherwin-Williams' motion for summary judgment?
¶ 20. The special master's "Report and Recommendation," adopted in its entirety by the circuit court, contains numerous conclusions of law, based upon disputed facts. Specifically, the report finds multiple "undisputed facts," restating nearly verbatim Sherwin-Williams' "Itemization of Not Genuinely Disputed Facts." This is despite Trellvion's "Objections to Defendants Itemization of Facts" ("Objections") controverting material facts, supported by sworn affidavits and deposition testimony, as required by the Mississippi Rules of Civil Procedure. See Daniels, 629 So.2d at 599 ("[i]n order for there to be genuine issues of material fact, the affidavits and other evidence must be sworn, made upon personal knowledge, and show that the party providing the factual evidence is competent to testify.").
*771 ¶ 21. The special master's report recites such "undisputed fact[s]" as "[n]one of Sherwin-Williams Company brand residential paint formulas for white, blue, pink, or grey paints dated June 1, 1973 through December 31, 1978 contained any lead ingredient[,]" that "Sherwin-Williams Company had stopped selling its brand paints through dealers, such as Darcy [sic] Hardware, by early 1976[,]" and that "Sherwin-Williams Company residential paints have a recommended shelf life of three years or less and Darcy [sic] Hardware maintains only small quantities of paint, which it sold in a matter of weeks." These "undisputed facts" were properly controverted by sworn evidence in the form of affidavits by Drs. Paul Mushak and Roy Dowling, the deposition testimony of Doris Gaines, and the affidavit and deposition testimony of Johnny Crawford. Additional sworn testimony disputing the "undisputed facts" can be found in the deposition testimony of Reverend Lias and an expert report penned by John F. Rosen, MD.[7] This opposing evidence, when "viewed in the light most favorable to [Trellvion,]" Mantachie Natural Gas, 594 So.2d at 1172, requires acceptance by the trial judge for summary judgment purposes, even though the judgein this case, the special master believes that a jury would reject the non-movant's version. Sworn evidence viewed in the light most favorable to Trellvion shows that Crawford's home was painted with white Sherwin-Williams paint in the early 1930s and was still painted white when Gaines moved in with Crawford in 1979; that Sherwin-Williams paint containing lead was obtained at Darsey Hardware in the late 1970s and 1980s, as both Gaines and Crawford swore; that both Gaines and Crawford purchased Sherwin-Williams brand paint containing lead in white, blue, and pink colors and applied it to the interior walls of Crawford's home; that paint chips containing lead in white, green, pink, grey, blue, and light blue were found on the charred walls of the home by ALTEC Environmental Consultants following the 1994 fire; that Trellvion ingested paint chips containing lead; and that injury resulted therefrom.
¶ 22. Specifically, Reverend Lias swore that in the early 1930s he observed the house being painted with white Sherwin-Williams brand paint. Gaines gave a sworn statement that the home was painted white prior to 1979. Furthermore, she swore that in 1979, she purchased Sherwin-Williams brand paint containing lead in blue and pink colors and painted the interior of the home therewith, along with white Sherwin-Williams brand paint containing lead which Crawford claimed he had previously purchased. Dr. Mushak, a "toxicologist and environmental health scientist specializing in the toxicology and human risk assessment of environmental metals, especially lead[,]" swore that it is:
highly likely that lead paint at toxic exposure levels would have been available for purchase by those painting the Gaines home in the 1970s and even later and that lead paint was applied to the walls of that home in that time period. That lead paint would have been available for producing lead poisoning in the Gaines child at the time of the blood lead testing and before.
(Emphasis added). In reaching that conclusion, Dr. Mushak relied on studies from reliable sources such as the Center for Disease Control, the federal agency for Toxic Substances and Disease Registry, and the Department of Consumer Protection *772 for the State of Connecticut.[8] Gaines observed Trellvion ingesting paint chips "swept to the side" during the early 1990s painting project. Dr. Roy Dowling, an employee of ALTEC Environmental Consultants, issued a lead inspection report based upon X-Ray Fluorescence (XRF) readings obtained from the charred remains of the home's painted walls. In that report, Dr. Dowling concluded that "thirty-four (34) of the forty-one (41) samples contained lead-based paint. White, green, pink, gray, blue, and light blue paint coatings were found to contain lead."[9] Finally, the report of John F. Rosen, MD, stated that:
with a reasonable degree of medical certainty, Trellvion was excessively exposed to lead based paint from very early infancy to and through his disease of childhood lead poisoning. With a reasonable degree of medical certainty, based upon substantially elevated XRF readings for lead and substantially elevated concentrations of lead in paint samples analyzed by AAS (ALFEC Environmental Consultants, Inc.; Dr. Paul Mushak), from accessible household areas for Trellvion living at his home at 553 Highway, his disease of lead poisoning was caused by ingestion of lead based paint and leaded dust therefrom at his home. . . .
On cognitive testing by Dr. T. Lidsky . . . Trellvion was found to have documented cognitive deficits in visual-spatial-constructional skills and memory, fine motor skills, visual and auditory attention, verbal fluency, non-verbal concept formation and cognitive flexibility. With a reasonable degree of medical certainty, based, in part, on my extensive clinical experience, and, based, in part, on review of the pertinent literature, Trellvion's cognitive deficits were caused by his documented history of childhood lead poisoning.
¶ 23. Collectively, the sworn testimony of these witnesses, "viewed in the light most favorable to [Trellvion,]" Mantachie Natural Gas, 594 So.2d at 1172, creates genuine issues of material fact regarding the "undisputed facts" adopted by the special master and relied upon in the dissent. Is it more likely than not, given that eighty-three percent (83%) of the paint chips contained lead, that Trellvion may have ingested paint residuum containing lead? The fact that Sherwin-Williams denied manufacturing and marketing paint containing lead at the time of his exposure, despite evidence to the contrary, merely creates an issue for a jury to resolve.
¶ 24. Furthermore, the special master improperly assessed the credibility of witnesses in rendering the "Report and Recommendation," despite his acknowledgment that our law clearly establishes that such credibility determinations were not within his province. Specifically, the "Report and Recommendation" provided that:
Doris Gaines and Vernon Collier have given contradictory statements. While it is not the role of a trial judge to judge *773 the credibility of witnesses, the summary judgment standard does require a credible basis in evidentiary fact to create a material issue of fact. . . . Mr. Crawford's . . . affidavits are directly contradictory. Mr. Crawford's second affidavit is wholly without credible and competent fact.
(Emphasis added). The special master was without authority to ignore material, controverted sworn evidence,[10] based upon which seemed more credible, which is not the test for admissibility or competency. According to Daniels, "[i]n order for there to be genuine issues of material fact, the affidavits and other evidence must be sworn, made upon personal knowledge, and show that the party providing the factual evidence is competent to testify." 629 So.2d at 599. The testimony of multiple witnesses support a finding for summary judgment purposes, that Sherwin-Williams-brand paint containing lead was used in the home. Sherwin-Williams denies such assertions. These factual disputes are best left for a jury. See Miss. Const. art. 3, Section 31 ("[t]he right of trial by jury shall remain inviolate. . . ."). Without question, "`[t]he trial judge who hears the witnesses live, observes their demeanor and in general smells the smoke of the battle is by his very position far better equipped to make findings of fact which will have the reliability that we need and desire.'" Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (Miss.2000) (quoting Gavin v. State, 473 So.2d 952, 955 (Miss.1985)). However, in this summary judgment context, these advantages are non-existent. As such, the special master was no better equipped than this Court to make findings of fact. Nonetheless, he weighed conflicting evidence and then rendered a decision based on which party's version he deemed more credible. Giving Trellvion "the benefit of every reasonable doubt[,]" Mink, 537 So.2d at 433, this is clearly an "issu[e] of fact sufficient to require denial of a motion for summary judgment . . . [as] one party swears to one version of the matter in issue and another says the opposite." Mantachie Natural Gas, 594 So.2d at 1172.
¶ 25. The role of the special master or trial court is not to weigh the facts, but "only [to] determine whether there are issues to be tried." Brown, 444 So.2d at 362. In so doing, the special master was called upon to give Trellvion "the benefit of every reasonable doubt." Mink, 537 So.2d at 433. The special master failed to do so in the case sub judice by (1) adopting Sherwin-Williams' "undisputed facts" without acknowledging Trellvion's evidence to the contrary and (2) assessing the credibility and then disregarding the testimony of witnesses for Trellvion. Individually and collectively, these provide only examples of multiple issues of material fact that can only be properly resolved by a jury.
¶ 26. In Daubert v. Merrell Dow, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court held, "in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to direct a judgment . . . and likewise to grant summary judgment." Id. at 596, 113 S.Ct. 2786. Webster's Dictionary defines "scintilla" as, "a tiny amount." Webster's II New College Dictionary 989 (2001). In this matter, the special master was presented with considerably more than a tiny amount of evidence.[11]*774 Accordingly, there are genuine issues of material fact which a jury, presented with evidence and testimony, must ultimately decide.
III. Whether the circuit court erred in finding that Sherwin-Williams owed no duty, under Mississippi law, to warn of the dangers associated with surface preparation on its non-lead paint cans?
¶ 27. In addressing Trellvion's failure-to-warn claim, the special master concluded that the "claims attempt to impose warning not required by federal law. This is the kind of claim preempted by [the] [Federal Hazardous Substances Act (`FHSA')]." The FHSA was enacted in 1960 and mandated the labeling of certain "hazardous" consumer products intended for use in the household or by children. See Chem. Specialties Mfrs. Ass'n v. Allenby, 958 F.2d 941, 945 (9th Cir.1992). In 1966, the Act was significantly amended to include a preemption provision to prevent each state from creating different labeling requirements for hazardous substances. See House Committee on Interstate and Foreign Commerce, Child Protection Act of 1966, H.R.Rep. No. 2166, 89th Cong., 2d Sess. 3 (1966), reprinted in 1966 U.S.Code Cong. & Admin. News 4095, 4097. The preemption provision provided:
[i]t is hereby expressly declared that it is the intent of the Congress to supersede any and all laws of the States and political subdivisions thereof insofar as they may now or hereafter provide for the precautionary labeling of any substance or article intended or suitable for household use (except for those substances defined in sections 2(f)(2) and (3) of this Act) which differs from the requirements or exemptions of this Act or the regulations or interpretations promulgated pursuant thereto. Any law, regulation, or ordinance purporting to establish such a labeling requirement shall be null and void.
Child Protection Act of 1966, Pub.L. No. 89-756, 80 Stat. 1303 (1966) (current version at 15 U.S.C. § 1261, et seq.) (emphasis added).
¶ 28. This Court agrees that post-1966 FHSA amendment, any theory of recovery based upon "the precautionary labeling of any substance or article intended or suitable for household use . . . which differs from the requirements or . . . the regulations or interpretations promulgated pursuant thereto. . . . [S]hall be null and void." Id. The FHSA amendment which added the preemption provision clearly applies to failure-to-warn causes of action brought after adoption of the amendment, and which are based upon "requirements" beyond those mandated by the FHSA. However, "if Congress intended to preclude all common-law causes of action," it would have done so expressly. Medtronic, Inc. v. Lohr, 518 U.S. 470, 487, 116 S.Ct. 2240, 2251, 135 L.Ed.2d 700, 717 (1996). As such, this Court finds that Trellvion can proceed with common-law liability claims that do not run afoul of FHSA preemption. Therefore, any pre-1966 FHSA amendment theories of recovery asserted by Trellvion, whether founded upon negligence, failure to warn, defective design, or fraud, are not preempted. Any post-1966 FHSA amendment theories of recovery not based upon "the precautionary labeling of any substance or article intended or suitable for household use," or based upon a violation of the requirements, regulations, *775 or interpretations of 15 U.S.C. § 1261 (i.e., a claim of noncompliance with the FHSA), are not preempted.
CONCLUSION
¶ 29. This Court reverses the judgment of the Court of Appeals in part, finding that Trellvion's claims are not barred, as the "minor saving statute" is applicable, and affirms the judgment of the Court of Appeals in part as to the dismissal with prejudice of Pollard's claims. Moreover, this Court reverses the circuit court's grant of summary judgment for Sherwin-Williams and finds that genuine issues of material fact exist. Accordingly, this dispute is remanded for a trial.
¶ 30. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED IN PART AND AFFIRMED IN PART, AND THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON COUNTY IS REVERSED. THIS CASE IS REMANDED TO THE CIRCUIT COURT OF JEFFERSON COUNTY FOR TRIAL.
WALLER AND COBB, P.JJ., DIAZ AND GRAVES, JJ., CONCUR. SMITH, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, CARLSON, AND DICKINSON, JJ.
SMITH, Chief Justice, Concurring in part and dissenting in part:
¶ 31. I agree with the majority as to Issues I, Minor's Saving Clause, and Issue III, the failure-to-warn claim. I disagree as to Issue II, regarding granting of summary judgment as to the identification of the product as Sherwin-Williams lead base paint.
a. Identification of the Product Involved
¶ 32. "[i]t is incumbent upon the plaintiff in any products liability action to show that the defendant's product was the cause of the plaintiff's injuries." Moore v. Miss. Valley Gas Co., 863 So.2d 43, 46 (Miss. 2003). Pollard and Trellvion argue that, prior to 1970, the house was painted with Sherwin-Williams lead-based paint. The record shows that there is no admissible evidence to support this allegation. Pollard and Trellvion submit by deposition, testimony of Reverend Lias who said in the 1930s individuals painting the house told him they were using paint with lead in it. This testimony is inadmissible hearsay and insufficient to avoid summary judgment; the special master and judge so held.
¶ 33. Pollard and Trellvion further allege that the house was painted using Sherwin-Williams lead paint on four separate occasions between the late 1970s and 1994. Plaintiffs claim that the lead-based paint used was purchased at local hardware stores and once in the mid-1980s from a Sherwin-Williams store. Plaintiffs assert that the house was painted with white, blue, pink, and grey paint. The record indicates that the home was purchased in 1978 by Johnny Crawford, and subsequently inhabited by Gaines. Therefore, Gaines could not have painted the home until after 1978. Gaines could not have used lead-based paint that was sitting around for years on the shelf of Darsey's Hardware, because the record reflects that she had to order the paint that she purchased at the store. Plaintiffs have no paint cans or labels to prove that Sherwin-Williams Company lead-containing paint was applied to the home. At best, Plaintiffs have advanced a mere scintilla of colorable evidence which absolutely will not defeat a motion for summary judgment.
*776 ¶ 34. Further, and more importantly, the undisputed facts show that Sherwin-Williams had removed lead pigments from all of its interior residential paint by 1955 and from all interior and exterior residential paint by no later than 1973. None of Sherwin-Williams' residential paint formulas for white, blue, pink, or grey paints dated June 1, 1973 through December 31, 1978 contained any lead ingredient. Sherwin-Williams stopped selling its Sherwin-Williams-brand residential paints through independent dealers such as local hardware stores by early 1976.
¶ 35. In Luvene v. Waldrup, 903 So.2d 745, 748 (Miss.2005), this Court stated that "[t]he non-moving party's claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict." In Luvene, this Court found an affidavit fatally defective and deficient regarding a critical element of the underlying claim. The affidavit was merely a broad summarization of the required elements of the claim. This Court found that summary judgment was appropriate because "[t]he affidavit failed to set forth specific facts and certainly did not provide more than a mere scintilla of colorable evidence." Id.
¶ 36. Similarly, Plaintiff's only product identification comes by way of the affidavits of Doris Gaines and Johnny Crawford, who testified they saw the words "lead" or "lead paint" on some portion of the labels. Neither Gaines nor Collier have personal knowledge of whether the paint they used contained any lead, and both have given contradictory statements. During Collier's deposition he admitted he was just assuming that the paint contained lead because it was washable. Collier does not assert that any one told him the paint contained lead, that he read the labels, nor that he asked for lead-containing paint.
¶ 37. During Gaines first deposition, she admitted that she did not look at the labels to see if the paint contained lead, but in her second deposition she claimed that she read the labels and saw that it was lead-based. This testimony contradicts, without explanation, her previous testimony, and such cannot defeat a motion for summary judgment.
¶ 38. What this all adds up to is unsupported speculation and allegations, and they are not sufficient to defeat a motion for summary judgment. Gorman-Rupp Co. v. Hall, 908 So.2d 749, 757 (Miss.2005); Adams v. Cinemark USA, Inc., 831 So.2d 1156, 1162 (Miss.2002). In Corey v. Skelton, 834 So.2d 681 (Miss.2003), this Court affirmed the trial court grant of summary judgment. In Corey, the plaintiff's mere allegation was insufficient to establish a critical element of his claim, in light of the "voluminous record" to the contrary. Id. at 684.
¶ 39. Plaintiffs have failed to provide sufficient evidence to establish that Sherwin-Williams manufactured the alleged lead paint. Therefore the trial court's dismissal of Plaintiffs' product liability claims as unmeritorious was proper and should be affirmed.
¶ 40. For the aforementioned reasons, I respectfully concur in part and dissent in part.
EASLEY, CARLSON AND DICKINSON, JJ., JOIN THIS OPINION.
NOTES
[1] Specifically, he stated that "I was down there talking with the boys, and I liked to knocked [sic] the bucket over with the little paint in it and picked it up and looked at it. It was Sherwin-Williams paint."
[2] The special master did not abuse his discretion in treating this testimony as inadmissible hearsay.
[3] Collier did equivocate somewhat on cross-examination in a deposition. However, on direct examination in the same deposition, he confirmed verbatim statements from his affidavit.
[4] Sherwin-Williams argued only that Pollard's claims were barred by the statute of limitations and the special master concluded only that "[t]he statute of limitations bars Shermeker Pollard's claims." (Emphasis added). Nonetheless, the Court of Appeals ruled that Trellvion's claims were barred by the statute of limitations, an issue not before that court, thus requiring the expansion of this issue.
[5] Trellvion was only two (2) years old in September of 1993.
[6] For example, Miss.Code Ann. § 15-1-59 applies only to the limitations of actions found within Chapter 1, Title 15 of the Mississippi Code. See Cole v. State, 608 So.2d 1313, 1316 (Miss.1992).
[7] Professor of Pediatrics and Head of the Division of Environmental Sciences at the Children's Hospital at Montefiore Medical Center and the Albert Einstein College of Medicine in Bronx, New York.
[8] For example, Dr. Mushak cites the findings of the Department of Consumer Protection for the State of Connecticut regarding a report memo to the United States Department of Health and Human Services "dated September 17, 1985, showing that the Department found in its investigations that some lead based paint over 22 years old was still on retail shelves."
[9] This finding, combined with Reverend Lias' sworn testimony that white Sherwin-Williams brand paint was used on the home in the early 1930s, creates a genuine issue of material fact for a jury to decide whether that paint contained lead. This is especially the case in light of the fact that Sherwin-Williams has proffered evidence that lead pigments were only removed from all of their interior and exterior residential paint by 1973.
[10] Not mere allegations as asserted in the separate opinion.
[11] This is not simply the view of this Court. The special master wrote following removal and remand, "United States District Judge David Bramlette, III . . . commented that the evidence offered by the Plaintiffs was `very weak and suspect[, but that] . . . such evidence does provide a slim possibility for recovery[.]'" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620147/ | 955 So.2d 1110 (2006)
Danny K. WHITE and wife, Laura Michelle White, Appellants,
v.
Troy SYFRETT, Appellee.
No. 1D06-446.
District Court of Appeal of Florida, First District.
November 28, 2006.
*1111 Jeffrey P. Whitton, Panama City, for Appellants.
Larry A. Bodiford of Hutto and Bodiford, Panama City, for Appellee.
KAHN, J.
In this breach of contract case, the trial court dismissed appellants' amended complaint with prejudice. Because the trial court erred by dismissal at such an early stage, we reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants, Danny K. White and Laura Michelle White, filed a complaint for damages, alleging breach of contract, against appellee, Troy Syfrett, concerning the purchase and sale of certain real estate. Syfrett moved to dismiss the complaint, asserting that because it lacked allegations that the Whites complied with all conditions precedent, it failed to state a cause of action. The circuit court dismissed the complaint without prejudice on September 2, 2005.
On September 20, 2005, the Whites filed an amended complaint, again alleging breach of contract. The Whites alleged that, on August 23, 2002, they had entered into a contract with Syfrett for the purchase and sale of certain real estate in Bay County and they attached a copy of the contract as Exhibit A. The Whites further alleged:
3. Pursuant to the terms of the contract, the Plaintiffs and the Defendant agreed to the property to be conveyed based upon an aerial diagram which was drawn to scale. The Plaintiffs reserved the right to approve the actual survey once it was completed to ensure that it conformed to the aerial diagram approved by both parties.
The Whites alleged that, on September 23, 2004, they received a letter returning their $30,000 deposit and advising that Syfrett had decided not to develop the property. The Whites advised Syfrett that they were not accepting return of the deposit and were looking for Syfrett to perform under the terms of the contract. The Whites alleged that Syfrett subsequently "caused the subject property together with surrounding parcels to be sold to a third party thereby depriving the Plaintiffs of the right to acquire the property from the Defendant."
Syfrett filed a Motion to Dismiss, again asserting that the Whites had failed to state a cause of action. Syfrett stated the following particulars:
1. The plaintiff, Laura Michelle White, never executed the contract attached to *1112 the Complaint. Therefore, pursuant to paragraph III, the contract never had an effective date. In addition, the defendant would have had no cause of action against Laura Michelle White to enforce the contract or for any other remedy.
2. The contract fails to allege that all conditions precedent have occurred and in fact said precedents have not occurred, to-wit: Paragraphs 2, 3, 6 and 7 of the Addendum.
3. Paragraph 6 contains an agreement to agree to some condition in the future and when that is an essential element of the contract, the parties have not reached a present meeting of the minds at the time the contract was signed. Further, in paragraph 6, that agreement causes the deposit money to be "non-refundable." Since the survey work was not done and approved, the deposit never became non-refundable.
4. Paragraph XII [sic] of the Addendum caused the contract to be contingent when the paving permits and development orders were obtained by Seller. This paragraph put no requirement on the Seller to obtain the permits and the obtaining of same remained optional to the defendant.
5. Paragraph XI and XII [sic] of the Addendum caused the contract to be illusory in that it affords the defendant the option of performing or not performing.
6. The legal description of the real property is insufficient to form the basis of a contract.
A hearing evidently took place; however, it was not transcribed. On January 11, 2006, the circuit court rendered an Order Dismissing Amended Complaint with Prejudice. The Order essentially adopted paragraph 6 of the motion to dismiss:
The real estate contract which is the subject matter of this litigation fails to adequately describe the real property to be conveyed. The description is so flawed that it constitutes a patent ambiguity which cannot be explained by the admission of parol evidence. See: Carson v. Palmer, 139 Fla. [570], 579, 190 So. 720 (1939). Accordingly, the plaintiffs' amended complaint is dismissed with prejudice.
ANALYSIS
The Whites have appealed and argue that the trial court erred in granting the motion to dismiss.
A motion to dismiss tests whether the plaintiff has stated a cause of action. Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal by the de novo standard of review. When determining the merits of a motion to dismiss, the trial court's consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party.
Bell v. Indian River Mem. Hosp., 778 So.2d 1030, 1032 (Fla. 4th DCA 2001) (citations omitted); see Magnum Capital, LLC v. Carter & Assocs., LLC, 905 So.2d 220, 221 (Fla. 1st DCA 2005); Snow v. Byron, 580 So.2d 238, 240 (Fla. 1st DCA 1991). Further, "[c]onsideration of potential affirmative defenses or speculation about the sufficiency of the evidence which plaintiff will likely produce on the merits is wholly irrelevant and immaterial to deciding such a motion." Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003). Applying the standard to this case, we reverse and remand.
A review of the First Amended Complaint indicates that the Whites sufficiently *1113 stated a cause of action for breach of contract. They alleged the parties had entered into a contract for the purchase and sale of certain real estate, they had deposited $30,000.00 with the escrow agent selected by Syfrett, they later received a letter from the escrow agent attempting to return the deposit and advising that Syfrett had decided not to develop the property, they did not accept the return of the deposit and sought to have Syfrett perform under the terms of the contract, and Syfrett subsequently sold the subject property to a third party. Although the description of the property included in the contract (attached to the complaint) does appear problematic, we are not prepared to say it conclusively negates the claim. See Magnum Capital, 905 So.2d at 220 ("[I]f documents are attached to a complaint and conclusively negate a claim, the pleadings can be dismissed."). Any insufficiencies in the contract or evidence should be raised as defenses by the defendant, Syfrett. See Susan Fixel, Inc., 842 So.2d at 206.
The case relied on by the circuit court does not control. See Carson, 190 So. at 722. In particular, the Carson case did not involve a ruling on a motion to dismiss; rather, it involved an appeal from a final judgment, rendered after the court granted defense motions striking documents critical to the plaintiffs' action. See id. at 721. Indeed, none of the cases cited by Syfrett concern a ruling on a motion to dismiss. In addition, in Carson, the court found a classic patent ambiguity in a deed:
[T]he deed contained two conflicting descriptions, each being fairly clear and intelligible and each, as applied to the plat, describing entirely different pieces of land. There is nothing in the instrument, in the form of other language, indicating which parcel was intended to be conveyed. Therefore the deed is void for uncertainty.
Id. at 722. This is not the situation here at least not at this point in the litigation. Again, while the description of the property included in the contract appears problematic, the contract does indicate the parties were contemplating a particular piece of property and nothing in the complaint or contract indicates the parties did not understand what property the contract concerned. See Bajrangi v. Magnethel Enters., Inc., 589 So.2d 416, 418-19 (Fla. 5th DCA 1991) (reversing summary judgment and explaining, "The liberal rule of construction as it relates to descriptions, as announced by the various Florida Supreme Court decisions, is that parol evidence is admissible to determine the description so long as the instrument itself shows that the parties were contemplating a particular piece of property rather than an unspecified piece of property or alternative descriptions or property to be obtained later." (footnote and citations omitted)). See also Carson, 190 So. at 721-22 ("There are cases holding that where the description of land in a deed or mortgage is in some respect vague, uncertain or indefinite, parol evidence is admissible, to explain and remove, by proof of pertinent facts existing at the time, the uncertainty, and to identify the property intended to be conveyed, thus giving effect to the intention of the parties to the instrument. . . . There are, however, exceptions to this rule. One of the recognized exceptions is that of a patent ambiguity. A patent ambiguity in the description of land is such an uncertainty appearing on the face of the instrument that the Court, reading the language of the instrument in the light of all facts and circumstances referred to therein, is unable to derive therefrom the intention of the parties as to what land was to be conveyed. This type of ambiguity may not be removed by parol *1114 evidence, since that would necessitate the insertion of new language into the instrument, which under the parol evidence rule is not permissible." (citations omitted)). Here, the parties attached to the contract a sketch of a subdivision plot, with lines drawn thereon and the buyer's initials next to the drawing. The parties agreed, in the Addendum, to later agree on the exact boundary points of the property, once the survey work was completed. Nothing, other than a statement in Syfrett's motion to dismiss, indicates that this did not occur.
Moreover, with reference to the so-called "agreement to agree" issue, we do not know whether Syfrett performed or breached this provision. We note, in this regard, that "every contract includes an implied covenant that the parties will perform in good faith." Champagne-Webber, Inc. v. City of Fort Lauderdale, 519 So.2d 696, 697 (Fla. 4th DCA 1988); see also, e.g., Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1097-98 (Fla. 1st DCA 1999) ("One of the implied contract terms recognized . . . in Florida law . . . is the implied covenant of good faith, fair dealing, and commercial reasonableness. This implied covenant arises because `[a] contract is an agreement whereby each party promises to perform their part of the bargain in good faith, and expects the other party to do the same.' Thus, the implied covenant of good faith and fair dealing is designed to protect the contracting parties' reasonable expectations. . . . Thus, where the terms of the contract afford a party substantial discretion to promote that party's self-interest, the duty to act in good faith nevertheless limits that party's ability to act capriciously to contravene the reasonable contractual expectations of the other party." (citations omitted)); Fernandez v. Vazquez, 397 So.2d 1171, 1174 (Fla. 3d DCA 1981) ("One established contract principle is that a party's good faith cooperation is an implied condition precedent to performance of a contract. Where that cooperation is unreasonably withheld, the recalcitrant party is estopped from availing herself of her own wrongdoing.").
Further, under the case law presented by the parties, if Syfrett drafted the contract here, then Syfrett may be estopped to assert that the contract is unenforceable. See Bajrangi, 589 So.2d at 420 (finding lessor "estopped to assert that the lease is unenforceable because of the description contained therein" because lessor "chose the description for its own purpose and its attorneys prepared the lease" and lessor "accepted payments for almost two years (until after the purchase price for the sale of the store was completely paid) before raising the description as a defense to the exercise of the option"). This serves as yet another reason why the trial court should not have granted the motion to dismiss.
Finally, none of the other arguments raised by Syfrett in the motion to dismiss have conclusive merit at this stage. Syfrett's argument concerning the failure of appellant Laura White to sign the contract lacks merit because Syfrett himself, "the party to be charged," signed the contract. § 725.01, Fla. Stat. (2002) ("No action shall be brought whereby . . . to charge any person . . . upon any contract for the sale of lands . . . unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized."); see, e.g., Cavallaro v. Stratford Homes, Inc., 784 So.2d 619, 621 (Fla. 5th DCA 2001) ("Pursuant to the statute, no action can be brought to enforce a contract for the sale of land unless the contract is in writing *1115 and signed by the party to be charged."). In addition, Syfrett argued that the following "conditions precedent," set forth in the seven-paragraph Addendum to the contract, had not occurred:
2. Closing within 30 days of County accepting paved road to property.
3. Property to have the same density as the rest of Wells Landing.
. . . .
6. Buyer and seller to agree on boundary points from aerial, than [sic] final approval after survey work has been done. Deposit money becomes non-refundable once survey work has been done and approved by buyer.
7. Contract contingent upon all paving, permits and D.O. being obtained by seller.
The Whites made allegations concerning these points:
3. Pursuant to the terms of the contract, the Plaintiffs and the Defendant agreed to the property to be conveyed based upon an aerial diagram which was drawn to scale. The Plaintiffs reserved the right to approve the actual survey once it was completed to ensure that it conformed to the aerial diagram approved by both parties.
. . . .
5. In accordance with the terms of the contract the Plaintiffs were to close on the contract within thirty (30) days of the County accepting a paved road to the property. The Plaintiffs were periodically advised by the Defendant that he was pursuing the development order for the development of the property with the county and that steps were being undertaken to enable the Defendant to install the paved road as set out in the contract.
6. The Plaintiffs waited patiently for the Defendant to comply with the terms of the contract. . . .
Thus, according to the Whites' allegations, Syfrett had informed them that he was pursuing approval of the development order and the paving of the road. To the extent Syfrett argues the Whites' allegations lack merit, he can test that as the case proceeds.
CONCLUSION
Because the Whites sufficiently stated a cause of action for breach of contract, the trial court erred in going beyond the four corners of the complaint and resolving the case at the motion to dismiss stage. See, e.g., Magnum Capital, 905 So.2d at 221; Bell, 778 So.2d at 1032. Accordingly, we REVERSE the order on appeal and REMAND this case for further proceedings.
BROWNING, C.J., concurs; DAVIS, J., dissents with opinion.
DAVIS, J., dissenting.
Because I agree with the trial court that the property description is patently ambiguous, I respectfully dissent and would affirm. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620372/ | 13 So.3d 414 (2009)
Ex parte David G. MORRISON, M.D.
In re David G. Morrison, M.D.
v.
Jerry N. Gurley, M.D., in his capacity as chairman of the Medical Licensure Commission of Alabama.
1071160.
Supreme Court of Alabama.
January 16, 2009.
*415 Frank M. Wilson, Montgomery; and James S. Ward of Ward & Wilson, Birmingham, for appellant David G. Morrison, M.D.
Troy King, atty. gen., and Benjamin H. Albritton, asst. atty. gen., for appellee.
Donald R. Jones, Jr., Montgomery, for "Patient Intervenors" in support of David G. Morrison, M.D.
Nathan A. Dickson II of Jinks, Crow & Dickson, P.C., Union Springs, for amici curiae Physicians Tom Beatrous, May Luz Guentes, Allen Dupre, Timothy Holt, Bennie Hamner, Shelby Sanford, Rachelle Janush, Eve Cieutat, James Blatchford, William Knox, Parham Mora, Rick Love, Mary Casals, Leon Casals, and Mark Herron, in support of the petitioner.
Prior report: Ala.Civ.App., 13 So.3d 397.
WOODALL, Justice.
WRIT QUASHED.
COBB, C.J., and LYONS, STUART, SMITH, and BOLIN, JJ., concur.
PARKER and MURDOCK, JJ., dissent.
PARKER, Justice (dissenting).
I respectfully dissent because I believe that the statutory limitation in § 34-24-367, Ala.Code, 1975,[1] imposed on the authority of the circuit courts to issue a judicial stay of an order of the Medical Licensure Commission is unconstitutional in that it violates both certain powers prescribed to the judiciary in § 142, Ala. Const. 1901 (Off.Recomp.) (derived from § 6.04, Amend. No. 328), and the separation-of-powers mandates of §§ 42 and 43, Ala. Const.1901.
Section 142 expressly grants the power to issue writs to circuit courts:
*416 "(a) The state shall be divided into judicial circuits. For each circuit, there shall be one circuit court having such divisions and consisting of such number of judges as shall be provided by law.
"(b) The circuit court shall exercise general jurisdiction in all cases except as may otherwise be provided by law. The circuit court may be authorized by law to review decisions of state administrative agencies and decisions of inferior courts. It shall have authority to issue such writs as may be necessary or appropriate to effectuate its powers, and shall have such other powers as may be provided by law."
(Emphasis added.) An injunction is more precisely a writ of injunction. 1 Howard C. Joyce, A Treatise on the Law Relating to Injunctions § 1, at 2-3 (1909). A "supersedeas" is also termed a "writ of supersedeas." Black's Law Dictionary 1479 (8th ed.2004). In my view, § 34-24-367, by attempting to conditionally proscribe an injunction or supersedeas, violates the constitutional grant of authority to circuit courts in § 142.
In Ardt v. Illinois Department of Professional Regulation, 154 Ill.2d 138, 607 N.E.2d 1226, 180 Ill.Dec. 713 (1992), the Illinois Supreme Court found a statutory prohibition of the entry of a stay by a reviewing court unconstitutional:
"The United States Supreme Court examined the effect on due process of a statutory prohibition of stays in Porter v. Investors Syndicate (1932), 286 U.S. 461, 52 S.Ct. 617, 76 L.Ed. 1226. In that case, the Court overcame due process concerns by construing a Montana statute in such a way as to allow a court to stay revocation of a permit pending judicial review. The Court stated that `where either the plain provisions of the statute [citation] or the decisions of the state court interpreting the act [citation] precludes [sic] a supersedeas or stay until the legislative process is completed by the final action of the reviewing court, due process is not afforded. ...' Porter, 286 U.S. at 471, 52 S.Ct. at 621, 76 L.Ed. at 1232.
"Addressing State constitutional concerns, the court in Smothers v. Lewis (Ky.1984), 672 S.W.2d 62, held unconstitutional a statute forbidding courts to stay, pending appeal, the revocation or suspension of liquor licenses by the State alcoholic beverage control board. The Smothers court stated that, in addition to judicial and rulemaking powers vested in the court system by the State constitution, the courts have inherent powers to do that which is reasonably necessary within the scope of their jurisdiction. The court concluded:
"`Once the administrative action has ended and the right to appeal arises the legislature is void of any right to control a subsequent appellate judicial proceeding. The judicial rules have come into play and have preempted the field.' (Smothers, 672 S.W.2d at 64.)
"We agree with the Smothers court that a court of review has the inherent power to issue injunctions. We further agree that to allow a court the ability to right a possible wrong by granting an appeal while denying it the power to defer imposition of a penalty attached to that wrong would be to deny the court its inherent right to make effective its constitutional grant of power."
Ardt, 154 Ill.2d at 150, 607 N.E.2d at 1231-32, 180 Ill.Dec. at 718-19.
While both the court in Ardt and the court in Smothers v. Lewis, 672 S.W.2d 62 (Ky.1984), based their determinations of the unconstitutionality of the respective statutes on the inherent power of courts and express constitutional provisions of *417 separation of powers, a circuit court of Alabama has an express constitutional grant of power to issue writs as needed "to effectuate its powers," in addition to the strict separation-of-powers provisions in §§ 42 and 43. Therefore, the case here is even stronger that the effective prohibition of a stay in § 34-24-367 is unconstitutional.
Accordingly, I respectfully dissent from quashing the writ.
MURDOCK, Justice (dissenting).
Because I believe this case raises both due-process and separation-of-powers issues that should be addressed by this Court, I respectfully dissent from the Court's decision to quash the writ.
NOTES
[1] Section 34-24-367 provides:
"Judicial review of the orders and decisions of the Medical Licensure Commission shall be governed by the provisions of Section 41-22-20 (the Alabama Administrative Procedure Act); provided however, that the following procedures shall take precedence over the provisions of Section 41-22-20(c) relating to the issuance of a stay of any order of the licensure commission suspending or revoking a license to practice medicine. The suspension or revocation of a license to practice medicine shall be given immediate effect, it being the expressly stated legislative purpose and intent that the imposition of the penalty of suspension or revocation of a license to practice medicine shall create a presumption that the continuation in practice of the physician constitutes an immediate danger to the public health, safety, and welfare. No stay or supersedeas shall be granted pending judicial review of a decision by the licensure commission to suspend or revoke a license to practice medicine unless a reviewing court, upon proof by the party seeking judicial review, finds in writing that the action of the licensure commission was taken without statutory authority, was arbitrary or capricious, or constituted a gross abuse of discretion. An order of the licensure commission temporarily suspending a license to practice medicine under the authority of Section 34-24-361(f) shall not be stayed pending judicial review permitted under Section 41-22-20 of any preliminary, procedural, or intermediate ruling or decision of the licensure commission unless the reviewing court, upon proof by the party seeking judicial review, finds in writing that the action of the licensure commission was taken without statutory authority, was arbitrary or capricious, constituted a gross abuse of discretion or was made in violation of the requirements of Section 41-22-19(d). Notwithstanding any other provision of law to the contrary, any action commenced for the purpose of seeking judicial review of the administrative decisions of the Medical Licensure Commission, including writ of mandamus, or judicial review pursuant to the Alabama Administrative Procedure Act, Chapter 22 of Title 41, must be filed, commenced, and maintained in the Alabama Court of Civil Appeals."
(Emphasis added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620374/ | 294 S.W.2d 888 (1956)
Anona DENNING, Appellant,
v.
REPUBLIC NATIONAL BANK BLDG. CO., Appellee.
No. 15140.
Court of Civil Appeals of Texas, Dallas.
June 25, 1956.
Rehearing Denied October 5, 1956.
*890 Carter, Gallagher, Jones & Magee, and Ben T. Warder, Jr., Dallas, for appellant.
Thompson, Knight, Wright & Simmons, Pinkney Grissom, David M. Kendall, Jr. *891 and Timothy E. Kelley, Dallas, for appellee.
CRAMER, Justice.
Appellant Anona Denning was an employee of a lessee of appellee Republic National Bank Building Company, hereafter called Building Company, and filed this suit against Building Company for damages for personal injuries sustained by her when she slipped and fell on an asphalt tile floor within the area leased to her employer and upon which water wax had been applied by employees of Building Company. The premises in question had been leased by Building Company to Anona Denning's employer, Meyer & Achtschin, for a period of two years. The lease, among other things, provided that lessee was not entitled to sublet or otherwise assign its interest without the consent of Building Company. Without such consent Meyer & Achtschin entered into an agreement with Glore, Forgan & Company, hereafter called Glore Company, whereby Meyer & Achtschin and Glore Company would purchase and manager royalty interests for these others, and under which Meyer & Achtschin and Glore Company agreed to provide office space and personnel. Anona Denning was one of the personnel so furnished. She was not a regular or usual employee of Meyer & Achtschin in their usual operations but was employed solely in connection with the agreement between Meyer & Achtschin and Glore Company. The record discloses that after regular working hours, Building Company employees were waxing the floor leased to Meyer & Achtschin, when Anona Denning, in walking on wet wax, at about 7:00 P.M., slipped and fell. Building Company employees at the time were still in the process of applying the liquid wax.
The jury in answer to special issues found, in substance: (1) That at the time in question Building Company by and through its agents covered the asphalt tile flooring of the file room with liquid wax to such an extent that Anona Denning was afforded no practical means of exit; (2) that such action was negligence; (3) which was a proximate cause of Anona Denning's fall; (4) that the failure of Building Company's employees to warn Anona Denning of the presence of the wet wax on the tile floor was negligence; (5) which was a proximate cause of her fall; (6) that the employees of Building Company failed to provide Anona Denning a safe exit from the premises in question; (7) which failure was negligence; (8) and a proximate cause of her fall; (9) that the employees of Building Company applied an excessive amount of wax to the floor at the time in question; (10) which was a proximate cause of Anona Denning's fall; (11) but that employees of Building Company at the time did not actually know of the presence of Anona Denning on the premises in question; (12) that in the exercise of ordinary care the employees of Building Company should have known of the presence of Anona Denning on the premises; (13) that the action of the employees in commencing waxing operations under the circumstances was negligence; (14) which was a proximate cause of the fall sustained by Anona Denning; (15) that Anona Denning at the time did not fail to keep a proper lookout; (17) she did not know and in the exercise of ordinary care should not have known that a waxing operation was in progress and that there was wet wax on the floor; (20) that at the time and on the occasion in question there was no other means of exit from the Building Company's office which did not have wet wax thereon; (23) Anona Denning's failure to ask for assistance of Building Company employees who were nearby was not negligence; (25) her failure to wait for the wet wax to dry or the waxing operation to be completed before walking on the floor was not negligence; (27) that Anona Denning's failure to call for assistance before crossing the floor was not negligence; (29) that at the time and *892 on the occasion in question there was no convenient means of exit in which there were convenient handholds for Anona Denning in crossing said floor; (32) that her walking on a floor which she knew was covered with a wet material was not negligence; (34) that at the time and on the occasion in question the condition of the floor was not open and obvious; (35) that Anona Denning did not assume the risk of danger in walking upon said floor on the occasion in question; (36) that the injuries sustained by her were not the result of an unavoidable accident; (37) that Anona Denning at the time acted without knowledge of the danger; (38) at the time and on the occasion in question Anona Denning in the exercise of an intelligent choice did not voluntarily expose herself to the risk of injury; and (39) $32,000 would fairly and reasonably compensate Anona Denning for her physical pain and mental suffering in the past and future, and for reasonable and necessary medical expense in the past and future, as a direct and proximate result of her fall.
After hearing a motion therefor, the court entered a judgment non obstante veredicto. From that judgment this appeal has been duly perfected; appellant Anona Denning here briefing six points of error and Building Company briefing eight counter-points and ten cross-assignments of error.
Points 1 and 2 assert error, in substance: (1) In granting Building Company's motion for judgment n. o. v. and overruling her motion for judgment because as a matter of law Meyer & Achtschin, lessee of Building Company, did not violate the provisions of the lease with reference to subletting the premises and therefore Anona Denning was not an invitee; and (2) in granting Building Company's motion for judgment n. o. v. and overruling her motion for judgment because a fact question existed as to whether or not Meyer & Achtschin subleased a part of the premises, and Building Company having failed to request submission of such issue thereby waived such defense.
Appellee Building Company counters that motion for judgment n. o. v. was properly granted since, (1) as a matter of law Meyer & Achtschin did violate the lease provisions in subletting, and Anona Denning was at most a licensee; (2) if any fact issues or questions were raised by the evidence as to the status of Anona Denning as a trespasser, licensee, or invitee, Building Company waived the submission of such ultimate issues to the jury and submitted them to the trial court who found that she was not an invitee.
The facts found by the jury, if the evidence supports them, control the judgment of the court and the trial court is not permitted to make a finding on a fact not submitted to the jury and render judgment thereon contrary to that required under the jury's express finding on the only issues submitted to them, absent a motion for an instructed verdict properly based on undisputed evidence for the same reasons on which the court rendered its judgment. Here, in our opinion, the evidence raised a question of fact for the jury on whether or not Anona Denning was an invitee, and the motion for an instructed verdict was properly overruled.
Our Supreme Court in Socony-Vacuum Oil Co. v. Aderhold, 150 Tex. 292, 240 S. W.2d 751, at page 755, appropriate here, stated: "Neither plaintiff nor defendant requested additions to the charge or special issues upon this testimony or objected to the court's failure to charge upon this subject. Since issues concerning the amount of shore employment are actually part of the defense, they are issues raising an independent ground of defense and the burden rests upon the defense to request them. Not having requested issues in this case, the defense waived this independent defense. Rule 279, Texas Rules of Civil Procedure." *893 To the same effect, see Brown v. Tieman, Tex.Civ.App., 239 S.W.2d 156.
The asserted finding by the court that Anona Denning was not an invitee was a finding against, and not in support of, the jury's finding set out above in violation of the rule laid down by our Supreme Court in the Aderhold case, since without the asserted implied finding by the court on such issue, not submitted or requested to be submitted, a judgment contrary to the one here entered would have been proper on the findings to the issues submitted. Points 1 and 2 are sustained.
Point 3 asserts error in granting Building Company's motion for judgment n. o. v. and overruling her motion for judgment because the evidence supports the findings of the jury that Building Company was guilty of negligence proximately causing her injury. Point 3 is countered that the trial court properly sustained such motion because (1) there was no evidence to support the jury's finding that Building Company was guilty of negligence which proximately caused Anona Denning's fall; (2) the undisputed evidence shows the condition of the floor was open, obvious, and known to Anona Denning who appreciated the danger involved in walking across it; and thus Building Company owned no duty to warn her of the presence of the water wax on the floor; (3) under all the circumstances as a matter of law Building Company was under no duty to provide Anona Denning with a means of exit at all times, nor was it under any duty during the waxing operations to use a limited amount of wax; and (4) the uncontroverted evidence showed that the condition of the floor was open and obvious and known to Anona Denning prior to her fall; that she appreciated the dangers involved; that she at the time could have removed herself from danger, but she, in exercising an intelligent choice, elected to continue through the waxed area, and thus Building Company owned her no duty, and she as a matter of law was not entitled to recover. The record shows that Building Company filed its motion for instructed verdict, asserting that the evidence showed that Anona Denning was a trespasser to whom it owed no duty except to refrain from willfully injuring her. Also that there was no evidence showing negligence. The motion was overruled. Appellant contends that, being an employee of both firms, she was an invitee on the premises and although the file room where she fell was a part of the premises leased by Meyer & Achtschin from Building Company, that Building Company under the lease was obligated to maintain, clean, and wax the floors, and therefore required to exercise reasonable care in performing this duty. The evidence, material here, was in substance that on the night prior to Anona Denning's fall the floor had been cleaned, preparatory to being waxed on the night she fell. She knew, during the day of her fall, that the floor where she later slipped and fell was slippery. She had during the day stepped thereon. Just prior to her fall, in attempting to pass through the file room, she noticed the floor was wet and stopped; and
"Q. * * * And it also after you stopped and looked at the floor, why, it bore the appearance of being slippery? A. Well, I presume it was.
"Q. You were certain it was slippery? A. I was trying to be careful because I didn't want to fall.
"Q. I see. But after you stopped where you did stop and looked and after feeling the material, whatever it was under your feet, and looking at it you were certain in your mind that whatever you were walking on was a slippery material? A. Yes, sir.
"Q. And you were certain in your mind that it would be dangerous to walk upon that type of material which was on that floor? A. Yes, sir."
Also that in going out she had to go through the file room; that being the only way out which was available to her. Anona *894 Denning's witness, Miss Hodge, testified that some ten or fifteen minutes before Miss Denning's fall she (Miss Hodge) had walked out by aisles 3 and 5 but could not remember whether they were wet; that she continued past aisle 2 and past the filing cabinets and table separating aisle 2 from aisle 1, turned the corner on aisle 1 on the wet wax, and after proceeding a short distance on aisle 1, nearly fell. That she walked very slowly and carefully; that she did not call out for help or go to the phone and ask assistance in crossing the wet wax. At the time the lights were on in the file room.
The record also shows that the wet wax used here normally dried in from 10 to 15 minutes, though it sometimes took longer under certain weather conditions.
The employee who waxed the floor testified, in substance: That he had been waxing about two hours when he heard the typewriter and just kept on waxing after that. If someone was in the offices on the southwest side of the building there was no way for them to leave except to walk through the file room. That two ladies came out of the offices; the one before Miss Denning nearly fell; and then a little later Miss Denning. The first lady came from the southwest corner of the file room and at this time he had already waxed aisle 3 and aisle 2, and was working around the doorway. The first lady walked down aisle 3. When he first saw Miss Denning he was about halfway down aisle 1 and she was coming around the corner. She fell at the corner where he first saw her. It was wet where Miss Denning fell and he supposed she slipped, since when he looked up she was falling. She said she hurt her wrist and he picked her up.
Under the above record we have reached the conclusion that the evidence was sufficient to make a question of fact for the jury, and required that the issues so raised be submitted to the jury; 33 Tex. Law Review 21, "Injuries from Open and Obvious Conditions," subd. "Appreciation of Some Danger but not All." Point 3 is sustained.
Points 4 and 5, briefed together, assert error in granting the motion for judgment n.o.v. and overruling her motion for judgment because (4) as a matter of law the doctrine of assumed risk or volenti non fit injuria was not available to Building Company as a defense in this case; (5) the evidence supports the findings of the jury concerning the defense of assumed risk and volenti non fit injuria. Appellee counters that the trial court properly sustained the motion because the uncontroverted evidence showed, as a matter of law, (7) that Anona Denning voluntarily exposed herself to known and appreciated danger; (8) that she was guilty of negligence which proximately caused her fall and the resulting injuries.
The jury here found that the condition of the floor at the time was not open and obvious and that Anona Denning did not assume the risk and danger in walking thereon at the time. Under the authorities, before Anona Denning is barred from a recovery she should, and must have fully realized and appreciated the danger, and thereafter voluntarily exposed herself thereto after and intelligent choice. Here, in our opinion, the evidence referred to above, supported the jury's finding that she did not, in the exercise of a voluntary choice, so expose herself to the risk here involved. Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172; McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391; Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357. See also Note on McKee v. Patterson, 33 Tex. Law Review 1, and the authorities and conclusions on page 22; and Note on the Blanks case in 29 Texas Law Review 268. Points 4 and 5 are sustained.
Point 6 asserts error in granting motion for judgment n.o.v. and overruling appellant's motion for judgment because *895 the evidence supports the finding that she was not guilty of negligence; countered by Building Company that her motion was properly overruled since the uncontroverted evidence showed, as a matter of law, (8) that Anona Denning was guilty of negligence which proximately caused her fall and resulting injuries. Building Company is correct in stating the rule that the owner or occupant does not owe to an invitee the duty to protect her against dangerous conditions that: (1) are open and obvious; (2) are reasonably apparent; or (3) are as well known to the person injured as to the owner or occupant. However, as we have above pointed out under points 4 and 5, the rule is that Anona Denning must have fully realized and appreciated the danger, before she exposed herself, in order to be barred from recovery. Too, the fact that Anona Denning was not the first person to observe and misjudge the condition of the floor, so far as the possibility of a fall was concerned, and proceeded to go across it and fell, and the knowledge of that fact by the employee waxing the floor, was a circumstance which could be considered by the jury. There was a question of fact for the jury under all the evidence here. Point 4 is sustained.
Appellee Building Company has filed ten cross-assignments of error: (1) Asserts error in the trial court's permitting Anona Denning's attorney to infer to the jury that the Republic National Bank was the true party in interest, which was harmful and induced prejudice in the jury. Appellant counters that such action was not error. The record shows that the first witness was asked the question: "By whom are you employed?" and he answered "The Republic National Bank." The record shows that this witness was employed by the Republic National Bank but was also employed by the Building Company; also that Fred F. Florence was the President of both Companies. We see no error or prejudice to Building Company in such matter; but if it was error, it was harmless. Cross-point 1 is overruled.
Cross-points 2, 3, and 4 briefed together assert error: (2) In submitting issues 1 through 14 because there was no evidence to support same; (3) and the answers to issues 1 through 14 were against the great weight and preponderance of the evidence; and (4) in overruling Building Company's motion and amended motion for instructed verdict because there was no evidence of any negligence on part of Building Company.
What we have stated under point 3 is applicable here, and for the reasons there stated counter-points 2, 3, and 4 are overruled.
Cross-points 5 and 6 assert: (5) Jury findings 15 through 38 are against the great weight and preponderance of the evidence; (6) error in overruling Building Company's motion and amended motion for instructed verdict because the evidence as a matter of law showed that Anona Denning was guilty of contributory negligence and assumed the risk of walking on the newly waxed floor. For the reasons stated above under our discussion of points 4 and 5, cross-points 5 and 6 must be overruled.
Cross-point 7 asserts error in refusing to submit its requested issues 3 and 4; countered that the court correctly refused such issues. Building Company requested issues 3 and 4, which were:
"Requested Special Issue No. 3: Do you find from a preponderance of the evidence that at the time and on the occasion in question the plaintiff Anona Denning failed to use proper methods of safety or safe walking in proceeding across a floor which she knew had wet material thereon? Answer `Yes' or `No.' Answer: ______."
"Requested Special Issue No. 4: Do you find from a preponderance of the evidence that such failure, if you have *896 so found in answer to the preceding Special Issue, was a proximate cause of plaintiff's injuries, if any? Answer `Yes' or `No.' Answer: _____."
Issue 32, hereinabove summarized, was in full: "Do you find from a preponderance of the evidence that the walking by the plaintiff Anona Denning upon a floor which she knew was covered with a wet material was negligence as that term is defined herein?" To this issue the jury answered "No." Issue 33 on proximate cause was conditioned on an affirmative answer to issue 32.
Under the record, the trial court did not err in refusing to submit the requested issues. Cross-assignment of error No. 7 is overruled.
Cross-assignments of error 8, 9, and 10 assert error in submitting to the jury issue 39: (8) Because there was no evidence of any future diminished earning capacity or Doctor's bills; (9) because there was no evidence of mental suffering on part of Anona Denning either in the past or in the future; and (10) the answer of the jury to special issue 39 awarding her damages in the amount of $32,000 was grossly excessive and was dictated by passion and prejudice. Anona Denning countered that the answer to issue 39 was supported by the evidence.
The evidence supporting the jury's answer to issue 39, finding $32,000 in damages suffered by Anona Denning, is as follows: Appellant's witness Dr. Sigler, an orthopedic surgeon, testified in substance that he first saw Miss Denning in St. Paul's Hospital, and diagnosed her condition as fracture of the lower portion of the ulna and fracture of the lower portion of the radius, which was comminuted, sprain to her back and left shoulder; the radius and ulna are the two main bones in the forearm; the radius is the bone leading to the thumb, the ulna the smaller bone on the opposite side, leading to the little finger; that "She was carried to surgery where under general anesthesia several attempts were made to reduce this fracture, but each time the bones were aligned the distal fragment slipped, either one way or to the other, to where the alignment would be unsatisfactory; therefore, it was decided to use skeletal traction, a wire was placed through this metacarpal bone or through the thumb, this portion of the thumb (indicating), and traction was applied to that so that the distal fragment was pulled down and into alignment; in other words, alignment couldn't be achieved by the ordinary method of reduction." She was put in traction, and about 3½ weeks later in a cast for 2½ months, and then exercises, physical therapy, hot soaks, pain medicine; that there is little more medically that can be done for her; she has 40 to 50% limitation of motion, in all directions, in her wrist. She was in the hospital for about 3½ or 4 weeks. That such injuries resulted in discomfort, pain and suffering and she has reached her maximum recovery now (time of the trial); he does not think the future holds much hope for her; that the limitation of motion is permanent and she will in the future require physical therapy at a cost of $75 per year and she is apt to need such physical therapy for the remainder of her life; that typing with her hands palms down ("pronation and supination"), and with the limitation of motion he found, she would throw her left elbow out in the performance of her duties as a typist, which is calculated, over a long period of time, to cause some pain within the left elbow and shoulder. He also testified that traumatic arthritis is a possibility and is usually aggravated by changes in the weather,cold or damp; that the joint would be stiff and sore; that Anona Denning has sustained 50% permanent loss of the use of her left wrist; she has pain, swelling and limitation of motion in cold weather, which he calls traumatic arthritis; that once traumatic arthritis sets up within a joint, his opinion is that it would stay with the patient during the remainder of her life.
*897 Anona Denning testified that she has done substantial secretarial work and typing since leaving school; that she cannot now rotate her left hand all the way to the right; cannot rotate her left hand without moving her elbow; cannot twist her left hand so that the palm turns upward; it causes pain to turn her left hand up as far as she can turn it, and on extreme motion; she lacks about one-third of the way of being able to turn her hand all the way upward; she can make a fist with her right hand, but cannot make a fist with the palm of her left hand turned down; her left wrist is smaller than it was; in typing she cannot get the movement of her fingers to conform with the right hand; she has to slow down her right hand to conform to the left hand; she has difficulty in the rotation of her left hand so as to get the palm down; has to adjust her body when she does typing, which strains her shoulder; that before the accident she was considered an unusually fast and accurate typist, typing over 75 words per minute; but since the injury her speed has reduced noticeably; she has pain and discomfort in the left wrist now; in damp or cold weather her hand gets stiffer and "my joints hurt"; they stiffen more in cold weather.
Anona Denning's supervisor on her job testified that she (Anona Denning) received $275 per month, plus $25 per month bonus; that before her accident she could type from 75 to 90 words per minute, and since she came back to work between 45 to 55 words per minute, depending on the copy, and that her work is not as accurate as before.
Appellant Denning's attorneys in her brief assert that the jury could conclude from such evidence that her capacity to earn money as a typist has been diminished by 50% per month, amounting to $150 per month for her life expectancy, 23.65 years; or a total of $42,570, and a loss of earning capacity of $32,000; that the evidence also shows hospital bills totaling $628.65, physical therapy treatments $75; Dr. Sigler $500; that there is also evidence of future necessity of medical expenses of $75 per year for 23.65 years, totaling $1,773.75; that an award of $2.00 per day for her life expectancy would approximate $17,000; $32,400 for past and future diminished earning capacity; and that the record would support damages of $52,377.40.
The record also shows that Anona Denning's employer has paid her salary since the accident.
Anona Denning's evidence supporting the verdict and damages is controverted and asserted to be grossly excessive by Building Company; stating that "The evidence would certainly support a judgment for no more than $5,000.00." The most that is possibly shown by the record is that appellant has incurred a $500 doctor bill, in addition to which she may incur expenses of $50 to $75 per year; that assuming, for the sake of argument, that appellant had a life expectancy of twenty years, the maximum future medical expense she might have would amount to $1,500, or a total expense of $2,000; that to allow, then, $30,000 as damages to a woman who has at most 40 to 50% limitation in motion of her wrist, some pain, although not apparently extreme or constant, with no diminished earning capacity, and only a possibility of future arthritic changes, "is obviously unjustified"; and asserts that the verdict resulted from passion and prejudice of the jury.
After a full study of the evidence and the record as a whole, we are of the opinion that the verdict is excessive and that the evidence recited above justifies a verdict of not over $20,000. If remittitur of all sums in excess of $20,000 is filed within fifteen days after this date, the judgment of the trial court will be reversed and judgment will be here rendered in favor of appellant Anona Denning for the sum of $20,000, plus interest and costs in the trial court; otherwise the judgment will *898 be reversed and cause remanded for a new trial. 3-B Tex.Jur. 555-7, Appeal and Error, secs. 992, 993.
Reversed and rendered on condition of remittitur.
On Rehearing
YOUNG, Justice.
In original opinion points 1 and 2 of appellant are each sustainedan inconsistency. Whether plaintiff at time of injury was an invitee of defendant cannot simultaneously be both a question of law and one of fact. And if a question of fact be involved, as assumed by point 2, same was a material element of plaintiff's cause of action and therefore not waived by defendant's failure to request its submission.
It is appellee's contention that plaintiff at time of injury was an employee of Glore, Forgan & Company-Meyer & Achtschin, a joint venture, to which enterprise Meyer & Achtschin, defendant's lessee, had sublet without its consent a part of the premises, thereby violating paragraph 4 of the lease prohibiting subletting without consent of lessor; and that plaintiff, being an employee of a business unlawfully on the premises, was no more than a trespasser to whom defendant owed no duty except not to wilfully injure her. The facts concerning the status of plaintiff on the premises are not disputed, and therefore readily determinable as a matter of law. Meyer & Achtschin, petroleum engineering consultants and co-partners, had leased space in defendant's building (3,496 sq. ft.) beginning February 1, 1954, for a two-year term. In a written contract dated March 2, 1955, certain individuals designated as "owners" had employed Meyer & Achtschin and Glore, Forgan & Company as their agents to purchase royalty interests up to a subscribed amount; said agents to furnish office facilities and personnel, and as a part consideration for services rendered these agents were to receive 15% of the money so invested as administrative expense. Certain of the office space was allocated to the venture, so-called, with that part of the rental charged to administrative expense, as was also the salary of plaintiff. Manifestly, the foregoing arrangement constituted no subletting of the premises by Meyer & Achtschin to Glore, Forgan & Company within meaning of defendant's lease. Under terms of this March 1955 agreement, the latter simply became a partner along with lessee in performance of required duties as joint agents. "A subletting creates a new estate, dependent upon, or carved out of, but distinct from, the original leasehold. * * * It has been held that permitting a third person to enter into the joint occupation of the premises with the lessee is not necessarily a subletting, and that the fact that a lessee conducting a business on the demised premises takes a third person into partnership with him and thus lets such third person into joint possession of the premises is not a breach of a covenant against subletting." 32 A.J., sec. 393, pp. 331, 332. (Emphasis mine.) See also Markowitz v. Greenwall Theatrical Circuit Co., Tex. Civ.App., 75 S.W. 74, 76, reversed on other grounds, 97 Tex. 479, 79 S.W. 1069, 65 L.R.A. 302.
Otherwise, I concur in the conclusions reached in original opinion of affirmance on condition of remittitur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620069/ | 955 So. 2d 11 (2006)
CORAL IMAGING SERVICES, a/o/a Virgilio Reyes, Petitioner,
v.
GEICO INDEMNITY INSURANCE COMPANY, Respondent.
No. 3D06-597.
District Court of Appeal of Florida, Third District.
October 4, 2006.
*12 Stephens Lynn Klein La Cava Hoffman & Puya, P.A., and Marlene S. Reiss, Miami, for petitioner.
Shutts & Bowen, LLP, and Frank A. Zacherl and Suzanne Youmans Labrit, Miami, for respondent.
Before, GREEN, SUAREZ, and CORTIÑAS JJ.
GREEN, J.
Coral Imaging Services petitions for a writ of certiorari to quash a decision of the Circuit Court Appellate Division interpreting section 627.736(5)(b), Florida Statutes (1999). As the decision departs from the essential requirements of law, Ferrara v. Cmty. Developers, Ltd., 917 So. 2d 907 (Fla. 3d DCA 2006); Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla.1995), we grant certiorari and quash the decision below. We remand with directions to reinstate the summary judgment entered by the trial court.
Judge Emas's eloquently written dissent to the Appellate Division's majority opinion clearly and succinctly sets out the facts and reasoning in this case. We adopt that dissenting opinion in its entirety, as reproduced below:
The material facts of this case are not in dispute: Geico's insured was involved in an automobile accident. He sought treatment for his injuries under his PIP policy from several providers, including Coral Imaging. Coral Imaging provided medical services to the insured and submitted a timely bill for $2300.
However, payment was denied on these timely-submitted claims[1] because Geico had already exhausted the $10,000 limits under its insured's PIP policy. The limits were exhausted, in part, because Geico paid two untimely claims submitted by Professional Reading, thereby diminishing and eventually exhausting the available PIP benefits under the insured's policy.
Coral Imaging sued Geico for payment of the outstanding portion of the timely-submitted bill, claiming that Geico's payment of untimely claims was improper.
The question squarely presented is whether the insurer has the right under the statute to pay for the services rendered by a provider when the provider has concededly failed to submit the bills within the timeframe mandated by § 627.736(5)(b) and has violated the express terms of the statute by including untimely claims in the billing statement submitted to the insurer. The majority holds that the statute does not prohibit the insurer from paying these late *13 claims, and that the payment of such late claims counts against the $10,000 limits of the insured's PIP benefits, thereby preventing another provider from receiving payments for services provided and billed for on a timely basis. I believe that such a statutory interpretation is not logical, reasonable, or intended by the Legislature.
This case involves the interpretation of Section 627.736(5)(b), Florida Statutes (1999), which establishes the requirements for payment of Personal Injury Protection (PIP) benefits under Florida's No-Fault Law. The relevant portion of that statute provides:
(b) With respect to any treatment or service, other than medical services billed by a hospital for services rendered at a hospital-owned facility, the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than 30 days before the postmark date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment of services rendered up to, but not more than, 60 days before the postmark date of the statement. The injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider's failure to comply with this paragraph. Any agreement requiring the injured person or insured to pay for such charges is unenforceable. (Emphasis supplied).
In addressing the proper interpretation of a statutory provision, courts must defer to the legislative intent as expressed by the statute in question. "Legislative intent, as always, is the polestar that guides a court's inquiry under the Florida No-Fault Law. . . ." United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, at 85 (Fla.2001). A fundamental principle of statutory construction is that "[w]here the wording of the Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law." Rodriguez, at 85.
The initial question which must be answered, then, is whether the wording of the statute is "clear and amenable to a logical and reasonable interpretation." I conclude that the majority's interpretation of the statute does not meet this threshold test.
Under the relevant provisions of Fla. Stat. § 627.736(5)(b):
1) A provider of medical services must submit to the insurer a statement of charges for treatment or services rendered to the insured;
2) The provider's statement of charges "may not include . . . charges for treatment or services rendered more than 30 days" before the date the statement of charges is sent to the insurer.
3) The insurer is not required to pay charges for treatment or services which were rendered more than 30 days before the statement of charges is sent to the insurer.
4) The provider may not bill the injured party for the untimely, unpaid charges.
5) The injured party is not liable to the provider for the untimely, unpaid charges.
*14 The first and most obvious reason why the majority's statutory interpretation is not logical or reasonable is that it requires the provider to violate one provision of the statute in order to receive the benefit of another provision of the same subsection.
Under the statute, the provider is prohibited from including in its statement of charges any services which were rendered more than 30 days ago ("the statement of charges . . . may not include . . . charges for treatment or services rendered more than 30 days before the postmark date of the statement.").[2] Therefore, the provider is not even permitted to submit a bill for untimely services. Only by violating this portion of the statute can we ever reach the question of whether an insurer has the authority to pay an untimely bill.[3] In order to be in a position to receive payment on its untimely claim, Professional Reading had to violate the express provisions of Section 627.736(5)(b) by submitting a statement of charges which included untimely-billed services. It cannot logically or reasonably be argued that the Legislature intended to require the provider to violate one portion of a statute in order to receive a benefit under another portion of the same statute.
Furthermore, the entire intent of the 30-day time limitation would be eviscerated under the interpretation urged by Appellant and adopted by the majority. The unreasonableness of this position can be seen by taking the majority's interpretation to its logical conclusion, resulting in this very possible scenario:
1) Assume that Coral Imaging submits a timely bill for services totaling $10,000 (representing the limits of the PIP benefits).
2) Assume further that Professional Reading submits an untimely bill for services totaling $10,000 (also representing the limits of the PIP benefits).
3) Geico, the insured, receives Coral Imaging and Professional Reading's bills on the same day, and notes that Coral Imaging's bill was timely while Professional Reading's bill was untimely.
4) Under the majority's interpretation, Geico has the right to pay either Coral Imaging's timely bill or Professional Reading's untimely bill.
5) Geico chooses to pay the entire $10,000 to Professional Reading for its untimely bills, thereby exhausting the limits of the PIP policy.
6) As a result of paying the untimely bill and exhausting the limits of the PIP policy, Geico denies all payment on Coral *15 Imaging's timely-submitted bill of $10,000.
7) Coral Imaging, having been denied payment on its timely-submitted bill, now seeks payment from the insured for the $10,000 in services provided.
These results expose an interpretation of the statute that is neither reasonable nor logical: the statute provides that "the injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider's failure to comply with this paragraph." The 30-day time limitation requires a provider to submit its bill on a timely basis and, if the provider does not do so and the insurer does not pay, the provider cannot bill the insured for the services. This provision is intended to put teeth into the 30-day time limitation by placing the provider on notice that it will have no recourse against the insured if it fails to meet the time requirements under the statute.
However, by paying Professional Reading's untimely bills (and in doing so, exhausting the PIP benefits) the insurer has exposed its own insured to an additional $10,000 obligation from Coral Imaging; upon exhausting the PIP benefits by paying Professional Reading, and denying payment to Coral Imaging on its timely bill, Coral Imaging is now permitted to seek payment from the insured because it complied with the statutory 30-day time requirement. If, on the other hand, Geico chose (or was duty-bound by statute) to deny Professional Reading's untimely bill (therefore allowing Geico to pay Coral Imaging's timely bill of $10,000), Professional Reading would have no recourse against the insured because the statute provides that "[t]he injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider's failure to comply with this paragraph." [§ 627.736(5)(b), Fla. Stat. (1999).]
Therefore, if the majority's reading of the statute is accurate, the insurer may unilaterally decide whether its insured will be exposed to liability for Coral Imaging's timely-submitted bill by exercising its authority under the statute to pay an untimely-submitted bill. This interpretation allows the insurer to avoid or defeat altogether the purpose of the time limitation by paying an untimely provider and subjecting its own insured to liability the statute was created to prevent. Given this application, I do not believe that the majority's interpretation of Section 627.736(5)(b) can be characterized as logical or reasonable.
In order to be construed logically and reasonably, and to effectuate the legislative intent, the statute must be read as:
1. Prohibiting the provider from submitting for payment the untimely charges and (if said untimely charges are improperly submitted) requiring the insurer to deny payment as violative of the express provisions of Fla. Stat. § 627.736(5)(b); or
2. Prohibiting, or treating as gratuitous, any payment for charges submitted in violation of the 30-day time requirements.
Support for this conclusion is found in the Supreme Court's recent opinion in Warren v. State Farm Mutual Auto. Ins. Co., 899 So. 2d 1090 (Fla.2005). In upholding the time requirements as constitutional, the Court stated:
[I]ncluded in the no-fault statute is a provision for a procedure through which medical providers may file claims and receive payment for services provided. See § 627.736(5)(a), Fla. Stat. (1999). Section *16 627.736(5)(b) sets forth the procedures with which treating medical providers must comply in order to receive payment from the no-fault insurer for services rendered.
Prior to 1998, the only limitation placed on the timely submission of medical provider claims to insurance companies was the five-year statute of limitations for a breach of contract claim. As a result, medical providers could potentially allow charges to mount, and submit charges for services rendered over a long period of time, and distant from the time of the original accident. In 1998 . . . the Legislature amended section 627.736(5)(b) to expressly provide a thirty-day limitation on medical provider billing. Section 627.736(5)(b), Florida Statutes (1999), requires medical providers to postmark claims no later than thirty days following the date of treatment, or be subject to automatic claim denial by the insurer.
* * *
It is apparent by its plain language that the intent of the statutory provision at issue was to impose statutory time limits on the submission of medical bills under the no-fault scheme rather than adherence to the statutory limitations period provided for court actions for breach of contract. Warren, 899 So.2d at 1094, 1095 (emphasis supplied).
Although the Supreme Court in Warren was not faced with the question of an insurer's authority to pay a bill that violates the time and billing requirements of Section 627.736(5)(b), it is instructive that the Court used the above language in describing the mandatory nature of the time requirements before a provider can receive payment. An interpretation of a statute by the highest court of a state is generally regarded as an integral part of the statute. Seddon v. Harpster, 396 [369] So.2d 662 (Fla. 2d DCA 1979).
I believe that, in order to interpret the statute in a logical and reasonable manner, and to effectuate its legislative purpose, the provision must be read as prohibiting Geico from paying the untimely and improperly-billed charges submitted by Professional Reading, as violative of the provisions of § 627.736(5)(b). Alternatively, the payment by Geico must be characterized as "gratuitous," and should not be considered as having been made against the limits of the PIP policy. While Geico remains free to pay providers for charges that are untimely or otherwise submitted in express contravention of the statute, such payments should not be considered a "payment" under the PIP policy. By interpreting the statute in this manner, the remaining provisions of Section 627.736 will be effectuated and the clear legislative intent fulfilled.
(Emphasis and footnotes in original).
As this analysis demonstrates, there has been a violation of a "clearly established principles of law resulting in a miscarriage of justice." Combs v. State, 436 So. 2d 93, 95-96 (Fla.1983), cited with approval in Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla.2000). In this case, the Circuit Court Appellate Division applied the incorrect law in interpreting the statute as elucidated in the dissent, and deviated from the form of law and the rules prescribed for rendering it.
Certiorari granted; order quashed; remanded with directions.
NOTES
[1] Actually, $365.36 remained available under the policy limits of $10,000, so Geico paid that amount to Coral Imaging. Geico denied payment of the remaining amount of the bill ($1934.64).
[2] In the context of this statutory provision "may not" is the equivalent of "shall not," and cannot reasonably be interpreted as permitting the provider to include untimely charges in its bill. Thousands of analogous examples can be found throughout Florida's constitutional and statutory provisions. See, e.g., Art. III, § 8(a), Fla. Const.; Fla. Stat. § 11.062(2)(a); § 11.066(4); § 11.70(3)(d); § 14.29(3)(b), (12); § 20.04(7)(a); § 20.19(6)(f); § 20.23(2)(a)3; § 27.34(2); § 27.711(3); § 28.241(3),(4); § 29.004(10)(d); § 39.012; § 39.013(2); § 44.06(2); § 63.0423(5) and (6); § 90.604. Cf. e.g., Fla. Stat. § 627.4143(3)(b) (provision in same chapter utilizing permissive language "may or may not"); 11.70(5)(d)(same); § 121.091(7)(b)(same); § 154.09(4)(same); § 180.26(same); § 260.012(3)(same); § 475.611(1)(a)3 (same). [sic].
[3] Regardless of the timeliness of the claim, it is difficult to conceive of another way in which an insurer would be aware that a provider has rendered necessary and reasonable medical services to the insured arising out an automobile accident unless the provider first submits a bill to the insurer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620118/ | 13 So. 3d 509 (2009)
M.B., Appellant,
v.
AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
No. 3D08-1912.
District Court of Appeal of Florida, Third District.
June 17, 2009.
*510 Dana M. Gallup, Hollywood, for appellant.
John D.C. Newton, II, General Counsel, and Jonathan D. Grabb, Tallahassee, Agency for Persons with Disabilities, for appellee.
Before COPE and SALTER, JJ., and SCHWARTZ, Senior Judge.
SALTER, J.
M.B. appeals a final administrative order in favor of the Florida Agency for Persons with Disabilities (APD), upholding APD's denial and reduction of services that had previously been provided M.B. for over five years. We affirm in part and reverse in part.
M.B. is a forty-two year-old woman with spastic cerebral palsy and associated quadriplegia. She has received services from the Florida APD Medicaid Waiver Program for many years, including personal care attendant services in her home for 18 hours per day and assistance from a supported living coach. Although she requires assistance during all waking hours and whenever she moves or changes position, the administrative law judge found, and there is no dispute, that:
M.B.'s physical abilities do not impact her mental abilities. M.B. is bright, intelligent, *511 and assertive and can make life decisions on her own. M.B. has difficulty speaking because of neurological conditions. However, she is able to communicate all her concerns, likes, and dislikes. Due to her cerebral palsy, she does have difficulty pronouncing all words, but one can understand her. M.B. has a bachelor's degree in social work.
M.B. lives alone in her own apartment and values her privacy. The record indicates that she usually slept about four of the six hours that personal care attendants were not in the apartment to assist her (under her supported living plan in place through 2007). A supported living coach helps M.B. with her correspondence, phone calls, banking, and other paperwork.
In mid-2007, APD's third-party vendor "Maximus" conducted a review of M.B.'s service plan.[1] Maximus denied or reduced three categories of service and supplies previously provided to M.B., and M.B.'s administrative appeals from these determinations[2] were largely unsuccessful: (1) APD reduced M.B.'s in-home personal care attendant services from 18 hours per day (paid at rates of $12.50 per hour during the week and $11.00 per hour on weekends) to a daily rate of $129 promulgated for 24-hour "live-in" support, plus three hours of care per day at hourly rates to assist with transition to the new arrangement; (2) APD denied M.B. continued reimbursement for a personal emergency response system; and (3) APD denied M.B. certain medically-prescribed "consumable medical goods," principally artificial tears to prevent corneal ulcerations.
As the administrative law judge correctly acknowledged, APD had the burden of proving by a preponderance of the evidence that these three categories of services, though previously provided, should be reduced or eliminated. Wiggins v. Fla. Dep't. of Children & Families, 919 So. 2d 619 (Fla. 1st DCA 2006); Fla. Admin. Code R. 65-2.060(1).
Personal Care Attendant Services
APD's coverage and limitations rules are detailed in a "Florida Medicaid Developmental Disabilities Waiver Services Coverage and Limitations Handbook" that is updated from time to time and is referred to as the "Waiver Handbook." The Waiver Handbook has been adopted as an administrative rule under Florida Administrative Code Rule 59G-13.080.
The Waiver Handbook specifies that an "in-home live in daily rate" will apply to in-home support services if more than eight hours a day are required. During the applicable period, the approved hourly rate for an in-home support or personal care assistant was $15.66 per hour, while the in-home live in daily rate was $129 per day.[3] Although M.B. has been able to obtain hourly care for $11 to $12.50 per hour, the record does not disclose any list of vendors or attendants who would agree to live in M.B.'s apartment and be on call eighteen or twenty-four hours per day for $129 per *512 day. Also, the in-home daily rate does not appear to vary with regional differences in cost of living in the different parts of Florida.
Additionally, M.B. has argued that she does not want her support attendants to be roommates; she values her privacy during the hours her attendants are not in the apartment assisting her. One of the primary goals of APD and the Medicaid Waiver program is the avoidance or mitigation of "institutionalization," and APD genuinely strives to encourage independent living when practicable.
The administrative law judge found that APD had carried its burden to justify the change from 18 hours per day of personal care assistance at the hourly rate to the in-home daily rate. APD had also agreed to allow up to three additional hours per day at hourly rates to assist in transition to the new arrangement, and this was not disturbed. Financially, this left M.B. with a budget of between $162 and $176 per day (depending on the hourly rates billed by the personal care attendants, and whether those rates fell below the allowable maximum rate), versus her prior budget of $198 (weekends) and $225 per day (weekdays).
APD did not, and apparently does not now, dispute the medical necessity of eighteen to twenty-four hour-per-day personal care assistance for M.B.; the change proposed by Maximus based on the Waiver Handbook actually increased the covered hours from eighteen to twenty-four per day by requiring M.B. to take on a roommate who would (in theory) also be a personal care attendant. As is so often the case, the Waiver Handbook's limitation is based on dollars and cents, and on the need to lower the daily cost of the requisite care. It is not based on any finding that M.B. needed a reduced number of hours of personal care assistance.
M.B. argues that APD's proposed imposition of the Waiver Handbook limitation and the in-home daily rate is an impermissible change in policy without the required adoption of a rule, citing Courts v. Agency for Health Care Administration, 965 So. 2d 154 (Fla. 1st DCA 2007). M.B. also contends that an agency may not simply "change its mind" or implement a "radical turnabout from its prior interpretations and practices," relying upon Cleveland Clinic Florida Hospital v. Agency for Health Care Administration, 679 So. 2d 1237, 1239 (Fla. 1st DCA 1996). In this case, however, the Waiver Handbook was in effect and was a binding rule well before APD and Maximus reviewed M.B.'s service plan in 2007. Concepts of estoppel and "regulatory certainty" are inapplicable on this record. The benefits in question here are subject to very detailed rules and limitations, and there is no vested right to continue receiving services that were not actually authorized.
Accordingly, we affirm the final order's determination that APD was required to use the live-in daily rate rather than an hourly rate for M.B.'s service plan. APD supplemented that rate with an authorization for up to three hours per day of additional personal care assistance for M.B. One part of the Waiver Handbook provides authorization for additional hours above the daily live-in rate if the recipient has "intense behavioral challenges" or is recovering from a temporary "medical condition, procedure, or surgery." Another section allows greater latitude, however:
When periodic additional staff assistance is required for in-home live in services, an in-home hourly support service may be billed for up to six hours a day in addition to the live in support if approved by the APD Area Office with concurrence from the APD Central Office.
*513 In M.B.'s case, APD did not provide evidence that M.B. could obtain in-home live in services at the specified daily rate. M.B. provided evidence that with the daily rate and six[4] hours per day of additional personal care assistance, she could obtain adequate coverage. We therefore reverse that portion of the final order approving APD's authorization of three hours per day of additional personal care assistance and remand with instructions to increase this to six hours per day.
Personal Emergency Response System
APD's decision to eliminate reimbursement for M.B.'s emergency "call button" system is based on the assumption that M.B. would have twenty-four hour live-in support services. As noted, this assumption is something of a "legal fiction" in the sense that no one has been identified who would actually provide round-the-clock services at the allowed daily rate, and no one has explained how a single attendant could provide the services and live in the apartment with M.B. 168 hours per week. It is more reasonable to assume that multiple attendants would have to provide the daily services, with only one of them actually living in the apartment.
M.B.'s quadriplegia, her need for assistance with so many activities of daily living,[5] and APD's inability to assure twenty-four hour-per-day, seven days a week attendant coverage, all combine to make it self-evident that M.B. needs a personal emergency response system. The Waiver Handbook limitations provide:
A personal emergency response system is limited to those recipient's [sic] who live alone, or who are alone for significant parts of the day, and have no regular caregiver for extended periods of time, and otherwise require extensive routine supervision.
Because M.B. and her counsel have made it clear that they intend to use the available APD reimbursements to cobble together a care plan and attendant schedule that will come as close as possible to the previous 18 hour per day coverage, and because that intention is plainly consistent with APD's overarching mandate to foster independent living to the extent practicable, APD did not carry its burden to prove by a preponderance of the evidence that the emergency response system should be eliminated from M.B.'s service plan. We reverse on this point, finding that the record in this case shows that M.B. will continue to live alone, will be without a caregiver for extended periods of time (generally at night), and regularly requires extensive routine supervision.
Consumable Medical Supplies
The administrative law judge concluded that the record required her to uphold APD's disallowance of the "artificial tears" (products known as Visine, Hypotears, and Celluvisc), supplies previously included and reimbursed as part of M.B.'s service plan. The Waiver Handbook limitation regarding consumable medical supplies states:
A prescription submitted for supplies, diets, over-the-counter medications, vitamins, herbs, etc., which has general utility or is generally available to the general *514 population without a prescription, does not change the character of the item for purposes of coverage in this category. For example, a physical therapist, occupational therapist or physician recommending or prescribing items like Tylenol, Ginkgo Biloba, vitamins, glutenfree foods, cotton balls or Q-tips, does not convert that item from general utility items to consumable medical supplies covered under the DD waiver. Items covered in this category generally include only those items that are specifically designed for a medical purpose, and are not used by the general public or other general utility uses. It is the general character and not specific use of the item that governs for purposes of coverage under this category.
The Waiver Handbook also identifies a number of categories of consumable medical supplies that are covered even though they are "generally available to the general population without a prescription," such as diapers, disposable gloves, hearing aid batteries, and other items obviously necessary for use in providing health care to a disabled recipient of APD assistance. The Waiver Handbook explains that other such items may be approved through "exception" by APD:
To request an exception, a physician must prescribe the item. The statement from the physician must delineate how the item is medically necessary, how it is directly related to the recipient's developmental disability, and without which the recipient cannot continue to reside in the community or in his [sic] current placement. Items specifically excluded in this handbook will not be approved through exception.
In this case, M.B.'s physician's prescription dated May 9, 2007, was admitted into evidence. The prescription, which is almost entirely legible, states:
[M.B.] suffers from chronic corneal disease as a direct result of her spastic [illegible word] cerebral palsy. She must have continual, permanent, artificial tears and lubricants to prevent corneal ulcerations.
Additionally, neither "artificial tears" nor the three products requested are "specifically excluded" in the Waiver Handbook. It does not require a medical degree to appreciate that corneal ulcerations are painful, debilitating, and worthy of an immediate medical intervention. This being so, corneal ulcerations would jeopardize M.B.'s ability to live in her apartment. M.B.'s physician and the prescription established the other requirements for an exception to the "general utility items" classificationmedical necessity and the relationship of the treatment to her underlying diagnosis. The administrative law judge's denial of M.B.'s request for the artificial tears and lubricants as consumable medical supplies is therefore reversed.
Conclusion
We recognize that APD's provision of services to persons with developmental disabilities is limited by the resources committed to those services and by the constraints established with the force of administrative rule in the Waiver Handbook. The parties and their counsel in this case are to be congratulated on the care and professionalism[6] exhibited in the record and in their presentations to this Court.
We affirm the final administrative order under review insofar as it substitutes the *515 daily live-in rate for personal care attendants of $129 per day versus the previously-approved 18 hours per day at approved hourly rates, and insofar as it approves M.B.'s request for supported living coach services; we reverse the previously-allowed three hours per day of "additional in-home supports above the live-in rate," and remand for an allowance of six additional in-home support hours per day; and we reverse the disallowance of M.B.'s personal emergency response system and artificial tears.
Reversed and remanded for further proceedings consistent with this opinion.
NOTES
[1] Maximus reviews high-dollar annual service plans for participants in the Medicaid Waiver Program. The authorization reviewers working for Maximus are typically skilled and experienced service providers themselves.
[2] Other modifications to M.B.'s service plan have been adjusted to the parties' satisfaction and are not a part of this appeal. Modifications to M.B.'s plan for 2008 are also on appeal to this Court as our Case No. 3D09-962 (not consolidated). As acknowledged by counsel for the parties during argument, the rulings in this case should assist the parties in attempting to resolve the other case.
[3] The in-home live in daily rate ascribes an unspecified value to the occupancy costs saved by an attendant who lives with the APD client.
[4] During the service plan year, the Waiver Handbook "additional staff assistance" authorized in this section was reduced from eight hours per day to six hours per day.
[5] As the administrative law judge found, "M.B. needs assistance to lift, transfer, bathe, dress, and toileting," and M.B. has "severe scoliosis and uncontrolled muscular movements that are generalized throughout her body." None of this subtracts from M.B.'s remarkable accomplishmentsher physical limitations simply must be acknowledged in assessing her need for a personal emergency response system.
[6] Counsel for M.B. is a cousin of hers who has provided extensive and excellent representation without charge. Counsel for APD provided exemplary representation to his client, but also prefaced his legal arguments with an acknowledgment of concern for M.B.'s disabilities and respect for her accomplishments. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620117/ | 955 So. 2d 1241 (2007)
FUNNY CIDE VENTURES, LLC., and Sackatoga Stable, Appellants,
v.
The MIAMI HERALD PUBLISHING CO., and Knight-Ridder, Inc., Appellees.
No. 4D06-2347.
District Court of Appeal of Florida, Fourth District.
May 16, 2007.
Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, for appellant.
Sanford L. Bohrer and Scott D. Ponce of Holland & Knight, LLP., Miami, for appellee.
PER CURIAM.
The elusiveness of horse racing's Triple Crown set the stage for this appeal, in which the plaintiffs argue the trial court erred in granting summary judgment for the defendants. The amended complaint alleged that the defendants' publication of an article that stated that the jockey had admitted having something in his hand during his ride of the horse Funny Cide in the Kentucky Derby ultimately led to significant *1242 financial losses for the plaintiffs. The trial court disagreed and granted summary judgment for the defendants. We affirm.
The plaintiffs' horse, Funny Cide, won the Kentucky Derby in 2003. Shortly thereafter, and before the running of the Preakness, the Miami Herald falsely reported that the jockey Jose Santos admitted carrying an object in his hand during the Kentucky Derby. The article implied that he had cheated in the race by using an illegal battery-operated device. The Herald published a "correction & clarification" after being served with a statutory demand for retraction. The Herald agreed that Santos had not admitted to holding the object and apologized for the error.
Jose Santos rode Funny Cide to victory in the Preakness, winning by several lengths. But, the Triple Crown eluded the jockey and the horse when they placed third in the Belmont.
The plaintiffs, Sackatoga Stable and Funny Cide Ventures, LLC, (FCV) filed an amended complaint against the Herald for injurious falsehood and claimed damages for lost marketing and horse racing revenue because of the article. Specifically, the amended complaint alleged:
Third persons were influenced by [the Herald]'s publications, and falsely made to believe that Sackatoga [and FCV] conducted its horse racing business unlawfully. Consequently, Sackatoga [and FCV] suffered in its business relationships, and the value of the Funny Cide brand was diminished by [the Herald]'s publications.
As discovery took place, the plaintiffs' claim took new shape. The plaintiffs claimed that the article caused the jockey to over-ride the horse in the Preakness in an attempt to vindicate himself and the horse, used up too much of the horse's strength, and resulted in a third-place finish in the Belmont. In answers to interrogatories, the plaintiffs claimed their damages took the form of the loss of the winner's purse in the Belmont and the bonus for the Triple Crown.
The defendant filed a motion for summary judgment on multiple grounds. One basis for the motion was that the claim was not legally supportable because the defendants did not cause the damages. The trial court granted the motion and entered summary judgment.
We review summary judgments de novo. L'Etoile Homeowners Ass'n. v. Fresolone, 940 So. 2d 1170, 1170 (Fla. 4th DCA 2006).
The plaintiffs alleged the tort of injurious falsehood. In such actions, the pecuniary loss recoverable is "restricted to that which results directly and immediately from the falsehood's effect on the conduct of third persons and the expenses incurred to counteract the publication." Bothmann v. Harrington, 458 So. 2d 1163, 1170 (Fla. 3d DCA 1984). This requires the damages to "have been foreseeable and normal consequences of the alleged wrongful conduct, and the conduct must be a substantial factor in bringing about the losses." Id.
Here, despite the novelty and creativity of the allegations, it cannot be said that the loss of the Belmont and the Triple Crown was a direct and immediate result of the Herald article. Simply put, it was not legally foreseeable that the article would cause the jockey to over-ride the horse in the Preakness, sapping the horse of its strength, and resulting in a third-place finish in the Belmont. Those damages are too tenuous and this claim cannot be countenanced in the law. We agree *1243 that the trial court correctly entered summary judgment for the defendants.
Affirmed.
STONE and MAY, JJ., concur.
Opinion by Judge FARMER.
I. Foreword
Once there was a maverick law Professor who denounced all legal writing. He said there were two things wrong with it: its content and its style.[1] This was more than 70 years ago.
Judicial writing is still a prominent form of legal writing. Most of it is dreary and tedious. As he said, opinions are filled with "long, vague and fuzzy words." Another critic has described them as "wordy, unclear, pompous, and dull."[2] Their style comes from the law reviews, the very one the maverick professor found ponderous and obscure.
A surprising number are way too long. There is often a painstaking account of background and trial which turns out to be unnecessary to grasp the essential issues to be decided. Many have extended discussions of rules and principles no one really challenges, or few would dispute. Judges pile on needless details of date, time and place, modified by confusing identifying terms (appellant-cross appellee-defendant) without regard to clarity. Extended comparative quotations alternate with exposition of one sort or another. Legal issues are analyzed through mind-numbing, many-factored "tests". Each factor is unloaded nit by nit, as though the judges actually decided the dispute in precisely that way. Arcane legal terminology is woven in and out, even though simpler, plainer words could be used. Simplicity, tone, style, voice, personality, levityall are shunned.
I admit that I too have made a generous contribution to this legal ennui all by myself. I can hardly deny my contributionsas this (with its footnotes) attests. My worst offenses came, I hope, when I was newer to this game. But now I wish to make a good act of contrition, do some penance, and offer an explanation for the opinion I prepared for the court in this case.
From the very moment of my appointment as a judge, I have chafed under this norm for appellate opinion writing. How did it become conventional? Who made it required? Why hasn't it been changed?
I struggled against it. There must be other styles, different tones, alternate voices. Not for every opinion. But for some.
One technique occurred to me. This idea would have an opinion in some of the forms, styles and characteristics associated with fiction. Good fiction is set in human experience. Good fiction illuminates. Fiction's style may yield questions, but the right questions can lead to discovery of truth.
A judge would use this style with restraint and propriety (of course). But in some cases such a style could be better suited to explain an outcome. A light fictional tone could express not ridicule but the heavy strain on logic or principle raised by some contentions in some contexts. In fact, this very case seemed appropriate to convey the essential idea. Although the argument is not frivolous, a *1244 lighter, story-like tone could better reveal the reasoning behind the result. This style would portray the inherent defect in the argument and in the process make legal reasoning vivid, law's result apt.
One prominent judge separates opinion writing into a "pure" form and an "impure" form. The former is the traditional version and the latter an occasional nonconformist form.[3] He explained:
"The pure style is an anodyne for thought. The impure style forceswell, invitesthe writer to dig below the verbal surface of the doctrines that he is interpreting and applying. What he may find is merely his own emotions. . . . But if the judge is lucky, he may find, when he digs beneath the verbal surface of legal doctrine, the deep springs of the law."[4]
It is not that one style is best. The judge chooses the one or the other because:
"If you are the kind of judge who thinks that the considerations that bear on a judicial decision range far beyond the canonical materials of formalist legal thoughtif you think that values (not just "feelings"), history, and policy are legitimate considerationsyou will find the `pure' style confining because it is not designed for the expression of those considerations. To the impure poet, `nothing that is available in human experience is to be legislated out of poetry.' Substitute `law' for `poetry' and we have the credo of the `impure' judicial stylist."[5]
In my view nothing that is available in human experience ought to be banned by convention in judicial opinion writing.
I should state publicly my own resolution, made several months ago. I had decided that the style of some opinions couldand shouldbe unconventionally changed for greater openness to all readers. I would try to write some opinions in styles and tones calculated to make legal reasoning clearer for those without law degrees. Then came this case.
When the panel conferred after oral argument, I did not detect any disagreement. While there washow shall I say this?an engaging air about a Derby-Preakness winner contending that a newspaper article caused the horse to lose the Belmont and the Triple Crown, even still there was yet within a serious aspect. The opinion had to show that the false bravado behind the certainty of the ten-dollar window[6] is not enough legally to make damages probable. So after thinking on the matter, I conceived of an unconventional approach. I would try a style, a tone, a voice to make apparent even to non-lawyers what I believed is the basic defect in their argument. The very style of the opinion itself would illuminate the legal analysis and outcome.
As it turns out, the other two members of the panel could not endorse the opinion or even some slightly altered version. They had concerns. Some other judges shared them. So I give this explanation for what I wrote, laying my version along side the panel's substitute. Readers can *1245 compare a conventional opinion with an unconventional stylethe pious with the impious.
II. Opinion
[Heading]
The Backstretch
The horse won the Kentucky Derby. Decisively. Tenth fastest time in Derby history. First jewel in the Crown.
Sure, there was some racket in the press afterwards. The Miami newspaper said it saw something in the jockey's hand, some illegal electric thing, maybe to spark the horse. Turns out the paper was seeing a fantasy in a shadow and retracted the story. But the noise had already begun. Are we looking at a Triple Crown horse?
Then the horse won the Preakness Stakes. And it's not even close. Wins by nearly ten lengths. The horse is so far out front, looks like he could make it past the wire and into the barn before they can take the photo. Hardly anyone asked if the horse ran out of gas for the Belmont. Are you kidding? Racing was all stirred up about the Crown. The feedbox noise grew hot.
Was it a dream, or did I hear stories about a guy who read in the paper the horse wins it all by a half? About another guy who said it was no bum steer, it was from a handicapper that's real sincere? Even about a third guy who knew this is the horse's time because his father's jockey's brother's a friend?[7]
Whatever. It's a lock. Two jewels for the Crown. Make room for the third.
Only, wait a minute. Did I hear another story about this one guy who wasn't so sure? Said it all depends if it rained last night?[8]
Anyway for the rest it's money in the bank. Everyone makes the horse the winner, so why worry about the race?
The horse did not win the Belmont Stakes. Yeah, he finished in the money, best he could do was show. Third place brings some money but not like a win.[9] And it definitely doesn't make the Crown. The guys in the stories were wrong.
Except maybe the one. It was a sloppy track. You sure it didn't rain last night?
Anyhow the horse sues the paper. Says the false report in the Miami paper damaged him. Paper says name your damages. Allow me to clarify, says he. Belmont purse is $1 million. Collaterals bring another $5 million. So I'm out $6 million.
But the steward in the court saw an illegal substance in the damages and disqualified them. The horse now wants the judges to let him back in.
The judges think it rained last night.
The Finish Line
This background is admittedly not your standard law talkcertainly not a conventional statement of background for a legal opinion. It might even be thought distorted humor rather than the good side of the opinion.[10] But it is meant to set the stage for a serious legal issue.
The trial judge decides what proof goes to the jury, and the jury decides the damages. *1246 No argument about that. But his damages have to be reasonably possible, no matter how certain the horse is about his loss. And the proof must allow the jury to find the loss probable, even if not certain. The judge's role is to figure out what evidence of the possible could also be probable.
According to someone, it's possible to trace every happening on earth back to something else. Like, for want of a nail the kingdom was lost. But that is not so with damages, which must be "proximate" to the wrong. The question is how close must they be? How proximate to get the loss to the jury? Between the merely possible and the possibly probable, when does evidence become too uncertain? Can the horse get there just by insisting that even damages depending on many variables are virtually certain? That's the general question.
And then there's the particular tort in this case. In an action for injurious falsehood, disparagement damages are "restricted to that which results directly and immediately from the falsehood's effect on the conduct of third persons. . . ." Bothmann v. Harrington, 458 So. 2d 1163, 1170 (Fla. 3d DCA 1984); see also RESTATEMENT (SECOND) OF TORTS, § 633 (1967). Defendant's wrongful act "must be the legal cause of the claimed pecuniary losses." 458 So.2d at 1170. The damages must be the "foreseeable and normal consequences [e.s.] of the alleged wrongful conduct, and the conduct must be a substantial factor in bringing about the losses." Id.; see also Jacksonville v. Raulerson, 415 So. 2d 1303, 1305 (Fla. 1st DCA 1982) (legal cause exists only where injuries are the reasonably foreseeable result of the wrongful act).
An essential element of injurious falsehood is that it caused the victim special damages. See Donald M. Paterson Inc. v. Bonda, 425 So. 2d 206, 208 (Fla. 4th DCA 1983) (failure to produce evidence of any damage); and Continental Dev. Corp. of Fla. v. Duval Title & Abstract Co., 356 So. 2d 925, 927 (Fla. 2d DCA 1978) (actionable injurious falsehood must cause actual or special damage). The victim's proof must eliminate the possibility that a loss of a future expectation can be explained by other factors. See generally RESTATEMENT (SECOND) OF TORTS, § 633(1)(a), Reporters Note (1967). Consequently, whatever may be the line for proximate damages in tort actions legally, for this cause of action the horse must plead and prove special damages thatafter eliminating all other causes for his claimed loss of an expectationare directly and immediately caused by the falsehood.
The horse's theory of damages goes like this. The false Miami Herald article about the Kentucky Derby win insulted the integrity of the jockey. Feeling wronged, jockey overcompensates in the Preakness. Right out of the gate he uses the whip on the horse all the way to the wire in spite of a big lead. So at Belmontand we got this from the horse's mouthpiecethe horse had already spent all his reserves and had nothing left to win the Triple Crown. As a result of the disparagement, he lost the money a Belmont win would have brought.
Readers will grasp the crucial implication buried deep inside this damages scenario. If the disparagement is what caused the horse to lose the Belmont, then the horse must have been sure to win the race without it. Does the evidence bear out this implication?
No, because the horse's theory doesn't eliminate other factors. Nothing shows that the article was likely a substantial factor at Belmont. To the contrary, the Herald countered with evidence of written *1247 statements from the horse's own jockey and managing partner not long after the race. They wrote then that the loss came from a muddy track at Belmont, and the horse spent too much energy before entering the gate. So what makes a win at Belmont inevitable? Are they saying all winners of both the Derby and Preakness go on to win the Belmont?[11]
With his accustomed candor, the horse's able appellate counsel conceded there are far more Triple Crown losers than winners. In fact history shows it's two-to-one against. If it were otherwise, the possibility of a Triple Crown would not ignite such excitement. And needless to say, the Damon Runyon stories and the Frank Loesser lyrics would lose their most vital element. Runyon, who understood such things, was known to say that "all life is six-to-five against," making a loss probable in most anything but also making winning just close enough to be tantalizing.[12]All lifewe are led to believeincludes horse racing. And as Sky Masterson repeated from the "Good Book": "the race is not to the swift . . . but time and chance happen to them all."[13]
The writings of both the owner and the jockey show they believed that a sloppy track was the substantial factor in the loss at Belmont, rather than the jockey's ride in the Preakness. The horse may even have exhausted too much energy at Belmont before the start of the race. He did delay in getting out of the gate. The prospect of a win is touched by so many variables it's just naturally in doubt. Without some sign of evidence disposing of other causes for his loss at Belmont, the horse is stuck with the variables.
These other, more direct, immediate and normal causes persisting, we need not labor in this case to cast for all time where damages become too speculative for trial. Here it is enough for us to say the theory behind the loss of a Belmont win may be this side of possible but it is a long way from being directly and immediately caused by the Herald's articles, or from being the foreseeable and normal consequences of disparagement.
Damages must fit snugly in the context. The context is there is no certainty in horse racing. The horse has to win the race. In competition you have to play and win. No one is certain to win today simply because he won before. A win yesterday doesn't promise another today or tomorrow. If it did, there would be many more Triple Crowns; more pennants for the Boston Red Sox; San Diego would be last year's Super Bowl champ; Florida State would be the ACC football champ; and the former Soviet Union would have the gold medal in hockey from the 1980 Olympics.
*1248 The decision has to be Affirmed.[14]
Shame it rained last night.
NOTES
[1] Fred Rodell, Goodbye to Law Reviews, 23 VA. L.REV. 38, 38 (1936). He is also rumored to have disdained the title of Professor, ruefully explaining that he never played piano in vaudeville or a bawdy house.
[2] David Mellinkoff, THE LANGUAGE OF THE LAW 24 (1963).
[3] Richard A. Posner, Judges' Writing Styles (And Do They Matter?), 62 U. CHI. L.REV. 1421 (1995) (referring to Pure and Impure Poetry, in Robert Penn Warren, SELECTED ESSAYS at 26 (Random House 1958).
Pure and impure are his replacements for the slightly invidious terms high and low. If I were writing Judge Posner's piece, I might have used my religious metaphor (contrition and penance) to suggest the terms pious (describing the authorized style) and impious (describing the "reformed" style).
[4] 62 U. CHI. L.REV. at 1447.
[5] 62 U. CHI. L.REV. at 1448.
[6] Is there still a two-dollar window?
[7] Does all this sound like it came from a newspaper guy who wrote a book and a songwriter who put it to words and music? Yeah, I know. Book's by Damon Runyon. Songwriter's name is Frank Loesser; music is Fugue for Tinhorns; play is Guys and Dolls. You could look it all up.
[8] See n. 8.
[9] He's a geldingno breeding rights. A win would have made a nice nest egg.
[10] Maybe the owners of the horse will understand this.
[11] The history is striking. Since 1919, only eleven horses have won all three races: Sir Barton (1919), Gallant Fox (1930), Omaha (1935), War Admiral (1937), Whirlaway (1941), Count Fleet (1943), Assault (1946), Citation (1948), Secretariat (1973), Seattle Slew (1977), and Affirmed (1978). Twenty horses have won the Kentucky Derby and the Preakness Stakes but failed in the Belmont Stakes: Burgoo King (1932), Bold Venture (1936), Pensive (1944), Tim Tam (1958), Carry Back (1961), Northern Dancer (1964), Kauai King (1966), Forward Pass (1968), Majestic Prince (1969), Canonero II (1971), Spectacular Bid (1979), Pleasant Colony (1981), Alysheba (1987), Sunday Silence (1989), Silver Charm (1997), Real Quiet (1998), Charismatic (1999), War Emblem (2002), Funny Cide (2003), and Smarty Jones (2004). See www.thetriplecrown challenge.com.
[12] Introduction by William Kennedy, GUYS AND DOLLS: THE STORIES OF DAMON RUNYON, xiv (Penguin Group 1992).
[13] ECCLESIASTES 9:11.
[14] No reference of course to the last Triple Crown winner, Affirmed (1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620116/ | 585 N.W.2d 64 (1998)
STATE of Minnesota, Respondent,
v.
Tony Lamar CAROTHERS, Appellant.
No. C8-98-86.
Court of Appeals of Minnesota.
September 22, 1998.
Review Granted October 29, 1998.
*65 Hubert H. Humphrey III, Attorney General, St. Paul; and James Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Hastings, for respondent.
John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, Minneapolis, for appellant.
Considered and decided by SHORT, P.J., and SCHUMACHER and DAVIES, JJ.
OPINION
SCHUMACHER, Judge.
Appellant Tony Lamar Carothers was convicted of second-degree felony murder in violation of Minn.Stat. § 609.19, subd. 2(2) (1996). Carothers challenges the trial court's exclusion of defense evidence and its response to a question from the jury concerning the duty to retreat. We affirm.
FACTS
The indictment charged Carothers with first-degree premeditated murder, second-degree intentional murder, second-degree felony murder and manslaughter in the first degree in the January 8, 1997 death of Kevin Lee in Apple Valley. Lee had been playing cards and drinking with Carothers, Carothers' girlfriend, Kayce Liebrecht, and others on the evening of the shooting. The socializing, as well as the later shooting, occurred in a mobile home owned by Kayce Liebrecht's mother, Karen Lindner. Carothers was living in the home at the time of the incident.
Carothers admitted that he fired the fatal shots, but claimed that he did so in self-defense, and in defense of the mobile home. The defense presented evidence that Lindner had asked Lee to leave the home, and that he had complied but had returned minutes later, entering without consent and approaching Carothers in a belligerent manner. The state presented evidence that Lee had returned peaceably, after knocking, for the sole purpose of using the telephone.
Carothers testified that Lee had said he was an "enforcer" for a gang, and for that reason alone Carothers was afraid of him. Carothers also testified that Lee had bragged about having put some members of another gang in the hospital. Carothers testified that Lee talked about carrying a gun, although he had never seen Lee in possession of one. The trial court ruled that the defense could not present evidence that Lee bragged that he was on the run after committing a murder, that he had robbed a 12-year-old boy, and that he had intimidated store clerks into letting him shoplift.
The trial court instructed the jury on self-defense and also on the defense of dwelling, an instruction given over the prosecutor's objection.
During its deliberations, the jury returned with two questions. After first requesting a legal definition of "place of abode," the jury sent the following question: "Does the self defense retreat [sic] duty of retreat apply to self defense causing death in place of abode?" The court, over a defense objection, responded as follows:
The legal excuse of self defense is available only to those who act honestly and in good faith, even in one's place of abode. This includes the duty to retreat or avoid the danger if reasonably possible.
The jury acquitted Carothers of first-degree premeditated murder and second-degree intentional murder but found him guilty of second-degree felony murder and first-degree manslaughter. The trial court sentenced *66 him to the presumptive sentence of 165 months for second-degree felony murder.
ISSUES
1. Did the trial court abuse its discretion in excluding defense evidence of prior bad acts by the victim?
2. Did the trial court err in instructing the jury that there is a duty to retreat within the dwelling?
ANALYSIS
1. Carothers argues that the trial court abused its discretion in excluding defense evidence offered to show Lee's propensity for violence. This court reviews an evidentiary ruling under an abuse of discretion standard. State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989).
The defense presented ample evidence that Lee had boasted of acts of intimidation or violence, and of carrying a weapon, that he was belligerent on the night of the shooting, that he was far bigger than Carothers, and that both Carothers and Kayce Liebrecht were afraid of him. The trial court has discretion to exclude as cumulative even evidence that has significant probative value. See Minn. R. Evid. 403 (relevant evidence may be excluded if its probative value is substantially outweighed by the risk of "needless presentation of cumulative evidence"); see also State v. Buchanan, 431 N.W.2d 542, 551 (Minn.1988) (evidence of defendant's prior exposure to street violence was duplicative of other evidence supporting self-defense claim).
The exclusion of evidence that would have added only minimally to other defense evidence that Carothers was in reasonable apprehension that Lee would assault him was well within the trial court's discretion.
2. Carothers argues that the trial court erred in instructing the jury that he had a duty to retreat before using deadly force to defend himself against Lee's commission of a felony in Carothers' dwelling. Although the trial court instructed the jury on the duty to retreat as part of its instructions on self-defense, Carothers focuses his argument on the court's response to a jury question during deliberations that asked whether the duty to retreat applies "to self defense causing death in place of abode."
The trial court generally has considerable latitude in selecting the language of jury instructions. State v. Pendleton, 567 N.W.2d 265, 268 (Minn.1997). But a jury instruction must not materially misstate the law. Id. Carothers argues that the trial court materially misstated the law by charging the jury that he had a duty to retreat even though he was defending against the commission of a felony in his dwelling, or place of abode.
There are four Minnesota cases in which a "duty to retreat" instruction was given although the act of self-defense occurred in the defendant's dwelling. In State v. Sanders, 376 N.W.2d 196, 198 (Minn.1985), the defendant claimed that the victim, with whom he had been socializing earlier, "came charging in" to his house, picked up a knife and said he was going to kill him. The trial court gave an instruction on the use of deadly force to prevent a felonious assault in the home, and applied to it a duty of retreat. Id. at 200-01. The defendant on appeal challenged another part of the self-defense instruction and conceded that the "duty to retreat" charge was appropriate. Id.
In State v. Schluter, 281 N.W.2d 174 (Minn.1979), three people entered the defendant's house unlawfully to "retrieve" some girls who had been attending a party there. One of the three was leaving peacefully when shot in the back. Id. at 176. The court held that the instruction on the duty to retreat was properly given. Id. at 177.
The supreme court also affirmed the giving of a duty to retreat instruction in State v. Morrison, 351 N.W.2d 359 (Minn.1984). In that case, the stabbing occurred in the defendant's home after the defendant had an argument with her boyfriend. But the boyfriend had left and the boyfriend's roommate had returned, apparently peaceably, when
without warning [the defendant] grabbed a butcher knife and stabbed [the friend] in the side and in the back as his back was turned to her; * * * *. *67 Id. at 360. In approving the duty to retreat instruction, the court did not discuss the fact that the killing occurred in the defendant's home. Id. at 362.
Finally, this court has affirmed an instruction on the duty to retreat, even though the use of deadly force occurred in the defendant's home. State v. Hennum, 428 N.W.2d 859, 866-67 (Minn.App.1988), aff'd in part, rev'd in part, 441 N.W.2d 793 (Minn.1989). Although Hennum involved the killing of a spouse and co-occupant, a situation in which many jurisdictions would not apply the "castle doctrine" of no duty to retreat in the home, and although the defendant had waived the issue by failing to object, this court stated broadly that "Minnesota has retreated from this free-wheeling concept of self-defense" in which there was no duty to retreat in the home. Id. at 867. As authority, the court cited Morrison and Sanders. Id. The supreme court affirmed this court on the self-defense issue, without discussion. Hennum, 441 N.W.2d at 800, n. 5(1).
The principle that there is no duty to retreat inside one's home is generally termed the "castle doctrine." A majority, if not an overwhelming majority, of American jurisdictions have adopted it. See Gainer v. State, 40 Md.App. 382, 391 A.2d 856, 860-61 (1978) (stating that castle doctrine is "universally recognized exception" to duty to retreat), cert. denied (Md. Dec. 15, 1978); cf. State v. Walton, 615 A.2d 469, 471 (R.I.1992) (stating that a "majority of American jurisdictions" recognize the castle doctrine). Nevertheless, the four cases discussed above, although they do not acknowledge the castle doctrine or discuss the policies for or against it, do establish a line of Minnesota authority departing from the majority position and supporting the trial court's instruction in this case.[1]
Carothers contends, however, that the result should be different in this case because he asserted a "defense of dwelling" claim, rather than ordinary self-defense. Under the facts of this case, however, Carothers' "defense of dwelling" claim is virtually the same as his self-defense claim. Carothers was not defending against a crossing of the threshold of the home, and was seeking to prevent the felony of assault directed, at least primarily, against his own person. Cf. State v. McCuiston, 514 N.W.2d 802, 804-06 (Minn.App.1994) (noting that defendant's claim that victim was attempting to force his way into defendant's home, to threaten defendant and his son, was not the same as self-defense claim, and entitled defendant to "defense of dwelling" instruction), review denied (Minn. June 15, 1994). It appears that the defendants in Sanders, Schluter, and Morrison would have had at least as strong a claim of "defense of dwelling" as Carothers.
The supreme court has held that a defendant claiming "defense of dwelling" need not show that he feared great bodily harm or death. State v. Pendleton, 567 N.W.2d at 268. The court, however, did not hold that the self-defense factors set out in State v. Boyce, 284 Minn. 242, 253, 170 N.W.2d 104, 112 (1969) are inapplicable to defense of dwelling. Instead, the court in Pendleton approved a "recasting of the Boyce factors in the context of a `defense of dwelling' claim." Id. at 270. The duty to retreat is only a part of the duty of good faith recognized in Boyce as prerequisite to a valid claim of self-defense. Boyce, 284 Minn. at 253, 170 N.W.2d at 112 (citing State v. Johnson, 277 Minn. 368, 373, 152 N.W.2d 529, 532 (1967)). We do not read Pendleton as signaling an abandonment of the duty to retreat requirement in defense of dwelling cases, particularly in a case where the facts indicate only a defense of self within the dwelling, and certainly not when the victim has already been admitted to the home.
DECISION
The trial court did not abuse its discretion in excluding cumulative defense evidence of prior bad acts by the victim. The court did *68 not err in instructing the jury that there is a duty to retreat inside the place of abode.
Affirmed.
NOTES
[1] Carothers cites State v. McPherson, 114 Minn. 498, 131 N.W. 645 (1911), for the proposition that Minnesota does not impose a duty to retreat within the place of abode. But McPherson involved a co-occupant, a fellow seaman shot in the bunkroom he and the defendant shared, and discusses the issue in terms of the "retreat to the wall" doctrine, stating that defendant "was about as close to the `wall' as it was possible to get." Id. at 500, 131 N.W. at 646. Thus, the case is distinguishable both legally and on its facts. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620111/ | 585 N.W.2d 853 (1998)
Lori JOHNS, Respondent,
v.
HARBORAGE I, LTD., a/k/a America Live, a foreign limited partnership, et al., Appellants.
No. C8-98-301.
Court of Appeals of Minnesota.
November 17, 1998.
*856 James F. Baldwin, H. Le Phan, Murnane, Conlin, White & Brandt, St. Paul, MN, for appellants.
William J. Morris, Jr., Frank Vogl, Best & Flanagan, P.L.L.P., Minneapolis, MN, for respondent.
Considered and decided by TOUSSAINT, C.J., and DAVIES and PETERSON, JJ.
OPINION
PETERSON, Judge.
In this appeal from a judgment, appellant Harborage I, Ltd., argues that the trial court erred by awarding respondent Lori Johns compensatory and punitive damages for emotional harm caused by the hostile work environment maintained by appellant at Gators Bar and Grill. Appellant also challenges an award for costs and attorney fees. We affirm in part and reverse in part.
FACTS
From January to March 25, 1993, respondent Lori Johns worked as a server, hostess, and cashier at Gators Bar and Grill in the Mall of America (Gators). Harborage I, Ltd. (Harborage I), a Texas limited partnership, managed Gators and several other bars at the Mall of America. Harborage, Inc., a Texas corporation, provided employees for Gators. FPM, Ltd., a Texas limited partnership, was the lessee of Gators' premises and held the liquor license for the premises.
On February 23, 1993, while working as a hostess at Gators, Johns was approached by Michael Long, another Gators employee, who told her that her shorts were not "tight enough" and did not conform to Gators's dress code. Long told Johns that the appropriate shorts were in a storage closet behind the hostess stand. Johns followed Long into the storage closet and followed his request to shut the door. While in the closet, Long took off his shorts and exposed his erect penis to Johns. Long then told Johns to change her shorts in front of him. When Johns refused, Long forcibly pulled down her shorts, exposing her buttocks. Johns slapped Long's hand and told him to stop. Long attempted to pull down Johns's shorts a second time before she fled from the storage closet.
Gators's assistant manger, Michelle Johnson, saw Long and Johns leaving the storage closet and noticed that Johns looked upset and Long looked guilty. Johnson spoke to Johns and learned that Long had exposed himself to Johns in the storage closet. The next day, Johnson reported the incident to Steve Buchanan, Gators's general manager. After speaking with Johns, Buchanan contacted Long and suspended him pending the outcome of the investigation into Johns's complaint.
Buchanan interviewed the Gators staff and discovered that prior to the incident with Johns, Long had harassed other female employees. Long had exposed himself to R. S., a Gators server, during work hours. On separate occasions, Long attempted to pull down coworker K.M.'s shorts and groped her breasts. Long engaged in offensive conduct against another coworker, K.B., on several occasions. This conduct included pulling down K.B.'s shorts, pinching her buttocks, and following her into the women's restroom where he exposed his penis to her through his tight spandex shorts. These employees did not welcome Long's conduct and were offended by it, but they did not report these incidents to management. Buchanan also asked Johnson if Long had ever directed any sexual misconduct toward her, and Johnson denied that he had.
Based on his investigation, Buchanan met with Long intending to terminate his employment. However, Long said he wanted to *857 quit, and Buchanan accepted that. Long's personnel file states that he quit for personal reasons.
Johns filed a criminal complaint against Long with the Bloomington Police Department. Long was charged with gross-misdemeanor indecent exposure and pleaded guilty to an amended charge of misdemeanor indecent exposure.
On March 25, 1993, Johns resigned from her position at Gators. On January 14, 1994, Johns filed unlawful discrimination charges with the Equal Employment Opportunity Commission (EEOC) and the Minnesota Human Rights Department (MHRD). In June 1995, the EEOC issued Johns a right-to-sue notice. In September 1995, Johns brought an employment discrimination action against Harborage, Inc., seeking compensatory and punitive damages for claims based on (a) sexual harassment hostile work environment; (b) retaliation; (c) negligent hiring; (d) negligent supervision; (e) negligent retention; and (f) respondeat superior.
Harborage I answered Johns's complaint and admitted that it was Johns's employer. During discovery, Johnson was deposed and admitted that Long had engaged in sexually offensive conduct toward her. Johnson stated that during work hours at Gators, Long pulled out the front of his spandex shorts and asked her if she wanted to feel his penis. Johnson stated that she did not invite nor welcome this conduct, and she was offended by Long's actions. Johnson also stated that despite being Long's supervisor, she only reprimanded him and told him that his behavior was inappropriate.
In July 1996, at the request of defense counsel, Johns amended her complaint to substitute Harborage I for Harborage, Inc., as the defendant. In August 1996, Harborage I moved for summary judgment. The trial court granted partial summary judgment and dismissed Johns's respondeat superior, negligent hiring, negligent supervision, and negligent retention claims. The court denied summary judgment with respect to Johns's hostile work environment and retaliation claims.
In October 1996, defense counsel advised Johns that Harborage, Inc., not Harborage I, was her employer at the time she was sexually harassed by Long. By stipulation, Johns's complaint was amended to substitute Harborage, Inc., for Harborage I, as the defendant. But after Harborage, Inc., filed for bankruptcy protection in November 1996, Johns moved to amend her complaint to reinstate Harborage I as a defendant and to add FPM as a defendant. The trial court granted Johns's motion, but reserved the issue of whether Harborage I and FPM were Johns's employers.
Following a bench trial, the court found that Harborage I was the manager of Gators and was Johns's employer under Title VII and the Minnesota Human Rights Act (MHRA). The court concluded that Harborage I unlawfully discriminated against Johns by subjecting her to a hostile work environment based upon sex and awarded her $25,000 in compensatory damages, $8,500 in punitive damages, and reasonable attorney fees. The court dismissed Johns's retaliation claim and all claims against FPM.
Harborage I moved to amend the findings of fact, conclusions of law, and order for judgment or, in the alternative, for a new trial. The trial court denied the motion and awarded Johns $65,894.46 for costs and attorney fees.
ISSUES
I. Did the trial court err in finding that Harborage I was John's employer under Title VII and the Minnesota Human Rights Act?
II. Was Johns precluded from pursuing a Title VII claim and a Minnesota Human Rights Act claim against Harborage I because she failed within the statutory limitations period to name Harborage I in her EEOC charge and her subsequent civil action?
III. Did the trial court err in concluding that Harborage I unlawfully discriminated against Johns by subjecting her to a hostile work environment?
IV. Did the trial court err in awarding Johns $25,000 in compensatory damages?
*858 V. Did the trial court err in awarding Johns $8,500 in punitive damages?
VI. Did the trial court err in awarding John's $65,894.46 for costs and attorney fees?
ANALYSIS
Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
Minn. R. Civ. P. 52.01.
The decision to grant a new trial lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn.1990). Where the trial court exercises no discretion, but instead, bases its order on an error of law, this court's review is de novo. Id.
On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.
ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn.App.1992), review denied, (Minn. Apr. 29, 1992).
I.
The trial court concluded that both Harborage I and Harborage, Inc., could be treated as Johns's employer under Title VII because the two entities were
so interrelated in their operations, common management, common ownership and financial control, and in their centralized control of labor relations as to be a simple integrated enterprise.
Harborage I argues that the trial court's conclusion is contrary to law and unsupported by the evidence.
[I]n determining whether two entities may be liable as a single employer under Title VII two basic approaches have been taken. The first * * * rests upon a finding that the two entities constitute a single or joint employer. The second rests on a finding that one entity * * * is merely the agent or instrumentality of the other.
Equal Employment Opportunity Comm'n v. Wooster Brush Co., 727 F.2d 566, 571 (6th Cir.1984) (citations & footnote omitted).
To determine whether separate entities should be consolidated under the first approach, the factors that should be applied are (1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership or financial control. Baker v. Stuart Broad. Co., 560 F.2d 389, 392 (8th Cir.1977). The presence of any single factor in the Title VII context is not conclusive and all four criteria need not be present in all cases. Armbruster v. Quinn, 711 F.2d 1332, 1337-38 (6th Cir. 1983). The third factor, centralized control of labor relations, is the most important of the four factors. Fahey v. Avnet, Inc., 525 N.W.2d 568, 572 (Minn.App.1994), review denied (Minn. Feb. 14, 1995).
The showing required to warrant a finding of single-employer status has been described as "highly integrated with respect to ownership and operations." Fike v. Gold Kist, Inc., 514 F. Supp. 722, 726 (N.D.Ala.1981), aff'd, 664 F.2d 295 (11th Cir.1981). The test may also be satisfied by a showing that there is an amount of "participation [that] is sufficient and necessary to the total employment process," even absent "total control or ultimate authority over hiring decisions." Rivas v. State Board for Community Colleges & Occupational Educ., 517 F. Supp. 467, 470 (D.Colo.1981).
Armbruster, 711 F.2d at 1338 (citations omitted) (alteration in original).
The evidence is sufficient to demonstrate that the operations of Harborage I and Harborage, Inc., were interrelated. Harborage I managed Gators, and Harborage, Inc., provided employees for Gators. Harborage, Inc., issued Johns's paychecks. Many of the personnel forms used at Gators simply read "Harborage" without any further designation. Performance evaluations for some Gators employees are on Harborage I forms. Harborage I applied to the Minnesota Assigned Risk Plan for workers' compensation insurance and the issued policy was amended *859 to list Harborage, Inc., as the employer. Harborage I is also known as "America Live," and Johns's exit interview form lists as her employer "America Live." When Johns's complaint was amended to substitute Harborage, Inc., for Harborage I, James Balvin remained as the attorney representing the defendant.
More significantly, the sexual harassment policy form that Johns signed when she was hired was printed on Harborage, Inc., letterhead and directed employees who experience sexual harassment to contact the director of personnel. However, Harborage, Inc., did not have a director of personnel. Instead, the corporate director of human resources for Harborage I handled employee complaints about harassment.
Finally, in its original answer to Johns's complaint, Harborage I admitted that it was Johns's employer and responded to the complaint as if it were her employer. This indicates that the operations of Harborage I and Harborage, Inc., were so deeply interrelated that not even the entities themselves knew which of them was the employer.
At issue in the second factor, common management, is whether the same individuals manage and control the two entities. Fahey, 525 N.W.2d at 572. Harborage, Inc., and Harborage I were managed by the same individuals. Harborage, Inc., was formed in 1986. A separate entity, Harborage Services, Inc., was formed in 1991; its directors were Joyce O. McReynolds, Leon Carroll, and Lezlee Ann Williams. When Harborage I was formed as a limited partnership in 1991, its general partner was Harborage Services, Inc., and its limited partner was Harborage, Inc. Leon Carroll signed the Harborage I limited partnership agreement as president of Harborage Services, Inc., and as president of Harborage, Inc. When Harborage, Inc., transferred its limited partner interest in Harborage I to another entity in 1995, Joyce O. McReynolds signed the amendment to the limited partnership agreement as president of Harborage Services, Inc., the general partner, as president of Harborage, Inc., the withdrawing limited partner, and as president of the incoming limited partner.
These findings demonstrate that at different times, Leon Carroll and Joyce O. McReynolds each served simultaneously as president of Harborage, Inc., the limited partner of Harborage I, and as president of the general partner of Harborage I. In their capacities as president of Harborage, Inc., Carroll and McReynolds managed Harborage, Inc., and in their capacities as president of Harborage I's general partner, Carroll and McReynolds managed Harborage I.
In addition, the trial court found that in 1994, Harborage, Inc., established a 401(k) plan for its employees. The plan lists Joyce O. McReynolds as president and trustee. In 1996, the plan was amended to change the name of the plan from Harborage, Inc., 401(k) Plan to Harborage I, Ltd., 401(k) Plan and to change the name of the employer from Harborage, Inc., to Harborage I, Ltd. Joyce McReynolds signed the amendment as president and trustee. This is further evidence that the same individual managed Harborage, Inc., and Harborage I.
The evidence also demonstrates that there was centralized control of labor relations for Harborage, Inc., and Harborage I. In a July 31, 1995, letter written on Harborage I letterhead, Barbara J. Coyne identifies herself as director of human resources. In the letter, which was sent to Johns's attorney, Coyne acknowledges that Johns's EEOC complaint was investigated and the results were reported to the EEOC. Coyne states that "our" obligation to take action on the complaint was satisfied and that "Sexual Harassment is a matter we take very seriously at our company." Coyne also states that the sexual harassment policy statement that Johns signed[1] clearly directs employees to contact her in the event they experience harassment.
Coynes's letter demonstrates that that there was centralized control of labor relations for Harborage, Inc., and Harborage I because it indicates that as director of human resources for Harborage I, Coyne was responsible for handling sexual harassment *860 complaints made by employees of Harborage I and Harborage, Inc. Coyne also handled other labor relations matters for Gators employees. When Michelle Johnson left her employment at Gators, Coyne sent her the forms she needed to continue her health insurance.
The record also demonstrates that the fourth factor, common ownership, is met. Harborage, Inc., was the limited partner in Harborage I from 1991 until 1995. As the limited partner, Harborage, Inc., owned a 99% interest in the limited partnership. Therefore, the owners of Harborage, Inc., owned virtually all of Harborage I.
The evidence demonstrates that Harborage, Inc., and Harborage I were a single, integrated operation. The trial court did not err in concluding that Harborage I should be treated as Johns's employer for purposes of Title VII. Furthermore, because Minnesota courts have recognized that principles developed in federal Title VII cases are instructive and may be applied when interpreting the MHRA, Harborage I could be treated as Johns's employer under the MHRA. See Fahey, 525 N.W.2d at 572 (principles developed by federal courts in Title VII cases may be applied when interpreting Minnesota Human Rights Act).
II.
Harborage I argues that Johns was precluded from pursuing a Title VII discrimination claim against Harborage I because in her EEOC charge, she named Gators as her employer rather than Harborage I.
Ordinarily, a party not named in an EEOC charge cannot be sued in a subsequent civil action. Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989). The naming requirement serves to notify the charged party of the allegations and allows the party an opportunity to participate in conciliation and to comply voluntarily with the requirements of Title VII. Id. But defendants not named in an EEOC complaint may be sued under Title VII where they should have anticipated being named in a Title VII action arising from the complaint. Sosa v. Hiraoka, 920 F.2d 1451, 1459 (9th Cir.1990).
Harborage I had knowledge of Johns's EEOC complaint. Barbara Coyne, Harborage I's human resources director, handled the investigation of the complaint and treated the complaint as a complaint against her employer. Therefore, Harborage I should have anticipated that it would be named in a Title VII suit, and Johns's failure to name Harborage I as her employer in the EEOC complaint does not preclude her from pursuing a Title VII claim against Harborage I.
Harborage I also contends that Johns's claims under the MHRA are time-barred because Johns failed to bring an action against Harborage I within one year after the incident with Long. Harborage I does not dispute that Johns filed a claim with the MHRD within one year after the incident.
Under Minn.Stat. § 363.06, subd. 3 (1996), an MHRA claim for unfair discrimination must be filed in a charge with the commissioner within one year after the occurrence of the discriminatory practice. As is the case with Johns's Title VII claim, Johns's failure to name Harborage I as the employer in the charge filed with the commissioner does not prevent her from pursuing this action against Harborage I. Harborage I had notice of the MHRA claim and should have anticipated being named in an MHRA action.
III.
Harborage I argues that the trial court's conclusion that Harborage I maintained a sexually hostile work environment is not supported by the evidence because Johns admitted that she had no problems with her work environment before the incident with Long and Harborage I took appropriate remedial steps after that incident. Harborage I also argues that Johns may not rely on evidence of incidents between Long and other employees to prove a hostile work environment because she admitted that she was not aware of those incidents.
"Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." Meritor Sav. Bank, FSB v. Vinson, *861 477 U.S. 57, 65, 106 S. Ct. 2399, 2405, 91 L. Ed. 2d 49 (1986). "A plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." Id., 477 U.S.at 66, 106 S.Ct. at 2405. To establish a sexual harassment claim based on a hostile work environment, the plaintiff must show
(1) that the conduct in question was unwelcome, (2) that the harassment was based on sex, (3) that the harassment was sufficiently pervasive or severe to create an abusive working environment, and (4) that some basis exists for imputing liability to the employer.
Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir.1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir.1990).
To be actionable under Title VII, sexual harassment "must be sufficiently severe or pervasive `to alter the conditions of [the plaintiff's] employment and create an abusive working environment.'" Meritor, 477 U.S. at 67, 106 S.Ct. at 2405 (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir.1982)). Also,
a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.
Faragher v. City of Boca Raton, ___ U.S. ___, ___, 118 S. Ct. 2275, 2283, 141 L. Ed. 2d 662 (1998) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S. Ct. 367, 370-71, 126 L. Ed. 2d 295 (1993)).
Because Johns was not aware of Long's harassment of other female employees at Gators, she may not rely on those incidents to prove that she was subject to a sexually objectionable environment. See Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 782 (10th Cir.1995) (plaintiff may only rely on evidence relating to harassment of which she was aware during the time that she was allegedly subject to a hostile work environment because plaintiff could not subjectively perceive behavior towards others as creating a hostile work environment unless she knew about that behavior). But Johns did not have to rely on evidence of those incidents to prove that she was subject to unwelcome sexual harassment.
[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive relationship for purposes of Title VII liability.
Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2nd Cir.1995); (citing Meritor, 477 U.S. at 67, 106 S.Ct. at 2405); see also King v. Board of Regents, 898 F.2d 533, 537 (7th Cir.1990) (acknowledging that "a single act [of sexual harassment] can be enough" to state a hostile work claim under Title VII).
Long lured Johns into a storage closet where he exposed himself to Johns. When Johns refused Long's request that she remove her shorts, Long forcibly pulled down Johns's shorts, exposing her buttocks. When Johns slapped Long's hand and told him to stop, Long pulled down Johns's shorts again. Long's acts constituted a sexual assault that sufficiently altered the conditions of Johns's employment and created a hostile work environment. The trial court did not err in concluding that Johns was subjected to a hostile work environment.
Harborage I argues that Johns's testimony demonstrated that she did not find Long's conduct offensive because she did not leave the closet when Long exposed himself even though there was nothing blocking her path to the door. Instead, Johns engaged in conversation with Long and at some point, told him what kind of underwear she was wearing and showed him her underwear. Johns's testimony, however, does not demonstrate that she was not offended when Long grabbed her. To the contrary, Johns testified that she slapped Long's hand and told him to stop. Even if Johns could have taken steps to avoid Long's conduct, her failure to do so does not demonstrate that she was not offended when the conduct became more severe.
Harborage I also argues that there is no evidence to support the trial court's conclusion that it failed to take appropriate remedial measures to stop Long's harassment. Harborage I argues that as soon as it learned about the incident between Long and *862 Johns, it began an investigation that ultimately resulted in the termination of Long's employment, which was an adequate remedial measure. This argument, however, considers only Harborage I's conduct after Johns became a victim of Long's harassment.
In hostile work environment cases under Title VII, federal courts have imputed
liability to an employer who anticipated or reasonably should have anticipated that the plaintiff would become a victim of sexual harassment in the workplace and yet failed to take action reasonably calculated to prevent such harassment. An employer's knowledge that a male worker has previously harassed female employees other than the plaintiff will often prove highly relevant in deciding whether the employer should have anticipated that the plaintiff too would become a victim of the male employee's harassing conduct.
Paroline, 879 F.2d at 107 (citing Yates v. Avco, 819 F.2d 630, 636 (6th Cir.1987); Ross v. Double Diamond, Inc., 672 F. Supp. 261, 273 (N.D.Tex.1987))
An employer is liable for an employee's sexual harassment of another employee "if the employer had `actual or constructive knowledge of the existence of a sexually hostile working environment and took no prompt and adequate remedial action.'" Paroline 879 F.2d at 106 (quoting Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983)); see also Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir.1992) (same). An employer must take "prompt remedial action reasonably calculated to end the harassment." Davis v. Tri-State Mack Distrib., Inc., 981 F.2d 340, 343 (8th Cir. 1992).
Before Long assaulted Johns, Harborage I had notice of Long's inappropriate sexual behavior because Long had sexually harassed an assistant manager, Johnson. But Harborage I argues that Johnson took appropriate remedial measures when she orally reprimanded Long. Harborage I contends that the law does not require an employer to fire a harasser, and, therefore, Johnson's reprimand was sufficient to put Long on notice that his conduct was unacceptable and would not be tolerated.
This argument, however, considers only Harborage I's response to Long's harassment of Johnson. There is evidence that Harborage I should reasonably have known about Long's harassment of several other female employees at Gators and failed to respond to this harassment. Female employees testified that everyone knew about Long's offensive behavior and waitresses had to wear fanny packs to prevent Long from pulling down their shorts.[2] Even if Johnson's response to Long harassing her was an appropriate remedial measure, Harborage I should reasonably have known about Long's harassment of other employees and failed to respond to this harassment. The trial court did not err in concluding that Harborage I knew or should have known of Long's sexual harassment of its female employees but did not take proper remedial action.
IV.
A reviewing court will not disturb a damage award "unless its failure to do so would be shocking or would result in plain injustice." Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 199 (Minn.1986). A trial court does not abuse its discretion in awarding damages for discrimination as long as the award works to end illegal discrimination and makes the victim whole. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 95 S. Ct. 2362, 2371-72, 45 L. Ed. 2d 280 (1975).
Harborage I contends that Johns resigned her position at Gators because she believed that Buchanan was retaliating against her for reporting the harassment, not because Long sexually harassed her, and therefore, the evidence does not support the trial court's award of $25,000 in compensatory damages. However, Johns was not awarded damages for her loss of employment. The trial court *863 found that she did not prove her retaliation claim.
The trial court awarded Johns $25,000 "for the emotional damages suffered by virtue of the hostile work environment." This award was supported by Johns's testimony concerning her emotional damages, and we must give due regard to the trial court's ability to judge Johns's credibility. Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 598 (Minn. App.1995). Johns testified that (1) for several weeks after the incident, she had trouble sleeping; (2) her relationship with her boyfriend was affected and she was unable to have sexual relations for three to four months after the incident; (3) for months after the incident, she frequently broke into tears; (4) she is frightened to be approached from behind; (5) she is fearful to go into bars and cannot work as a waitress in a bar; and (6) her relationship with her nine-year-old son was affected by the incident. In light of this testimony, we cannot say that the award of $25,000 in compensatory damages was shocking or results in plain injustice.
V.
Harborage I argues that the trial court's award of $8,500 in punitive damages is contrary to the law and unsupported by the evidence.
Punitive damages
are imposed to punish the defendant and to deter him, and others like him, from intentional wrongs and deliberate disregard of the safety or rights of others.
Rosenbloom v. Flygare, 501 N.W.2d 597, 602 (Minn.1993). To receive punitive damages, a party must show by clear and convincing evidence that the defendant acted with "deliberate disregard for the rights or safety of others." Minn.Stat. 549.20, subd. 1(a) (1996).
The trial court did not find, nor does the record demonstrate by clear and convincing evidence, that Harborage I acted with deliberate disregard for Johns's rights or safety. The trial court found that Harborage I knew, and should have known, of Long's longstanding pattern of harassment but did not take proper remedial action. This is the language of negligence, and punitive damages are not recoverable where the wrongful conduct is merely negligent. Cobb v. Midwest Recovery Bureau Co., 295 N.W.2d 232, 237 (Minn.1980). We reverse the $8,500 punitive damages award.
VI.
Harborage I argues that the trial court abused its discretion in awarding $65,894.46 in attorney fees and costs. Harborage I contends that even if Johns has a viable claim, an award of $65,894.46 was excessive because a review of the statements submitted by Johns in her motion for fees and costs shows that the majority of the requested fees were redundant and excessive.
A trial court's decision on the reasonableness of attorney fees is subject to review under an abuse of discretion standard. Giuliani v. Stuart Corp., 512 N.W.2d 589, 596 (Minn.App.1994). In determining the proper amount of attorney fees to award, a trial court should employ the two-step analysis set forth in Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S. Ct. 1933, 1939-40, 76 L. Ed. 2d 40 (1983). First, the trial court should determine the "`lodestar'" figure "by multiplying the `number of hours reasonably expended on the litigation * * * by a hourly rate.'" Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 628 (Minn.1988) (quoting Hensley, 461 U.S. at 433, 103 S.Ct. at 1939) (omission in original). Second, the court must consider the results obtained in determining whether to adjust the fee upward or downward. Hensley, 461 U.S. at 434, 103 S.Ct. at 1940. When the reasonableness of attorney fees is challenged, the trial court must "provide a `concise but clear explanation of its reasons for the fee award.'" Anderson, 417 N.W.2d at 629 (quoting Hensley, 461 U.S. at 437, 103 S.Ct. at 1941).
The record demonstrates that the trial court considered the results obtained, the difficulty of the case, the contingent nature of the results, and the quality of representation in arriving at the figure of $59,586.44 for attorney fees and $6,308.02 for reasonable costs. The trial court made detailed findings that (1) the hourly rates claimed by Johns's counsel were reasonable; (2) Johns's counsel *864 reduced the amount of fees requested to reflect time spent on unsuccessful claims; (3) there was a great deal of duplication in Johns's attorneys' billing records, and those fees should not be awarded; (4) the case did not present novel or particularly complex legal issues; (5) defendants created "a good deal of the need for [Johns's attorneys] to expend a greater than expected number of hours on this file" by informing Johns, a week before the first scheduled trial, that they were "mistaken" about the employer's identity, and then filing bankruptcy, requiring Johns's counsel to undertake investigation in and outside of bankruptcy court; and (6) Johns's attorneys' efforts substantially improved their clients' recovery.
Because the trial court followed the procedures outlined in Hensley and its detailed findings support its award of attorney fees, we cannot say that the trial court abused it broad discretion in awarding Johns $65,894.46 for reasonable costs and attorney fees.
DECISION
The trial court properly treated Harborage I and Harborage, Inc., as a single employer. Johns's failure to name Harborage I as a party in the complaints she filed with the EEOC and the MHRD did not preclude her from bringing a discrimination action against Harborage I. Long's sexual assault of Johns was conduct sufficiently severe to alter the conditions of Johns's work environment and create an abusive work environment. Harborage I reasonably should have known about Long's pattern of sexual harassment and reasonably should have anticipated that Long would sexually harass additional employees. Harborage I failed to take action reasonably calculated to prevent Long from sexually harassing Johns. The evidence supports the award of compensatory damages. Because there is not evidence that Harborage I acted with deliberate indifference to Johns's rights and safety, the evidence does not support the punitive damages award. The trial court did not abuse its discretion in awarding attorney fees and costs.
Affirmed in part and reversed in part.
NOTES
[1] This policy statement was printed on Harborage, Inc., letterhead.
[2] Although Hirase-Doi, 61 F.3d at 782, precludes Johns from relying on the harassment of other coworkers to demonstrate a hostile work environment, she may rely on this evidence to prove that Harborage I had notice of Long's behavior and negligently failed to take appropriate action to prevent Long from assaulting Johns. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920275/ | 337 A.2d 243 (1975)
May E. LALLY
v.
AUTOMOBILE MUTUAL INSURANCE COMPANY OF AMERICA et al.
No. 73-283-Appeal.
Supreme Court of Rhode Island.
May 8, 1975.
*244 Gunning, LaFazia, Gnys & Selya, Inc., Raymond A. LaFazia, Providence, for plaintiff.
Hanson, Curran, Bowen & Parks, Providence, A. Lauriston Parks, David P. Whitman, Providence, of counsel, for defendant, Factory Mut. Liability Ins. Co.
OPINION
JOSLIN, Justice.
The plaintiff, the named insured under an automobile liability policy issued by defendant, sues under the policy's medical payments[1] and uninsured motorists[2] provisions to recover for damages suffered when she was struck by an uninsured vehicle as she was walking on the sidewalk on Norwood Avenue in the city of Cranston on May 14, 1971. The case was tried before a judge and jury in the Superior Court, and at the close of the plaintiff's case the defendant's motion for a directed verdict was granted. The plaintiff appealed.
The medical payments and uninsured motorists provisions of the policy sued *245 upon exclude from their coverage, in substance, bodily injury sustained by the named insured through being struck by equipment designed for use principally off "public roads," unless at the time of the accident causing those injuries an ordinarily excluded vehicle was operating on a "public road." The questions generated by this appeal are whether those exclusions apply in this case and, if not, whether the vehicle causing plaintiff's injuries was an "automobile" within the contemplation of the recovery provisions upon which plaintiff bases her claims.[3]
The plaintiff was struck by what for want of a better characterization may be described as a "go-cart." It was a simple, homemade contraption, which the operator steered by manipulating the front axle with his feet. It lacked lights, directional signals, a rearview mirror, a horn, and a proper braking system. It was constructed of plywood, two-by-fours, and wheels, and had an old lawn mower engine attached in the back, which may or may not have been operational at the time plaintiff was injured.
A vehicle thus designed and constructed, even if not built by children, in our opinion could only be regarded reasonably as a recreational vehicle designed for use in areas remote from ordinary vehicular traffic by children too young, presumably, to obtain operators' licenses needed to drive conventional automobiles. Indeed, plaintiff makes no assertion that the go-cart was designed or intended to be used in places other than sidewalks, private driveways, and the like, but contends instead that a sidewalk is part of a "public road" as that term is used in either the main portions or the provisos of the exclusionary clauses.
In testing that contention we are mindful of cases holding that for some purposes a sidewalk is as much a part of a highway or public road as is the area between the curbings designed principally for vehicular traffic. See, e.g., Martinovich v. Wooley, 128 Cal. 141, 60 P. 760 (1900); City of Frankfort v. Coleman, 19 Ind. App. 368, 372, 49 N.E. 474, 475 (1898); People v. Meyer, 26 Misc. 117, 119, 56 N.Y.S. 1097, 1099 (1899); Kobelinski v. Milwaukee & Suburban Transp. Corp., 56 Wis. 2d 504, 510, 202 N.W.2d 415, 419 (1972). These cases, however, do not involve the construction of the term "public road" as used in this or like insurance policies, but relate to particular legislative enactments regulating the use, maintenance, and care of roads or highways. Here, in contrast, our concern is only with what the parties meant by the term "public road." It is, after all, a term of common parlance and must therefore be accorded its plain, ordinary, and usual meaning, Aldcroft v. Fidelity Cas. Co., 106 R.I. 311, 321, 259 A.2d 408, 415 (1969); Nagy v. Lumbermens Mut. Cas. Co., 100 R.I. 734, 737, 219 A.2d 396, 398 (1966), and be deemed to have been "* * * written in the sense in which the insurer had reason to believe it would be interpreted by the ordinary reader and purchaser." Joslin v. Aetna Life Ins. Co., 67 R.I. 261, 265, 21 A.2d 550, 552 (1941).
Used in this context a "public road" connotes that portion of the public way ordinarily used for vehicular traffic, in contradistinction to the "sidewalk" area between the curb lines and adjacent property lines customarily designed for and used by pedestrians. In our view, this is undoubtedly the meaning that an average reader or purchaser of a policy like the one in issue would attribute to that term. Certainly, it is the one he would intend to convey if he told his child to walk on the sidewalk and stay out of the road. Accordingly, it is our conclusion that this language, as used in these circumstances, ought to be so construed, Joslin v. Aetna Life Ins. Co., supra, and that the exclusions apply. Because that determination is dispositive of this case, we do not reach the question of whether the go-cart causing *246 the injuries was an "automobile" a fact the parties dispute within the meaning of the uninsured motorists and medical payments provisions of the policy in issue.
The plaintiff's appeal is denied and dismissed, the judgment appealed from is affirmed, and the case is remitted to the Superior Court for further proceedings.
NOTES
[1] Under the "medical payments" provision, defendant obligates itself:
"To pay all reasonable expenses * * * for necessary medical * * * services * * * [t]o or for the named insured * * * who sustains bodily injury * * * caused by accident * * * through being struck by an automobile * * * of any type." (Emphasis added.)
Excluded from coverage is:
"* * * bodily injury * * * sustained by the named insured * * * through being struck by (1) a farm type tractor or other equipment designed for use principally off public roads, while not upon public roads * * *."
[2] The "uninsured motorists" provision requires the insurer:
"To pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury * * *." (Emphasis added.)
In this provision an "uninsured automobile" is defined as not including:
"(5) a farm type tractor or equipment designed for use principally off public roads, except while actually upon public roads."
[3] See notes 1 and 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620316/ | 585 N.W.2d 192 (1998)
STATE of Iowa, Appellee,
v.
Rodney Lee CEASER, Appellant.
No. 97-1754.
Supreme Court of Iowa.
September 23, 1998.
*193 Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and D. Raymond Walton, Assistant County Attorney, for appellee.
Considered by McGIVERIN, C.J., and CARTER, LAVORATO, NEUMAN, and TERNUS, JJ.
TERNUS, Justice.
A jury found the defendant, Rodney Lee Ceaser, guilty of second-degree robbery, see Iowa Code §§ 711.1, .3 (1997), and the trial court sentenced him to a mandatory ten-year term of imprisonment, see id. §§ 902.9(3),.12. Ceaser appeals his conviction and sentence, contending (1) the trial court erroneously refused to instruct the jury on his claim of self-defense, and (2) Iowa Code section 902.12, which requires that he serve 100% of the maximum sentence without the possibility of parole or work release, violates the Equal Protection Clause of the federal and state constitutions. See U.S. Const. amend. XIV, § 1; Iowa Const. art. 1, § 6. The State claims error was not preserved on the latter issue. In response, Ceaser asserts his trial counsel rendered ineffective assistance if error was not preserved. We affirm.
I. Background Facts and Proceedings.
In May 1997, employees of Ray's SuperValu stopped Ceaser for shoplifting $30 worth of steak. Jason Robinson, the store manager, observed Ceaser put a quantity of meat down the front of his pants. Robinson confronted Ceaser and asked Ceaser to step to the back room with him, stating to Ceaser that he thought Ceaser had some stolen goods. Ceaser denied taking anything and quickly strode toward the exit. Another employee, Matt Bullerman, grabbed Ceaser and wrestled him to the floor. Ceaser struggled against the restraint by "throwing punches." During this tussle, the stolen meat came out of Ceaser's pants, coming to rest on the floor, and Robinson's glasses were knocked off.
Once Robinson and Bullerman had Ceaser under control, they proceeded to a back storeroom. On the way there and twice in the storeroom, Ceaser tried to escape. During the last attempt he successfully bolted from the storeroom, but Bullerman caught him in one of the aisles. Another struggle occurred in which Bullerman sustained a minor eye injury. Soon thereafter, the police arrived and Ceaser gave up his resistance.
The State charged Ceaser with second-degree robbery. Ceaser presented no evidence during trial, but did request a jury instruction on justification as a defense to the assault element of robbery. See Iowa Code §§ 704.3, 711.1(1). The court denied this request, holding in part that there was not substantial evidence to support the instruction. The jury returned a guilty verdict and the court imposed a mandatory ten-year sentence, specifically informing Ceaser that he was subject to the more onerous penalty imposed by section 902.12. Ceaser appeals.
II. Self-Defense Instruction.
We review a challenge to the district court's refusal to submit a jury instruction for correction of errors of law. See State v. Rains, 574 N.W.2d 904, 915 (Iowa 1998). If substantial evidence exists showing that an affirmative defense applies, the trial *194 court must instruct on the defense. See id. Although the burden to disprove self-defense rests with the State, the defendant bears the burden of demonstrating that the record contains sufficient evidence to support an instruction on this issue. See State v. Lawler, 571 N.W.2d 486, 489 (Iowa 1997).
To understand the nature of the affirmative defense asserted by Ceaser, it is helpful to begin with a discussion of the underlying offense of second-degree robbery. The court submitted this charge under the first two alternatives of the general definition of robbery contained in the Iowa Code:
A person commits a robbery when, having the intent to commit a theft, the person does any of the following acts to assist or further the commission of the intended theft or the person's escape from the scene thereof with or without the stolen property:
1. Commits an assault upon another.
2. Threatens another with or purposely puts another in fear of immediate serious injury.
Iowa Code § 711.1. The element implicated in the justification defense asserted by Ceaser is the assault element of robbery.
Iowa Code section 708.1 defines an assault in part as "[a]ny act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act" when done "without justification." Id. § 708.1(1). The "without justification" language of section 708.1 gives rise to the affirmative defense of justification to a charge of assault. See State v. Delay, 320 N.W.2d 831, 834 (Iowa 1982). The justification of self-defense, upon which Ceaser relies, is found in Iowa Code chapter 704: "A person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force." Iowa Code § 704.3.
At this point, it is helpful to turn to the facts of the present case. We think the critical issue here is whether Ceaser reasonably believed that his assaultive actions were necessary to defend himself from an "imminent use of unlawful force." This issue requires us to focus on the actions of the store employees toward Ceaser and to decide whether those actions could be fairly characterized as the use of "unlawful force."
At the time Robinson and Bullerman apprehended Ceaser, they were acting under the authority of Iowa Code section 808.12(1). This statute allows a merchant's employee to detain and search a shoplifter. See id. § 808.12(1) ("Persons concealing property... may be detained and searched by a ... merchant's employee ...."). In deciding exactly what force, if any, a merchant's employee may use to detain a shoplifter, we look first to the ordinary meaning of the word "detain." See State v. White, 545 N.W.2d 552, 555 (Iowa 1996) ("When examining a statutory term, we give words their ordinary meaning, absent any legislative definition or particular meaning in the law."). "Detain" is defined in the dictionary as "to hold or keep in or as if in custody" and "to restrain esp. from proceeding: hold back: STOP." Webster's Third New International Dictionary 616 (unabrid. ed.1993).
By authorizing merchants' employees to restrain shoplifters or hold them "in custody," the legislature must have contemplated the use of reasonable force to accomplish the detention. Such force would logically be that which would be permissible to prevent criminal interference with one's possession of property because the person being detaineda shoplifteris interfering with a property right. Therefore, we turn to an examination of the force permitted to protect one's interest in property.
Iowa Code section 704.4 allows the use of "reasonable force to prevent or terminate criminal interference with the person's possession or other right in property." "`Reasonable force' is that force and no more which a reasonable person, in like circumstances, would judge to be necessary to prevent an injury or loss...." Iowa Code § 704.1.
Applying the foregoing rules and definitions to this case, we conclude the store employees were lawfully entitled to use reasonable *195 force to stop Ceaser from leaving the store. Viewing the facts of this case in light of this standard, we find insufficient evidence that Robinson and Bullerman used unreasonable force to restrain Ceaser when he refused Robinson's request to accompany Robinson to the back of the store. There was no testimony that Ceaser was harmed in any way or that the store employees used any force beyond that necessary merely to detain Ceaser.
Because the force used by the employees was lawful, there is no basis upon which a jury could find that Ceaser reasonably believed his assaultive actions were necessary to defend himself from an "imminent use of unlawful force." Consequently, the trial court was correct in ruling that the evidence was insufficient to warrant an instruction on self-defense.
III. Error Preservation on Equal Protection Claim.
Ceaser contends Iowa Code section 902.12, which requires that he serve his entire sentence, violates the Equal Protection Clauses of the United States and Iowa Constitutions. The State asserts Ceaser failed to preserve error on this issue in the district court. In response, Ceaser claims his sentence is void and, therefore, the normal error preservation rules are not applicable. See State v. Austin, 503 N.W.2d 604, 607 (Iowa 1993) (holding the requirement of error preservation does not bar review on appeal "when the appeal is from an illegal or void sentence").
The exclusion of illegal sentences from the principles of error preservation is limited to those cases in which a trial court has stepped outside the codified boundaries of allowable sentencing. See State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995). In other words, the sentence is illegal because it is "beyond the power of the court to impose." State v. Wilson, 294 N.W.2d 824, 825 (Iowa 1980); accord State v. McCright, 569 N.W.2d 605, 608 (Iowa 1997). In the case before us the trial court is not criticized for departing from the sentencing authorized by law, but rather for sentencing Ceaser in accordance with the law. Thus, Ceaser's sentence is not illegal or void, even though it may be subject to a constitutional challenge. See McCright, 569 N.W.2d at 608. Consequently, Ceaser's equal protection claim is governed by our normal error preservation rules.
It is clear from the record that Ceaser's trial counsel did not make a constitutional challenge to the sentencing statutes in the district court. Therefore, any error with respect to this issue was not preserved for our review. See id. at 607. Our discussion does not end here, however, because Ceaser claims his trial counsel was ineffective in failing to make such a challenge. We address that issue next.
IV. Ineffective-Assistance-of-Counsel Claim.
A. General principles. We review the totality of relevant circumstances de novo when a defendant claims ineffective assistance of counsel. See State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987). To prevail on his ineffective-assistance-of-counsel claim, Ceaser must prove the following two conditions by a preponderance of the evidence: "(1) his trial counsel failed in an essential duty, and (2) prejudice resulted from counsel's error." State v. Arne, 579 N.W.2d 326, 328-29 (Iowa 1998). Although such claims are ordinarily preserved for postconviction relief actions, we will consider them on direct appeal if the record is adequate. See State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998). We find the record here sufficient to determine that Ceaser's counsel did not render ineffective assistance. Consequently, we will decide Ceaser's ineffective-assistance-of-counsel claim on this direct appeal.
To prove that his trial counsel failed in an essential duty, Ceaser must show that "his attorney's performance fell outside the normal range of competency." State v. Henderson, 537 N.W.2d 763, 765 (Iowa 1995). Trial counsel is not incompetent in failing to pursue a meritless issue. See McPhillips, 580 N.W.2d at 754. Consequently, we now consider whether there is any merit to Ceaser's argument that section 902.12 violates the Equal Protection Clause.
B. Merits of equal protection claim. Iowa Code section 902.12 states that a person *196 serving a sentence for certain specified crimes, including robbery in the second degree, "shall serve one hundred percent of the maximum term of the person's sentence and shall not be released on parole or work release."[1] Ceaser points out that this statute applies to some, but not all, forcible felonies. He argues that including second-degree robbery in section 902.12, "while not including other forcible felonies," is a violation of his equal protection rights under the federal and state constitutions. See U.S. Const. amend XIV, § 1; Iowa Const. art. 1, § 6. We apply the same analysis in considering the state equal protection claim as we do in considering the federal equal protection claim. See State v. Bell, 572 N.W.2d 910, 911 (Iowa 1997).
1. Analytical framework. Because a suspect classification is not implicated, we apply the rational basis standard in evaluating section 902.12. See State v. Fagen, 323 N.W.2d 242, 243 (Iowa 1982). Under this standard, section 902.12 is constitutional if the classification made by this statute "is a reasonable one and operates equally upon all within the class." Bell, 572 N.W.2d at 912. We will uphold a classification "if any state of facts reasonably can be conceived to justify it." McMahon v. Iowa Dep't of Transp., 522 N.W.2d 51, 57 (Iowa 1994).
The legislature enjoys broad discretion in defining and classifying criminal offenses. See State v. Ragland, 420 N.W.2d 791, 794 (Iowa 1988). Despite the discretion accorded the legislature in this area, "[u]nquestionably, [the] classification must be based upon some apparent difference in situation or circumstance of the subjects placed within one class or the other which establishes the necessity or propriety of distinction between them." Chicago Title Ins. Co. v. Huff, 256 N.W.2d 17, 29 (Iowa 1977). Thus, with respect to sentencing statutes, the legislature is free to impose disparate punishments for different crimes so long as the offenses are distinguishable on their elements. See Delaney v. Gladden, 397 F.2d 17, 19 (9th Cir.1968); State v. Montoya, 196 Colo. 111, 582 P.2d 673, 676 (Colo.1978) (en banc). In other words, if the elements of the offenses are not the same, persons committing the crimes are not similarly situated and, therefore, may be treated differently for purposes of the Equal Protection Clause. See generally City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313, 320 (1985) (stating that the Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike"); 21 Am.Jur.2d Criminal Law § 594, at 982 (1981) (stating equal protection "requires that in the administration of criminal justice no person be subjected to a greater or different punishment for an offense than that to which others of the same class are subjected").
2. Reasonableness of classification. In considering the reasonableness of the classification made by the legislature in section 902.12, we look for a difference between second-degree robbery and the forcible felonies not subject to this sentencing statute to discern whether there is a distinction that reasonably accounts for the classification made by the legislature. Our analysis begins with an examination of the sentencing scheme of which section 902.12 is a part.
Section 702.11 classifies certain offenses as forcible felonies. These offenses, with certain exceptions not pertinent here, are "felonious child endangerment, assault, murder, sexual abuse, kidnapping, robbery, arson in the first degree, or burglary in the first degree." Iowa Code § 702.11. Although section 907.3 provides generally for deferred judgments, deferred sentences and suspended sentences, forcible felonies are specifically excluded from these options. See id. § 907.3. Consequently, persons convicted of forcible felonies are subject to mandatory imprisonment. These persons can, however, be released on parole, see id ch. 906, with two exceptions or qualifications we shall now discuss.
Persons convicted of class "A" felonies must serve a life sentence and cannot be released on parole "unless the governor commutes *197 the sentence to a term of years." Id. § 902.1. Class "A" felonies include first-degree murder, first-degree sexual abuse, and first-degree kidnapping. See id. §§ 707.2, 709.2, 710.2.
A second subclass of forcible felonies is created by section 902.12. This statute provides that persons sentenced for certain specified forcible felonies must serve 100% of the maximum term of the person's sentence and cannot be released on parole or work release. See id. § 902.12. The forcible felonies listed in section 902.12 are second-degree murder, second-degree sexual abuse, second-degree kidnapping, first-degree robbery, and second-degree robbery. See id. These crimes, with the exception of robbery in the second degree, are class "B" felonies. See id. §§ 707.3, 709.3, 710.3, 711.2. Robbery in the second degree is a class "C" felony. See id. § 711.3.
The forcible felonies not within the two subclasses identified above comprise a third subclass. Persons committing crimes falling in this subclass are not required to serve any specific portion of the sentence imposed, and they are eligible for parole and work release.[2]See generally id. § 906.5(1).
Turning now to the constitutional challenge made in this case, the question we must answer is whether the distinction made between second-degree robbery and the forcible felonies falling in the third subclass is reasonableis the different treatment accorded these crimes "based upon some apparent difference in situation or circumstance... which establishes the necessity or propriety of distinction between them"? Huff, 256 N.W.2d at 29.
Before we engage in a comparison of second-degree robbery with other forcible felonies, it is helpful to review the elements of this offense. The requirements for the crime of robbery are stated in section 711.1:
A person commits a robbery when, having the intent to commit a theft, the person does any of the following acts to assist or further the commission of the intended theft or the person's escape from the scene thereof with or without the stolen property:
1. Commits an assault upon another.
...
Iowa Code § 711.1(1). An "assault" is "[a]ny act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act." Id. § 708.1(1).
It is also helpful for purposes of understanding Ceaser's argument to know the distinction between robbery in the first degree and robbery in the second degree. Robbery in the second degree is defined as follows: "[a]ll robbery which is not robbery in the first degree is robbery in the second degree." Id. § 711.3. "A person commits robbery in the first degree when, while perpetrating a robbery, the person purposely inflicts or attempts to inflict serious injury, or is armed with a dangerous weapon." Id. § 711.2. Thus, robbery in the second degree occurs when (1) a person intends to commit a theft and, (2) in order to accomplish the theft or an escape from the crime scene, (3) the person commits an assault (4) without purposely inflicting or attempting to inflict serious injury and when not armed with a dangerous weapon.
We now turn to a comparison of the elements of second-degree robbery with the elements of the crimes not encompassed within section 902.12. Such an examination reveals that the elements of those offenses not included within section 902.12 are different from the elements of second-degree robbery that we have just reviewed. Compare Iowa Code §§ 711.1, .3 (robbery in the second degree), with id. § 708.3 (assault while participating in a felony), id. § 708.4 (willful injury), id. § 708.6 (terrorism), id. § 709.4 (sexual abuse in the third degree), id. § 710.4 (third-degree kidnapping), id. § 712.2 (arson in the first degree), id. § 713.3 (burglary in the first degree), and id. § 726.6(2) (felonious child endangerment).
*198 Ceaser argues, however, that many of the crimes not included in section 902.12 require the infliction of serious injury or the use of a dangerous weapon, elements not present in second-degree robbery. Ceaser is correct that the crimes of class "C" assault while participating in a felony, willful injury, and felonious child endangerment require that the offender's conduct result in serious injury. See id. §§ 708.3, 708.4, 726.6(2). Class "C" terrorism requires the use of a dangerous weapon with the intent to injure or provoke fear or anger in another. See id. § 708.6. Class "C" assault with intent to commit sexual abuse requires that the offender commit an assault with the intent to commit sexual abuse and cause serious injury. See id. § 709.11. Although the requirements of serious injury and use of a dangerous weapon are absent in second-degree robbery, robbery combines an intent to commit a property offense with a crime against a person (intent to commit a theft and assault), so on this basis it is distinguishable from those crimes cited by Ceaser that do not include the infringement of a property right. The legislature could reasonably conclude that persons who are willing to use force to accomplish a theft, even when that force has not resulted in serious injury or does not involve a dangerous weapon, pose a greater risk to society than persons whose assaultive behavior is not used as a means to accomplish another crime.
This explanation does not, however, fully differentiate the crimes of assault with intent to commit sexual abuse and assault while participating in a felony from the crime of robbery in the second degree. Consequently, we briefly address these crimes separately.
As its name suggests, the crime of assault with the intent to commit sexual abuse requires an assault done "with the intent to commit sexual abuse." Id. § 709.11. "Sexual abuse" is a separate crime from "assault." See generally id. ch. 709. Although section 709.11 does not specifically require that the assault be motivated, as opposed to merely accompanied, by the desire to perpetrate sexual abuse, such a connection seems inherent in the crime. Notwithstanding that the crime of assault with intent to commit sexual abuse may entail an assault motivated by the intent to commit another crime, as does robbery, the crime of assault with intent to commit sexual abuse is still distinguishable from robbery. Sexual abuse is an assaultive crime against a person, see id. § 709.1, and, in this respect, the assault required by section 709.11 is merely a means to accomplish another crime against the person. In contrast, a person committing robbery uses the assault to commit a crime different in nature rather than degreethe property crime of theft. Thus, there exists a reasonable basis for the legislature to consider the crime of robbery as having a broader social impact and, therefore, deserving of a greater punishment. It is exactly this type of judgment call that comes within the wide latitude accorded the legislature in deciding the appropriate punishment for criminal offenses. See Collins v. Johnston, 237 U.S. 502, 510, 35 S. Ct. 649, 653, 59 L. Ed. 1071, 1079 (1915) ("But it is hardly necessary to say that the comparative gravity of the criminal offenses, and whether their consequences are more or less injurious, are matters for the state itself to consider.").
The only other crime that does not appear readily distinguishable from robbery is the offense of assault while participating in a felony. That crime is defined as follows:
Any person who commits an assault as defined in section 708.1 while participating in a felony other than a sexual abuse is guilty of a class "C" felony if the person thereby causes serious injury to any person; if no serious injury results, the person is guilty of a class "D" felony.
Id. § 708.3. Thus, assault while participating in a felony requires (1) participation in a felony other than sexual abuse and (2) an assault. This crime does not require that the defendant actually commit the predicate felony. See State v. Mead, 318 N.W.2d 440, 446 (Iowa 1982) ("a person may participate in an offense although he does not commit it"); Iowa Code § 702.13 (defining the phrase "participating in a public offense").
When we compare assault while participating in a felony with second-degree robbery, we see that they share a common, identical *199 element; both require an assault as defined in section 708.1. The similarity between these crimes ends there, however. Robbery requires an intent to commit a theft; assault while participating in a felony requires actual participation in a felony. Although a comparison of these elements may indicate that assault while participating in a felony is a more serious crime, such a conclusion would ignore the requirement in the robbery statute that the assault be used as a means to accomplish the intended theft or an escape from the crime scene. See Iowa Code § 711.1 (stating the defendant must commit an assault "to assist or further the commission of the intended theft or the person's escape from the scene thereof"). A similar requirement is not present in the crime of assault while participating in a felony. A person convicted of the latter crime need not perpetrate the assault to further commission of the felony or the person's escape from the scene of the felony. As we have already observed, the legislature could reasonably conclude that one who is willing to use unreasonable force to accomplish another crime without being apprehended is more dangerous than a person committing an assault without this illegal goal.
We do not overlook the fact that two crimes not included within section 902.12 arson in the first degree and burglary in the first degreeinclude both a property offense and a risk of harm to persons, as does second-degree robbery. Arson in the first degree occurs when, in general terms, a person causes a fire with the intent to destroy or damage property and "the property which the defendant intends to destroy or damage... is property in which the presence of one or more persons can be reasonably anticipated, or the arson results in the death of a fire fighter...." Id. §§ 712.1, .2. A person commits burglary in the first degree when, again in general terms, the person enters an occupied structure with the intent to commit a felony, assault, or theft therein and "one or more persons are present [in the structure], the person has possession of an explosive or incendiary device or material, or a dangerous weapon, or [the person] intentionally or recklessly inflicts bodily injury on any person." Id. §§ 713.1, .3. Unlike robbery, these crimes do not require an assault that assists or furthers the commission of another crime or the defendant's escape from the scene of the crime. Consequently, there is a difference between the conduct being punished by the arson and burglary statutes and the conduct punished by the robbery statutea difference upon which the legislature may reasonably base disparate punishments.
Because there is a rational basis for the legislature's inclusion of second-degree robbery within section 902.12, this court is not at liberty to declare the classification unconstitutional. Once it is established, as here, that the crimes treated differently address different criminal conduct, it is for the legislature to decide how the differing conduct will be punished. See Collins, 237 U.S. at 510, 35 S.Ct. at 653, 59 L.Ed. at 1079 (stating that "the comparative gravity of the criminal offenses, and whether their consequences are more or less injurious" are for the state legislatures to decide). See generally Reed v. Reed, 404 U.S. 71, 75, 92 S. Ct. 251, 253, 30 L. Ed. 2d 225, 229 (1971) ("[T]he Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways.").
3. Equal operation on members of the class. As noted earlier, not only must a classification be reasonable, it must operate equally upon all within the class. That requirement is met here. All persons convicted of second-degree robbery are subject to a mandatory term of imprisonment without the possibility of parole or work release. See Harris v. State, 386 So. 2d 393, 396 (Miss. 1980) (holding there was no "invidious class discrimination" in statute denying parole to all persons convicted of robbery with an exposed firearm, in part because all persons convicted of this crime were treated alike).
V. Disposition.
We have found no basis to disturb Ceaser's conviction. Because the force used by the store employees was not unlawful, Ceaser was not justified in using force against them. Accordingly, the trial court correctly refused to instruct on self-defense as a justification for Ceaser's assault.
*200 We also find no merit in Ceaser's equal protection challenge to Iowa Code section 902.12 insofar as it treats second-degree robbery differently than the forcible felonies not encompassed within that statute. Persons committing the criminal offenses not included in the classification established by section 902.12 are not situated similarly to Ceaser because the crimes of which they are guilty are distinguishable from second-degree robbery. Therefore, the legislature may punish Ceaser more severely than those persons committing crimes not included in section 902.12.
AFFIRMED.
CARTER, Justice (concurring specially).
I fully concur in the conclusions reached in the opinion of the court and in the result. I write separately to express my view that it is not necessary in order to reject the defendant's equal protection claim to identify similarities and differences between different crimes and reconcile the differing sentences provided therefor. The legislature has total discretion in that regard, and no equal protection claim should be recognized with respect to different punishments for different statutory crimes. If a particular statutory sentence is to be challenged as being too severe, this must be done by a proportionality challenge under the Eighth Amendment to the federal constitution.
NOTES
[1] This rule is modified somewhat by Iowa Code § 903A.2, which allows a reduction in a § 902.12 sentence for good conduct time, but not in excess of fifteen percent of the sentence. See Iowa Code § 903A.2. Sections 903A.2 and 902.12 are not inconsistent, as might appear at first blush, because § 903A.2 addresses the length of the sentence, whereas § 902.12 is concerned with whether the offender must serve the entire sentence.
[2] There are, however, other statutes not pertinent here that can affect the length of a forcible felon's sentence and the offender's eligibility for parole. See, e.g., Iowa Code §§ 902.8 (habitual offender status), .11 (commission of a prior forcible felony). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620357/ | 294 S.W.2d 385 (1956)
GENERAL TELEPHONE COMPANY OF THE SOUTHWEST, Petitioner,
v.
CITY OF WELLINGTON et al., Respondents.
No. A-5395.
Supreme Court of Texas.
October 3, 1956.
Rehearing Denied November 7, 1956.
Don S. Holdridge, San Angelo, Joe A. Keith, Sherman, for petitioner.
Paul Spillman, City Atty., Wellington, for respondent.
*386 GARWOOD, Justice.
The subject matter of this suit is that of temporary injunctions in telephone rate disputes arising under Art. 1119, Vernon's Tex.Civ.Stats., copied in footnote.[1]
Our petitioner, General Telephone Company of the Southwest (plaintiff below) complains of the denial by the trial court and Amarillo Court of Civil Appeals of a temporary injunction restraining the respondents, City of Wellington, its Mayor and City Council members (defendants below) from requiring, by prosecution under a penalty ordinance (No. 332, approved August 24, 1954) or otherwise, the observance by petitioner of the terms of a rate ordinance (No. 333 approved September 14, 1954) fixing the charges for petitioner's local telephone service rendered "subscribers residing within the city limits of the City of Wellington". The judgment as here complained of also refused to restrain the respondents City and others "From interfering in any way with the plaintiff incollecting fair and reasonable charges for telephone service in the City of Wellington, Texas, until such time as the defendant City Council shall prescribe fair and reasonable rates and charges." For the opinion of the appellate court see 279 S.W.2d 922. As hereinafter further explained, we think this action was erroneous.
Actually the suit began prior to the passage of the rate ordinance in question (No. 333, supra), but while it was pending the petitioner made representations to the respondents in their official capacity for an increase in rates. Thereafter Ordinance No. 333 was passed providing an increase which, while substantial, was yet not sufficient in the view of the petitioner to make its permitted return nonconfiscatory.
Petitioner's pleadings contemplated that, if the temporary injunction were granted, petitioner would proceed, pending further action of the City, to collect such charges as petitioner should itself fix as reasonable, and in this behalf offered to put up an adequate bond guaranteeing the return to each subscriber of any overcharges which might develop to have been such as the result of the final decree.
Petitioner's pleadings, which were duly verified and accompanied by affidavits, including financial statements and calculations, alleged in brief that the rates prescribed by Ordinance No. 333 would result in a return to it of somewhat less than 2% of the fair value of its properties employed in the business.
These allegations and figures were all upon the basis of the so-called "Wellington, Texas, Local Exchange", an enterprise or activity of the petitioner, being a single telephone exchange, furnishing ordinary local call service at regular monthly rates to all subscribers in the community centering in and including the City of Wellington. Although the "exchange" thus necessarily included a substantial amount of property and number of subscribers located outside the city limits, the profit and loss accounting was kept, and the petitioner's instant case was presented for all practical purposes, like that of any other single community business would have been run and accounted for, that is, as if the city limit lines did not exist.
*387 The pleadings of the respondents included a sworn plea in abatement, many pages of special exceptions, and an unsworn answer consisting of a general denial and other matters not now necessary to mention.
Nowhere did the respondents plead under oath (or otherwise unless as a result of the general denial) that the ordinance rates were reasonable or nonconfiscatory, or that any of the figures submitted by the petitioners as to valuation of properties or otherwise were erroneous or that any sort of separation of accounts of the properties and operations exclusively within the city from those without would have shown the ordinance rates to have been reasonable.
Upon the hearing the petitioner telephone company supported its sworn pleadings with the testimony of various of its officers or other purportedly expert witnesses. The respondents, although cross examining the witnesses and making numerous objections to their testimony, introduced no evidence whatever of their own, nor elicited any admission from the petitioner's witnesses that the ordinance rates were reasonable or nonconfiscatory, or that, unless as hereinafter discussed, the figures submitted by the petitioner were erroneous.
The theories of the trial judge in denying the temporary injunction are largely reflected in his "Conclusions of Law", copied fully in the footnote.[2] His "Findings of Fact" therein referred to consisted largely of the text of Ordinances Nos. 332 and 333 and general conclusions to the effect that the City, while not having changed or modified either ordinance, was yet taking no affirmative action against the petitioner under either. In response to a subsequent request by the petitioner for additional findings, the court (a) expressly refused to find that the prescribed rates would be or that they would not be found on final hearing to be confiscatory; (b) found the confiscatory character of said rates to be subject to "reasonable doubt", and to constitute "a seriously debatable issue"; (c) found in effect that, even though an injunction might issue on final hearing, the petitioner would yet be unable to make or collect retroactive charges so as to compensate itself for the services meanwhile rendered by it at the rates fixed by the ordinance; and (d) approved the bond tendered by the petitioner as good and sufficient and "adequate to protect the customers of plaintiff under * * * a temporary injunction, had one been granted by the court."
The Court of Civil Appeals, in affirming, gave as a general reason for its action that the record showed no abuse of discretion by the trial court, quoting at length in this behalf from City of Baytown v. General Telephone Co. of Southwest, Tex. Civ.App., 256 S.W.2d 187 (wr. of er. refused, no reversible error) which sustained a temporary injunction against enforcement of ordinance rates. As actual or possible subsidiary or alternative reasons it mentioned: (a) that a temporary injunction is always properly refused where the record shows an actual net return, however small, on the fair value of the properties, from the rates sought to be enjoined; (b) absence of evidence showing "what the rates are outside of the city limits" and of "evidence separating the values in the city and the rural areas." (In this connection the court observed that *388 it did not have to pass on the City's contention that the City had no power to regulate rates beyond its borders); (c) that the status quo was the ordinance rate. The court also observed (d) that "What was a reasonable rate of return was not to be determined by this requested injunction and neither is there a showing that the purported increase would not have produced more than the eight per cent permitted under the law."
The appellate court evidently, and we think correctly, disregarded what appears to have been one of the trial court's two primary reasons for its action, to wit, the fact that the respondents were not then threatening enforcement of the ordinance rates. The petitioner could not assume that it was free, without benefit of judicial protection, to disregard the formal pronouncement of the body authorized by statute to establish rates. Still less could it assume, that, if it ignored the rate ordinance, the City would fail to take recourse to the penalty ordinance which the City itself had recently enacted.
The other primary ground of the trial court's judgment was approved by the Court of Civil Appeals to the effect that the status quo to be preserved by temporary injunction in cases like the present is the rate sought to be enjoined. This, as the petitioner correctly contends, is in clear conflict with City of Houston v. Southwestern Bell Tel. Co., Tex.Civ.App., 263 S.W.2d 169, wr. of er. refused, and the City of Baytown case, supra, and must yield thereto.
The respondents, evidently referring to observation (d) of the appellate court above quoted, state that it "* * * properly held there was no showing in the record that the purported increase would not have produced more than eight per cent (8%) permitted under the law because no evidence was offered as to what the rate of return would have been within the city limits of the City of Wellington, Texas." Since "purported increase" would seem necessarily to refer, not to the ordinance rates in suit, but to the rates which the petitioner had unsuccessfully asked the City to establish, the argument is not relevant. It was so pointed out in the City of Houston case, supra. The true question in connection with the petitioner's allegations and proof of a single exchange operation is as to how the latter may demonstrate or fail to demonstrate the unreasonableness of the rates sought to be enjoined. We will return to this "single exchange" question later.
Nor can we agree that the refusal of the injunction is to be supported by the petitioner's admission of an actual net return on the fair value of its properties (less than 2 per cent) under the rates sought to be enjoined. The one decision cited in support of this proposition, Lone Star Gas Co. v. State, does not so decide. The brief statement in that opinion to the effect that any net return, however small, precludes a claim of "confiscation", 137 Tex. 279, 306, 153 S.W.2d 681, 696, occurred in the course of an exposition of this Court's disagreement with the view of the court below that Art. 6059, Vernon's Tex.Civ.Stats. (review of Railroad Commission gas rate orders) "does not contemplate a de novo fact trial in the district court in gas rate order cases even where the issue of confiscation is tendered and tried." 137 Tex. 289-290, 153 S.W.2d 687. The same opinion also stated, 137 Tex. 312, 153 S.W.2d 699, as do some earlier decisions such as Railroad Commission of Texas v. Houston & T. C. Ry. Co., 90 Tex. 340, 38 S.W. 750, and Gulf, C. & S. F. Ry. Co. v. Railroad Commission, 102 Tex. 338, 113 S.W. 741, 116 S.W. 795, that in the absence of a statute providing for judicial review as to "reasonableness" of rates (there is none such as to review of city telephone rate orders made under art. 1119, supra) the only power of interference by courts with the legislative act of rate making is the "equity" power of preventing what would be a violation of the national and state constitutional guarantees against the taking of property without *389 proper compensation or without due process of law.
While the language in the two railroad rate decisions mentioned does lend support to the distinction between unreasonableness and confiscation, the actual question of whether a rate order that "merely fails to yield a fair profit or returnis unreasonable and unjust, but not confiscatory" (in the sense of an unconstitutional "taking") was not presented for decision in either case. Certainly the Lone Star case did not actually decide that proposition. There, except on certain points not here material, our decision favored the utilityand this although the return of which it complained was far better than that of the petitioner in the instant case.
By our recent and unqualified refusal of the writ of error in City of Houston v. Southwestern Bell Tel. Co., supra, we undoubtedly held that, with or without any review statute such as those involved in the gas and railroad rate decisions mentioned, the failure of telephone rates to produce a fair return on the fair value of the properties of the exchange in question was an enjoinable violation of constitutional guarantees, although there was no "confiscation" in the sense of an out-of-pocket loss.
Whether the City of Houston opinion be taken to refer only to the federal constitution or to both it and our state constitution, the result for most practical purposes is the same, and we see no good reason to distinguish between the two as to this largely academic concept of "confiscation" being distinct from "mere unreasonableness" in the matter of the return from public utility rates. Once we admit that the return of a given rate is so low that no reasonable or just man would require it and that he who suffers from it suffers beyond the limits of reason or justice, are we not overly metaphysical if we add that there is no constitutional question involved, or no right to judicial review without a statute, unless the rate actually produces red figures on a financial statement? Economic values exist largely in relation to other economic values. If the going rate for labor be $2 per hour, and a given laborer be prohibited by law from charging over 20 cents per hour, is he any the less a slave because he manages to subsist on his 20 cents?
No doubt it is the illusory nature of the difference between "confiscation" in terms of excess of outgo over income and "unreasonable" inadequacy of rates that has caused the federal courts to treat the two as identical for purposes of constitutional protection under the 14th amendment. See Nichols on Ruling Principles of Utility RegulationRate of Return, Chap. 2, Secs. 6-7. The federal cases cited in the City of Houston decision, supra, so hold, and we here hold likewise as to the federal constitution and the corresponding provisions of our state constitution.
A return of less than 2 per cent obviously qualifies as unreasonable under existing economic conditions of general knowledge as well as under the uncontested proof made at the hearing in this case.
It is also urged in support of the trial court's action (although the court itself did not make the point) that the petitioner failed in its proof of an inadequate return by failing to make some kind of division of its single exchange, or unit operation, financial picture into two complete pictures, as if two separate business enterprises were involved dealing respectively with "city" and "noncity" service or matters (whatever these latter terms might mean in detail as applied to the actual facts). We do not find this argument convincing.
Undoubtedly the single exchange system for the whole community has always been in actual use and there is no suggestion in the record that such a method of operation and accounting was followed in bad faith or in the least degree against the wishes of the City, or that it involved improper discrimination in any respect. Indeed, from every standpoint, a different system *390 would have been as unnatural as it would doubtless have been unpopular. There is no statute directly or indirectly prescribing a different course. If the petitioner, with the object of facilitating future recourse to the city authorities for rate adjustments, had insisted upon a system of "long distance" service between neighbors on different sides of the city limits, the City itself would have been the first to complain, and with good reason.
This being so, it would seem to follow that in making a case of inadequacy of return, the petitioner would not in effect have to do for that purpose what it did not have to do and ought not to have done in the course of its actual operations, that is, to present some type of wholly theoretical and necessarily complicated accounting "breakdown" of its single operation into two operations divided in some undefined fashion on a basis of city limit lines. If neither art. 1119, supra, nor any other statute forbid, or by clear implication limit, the obviously preferable single exchange system for a single community, as is the case, then a reasonable inference is that the City, as the only regulatory body involved, or the court in reviewing the action of the City, should judge the rate of return by the same system.
This is especially true considering that, in the case of a community telephone exchange, any such financial "breakdown" on city lines would be considerably more theoretical and unnatural than in the case of most other kinds of community based business or public service. An electric, gas or water utility sells an easily measurable amount of electricity, gas or water to a particular customer at a particular place for his particular consumption, and at a particular price per kilowatt, cubic foot or gallon. Such a sale is thus localized, individualized and relatively tangible, however many other customers at other addresses the company may have. But the ability to transmit and receive communications throughout the exchange area, which is the commodity sold by a telephone company, simply does not lend itself to division or allocation by arbitrary lines through the area such as city limits. When city subscriber A talks to noncity subscriber Z, A is benefiting from, and in a true sense using, company property outside the city, including the very telephone in the hands of Z, even as the latter is simultaneously enjoying and using company property within the city. A and Z are each also enjoying the benefit of the company's existing contractual relations with the other. The more subscribers the company has outside the city limits the more valuable the service it sells to those within the City and vice versa.
These facts are admittedly recognized by the very ordinance in question, which contemplates that the rates thereby established for city residents include payment for exchange communications between the latter and noncity subscribers of the same exchange, regardless of whether the city subscriber is the caller or the called.
To find a sound and practical basis for splitting up for rate-making purposes such a naturally indivisible business enterprise into subunits somehow following city lines would seem almost impossible, even if the company witnesses had not testified that it was, as they did testify. How, for example, might one split the cost of a telephone instrument of the city physician which also serves noncity patients who happen to be his main clientele and call him at all hours, or the salary of the lineman who repairs both the city and noncity poles and wires that permit the calls of the city lawyer to his noncity clients, or the revenue received from a young lady city subscriber, who spends hours telephoning her friend just a block away across the city limit, or the cost of a noncity stretch of line to the farm of a noncity subscriber who talks only occasionally to other noncity subscribers but constantly to his city business connections for the benefit of the latter as well as himself?
Certainly the respondents have not undertaken to suggest how it might be properly *391 done, and once we admit, as even the respondents do not deny, that the single community exchange flat rate system should be used as an admittedly legal and the most natural and convenient form of operation for all concerned, it would seem to follow that rates and returns should be determined upon the same basis.
No authority is cited to the contrary, but such authority as has been cited favors the view we take. In the Lone Star Gas Co. litigation, supra, involving the validity of an order of the Railroad Commission of Texas establishing Texas rates for gas produced and sold by an integrated utility with producing properties and pipe lines both in Texas and Oklahoma, the Supreme Court of the United States held, against the contention of the utility to the contrary, that the Commission properly considered the value of the properties in both states, and further held that, this being so, a reviewing court could not validly require the company to segregate the Oklahoma and Texas operations in order to demonstrate the Texas rates to be confiscatory. 304 U.S. 224, 551, 58 S.Ct. 883, 82 L.Ed. 1304.
In State ex rel. Clarkston Chamber of Commerce v. Department of Public Utilities, 34 Wash.2d 141, 208 P.2d 882, 884, while the exact question at issue was the more or less procedural one of whether the Washington rate-making body could validly hold a joint hearing in Idaho with the Idaho commission in order to fix telephone rates in two adjoining cities separated only by the state line, the court, in upholding the consequent order of the Washington commission, announced this proposition:
"The evidence taken as a whole makes it clear that it was much more practicable and in some aspects actually necessary to treat the project as one unit rather than two units, one located wholly in Washington and the other in Idaho. Unless there exists some constitutional or statutory inhibition against such procedure it must be sustained by the courts."
In other words, even where the telephone exchange or operating unit is geographically divided between two sovereign states, each with its own appropriate regulatory body, as distinguished from the instant case of a city and mere adjoining suburban area, with no public rate-making authority having jurisdiction to make the rates charged suburban subscribers, the court still held that the community operation was a proper unit for rate-making purposes.
The foregoing decision, 208 P.2d 882, 885, incidentally quotes at length from a decision of the United States District Court for the Southern District of Indiana in Southern Indiana Tel. & Tel. Co. v. Public Service Commission, 1 P.U.R. (N.S.) 1934, 285, which involved a situation evidently quite similar to the present, the quotation being set in the footnote.[3]
*392 In Logan City v. Public Utilities Commission of Utah, 77 Utah 442, 296 P. 1006, 1008, the Court, in dealing with an attack on the Commission's rate order for failure to separate the "rural lines" of an exchange similar to that here involved and to allocate them in some fashion to all of the cities of the state, gave as one of its reasons the character of the single community exchange as a natural unit for the service of both the urban and suburban subscribers.[4]
The effect of Petition of Fryeburg Water Co., 99 N.H. 487, 115 A.2d 420, is to recognize and approve the determination of water rates in a New Hampshire village upon a nonsegregated basis where the water was furnished as part of a single system having reservoirs in both New Hampshire and Maine and serving also a nearby Maine village, absent factors of discrimination in favor of the latter. The court took occasion to characterize the alternative of a separate rate base for the New Hampshire village rates as "complicated, expensive and time consuming."
A substantial number of public utility commission decisions to the same general effect could also be cited, e. g., Re Mountain States Telephone & Telegraph Company, 2 P.U.R.3d 123 (1934); Re New York Telephone Company, 84 P.U.R. (N.S.) 267; idem, 5 P.U.R.3d 33 (1954).
Of course, the foregoing is not to say that where there is a question of whether rates charged in a given state or subdivision thereof burden interstate commerce, or where two competing regulatory bodies divide a single community between them, or perhaps where there is a question of rate discrimination, any attempt at separation of returns by character of commerce or geographical area is necessarily to be held improper or unnecessary, however theoretical and complicated the process may be. But the instant case is far from such a one.
A final and fundamental question is whether, regardless of all we have held up to this point, the refusal of the injunction is to be upheld on a general principle of discretionary authority of the trial court. That such a principle exists and makes a definite difference between cases of temporary and final injunction cannot be denied. Texas Foundries, Inc., v. International Molders & Foundry Workers' Union, 151 Tex. 239, 248 S.W.2d 460, 463, and authorities therein cited.
However, this judicial rule by its very terms is one which can have clear meaning only as it has been actually applied to particular states of fact, and this is particularly so in the light of art. 4662, Vernon's Tex. Civ.Stats.Ann., which expressly, and in the broadest terms, guarantees the right of appellate review of both the refusal and granting of temporary injunctions. Usually, at least, the area of discretion is one involving either a matter of deciding the facts upon conflicting evidence or one of judgment about imponderables, such as future facts, or the balancing of equities.
In the Texas Foundries case we said the appellate court could not substitute its "judgment" for that of the trial court as to whether, in a case where violence had been practiced by the union, a modification allowing the union to continue to picket, but with requirement to do so only in a peaceful manner, "would result in future violence." And in Railroad Commission v. *393 Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235, relied on in the Foundries case, the area in question was one of fine lines between possibly irreparable injury to the oil companies and a probably valid but unprecedented order of the Railroad Commission.
We held in Southland Life Insurance Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722, 723, that "* * * the trial court's discretion is not unlimited and does not extend to the erroneous application of the law to undisputed facts."
The City of Houston and City of Baytown cases, both supra, upheld the action of the trial court on temporary injunction, but by our "refusal" of the writ of error in the former we adopted the rule of decision which it in turn had quoted from the latter, as follows [256 S.W.2d 194]:
"A review of the decisions involving rates of public utilities shows that a temporary injunction will issue when three things are made to appear: (1) that there is a reasonable probability that the utility will succeed on final hearing, (2) that the loss to the utility resulting from a refusal to grant the temporary injunction will be irreparable, and (3) that the customers can be adequately protected by bond."
In the instant case, if we may go by the "Conclusions of Law" of the trial judge, any "discretion" exercised by him would have to consist of his two clearly erroneous holdings that (a) the rate and penalty ordinances somehow posed no threat that either would be enforced and (b) as a matter of law, the status quo was the ordinance rates under attack. But since he later refused to find that the ordinance rates would probably be adjudged confiscatory on final hearing and found their confiscatory character to be "a seriously debatable issue", we will discuss the case from that standpoint.
If it be true that this latter kind of holding would ordinarily fall within the realm of discretion, it is also true, and was in effect so "found", that injury to the petitioner was not only a serious possibility but, if existing, was irreparable, while, considering the proposed injunction bond, which was approved, there was no possibility of injury to the respondents or customers of the company under any circumstances. Any inconvenience to the customers in getting back overcharges could easily be handled by a provision in the final decree ordering the petitioner itself to make such refunds with appropriate accounting to the customer in each instance. The idea that a temporary writ would afford the petitioner all it might obtain by a permanent injunction fallaciously assumes that the petitioner would have no obligation to bring the case on for final hearing and that the respondents will supinely permit it to rest forever on its temporary laurels. Actually the bond itself would eventually become inadequate for the possible overcharges accumulating during pendency of the temporary writ.
More importantly, we think that the record leaves no room for a discretionary error as to the petitioner's chances of final success. The pleadings and testimony of the petitioner reflecting less than a 2 per cent return stand uncontradicted by even an affidavit. That small cities may not have funds wherewith to hire rate experts to rebut company experts cannot affect the matter. About the only attack on the testimony of the petitioner's witnesses was by way of cross examination in connection with the failure of the petitioner to segregate the exchange into urban and suburban divisions for rate-making purposes, a matter already dealt with. We are cited to no obvious inconsistencies or omissions in the company figures and have found none. There are no detailed findings or recitals of the trial court in this behalf. If we are to uphold his refusal of the injunction on the bare assumption that he might not have believed what the petitioner's affidavits and witnesses said, then virtually no refusal of a temporary injunction could be reversed on appeal, and the right granted by art. 4662, supra, would be largely a dead letter.
*394 It follows that the temporary injunction should have been granted as prayed for and that both courts below erred in holding otherwise. Their judgments are therefore reversed and the cause is remanded to the trial court for entry of judgment accordingly.
NOTES
[1] Art. 1119. "The governing body of all incorporated cities and towns in this State incorporated under the General Laws thereof shall have the power to regulate, by ordinance, the rates and compensation to be charged by all persons, companies, or corporations using the streets and public grounds of said city or town, and engaged in furnishing water, gas, telephone, light, power, or sewerage service to the public, and also to prescribe rules and regulations under which such commodities shall be furnished, and service rendered, and to fix penalties to enforce such charges, rules, and regulations. The governing body shall not prescribe any rate or compensation which will yield more than a fair return upon the fair value of the property used and useful in rendering its service to the public, but which return in no event shall ever exceed eight (8) per cent per annum."
[2] "From the above the Court Concludes that the status quo was the existing telephone rates provided for in Ordinance No. 333 above mentioned, and that in the absence of proof that the City of Wellington was attempting to inforce, by suit or otherwise, the collection of telephone rates set forth in such Ordinance No. 333, and in the absence of any evidence showing that the City of Wellington was attempting to inforce such Ordinance against the Plaintiff by the collection of any fine or penalty as a result of criminal prosecution against plaintiff for its failure to comply with the rates set forth in said Ordinance No. 333 and as provided for by Ordinance No. 332, the Temporary Injunction should be denied."
[3] "The evidence in this case fails to disclose any practical method by which the property of one of plaintiff's exchanges situate within the municipality can be separated from the exchange property in the surrounding rural district for ratemaking purposes. All of the property of the exchange, both urban and rural, is connected by a common switch board and central plant, and none of the property within any one exchange territory can be separated from any of the other property within such exchange in such a manner as will permit the telephone utility properly to serve the public, for the reason, as above pointed out, that telephone service which is useful to the public necessarily means the transportation of messages between any two subscribers connected with the exchange, regardless of how widely separated, including both urban subscribers and rural subscribers within such territory. From the viewpoint of transportation of messages, there should be no arbitrary `city limits' within the territory served by a single exchange. Both economically and socially the exchange territory is a unit, and neither the urban subscribers nor the rural subscribers would be satisfied with a telephone service unless they could communicate with each other at all times and from all points within the exchange district."
[4] "Moreover, the conclusion reached and announced by the commission on this particular subject is entirely sound and proper. The territory served by the rural lines is tributary to Logan as the commercial center. Their value to the business men of Logan is indicated by the fact that Logan people petitioned to have certain of these rural lines attached to that exchange and would undoubtedly protest if such lines were severed therefrom. Ordinarily the definition of an exchange area and determination of what rural lines shall be attached to a certain exchange are matters of business management and will not be interfered with by the commission in the absence of allegation and proof of bad faith or imprudence. There was no such showing here." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620358/ | 955 So.2d 586 (2006)
Paul ANDERSON, Appellant,
v.
Curtis B. WAGNER, DPM, etc., et al., Appellees.
No. 5D05-3220.
District Court of Appeal of Florida, First District.
August 18, 2006.
*587 Paul Anderson, Orlando, Pro Se.
Benjamin W. Newman, of Bobo, Ciotoli, Bocchino, Newman & Corsini, P.A., Orlando, for Appellee, Orlando Surgery Center.
Rafael E. Martinez and Richard L. Barry, of McEwan, Martinez & Dukes, P.A., Orlando, for Appellee, Stephen W. Thompson, M.D.
Michael R. D'Lugo, of Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A., Orlando, for Appellees, Curtis Wagner, D.P.M. and Foot and Ankle Associates of Florida.
ORFINGER, J.
Paul Anderson appeals the trial court's orders dismissing with prejudice his medical malpractice claims against Curtis B. Wagner, D.P.M., Foot & Ankle Associates of Florida ("Associates"), Stephen W. Thompson, M.D., and the Orlando Surgery Center ("OSC") (collectively, "Appellees"). For the reasons explained hereafter, we affirm the orders of dismissal.
Mr. Anderson's medical malpractice claims were based on two foot surgeries performed by Dr. Wagner, who practices as a member of Associates, in June and July 2003. Unhappy with the surgical results, and believing that Dr. Wagner had performed unnecessary or unauthorized procedures, Mr. Anderson served Dr. Wagner a notice of intent to initiate medical malpractice litigation. The notice of intent did not include a corroborating affidavit from an expert witness. However, Mr. Anderson asserted in the notice of intent that Dr. Wagner had failed to provide copies of his entire medical record as requested, thereby waiving his right to such corroboration.
Both sides agree that Mr. Anderson went to Dr. Wagner's office on August 27, 2003, to request his medical records, and that Dr. Wagner's staff did not provide him with his records at that time. According to Mr. Anderson, he completed a medical release form at Dr. Wagner's office to obtain his records, but Dr. Wagner's office manager stopped the receptionist from giving Mr. Anderson his files. That same day, Mr. Anderson wrote a letter to Dr. Wagner explaining what had occurred at his office and requesting a copy of his complete file, including "authorization forms, notes, phone consultations, office visits and all other matter." Mr. Anderson claims that Dr. Wagner responded to his request on August 29, 2003, but did not include Mr. Anderson's medical *588 records with his reply. However, the record before us contains no evidence or affidavit substantiating Dr. Wagner's refusal to furnish the records in a timely manner.
Dr. Wagner's account of the events is much different. Notably, in his affidavit, Dr. Wagner testified that his office staff mailed Mr. Anderson a copy of his medical chart within ten days of his request. Dr. Wagner attached copies of two certified mail return receipt cards signed by Mr. Anderson on September 5 and 6, 2003, respectively, as evidence of his assertion.
Mr. Anderson filed a medical malpractice complaint against Dr. Wagner and Associates shortly thereafter. Following that, Mr. Anderson mailed a letter to OSC, notifying OSC of his claim against Dr. Wagner and alluding to the fact that OSC, as the site of the surgeries, and Dr. Thompson, as the anesthesiologist for the surgeries, were also liable for Dr. Wagner's alleged malpractice. Mr. Anderson subsequently amended the complaint to include Dr. Thompson and OSC as parties. Mr. Anderson's complaint alleged that he suffered economic and non-economic damages as a result of the medical negligence allegedly committed by Appellees during his two foot surgeries and sought compensatory and punitive damages, totaling $11,592,708.88.
Dr. Wagner and Associates moved to dismiss Mr. Anderson's amended medical malpractice complaint. The motion was premised on Mr. Anderson's failure to submit a verified written medical expert opinion as part of his notice of intent, as required by section 766.203(2), Florida Statutes (2003). Dr. Wagner and Associates also attempted to dispel Mr. Anderson's assertion that no corroborating evidence was necessary under section 766.204 due to Dr. Wagner allegedly failing to furnish Mr. Anderson's medical records within ten days of his August 27, 2003, request. Instead, they asserted in a sworn affidavit that Dr. Wagner forwarded Mr. Anderson a complete copy of his medical chart pursuant to his request on August 29, 2003, well within the ten-day time period.
OSC and Dr. Thompson also filed motions to dismiss Mr. Anderson's complaint, contending that Mr. Anderson failed to provide a corroborating affidavit for his complaint, as required by section 766.203(2). Dr. Thompson also claimed that he never received actual or constructive notice of the claim against him, so that he was unable to participate in the presuit process.
A hearing on Appellees' motions to dismiss was held before the Honorable Rom W. Powell, Senior Judge. At the hearing, Mr. Anderson argued that Appellees' motions to dismiss were improper under Florida Rule of Civil Procedure 1.420 because he had not yet presented evidence in support of his claims. Mr. Anderson elected to "respectfully abstain" from the hearing, lest he violate the law by participating in what he claimed was an illegal proceeding. Mr. Anderson further stated that he would not participate in the hearing because his rights to a speedy hearing and equal protection under the law were being denied. Mr. Anderson also objected to the fact that Judge Powell, not Judge Cohen, was presiding over the hearing, contrary to what had been stated in the notice of hearing.[1]
Appellees argued that Mr. Anderson had failed to comply with the provisions of Florida's Medical Malpractice Act. Specifically, they demonstrated that Mr. *589 Anderson did not submit an expert affidavit corroborating that reasonable grounds existed to support the claims of medical negligence as required by section 766.203. OSC and Dr. Thompson also claimed that they never received any notice of intent from Mr. Anderson directed to their alleged negligence. Rather, OSC contended that the letter it received from Mr. Anderson on March 16, 2005, simply informed OSC of Mr. Anderson's claim against Dr. Wagner.
Following the hearing, Judge Powell entered an order dismissing Mr. Anderson's claims against Dr. Wagner and Associates with prejudice on August 15, 2005. A similar order was issued on August 30, 2005, dismissing Mr. Anderson's claims against Dr. Thompson and OSC with prejudice. The final orders stated, in pertinent part:
The Court finds that as of the date of this hearing, plaintiff has failed to submit a verified written medical opinion as required by section 766.203(2), Florida Statutes. The statute of limitations in medical negligence actions, section 95.11(4)(b) is two (2) years. The statute ran out on July 23, 2005. The failure to submit the required verified written medical opinion within the two year limitations period is fatal to plaintiff's case. See Maguire v. Nichols, 712 So.2d 784 (Fla. 2d DCA 1998).
This appeal followed.
Mr. Anderson claims that the trial court erred in dismissing his medical malpractice complaint against Appellees. Mr. Anderson contends that the trial court: (1) improperly relied on section 766.203 in dismissing his case; (2) erred in dismissing his case in light of alleged fraud; and (3) denied his rights to speedy trial, due process, and equal protection by failing to grant his motion for evidentiary hearing. We review the trial court's orders on Appellees' motions to dismiss de novo. Huet v. Mike Shad Ford, Inc., 915 So.2d 723, 725 (Fla. 5th DCA 2005) (citing Sobi v. Fairfield Resorts, Inc., 846 So.2d 1204 (Fla. 5th DCA 2003); Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175 (Fla. 5th DCA 2001)).
Appellees' motions to dismiss were based in part on the contention that Mr. Anderson failed to file a verified written expert opinion along with his notice of intent to corroborate that there are reasonable grounds upon which Mr. Anderson filed his complaint. Section 766.203(2), Florida Statutes (2003), provides:
PRESUIT INVESTIGATION BY CLAIMANT.Prior to issuing notification of intent to initiate medical negligence litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:
(a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and
(b) Such negligence resulted in injury to the claimant.
Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant's submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.
(Emphasis added). Generally, the corroborating expert medical opinion is provided *590 prior to or contemporaneous with the claimant's notice of intent. See Archer v. Maddux, 645 So.2d 544, 547 (Fla. 1st DCA 1994). Here, Mr. Anderson's notice did not include any corroborating medical expert opinion. "[I]f a complaint is filed without a corroborating expert opinion, the defendant's proper remedy is a motion to dismiss." Maddux, 645 So.2d at 547. However, a party's failure to provide a medical expert opinion along with its notice of intent does not require dismissal of the claim so long as corroboration is provided before the statute of limitations has run. See generally Yocom v. Wuesthoff Health Sys., Inc., 880 So.2d 787, 790 (Fla. 5th DCA 2004); Gargano v. Costarella, 618 So.2d 786, 787 (Fla. 5th DCA 1993). In this case, though, Mr. Anderson never provided medical expert opinion supporting his claim, and the trial court dismissed his complaint with prejudice after the statute of limitations had expired.
Mr. Anderson argues that under the terms of section 766.204(2), Florida Statutes (2003), he was not required to provide Dr. Wagner with any medical expert corroboration of his claim. Section 766.204(2) states that the "failure to provide copies of medical records within 10 days `shall waive the requirement of written medical corroboration' by the party requesting the copies." Medina v. Pub. Health Trust, 743 So.2d 541, 542 (Fla. 3d DCA 1999). Mr. Anderson asserts that Dr. Wagner waived his right to a medical expert opinion by failing to supply him with his medical records within ten business days of his request.
Mr. Anderson failed to properly preserve this issue for appellate review. "For an issue to be preserved for appeal, . . . it `must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.'" Archer v. State, 613 So.2d 446, 448 (Fla.1993) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)). Mr. Anderson refused to participate in the hearing on Appellees' motions to dismiss. Consequently, Mr. Anderson never raised the argument that Dr. Wagner waived his right to medical expert opinion during the hearing or offered any evidence to support that contention. Instead, he claimed that the hearing was illegal because he did not have an opportunity to present evidence prior to Appellees' filing their motions to dismiss.
Mr. Anderson also argued, as on appeal, that his rights to a speedy hearing, due process, and equal protection were being denied and that Judge Cohen, not Judge Powell, was the only judge authorized to conduct the hearing. Contrary to Mr. Anderson's assertion, the hearing on the motions to dismiss was not illegal nor did it impair his rights to a speedy hearing, due process, and equal protection. Mr. Anderson has no standing to question Judge Powell's assignment to the case. "Litigants . . . have no right to have any particular judge hear their case." Rodriguez v. State, 919 So.2d 1252, 1278 (Fla. 2005). "Where the court has jurisdiction, it is the court, and not the particular judges thereof, that has jurisdiction over a particular cause, controversy and the parties thereto. . . . In legal contemplation judges, like litigants, are all equal before the law. Subject only to substantive law relating to disqualification of judges, litigants have no right to have, or not have, any particular judge of a court hear their cause and no due process right to be heard before any assignment or reassignment of a particular case to a particular judge." *591 Kruckenberg v. Powell, 422 So.2d 994, 995 (Fla. 5th DCA 1982).
Mr. Anderson's reliance on Florida Rule of Civil Procedure 1.420 in support of his argument that he should have been able to present evidence of his case before Appellees filed their motions to dismiss is likewise misplaced. The section of rule 1.420 that Mr. Anderson cites[2] concerns the right of the non-moving party to present evidence at trial before another party moves to dismiss. Here, Mr. Anderson had an opportunity to present evidence at the hearing on the motions to dismiss, but chose not to. Mr. Anderson's due process right to be heard was not denied; instead, he voluntarily chose not to participate in the hearing.
Mr. Anderson also mistakenly argues that the right to speedy trial applies to this case. "The constitutional right to a speedy trial in criminal cases has no application to civil proceedings." Julian v. Lee, 473 So.2d 736, 739 (Fla. 5th DCA 1985); see also Amend. VI, U.S. Const. Since the hearing on Appellees' motions to dismiss was neither illegal nor denied Mr. Anderson's constitutional rights, Mr. Anderson's decision not to participate in the hearing means that his current complaints were not properly preserved for appellate review.[3]
AFFIRMED.
PALMER, J. and GRIESBAUM, J., Associate Judge, concur.
NOTES
[1] It appears that the Honorable Jay P. Cohen had been identified as the judge who would preside over the hearing in the notices of hearing prepared by Appellees and mailed to Mr. Anderson.
[2] Rule 1.420 states, in pertinent part:
After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief, without waiving the right to offer evidence if the motion is not granted.
[3] Even if Mr. Anderson had properly preserved these issues for appellate review, his argument that Dr. Wagner waived the requirement that Mr. Anderson provide a corroborating expert opinion applies only to Dr. Wagner and Associates. The Third District Court has held that a hospital's failure to provide the required expert corroboration cannot be imputed to a co-defendant from whom the claimant never requested medical records. Tapia-Ruano v. Alvarez, 765 So.2d 942, 943-44 (Fla. 3d DCA 2000). Logically, the opposite would also apply. While one party may have waived its right to a medical expert opinion, this waiver is not imputed to other codefendants. Here, Mr. Anderson clearly requested medical records from Dr. Wagner. However, Mr. Anderson never claimed that he requested medical records from any of the other Appellees. Therefore, even if Dr. Wagner waived his right to an expert medical opinion for failing to comply with Mr. Anderson's request for medical records, the other appellees did not. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620363/ | 955 So.2d 51 (2007)
Kevin MACK, Petitioner,
v.
STATE of Florida, Respondent.
No. 1D06-4096.
District Court of Appeal of Florida, First District.
March 26, 2007.
Rehearing Denied May 4, 2007.
*53 William Mallory Kent of the Law Office of William Mallory Kent, Jacksonville, for Petitioner.
Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Respondent.
BENTON, J.
In a petition for writ of habeas corpus (styled petition for habeas corpus relief) Kevin Mack contends that counsel on his direct appeal was ineffective for failing to argue 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), required reversal of his sentence. We do not agree that Apprendi and Blakely have any application in his case and deny the petition.
As a federal constitutional matter, a criminal defendant is entitled to the assistance of counsel on the first appeal of right from a conviction, even if unable to afford private counsel. See Ross v. Moffitt, 417 U.S. 600, 606-15, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Douglas v. California, 372 U.S. 353, 354-58, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). "Habeas petitions are the proper vehicle to advance claims of ineffective assistance of appellate counsel." Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). See Fla. R.App. P. 9.141(c)(2) (2006) ("Petitions . . . alleging ineffective assistance of appellate counsel shall be filed in the appellate court to which the appeal was or should have been taken.").
"When analyzing the merits of the claim, `[t]he criteria for proving ineffective assistance of appellate counsel parallel the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] standard for ineffective trial counsel.'" Rutherford, 774 So.2d at 643 (first alteration in original) (footnote omitted) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985)). The petitioner must show
first, that appellate counsel's performance was deficient because "the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance" and second, that the petitioner was prejudiced because appellate counsel's deficiency "compromised the *54 appellate process to such a degree as to undermine confidence in the correctness of the result." Thompson [v. State, 759 So.2d 650, 660 (Fla.2000)]. If a legal issue "would in all probability have been found to be without merit" had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective. Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994).
Rutherford, 774 So.2d at 643 (citations omitted). See also Downs v. Moore, 801 So.2d 906, 910 (Fla.2001) (stating "appellate counsel cannot be deemed ineffective for failing to raise non-meritorious claims"). To prevail on a claim of ineffective assistance of counsel, trial or appellate, the defendant must establish "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
On March 4, 2004, Mr. Mack entered a plea of guilty to possession of a firearm by a convicted felon, a second degree felony. He had signed a plea agreement, styled Plea of Guilty and Negotiated Sentence, under which his sentence was to have been thirty-eight months in state prison, with a three-year minimum mandatory term, subject, however, to this proviso: "Sentence will be deferred until April 20, 2004. . . . If defendant fails to appear or commits a new crime supported by probable cause. Plea will stand but Defendant can receive any legal sentence." Petitioner does not seek to set aside the plea agreement and does not question its validity.
Our supreme court has held that plea agreements may contain conditions that depend on later fact finding. See Quarterman v. State, 527 So.2d 1380, 1382 (Fla.1988) (noting "the conditions which Quarterman agreed to were not imposed after the plea bargain had been accepted, but were accepted as `an integral part of the bargain itself'") (citations omitted).
Quarterman . . . teaches that there is nothing inherently wrong with making the agreed-upon sentence contingent upon the defendant's not committing another offense while at liberty and appearing at sentencing as ordered.
Bennett v. State, 858 So.2d 1251, 1252 (Fla. 5th DCA 2003). See id. at 1252-53 (indicating that, where a court-approved plea agreement contains conditions that subsequent events trigger,[1] the defendant "and the court [can be viewed as having] entered a valid modification of the plea agreement . . . authoriz[ing the court] to impose the sentence it did," even though more severe than the sentence the plea agreement originally called for).
While free on bond, after his plea had been accepted but before he was sentenced, Mr. Mack was arrested on charges of battery. After an evidentiary hearing at which both sides presented evidence, the trial court found probable cause to believe he had committed the battery, so *55 violating the plea bargain condition. On that account, the trial court concluded it was no longer bound to impose the thirty-eight-month sentence originally negotiated, and subsequently sentenced him to eight years' imprisonment.
Petitioner's judgment and sentence were affirmed on direct appeal, on August 11, 2005. Mack v. State, 908 So.2d 1061, 1061 (Fla. 1st DCA 2005). He filed the present petition for writ of habeas corpus on August 9, 2006, claiming that counsel on the direct appeal was ineffective. See Fla. R.App. P. 9.141(c)(4)(B) (2006) ("A petition alleging ineffective assistance of appellate counsel shall not be filed more than 2 years after the conviction becomes final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel.").
Petitioner argues that Blakely and Apprendi require relief because the trial judge, not a jury, engaged in factfinding which became the basis for imposing an eight-year sentence, instead of the thirty-eight-month sentence he agreed to in the plea bargain. At issue is whether Blakely and Apprendi lay down a federal constitutional imperative, not whether empanelling a new jury for sentencing in a non-capital case is currently authorized under state law. See generally Galindez v. State, 32 Fla. L. Weekly S89, S92, ___ So.2d ___, ___, 2007 WL 471164 (Fla. Feb. 15, 2007) (Cantero, J., concurring) ("To remedy violations of Apprendi and Blakely, we would be entirely justified in adopting a procedure for the empanelling of new juries on resentencing.").
Preliminarily, the State contends that the issue was not preserved by appropriate objection in the trial court, and that appellate counsel cannot, for that reason, be faulted for failing to raise the issue. See Davis v. State, 928 So.2d 1089, 1127 (Fla.2005) ("Generally, appellate counsel cannot be ineffective for failing to present claims which were not preserved due to trial counsel's failure to object."). The State's preservation argument lacks force here.
Even if not raised adequately by trial counsel, an Apprendi claim could have been presented in a motion pursuant to Florida Rule of Criminal Procedure 3.800(b) at any time "before the party's first brief is served." Fla. R.Crim. P. 3.800(b)(2) (2004). See, e.g., Gisi v. State, 848 So.2d 1278, 1282 (Fla. 2d DCA 2003) ("Although the Apprendi issue was not raised at sentencing by trial counsel, appellate counsel could have preserved the issue for appellate review by filing a motion to correct a sentencing error in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)."); Arrowood v. State, 843 So.2d 940, 941-42 (Fla. 1st DCA 2003) (reversing because appellant was entitled to relief under Apprendi when the claim was raised during the pendency of the appeal in a Rule 3.800(b)(2) motion). Since appellate counsel could have preserved the issue, it is no defense to petitioner's claim of ineffective assistance that appellate counsel (like trial counsel) failed to do so.
The Court explained in Blakely "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." Blakely, 542 U.S. at 303, 124 S.Ct. 2531.
In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum [a judge] may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not *56 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 (quotation marks and citation omitted). The maximum penalty prescribed by statute for the second degree felony petitioner committed and pleaded guilty to is fifteen years.[2] The trial court did not go beyond this "prescribed statutory maximum" when it imposed an eight-year sentence. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.
Petitioner was sentenced after the United States Supreme Court had decided both Apprendi and Blakely. Cf. Hughes v. State, 901 So.2d 837, 838 (Fla.2005) ("[W]e hold that Apprendi does not apply retroactively.") (emphasis omitted). But petitioner's argument founders because a sentence violates due process under Apprendi and Blakely only when it exceeds the "prescribed statutory maximum." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 ("Other 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.").
Apprendi and Blakely deal with the prerogatives of judges vis-a-vis juries, and stake out ground onto which the judge cannot intrude, without impermissibly adulterating the right to trial by jury. But it has never been held that parties can impose a cap on the length of a sentence that the sentencing judge is not free to reject in the sound exercise of judicial discretion. In Rollman v. State, 887 So.2d 1233, 1235 (Fla.2004), our supreme court held that a trial judge may "alter" a plea agreement at any time before sentence is imposed.
We continue to agree that a trial court retains the authority to alter a prior plea arrangement up until the time sentence is imposed, so long as the trial court provides the defendant an opportunity to withdraw any plea that was entered in reliance on the promised sentence. It does not matter whether the judge simply changed his mind, or whether there was a misunderstanding.
Id. The Rollman court also approved this court's ruling that "the defendant was not entitled to specific performance of the [plea] agreement, but was limited to withdrawing his plea."[3]Id. See also Santobello, 404 U.S. at 262-63, 92 S.Ct. 495 (leaving to state courts whether, when a plea agreement is breached, to require "specific performance of the agreement on the plea . . . or . . . the opportunity to withdraw [the] plea"). In any event, a sentence to which the parties agree in a plea bargain is not a "prescribed statutory maximum."
In sum, petitioner argues that once the trial court accepted a plea predicated on the plea agreement, it was bound not to exceed the sentence agreed upon, without a trial by jury. But this ignores the thrust of the plea agreement taken as a whole, and finds no support in any of its individual provisions. While the State is unquestionably bound by any plea agreement that induces a plea of guilty or nolo contendere, see generally Santobello, 404 U.S. at 262, 92 S.Ct. 495 (holding that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such *57 promise must be fulfilled"), so is the defense. Quarterman, 527 So.2d at 1382. The requirements of Apprendi and Blakely do not come into play because the "prescribed statutory maximum" is not at issue.
The petition for writ of habeas corpus (styled petition for habeas corpus relief) is denied.
BARFIELD and POLSTON, JJ., concur.
NOTES
[1] If petitioner's view were correct, all conditions in Quarterman plea agreements could lead to jury trials on whether the condition in the plea agreement was violated, including even whether the defendant failed to appear at the sentencing hearing. See generally Quarterman v. State, 527 So.2d 1380, 1381 (Fla.1988). Plea bargains are designed to avoid, not to foment jury trials. See Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (noting that, if all criminal cases were tried, "the States and the Federal Government would need to multiply by many times the number of judges and court facilities"). If a trial must take place, moreover, some might argue that it would be preferable to try the offense charged, instead of a tangential question which does not affect the statutorily prescribed maximum sentence to which a defendant is subject.
[2] In the plea agreement, the petitioner agreed to be sentenced as an habitual offender. At sentencing, however, the State withdrew the notice of intent to classify the petitioner as an habitual offender.
[3] The petitioner does not (and did not below) seek to withdraw his plea. He is seeking specific performance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620367/ | 955 So.2d 155 (2007)
C. NAPCO, INC. and Ten Eleven Decatur Corp.
v.
The City of NEW ORLEANS.
No. 2006-CA-0603.
Court of Appeal of Louisiana, Fourth Circuit.
March 7, 2007.
Order Granting Rehearing May 4, 2007.
*157 Salvador Anzelmo, Thomas W. Milliner, Brian Burke, Law Office of Salvador Anzelmo, Metairie, LA, for Plaintiffs/Appellees and Third Party Defendants, C. Napco, Inc. and Ten Eleven Decatur Corp.
Stuart H. Smith, Kimberly Wooten Rosenberg, Catherine B. Cummins, Smith Stag, L.L.C., and Barry J. Cooper, Jr. Cooper Law Firm, L.L.C., New Oreans, LA, for Intervenors/Appellants.
(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS Sr. and Judge ROLAND L. BELSOME).
JOAN BERNARD ARMSTRONG, Chief Judge.
Intervenors/appellants, Stuart H. Smith ("Mr.Smith"), Vieux Carre Property Owners Residents and Associates ("VCPORA") and French Quarter Citizens for Preservation of Residential Quality ("FQCPRQ"), (hereinafter collectively "intervenors") filed this appeal from the judgment of the trial court that denied intervenors' request for a preliminary injunction against plaintiffs-appellees, C. Napco Inc. and Ten Eleven Decatur Corp. (hereinafter collectively "Café Sbisa"), the owners and operators of Café Sbisa to prohibit live music entertainment at Café Sbisa, a restaurant located in the historic Vieux Carre district of New Orleans. For the reasons that follow, we affirm the judgment of the trial court.
The manager of Café Sbisa was served a summons on March 12, 2004 for violation of City Code Sec. 30-1283, Mayoralty Permit Required for Live Entertainment. In response to the summons, on March 31, 2004, Café Sbisa filed a Petition for Temporary Restraining Order, Preliminary Injunction and Permanent Injunction in the Civil District Court for the Parish of Orleans against the City of New Orleans (hereinafter "City") through the Department of Safety and Permits ("DSP"). This petition was allotted to Division "N" and was assigned the docket number of "XXXX-XXXX." Café Sbisa alleged that it had acquired a legal non-conforming use by prescription as provided under La. R.S. 9:562 because it had provided continuous uninterrupted live musical entertainment for more than ten years at Café Sbisa without being cited for a permit violation. Café Sbisa also sought an injunction to enjoin the City from prohibiting live musical entertainment at Café Sbisa.
On August 26, 2004, intervenor, Stuart Smith, a neighboring landowner, intervened in that action. Smith sought a declaratory judgment stating that Café Sbisa was not entitled to live entertainment and a preliminary and permanent injunction to prohibit live entertainment in violation of the zoning ordinances. VCPORA and FQCPRQ, nonprofit corporations dedicated to preserve the quality of life and the historical character of the Vieux Carre, intervened on December 23, 2004, seeking the same relief as Smith.
During this period, Café Sbisa also filed an application for a live entertainment permit with the DSP. That application was denied. The DSP concluded that Café Sbisa had not offered continuous, live entertainment for ten years sufficient to acquire legal non-conforming use status. Café Sbisa appealed that decision to the Board of Zoning Adjustments (BZA). A hearing was held before the BZA on February 14, 2005, pursuant to which the BZA upheld the decision of the Director of Safety and Permits to deny the live entertainment permit.
*158 La. R.S. 33:4727(E) provides that any person aggrieved by any decision of the BZA may petition to the district court. In accordance with that statute, on March 15, 2005, Café Sbisa timely filed a Petition for Judicial Review of Adjudication and Writ of Certiorari with the district court which was allotted to Division "D" under the docket number "XXXX-XXXX." Café Sbisa's petition requested that the district court reverse the decision to deny the permit and also requested that the court issue an order prohibiting the City from taking any action in reliance on the BZA decision until the district court rendered a judgment to determine its legality. On March 16, 2005, the district court signed an Order "prohibiting the City of New Orleans from taking any action in reliance based on the disposition of BZA Docket 181-04 at the BZA meeting held on February 14, 2005 until judgment shall [sic] be pronounced in this Court concerning the legality of the proceedings complained of in this Petition." There is nothing in the record to show that this stay order has ever been rescinded and the appellants do not contend otherwise. We shall, therefore, proceed upon the assumption that it is still in effect. We find no objection to the stay order in the record.
Thereafter, the City and Café Sbisa filed a joint motion to transfer Café Sbisa's Division "D" Petition for Judicial Review of the BZA decision to Division "N," to which Division the earlier filed Petition for Temporary Restraining Order, Preliminary Injunction and Permanent Injunction filed by Cafe Sbisa had been allotted. As stated previously, it was in this original Division "N" proceeding that Stuart, VCPORA and FQCPRQ filed their interventions. The transfer order was signed by the transferring judge for Division "D" on April 27, 2005 and signed by the transferee judge for Division "N" on May 2, 2005.
The trial court judge initially heard the intervenors' request for a preliminary injunction on February 18, 2005 filed in the first suit. Intervenors argued that a preliminary injunction should issue because Café Sbisa was not zoned or permitted to have live entertainment. In support of this position, they cited the decisions of the DSP and BZA that denied Café Sbisa's request for a permit and their findings that Café Sbisa did not meet the requirements to acquire legal non-conforming use status. Café Sbisa countered that the intervenors failed to file any affidavits in support of their motion for preliminary injunction, that they failed to allege or prove irreparable injury, that issuance of the preliminary injunction would alter the status quo and that the intervenors failed to make a prima facie showing that they would prevail on the merits because their enforcement claim had prescribed. Café Sbisa argued that La. R.S. 9:5625 required the City to enforce any zoning violation against Café Sbisa within ten years of the first violation and that as the City had failed to do so, it was now time barred from doing so.
The trial court granted Café Sbisa's exception of prescription on April 11, 2005. The intervenors then filed a Motion for Expedited New Trial and/or to Vacate Judgment. Their motion asserted that the judgment granting the exception of prescription was flawed because an exception of prescription must be specially pled and there must be a hearing on the exception before it can be decided. The trial court conducted a hearing on intervenors' Motion for New Trial and/or to Vacate Judgment on June 1, 2005. Thereafter, on March 6, 2006, the trial court vacated the exception of prescription; however, it denied intervenors' request for a preliminary injunction. From that judgment, intervenors filed the present appeal.
*159 Café Sbisa contends that this Court cannot consider those issues raised by the intervenors that go to the legality of the DSP or BZA decisions to deny the live music permit and their factual findings as to whether or not Café Sbisa had acquired legal non-conforming use status because the BZA's decision should not be treated as a final judgment. Café Sbisa argues that because L.R.S. 33:4727(E) specifically gives Café Sbisa the right to petition to the district court to review the legality of that decision, which Café Sbisa has elected to do, the decision of the BZA should not be treated like a final judgment. The fact that an appeal may lie from a judgment does not mean that it is not a final judgment. By way of analogy, the fact that a judgment of the district court may be appealed to this Court does not mean that it is not a final judgment. To the contrary, in most cases, if it is not considered to be a final judgment it is not appealable. See La. C.C.P. arts.2083, 1911, and 1841. A judgment determining the merits of a case is a final judgment. Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 4 (La.7/2/96), 676 So.2d 1077, 1079. The ruling of the BZA should be treated as a judgment (see Old Carrollton Neighborhood Ass'n v. City of New Orleans ex rel. Its Bd. of Zoning Adjustments, 03-0711, p. 8 (La.App. 4 Cir. 10/1/03), 859 So.2d 713, 718) and, because it determined the merits of Café Sbisa's claim, it should be treated as a final judgment.
Intervenors-appellants maintain that the trial court abused its discretion by denying their request for a preliminary injunction primarily because the determinations of the BZA and the Director of the DSP are presumptively valid. While it is true that district courts have original jurisdiction to review decisions of Board of Zoning Adjustments through writs of certiorari, they must generally apply a presumption of regularity to the board decisions. Curran v. Board of Zoning Adjustments Through Mason, 580 So.2d 417, 418 (La.App. 4 Cir.1991); Gertler v. the City of New Orleans, 346 So.2d 228, 233 (La.App. 4 Cir.1977). That presumption is rebuttable, but the "reviewing court must first determine or establish whether or not the decision of the board or administrative agency is supported by substantial and competent evidence adduced in the proceedings which are regular and orderly." Curran, supra, quoting Gertler, supra.
The only evidence offered by the intervenors in the hearing below resulting in the judgment leading to this appeal was a "Notice of Disposition of Zoning Case" from the Board of Zoning Adjustments showing that the request to appeal the decision of the Director of Safety and Permits denying the application for a live entertainment permit was denied pursuant to the hearing held on February 14, 2005. The only reviewable information contained in the "Notice" is found in the following statement:
Whereas the Board carefully considered the facts, the arguments for and against the application at the public hearing and after considering the Comprehensive Zoning Ordinance No. 4264 M.C.S., as amended, the Board is of the opinion that the decision of the Decatur of Safety & Permits be UPHELD and the APPEAL DENIED FOR 1011 Decatur Street.
Based upon this mere conclusory statement, there is no means whereby either the district court or this Court can determine whether the Board of Zoning Adjustments decision was "supported by substantial and competent evidence adduced in the proceedings which are regular and orderly," a determination this Court said in Curran, supra, must first be made "first" *160 as an antecedent to according a presumption of validity to the decision of the BZA.
Generally, to obtain a preliminary injunction, the petitioner must show that he will suffer irreparable injury, that he is entitled to the relief sought, and that he will prevail on the merits. Kruger v. Garden District Ass'n, 00-1135, pp. 4-5 (La.App. 4 Cir. 1/17/01), 779 So.2d 986, 990, rehearing denied, writ denied, 01-0773 (La.5/4/01), 791 So.2d 658. An injunction is a harsh, drastic remedy that should only issue where the petitioner is threatened with irreparable harm and has no adequate remedy at law. Id. at 991.
In this matter, intervenors do not specify the irreparable injury that they will suffer if a preliminary injunction does not issue. Rather, intervenors argue that they need not show irreparable injury and that a preliminary injunction would not disrupt the status quo because Café Sbisa was operating in violation of the law. To support this argument, they rely on the decisions of the DPS and the BZA that denied Café Sbisa the live music entertainment permit and their findings that Café Sbisa had not acquired legal non-conforming use status. Although a violation of a prohibitory law is an exception to the need to show irreparable injury, under the facts of this case, it is premature to conclude that Café Sbisa's offering of live entertainment is in violation of the law. At the time that the trial judge denied intervenors' request for a preliminary injunction, the trial record already contained an order from the consolidated case that enjoined the City from enforcing the BZA decision until the trial court ruled on the decision's merits. Inasmuch as the trial court has not rendered that judgment, Café Sbisa can still lawfully offer live music entertainment.
A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties, pending trial on the merits; therefore, a trial court has great discretion to grant or deny the relief requested. LHO New Orleans LM, L.P. v. MHI Leasco New Orleans, INC., 02-0663, p. 3 (La.App. 4 Cir. 11/20/02), 833 So.2d 1010, writ denied, XXXX-XXXX (La.12/19/02), 833 So.2d 339. An appellate court will disturb the trial court judgment only upon a showing of abuse of its great discretion. A to Z Paper Co., Inc. v. Carlo Ditta, Inc., XXXX-XXXX (La.App. 4 Cir. 9/9/98), 720 So.2d 703, appeal after remand XXXX-XXXX, 775 So.2d 42, rehearing denied, writ denied, XXXX-XXXX (La.2/9/01), 785 So.2d 824.
In the present matter, intervenors have not demonstrated irreparable injury. They have an adequate remedy at law as the trial court has not yet ruled on the legality of the BZA decision. The record contains no evidence in support of the BZA decision. Moreover, as noted previously, a stay order of that BZA decision is in effect and as the record contains no objection to that stay order we find no basis for questioning the broad discretion of the trial court in the conduct of the trial in that regard.
Based on the foregoing, we find that the trial court did not abuse its vast discretion to deny intervenors' request for a preliminary injunction. Accordingly, the judgment is affirmed.
AFFIRMED.
ON APPLICATION FOR REHEARING
Considering the application for rehearing of the Vieux Carre Property Owners Residents and Associates ("VCPORA") and the French Quarter Citizens for Preservation of Residential Quality ("FQCPRQ"), we grant rehearing for the limited purpose of noting that the term *161 "consolidated" found on page "___" of the original opinion should read "transferred" consistent with all other such references found on page "___" of the original opinion and that the sentence in which it is contained on page seven of the original opinion should now read:
At the time the trial judge denied intervenors' request for a preliminary injunction, the transferred case already contained an order staying the City from enforcing the BZA decision until the trial court ruled on the decision's merits.
We affirm the original opinion in all other respects. We further note that the appellants in their "Motion for Leave to File a Reply Brief on Behalf of Appellants/Intervenors" acknowledge both the transfer order and the stay order referred to in the original opinion of this court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620373/ | 447 F.Supp. 436 (1978)
Ralph E. DAILEY and Amelia M. Dailey, Plaintiffs,
v.
Raymond A. ELICKER, Elicker Insurance Agency, Robert Williams, Republic Underwriters Insurance Company, an Oklahoma Corporation, a division of Republic Financial Services, Inc., Defendants.
Civ. A. No. 77-C-1067.
United States District Court, D. Colorado.
March 24, 1978.
*437 William F. Corwin, Silverton, Colo., for plaintiffs.
Jack D. Henderson, Denver, Colo., for defendants.
OPINION AND ORDER
CHILSON, District Judge.
During the period here involved, the plaintiffs were residents of Silverton, Colorado; Republic Underwriters Insurance Company was a citizen of the State of Oklahoma, and the defendants, Elicker and Williams were agents of Republic, but were citizens of the State of Colorado. The plaintiffs were the owners of improved real estate in Silverton, Colorado, and on or about May 1, 1975, Elicker, as an agent for Republic, issued to the plaintiffs a Republic homeowners insurance policy. Prior to the expiration of that policy on May 1, 1976, Elicker, as agent for Republic, issued a policy ostensibly extending the same insurance coverage for the period from May 1, 1976 to May 1, 1977. On June 18, 1976, the property insured was totally destroyed by fire. The extension policy provided lesser coverage than the original policy, and plaintiffs claim that Elicker issued the extension policy for less coverage without the consent of or any notice to the plaintiffs. Republic refused to settle according to the terms of the original policy and the plaintiffs brought this action in the state court for a reformation of the extension policy and for damages, both compensatory and exemplary.
The defendants removed this action from the state court to this court on the ground of diversity of citizenship, alleging that the defendants Elicker and Williams were fraudulently made parties defendant solely to attempt to deprive this court of jurisdiction and further alleging that the complaint states no claim for relief against Elicker or Williams.
After the case was removed by the defendants to this court, the plaintiffs filed a motion to remand to the state court. The motion to remand has been submitted to the Court by the parties on briefs without oral argument.
*438 For the reasons hereinafter set forth, the motion to remand should be granted.
There is no suggestion that the claim against the insurer is separate and independent from that asserted against the agent or that 28 U.S.C. § 1441(c) has any application to the present litigation. The propriety of the suit's presence in federal court must therefore be judged under the provisions of 28 U.S.C. §§ 1441(a), (b).
The citizenship of a non-diverse defendant who is a proper, even though not an indispensable, party must be considered when determining the existence of diversity jurisdiction, Oppenheim v. Sterling, 368 F.2d 516 (10th Cir. 1966), cert. denied, 386 U.S. 1011, 87 S.Ct. 1357, 18 L.Ed.2d 441 (1967); 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3606, at 626-28 (1975), and in assessing the removal jurisdiction of federal courts, 28 U.S.C. §§ 1441(a), (b). The citizenship of non-diverse defendants may be disregarded only where the joinder was made without any reasonable basis and was designed solely to defeat diversity or removal. 14 Wright, Miller & Cooper, Federal Practice and Procedure § 3641, at 118 (1976). Where no cause of action is stated against the non-diverse party in other words where the plaintiff could not conceivably recover from the non-diverse defendant in state court a federal court may reasonably infer that the joinder was fraudulent. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921); Miami Pipe Line Co. v. Panhandle Eastern Pipe Line Co., 384 F.2d 21 (10th Cir. 1967); Smoot v. Chicago, Rock Island & Pacific R. R. Co., 378 F.2d 879 (10th Cir. 1967).
The defendants in the instant suit contend that no cause of action is made out against the Colorado defendants. Specifically, the defendants argue that as agents for a disclosed principal Elicker and Williams were not parties to the insurance contract and cannot be held liable for its breach, if any, or for negligence in failing to advise plaintiffs of changes in their insurance coverage.
The defendants' contention finds support in general principles of agency law, see Restatement (Second) of Agency §§ 320, 328 (1958), and has been applied in other situations to uphold the removal of suits to federal court. See Newman v. Forward Lands, Inc., 418 F.Supp. 134 (E.D.Pa.1976); Wiley v. Safeway Stores, Inc., 400 F.Supp. 653 (N.D.Okl.1975); Chipman v. Lollar, 304 F.Supp. 440 (N.D.Miss.1969). Several courts have limited an insurance agent's liability to an insured on the same basis. See Emersons, Ltd. v. Max Wolman, Co., 388 F.Supp. 729 (D.D.C.1975), aff'd mem., 174 U.S.App.D.C. 241, 530 F.2d 1093 (1976); American Mut. Serv. Corp. v. U. S. Liability Ins. Co., 293 F.Supp. 1082 (E.D.N.Y.1968); 16 Appleman, Insurance Law and Practice § 8832, at 459 & n. 35 (1968) [hereinafter cited as Appleman]; Annot., 72 A.L.R.3d 747, § 3[b] (1976). But see Kolb v. Prudential Ins. Co., 170 F.Supp. 97 (W.D.Ky.1959) (holding that a "colorable" claim was asserted against the non-diverse agent of the insurer, blocking removal of the suit to federal court). At least one court has characterized the joinder of a non-diverse insurance agent in a suit by an insured against an out-of-state insurer as "fraudulent" and as being no bar to removal of the suit from state court. American Mut. Serv. Corp. v. U. S. Liability Ins. Co., supra. Contra, Kolb v. Prudential Ins. Co., supra.
Scrutiny of the authorities cited above, however, reveals that the defendants' argument holds true only where the agent acts solely on behalf of a single principal. It is neither unethical nor unusual, however, for an insurance agent to act on behalf of both the insurer and the insured. Martinez v. Great American Ins. Co., 286 F.Supp. 141, 143 (W.D.Tex.1968); 16 Appleman, supra, § 8725. See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951); Unijax, Inc. v. Factory Ins. Assoc., 332 F.Supp. 154 (M.D. Fla.1971); Chason Bros., Inc. v. Ins. Co. of N. America, 102 F.Supp. 803 (S.D.N.Y.1952). In such a case the agent owes a duty to exercise due care and reasonable diligence in the pursuit of the insured's business. Butler v. Scott, 417 F.2d 471 (10th Cir. *439 1969); Annots., 72 A.L.R.3d 747, § 4 (1976); 64 A.L.R.3d 398, § 2[a] (1975). A breach of this duty subjects the agent to personal liability for breach of contract or negligence. Fli-Back Co., Inc. v. Phil. Mfrs. Mut. Ins. Co., 502 F.2d 214, 217 (4th Cir. 1974); Annots., 72 A.L.R.3d 704; 735; 747 (1976); 64 A.L.R.3d 398 (1975).
The existence of a particular agency relationship is generally a question of fact. Mitton v. Granite State Fire Ins. Co., 196 F.2d 988 (10th Cir. 1952); Marron v. Helmecke, 100 Colo. 364, 67 P.2d 1034 (1937); 22 Appleman, supra, § 12854, at 11. Further, a federal court will not pre-try doubtful issues of fact to determine removability: "the issue must be capable of summary determination and be proven with complete certainty." Smoot v. Chicago, Rock Island & Pacific R. R. Co., 378 F.2d 879, 882 (10th Cir. 1967).
The Court concludes that the existence or non-existence of an agency relationship between the plaintiffs and Raymond Elicker is not an issue "capable of summary determination" as the record now stands.[*]
"Whether the joinder is fraudulent or not is said to depend on whether the plaintiff really intended to obtain a judgment against both defendants.
. . . . .
If there is a possibility that the plaintiff has stated a cause of action, the joinder is not fraudulent, and the cause should be remanded. Nor will a merely defective statement of the plaintiff's action warrant removal." 1A Moore's Federal Practice, para. 0.161[2], at 210, 212-13 (1974) (footnotes omitted).
The plaintiff clearly intended to obtain a judgment against Elicker and the complaint alleges sufficient underlying facts which if proven could state a claim against him. Construing the plaintiffs' pleadings "as to do substantial justice," rule 8(f), Fed.R. Civ.P., the Court holds that Elicker's joinder is not fraudulent, that no diversity of citizenship exists between the plaintiffs and defendants, and that the case must be remanded to the state forum.
IT IS THEREFORE ORDERED that the plaintiffs' motion to remand is hereby granted and the Clerk of this Court shall remand these proceedings to the District Court of San Juan County, State of Colorado, for further proceedings.
NOTES
[*] The nature of Williams role in the transactions alleged in the complaint is unclear. The Court, however, finds it necessary to consider only the involvement of Elicker and expresses no opinion as to whether Williams is properly a party to the suit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620473/ | 585 N.W.2d 511 (1998)
7 Neb. Ct. App. 759
ST. JOSEPH DEVELOPMENT CORPORATION, a Kansas corporation, Appellant,
v.
Bernadette SEQUENZIA, Appellee.
No. A-97-353.
Court of Appeals of Nebraska.
October 13, 1998.
*512 Scott A. Meyerson, of Hotz & Weaver, and W. Thomas Gilman, of Redmond & Nazar, L.L.P., Omaha, for appellant.
Dennis J. Green, of Green & Bubak, Omaha, for appellee.
SIEVERS and MUES, JJ., and HOWARD, District Judge, Retired.
SIEVERS, Judge.
This case involves enforcement of a Kansas judgment through the Nebraska courts. The district court for Douglas County agreed with the claim of the judgment debtor, Bernadette Sequenzia, that the judgment was dormant and unenforceable. The judgment creditor, St. Joseph Development Corporation (St. Joseph), appeals.
*513 FACTUAL BACKGROUND
There was very brief oral testimony in the district court because the case was tried mainly on a stipulation of facts and exhibits. St. Joseph obtained a judgment against Sequenzia and her now deceased husband in the district court for Sedgwick County, Kansas, on May 8, 1990. The principal amount of the judgment was $11,281.41, and prejudgment interest as well as costs were awarded. Postjudgment interest has accrued, making the total judgment about $20,000, but the precise amount of the judgment is not pertinent to our decision. On May 12, 1992, Sequenzia filed a chapter 7 bankruptcy in the U.S. Bankruptcy Court for the District of Colorado, and St. Joseph was listed as an unsecured creditor. Notice of that filing was mailed to St. Joseph's Kansas attorney in Wichita, and Sequenzia's discharge was entered October 16. While these facts concerning the bankruptcy are in the factual stipulation, there is no claim in the briefs that the bankruptcy has any bearing on the outcome or that it discharged this debt. Thus, we do not discuss the bankruptcy any further.
The Kansas judgment was filed with the district court for Douglas County, and the parties expressly stipulated that "[t]he Kansas Judgment which was filed in the District Court of Douglas County on March 12, 1992, created a judgment lien on the Real Property upon being filed with the District Court."
The reference to real property was to a residence located at 1201 South 44th Street in Omaha, which was the home of Sequenzia's mother. The parties stipulated that Sequenzia along with Thomas C. Marotto and Mollie M. Marotto held title as joint tenants with the right of survivorship from and after January 5, 1979, pursuant to a survivorship warranty deed. On April 13, 1992, after the Kansas judgment created a judgment lien on the South 44th Street property, as recited in the parties' stipulation, Sequenzia transferred her interest in that property to Thomas C. Marroto and Mollie M. Marotto via warranty deed. The parties stipulated that at the time of that transfer, "[St. Joseph's] lien on the Real Property was not satisfied prior to, or at the time of, the April 13, 1992 transfer." The real property on South 44th Street was later sold, and one-third of the proceeds, or $21,666.67, was placed in an escrow agreement with ATI Title Company (ATI) pursuant to a written escrow agreement signed by Sequenzia on May 6, 1996. That money is acknowledged by ATI to be Sequenzia's. The escrow agreement makes the disbursement of these funds dependent upon the outcome of this proceeding.
We note in passing that on May 31, 1996, St. Joseph filed a motion in the Kansas courts to determine dormancy of the judgment, and the Kansas trial court, on June 28, determined that the judgment against Sequenzia was not dormant under Kansas law. The parties have stipulated in this case that an appeal of that decision was pending before the Kansas Court of Appeals at the time the instant case was tried in the district court for Douglas County. On September 11, 1998, the Kansas Court of Appeals released its opinion holding that the judgment had not become dormant under Kansas law.
PROCEDURAL BACKGROUND
This case before us has its genesis in the filing by St. Joseph on October 17, 1996, of an affidavit of garnishment asserting that ATI was holding property of Sequenzia's. On October 23, ATI filed answers to interrogatories, in which it stated that it had $21,666.67 of Sequenzia's money in its possession. Sequenzia filed a request for hearing on October 25, using the preprinted form served with the garnishment. Sequenzia asserted in that form that the funds sought were exempt from garnishment. There are no other pleadings putting this case at issue, but when the matter came on for hearing before the district court for Douglas County, the court announced that it was a hearing on the "objection of the defendant to a garnishment." Counsel for Sequenzia, before the introduction of evidence, told the court that there were two arguments "in terms of these funds not being garnishable. One is that the judgment is dormant. Now, intertwined with that is the fact that the defendant here filed bankruptcy and so I suppose if they had a valid judgment, that bankruptcy discharged the debt." Nothing more at the trial level, *514 or in the briefs filed here, was said about the bankruptcy.
On February 21, 1997, the district court decided the case by an order which found that the Kansas judgment was filed in the district court for Douglas County on March 2, 1992, and that no action was taken to enforce the judgment in Nebraska until this garnishment action. The court found that the period of time required for a judgment to become dormant is "governed by the laws of the filing forum [i.e.,] Nebraska," which is 5 years. The court found that the 5 years ran from the time "the judgment is originally entered, and not from the time that the foreign judgment is registered." The court then found that "no action having been taken to execute on the judgment since January 10, 1991 until May 31, 1996, more than five years had elapsed and, therefore, the judgment had become dormant at the time this garnishment was filed." Consequently, the court found that the funds were not owed on the judgment and that the objection to the garnishment should be sustained.
Within 10 days of that decision, St. Joseph filed a "Motion for Reconsideration," requesting a new hearing on the grounds that the decision was not sustained by sufficient evidence, that it was contrary to the laws of the State of Nebraska, and that there was error of law. The district court held a hearing on the motion to reconsider, which is not part of the record, on March 7, 1997, and on March 10 the court's docket reflects: "Plaintiff's motion to reconsider is denied." The notice of appeal was filed March 28.
ASSIGNMENT OF ERROR
St. Joseph argues on appeal that the trial court erred in determining that under the Uniform Enforcement of Foreign Judgments Act (UEFJA), the time for determination of dormancy runs from the time that the judgment was originally entered in the foreign jurisdiction rather than from the time the foreign judgment was registered in Nebraska.
STANDARD OF REVIEW
An appellate court is obligated to reach an independent conclusion upon questions of law. Porter v. Smith, 240 Neb. 928, 486 N.W.2d 846 (1992).
JURISDICTION
We are initially faced with a jurisdictional question which stems from the "Motion for Reconsideration" detailed above and the decision of the Nebraska Supreme Court in Bechtold v. Gomez, 254 Neb. 282, 576 N.W.2d 185 (1998). In Bechtold, the trial court had entered an order disqualifying the Creighton Legal Clinic from participation in the underlying lawsuit. A motion to reconsider was filed, supported with an affidavit which asserted that the applicable rule of law was being extended by the trial court beyond the parameters set forth in existing decisions. The appeal from the order of disqualification of May 6, 1996, was not filed until after the trial court's order on June 11 denying the motion to reconsider. Observing that few cases discuss whether a postjudgment motion labeled a "motion to reconsider" is indeed a motion for new trial, the court, citing Russell v. Luevano, 234 Neb. 581, 452 N.W.2d 43 (1990), held that "[a] motion for reconsideration does not toll the time for appeal and is considered nothing more than an invitation to the court to consider exercising its inherent power to vacate or modify its own judgment." Bechtold, 254 Neb. at 288, 576 N.W.2d at 189-90. Russell, supra, held that where a trial court acts as an intermediate court of appeals, a motion for new trial is not appropriate and does not toll the time for filing an appeal.
The Supreme Court in Bechtold, 254 Neb. at 288, 576 N.W.2d at 189, expressly "decline[d] to treat [the] `Motion to Reconsider'" as a motion for new trial. Immediately before saying this, the opinion in Bechtold references our opinion in Horace Mann Cos. v. Pinaire, 1 Neb.App. 907, 511 N.W.2d 540 (1993), where we treated a motion labeled "motion for reconsideration" as a motion for new trial where, as here, it was based on an allegation that the decision of the court was not sustained by sufficient evidence and was contrary to law. Horace Mann Cos. was not expressly overruled by Bechtold. Perhaps the Bechtold court intended to announce a concrete rule that a postjudgment *515 pleading entitled "Motion for Reconsideration" never acquires the status or office of a motion for new trial so as to toll the running of the 30 days to perfect an appeal to a higher court. However, we are frankly uncertain if that was the intent. But, because Bechtold does not overrule Horace Mann Cos., we do not extend the holding of Bechtold to a holding that jurisdiction was not perfected in the instant case. Accordingly, we have jurisdiction and now turn to the merits of this case.
ANALYSIS
This case of apparent first impression in Nebraska involves the interface between the Nebraska dormancy of judgment statute and the UEFJA. The dormancy statute is found at Neb.Rev.Stat. § 25-1515 (Reissue 1995), and it provides:
If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment, and all taxable costs in the action in which such judgment was obtained, shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.
In short, if some sort of execution (defined as "legal process of enforcing the judgment," Black's Law Dictionary 568 (6th ed.1990)) is not attempted within 5 years of the rendition of the judgment or 5 years pass between executions, the judgment becomes dormant and not enforceable as a lien on the judgment debtor's property. The case before us involves a garnishment, which we consider to be an execution to enforce a judgment within the meaning of § 25-1515. See NC + Hybrids v. Growers Seed Assn., 219 Neb. 296, 363 N.W.2d 362 (1985) (holding that through garnishment in aid of execution, garnishee becomes "stakeholder" of property belonging to one of proper parties to lawsuit for which execution is sought and that garnishment is ancillary procedure whereby judgment creditor seeks to collect judgment).
The UEFJA, in effect March 12, 1992, the date the Kansas judgment was filed in Nebraska in the instant case, can be found at Neb.Rev.Stat. §§ 25-1587 through 25-15,104 (Reissue 1989). (We note that the Nebraska Uniform Enforcement of Foreign Judgments Act is now codified at Neb.Rev.Stat. §§ 25-1587.01 through 25-1587.09 (Reissue 1995).) The UEFJA defined a foreign judgment as any judgment, decree, or order of a court "which is entitled to full faith and credit in this state." See § 25-1587(1). Section 25-1589, in effect at the time of filing in the instant case, provided that a petition for registration could be filed in Nebraska if it contained a copy of the judgment to be registered, the date of its entry, and the record of any subsequent entries affecting it. Section 25-1589 also provided that the clerk of the registering court was to notify the clerk of the court which rendered the original judgment that petition for registration had been made.
The judgment in the instant case was obtained in Kansas on May 8, 1990, and filed in the district court for Douglas County, Nebraska, on March 12, 1992. In ruling upon Sequenzia's challenge to the garnishment, the district court reasoned, as a matter of law, that the time for determination of dormancy "runs from the time that the judgment is originally entered, and not from the time that the foreign judgment is registered." The district court then found that no action was taken to execute on the judgment from January 10, 1991, until May 31, 1996, a period of more than 5 years, which made the judgment dormant under § 25-1515. There is an inconsistency in the trial court's findings, because it ruled that dormancy runs from the time the judgment is originally rendered, but the trial court actually counted the time between attempts in Kansas to enforce the judgment, i.e., between January 10, 1991, when action to enforce the judgment was taken in Kansas, and May 21, 1996, when an order for aid in execution was issued in the Kansas court.
However, Sequenzia's argument here is not really in support of the trial judge's view that dormancy is determined by counting 5 years from when the judgment is originally *516 entered in the other state rather than from when it was registered in Nebraska. Instead, Sequenzia argues that personal jurisdiction was never obtained over her. She argues that under the UEFJA, in effect at the time of filing in Nebraska on March 12, 1992, she was entitled to have summons issued and served upon her in a manner provided for obtaining jurisdiction of the person, citing § 25-1590, a statute which has now been repealed.
Sequenzia is correct that said statute provided for service of summons upon the judgment debtor "as in an action brought upon a foreign judgment, in the manner authorized by the law of this state for obtaining jurisdiction of the person." See § 25-1590. The first difficulty with Sequenzia's argument is that in the trial court, Sequenzia stipulated as follows: "The Kansas Judgment which was filed in the District Court of Douglas County on March 12, 1992, created a judgment lien on the Real Property upon being filed with the District Court." Sequenzia appears to have stipulated away any alleged lack of personal jurisdiction. There is no doubt that a party is bound by its stipulations. See Ehlers v. Perry, 242 Neb. 208, 494 N.W.2d 325 (1993).
The next difficulty with Sequenzia's argument is that § 25-1592, which was in effect at the time the Kansas judgment was registered, provided:
At any time after registration and regardless of whether jurisdiction of the person of the judgment debtor has been secured or final judgment has been obtained, a levy may be made under the registered judgment upon any property of the judgment debtor which is subject to execution or other judicial process for satisfaction of judgments.
Additionally, Sullivan v. Sullivan, 168 Neb. 850, 854, 97 N.W.2d 348, 352 (1959), in speaking of a registered judgment and referencing § 25-1592, states that "[i]t [registered judgment] was therefore a judgment and required to be so regarded and recognized on and after registration." Sullivan also holds that once recognized as a judgment, which under Sullivan means upon registration, the judgment creditor has by right of levy the same rights as the holder for a "domestic judgment" with reference to the property of the judgment debtor. As a consequence, as soon as the Kansas judgment was registered, it was like a Nebraska judgment and St. Joseph could execute upon it. Service of process upon Sequenzia was not necessary.
The next problem with Sequenzia's argument is that it is a position not taken in the trial court and not ruled upon by the trial court. It is a well-established rule of our jurisprudence that absent plain error, an appellate court will not consider an issue on appeal which was not presented to or passed upon by the trial court. Metropolitan Utilities Dist. v. Twin Platte Natural Resources District, 250 Neb. 442, 550 N.W.2d 907 (1996).
A judgment goes dormant under Nebraska law if 5 years pass without execution. The execution here began with the summons and garnishment filed October 17, 1996. Therefore, had 5 years passed without execution at the time of the garnishment? The answer of course depends upon what event one begins counting from. The district court found that the law was to begin counting from the date of the Kansas judgment. To the extent that there is law supporting that view, it is definitely a minority view, and the law is now rather well established, in jurisdictions which have decided the question, that the count for dormancy begins on the date that the foreign judgment is brought to a state and registered. In the instant case, this would be March 12, 1992, and of course 5 years had not passed from that date to the execution via garnishment filed October 17, 1996.
Our research reveals that there are three seminal cases on the subject which we find persuasive and controlling. We begin with Warner v. Warner, 9 Kan. App. 2d 6, 668 P.2d 193 (1983). On January 2, 1971, Charles Warner was ordered by a Missouri court to pay separate maintenance to Erna Warner in the amount of $600 per month. The Missouri court reduced the monthly payments to $300 per month on April 26, 1976. Erna registered the Missouri judgment in Johnson County, Kansas, as a foreign support order on November 16, 1976, alleging that there *517 were past due payments of $26,000. Charles moved for a finding in the Kansas court that the payments which had accrued before October 1976, 5 years before an attempted Kansas execution in October 1981, had become dormant judgments. The Kansas court first determined several issues relating to the fact that the case involved a series of monthly amounts which were accruing, issues not pertinent here. The court then turned to the effect of the Kansas dormancy statute. The Kansas court referred to the general foreign judgments act, which provided that once a foreign judgment is registered, it is to be treated as if it were a Kansas judgment. Like Nebraska law, Kansas law provided that a Kansas judgment becomes dormant 5 years after its effective date. Thus, the Kansas court asked what the effective date of a foreign judgment was for dormancy purposes. The court answered that it was the date it was registered, reasoning:
Thus a foreign judgment four years and eleven months old when registered does not become dormant in Kansas a month later. Such a rule would defeat the purpose of the registration act and be totally inconsistent with the result achieved if the judgment holder sued on the foreign judgment, as permitted by K.S.A. 60-3006. Instead, registration of a foreign judgment which is enforceable when registered gives the judgment creditor a new and additional five years to execute, regardless of when the judgment was rendered in the foreign state.
Warner, 9 Kan.App.2d at 8, 668 P.2d at 195.
The next case of consequence is Pan Energy v. Martin, 813 P.2d 1142 (Utah 1991), where the plaintiff obtained an Oklahoma judgment in September 1982 and registered it in Utah in August 1987 under that state's version of the UEFJA, the Utah Foreign Judgment Act. Under Oklahoma law, a judgment becomes unenforceable without execution within 5 years. As a result, the Oklahoma judgment became dormant in Oklahoma, the originating state, 1 month after the judgment creditor filed in Utah, which had an 8-year statute of limitations before dormancy. See Utah Code Annot. § 78-12-22 (1987). The Utah Foreign Judgment Act provided, like Kansas' general foreign judgments act, that the judgment, once registered in Utah, becomes "a judgment of a district court of this state...." (Emphasis omitted.) Pan Energy, 813 P.2d at 1144. Accordingly, the Utah court held that because judgments properly filed in Utah become Utah judgments, the Utah statute of limitations applied to enforcement of the judgment in Utah.
The Utah court, in support of its holding, recited that the federal courts have taken a similar approach with respect to a similar federal registration statute. The Utah court cited Justice Blackmun's opinion, while he was on the 8th Circuit Court of Appeals, in Stanford v. Utley, 341 F.2d 265 (8th Cir. 1965). In Stanford, the court allowed enforcement of a judgment in Missouri even though it was unenforceable in Mississippi, the state where it was rendered, because the Missouri statute of limitations had not yet expired. Justice Blackmun wrote: "We feel that registration provides, so far as enforcement is concerned, the equivalent of a new judgment of the registration court." Utley, 341 F.2d at 268. The Utah court adopted this view, holding that because the Oklahoma judgment was filed under the Utah Foreign Judgment Act, it could be enforced as a Utah judgment, irrespective of subsequent dormancy in the state of rendition. Finally, referencing the Full Faith and Credit Clause, the Utah court held that Utah may apply its own statute of limitations to the enforcement of a foreign judgment.
Finally, we turn to a case decided since the parties briefed this issue, Drllevich Const., Inc. v. Stock, 958 P.2d 1277 (Okla.1998). The Oklahoma Supreme Court overruled its earlier decision to the contrary and held that an enforceable foreign judgment which was registered in Oklahoma under the Uniform Enforcement of Foreign Judgments Act is considered a new judgment for purposes of the Oklahoma 5-year dormancy statute. The Oklahoma court relied heavily on Pan Energy, supra, and Warner, supra, as well as reviewing other decided cases to conclude that a foreign judgment, if enforceable when registered, is then subject to the dormancy statute of the registering state.
*518 In the case at hand, we note the stated effect of the UEFJA, which is that once registered, levy can be made on a foreign judgment as to any property of the judgment debtor subject to judicial process for the satisfaction of judgments. Nebraska judgments go dormant only if 5 years pass without execution thereupon. In this case, the judgment from Kansas became the functional equivalent of a Nebraska judgment in March 1992 and execution via garnishment was undertaken in October 1996. We note that § 25-1587.03 (Reissue 1995) now expressly provides that a registered foreign judgment shall be treated by the clerk in the same manner as a "judgment of a court of this state." Thus, 5 years had not passed between when the Kansas judgment became a Nebraska judgment and its execution via garnishment. When effect is given to the Nebraska dormancy statute, it naturally follows that the judgment was not dormant under § 25-1515.
CONCLUSION
For the foregoing reasons, the district court was incorrect in counting the 5 years from either the date of last execution in Kansas or the date of the Kansas judgment and was incorrect in holding that the funds held by the garnishee, ATI, were not subject to garnishment.
REVERSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588369/ | 146 P.3d 631 (2006)
STATE
v.
TORRES.
No. 26335.
Intermediate Court of Appeals of Hawai`i.
November 21, 2006.
Summary dispositional order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2749985/ | Motion Granted; Reinstated; and Order filed October 23, 2014.
In The
Fourteenth Court of Appeals
____________
NO. 14-13-00274-CV
____________
SAMER W. YACOUB, Appellant
V.
SURETEC INSURANCE COMPANY, Appellee
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1003979
ORDER
Notice was filed on October 22, 2013, that appellant filed for bankruptcy
protection. Tex. R. App. P. 8.1. According to the notice, on October 18, 2013,
Samer Wadih Yacoub petitioned for voluntary bankruptcy protection in the United
States Bankruptcy Court for the Southern District of Texas under case number 13-
36491. A bankruptcy suspends the appeal from the date when the bankruptcy
petition is filed until the appellate court reinstates the appeal in accordance with
federal law. Tex. R. App. P. 8.2. Accordingly, we ordered the appeal abated.
On October 8, 2014, appellee filed a motion to reinstate the appeal. See Tex.
R. App. P. 8.3. According to appellee’s motion appellant’s bankruptcy case was
dismissed on August 7, 2014. A copy of the bankruptcy court’s order is attached to
appellee’s motion. See id. The motion has been on file more than ten days and no
response has been filed. See Tex. R. App. P. 10.3(a).
Accordingly, we GRANT the motion, and the appeal is ordered
REINSTATED. The parties’ briefs have been filed and the case is at issue. The
appeal will be scheduled for submission on the briefs in accordance with the
court’s regular procedures.
PER CURIAM | 01-03-2023 | 11-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1620679/ | 294 S.W.2d 18 (1956)
Hedge Bland ADAMS, Garland Eugene Adams and Mary Elizabeth Adams, Respondents,
v.
William W. ADAMS, Rue Finley Mason and Minnie Jane Mason, Appellants.
No. 45476.
Supreme Court of Missouri. Division No. 1.
October 8, 1956.
Francis G. Hale, Robert E. Coleberd, Liberty, for appellants.
J. William Blackford, Kansas City, for respondents.
*19 HOLMAN, Commissioner.
Plaintiffs instituted this action seeking to establish an interest in certain farm lands; to have a contract declared to be a mortgage and an accounting as to the amount due thereon; for partition and for an accounting of a partnership with defendants which was alleged to have existed for 16 years without any accounting. A trial resulted in the entry of an interlocutory decree and a modified interlocutory decree which, in effect, decreed that plaintiffs were the equitable owners of a certain described tract of 187.375 acres of land, subject to the amount due on the contract which was held to be a mortgage, ordered an accounting, and appointed a referee to which the matter of the accounting was referred. A motion for new trial was overruled and the defendants Mason have appealed.
The plaintiffs are Hedge Bland Adams, his son Garland, and the latter's wife Mary Elizabeth Adams. The defendants are William W. Adams (brother of Hedge), his daughter Minnie Jane Mason, and her husband Rue Finley Mason. The various controversies herein grow out of the ownership and operation of the Adams family farm containing about 375 acres. The farm was acquired by Hedge and William under the will of their father who died in 1916. In 1932 these brothers gave a deed of trust thereon to secure a note for $16,000 to The Commercial Bank of Liberty, which was paid as a result of the partition proceedings hereafter mentioned. In 1933 the land was sold in partition and purchased in the name of William who placed deeds of trust thereon to the Federal Land Bank and Land Bank Commissioner securing notes in the total sum of $19,000. We infer from the oral arguments in this court that the reason for the partition sale and resulting transfer of title to William was the fact that Hedge's wife had become of unsound mind and hence not legally capable of transacting business. At any rate, plaintiffs continued to live on the farm.
On July 29, 1938, William and his wife conveyed the land to Rue and Minnie Mason subject to the encumbrances heretofore noted. On the same day two other instruments were executed. In one, Rue and Minnie Mason, as first parties, agreed (in substance) with Hedge, Garland and Mary Elizabeth Adams, second parties (plaintiffs), that they would convey to Garland and Mary a tract, therein described, containing 187.375 acres (a part of the aforementioned farm) at any time during the lifetime of either Garland or Hedge upon the condition that second parties pay first parties (1) $1,710.28, with interest, which they had expended for the benefit of Hedge, (2) any further monies, with interest, thereafter advanced for the benefit of second parties, and (3) one half of the amounts thereafter paid by first parties on the encumbrances heretofore described. It was further provided that second parties give first parties a note for $1,000 secured as a vendor's lien. In the event Garland and wife acquired the title to said land under that agreement, it was further provided that they could purchase an additional tract of 27½ acres for $58.80 per acre.
The other instrument executed on July 29, 1938, was a partnership agreement, for the operation of the whole farm, entered into by Rue Mason, William W. Adams, Hedge Adams, and Garland Adams. The terms of this agreement need not be stated, but it may be noted that it provided that there should be an annual accounting among the partners and that checks on the partnership bank account should be signed by William W. Adams. On May 6, 1942, the encumbrances heretofore mentioned were paid and released of record.
The relief sought by plaintiffs has already been stated generally. In part, it was alleged that William Adams kept the books of the partnership (which was terminated by Mason in 1954); that there has never been an accounting, and that *20 defendants have refused to give plaintiffs an accounting. The answers filed by defendants substantially denied the allegations of the petition.
On January 17, 1956, an interlocutory decree was filed which found and provided (1) that plaintiffs were the owners of the fee-simple title to the tract of 187.375 acres described in the aforementioned contract, (2) that said contract was in fact a mortgage on said land representing an indebtedness which plaintiffs owe the Masons, the amount thereof to be determined by a referee, (3) that after payment of said mortgage debt, Garland and wife could enforce the agreement by the Masons to sell them the additional 27½ acres of land, (4) that no partnership accounting had been given plaintiffs, and (5) that the matter be referred to Richard A. Moore, an attorney, for an accounting of the partnership and also of the amount due on the mortgage (contract) and that he report his findings to the court.
The defendants Mason filed a motion to modify or set aside said interlocutory decree and also a separate motion for new trial. On March 1, 1956, the court entered a "Modified Interlocutory Decree." It is not entirely clear from the record whether this latter decree was supplemental to or substituted for the first decree. We have concluded (as was apparently the construction of the parties) that it was supplemental to the first one. However, since we are of the view (as hereafter indicated) that the appeal herein is premature, and hence the cause is still pending in the trial court, it would seem that the trial court would be authorized to make such amendments as it deems advisable to clarify that question and to correct certain inadvertent or typographical errors in these interlocutory decrees.
The modified interlocutory decree specifically stated that the record title to the tract of land in question was in the Masons. It further specified in detail the provisions of the two Federal Land Bank deeds of trust that were a lien on the said land when the aforementioned contract was entered into and directed that the referee determine the amount paid thereon by the Masons after the execution of the contract. As we have stated, the plaintiffs were required to repay one half of the amount so paid as one of the conditions of obtaining title to said tract.
The transcript does not disclose any ruling on the motion of defendants Mason to modify the first decree, although it may be that the modified decree resulted from a consideration thereof. As stated, the motion for new trial was overruled at the same time the modified decree was entered.
We are in agreement with the contention of plaintiffs that the appeal herein is premature. The right of appeal is entirely statutory and Section 512.020 (all statutory references are to RSMo 1949, V.A.M.S.) provides, in part, that an appeal may be taken "from any final judgment in the case." The statutory definition of a judgment is "the final determination of the right of the parties in the action." Section 511.020. We have often said that "a final, appealable judgment is ordinarily one which disposes of all parties and all issues in the case." State ex rel. v. Hammel, Mo.Sup., 290 S.W.2d 113, 116.
The decree (we will hereafter refer to the original decree and modified decree as together constituting one decree) herein was entitled as "interlocutory." That word is defined as "not final" and in a legal sense is said to be "Something intervening between the commencement and the end of a suit which decides some point or matter, but which is not a final decision of the whole controversy." 47 C.J.S., p. 85. An examination of the decree will indicate that it was properly designated as interlocutory, as it provides for further proceedings in the trial court, to wit: an accounting as to various financial transactions between these parties extending over a period of 16 years.
*21 Where, as here, the defendant in a case denies the right of a plaintiff to an accounting "the usual and proper procedure in a suit for an accounting is first to hear and determine the question whether or not the petitioner is entitled to an accounting, and if so, an interlocutory decree is made accordingly and an accounting is thereafter had before the Court, or before a commissioner, whose findings thereafter are submitted for the approval of the Court upon exceptions thereto, if any, and final judgment thereupon entered." Patton v. Goodson, 238 Mo.App. 439, 183 S.W.2d 333, 337. The instant case is very similar to Boden v. Johnson, 224 Mo.App. 211, 23 S.W.2d 186, 189, wherein an appeal from a decree ordering an accounting was held to be premature, the court therein saying, "There was no final judgment determinative of the rights of the parties which could be enforced by execution, and the order made clearly contemplates further action and proceedings on the part of the court before the subject matter would be ripe for the rendition of any final judgment. The propriety of the order requiring an accounting is not before us for consideration, because, of necessity, it was a required preliminary order, before the court could proceed to final judgment. The proceeding in this case, so far as it went, was in accordance with the general and accepted rules of procedure in matters of accounting. Buffington v. Green et al., 221 Mo. App. [695] loc. cit. 702, 285 S.W. 531. Under the above authority it would have been error for the court to have proceeded to cast an account between the parties before determining the issue as to the right of an accounting and entering its interlocutory judgment. In entering such interlocutory judgment the court is not required, or in fact permitted, to determine the merits of the controversy and the rights of the parties as a basis for final judgment."
In contending that the instant decree was final and appealable the defendants rely mainly on Abbott v. Seamon, Mo.App., 217 S.W.2d 580 (see former appeal in 203 S.W.2d 139). In that case the court referred to the judgment in an accounting suit as interlocutory and said it became final when the motion to modify was passed upon. However, in that case the accounting had been fully taken before the judgment was entered and the court evidently described it as interlocutory in order to indicate that it was not appealable until the after-trial motion was disposed of.
It is provided in Section 512.020 that an appeal may be taken "from any interlocutory judgments in actions of partition which determine the rights of the parties." The appellants contend that the decree was appealable under that provision. There is no merit in that contention. The decree did not purport to partition any real estate. It adjudged that plaintiffs were the equitable owners of the 187-acre tract subject to the mortgage (contract) lien of defendants Mason. The parties defendant were not decreed to be the owners of any undivided interest in that tract. "The general rule is that there can be no partition unless each of the parties thereto has an interest in all of the property sought to be partitioned." Fulk v. Williams, Mo.Sup., 37 S.W.2d 511, 512. See also, Kehde v. Vaudeville Theatre Co., 299 Mo. 540, 252 S.W. 969.
It should be noted that the court did not order a separate trial of any issue herein as contemplated by the provisions of Section 510.180(2) and Supreme Court Rule 3.29, 42 V.A.M.S.
The appeal herein, being premature, is dismissed.
VAN OSDOL and COIL, CC., concur.
PER CURIAM.
The foregoing opinion by HOLMAN, C., is adopted as the opinion of the court.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620375/ | 222 Wis.2d 80 (1998)
585 N.W.2d 885
Richard SEIDER and Jean Seider, Plaintiffs-Appellants,
v.
Josephine W. MUSSER, Commissioner of Insurance, Defendant-Respondent.[]
No. 98-1223.
Court of Appeals of Wisconsin.
Submitted on briefs July 13, 1998.
Decided September 17, 1998.
*82 On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Andrew J. King of Lutz, Burnett, McDermott, Jahn & King, LLP of Chilton.
On behalf of the defendant-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Paul L. Barnett, assistant attorney general.
Before Dykman, P.J., Vergeront and Roggensack, JJ.
VERGERONT, J.
Richard and Jean Seider appeal from a judgment dismissing their complaint for a declaratory judgment that WIS. ADM. CODE § INS 4.01(2)(e) is invalid because it conflicts with § 632.05(2), STATS., the "valued policy law." That statute establishes the policy limits as the amount of loss whenever insured real property "owned and occupied by the insured as a dwelling" is wholly destroyed. Section 632.05(2)[1]. The administrative regulation makes this statute inapplicable when there is a "policy insuring real property any part of which is used for commercial (non-dwelling) purposes other than on an incidental basis. "WIS.ADM. CODE § INS 4.01(2)(e).[2]. The *83 trial court concluded that, while the rule did limit and restrict the applicability of the statute, the rule did not conflict with the statute and was valid because it was within the rule-making authority of the Office of the Commissioner of Insurance (OCI).
We conclude that the rule does conflict with the statute because the statute plainly applies to real property that is owned and occupied by the insured as a dwelling, regardless of whether the real property is also used by the insured for commercial purposes. The OCI therefore exceeded its authority when it made the statute inapplicable simply because the real property was used for commercial purposes in addition to being occupied as a dwelling. Accordingly, we reverse and remand.
BACKGROUND
The parties have stipulated to the pertinent facts. The Seiders are husband and wife. On April 10, 1995, they acquired ownership of a building and real estate located in Manitowoc County. In November of that year, the building was wholly destroyed by fire through no criminal fault of their own or their assigns. From the time they acquired the building until it was destroyed, the Seiders used the building to conduct their restaurant business, known as the Steinthal Valley Lodge. During that same time period, they occupied the building as their dwelling, residing there continuously and exclusively. They did not own or occupy any other building as their dwelling during that period.
*84 At the time of the fire, the Seiders were the insureds under a policy of insurance issued by Wilson Mutual Insurance Company, which had a limit of liability, subject to all the terms of the policy, of $150,000. The policy insured the building and real estate against loss by fire. After the fire, the Seiders filed a proof of loss in the amount of the liability limits, which was rejected by Wilson Mutual. Instead Wilson Mutual paid them $129,053.39, which represents the actual cash value of the building after application of the deductible. The policy provided that valuation of the property shall be the actual cash value at the time of loss.
The trial court dismissed the Seiders' claim that they were entitled to $150,000 under § 632.05(2), STATS., and that WIS. ADM. CODE § INS 4.01(2)(e) was invalid. The court reasoned that OCI was charged with administering and enforcing the valued policy law and, therefore, had the authority to interpret it if necessary to achieve the legislative intent. The court concluded that WIS. ADM. CODE § INS 4.01(2)(e) was consistent with the legislative intent as revealed in the legislative history of the statute. The court agreed with the Seiders that the statute as a whole was clear and unambiguous and that "dwelling" should be given its plain meaning; however, it decided that even when the term "dwelling" is given its plain meaning it is subject to different interpretations that require clarification. The court acknowledged that the rule did "limit and restrict the applicability of the statute," but concluded that it did so without conflict with the statute and was, therefore, valid.
*85 DISCUSSION
[1]
On appeal, the Seiders renew their argument that the rule is invalid because it conflicts with the plain language of the statute and thus exceeds the authority of OCI. Section 227.40(4)(a), STATS., provides that in a proceeding for judicial review of an administrative rule, "the court shall declare the rule invalid if it finds that it ... exceeds the statutory authority of the agency...." Whether a rule exceeds the statutory authority of an agency presents a question of statutory construction, which we review de novo. DeBeck v. DNR, 172 Wis. 2d 382, 386, 493 N.W.2d 234, 236 (Ct. App. 1992).
[2, 3]
The OCI is authorized by statute to administer and enforce chapters 600 to 655 of the Wisconsin Statutes and to promulgate rules as provided in § 227.11(2), STATS. See § 601.41(1) and (3), STATS. Section 227.11(2)(a) provides:
(2) Rule-making authority is expressly conferred as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if it exceeds the bounds of correct interpretation.
An administrative rule that conflicts with an unambiguous statute exceeds the rule-making authority of the administrative agency. Basic Products Corp. v. Wis. Dep't of Taxation, 19 Wis. 2d 183, 186, 120 N.W.2d 161, 162 (1963). Therefore we first consider whether § 632.05(2), STATS., is ambiguous. This, too, is a *86 question of law, which we review de novo. See Awve v. Physicians Ins. Co., 181 Wis. 2d 815, 822, 512 N.W.2d 216, 218 (Ct. App. 1994).
We agree with OCI that we determine whether a statute is ambiguous in the context of the issues and facts before us. See Drangstviet v. Auto-Owners Ins. Co., 195 Wis. 2d 592, 599, 536 N.W.2d 189, 191 (Ct. App. 1995). We have held that § 632.05(2), STATS., is unambiguous in the context of the question whether an estate occupies a dwelling under § 632.05(2). See id. at 600, 536 N.W.2d at 191 (holding that the statute plainly applies to insureds who are persons actually using a place as a residence and does not apply to the inanimate entity of an estate). However, that does not answer the issue on this appeal. Similarly, our conclusion in Kohnen v. Wis. Mut. Ins. Co., 111 Wis. 2d 584, 586, 331 N.W.2d 598, 599 (Ct. App. 1983)that the term "occupied" is ambiguous in the context of the question whether an insured who periodically leases a dwelling "occupies" it[3] does not resolve the issue on this appeal. The issue before us is whether the term "dwelling" in § 632.05(2) is ambiguous when applied to insureds who reside in a building that is destroyed by fire, have no other residence, and also use the building for a business. We conclude there is no ambiguity and the plain language of the statute includes this situation.
There is no dispute that the Seiders occupied the building as a dwelling. Ambiguities which might exist *87 had they owned another residence, or were temporarily staying elsewhere, for example, do not exist in this case. The OCI contends one could reasonably interpret a "dwelling" as not including real property that is "predominantly commercial" and "only used incidentally as a residence." However, OCI does not elaborate on this assertion. We see nothing in the plain language of the statute suggesting that additional uses of the building might affect whether it is a dwelling. The dictionary definition of "dwelling" is "a building or construction used for residence. "WEBSTER'S THIRD NEW INT'L DICTIONARY 706 (1993).[4] This definition does not suggest that use of a building for a purpose in addition to that of a residence affects whether the building is a dwelling. Of course the legislature could have stated that the use as a dwelling must be the "sole use," or the "predominate use," or in some other way indicated that uses in addition to a dwelling affected the application of the statute; but the legislature did not do that.
We have carefully considered the trial court's reasoningthat the statute is clear and unambiguous, but even when "dwelling" is given its plain meaning according to the dictionary, it is still in need of further clarification. However, we conclude the plain meaning of "dwelling" is not in need of further clarification as to whether additional uses of the building affect a building's status as a dwelling. Nothing in the dictionary definition or the language of the statute suggests this.
*88 [4]
The OCI urges us to consult the legislative history of the statute to discern its purpose, as the trial court did. The trial court concluded that OCI's regulation is reasonable because it furthers that legislative purpose: eliminating disputes over the "actual value" of homes that hold intrinsic and sentimental worth to people. However, in interpreting a statute, we do not start with the legislative history. We begin with the language of the statute to determine legislative intent; if that is not ambiguous, we apply the language to the case at hand and do not look beyond that language for other meanings. See Kelley Co., Inc. v. Marquardt, 172 Wis. 2d 234, 247, 493 N.W.2d 68, 74 (1992). We consult the legislative history of a statute to determine legislative intent only if we have already determined that it is ambiguous. Id. Since we have decided § 632.05(2), STATS., is not ambiguous, we do not consider its legislative history.
[5]
Having concluded that the statute is not ambiguous in the context of the facts on this appeal, we must decide whether WIS. ADM. CODE § INS 4.01(2)(e) conflicts with it. The trial court determined that it did not, because the rule simply clarified a term that needed clarifying in order to be consistent with legislative intent. However, as we have already explained, the plain language of the statute does not suggest that use of a dwelling for additional purposes affects the statute's application. Therefore, a rule that makes the statute inapplicable to a building that an insured owns and occupies as a dwelling on the ground that it is also used for commercial purposes does conflict with the statute and does exceed the authority of OCI.
*89 The OCI argues that, although the rule may be invalid under other circumstances, it is valid as applied to the Seiders because their policy is a commercial package policy for real estate. However, the statute applies "[W]henever any policy insures real property which is owned and occupied by the insured as a dwelling." Section 632.05(2), STATS. (emphasis added). The plain language of the statute does not condition its application on whether the policy is a commercial policy or a homeowner's policy. Moreover, the challenged rule does not focus on the type of policy but rather on the uses of the property.
We conclude that the Seiders are entitled to a declaratory judgment that WIS. ADM. CODE § INS 4.01(2)(e) is invalid because it exceeds the bounds of correct interpretation of § 632.05(2), STATS., in that it conflicts with the plain language of that statute. We therefore reverse and remand to the trial court for the entry of a declaratory judgment.
By the Court.Judgment reversed and cause remanded with directions.
NOTES
[] Petition to review granted.
[1] Section 632.05(2), STATS., provides in full:
TOTAL LOSS. Whenever any policy insures real property which is owned and occupied by the insured as a dwelling and the property is wholly destroyed, without criminal fault on the part of the insured or the insured's assigns, the amount of the loss shall be taken conclusively to be the policy limits of the policy insuring the property.
[2] WISCONSIN ADM. CODE § INS 4.01(2)(e) provides in full:
(e) Combined commercial and residential properties. A policy insuring real property any part of which is used for commercial (non-dwelling) purposes other than an incidental basis is not subject to s. 632.05(2), Stats.
[3] In Kohnen v. Wis. Mut. Ins. Co., 111 Wis. 2d 584, 586, 331 N.W.2d 598, 599 (Ct. App. 1983), we held that even though "occupy" was ambiguous, OCI's rule was unreasonable insofar as it made § 632.05(2), STATS., inapplicable solely because of a past rental, since that fact does not affect an insured's present occupancy.
[4] We may consult a dictionary to give a word its ordinary meaning, see Swatek v. County of Dane, 192 Wis. 2d 47, 61, 531 N.W.2d 45, 50 (1995), and doing so does not in itself mean a statute is ambiguous. See State v. Sample, 215 Wis. 2d 486, 498-99, 573 N.W.2d 187, 192 (1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620378/ | 294 S.W.2d 775 (1956)
Charles WHALEY, Appellant,
v.
Todd CRUTCHFIELD, Appellee.
No. 5-1051.
Supreme Court of Arkansas.
November 5, 1956.
Concurring Opinion November 12, 1956.
*777 Surrey E. Gilliam, Melvin E. Mayfield, El Dorado, for appellant.
McKay, Anderson & Crumpler, Magnolia, for appellee.
ROBINSON, Justice.
This is an appeal from a judgment in the sum of $1,500 in favor of appellee, Todd Crutcbfield, for damages, to an automobile he owned, which occurred in a collision with an automobile owned and operated by appellant, Charles Whaley. Crutchfield is in the automobile business at Magnolia; at the time of the collision one of his automobiles was being driven by his employee, Grady England. Whaley and England were proceeding in opposite directions. Crutchfield alleges that Whaley negligently cut to the left in front of England, Crutchfield's employee. Whaley denied the allegations of the complaint and pleaded contributory negligence on the part of England.
Appellant first argues that the trial court erred in giving Instuction No. 1 requested by appellee. The instruction is as follows: "You are instructed that the laws of the State of Arkansas provide that `No person shall turn a vehicle from a direct course upon the Highway unless or until such movement can be made with reasonable safety and then only after giving a clearly visible signal of intention to turn continuously during no less than the last 100 feet of travel by the vehicle before turning.' Failure to comply with the laws of this State may be considered in connection with all of the other testimony in the case in determining whether or not a party is negligent."
Appellant says a signal to turn is necessary only in the event another car may be affected. Without a prolonged discussion of this point, suffice it to say that here, another car was affected. Appellant also contends that the last sentence of the instruction assumes there was a failure to give a signal to turn. We think the instruction might be construed by a jury as assuming that the signal was not given; hence, on re-trial, the instruction should be framed so as to eliminate this objectionable feature.
The following is Instruction No. 3, given at the request of appellee: "If you find by a preponderance of the evidence that the defendant was negligent and that said negligence was the sole proximate cause of the collision then you shall return a verdict in favor of the plaintiff as against the defendant." This is a binding instruction.
Appellant maintains that the instruction is defective in three particulars: First, that it authorizes the jury to find for the plaintiff if the defendant is guilty of any negligence, and does not confine the jury to a consideration of the negligence alleged in the complaint only. Even if the instruction is defective in this respect, it is not inherently erroneous on that account, and no specific objection was made calling the court's attention to the v *778 error now urged in that regard. "A general objection to an instruction not inherently erroneous is insufficient." Carmichael, Adm'x v. Mercury Motors, 224 Ark. 553, 275 S.W.2d 15, 17. Further, it is claimed that the instruction assumes there was negligence on the part of appellant, but we do not think the instruction is bad in that respect Nolan v. Haskett, 186 Ark. 455, 53 S.W.2d 996. As his third proposition, appellant contends the instruction is fatally defective because it is a binding instruction, which tells the jury to find for the appellant on certain conditions, and that it is inherently erroneous because it ignores the defense of contributory negligence asserted by the appellee. Where an instruction is inherently erroneous and binding, it cannot be cured by a correct instuction. The court said, in Holmes v. Lee, 208 Ark. 114, 184 S.W.2d 957, 959, "Where an instruction directs the jury to find for the plaintiff if stated conditions concur, but fails to say that contributory negligence is a defense, (as to which there is appropriate proof), it is inherently wrong and cannot be cured by correct instuctions separately given." In the case at bar, there was evidence of contributory negligence on the part of England, appellee's employee. Therefore, the instruction should have included the defense of contributory negligence. Appellee maintains that the instruction is not erroneous because it uses the term "sole proximate cause", but we see no practical distinction between "the proximate cause" and "the sole proximate cause".
Over appellant's objections, appellee was permitted to prove declarations of a third party made at the scene of the collision. After appellant's objections were overruled, the witness, Grady England, was questioned by appellee's attorney with reference to statements made by a third party.
"Q. Now, what did she say? A. She says, `Uncle Charley, I told you that you was going to get in trouble driving like this. You see this man is directly in his lane, and he couldn't help but hitting you.'
"Q. What did Mr. Whaley say? A. Now, I don't remember him saying anything.
"Q. As far as you know he didn't say anything. A. That's right."
The third party declaration was not admissible in evidence; it was hearsay, and, as such, was not admissible unless the declaration came within one of the exceptions to hearsay rule. If the evidence is admissible, it would be on the theory that it was an implied admission on the part of appellee. One of the requisites for the admission of declarations of third parties is whether "the statement is made under such circumstances and by such persons as naturally call for a reply." 20 Am.Jur. 480. Here, the person who is alleged to have made the statement is not identified. True, she addressed appellant as "Uncle Charley", but for all the record shows, everybody in the community may have called him "Uncle Charley". The appellant had just been in a collision where considerable damage was done; in all probability, he was somewhat excited at the time. Perhaps he knew the woman who is alleged to have made the statement, but, on the other hand, he may not have known her. There is no showing that the woman saw the collision or knew anything about how it occurred. In these circumstances, we do not believe the appellant was called upon to make a reply. "Whether the circumstances are such as to call for a reply is a question for the court." Pulver v. Union Investment Company, 8 Cir, 279 F. 699, 705.
Lastly, there is the contention that the court erred in refusing to permit Whaley to prove the replacement cost of the automobile to Crutchfield in determining the measure of damages. Appellee Crutchfield proved that the retail market value of the car, immediately before the *779 collision, was $3,211, and the value immediately after the collision was $1,001. Appellant Whaley offered to prove that the wholesale cost of the automobile to the appellee was not in excess of $2,409.27, and that the car could be replaced by appellee for that amount. But, the court refused to permit such evidence to go to the jury. The jury were instructed that the measure of damages was the difference between the market value immediately before and immediately after the collision occurred. In the situation presented here, the measure of damages is the difference between what the wholesale price of the car, delivered to appellee, would be immediately before the collision and the market value immediately after the damage occurred. Ordinarily, the measure of damages is the retail market value of the property immediately before the damage occurs, and immediately thereafter. Southern Bus Company v. Simpson, 214 Ark. 323, 215 S.W.2d 699. But, that rule does not apply where the property involved is part of a stock in trade of a business concern. In Sedgwick on Damages, 9th Edition, Volume 1, § 248a, it is said: "When in the ordinary case a value is to be found for a single thing, the value is what that single thing would sell for; which amounts to the retail value of it. But when a court is dealing with a stock of goods held for sale, or even with a portion of such a stock, the value to be found is its value as a stock or part of a stock of goods, that is, its wholesale value, without the profit of resale which enters into the retail value; for at the time of valuation that profit has not yet been earned, or, to put the matter in another way, the process of distribution, which brings the goods into the hands of the consumer and thus gives them their final increment of value, has not yet taken place."
And the court said, in John Blaul & Sons v. Wandel, 137 Iowa 301, 114 N.W. 899, 902, "We think the court also erred in allowing the jury to take into count the retail price of the flour in determining its value. The flour being a merchantable commodity and not having been paid for, defendant could have suffered no damage from the wrongful taking of it, save the expense of replacing by the purchase of other flour of the same quality in the quantity taken. He was not entitled to have from the plaintiffs the price for which he might have sold the flour in the ordinary course of business at retail."
Our own case of General Fire Extinguisher Company v. Beal-Doyle Dry Goods Company, 110 Ark. 49, 160 S.W. 889, 892, involves the damage to a stock of merchandise. There, the court said: "The market value of the goods to appellee immediately before the injury was what such goods would have cost in the usual markets where same could have been purchased, plus the expense or cost incident to shipping them to appellee's place of business, and the market value immediately after such goods were damaged was what the goods could have been sold for in the market where the goods were held for sale." Here, Crutchfield is in the automobile business; the car damaged was a new one which was taken out of stock by Crutchfield's salesman merely for the purpose of showing it to a prospective purchaser. In these circumstances, the measure of damages is the difference between the wholesale market value of the car immediately after the collision and the wholesale value, plus delivery charges, immediately before the damage occurred.
We have examined the other points argued by appellant, but find only the errors indicated herein.
Reversed and remanded.
WARD, J, concurs.
WARD, Justice (concurring).
I agree with the resutl reached by the majority in reversing this case because I do not think the testimony of Grady England was admissible in evidence.
*780 However I do disagree with the majority opinion in two respects as set out below.
1. In my opinion Instruction No. 3 given at the request of appellee was not erroneous. My knowledge of the meaning of the English language impels me to conclude that the word "sole" as used in the instruction was sufficient to leave no doubt in the minds of the jury that there could be no other proximate cause than that of the defendant's negligence, and that consequently it did not ignore the defense of contributory negligence which was adequately set forth in other instructions.
2. In my opinion the instruction on the measure of damages given by the court and set out in the majority opinion is a correct and proper instruction, i. e. the difference between the market value of the automobile immediately before and after the collision occurred. It is conceded that this would have been the proper instruction if the damaged automobile had belonged to a member of the general public rather than to an automobile dealer.
It seems to me that the majority in announcing the rule it didthe difference between the wholesale market value of the car immediately before and after the collisionfailed to take into consideration that the car was not completely destroyed. I concede that where goods, belonging to a retailer, are completely destroyed the measure of damages is as stated by the majority. On the other hand, where such goods an only damaged, the proper rule is the general rule first announced. There are several reasons supporting my contention.
In the first place, the General Fire Extinguisher case [cited by appellant] does not sustain the rule announced by the majority. In that case the court announced the correct rule as to the measure of damages, where goods are injured but not totally destroyed, as follows [110 Ark. 49, 160 S.W. 892]: `"If you find for the plaintiff, you will assess its damages at such sum as you find from the evidence to be the difference between the market value of the goods injured or damaged * * * immediately before they were damaged and the market value thereof immediately after they were damaged.'"
In the second place, it is my contention that the same figure would be arrived at regardless of whether market value or wholesale value is used. A simple example will suffice to explain. If it costs $100 to replace the fender on an automobile, this figure would be the damage done to the automobile, if a fender is knocked off, regardless of whether the automobile belonged to an individual or to a car dealer.
In the third place, it seems to me that the rule announced by the majority would be hard if not impossible to apply. Just what is meant by the wholesale value of a damaged automobile. So far as I know there is no such thing, but if there is then it is obvious that there are only a few people in the State of Arkansas who know what it is and who would be available to testify in an ordinary collision suit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620383/ | 294 S.W.2d 690 (1956)
E. N. DELZELL
v.
C.W. POPE and Executive Board of Tennessee Baptist Convention.
Supreme Court of Tennessee.
July 20, 1956.
Rehearing Denied September 3, 1956.
*691 James P. Brown, Knoxville, J. L. Reynolds, Nashville, for complainant.
Jackson, Tanner & Leathers, Nashville, Egerton, McAfee, Armistead & Davis, Knoxville, for defendants.
NEIL, Chief Justice.
The complainant, E.N. Delzell, filed his original bill in the Chancery Court at Nashville against C.W. Pope and the Executive Board of the Tennessee Baptist Convention, seeking damages for an alleged breach of contract of employment.
The bill charges the following: that the Executive Board of the Tennessee Baptist Convention is a corporation organized and existing under the laws of the State of Tennessee; that it acts as the representative of the said Convention pursuant to the constitution of the latter, in carrying on the work for which it is organized. In other words, by Article 6 it "shall (during the interim between meetings of the Convention) have all the powers of the Convention except as limited by the Constitution."
The complainant further charges that he was employed on January 1, 1942, by a committee representing the Executive Board to increase the circulation of the Baptist and Reflector, the State Baptist paper, and in 1945 was promoted to the office of business manager of said publication, and in 1949 was elected to the office of "Brotherhood Secretary"; that he served as Brotherhood Secretary until March 1, 1955, when he was summarily dismissed from his position.
It is charged that the fiscal year of the State Baptist Convention is from November 1 to October 31 of the following year and a yearly budget is adopted for the "Brotherhood Department", and among the numerous items was included his salary of $6,300; that he was paid the sum of $3,150 from the beginning of the fiscal year 1954 to the time of his dismissal from office. The bill further charges that he was 58 years of age and would have been subject to retirement at age 60 and, by reason of his dismissal, he was deprived of retirement benefits.
It is further charged in the bill that no charges were filed and he was given no notice of his dismissal from office; that he had made engagements for carrying on a definite program on behalf of the Brotherhood which had been his custom for the years he had served as Brotherhood Secretary; that the Executive Board did not prior to March 1, 1955, "give notice to the complainant that he would not serve as Brotherhood Secretary during the whole year, but in their every action indicated to the complainant that he would serve the whole year, all of which led the complainant to believe that he would be able to perform his duties as State Secretary for the fiscal year as aforesaid, and that the aforementioned acts on the part of the defendants in this lawsuit amounts to an implied contract with the complainant for his service during the fiscal year of 1954 and 1955 of the Tennessee Baptist Convention."
*692 The charge is further made that the defendant, Pope, was largely responsible for the election of the present members of the Executive Board and that he dominates the Board and, in effect, influences their action. In paragraph V. (five) of the bill the complainant charges the following:
"Your complainant would show that the defendant C.W. Pope entered into a conspiracy with the members of the Administrative Committee, as aforesaid, and the Executive Board, as aforesaid, in which the complainant would be dismissed from the office of Secretary of the State Brotherhood without rhyme or reason, and without charges, the evidence of which is contained in the Preliminary Statement and Opinion of the Executive Committee, which is filed as an exhibit to this bill."
The bill sets out in some detail the activities of the Committee in a meeting called by C.W. Pope to investigate certain rumors regarding the alleged misconduct of himself and his secretary. Finally it is charged that by reason of his wrongful and fraudulent dismissal from office and his dismissal from the Baptist Convention he is entitled to a judgment "due to the fact that he entered into an implied contract for the whole year."
The prayer of the bill is: (1) that he be awarded damages in the sum of $10,614; (2) that he be granted such other further and general relief as he may be entitled to upon the pleadings and proof in the case.
The defendants filed separate demurrers to the bill, but upon identical grounds, with only one exception. The one exception, filed by C.W. Pope, is as follows:
"The bill shows that Defendant, Pope is not a proper party, to this action, having no interest in the subject matter of the suit, and not being in any way liable to Complainant."
Considering now the several grounds of the demurrers, as common to both of the defendants, the principal complaint is that the bill shows on its face that complainant seeks a recovery for breach of an implied contract and that the facts alleged if true did not amount to an implied contract between the complainant and the Executive Board for services during the fiscal year referred to. Contention is made that complainant "has alleged no facts from which an implied contract can be inferred, and therefore it was not necessary that the Executive Board have a cause or reason for Complainant's dismissal." The second ground is in substance a repetition of the first, as above stated in detail. (3) There is no showing of any mutuality of agreement and that complainant bound himself to the Board for any fixed period of time. (4) There is no showing of any express contract and that complainant was engaged for a definite term. (5) That upon the facts alleged the complainant's claim "would be void under the Statute of Frauds because not in writing." (6) That the bill shows that any loss of alleged retirement benefits is not an element to recover for breach of the employment contract. (7) and (9) are repetitious and more or less argumentative of the aforegoing assignments.
The Chancellor sustained both of the demurrers and granted an appeal to this Court. While the Chancellor allowed the complainant 20 days in which to amend the bill it appears that he elected to stand on the original bill and the demurrers.
The assignments of error are: (1) The court erred in sustaining the demurrers and dismissing the bill as to the defendant C.W. Pope. (2) The Chancellor erred in sustaining the demurrer of the Executive Board because the original bill alleged in substance the following facts:
"a. The budget for the Brotherhood Department showing an annual amount payable to the Secretary.
"b. The Executive Board allowed complainant to plan the year's program.
*693 "c. The Executive Board permitted complainant to accept speaking engagements for the future.
"d. Complainant was not told prior to his discharge that he would not serve as Brotherhood Secretary during the whole year."
Contention is made that proof of the foregoing facts and circumstances was sufficient to justify the conclusion that there was an implied contract which the defendants had breached. Other assignments purport to question the reasons upon which the demurrers were sustained, but they are based more or less upon assumptions of counsel.
When the case was orally argued before us one of the able counsel for the defendants made the frank statement that the determinative question for consideration on this appeal was whether or not the bill alleged sufficient facts which, if true, would justify a fair and reasonable inference that there was an implied contract of employment.
We are in full agreement with counsel that the suit cannot be maintained upon the allegation that there was an implied contract. This standing alone is simply the conclusion of the pleader.
Whether or not the bill is demurrable as to C.W. Pope we will deal with this question later on in this opinion.
At the outset we think the bill is demurrable insofar as the complainant seeks a recovery for alleged loss of retirement benefits, since he was not eligible for retirement when he was dismissed by the Board. It is not an element of damages to be recovered for breach of an implied contract.
The demurrer admits the truth of all relevant facts bearing upon the contractual relationship between the parties at the time of the alleged dismissal of the complainant and prior thereto.
The complainant had been officially connected with the Executive Board of the Tennessee Baptist Convention since 1942, and was continuously employed in some important capacity (not necessary here to specify) until 1949 when he was chosen as Brotherhood Secretary. The budget which was adopted for the Brotherhood Department shows that the complainant was considered as being competent and trustworthy to administer a program which called for an annual expenditure of $20,474.56. Provision was made for the annual salary of the complainant at $6,300. Other items of expense are:
"Travel, car bonus and promotion $2,000.00
Office secretary's salary 2,520.00
Field Workers 500.00
Office expense 250.00
Postage 1,000.00
Baptist and Reflector space 1,559.00
Printing and Literature 1,000.00
Telephone and Telegraph 160.00
Retirement dues 535.56
Miscellaneous 350.00
Royal Ambassador Secretary's salary 3,000.00
" " " travel 1,000.00
" " Committee expense 100.00
" " Congress 200.00
The foregoing budget shows beyond question that the Board contemplated an intensive and expanding yearly program by the Brotherhood Department.
The complainant was paid his salary as Secretary for the first six months, or the sum of $3,150. We think it is fair to say that the complainant planned a program for the entire year. He had rendered the same, or similar, service since 1949. In these circumstances it would be most unreasonable to infer that he was employed upon a month to month basis and was subject to dismissal on a moment's notice.
It is true, as argued by counsel for the Executive Board, that there is nothing in the bill to show an express contract between the parties. The complainant's suit is not based upon such a contract, either oral or written. It rests solely upon an implied understanding based upon a course of conduct between the complainant and the Board, and was of sufficient duration to bind the parties.
*694 The problem presented in the present controversy, that is, the right of the complainant to recover compensation for a year, based upon custom and conduct of the parties, is not without its difficulties. We think the allegations in the bill clearly point to a year to year understanding. Each succeeding year would, by implication, constitute a new contract of employment. It is not disputed, but rather shown in the complainant's bill, that he had worked for the Board as Brotherhood Secretary for several years, or from 1949 to 1954. In the foregoing circumstances the applicable rule of law is as follows:
"The general rule is that when, upon the expiration of a contract of employment for a definite term, the employee continues to render the same services as he rendered during the term of the contract without explicitly entering into any new agreement, it will be presumed prima facie that he is serving under a new contract having the same terms and conditions as the original one." 35 Am.Jur., Section 15, page 454. See also Section 23, page 460.
There are a number of decisions to the contrary as pointed out on the brief of counsel for the Board. The divergence of view between the English and American decisions as to the duration of a contract of employment appears in the annotations in 11 A.L.R. 469, and 100 A.L.R. 834.
In England, a general hiring is regarded as one for a year. In this country, an indefinite hiring is regarded as one at will. The conflict in the authorities seems to have arisen out of the effort to determine what is a general or indefinite hiring. According to the English rule "if a master hire a servant without mentioning the time, that is a general hiring, and, in point of law, a hiring for a year." 11 A.L.R. 470. The American decisions seem to turn entirely upon what constitutes an indefinite hiring of a servant. The annotator says, 11 A.L.R. 471, "No case has been found which attempted to state a reason why a hiring at a certain price per week, month, or year was regarded as indefinite."
We think the American authorities, cited on the brief of counsel, and others referred to in A.L.R., supra, support the general proposition that a hiring at so much per week, or month, or year is a hiring for that period, provided there are no circumstances to the contrary. Thus in Alkire v. Alkire Orchard Co., 1917, 79 W. Va. 526, 91 S.E. 384, it is held: Employment of one as manager at a stipulated salary per month is a mere monthly employment, and may be terminated at the end of any month by either party.
Finally the annotator says:
"Practically every case which has held that hiring at a certain price per month or year is indefinite, and terminable at will, has, without argument, directly or indirectly, followed a textbook which lays down that proposition without any authority whatever to support it."
In 100 A.L.R. 834-841 (supplementing annotations in 11 A.L.R. 469) numerous cases are cited to the effect that circumstances surrounding the parties will control. At page 841 the annotator says: "There are many decisions holding that in the light of surrounding circumstances the hiring was for a definite period." (Emphasis ours.) If, under all circumstances, considering the fact that an employment has continued without interruption for a period of years, (in the instant case 5 years) and at a fixed annual salary, we think the employment is for a definite period and is not terminable at will.
In conclusion we think the learned Chancellor was in error in sustaining the demurrer of the Executive Board and dismissing the complainant's bill as to said defendant.
The Chancellor, however, was correct in sustaining the demurrer of C.W. Pope. There are no facts stated in the *695 complainant's bill which, if true, would justify a judgment against him and in favor of the complainant. The charge in the bill that he conspired with the members of the Executive Board is a conclusion of the pleader. The charge that he dominates the Board, and was a powerful influence in controlling its action, is a mere conclusion. There is no recitation of facts which justifies the conclusion that his conduct in the premises was such as to create any legal liability.
The cause is reversed and remanded for such further proceedings as may be consistent with this opinion.
On Petition to Rehear.
The Executive Board of the Tennessee Baptist Convention, who was one of the appellees in this cause, has filed a petition to rehear complaining that the Court erred in holding that the original bill alleged sufficient facts to make a case of an implied contract between it and Mr. Delzell.
The petitioner makes the following contention:
"It is most respectfully, earnestly and urgently insisted that the Court may search the original bill filed herein without finding a single allegation:
"1. That complainant had in any form or manner an express contract of employment; or
"2. That complainant had originally been hired for an annual period (or any other definite period which was extended by implication, express action or failure to take action); or
"3. That hiring by the Executive Board was customarily on an annual basis or that it was a custom to hire the Brotherhood Secretary for annual periods."
No one contends that there was an express contract of employment. The Court rested its decision upon the alleged custom and course of conduct of the Board in carrying on its varied activities, and that the facts stated in the bill made a prima facie case of an implied agreement that the complainant would hold the office of "Brotherhood Secretary" for the year beginning in 1954 and ending in 1955. The annual budget was considered as having an important bearing on this issue.
The original bill showed that an annual budget was adopted by the Board every year since 1949. The budget included the salary of the Secretary, expenses of the office, as well as providing funds necessary to carry on a yearly program, including the year, 1954-55. It is very true the budget did not mention Mr. Delzell by name, but only referred to him as Secretary of the Baptist Brotherhood. The original bill states that the Board allowed complainant to plan an entire year's program for the Department. It is not a matter of dispute that the Board knew full well that Mr. Delzell was the Secretary and that he was the person whose duty it was to carry on the program. In these circumstances there is no merit in the contention by the petitioner that providing a salary for an office (annual salary of $6,300) would not impliedly bind the Board to fulfill its contract with the unnamed occupant of that office.
In further support of the insistence it is argued: "It seems clear that these engagements were for the occupant of the office of secretary but in any event it is nothing more or less than future planning. It is an incident of employment * * *" (Emphasis ours.) We think it is not only an "incident of employment", but is material evidence to sustain the averment in the bill that there was an implied agreement; that the "planning" was to carry on and complete a yearly program.
The counsel for the Board has cited numerous cases in support of the Board's theory. These cases and others were considered in the original opinion, and need not be again considered and distinguished from the rule followed by us as controlling authority.
*696 With all deference to the petitioner and its counsel we feel that our original opinion is correct. The petition to rehear is accordingly denied.
PREWITT, TOMLINSON and SWEPSTON, JJ., concur.
BURNETT, J., did not participate in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620387/ | 294 S.W.2d 813 (1956)
Roy Lee SELLERS, Appellant,
v.
The STATE of Texas, Appellee.
No. 28293.
Court of Criminal Appeals of Texas.
June 27, 1956.
On Rehearing October 31, 1956.
Howze & Howze, by John Howze, Monahans, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
WOODLEY, Judge.
The appeal is from a conviction for violation of Art. 1436b, Sec. 1, V.A.P.C., the indictment alleging that appellant unlawfully entered upon premises occupied and *814 controlled by Charles W. Ward with the intent "to take mercury from and out of a gas meter then and there located upon said premises without the consent of the said Charles W. Ward and with the intent then and there to deprive the said Charles W. Ward of the value of said mercury and to appropriate the same to the use and benefit of him, the said Roy Lee Sellers."
The punishment was assessed at two years in the penitentiary.
The statute, enacted by the 47th Legislature in 1941, p. 788, Ch. 490, created a new offense of the grade of felony cumulative of all other laws and specifically provides that a violation thereof may be prosecuted irrespective of whether or not the act complained of may constitute some of the essential elements of other or different penal offenses.
The offense defined is akin to burglary with intent to commit theft, but does not under its terms require that the elements of either burglary or theft be alleged or proved.
The entry of any premises or gas pipe line right of way with intent to steal or carry away any mercury from out of a gas meter, without the consent of the owner, is made an offense. "Steal" being defined to mean "to take wrongfully and without just claim of authority any mercury".
While the indictment could have been more aptly drawn, no question as to its sufficiency has been raised either in the trial court or by appellant's able counsel in his brief filed in this court.
The validity of the statute is not questioned, and we are inclined to the view that neither the statute nor the indictment is void.
The evidence shows that Charles W. Ward was Plant Superintendent for Stanolind Oil and Gas Company at the South Fullerton Gasoline Plant. The plant was owned by several companies and was operated by Stanolind Oil and Gas Company in connection with the acquisition and gathering of casing head gas from various wells in Andrews County.
Mr. Ward testified that several companies owned leases from which gas and oil were produced in the same operation; that the mixture went through a separator which separated the liquid crude oil from the gas; that a meter was on the discharge side of the separator, which was an automatic device with its own control which records the amount of gas that passes through it; that the owners of the leases were in charge of the operation until the gas was separated from the oil, when Stanolind Oil and Gas Company, who owned the meters, took over; and that the care, custody, control and management of the leases and the property located thereon, insofar as the gathering of gas was concerned, had been delegated to him.
Mr. Ward testified that on September 27, 1954, he found that mercury was missing from some of the gas meters located on various leases owned by his employers and a list of such leases was made the following day. Refreshing his memory from the list he made, Mr. Ward testified:
"A. On September 27th at 8:30 P.M. on Section 29 in Block 13 of University lands of Andrews County, we lost mercury. The same is true at 9:00 P.M. when another meter on that same lease, two of them. And another one on Block 19 of Section * * * or Block 13, Section 19, another meter. Those were on the 27th.
"Q. What time of the night or day was the last that was lost? A. The last one was lost at 12:30 A.M. on the morning of the 28th.
"Q. Now would you explain to the jury, if you will Mr. Ward, how you are able to tell what time of the night or day the mercury was taken from the meters? A. These meters have a circular chart on them about twelve inches in diameter. And on *815 this chart is marked in an inked line the amount of gas that's indicated, that flowed through that meter. When the mercury is withdrawn, those lines immediately go down to zero, and there is no further registration. So by checking the time that these charts went to zero, we know at what time the mercury was gone. * * *
"Q. All right, sir. Now would you tell us where, in relation to your gasoline plant there out at South Fullerton these leases that you have testified about are located. A. Some of them are located east of the plant and some north of the plant.
"Q. And will you state whether or not all of them are in Andrews County, Texas? A. They are."
Appellant's confession was introduced in evidence, reading in part:
"On the evening of September 27, 1954, me and Harold Otis Parker started over into Texas where we knew where 3 meters were on a tank battery. We were in my 1951 green Plymouth 2 door which has a Texas License plate on it. We went to the 3 meters which was in Andrews County, Texas and we parked out car on the side of the road and walked out to the meters to see if we could get any mercury out of the meters. We unscrewed a small plug from the bottom of a small tube and drained the mercury into a coke bottle, we then poured the mercury from the coke bottle into a quart thermos bottle which I had carried out with me. After we had got all the mercury from the three meters here we went into Andrews, Texas and then we went out the Kermit Highway and turned off onto the Goldsmith to Frankel City Highway and went north and found one meter to the west of the highway. We walked out to that meter and drained the mercury out of it the same way that we had the first three. We then went to Frankel City and on out thru or by the Phillips Gasoline Plant and turned west to the Fullerton Camp, and turned south and found one meter on the west side of the road. We took the same coke bottle we had been using and drained the mercury out of the meter into the coke bottle. We then poured this mercury into the thermos bottle. We then drove to the Eunice Highway and drove into Eunice, New Mexico. We got into Eunice about midnight or soon after as well as I remember. No one gave us permission to take this mercury and we knew that it did not belong to us.
"We put the mercury in my house in the kitchen cabinet until Thursday morning. On Thursday morning I put the mercury into my car and hauled it to Eagle Pass, Texas. I went to Eagle Pass by myself and sold the mercury to the Eagle Iron and Metal Company for $2.00 per pound. (We had mixed this mercury with some other mercury that we had stolen near Eunice, New Mexico.)"
Appellant does not question the rule that when it is shown that the crime charged has been committed by someone, the confession of the accused that he committed the offense charged is sufficient. He urges, however, that his confession is not unequivocal, as required by such rule of law.
While the confession does not describe the premises which appellant and his companion Parker entered, and does not describe the four meters from which they took mercury as being gas meters or as belonging to Charles W. Ward or to Stanolind Oil and Gas Company, appellant clearly confessed that he and Parker came to Andrews County and entered the premises where mercury was to be found in meters for the purpose of taking or stealing such mercury.
The leases where the mercury was removed were not identified therein but we *816 find the confession sufficiently definite to show that one or more, if not all of the four meters from which mercury was removed was on premises under control of Charles W. Ward as Plant Superintendent for Stanolind Oil and Gas Company at the South Fullerton Gasoline Plant in Andrews County.
The evidence is deemed sufficient to sustain the conviction and we find no reversible error.
The judgment is affirmed.
DAVIDSON, Judge (dissenting).
I cannot agree to the affirmance of this case for two reasons: (a) The indictment is fatally defective in that it fails to charge a violation of the statute under which the prosecution was brought, and (b) the statute is so vague, uncertain, and ambiguous as not to create a criminal offense and is therefore void.
The statute under which this prosecution is brought is as follows:
"Any person who shall enter upon any premises or gas pipe-line right of ways with intent to steal or carry away without the consent of the owner, or with intent to aid or assist in stealing or so carrying away any mercury from and out of any gas meter or any device by or through which the flow, movement, or pressure of gas is measured or regulated, or which is capable of being used to measure, regulate or control the movement of gas, shall be guilty of a felony and upon conviction shall be punished by confinement in the penitentiary for not less than one (1) year nor more than five (5) years, or by confinement in the county jail for not less than ninety (90) days nor more than two hundred (200) days, or shall be fined not less than One Hundred ($100) nor more than Five Hundred Dollars ($500), or by both such fine and imprisonment.
"`Gas' as that term is used herein means natural gas or artificial gas or a combination or mixture of any such gases."
The indictment in this case, in the charging portion thereof, reads as follows:
"* * * did then and there unlawfully enter upon premises then and there occupied and controlled by Charles W. Ward with the intent then and there to take mercury from and out of a gas meter then and there located upon said premises without the consent of the said Charles W. Ward and with the intent then and there to deprive the said Charles W. Ward of the value of said mercury and to appropriate the same to the use and benefit of him, the said Roy Lee Sellers * * *." (Emphasis supplied.)
Nowhere therein is it alleged that the entry upon the premises was with the fraudulent intent to steal or commit the crime of theft of the mercury. Nowhere therein is it alleged that the mercury intended to be taken was the property of or in the possession of Ward or any other person. There is an entire absence of any allegation that Ward could give or withhold consent to the taking of the mercury or how he might or would be injured by being deprived of the mercury.
If the state was relying upon the statute as making it unlawful for one to enter upon the premises of another for the purpose of committing theft of mercury from a gas meter, then, of necessity, the indictment must allege the essentials which constituted the unlawful act intended, among which essentials would be the fraudulent taking, the possession and ownership of the mercury, and the want of consent of the owner to the taking.
The indictment contains none of these essentials and cannot therefore be held to be sufficient to allege that theft of the mercury was intended by the entry. Branch's P.C., Sections 2425, 2433, and 2451.
*817 The indictment alleges only that the entry was made with the intent to "take" and this, without regard to whether such taking was or would be lawful or unlawful. The indictment not only fails to charge a violation of the statute mentioned but it also fails to charge a violation of any other law.
Being fatally defective, the indictment does not and can not support this conviction.
A valid indictment is necessary to a valid conviction, without which the latter cannot exist.
Now, as to the statute, itself, the first peculiar and outstanding feature thereof is that it punishes and makes unlawful the intent to do a lawful actor, at least, an act not unlawful under the law. In this connection it will be noted that the act attempted to be made unlawful by the statute consists of two elements. These are: (a) the entry on the premises, and (b) the intent to steal mercury from a gas meter.
The concurrence of these two elements must exist in order for the statute to be violated.
The word "steal," as used in the act, does not and cannot have the meaning given to that term under the law of theft, Art. 1425, P.C., wherein it is provided that the word "steal," as used in the Penal Code, includes the acquiring of property by theft, because, under the instant statute, the legislature saw fit to give to the word "steal" a special meaning and one quite different from that given under the general law of theft.
As applicable to the prosecution, here, the word "steal" means "to take wrongfully and without just claim of authority".
The fraudulent intent necessary to constitute the crime of theft is absent in this case, as are, also, all the other essentials constituting the crime of theft.
So, then, there is no escape from the conclusion that neither by the act, itself, nor by any other law of this state is it made unlawful "to take wrongfully and without just claim of authority" any mercury from a gas meter. If the taking was rightful as distinguished from wrongful, or under a just claim of authority as distinguished from without just claim of authority whatever be the meaning of those words as used in the statuteno unlawful act has been committed.
It is apparent, therefore, that the act does not prohibit the taking of the mercury but, to the contrary, the only limitation upon the taking of the mercury is whether it was done rightfully or wrongfully, or with or without just claim of authority.
Therefore, for the act of taking the mercury to be unlawful it is and would be necessary to adjudicate the title to the mercury as in a civil action and not a criminal case.
So we have a criminal statute which makes unlawful the intent to do an act which is not unlawful, itself, and which becomes so only after the title to the property has been adjudicated.
The statute is absolutely void for uncertainty and ambiguity.
My brethren pass over the sufficiency of the indictment and the validity of the statute because the appellant's counsel did not raise these matters in the trial court or in this court.
If the time has come when this court, by its judgment, permits an accused to go to the penitentiary upon an invalid indictment and a void statute because his counsel did not so contend in the trial court or in this court, I want no part of it.
It is the appellant who is going to the penitentiary under the mandate of this court, and no one else.
If the indictment is invalid, or the statute void, we ought to say so, without hesitation.
I respectfully dissent.
*818 On Motion for Rehearing
MORRISON, Presiding Judge.
Our original opinion did not discuss the admissibility of that portion of the appellant's confession which related to other offenses. It read: "We had mixed this mercury with some other mercury that we had stolen near Eunice, New Mexico. I sold the Eagle Iron & Metal Co. at Eagle, Texas, 417 pounds of mercury that we had stolen (in Lea County, New Mexico and) Andrews County, Texas." This portion of the confession was objected to on the grounds that there was no issue as to identity or system and that the State's prima facie case would be established without the inclusion of any part of the confession in which the accused admitted committing extraneous crimes. We have concluded that the trial court fell into error in admitting that portion of the confession.
In Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836, 837, we said:
"The general rule in all English speaking jurisdictions is that an accused is entitled to be tried on the accusation made in the State's pleading and not on some collateral crime, or for being a criminal generally. The rule is now deemed axiomatic and is followed in all jurisdictions.
"Watson v. State, 146 Tex.Cr.R. 425, 175 S.W.2d 423, supports appellant's position that the State may not, in developing its case in chief, prove extraneous offenses committed by the defendant, though involving a similar intent to the transaction for which he is on trial.
"We conclude that the trial court fell into error when he permitted proof of extraneous offenses during the development of the State's main case."
Upon closer examination of the record in this case, the writer has concluded that the State failed to show with that degree of certainty which the law requires and the facts would permit that the mercury which the appellant admitted having taken in Andrews County was the same mercury which Mr. Ward lost.
For the reasons pointed out, the appellant's motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment is now reversed and the cause remanded.
WOODLEY, Judge (dissenting).
The grounds upon which reversal was sought were disposed of upon original submission, and my views are stated in the majority opinion.
On rehearing these contentions are reurged, and in addition the views of Judge DAVIDSON as to the invalidity of the statute and the insufficiency of the indictment are adopted and urged.
The writer is unable to agree with Judge DAVIDSON that the statute is invalid or the indictment is insufficient.
The ground upon which Presiding Judge MORRISON has decided that the conviction should be reversed was not presented by appellant's able counsel in his brief on original submission or in his motion for rehearing, and is not tenable under the facts.
That portion of the confession which dealt with the theft of mercury in New Mexico was offered and admitted to show system, scheme and intent. The intent of appellant in entering the rights of way in Texas was alleged to be for the purpose of removing mercury from gas meters. The mercury from both sources was mixed and sold. The confession as to the taking of the New Mexico mercury was admissible as showing a conspiracy and scheme to unlawfully acquire mercury from gas meters and sell it. It explained the difference in the amount of the mercury removed from the premises described in the indictment and the amount sold by appellant in Eagle Pass.
I respectfully dissent from the granting of appellant's motion for rehearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620412/ | 447 F.Supp. 934 (1978)
William LANGLE
v.
Robert BINGHAM and Edward F. Kehoe.
Civ. A. No. 75-261.
United States District Court, D. Vermont.
March 23, 1978.
*935 *936 David A. Gibson, Webber, Fisher, Perra & Gibson, Brattleboro, Vt., for plaintiff.
John J. Zawistoski, Ryan, Smith & Carbine, Rutland, Vt., for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
HOLDEN, Chief Judge.
This action was brought by William Langle of Westminster, Vermont, under the provisions of 42 U.S.C. § 1983, to recover compensatory and punitive damages against Robert Bingham of Newfane, Vermont, a game warden employed by the Vermont Fish and Game Department, and Edward Kehoe of Montpelier, Vermont, the commissioner of that department. The court's jurisdiction is founded on 28 U.S.C. § 1343(3). The plaintiff seeks redress for violation of his civil rights by the defendants, purporting to act under color of the Vermont fish and game laws, in violation of rights protected by the Fourth Amendment to the United States Constitution and Article II of Chapter I of the Constitution of Vermont. Since the jurisdictional base of the action is § 1343(3), the primary concern is the Fourth Amendment claim.
In the autumn of 1972 the plaintiff found a disabled deer, lying adjacent to a public highway in Vermont. Langle took the animal into his possession. He later learned that his taking of the deer was in violation of Vermont game laws. A prosecution followed which resulted in the suspension of his resident hunting license for the period of one year from January 12, 1973. The plaintiff was concerned about this consequence and consulted with the defendant Bingham about the nature and extent of the license suspension. He was informed by the warden that, as a resident landowner, he didn't need a license to hunt on his own property. This advice was in keeping with 10 V.S.A. § 4253, which then provided:
(a) A resident owner of lands, his spouse and their minor children, or a regular employee of a resident owner may, without procuring a license under this chapter, take fish from the water therein, short pickerel, and take wild animals or wild birds therein subject to the provisions of this part, except under Sections 4743 and 4744 of this title.
The exception referred to in § 4744 provides:
For the sixteen consecutive calendar days commencing on the second Saturday in October, a person may take by bow and arrow one wild deer anywhere in the state. 10 V.S.A. § 4744.[1]
The defendant Bingham, in instructing the plaintiff, made no reference to hunting game by bow and arrow. The plaintiff also had access to a pamphlet published by the Vermont Fish and Game Department, under the authority of the commissioner, entitled "General Fish and Game Laws and Regulations, 1973-74." The text of the book states:
License Information
Hunting, Fishing and Trapping
A person of any age engaged in fishing, hunting, or taking any wild animals must be properly licensed, except as listed below in (a) and (b).
*937 (a) A resident owner of lands in Vermont, his spouse, and minor children may hunt on these lands and take fish within said lands without a license . . ..
Being concerned about how a wild deer could be reported without a license tag, the plaintiff telephoned a Mrs. Harlow, the town clerk of Putney, Vermont. She informed him he could report the taking without a tag affixed to the animal. This conversation took place before the opening of the bow season.
On October 18, 1973, the plaintiff went hunting deer with bow and arrow and took a doe on property he owned not far from his home. He returned to his house and made out a paper indicating a description of the animal and the time and place of taking. He took the paper to the town clerk of Westminster to register the taking.
Sometime after the kill was reported, the defendant Bingham received a radio message from the Montpelier office of his department that the fish and game laboratory had received a report of a doe taken by Langle with bow and arrow at Westminster. Warden Bingham proceeded to the town clerk's office at Westminster to verify the information with the town clerk. On October 26, 1973 Bingham went to Langle's home at about 4:00 P.M. He arrived in uniform, with side arms, in an official radio-equipped vehicle of the Fish and Game Department.
A young woman, identified in the evidence as Kathryn Clausen, arrived at the Langle dwelling home. Officer Bingham was sitting in his police vehicle, parked in the driveway alongside the barn. She informed Officer Bingham that the plaintiff was not at home. Bingham waited in the cruiser. Shortly thereafter another game warden, Philip Howland, came on the Langle property in a second police cruiser. He was called by Warden Bingham to assist him in the developing situation at the Langle place. Langle soon arrived and, after a brief confrontation with the officers, entered his home, followed by the wardens Bingham and Howland. Inside the house the defendant Bingham announced to the plaintiff "I am sorry, but we have to take your meat. You have an illegal deer." The plaintiff became much upset and protested the taking. He informed the officers that he had called the Putney town clerk before hunting the deer. He tried to verify this by a call to Mrs. Harlow, but to no avail. The plaintiff reminded the defendant Bingham of their prior conversation at the time of his license suspension the year before. The defendant responded that at that time he didn't know Langle hunted with a bow. After extended and agitated argument, Bingham concluded the dispute by inquiring of Langle if his home freezer was in the same location as the year before. Langle countered by inquiring if the officers had a search warrant; their response was that a warrant was not needed.
With this, the officers proceeded to the barn and removed some sixty pounds of venison. The meat was stored in the freezer with a large quantity of frozen chickens and vegetables previously packed by the plaintiff and Ms. Clausen. The plaintiff offered no physical resistance, but his verbal protest was clear and persistent. To avoid disruption of the other food products, the plaintiff pointed out the deer meat. One of the officers removed and placed the venison in a bag provided by the plaintiff at the defendant's request. The defendant Bingham asked the plaintiff where the deer hide was located. Upon receiving the information, the warden removed the skin which had been hung up to dry in another part of the barn.
The packaged meat and the hide were taken over the plaintiff's protest and without his consent. There was ample opportunity for one of the wardens to obtain a warrant while the second maintained a watch to prevent its removal. Nonetheless, the search of the barn and freezer, incident to the taking, was conducted without the plaintiff's permission, but in response to insistent demands asserted by the game wardens. Before leaving the premises, the defendant assured the plaintiff there would be no prosecution nor penalty beyond the *938 seizure of the meat. Warden Bingham later sold the venison for five dollars and the hide for four dollars. The defendant had intended to use the meat for his own sustenance during the winter.
The plaintiff has been an ardent hunter who has derived great enjoyment from fishing and hunting in Vermont. However, this is not the first occasion that his pursuit of this recreation has been interdicted by action of Vermont game wardens. While a resident of New Jersey, he obtained a nonresident license. He subsequently moved to Vermont and was convicted for making a false statement in obtaining a resident license. Later, as reported earlier in the findings, he was convicted of taking the deer found on the roadside.
The court finds that the acts of the defendant Bingham were not done with a malicious or evil intent. However, the search of the plaintiff's property and the seizure of the venison were undertaken under color of state law in a wilfully reckless manner and with wanton disregard of the plaintiff's rights. The evidence fails to establish that the acts and conduct of Wardens Bingham and Howland were ordered, directed or authorized by the defendant Kehoe, either in his individual capacity or as Commissioner of the Fish and Game Department of the State of Vermont. In his capacity as head of the department, he is responsible for the hiring, training and assignment of game wardens who serve as enforcement officers in the field.
In consequence and as a proximate result of the defendant Bingham's unlawful search of the plaintiff's premises, including the barn appurtenant to the dwelling, the court finds the plaintiff has suffered mental pain and humiliation in the amount of $1,000 actual damage. The injury to his property interest in the food and hide that were seized and confiscated by the game warden is in the amount of $100. The amount in lieu of interest on the compensatory damage sustained by the plaintiff is $466.00.[2]
Conclusions of Law
The purpose of the Congress in the enactment of the Civil Rights Statutes was ". . . to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it." Monroe v. Pape, 365 U.S. 167, 171-172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961). The inclusion of the provisions of 42 U.S.C. § 1983 was "to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position." Id. at 172, 81 S.Ct. at 476.
The defendant Bingham undertook the search of the plaintiff's premises in reliance on the power to search contained in 10 V.S.A. § 4194.
Game wardens shall have the power to search where they have reason to believe that fish or wild animals are possessed in violation of a provision of this Part or regulations or orders authorized under this Part. Without a warrant, they may examine the contents of a vehicle, aircraft, boat, box, car, locker, basket, creel, crate, game box or package and a building other than a dwelling house and its immediate dependencies. With a search warrant, they may examine a dwelling house and its immediate dependencies.
The barn that housed the frozen food refrigeration unit, where the venison was stored, was an immediate dependency of the plaintiff's dwelling place and an adjunct to the household. A dependency is "3. a building (as a stable or kennel) appurtenant to a main dwelling [a double driveway leads to the palace and its dependencies. Amer. Guide Series: Va.]." Webster's Third New International Dictionary. Although the defendant Bingham relied on § 4194 supra, the statute itself requires a search warrant and affords no protection *939 for searching the premises where the game was seized. Belief, however well-founded, that illegal venison is concealed in a dwelling house furnished no justification for the search of a refrigerator, even though consent to search the premises had been given. State v. Connolly, 133 Vt. 565, 570, 350 A.2d 364 (1975). Here no consent was given and the defendant's belief about the presence of the venison in the barn gave him no justification to search the area and its contents without a warrant. Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925). This basic rule is not open to question. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).
The seizure of the venison from the food supplies kept for the plaintiff's larder was equally offensive to the state and federal constitutional safeguards. See State v. Aldrich, 122 Vt. 416, 423, 175 A.2d 803 (1961). A game warden is not a general enforcement officer of the State of Vermont; his authority is wholly derived from the state statutes. Id. at 422, 175 A.2d 803; Villa v. Thayer, 92 Vt. 81, 82, 101 A. 1009 (1917).
The Vermont fish and game laws authorize state game wardens to seize fish or wild animals taken and held in violation of the statute. 10 V.S.A. § 4193(a).[3] The power to seize wild game, if illegally possessed, is for evidentiary purposes only. See Jones v. Metcalf, 96 Vt. 327, 334, 119 A. 430 (1923). The statutory authority is not a roving commission for game wardens to unlawfully enter premises, seize game they believe to have been taken in violation of the fish and game laws and then dispose of the property according to their own dictates.[4] Here the defendant Bingham entertained no purpose of detaining the property as evidence for he openly announced to the plaintiff that he would not be prosecuted. And, of course, the search and seizure cannot be justified as the incident of lawful arrest, since no arrest was made nor contemplated.
That takes us to the ultimate question of the liability of the defendants under 42 U.S.C. § 1983.
The evidence which composes the proof in this case fails to establish liability on the part of the defendant Kehoe, either in his official or individual capacity. The conspectus of the plaintiff's evidence in its most favorable aspect to his case shows that the defendant Kehoe cannot be held liable for the acts of his junior warden merely by virtue of his office as commissioner of the Department of Fish and Game. There has been no showing that the defendant Kehoe authorized or participated in the events which occurred at the Langle premises on October 26, 1973. The evidence is beyond dispute that Warden Bingham acted under authority conferred by way of 10 V.S.A. § 4194 without specific direction by the commissioner. While Bingham responded to a radio bulletin from Montpelier to investigate the Langle report, the source of this request is not assigned in the proof to the defendant commissioner. Without such a showing, the evidence is insufficient to impose liability under 42 U.S.C. § 1983. E. g. Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir., 1973) (Friendly, J.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973).
*940 The plaintiff's claim against Warden Bingham has firmer footing. This is so despite the qualified immunity enjoyed by enforcement officers for acts performed in line of duty. The privilege is not absolute; it is conditional. The shield is lost upon proof of actual malice or reckless indifference to the rights of the individual citizen. See Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1347 (2d Cir. 1972), Kelley v. Dunne, 344 F.2d 129, 133 (1st Cir. 1965). Judge, now Justice, Stewart referred to this concept in A.B.C. Needlecraft v. Dun & Bradstreet, Inc., 245 F.2d 775 (2d Cir. 1957): "the malice necessary to destroy a qualified privilege can also consist of `such a wanton and reckless disregard of the rights of another as is ill will's equivalent.'" Id. at 777, quoting Pecue v. West, 233 N.Y. 316, 322, 135 N.E. 515, 517 (1922).
While the Civil Rights Act does not apply to federal officers, the parallel in the application of the principles of qualified immunity are appropriate and enlightening. See Bivens, supra, 456 F.2d at 1346-1347. The statutory power granted to fish and game officials under 10 V.S.A. § 4194 to inspect limited areas and containers without a warrant, excludes a home place and its dependencies. The language clearly indicates that to examine these areas, prior judicial action, by way of a warrant, is required. More particularly in the context of the evidence presented here, where there was neither a warrant to search nor an arrest, there was no justification to resort to self-help in the face of the owner's continuing protest. See Hughes v. Johnson, 305 F.2d 67, 69-70 (9th Cir. 1962).
The facts established in the evidence constitute an unlawful intrusion by the defendant Bingham into the plaintiff's protected right to privacy in his home and its appurtenances. Since there was no judicial determination that the game found in the plaintiff's possession was unlawfully taken, the seizure and confiscation of the deer hide and venison established a deprivation of property under color of state law contrary to the safeguards provided in the Fourteenth Amendment.
Since the acts complained of by the plaintiff against the defendant Bingham were done in reckless and wanton disregard of rights protected by federal and state constitutions, the court deems it appropriate to award punitive damages in an equivalent amount of $1,100 to serve in vindication of the policy of the Civil Rights Act. See Zarcone v. Perry, 572 F.2d 52, No. 77-7469 (2d Cir., March 3, 1978); McDaniel v. Carroll, 457 F.2d 968 (6th Cir. 1972), cert. denied sub nom. Carroll v. McDaniel, 409 U.S. 1106, 93 S.Ct. 897, 34 L.Ed.2d 687 (1973).
Accordingly, the clerk will enter judgment for the plaintiff to recover of the defendant Bingham, as the plaintiff has alleged, the sum of $1,100 compensatory damages, with a sum in lieu of interest from October 26, 1973 of $466.50 and $1,100 punitive damages for a total award of $2,666.50, together with taxable costs.[5] The clerk is further directed to enter judgment for the defendant Edward Kehoe, since he is found to be not liable to the plaintiff Langle as charged in the complaint.
It is so ORDERED.
NOTES
[1] Vermont Fish and Game Regulations provide:
§ 4. Bow and arrow hunting
Unless otherwise provided, any game which may be taken by shooting, may be taken by use of bow and arrow.
[2] Vermont legal rate of interest from October 26, 1973 to April 3, 1974 was 7½%. From April 3, 1974 to date the legal rate of interest is fixed by statute at 8½%. 9 V.S.A. § 41(a) as amended 1973. No. 230 (Adj.Sess.).
[3] § 4193. Seizure; power to arrest
(a) The chief game warden and state and deputy game wardens shall seize fish, or wild animals taken or held in violation of a provision of this Part or regulations or orders authorized under this Part. They may arrest, without warrant and on view, in any part of the state, a person violating a provision of this Part or regulations or orders authorized under this Part and take such person before a magistrate having jurisdiction of the offense and detain such person in custody at the expense of the state until opportunity is had to notify a prosecuting officer, who shall forthwith prosecute such offender.
[4] It is not essential to decide whether the plaintiff was authorized to take wild deer on his own property and without a license under 10 V.S.A. §§ 4253 and 4744, supra. Construction of the state game law is better left to the state courts. In any event, searches and seizures proscribed by federal and state constitutions are unlawful from the beginning and cannot be legalized even if contraband is discovered. See Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1926); State v. Pilon, 105 Vt. 55, 163 A. 571 (1933).
[5] The complaint asks for counsel fees. However, as no evidence was presented to sustain the claim, the award of attorney's fees is denied. See Stolberg v. Members of the Board of Trustees for the State College of Connecticut, 474 F.2d 485 (2d Cir. 1973). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/85006/ | 11 U.S. 332 (1813)
7 Cranch 332
THE MARINE INSURANCE COMPANY OF ALEXANDRIA
v.
HODGSON.
Supreme Court of United States.
February 15, 1813.
February 18, 1813.
Present ... . . All the Judges except TODD, J.
(absent DUVALL, J.)
*333 E.I. LEE, for the Appellants.
SWANN and JONES, contra.
*335 MARSHALL, Ch. J. delivered the opinion of the Court as follows:
This suit was brought in the Circuit Court sitting in chancery for the purpose of obtaining a perpetual injunction to a judgment rendered against the Plaintiffs in favor of the Defendant, on a policy of insurance effected by him as agent for G.F. Straas and others, of *336 Richmond, on the brig called the Hope. The allegations of the bill are entirely unsupported by testimony, except those which relate to the value of the vessel insured. The Hope was valued in the policy at $10,000, and $8,000 were insured upon her. She is stated to have been in fact worth less than $4,000.
The underwriters contend that they were in the practice of refusing to ensure on any vessel more than four fifths of her value, and that they were led to make this insurance by a misrepresentation respecting the value of the Hope. They therefore pray to be relieved from so much of the verdict and judgment rendered thereon as exceeds that value.
On the part of the Defendants it is contended that the Plaintiffs have not made out a case which entitles them to the aid of a Court of equity.
Without attempting to draw any precise line to which Courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a Court of law; or of which he might have availed himself at law, but was prevented by fraud or accident unmixed with any fault or negligence in himself or his agents, will justify an application to a Court of Chancery.
On the other hand it may with equal safety be laid down as a general rule that a defence cannot be set up in equity which has been fully and fairly tried at law, although it may be the opinion of that Court that the defence ought to have been sustained at law.
In the case under consideration the Plaintiffs ask the aid of this Court to relieve them from a judgment, on account of a defence which, if good any where, was good at law, and which they were not prevented, by the act of the Defendants, or by any pure and unmixed accident, from making at law.
It will not be said that a Court of Chancery cannot interpose in any such case. Being capable of imposing *337 its own terms on the party to whom it grants relief, there may be cases in which its relief ought to be extended to a person who might have defended, but has omitted to defend himself at law. Such cases, however, do not frequently occur. The equity of the applicant must be free from doubt. The judgment must be one of which it would be against conscience for the person who has obtained it to avail himself.
The Court is of opinion that this is not such a case.
William Hodgson, as agent for the insured, applied for insurance on the brig Hope on a voyage from St. Domingo to her port of discharge in the Chesapeake, and laid before the board the following certificate:
"This may certify, that I was master of the schooner Sophia of this place, and Alexander Burot supercargo: that while we were at the city of St. Domingo in July last, Mr. Burot purchased the brig Hope, of Boston, and I was called on with a carpenter to examine her, and found her to be a stout well built vessel of about 250 tons, in good order, and well found with sails, rigging, &c., was built in the state of Massachusetts, and is from 6 to 7 years old. I left the city of St. Domingo on the 27th of July, and Mr. Burot expected to sail from there about the 15th or 20th of August up the coast to take in mahogony."
JAMES MAXWELL.
Septr. 24th, 1799."
Upon view of this certificate the vessel was valued at $10,000, and the insurance made at $8,000. On the voyage the vessel was captured.
In fact the Hope was of 160 tons burthen, and was from eight to nine years old. There is reason to believe that she was not worth more than $3,000.
It does not appear that the loss was fraudulent or that the cargo was insured.
The Plaintiffs contend, that this misrepresentation led them to value the vessel much higher, and to ensure a *338 much larger sum on her than they would have done had a true description been given of her size and age.
To support this allegation they state their practice never to insure on any vessel more than four fifths of her real value, and their rule, which was known to Hodgson, (he being himself one of the directors) to require that every order for insurance should be in writing, and should contain, among other things, "as full a description of the vessel and voyage as can be given."
The answer asserts that when the certificate was laid before the board of directors, Hodgson was asked if he would vouch for its truth, which he refused to do, whereupon the board agreed to value the vessel at $10,000, and to make the insurance required. He himself believed the certificate to be accurate, and is persuaded that the insured entertained the same opinion. He does not think that the tonnage of the vessel weighed much with the parties. It is not mentioned in the policy.
Straas and Leeds, whose agent Hodgson was, and for whom the insurance was made, are not parties to the bill.
No fraud is proved on them other than what is to be inferred from the error in the certificate given by Maxwell, nor ought their conduct to be decided on, or their interests affected in a suit to which they are not parties, although they might have been made Defendants.
The Court will not undertake to say what influence this certificate might have had, or ought to have had at law. But since the Plaintiffs were not prevented from using it at law by the act of the Defendants or by any positive rule which disabled them from doing so, they have not made out a case of such clear equity, a case in which it would be so obviously against conscience for the Defendant to enforce the judgment at law, as to justify the interposition of a Court of Chancery.
The judgment is to be affirmed with costs. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1620406/ | 294 S.W.2d 666 (1956)
STATE of Missouri, Respondent,
v.
Jack BALLARD, Appellant.
No. 29410.
St. Louis Court of Appeals. Missouri.
October 16, 1956.
*668 F. Neil Aschemeyer, Richard L. Daly, St. Louis, for appellant.
William J. Geekie, Pros. Atty., Sidney Faber, Asst. Pros. Atty., St. Louis, for respondent.
GEORGE P. ADAMS, Special Judge.
A jury in the St. Louis Court of Criminal Correction found defendant guilty of intimidating a state's witness under the first portion of Section 557.090 RSMo 1949, V.A.M.S. (all statutory references are to RSMo 1949, V.A.M.S., unless otherwise noted). His punishment was set at six months imprisonment in the city workhouse. Following an unsuccessful motion for a new trial, defendant appeals.
On June 13, 1954, Mrs. Helen Weichelt was employed as a waitress in a cocktail lounge in the City of St. Louis, Missouri. About 1:15 a. m. on that day, while Paul Baykowski was threatening Donald Syberg with a pistol, Sgt. Lee Soette of the St. Louis Police Department entered the lounge and ordered Baykowski to drop his pistol. He refused to do so and fired a shot at Sgt. Soette, missing him, but striking a patron of the lounge. Sgt. Soette thereupon shot Baykowski five times. He then placed him under arrest.
Later on the same day the "matter" was presented to the Circuit Attorney's office. The First Assistant Circuit Attorney testified that the "case" of Paul Baykowski, "who was charged with assault with intent to kill" was "taken under advisement". He told the officers he would present it to the Grand Jury at the first opportunity.
On June 19, 1954, defendant, who had been in the lounge on frequent occasions with Baykowski, told Mrs. Weichelt that when she went to court, if she didn't say that she had seen Paul take the gun away from Don, she would get the same thing that Paul got.
On June 25, 1954, the First Assistant Circuit Attorney "personally presented" the "case" to the Grand Jury. On the same day Mrs. Weichelt appeared as a witness for the state before the Grand Jury.
The information charged that defendant, knowing Mrs. Weichelt had witnessed the assault, did, on June 19, 1954, when Baykowski "was under arrest on the charge of assault with intent to kill, a cause, matter and proceeding which was then and there pending" before the Grand Jury, attempt to induce her to withhold evidence in said cause, matter and proceeding by declaring that, "If you know what is good for you when you go over to Court, you will say that you saw Paul take the gun away from Don, if you don't, you will get the same thing that Paul got."
Defendant filed a motion to quash the information which was overruled. The only ground of the motion which is preserved on this appeal is that the information was defective because it did not allege that at the time the offense was committed "there was a case pending in any court of competent jurisdiction against anyone * * *".
At the close of the State's evidence, defendant requested in writing that the Court instruct the jury to return a verdict of not guilty. This was designated an "instruction in the nature of a motion for a directed verdict" and was refused.
The defendant did not take the stand, nor did he offer any evidence.
It is defendant's contention that the information did not allege, nor did the evidence prove that at the time the charged offense was committed there was any "cause, matter or proceeding, civil or criminal, pending in any court of competent *669 jurisdiction against any person", and that, therefore, his motion to quash the information and motion for a directed verdict should have been sustained.
Section 557.090 provides, in part, as follows:
"Every person who shall, by bribery, menace or other means, directly or indirectly induce or attempt to induce any witness, or person who may be a competent witness, to absent himself or avoid a subpoena or other process, or to withhold his evidence, or shall deter or attempt to deter him from appearing or giving evidence in any cause, matter or proceeding, civil or criminal * * * shall be deemed guilty of a misdemeanor; provided, that if the case shall be a prosecution or proceeding against any person for a felony, the person so offending shall be punished by imprisonment in the penitentiary for two years, or in the county jail not exceeding six months, or by fine not less than one hundred dollars, or by both such fine and imprisonment."
Instead of charging merely that Baykowski was under arrest on the date of the attempted intimidation of the witness, as defendant contends in his argument, the information alleged that the charge of assault with intent to kill was a cause, matter and proceeding then and there pending before the grand jury. In other words, that the grand jury had under inquiry said charge of assault with intent to kill. The state, therefore, does not rely on a mere arrest as being the cause, matter and proceeding from which the witness was to withhold her evidence; but rather, a grand jury inquiry.
Two fundamental and decisive issues, therefore, are raised by defendant's motions to quash the information and for a directed verdict. First, is a grand jury inquiry a "cause, matter and proceeding" within the statute; and, second, if so, must the incident or affair from which the witness is to withhold evidence be pending before, and actually under consideration by the grand jury at the time the alleged attempt to intimidate a witness is made.
The first question has never been passed on in Missouri. Outstate authorities, however, are respectable in quantity and persuasive in quality, holding that a grand jury inquiry is a "proceeding". In re Hale, C.C., 139 F. 496, 502; Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 375, 50 L.Ed. 652; Wilson v. United States, 8 Cir., 77 F.2d 236, 240(10); United States v. New Departure Mfg. Co., D.C., 195 F. 778, 779 (2); Koonck v. Cooney, 244 Iowa 153, 55 N.W.2d 269, 270(1); State v. Ventola, 122 Conn. 635, 191 A. 726, 728, 110 A.L.R. 578, 580; People ex rel. Nuccio v. Eighth Dist. Prison Warden of City of New York, 182 Misc. 654, 45 N.Y.S.2d 230, 231(1); Flanary v. Commonwealth, 113 Va. 775, 75 S.E. 289, 293(4).
Without losing sight of the established rule that criminal statutes must be strictly construed, we must look to the end sought to be accomplished, or evil sought to be suppressed in interpreting the intention of the legislature in the enactment of the statute under consideration. The rule of strict construction is not violated by according the language used by the legislature its full meaning in support of the policy and aim of the enactment. The rule does not compel a narrow or forced construction, out of harmony with the manifest purpose and intent of the statute or one which would exclude cases from it that are obviously within its provisions. State v. Schwartzman Service, Inc., 225 Mo.App. 577, 40 S.W.2d 479, 480(7); Abbott v. Western Union Telegraph Co., Mo.App., 210 S.W. 769, 770(3); Wilson v. United States, 8 Cir., 77 F.2d 236, 239, 240(7).
Section 557.090, and related sections, are contained in Chapter 557 entitled "Offenses Against the Administration of Justice". They all have as their purpose the promotion of the orderly administration of justice *670 and the suppression of attempts to thwart or obstruct or undermine justice.
The formal administration of justice in the enforcement of criminal laws is commenced in several ways, among which is an inquiry before a grand jurya body, and a potent and oftentimes indispensable arm of the court, empowered to subpoena witnesses, compel their attendance and take their testimony under oath; an inquiry where the witness' constitutional rights are safeguarded; a body whose functions are important in the administration of our criminal laws; a body who may refuse to return an indictment, and thus erase suspicion from an innocent person, as well as it might return an indictment against a guilty person.
The efficiency of this body is limited to the extent that witnesses are available to appear before it to speak the truth without fear of reprisalto speak the truth in favor of the innocence of an accused as well as his guilt.
Anything which obstructs the procurement of witnesses, or, once procured, which restricts their freedom and willingness to speak the truth before any court or body charged with the enforcement of our laws, civil or criminal, is truly an offense against the administration of justice and within the contemplation of Chapter 557.
The importance of the functions of the grand jury in the chain of criminal procedure is so outstanding that we cannot say that the legislature intended to omit it from the protection of the statutes seeking to guarantee to witnesses security from intimidation and fear. An inquiry before a grand jury is a "cause, matter or proceeding" as used in Section 557.090 and related sections.
Defendant's insistence that "cause, matter or proceeding" is limited to "an information, indictment, or an affidavit upon which an accused has been charged before an examining magistrate as the basis for a preliminary examination" demands a strained, narrow and unduly restricted interpretation of the statute, contrary to, and out of harmony with its manifest purposes and intent; a construction which would permit the intimidation of grand jury witnesses with impunityone which would destroy the effectiveness of grand juries and seriously hamper the administration of justice.
In support of his position that a grand jury inquiry is not within the statute, defendant relies on State ex rel. Butler v. Foster, 187 Mo. 590, 86 S.W. 245, 246. In that case, the grand jury was conducting a general inquiry as to whether bribery had been committed in connection with the passage of an ordinance in the City of St. Louis "`by some person or persons unknown to said grand jurors'". Relator paid a witness who had been subpoenaed to appear before the grand jury $10,000 to leave the state to avoid the giving of his testimony before the grand jury. An indictment was returned charging relator under Section 2041, Rev.St.1899 (now section 557.090). On the theory that the matter which the grand jury had under inquiry was a "`prosecution or proceeding against any person for a felony'" within the proviso of Section 557.090, the circuit court had assumed jurisdiction. On application for prohibition to restrain the circuit court from proceeding because only a misdemeanor punishable by fine or imprisonment in jail was charged, the Supreme Court held that the words "prosecution" and "proceeding" were synonyms of each other and that neither of them could be held "to mean a mere inquiry by the grand jury as to the commission of an offense." In awarding the writ of prohibition, the Court said, 86 S.W. 251, "Without, then, passing upon the sufficiency of the indictment, we hold that upon its face it affirmatively demonstrates that the offense charged therein is not one of the class denounced in the proviso, and therefore not punishable by imprisonment in the penitentiary, and the defendant, if guilty, could only be punished as and for a misdemeanor," by imprisonment in the county jail, or by a fine or both, and that *671 "* * * the grand jury had a right to return the indictment, but the circuit court has no jurisdiction to hear and try the case; * * *." The indictment was ordered certified to the St. Louis Court of Criminal Correction "to try and determine the charges therein contained."
The decision was limited to the construction of the proviso. It did not purport to construe or interpret the first part of the statute. It does not, therefore, rule as defendant contends. It is consistent with our holding herein. A "`prosecution or proceeding against any person for a felony'" is quite different from "any cause, matter or proceeding, civil or criminal" and justifies different treatment both as to class of cases covered and punishment prescribed.
A charge under the statute, however, is not complete simply because the person intimidated might be a competent witness before a court or body that thereafter might or might not take jurisdiction of a cause, matter or proceeding in which such person might be a witness. The cause, matter or proceeding, and in this case specifically, the grand jury inquiry into the charge of assault with intent to kill against Baykowski, must be pending at the time the alleged attempt to intimidate was made. State v. Howard, 137 Mo. 289, 38 S.W. 908, 909. The fact that the grand jury was charged with inquiring into, and might, therefore, assume jurisdiction over, all offenses against the laws of the State of Missouri committed in the City of St. Louis, does not mean that all such violations are "pending" during the term of the grand jury. It must actually have before it the specific matter in which the witness will be competent to testify.
In brief, the evidence most favorable to the state showed simply: Mrs. Weichelt witnessed an assault in the early morning of June 13; Baykowski was "placed under arrest" at the time by Sgt. Soette; later that day the "matter" was presented to an Assistant Circuit Attorney who took the "case" under advisement; the June Term of the Grand Jury was in session; on June 19 defendant told Mrs. Weichelt that when she went to court if she didn't say that she had seen something which she hadn't seen and thereby withhold her evidence of what she had actually seen, she would be shot; on June 25 the "case" was presented to the Grand Jury and Mrs. Weichelt testified for the State.
In the Howard case, under a state of facts much stronger in favor of the state than here, the Supreme Court affirmed the action of the trial court in sustaining a demurrer to an indictment.
In that case defendant had been indicted under Section 3670, Rev.St.1889 (now Section 557.080), for having attempted to procure another to commit perjury as a witness at the trial of defendant in the circuit court, should an indictment be preferred by the grand jury against him. The indictment alleged that on a sworn complaint charging defendant with the theft of hogs, a warrant was issued for his arrest by a justice of the peace; that defendant was arrested on the warrant and upon being brought before the justice waived preliminary examination and was placed under recognizance and bound over to appear before the circuit court to answer any indictment that might be preferred against him by the grand jury; that thereafter defendant offered one Hays $100 to testify "`when duly sworn as a witness in said cause on the trial thereof,'" that defendant bought the hogs from him.
Section 557.080 provides as follows:
"Every person who shall, by the offer of any valuable consideration, attempt, unlawfully and corruptly, to procure or entice any other to commit willful and corrupt perjury to any cause, matter or proceeding, in or concerning which such other person might by law be sworn or affirmed, shall on conviction be punished by imprisonment in the penitentiary for a term not exceeding five years." *672 Both Sections 557.080 and 557.090 are found in the same chapter, relate to the same subject matter, have a common purpose, are aimed at the suppression of the same evil, contain identical language, i. e., "cause, matter or proceeding," and are to be read in pari materia.
In the Howard case the court held, 38 S.W. at page 909:
"* * *. It will be observed that the indictment does * * * charge that the inducement offered to Hays was to commit perjury, on the contemplated trial of defendant upon an indictment to be thereafter returned against him by the grand jury. The words `cause, matter or proceeding,' as used in the statute, evidently mean some cause, matter, or proceeding pending at the time the offer to corrupt is made, and not to something that may be begun or instituted thereafter, which may never be done. * * *"
If the filing of a formal complaint under oath, the issuance of a warrant by a judicial officer, the formal arrest of defendant under the warrant, the granting (and waiver) of a preliminary examination, recognizing defendant and binding him over to appear before the circuit court to answer any indictment that might be returned, does not meet the requirement that a cause, matter or proceeding be pending, then certainly a mere arrest with the "case" being taken "under advisement" by the Circuit Attorney's office falls short of the designation "pending."
At the time the threat was made the grand jury may or may not have taken the matter under consideration and may or may not have returned an indictment and Baykowski may or may not have been brought to trial.
In alleging that Baykowski "on said 19th day of June, 1954, was then and there under arrest on the charge of assault with intent to kill, a cause, matter and proceeding which was then and there pending before the June Term of the St. Louis Circuit Court grand jury" the information sufficiently charged that there was a "cause, matter and proceeding" from which defendant attempted to cause the witness to withhold evidence and that the same was pending on June 19, 1954, the date alleged to have been the time that the witness was intimidated. The motion to dismiss was properly overruled.
However, the evidence showed that the grand jury did not have the matter under inquiry until, at least, it was "presented" by the Assistant Circuit Attorney on June 25, 1954. The "cause, matter and proceeding" was not, then, pending on June 19, 1954 when it is charged that defendant attempted to induce the witness to withhold evidence and no offense under Section 557.090 was proved. State v. Howard, supra. Defendant's request for an instruction to the jury to return a verdict of not guilty should have been granted.
Defendant's complained of errors in the voir dire examination of the jury panel, in the admission of evidence and the giving of instructions need not, of course, be considered.
The judgment is reversed and defendant ordered discharged.
ANDERSON, P. J., and NICK T. CAVE, Special Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620413/ | 13 So.3d 479 (2009)
HENDERSON
v.
STATE.
No. 3D09-1871.
District Court of Appeal of Florida, Third District.
July 21, 2009.
Decision without published opinion Habeas Corpus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620417/ | 955 So.2d 1037 (2003)
Renaldo Chante ADAMS
v.
STATE of Alabama.
CR-98-0496.
Court of Criminal Appeals of Alabama.
August 29, 2003.
Order Affirming Judgment on Return to Remand December 2, 2003.
Rehearing Denied January 23, 2004.
*1047 J. Drew Colfax and Bryan A. Stevenson, Montgomery, for appellant.
William H. Pryor, Jr., atty. gen., and Thomas Parker IV and Henry M. Johnson, asst. attys. gen., for appellee.
McMILLAN, Presiding Judge.
The appellant, Renaldo Chante Adams, was convicted of four counts of capital murder for murdering Melissa "Missy" Mills during the course of a rape, robbery, and burglary, and for murdering Mills during the course of robbing her husband, Andrew Mills. Adams was also convicted of robbery in the first degree for robbing Andrew Mills. The jury, by a vote of 10 to 2, recommended that Adams be sentenced to death for his capital-murder convictions. The trial court accepted the jury's recommendation and sentenced Adams to death. Adams was sentenced to life imprisonment for his robbery conviction.
The State's evidence tended to show the following. On August 20, 1997, Melissa Mills was stabbed to death in her home in Capitol Heights in Montgomery. The coroner testified that Mills, who was four months pregnant, died as a result of multiple stab wounds inflicted to her neck, upper and lower chest, and back. There was evidence indicating that Mills had had sexual intercourse before her death. The autopsy revealed the presence of semen in her vagina and external bruising to her vagina.
Andrew Mills testified that during the evening of August 20, 1997, he was sleeping on the sofa when he was awakened by an intruder. Melissa Mills and their three children were asleep in their bedrooms at the time he was awakened. According to Mills, the intruder was wearing a stocking mask, gloves, a T-shirt, sweatpants with the word "Army" written down one leg, and black scandals and was carrying a knife. Andrew testified that he begged the intruder to leave and not to hurt his family he offered to give him money if he would leave. Andrew testified that the intruder told him to sit on the sofa. Andrew complied; moments later he heard the door of his and Melissa's bedroom open. Andrew went to his bedroom and saw Adams on top of Melissa. Andrew begged the intruder not to hurt his wife because, he told him, she was four months pregnant. The intruder demanded money. Mills testified that he only had $9 in the house and that he told the intruder that he could get more money from a bank. Mills left the house, went to an automated teller machine ("ATM"), and returned with $375 the highest amount the ATM would let him withdraw at one time. The intruder demanded more money. Mills then went to a nearby grocery store to cash a *1048 check. At the store, Mills told employees that his wife was being held at knifepoint in their home in Capitol Heights. A store employee telephoned the police and Mills spoke to the emergency 911 operator. Police officers were dispatched to the residence. Mills arrived at the same time Montgomery Police Officers D.M. Griffin and W.T. Grant were approaching the house in their patrol car. They attempted to gain entry to the house, but the door was locked. Eventually one of Mills's daughters opened the door. As the group started inside Officer Grant spotted someone running through the house and out the back door. A chase ensued. Meanwhile, Mills discovered Melissa lying on the floor partially under the bed in their bedroom. She was soaked in blood and gasping for air. Paramedics made numerous attempts to revive her but she died approximately three hours later. The coroner testified that she died from loss of blood caused by stab wounds to her liver, neck, and lungs.
Police apprehended Adams approximately 20 minutes after an intruder had been seen running from the Millses' house. Adams surrendered after he came out from the crawl space of a nearby house. He was wearing the identical clothing described by Andrew Mills, except the clothing was covered with blood. Nine blood-smeared dollar bills were discovered near the area where Adams was apprehended. Adams was also wearing one black sandal its mate was discovered in the Millses' backyard. DNA tests conducted on the semen collected from the victim matched Adams's DNA. Likewise, the blood on the money and on Adams's clothes matched the victim's DNA.
While he was incarcerated at the Montgomery County detention facility following the murder, Adams attended high-school equivalency classes. The teacher testified that at one session the students had been noisy when they entered the room and he inquired as to what they had been discussing. The students told him that a new inmate had been beaten up in the jail. The teacher then inquired as to whether the inmate was the one who had raped and killed the woman in Capitol Heights. The teacher said that a new student whom, he was later able to identify as Adams, replied, "No, that was me."
The jury convicted Adams of three counts of capital murder for murdering Melissa Mills during the course of a rape, robbery, and burglary, and one count of capital murder for murdering Melissa Mills during the course of robbing Andrew Mills. The jury also convicted Adams of robbery in the first degree for robbing Andrew Mills.
A separate sentencing hearing was held before the jury as mandated by § 13A-5-46, Ala.Code 1975. The jury recommended, by a vote of 10 to 2, that Adams be sentenced to death. The trial court then ordered that a presentence report be prepared in accordance with § 13A-5-47(b). The trial court conducted a separate hearing at which time it allowed counsel to present their arguments on sentencing. See § 13A-5-47(c). The trial court sentenced Adams to death for the capital-murder convictions and to life imprisonment for the robbery conviction. The trial court prepared a detailed sentencing order in accordance with § 13A-5-47(d). This appeal, which is automatic in a case where the defendant has been sentenced to death, followed. See § 13A-5-53(a), Ala. Code 1975.
Standard of Review
Adams has been sentenced to death. According to Rule 45A, Ala.R.App.P., this Court must search the record for any error, whether or not the error was brought to the attention of the trial court. Rule 45A, states:
*1049 "In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."
In determining when to apply plain error to a given situation, this court has stated:
"`In considering what constitutes plain error in a capital case, we have adhered to the interpretation of the term "plain error" adopted by the Alabama Supreme Court, which follows the interpretation given that term by the federal courts. See Ex parte Harrell, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985); Ex parte Womack, 435 So.2d 766 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983). See also Hooks v. State, 534 So.2d 329 (Ala.Cr.App. 1987), aff'd, 534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005 (1989). Plain error is error that has or probably has adversely affected a substantial right of the appellant, Ala.R.App.P. 45A, or is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. Ex parte Womack. The failure to object at trial weighs against any claim of prejudice an appellant may make. Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.1991).'"
Frazier v. State, 758 So.2d 577, 582 (Ala. Crim.App.), aff'd, 758 So.2d 611 (Ala.1999), quoting Bush v. State, 695 So.2d 70, 87 (Ala.Crim.App.1995), aff'd, 695 So.2d 138 (Ala.1997). In Tyson v. State, 784 So.2d 328, 333 (Ala.Crim.App.), aff'd, 784 So.2d 357 (Ala.2000), we stated:
"The Courts of this State have been reluctant to reverse a capital conviction solely on plain error, and have done so only in specifically egregious situations, i.e., when a prosecutor made a direct comment on an accused's failure to testify, see Powell v. State, 631 So.2d 289 (Ala.Cr.App.1993); when the state illegally introduced evidence, in the guilt phase, indicating that the defendant had committed three prior uncharged violent acts, see Ex parte Woodall, 730 So.2d 652 (Ala.1998), on remand, 730 So.2d 666 (Ala.Cr.App.1999); and when a prosecutor, in the sentencing phase, commented on the result of the defendant's previous trial for the same offense, see Hammond v. State, 776 So.2d 884 (Ala.Cr. App.1998)."
"`In other words, the plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" Ex parte Williams, 710 So.2d 1350, 1355 (Ala.1997), quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), (quoting in turn United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)).
Guilt-Phase Issues
I.
Adams, who was 17 years of age at the time of the murder, argues that the trial court erred in not conducting a full hearing on his request for treatment under the Youthful Offender Act ("YOA"). He asserts that there is no evidence indicating that the trial court's decision to deny Adams's request for YOA treatment was an informed one.
Section 15-19-1(a), Ala.Code 1975, states:
*1050 "(a) A person charged with a crime which was committed in his minority but was not disposed of in juvenile court and which involves moral turpitude or is subject to a sentence of commitment for one year or more shall, and, if charged with a lesser crime may be investigated and examined by the court to determine whether he should be tried as a youthful offender, provided he consents to such examination and to trial without a jury where trial by jury would otherwise be available to him. If the defendant consents and the court so decides, no further action shall be taken on the indictment or information unless otherwise ordered by the court as provided in subsection (b) of this section."
"The Youthful Offender Act is intended to extricate persons below twenty-one years of age from the harshness of criminal prosecution and conviction. It is designed to provide them with the benefits of an informal, confidential, rehabilitative system." Raines v. State, 294 Ala. 360, 363, 317 So.2d 559, 561 (1975).
According to § 12-15-34.1, Ala. Code 1975, Adams, because of his age and the severity of the charged offense, was subject to automatic transfer to the circuit court for trial as an adult. This section states:
"(a) Notwithstanding any other provision of law, any person who has attained the age of 16 years at the time of the conduct charged and who is charged with the commission of any act or conduct, which if committed by an adult would constitute any of the following, shall not be subject to the jurisdiction of juvenile court but shall be charged, arrested, and tried as an adult:
"(1) A capital offense."
However, Adams was still eligible for treatment under the YOA. The YOA applies to all crimes, no matter how severe the charge. See Pressey v. State, 597 So.2d 1385 (Ala.Crim.App.1992).
The record reflects that during Adams's arraignment he was advised of his right to request treatment under the YOA. The following occurred:
"The Court: Mr. Adams, do you understand your right under the Youthful Offender Act as explained by Mr. Goggans [defense counsel] a few minutes ago?
"The Defendant: Yes, sir.
"The Court: You want to make application under that?
"Mr. Goggans: Yes, Your Honor. We'll get with the probation officer and get the report done.
"The Court: All right. We'll do that on January 8."
(R. 14.)
A report was then prepared by a probation officer in anticipation of the hearing on the request for YOA treatment. The record then continues:
"The Court: State v. Renaldo Adams, 97-2403. We're here on YOA determination.
"Tell me why you should get YOA.
"Mr. Goggans: Your Honor, we'll waive argument on that.
"Mr. McNeill [prosecutor]: We're in agreement with Mr. Tymes's [probation officer] recommendation.
"The Court: YOA is denied."
(R. 16.)
Adams argues that the trial court erred in not holding a full hearing on his request for treatment under the YOA. The record shows that defense counsel waived any argument on this issue; therefore, if there was any error it was invited by Adams's own actions. Invited error has been applied to death penalty cases. "An invited error is waived, unless it rises *1051 to the level of plain error." Ex parte Bankhead, 585 So.2d 112, 126 (Ala.1991).
Moreover, we have previously addressed this same issue in Watkins v. State, 357 So.2d 156 (Ala.Crim.App.1977), and stated:
"The Youthful Offender Act does not require a full, formal hearing or an investigation and examination of the defendant by a probation officer in every case.
"`All that is required of the trial court, . . . is such investigation and examination of the defendant as is sufficient to enable the judge to make an intelligent determination of whether, in his discretion, the defendant is eligible to be treated as a youthful offender, rather than being tried, and if found guilty, sentenced in the normal criminal process.' Clemmons v. State, 294 Ala. 746, 749, 321 So.2d 238, 241 (1975)."
357 So.2d at 160. It is clear from the record that the trial court, before it denied treatment under the YOA, had sufficient information before it to rule on Adams's request for YOA treatment. The probation report went into great detail concerning the facts surrounding the murder. It also states that Adams had a pending charge in the juvenile court for robbery in the first degree. Certainly, the trial court had sufficient evidence before it to make an informed ruling on the request for YOA treatment.
Also, the circumstances surrounding the murder were sufficient for the trial court to deny YOA status. As the Alabama Supreme Court stated in Ex parte Farrell, 591 So.2d 444, 449 (Ala. 1991):
"[W]e hold that a criminal charge in and of itself cannot be used as the sole basis for properly denying a petition for youthful offender status. . . .
"We are not saying that the nature of the fact situation on which a charge is based cannot be, in itself, a sufficient reason for denying youthful offender status; to the contrary, we hold that the nature of the fact situation on which a charge is based may, alone, be a sufficient reason for denying youthful offender status. For example, if a minor is charged with first degree assault for beating an elderly person nearly to death with a baseball bat, then the nature of the fact situation on which the first degree assault charge is based could be, in itself, a sufficient reason for properly denying a petition for youthful offender status, although the first degree assault charge in and of itself could not be the basis for denying that petition."
No error, much less plain error, occurred here.
II.
Adams next argues that the State violated his right to testify when it notified him before trial that it intended to use Adams's statements to police to impeach him if he testified at trial.
There is no indication in the record that this issue was ever presented to the circuit court. We thus limit our review of this issue to a plain-error analysis. See Rule 45A, Ala.R.App.P.
The record shows that the State filed a motion entitled, "Notice of State's Intent to Use Statement of Defendant for Impeachment." That motion stated:
"Comes now the State of Alabama by and through its District Attorney for the Fifteenth Judicial Circuit of Alabama, Eleanor I. Brooks, and hereby provides notice to the Court and to the Defendant of its intention to use the confession of the defendant for impeachment if the defendant testifies contradictorily at trial. Harris v. N.Y., 401 U.S. 222 (1971); *1052 Perkins v. State, [574] So.2d 988 (Ala.Cr. App.1990). Attached to this notice are the summary of the oral statement given by the Defendant and a copy of the transcript of the video confession."
Previously, Adams had filed a motion seeking to suppress his statements to police. He argued that he was not given his full Miranda rights because his Rule 11, Ala.R.Juv.P., rights which include the right to communicate with a parent or guardian were violated. The State filed the following response to Adams's motion to suppress:
"Comes now the State of Alabama, by and through its District Attorney for the Fifteenth Judicial Circuit, Eleanor I. Brooks, and in response to the Defendant's Motion to Suppress asserts that at this time, the Defendant's Motion is correct under the opinion of the Alabama Court of Criminal Appeals of Anderson v. State, CR-95-0768 [729 So.2d 900 (Ala.Crim.App.1998)] because the Defendant, who was seventeen years of age was not read his Juvenile Miranda Rights, despite the fact the Defendant was charged as an adult. Anderson holds that a defendant who is under eighteen years of age must be read his Juvenile Rights before his statement is deemed voluntary. Although the State strongly disagrees with the soundness of this holding, it is the law at this time. However, the State urges this court to withhold ruling upon the Defendant's motion until trial because the Anderson case is being challenged in the Alabama Supreme Court which may issue a ruling overturning this erroneous ruling prior to trial."[1]
The State did not concede that the statement was involuntary because Adams had been coerced by police to made the statement. However, the State did concede that the statement should be excluded because Adams was not given his juvenile Miranda rights before he made the statement. See Anderson v. State, 729 So.2d 900 (Ala.Crim.App.1998).
The State's notice of its intent to use the statement for impeachment purposes was consistent with established law. In Ex parte Watts, 471 So.2d 505, 506 (Ala.1985), the Alabama Supreme Court stated:
"The Court of Criminal Appeals also correctly notes that a statement, not admissible in the prosecution's case-in-chief to prove the crime charged because it was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), can nevertheless be used to impeach the accused's trial testimony. Watts [v. State, 471 So.2d 504 (Ala.Crim.App.1984)]; Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Ex parte Walker, 369 So.2d 825 (Ala.1979). It can be so used only if the state affirmatively shows the statement to have been voluntary. Ex parte Walker, supra."
(Footnote omitted.) In Ex parte Comer, 591 So.2d 13, 17 (Ala.1991), the Alabama Supreme Court also stated:
"In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the United States Supreme Court held that, although a criminal defendant's prior statement may have been obtained in violation of his Miranda rights, it may be used for impeachment purposes to attack the credibility of the defendant's trial testimony if it was voluntarily made and its trustworthiness satisfies legal standards."
*1053 See also Perkins v. State, 574 So.2d 988 (Ala.Crim.App.1990); Hill v. State, 555 So.2d 341 (Ala.Crim.App.1989); Gardner v. State, 530 So.2d 250 (Ala.Crim.App.1987); Whetstone v. State, 435 So.2d 226 (Ala. Crim.App.1983); Campbell v. State, 341 So.2d 742 (Ala.1976); Johnson v. State, 398 So.2d 393 (Ala.Crim.App.1981).
Because this issue was never presented to the trial court, no hearing to determine the voluntariness of Adams's statement to police was held. However, the State's notification documents contain a transcript of the statement. The statement reads, in part, as follows:
"Q [Detective]: Okay, Renaldo, before we end this statement, I just want to go over that once more, in fact, you did, in fact, give this of your own free will and you were the one that initiated and told Detective Naquin and I that you did want to discuss this, is that correct?
"[Adams]: Yes, sir.
"[Detective]: And everything you told us is the truth, right at the best of your knowledge?
"[Adams]: Yes, sir.
"[Detective]: And not at any time [have] you been mistreated while you were in police custody, is that correct?
"[Adams]: Yes, sir.
"[Detective]: Did, did we treat you well?
"[Adams]: Yes, sir.
"[Detective]: And is it true that you asked to talk to us about this and we didn't pressure you?
"[Adams]: Yes, sir."
Based on this dialogue, there appears to be no indication that the statement was the product of coercion.
The State did not violate any of Adams's constitutional rights by giving him notice of its intent to use his statements for impeachment purposes. There was no error, much less plain error, here.
III.
Adams, who was 18 years old at the time of trial, argues that he was denied his constitutional right to a jury that was representative of his peers because § 12-16-60(a)(1), Ala.Code 1975, excludes from jury service individuals under the age of 19.
Section 12-16-60, states, in part:
"(a) A prospective juror is qualified to serve on a jury if the juror is generally reputed to be honest and intelligent and is esteemed in the community for integrity, good character and sound judgment and also:
"(1) Is a citizen of the United States, has been a resident of the county for more than 12 months and is over the age of 19 years."
The United States Supreme Court in Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), reviewed an action brought by the citizens of Greene County Alabama. The citizens sought a declaration that blacks had been systematically excluded from jury service in Greene County and that the Alabama statutes governing jury selection were unconstitutional. In addition, the citizens sought a permanent injunction forbidding the exclusion of blacks from jury service and an order compelling the Governor to select a new jury commission. The district court ordered that the jury commission take prompt action to compile a jury list that accorded with Alabama law. The citizens appealed to the United States Supreme Court. The statute under attack in Carter, former Al.Code, Tit. 30, § 21 (Supp.67), is now codified in § 12-16-60, Ala.Code 1975. The wording of former Tit. 30 § 21, was identical to the wording contained in § 12-16-60. This section states, "A prospective juror is qualified to *1054 serve on a jury if the juror is generally reputed to be honest and intelligent and is esteemed in the community for integrity, good character and sound judgment." The United States Supreme Court, in upholding this statute, stated:
"It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors. The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character. . . .
"Statutory provisions such as those found in § 21 are not peculiar to Alabama, or to any particular region of the country. Nearly every State requires that its jurors be citizens of the United States, residents of the locality, of a specified minimum age, and able to understand English. Many of the States require that jurors be of `good character' or the like; some, that they be `intelligent' or `well informed.'"
396 U.S. at 332-33, 90 S.Ct. 518 (footnotes omitted). The Mississippi Court of Appeals in Williams v. State, 772 So.2d 1113, 1115 (Miss.Ct.App.2000), stated the following about age restrictions for jury service:
"Williams argues that eighteen to twenty year old's are a cognizable group due to their economic status and physical appearance and are therefore being improperly excluded from serving on a jury. The main thrust of Williams argument is that because Williams is under twenty-one, he cannot be tried by a jury of his peers. The State rebuts this argument by pointing out that no where in the Constitution is there a guarantee of being tried by a jury of your peers and further, that the Hernandez [v. Texas, 347 U.S. 475 (1954),] court held that a person is only entitled to be tried by qualified jurors regardless of national origin or descent. In Mississippi, a qualified juror is defined, in part, as being over the age of 21. Miss.Code Ann. § 13-5-1 (1972)."
Similarly, the Superior Court of New Jersey in State v. Stewart, 120 N.J.Super. 509, 295 A.2d 202 (1972), stated:
"On appeal defendant, who is 19 years of age, argues that `the exclusion of 18 to 21 years old from prospective jury selection and service denies [her] the right to trial by a jury of her peers' and `is an invidious discrimination . . . repugnant to the equal protection clause of the Fourteenth Amendment.' We find no merit in defendant's contentions.
"N.J.S.A. 2A:69-1 sets forth the requisite qualifications of a juror, including the requirement that he or she be `over 21 and under 75 years of age.' The constitutional power of the State to provide such age qualifications for jurors is clear. See Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), in which the court said:
"`It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors. The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character. [at 332, 90 S.Ct. at 525]
"Although defendant contends that `the 18 to 21 year old age group constitutes a recognizable political, economic and social group of the community' whose exclusion from jury duty is unconstitutional, her argument therefor is unpersuasive and she cites no case so holding. The reported cases are to the *1055 contrary, each rejecting contentions identical with those advanced by defendant. See, e.g., United States v. McVean, 436 F.2d 1120, 1122 (5 Cir.1971), cert. den. 404 U.S. 822, 92 S.Ct. 45, 30 L.Ed.2d 50 (1971); United States v. Gargan, 314 F.Supp. 414, 417 (W.D.Wis. 1970); People v. Hoiland, 22 Cal.App.3d 530, 99 Cal.Rptr. 523 (Ct.App.1971)."
120 N.J.Super. at 510-11, 295 A.2d at 203. See also In re Welfare of J.K.B., 552 N.W.2d 732 (Minn.Ct.App.1996); State v. David, 2 Conn.Cir.Ct. 199, 197 A.2d 348 (1962).
Adams was not denied any rights by the exclusion from the jury of those under the age of 19.
IV.
Adams argues that the trial court erred in removing for cause several jurors who stated that they could not vote to impose the death penalty. Specifically, he argues that the trial court erred in removing these jurors because they indicated that they could consider both life imprisonment and death.
A trial court's decision to grant or deny a challenge for cause based on a bias exhibited by a prospective juror during voir dire is entitled to great deference on appeal and will be reversed only upon a showing of an abuse of discretion. See Watwood v. State, 389 So.2d 549 (Ala.Crim. App.1980). We recognize that the bias of a prospective juror is based in large part on questions of the credibility of that juror. A judge who is present when the juror is questioned is in a far greater position to assess that juror's credibility than is a reviewing court that must base its decision on a record. When reviewing a trial court's ruling granting a challenge for cause we apply the standard articulated in Bryant v. State, 951 So.2d 702 (Ala.Crim. App.1999), aff'd in relevant part, rev'd in part, 951 So.2d 724 (Ala.2002). In Bryant we stated:
"In Thomas v. State, 539 So.2d 375 (Ala.Cr.App.1988), we said the following, relevant to Bryant's claim concerning prospective juror R.C.:
"`In Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), the U.S. Supreme Court addressed the question of whether to apply the statutory presumption of correctness [28 U.S.C. § 2254(d)] to a state trial court's decision concerning a denial of the defendant's challenge for cause. In deciding that the statutory presumption of correctness should be applied to a trial court's resolution concerning challenges for cause, the Supreme Court gave two reasons.
"`"First, the determination has been made only after an often extended voir dire proceeding designed specifically to identify biased veniremen. It is fair to assume that the method we have relied on since the beginning, e.g., United States v. Burr, 25 F.Cas.No. 14,692g, pp. 49, 51 (No. 14,692g) (CC Va.1807) (Marshall, C.J.), usually identifies bias. Second, the determination is essentially one of credibility, and therefore largely one of demeanor. As we have said on numerous occasions, the trial court's resolution of such questions is entitled, even on direct appeal, to `special deference.' E.g., Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500, 104 S.Ct. 1949, 1959, 80 L.Ed.2d 502 (1984)."'
"`Patton, 104 S.Ct. at 2892 (footnote omitted).
"`The reasons set out above are also the reasons this court gives great *1056 weight to a trial court's decision on challenges for cause.
"`In addressing whether there was fair support in the record for the trial court's denial of the challenges for cause in Patton, the Supreme Court stated:
"`"The testimony of each of the three challenged jurors is ambiguous and at times contradictory. This is not unusual on voir dire examination, particularly in a highly publicized criminal case. It is well to remember that the lay persons on the panel may never have been subjected to the type of leading questions and cross-examination tactics that frequently are employed, and that were evident in this case. Prospective jurors represent a cross section of the community, and their education and experience vary widely. Also, unlike witnesses, prospective jurors have had no briefing by lawyers prior to taking the stand. Jurors thus cannot be expected invariably to express themselves carefully or even consistently. Every trial judge understands this, and under our system it is that judge who is best situated to determine competency to serve impartially. The trial judge properly may choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading."'
"`Patton, 104 S.Ct. at 2893.
"`The U.S. Supreme Court's discussion, concerning two of the challenges for cause in Patton, is particularly relevant to the challenge for cause as to juror Lovell.
"`"Similarly, in the case of alternate juror Pyott, we cannot fault the trial judge for crediting her earlier testimony, in which she said that she could put her opinion aside `[i]f [she] had to,' rather than the later testimony in which defense counsel persuaded her that logically she would need evidence to discard any opinion she might have. Id., at 246a, 250a-252a. Alternate juror Chincharick's testimony is the most ambiguous, as he appears simply to have answered `yes' to almost any question put to him. It is here that the federal court's deference must operate, for while the cold record arouses some concern, only the trial judge could tell which of these answers was said with the greatest comprehension and certainty."
"`Patton, 104 S.Ct. at 2893.'
"539 So.2d at 388-89 (footnote omitted).
"For the reasons set out above, we do not find that the trial court abused its discretion in granting the State's challenge for cause as to prospective juror R.C.R.C.'s answers were at times contradictory; thus, the trial judge was in the best position to determine which of R.C.'s answers were `said with the greatest comprehension and certainty.' Id. Accordingly, we find no error as to this claim."
951 So.2d at 711-13.
A.
Adams first challenges the removal of prospective juror C.C. He asserts that this juror, although first stating that he was in favor of a life without parole, answered upon further questioning that he could follow the law as instructed by the jury. Adams quotes certain portions of the record that, he argues, support this contention.
During C.C.'s questioning, the following occurred:
*1057 "The Court: Okay. Do you have an opinion, one way or the other, in favor of life without parole or in favor of the death penalty? Do you favor one over the other? Any preconceived ideas about either one of those forms of punishment?
"Prospective juror [C.C.]: I would have to say that I have a preference.
"The Court: What is that?
"Prospective juror [C.C.]: Life without parole.
"The Court: If I give you certain criteria or factors to consider, some aggravating or leaning toward the death penalty, others that are mitigating and leaning toward life without parole, could you follow those instructions and weigh those factors?
"Prospective juror [C.C.]: Excuse me.
"The Court: I'll repeat it for you. If I give you certain criteria or factors to consider, some aggravating and leaning toward the death penalty, others that are mitigating and leaning toward life without parole, could you follow those instructions and weigh those factors?
"Prospective juror [C.C.]: It would be tough for me because I have a hard time being in a position of being able to end somebody else's life.
"The Court: Let me ask you these questions. Do you think that the death penalty is the only appropriate punishment for someone found guilty of capital murder?
"Prospective juror [C.C.]: No, sir.
"The Court: Okay. Do you think that sending a person to prison for the rest of his life without the possibility of parole can be an appropriate punishment for someone if found guilty of capital murder?
"Prospective juror [C.C.]: Yes, sir.
"The Court: Okay. The Defendant at the time of the alleged crime was 17 years old. Would this factor alone automatically cause you to vote for life without parole?
"Prospective juror [C.C.]: That's one I've considered, myself. And I have a hard time with that, with giving anything other than life without parole.
"The Court: All right. [Prosecutor]?
"[Prosecutor]: I do, a few.
"Mr. [C.C.], exactly, how do you feel about the death penalty? What are your feelings on it?
"Prospective juror [C.C.]: I'm not very comfortable with it at all.
"[Prosecutor]: Okay. Is that a religious or moral reason or just personal?
"Prospective juror [C.C.]: It's a religious/moral issue.
"[Prosecutor]: Let me ask you this way: Do you foresee in any case, if you're sitting as a juror, despite the evidence, do you foresee yourself ever being able to vote for the death penalty?
"Prospective juror [C.C.]: For a 17 year old, I'm afraid I couldn't do that.
"[Prosecutor]: Would you Let me ask the question this way: Do you feel that your opinions regarding the death penalty, would that substantially hinder your ability to sit as a juror and render a verdict for the death penalty?
"Prospective juror [C.C.]: Well, from what I've said so far, I would have to say yes."
(R. 168-71.)
Defense counsel attempted to rehabilitate this juror and the following occurred:
"[Defense counsel]: Do you understand that in Alabama capital offenses don't encompass all killings. It doesn't encompass any type of reckless killing or negligent killing. It doesn't even encompass an intentional killing. It's only an intentional killing during the course *1058 of another felony. For example, in this case, the State has charged an intentional killing during the course of burglary, robbery, and rape. Do you understand that we're not talking about just any type of killing when we're talking about a capital offense?
"Prospective juror]: Yes, sir.
"[Defense counsel]: I understand that your inclination is against the death penalty. But do you understand that in a court of law that if people are selected for jury duty that they are given instructions by the Court about how to go about weighing evidence and making decisions based on the evidence? Do you understand that?
"Prospective juror [C.C.]: Yes, sir.
"[Defense counsel]: Do you understand that before a jury is ever called upon to consider whether someone should be sentenced to death or life without parole that the jury must first have found the person guilty of a capital offense. Do you understand that?
"Prospective juror [C.C.]: Yes, sir.
"[Defense counsel]: And that means that the jury would have to be convinced, all 12 people on the jury would have to have been convinced, beyond a reasonable doubt that this person intentionally killed someone during the course of this other felony, for example, burglary, rape, and robbery. Do you understand that?
"Prospective juror [C.C.]: Yes, sir.
"[Defense counsel]: So at that point those 12 people would have no reason to doubt that this person is guilty of a capital offense. Do you understand that?
"Prospective juror [C.C.]: Yes, sir.
"[Defense counsel]: Do you also understand that in the jury making this recommendation of death or life without parole that they're not just sent back to the jury room and told to go talk about it and let us know what you want to do. They're, again, given opening statements, presented with evidence and arguments and they're, again, given very careful guidance from the Court on how to go about doing that. Do you understand that?
"Prospective juror [C.C.]: Yes, sir.
". . . .
"[Defense counsel]: Do you think you could do that in a capital case, go through the analysis and cast your vote according to how your analysis came out whether you like it or not?
"Prospective juror [C.C.]: It would be tremendously difficult.
"[Defense counsel]: But you could do it?
"Prospective juror [C.C.]: I suppose it's possible if I just be totally analytical about it.
"[Defense counsel]: Nothing else."
(R. 171-74.)
The prosecutor then questioned this juror as follows:
"[Prosecutor]: But there will be a person in front of you; is that correct
"Prospective juror [C.C.]: That's the problem.
"[Prosecutor]: Go back to my question. Rather than just talking about could haves, basically, we need to know exactly how you feel. Do you believe that you could?
"The Court: Could what?
"[Prosecutor]: Could vote for the death penalty?
"The Court: If the evidence and the law warranted it.
"[Prosecutor]: If the evidence and the law warranted it?
"Prospective juror [C.C.]: I want to be as honest and forthright as I can. And *1059 I mean, I would have to totally It would almost be like working a math problem or something. It would be tough. I work with people too. And I just
"The Court: Let me ask it another way: If this case should reach the penalty phase, would you, automatically, vote against the death penalty.
"The Court: So you could consider the mitigating and aggravating factors and follow the law as instructed you by the Court; you would do that?
"Prospective juror [C.C.]: Yes. I just would have a heavy bias
"The Court: You would have a tough time. But you could follow the law and apply the evidence and the facts and the law as given to you by the Court?
"Prospective juror [C.C.]: Yes, sir.
"[Prosecutor]: But as you stated earlier, your opinion and view on the death penalty would substantially impair your ability to do so, to vote for it?
"Prospective juror [C.C.]: It would help to have somebody in the jury room reminding me at that point. I mean, I may get emotional. I may get whatever. If someone wants to, you know, make sure that we're following the letter of the law and so forth, that's fine.
"[Prosecutor]: That's all I have, Judge."
(R. 174-76.)
It is clear from reading the quoted portions of the record that this juror was biased against the death penalty. C.C.'s last comments were that he would have a tough time and that he would need someone in the jury room reminding him to follow the law. Clearly, this juror held views that would affect his ability to render an impartial decision in this case. The trial court did not abuse its discretion in granting the State's challenge for cause of prospective juror C.C.
B.
Adams next argues that the trial court abused its discretion in granting the State's challenge for cause of prospective juror I.H.
In response to the court's questions, I.H. indicated that she would not vote for death because Adams was 17 at the time of the murder. The prosecutor then questioned this juror. In response to his questions I.H. indicated that she could never consider the death penalty. Defense counsel then attempted to rehabilitate I.H., and she indicated in response to his questions that "I would never vote for the death penalty." (R. 292.) The prosecutor then questioned this juror:
"[Prosecutor]: Ma'am, would you say that your views about the death penalty, would it substantially hinder or just really get in your way for you to ever be able to vote for the death penalty?
"Prospective juror [I.H.]: Could it do what now?
"[Prosecutor]: How you feel about the death penalty, your feelings about the death penalty, would they substantially hinder or basically really get in the way of you being able to sit down back in the jury room and vote for the death penalty?
"Prospective juror [I.H.]: I don't know.
"[Prosecutor]: Okay. You stated to [defense counsel's] question that you would never vote for the death penalty.
"Prospective juror [I.H.]: Unless I just had to.
"[Prosecutor]: Somebody would have to make you do it?
"Prospective juror [I.H.]: Uh-huh.
"[Prosecutor]: The Judge would have to tell you to do it?
*1060 "Prospective juror [I.H.]: Yeah."
(R. 293-94.)
Clearly, this juror indicated that she held views against the death penalty that would hinder her ability to be impartial. The trial court did not abuse its discretion in granting the state's challenge for cause of prospective juror I.H.
C.
Adams next argues that the trial court erred in failing to remove for cause several jurors who indicated, he argues, that they would automatically vote for the death penalty.
Initially, we note that all five of the challenged prospective jurors were removed by the defense, using its peremptory strikes.
When reviewing a challenge to the trial court's failure to remove a juror for cause we apply the standard articulated in Smith v. State, 698 So.2d 189 (Ala. Crim.App.1996), aff'd, 698 So.2d 219 (Ala. 1997):
"A trial court's ruling on challenges for cause based on alleged bias is entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion. Nobis v. State, 401 So.2d 191, 198 (Ala.Cr.App.), cert. denied, 401 So.2d 204 (Ala.1981). To justify a challenge for cause there must be a statutory bias or some matter that imports absolute bias or favor and leaves nothing to the discretion of the trial court. Pardue v. State, 571 So.2d 320 (Ala.Cr.App.1989), rev'd on other grounds, 571 So.2d 333 (Ala.1990); Minshew v. State, 542 So.2d 307 (Ala.Cr. App.1988). Even proof that the veniremember is biased or has a fixed opinion is insufficient. There must be proof that the opinion was so fixed that it would bias the verdict of the veniremember. Clark v. State, 443 So.2d 1287 (Ala.Cr. App.1983). If the veniremember indicates that he or she can lay aside that impression or opinion and render a verdict based on the evidence presented in court, the juror is not subject to challenge for cause. Minshew v. State; Mahan v. State, 508 So.2d 1180 (Ala.Cr. App.1986)."
698 So.2d at 200. As we stated in Dunning v. State, 659 So.2d 995 (Ala.Crim. App.1994):
"The test for determining whether a strike rises to the level of a challenge for cause is `whether a juror can set aside their opinions and try the case fairly and impartially, according to the law and the evidence.' Marshall v. State, 598 So.2d 14, 16 (Ala.Cr.App.1991). `Broad discretion is vested with the trial court in determining whether or not to sustain challenges for cause.' Ex parte Nettles, 435 So.2d 151, 153 (Ala.1983)."
659 So.2d at 997.
Adams initially argues that the trial court erred in failing to remove prospective juror W.G. because, he argues, this juror stated that the death penalty was appropriate punishment for all capital murderers. Our review of the record does not support Adams's contention. During W.G.'s voir dire examination the following occurred:
"The Court: Okay. Do you have an opinion, one way or the other, in favor of life without parole or in favor of the death penalty?
"Prospective juror [W.G.]: To myself, I feel like the death penalty is the more appropriate action as far as deterrence. I think the criminal punishment is life without parole.
"The Court: If I give you certain criteria to consider, some aggravating and leaning toward the death penalty, others *1061 that are mitigating and leaning toward life without parole, could you follow those instructions and weigh those factors?
"Prospective juror [W.G.]: Yes, sir.
"The Court: Do you think that the death penalty is the only appropriate punishment for someone found guilty of capital murder?
"Prospective juror [W.G.]: No.
"The Court: Do you think that sending a person to prison for the rest of his life without the possibility of parole can be an appropriate punishment for someone found guilty of capital murders?
"Prospective juror [W.G.]: Yes, sir.
"The Court: The Defendant at the time of the alleged crime was 17 years old. Would this fact alone automatically cause you to vote for life without parole?
"Prospective juror [W.G.]: No, sir.
". . . .
"[Defense counsel]: I believe you said that you thought that the death penalty was more appropriate for a deterrence.
"Prospective juror [W.G.]: I feel like it's a better deterrence. If other people see that people were getting the death penalty, it may prevent them from doing the crime in the future. To me, the far worse punishment is life without parole. But I feel like the death penalty is a better deterrence.
"[Defense counsel]: Why do you think that life without parole is a worse punishment?
"Prospective juror [W.G.]: I can just imagine myself trying to go through life in prison without ever getting out. That would be terrible.
"[Defense counsel]: Mr. [W.G.], in Alabama capital offenses don't cover all types of killings. We're not talking about a negligent killing or a reckless killing. And, actually, we're not even talking about an intentional killing unless there's something else that goes along with it. If it's just an intentional killing, that would be a plain murder case without the possibility of a death penalty. A capital case in Alabama is an intentional killing plus something else that we lawyers call an aggravating component. It's usually some other felony in which an intentional killing is done. For example, in this case the allegation is an intentional killing during the course of a burglary, robbery and rape. Now the way it's set up in Alabama, the first thing that happens is what we call a guilt phase in which the State attempts to prove that the person did what is charged. If the jury finds the person not guilty or guilty of something other than capital murder, the jury is done. Proceedings are ended. The jury has concluded its work. On the other hand, if the jury finds the person guilty of capital murder, it proceeds to what is called the penalty phase in which you go about determining life without parole or death. But before getting to that penalty phase, if you get to the penalty phase, that means that a jury of 12 people have found unanimously, all 12 have agreed, that there is no reason to doubt that the person has intentionally killed somebody during the course of another felony; for example, rape, robbery, burglary, something of that nature. Do you think that if somebody had been found guilty of an intentional killing during the course of some other felony like rape, burglary or robbery that only appropriate punishment would be death for that person?
"Prospective juror [W.G.]: I feel like, yes, I do.
"[Defense counsel]: So would it be fair to think that your feeling would be that if somebody had been found guilty of *1062 intentionally killing somebody during the course of this other felony that the only really appropriate punishment to consider would be death?
"Prospective juror [W.G.]: I feel so, yes, sir.
"[Defense counsel]: Nothing else.
"[Prosecutor]: Just a few follow-up, Judge.
"You stated that life without parole could be an appropriate case under certain circumstances; is that right?
"Prospective juror [W.G.]: (Prospective juror nods head in the affirmative.)
"[Prosecutor]: Would you, before making your decision, sitting there with the jury, if you're selected as a juror in this case, would you be able to follow the law as the Judge instructed you?
"Prospective juror [W.G.]: Yes.
"[Prosecutor]: Would you apply that law to the facts that are presented to you?
"Prospective juror [W.G.]: Yes.
"[Prosecutor]: Would you make a decision based upon the law and the facts?
"Prospective juror [W.G.]: Yes.
"[Prosecutor]: What we're asking for, Mr. [W.G.], is whether you have any preconceived ideas as to what you would do.
"Prospective juror [W.G.]: At this point, no.
"[Prosecutor]: You would wait to see what the evidence is?
"Prospective juror [W.G.]: Yeah.
"[Prosecutor]: That's all I have.
"[Defense counsel]: Nothing else.
"The Court: Let me ask you something: When [defense counsel] was asking you some questions, you stated that you thought the appropriate punishment would be death under that situation he stated. Are you telling me that you would vote for death in those situations? Or would you listen to the criteria given to you by the Court and weigh those against life without parole or death
"Prospective juror [W.G.]: I would have to listen to all of the criteria first.
"The Court: Okay.
"Prospective juror [W.G.]: Just given the situation, I don't know, yes, sir, what I would vote."
(R. 256-61.)
It is clear that this juror was rehabilitated after he indicated to a question propounded by defense counsel that the appropriate punishment was death. W.G. indicated not only to the prosecutor but also to the Court that he could base his decision on the evidence presented in the case. The trial court correctly denied the challenge for cause of this prospective juror.
D.
Adams argues that the trial court erred in failing to remove prospective juror C.B. for cause because he said that the death penalty was the only appropriate punishment. In his brief to this Court, Adams cites one question in the record that was asked of this prospective juror and cites no other portions of the record. Our review of the record does not support Adams's contention. The following occurred during the voir dire examination of this prospective juror:
"[Defense counsel]: If you were on a jury and you and the other 11 folks on the jury had found that this person was guilty of a capital offense, this intentional killing in the course of a something else, do you think, just as a general proposition that somebody convicted of that, the only appropriate punishment would be death?
"Prospective juror [C.B.]: It all depends on all of the circumstances. You know, *1063 like what you're saying there, if it's, you know, intentional, yes, I believe in that.
"[Defense counsel]: So if it's an intentional killing, you think the only appropriate punishment would be death?
"Prospective juror [C.B.]: That's true.
"[Defense counsel]: I may have misunderstood you. My hearing is not the best in the world. I think when you were asked the question about age, did I understand you correctly to say that you don't think age is a matter? Did I understand that correctly?
"Prospective juror [C.B.]: That's correct.
"[Defense counsel]: What do you mean by that?
"Prospective juror [C.G.]: I believe in the circumstances, what you're just talking about, if someone has the ability to take someone else's life and there's something else that involves with this and it's intent, they are a proven adult right then and there. And, you know.
". . . .
"[Prosecutor]: Briefly, Mr. [C.B.], the Let me ask you this way: The Judge is going to instruct you as to what are the mitigating circumstances that would be a factor, as the Judge describes, weigh for life without parole decision by the jury. Okay. And the Judge will instruct you that age is one of them. Could you give weight to that as a mitigating circumstance? Can you consider it? I guess that's what I'm asking.
"Prospective juror [C.G.]: Yeah, I could consider it. I'm open-minded. I'm open-minded in every way. It all depends on what the degree of the crime is.
"[Prosecutor]: And with that in mind, you can consider life without parole if the degree of the crime is in your heart does not rise to warrant the death penalty?
"Prospective juror [C.G.]: Right."
The record shows that the trial court correctly denied the defense counsel's motion to remove this prospective juror for cause.
E.
Adams argues that the trial court erred in failing to remove prospective juror J.H. for cause.
The record reflects that when this juror was initially questioned by the trial court she indicated that she had no opinion one way of the other in favor of the death penalty so that she could weigh the criteria given by the court when considering an appropriate sentence. The juror was then questioned and the following occurred:
"[Defense counsel]: You mentioned that in response to Judge Shashy's questions about the death penalty and life without parole that life without parole sometimes can be an appropriate punishment. When would you think that sometimes may be.
"Prospective juror [J.H.]: I couldn't tell you that. I would have to listen to the individual case.
"[Defense counsel]: Do you understand that in Alabama, when we talk about something being a capital murder, we're not talking about every killing? We're not talking about a negligent killing or reckless killing. In fact, we're not talking about an intentional killing. We're talking about only intentional killings along with what we lawyers call an aggravating component, usually that's an intentional killing during the course of some other felony. For example, in this case the charge is an intentional killing during the course of a burglary, robbery, and rape. Those are alleged as *1064 aggravating components. Do you understand that we're not talking about all types of killings? Do you understand that?
"Prospective juror [J.H.]: (Prospective juror nods head in the affirmative.)
"[Defense counsel]: Do you understand that before a jury ever really gets down to the business of deciding whether to vote for the death penalty or life without parole, there's first got to have been a finding of guilty of a capital offense. Do you understand that?
"Prospective juror [J.H.]: Yes.
"[Defense counsel]: And that means that the jury would have heard the evidence, listened to the arguments, listened to the Judge's instructions on the law and found no reason to doubt, whoever it is on trial had intentionally killed somebody during the course of this felony. Do you understand that?
"Prospective juror [J.H.]: Yes, sir.
"[Defense counsel]: Do you think that if somebody is found guilty of intentionally killing somebody during the course of another felony, burglary, robbery, rape, that the only appropriate punishment for that person would be death?
"Prospective juror [J.H.]: Yes.
"[Defense counsel]: Nothing else.
"[Prosecutor]: Now I got kind of confused on his questions. So I need to follow up.
"Prospective juror [J.H.]: All right.
"[Prosecutor]: You had stated earlier that you would have to know what the case is before
"Prospective juror [J.H.]: Yeah. I really don't like what he had said. I don't like yes or no on these kind of issues. I don't think it's black and white. I think it's It seems that we have to answer yes or no answers.
"[Prosecutor]: You would want to see what would be offered in mitigation; is that correct?
"Prospective juror [J.H.]: Right. I would want to listen and hear the evidence.
"[Prosecutor]: That's all I have.
"The Court: I'm confused. Earlier I told you that I would give you certain criteria or factors to consider, some aggravating or leaning toward the death penalty and others that are mitigating and leaning toward life without parole. Okay.
"If Mr. Adams is convicted, those factors would be given. Could you follow those instructions and weigh those factors in making a recommendation of life without parole or the death penalty?
"Prospective juror [J.H.]: Yes."
(R. 271-77.)
This juror indicated that she could follow the law as instructed by the trial court. There was no error in failing to remove this juror for cause.
F.
Adams also challenges the trial court's failure to remove prospective juror B.H. for cause because he indicated that death was always the appropriate sentence. The following occurred:
"[Defense counsel]: Now as far as you, yourself, is concerned as far as [B.H.] is concerned do you think that if somebody gets found guilty by a jury in Montgomery County of having intentionally killed somebody during the course of some other serious felony, burglary, rape, robbery, kidnapping, whatever the other felony is, that the only appropriate punishment of that person is death?
"Prospective juror [B.H.]: I don't want to say the only one but depending on the *1065 evidence, like I said before, yeah, that would definitely be a good possibility.
"[Defense counsel]: When you say, depending on the evidence, tell me what you have in mind.
"Prospective juror [B.H.]: I just mean, listening to the case and all of the facts and everything and proving guilty, weighing that on the death penalty or life without parole. That's what I mean. Does that make it a little bit clearer?
"[Defense counsel]: We'll talk a little more, and we'll figure it out.
"Are you saying that if you're convinced that this person is guilty of doing it, that's when you would think death would be the appropriate punishment?
"Prospective juror [B.H.]: Yes.
"[Defense counsel]: If you had no reason to doubt that this person intentionally killed somebody during the course of this other serious felony, that's when you would think that death is the appropriate punishment? You've heard all of the evidence, and you don't have any reason to doubt it.
"Prospective juror [B.H.]: Yes.
"[Defense counsel]: But until you get to that point, you're not going to say, one way or the other, how you feel.
"Prospective juror [B.H.]: Yeah.
"[Defense counsel]: But once you get to that point where you're convinced that there's no reason to doubt this person's guilt, that's when you think death is the appropriate punishment.
"Prospective juror [B.H.]: Yes.
"[Defense counsel]: Nothing else.
"[Prosecutor]: Just a brief follow-up, Mr. [B.H.]. I'm sorry.
"When you get to that phase of the trial, the penalty phase of the trial as the Judge described to you, there will be evidence put forth by the State for aggravating circumstances, facts that we contend warrant the death penalty. The Defendant will put on facts for mitigating. That will be facts that would warrant a verdict of life without parole. My question is this: You've already found him guilty of capital murder. Say that the Defense puts forth very strong evidence of mitigation, something about his character, childhood, whatever it may be, something about it. And it was very strong and compelling. Would you be able to vote for life without parole if you found that it outweighed
"Prospective juror [B.H.]: Yes, I could if I found that it outweighed that fact, yes."
(R. 334-37.)
This prospective juror indicated that he could follow the law and weigh the evidence as instructed by the court. There was no error for failing to remove this juror for cause.
G.
Adams further challenges the trial court's failure to remove prospective juror L.D. for cause after, he argues, she stated her strong views in favor of the death penalty. During the initial questioning of this juror by the trial court L.D. answered that she favored the death penalty but that she could follow the court's instructions. The following occurred:
"[Prosecutor]: Could you see yourself voting for life without parole if the evidence warranted it?
"Prospective juror [L.D.]: If it warranted it, I would have to consider it.
"[Prosecutor]: Thank you. That's all I have.
"[Prosecutor]: . . . I don't want to put words in your mouth. But what you're telling us and the Court is that you need to hear the evidence in the case.
*1066 "Prospective juror [L.D.]: That's correct. I couldn't make a decision any other way.
"[Prosecutor]: Thank you, ma'am.
"The Court: Let me ask you something: As I told you earlier, I'm going to give you certain If Mr. Adams is found guilty of capital murder, I will give you certain criteria or factors to consider, some aggravating, leaning toward the death penalty and others that are mitigating and leaning toward life without parole. Would you follow those instructions and weigh those factors? Could you do that in this case despite what personal feelings you may have about the death penalty or life without parole? Could you follow the law and weigh those criteria?
"Prospective juror [L.D.]: I think so."
(R. 239-41.)
As with the other jurors, this juror indicated that she could follow the law and weigh the aggravating and mitigating circumstances as directed by the trial court. There was no error in failing to remove this juror.
Moreover, all of the challenged jurors were removed by the defense's use of its peremptory strikes. Therefore, any error was harmless. As we stated in Tomlin v. State, 909 So.2d 213 (Ala.Crim.App. 2002):
"The United States Supreme Court in United States v. Martinez-Salazar, 528 U.S. 304 (2000), held that as long as the selected jury was impartial there was no prejudicial error when a trial court failed to remove a juror for cause who was subsequently removed by the defense using a peremptory challenge. The Martinez-Salazar Court stated:
"`In choosing to remove Gilbert rather than taking his chances on appeal, Martinez-Salazar did not lose a peremptory challenge. Rather, he used the challenge in line with a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury. See, e.g., J.E.B. [v. Alabama ex rel. T.B.], 511 U.S. [127], at 137, n. 8 [(1994)] (purpose of peremptory challenges "`is to permit litigants to assist the government in the selection of an impartial trier of fact'") (quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991)); Georgia v. McCollum, 505 U.S. 42, 57 (1992) (peremptory challenges are "one state-created means to the constitutional end of an impartial jury and a fair trial"); Frazier v. United States, 335 U.S. 497, 505 (1948) ("the right [to peremptory challenges] is given in aid of the party's interest to secure a fair and impartial jury"). Moreover, the immediate choice Martinez-Salazar confronted to stand on his objection to the erroneous denial of the challenge for cause or to use a peremptory challenge to effect an instantaneous cure of the error comports with the reality of the jury selection process. Challenges for cause and rulings upon them, as Judge Rymer observed, see supra, at 310, are fast paced, made on the spot and under pressure. Counsel as well as court, in that setting, must be prepared to decide, often between shades of gray, "by the minute." [United States v. Martinez-Salazar,] 146 F.3d [653] at 661 [(9th Cir.1998)].
"`. . . .
"`We answer today the question left open in Ross [v. Oklahoma, 487 U.S. 81 (1988)] and hold that a defendant's exercise of peremptory challenges pursuant to Rule 24(b) is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause. Martinez-Salazar *1067 and his codefendant were accorded 11 peremptory challenges, the exact number Rule 24(b) and (c) allowed in this case. Martinez-Salazar received precisely what federal law provided; he cannot tenably assert any violation of his Fifth Amendment right to due process. See Ross, 487 U.S., at 91.'
"528 U.S. at 315-17. The Alabama Supreme Court has relied on the United States Supreme Court's decision in Martinez-Salazar to affirm a trial court's erroneous grant of a challenge for cause. In Evans v. State, 794 So.2d 411, 414 (Ala.2000), the Alabama Supreme Court stated:
"`Evans argues that the trial court's error in excusing E.F.W. violated his right to a trial by an impartial jury, a right guaranteed by Amendments 6 and 14 of the United States Constitution and § 6 of the Alabama Constitution. However, the United States Supreme Court has held that a defendant's federal right to an impartial jury was not automatically violated merely by an erroneous ruling on a challenge for cause. Ross v. Oklahoma, 487 U.S. 81, 87-88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988); see also United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). As long as the jury that heard the case was impartial, the right guaranteed by the United States Constitution was not violated. See Ross, 487 U.S. at 87-88. This rule would also apply to § 6 of the Alabama Constitution, which gives the defendant the right to a trial "by an impartial jury of the county or district in which the offense was committed." The plain meaning of this language is that the defendant is entitled only to an impartial jury and that unless the defendant can show that a trial court's erroneous ruling during jury selection prevented the jury from being impartial, there is no violation of § 6.
"`Evans has made no showing that his rights, such as his right to an impartial jury, were probably injuriously affected by the trail court's excusing E.F.W. Therefore, we conclude that the trial court's error in excusing E.F.W. was not reversible, because, even with the error, Evans still had a fair trial with an impartial jury.'
"The Supreme Court found that any error in the trial court's erroneous removal of a juror for cause was harmless because the defendant did not show that the empaneled jury was impartial. This Court, citing Martinez-Salazar, has likewise found harmless error. See Ray v. State, 809 So.2d 875, 886 (Ala. Crim.App.2001), cert. denied, 809 So.2d 891 (Ala.2001), cert. denied, 534 U.S. 1142, 122 S.Ct. 1096 (2002) (`In United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), the defendant used a peremptory challenge to cure the trial court's erroneous denial of a challenge for cause. The United States Supreme Court held that the defendant's right to exercise his peremptory challenges was not denied or impaired when he chose to use a peremptory challenge to remove a juror who should have been challenged for cause.'); Smith v. State, 908 So.2d 273 (Ala.Crim.App.2000) (`[A]ny possible error was harmless based on the United States Supreme Court's recent holding in United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774 (2000).').
"Therefore, if any error did occur, it was harmless. See Ray v. State, supra; Smith v. State, supra."
908 So.2d at 237-38.
V.
Adams next argues that the trial court violated the Alabama Rules of Criminal *1068 Procedure and his rights under the Alabama Constitution when it allowed the jury to separate each evening over his objection. He acknowledges that the Alabama Supreme Court's decision in Ex parte Stewart, 730 So.2d 1246 (Ala.1999), conflicts with his argument.
At the time that Adams was tried, Rule 19.3(a)(1), Ala.R.Crim.P., read, in part: "In any prosecution for a capital felony, upon the consent in open court of the defendant, defendant's counsel, and the district attorney, the trial court, in its discretion" may allow the jury to separate. However, § 12-16-9, Ala.Code 1975, as that section was amended in 1995 before Adams's trial, read, in part: "In the prosecution of any felony case the trial court in its discretion may permit the jury hearing the case to separate during the pendency of the trial."
Recognizing the conflict between Rule 19.3 and § 12-16-9, the Alabama Supreme Court stated in Ex parte Stewart:
"The version of Rule 19.3 in effect at the time of Stewart's third sentencing hearing became effective on January 1, 1991. The amended version of § 12-16-9 became effective on June 15, 1995. The irreconcilable language of that later provision compels us to conclude, as the Court of Criminal Appeals did, that the Legislature intended to change the effect of Rule 19.3 insofar as it conflicted with § 12-16-9. When the Legislature, through a general act, changes the procedural rules promulgated by this Court, we are bound by the Constitution and the laws of this state to give effect to the Legislature's changes. Therefore, we conclude that the Court of Criminal Appeals correctly held that § 12-16-9 overrode the conflicting portions of Rule 19.3."
730 So.2d at 1250. The Alabama Supreme Court has on two occasions subsequent to Stewart been called upon to reconsider its holding in that case but has declined to do so. See Ex parte Drinkard, 777 So.2d 295 (Ala.2000), and Ex parte Smith, 756 So.2d 957 (Ala.2000).
Adams also argues that the trial court violated the law by failing to admonish the jury each time it separated in accordance with Rule 19.3(d), Ala. R.Crim.P. Rule 19.3(d) stated[2]:
"(d) Admonitions to Jurors. In all cases, the court shall admonish the jurors that they are not
"(1) To discuss among themselves any subject connected with the trial until the case is submitted to them for deliberations;
"(2) To converse with anyone else on any subject connected with the trial, until they are discharged as jurors in the case;
"(3) To knowingly expose themselves to outside comments or to news accounts of the proceedings, until they are discharged as jurors in the case; or
"(4) To form or express any opinion of the case until it is submitted to them for deliberation."
It is true that the trial court did not admonish the jury on each occasion it separated for each recess. However, when Adams's jury was struck the trial court gave very detailed instructions that included the following:
"Okay. Let me remind you, again and I think I've discussed this with you you are not to discuss this case. And I've told you that over and over and *1069 over again. And I know you're tired of hearing it. But I'm going to tell you that all the time. And I do not want you watching any TV or radio news, no newspaper while this case is going on. Do not discuss it with your family members. Do y'all understand that?
"(Jurors indicate in the affirmative.)"
(R. 402.) Moreover, when the jury adjourned the first evening the trial court gave the following instructions:
"The Court: Again, you're not to discuss I know y'all are tired of hearing me say it. It's very important that you follow these instructions. You're not to discuss the case with anyone. That would include members of your family, among yourselves or anyone else.
"Should anyone try to contact you about this case or say anything to you about this case, I need to know about it. Y'all understand that; right?
"(Jurors indicate in the affirmative.)
"I don't want you listening to any news accounts, radio, or TV, whatsoever, no local news broadcast. I don't want you reading any local newspaper."
Though detailed instructions were not given each time there was a break in the proceedings, there was no violation of Rule 19.3. As we stated in Smith v. State, 795 So.2d 788 (Ala.Crim.App.2000):
"The trial court did not give similar detailed instructions at each break in the court proceedings. To require a court to do so would be unduly burdensome, disruptive, and contrary to the clear wording of Rule 19.3(d). Indeed, Rule 19.3(d) does not require that a trial court give the admonitions at each court break. Indeed, Rule 19.3(d) does not state that these instructions must be given more than once in the trial. The record clearly reflects that the jurors were aware of their duties and obligations. There was no violation of Rule 19.3(d)."
795 So.2d at 805.
VI.
Adams argues that the prosecutor violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by using 3 of its 12 peremptory strikes to remove blacks from the venire.
No Batson objection was made after the jury was struck; therefore, our review of this issue is severely hampered and is limited to a plain-error analysis. For plain error to exist in a Batson context, the record must raise an inference that the State engaged in purposeful discrimination. See Flowers v. State, 799 So.2d 966 (Ala.Crim.App.2000); Guthrie v. State, 616 So.2d 913 (Ala.Crim.App.1992). When no prima facie of racial discrimination appears on the face of the record, we refuse to find plain error. See Simmons v. State, 797 So.2d 1134 (Ala.Crim.App. 2000), cert. denied, 797 So.2d 1186 (Ala. 2001). Here, the only argument in support of the motion is that the State used three of its strikes to remove blacks. Numbers alone are not sufficient to establish a prima facie case of discrimination. See Boyd v. State, 715 So.2d 825 (Ala. Crim.App.1997), aff'd, 715 So.2d 852 (Ala. 1998).
We have examined the record and find absolutely no inference that the State engaged in purposeful discrimination when using its peremptory strikes. Because there is no inference of purposeful discrimination, we find no plain error.
VII.
Adams also argues that the prosecutor violated J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), by using 80% of its strikes to remove females.
*1070 Adams made no objection at trial that the prosecution engaged in purposeful discrimination under J.E.B.; therefore, we review this issue for plain error. As we stated in Boyd, 715 So.2d at 836:
"In his appellate brief, the appellant argues that a prima facie case of gender discrimination exists because the prosecutor used 10 of his 14 peremptory strikes to remove 10 of 26 female jurors. However, a review of the strike list included in the record, as well as the voir dire examination, indicates that the appellant used 10 of his 13 strikes to remove female jurors. There were no supporting circumstances to indicate gender discrimination or to render a failure by the trial court to find the existence of a prima facie case of gender discrimination plain error, i.e., error that would adversely affect the substantial rights of the appellant. Similarly, in George v. State, [717 So.2d 827 (Ala.Cr. App.1996), rev'd on other grounds, 717 So.2d 844 (Ala.1996),] this Court found that the record did not supply an inference of gender discrimination. `Before the plain error analysis can come into play in a Batson issue, the record must supply an inference that the prosecution engaged in purposeful discrimination. Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987); Rieber [v. State, 663 So.2d 985 (Ala.Cr.App.1994), affirmed, 663 So.2d 999 (Ala.1995)].' Pace v. State, 714 So.2d 316, 318 (Ala.Cr.App. 1995)."
Like Boyd, the only evidence that Adams used to support this argument is the number of females who were struck. There is absolutely no other evidence to support this contention. The record fails to raise any inference that the prosecutor used gender discrimination when striking the jury. We note that 10 females sat on Adams's jury. There is no plain error here.
VIII.
Adams argues that the trial court erred in allowing a photograph of him to be introduced into evidence. Specifically, he argues that the photograph was a "mug shot" and that its admission prejudiced him because, he argues, the jury could have inferred that he had had prior contact with law enforcement.
Defense counsel filed a motion in limine seeking to exclude the "mug shot" of Adams that was made on the date of his arrest. Counsel argued that the photograph was not relevant, that it was inadmissible under Rule 403, Ala.R.Evid., because it suggested that Adams had committed other crimes, and that its admission would unduly impact his presumption of innocence.
The record reflects that when the admission of the photograph was discussed at trial the prosecution offered to alter the photograph so that the jury would not see any markings that indicated that the picture was a law-enforcement photograph. The following occurred:
"The Court: All right. How Let me tell you what I'm going to do. There is a little bit of relevance on the photograph. How are you going to alter that photograph?
"[Prosecutor]: We can do just like this, Judge
"The Court: Let me tell you what I'm going to do.
"[Prosecutor]: We can cut off the bottom
"The Court: One side
"[Prosecutor]: Right. If that is satisfactory with the Court. Obviously, I would like the whole thing in.
*1071 "The Court: Obviously, it does have some relevance as to the shirt he's wearing.
"Do it like you said.
"[Prosecutor]: Okay.
"The Court: The right side gone, and the numbers gone, just the photograph.
"[Defense counsel]: Same objection on the relevancy and the other grounds stated on the motion in limine."
(R. 578-79.)
It appears that with the modifications made to the photograph at the judge's order there were none of the traditional markings that would classify the photograph as a "mug shot." The photograph contained no markings, no date, no numbers, and no lined background indicating height. The photograph did not meet the traditional definition of a mug shot.
Even if we were to conclude that the photograph was a mug shot, there was no reversible error in its admission. As we stated in Guthrie v. State, 616 So.2d 914 (Ala.Crim.App.1993):
"`Mug shots are generally inadmissible in a criminal trial because the jury may infer from them that the defendant has a criminal history.' Ex parte Long, 600 So.2d 982, 989 (Ala.1992) (citation omitted). See Webb v. State, 539 So.2d 343, 348 (Ala.Cr.App.1987). In Holsclaw [v. State, 364 So.2d 378 (Ala.Crim. App.1978)] this court adopted the analysis set forth in United States v. Harrington, 490 F.2d 487 (2d Cir.1973) of the test of admissibility of `mug shot' type photographs. Recently, the Alabama Supreme Court adopted the Harrington criteria and stated that the `failure to meet one or more of these criteria would not necessarily result in reversible error,' Ex parte Long, 600 So.2d at 989. The court, in Harrington, set forth the rule as follows:
"`We perceive three prerequisites to a ruling that the introduction of "mug shot" type photographs does not result in reversible error:
"`1. The Government must have a demonstrable need to introduce the photographs; and
"`2. The photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and
"`3. The manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs.'
"490 F.2d at 494. See also Long; Holsclaw; C. Gamble, McElroy's Alabama Evidence § 123.07 (4th ed.1991)."
616 So.2d at 926-27.
All of the prerequisites discussed in United States v. Harrington, 490 F.2d 487 (2d Cir.1973), were satisfied. The photograph was relevant because, as the trial court stated, it showed Adams wearing the shirt Mills had described the intruder was wearing. Second, the photograph itself did not imply a prior criminal record. Third, no undue attention was drawn to the photograph. There was no error in admitting the photograph into evidence.
IX.
Adams argues that the trial court erred in admitting photographs of the crime scene and photographs of the wounds inflicted on the victim into evidence. Specifically, Adams objects to the photographs of the victim because the jury was allowed to see the victim's body after "surgical intervention."
In Malone v. State, 536 So.2d 123 (Ala. Crim.App.1988), this court addressed this same question and stated:
*1072 "`A photograph [of a victim] becomes objectionable only when there is distortion of two kinds: (1) distortion of the subject matter as where necroptic or other surgery causes exposure of nonprobative views, e.g., massive mutilation. . . .' C. Gamble, McElroy's Alabama Evidence, § 207.01(2) (3d ed.1977).
"`The general rule in Alabama is that photographs of a murder victim taken after the performance of surgery or an autopsy are admissible in evidence even though they show the marks of incisions made for the purpose of the autopsy or resulting from the surgery where these marks are sufficiently identified and pointed out to the jury. . . . '
"` . . . The fact that a photograph has very little probative value does not prevent its admissibility where it will tend to shed light on, strengthen, or illustrate the truth of other testimony; or where it has a reasonable tendency to prove or disprove some material fact or issue in the case; or where it illustrates the location, nature or extent of the wound or is used to identify the deceased.' Gilmore v. State, 346 So.2d 1193, 1196 (Ala.[Crim.App.]1977).
"The photograph in this case was gruesome and did not show the exact location of the wound. However, the photograph was used to demonstrate the approximate location of the wound and to identify the body in the chain of custody. The testimony and the photograph itself make it clear that the depicted condition of the victim's body was not caused by the injury inflicted by the defendant, but was the result of a medical life-saving effort.
"Although we discourage the use of such photographs with little probative value, Caylor v. State, 353 So.2d 8, 11 (Ala.Cr.App.1977), cert. quashed, 353 So.2d 11 (Ala.1978), the trial judge is vested with a large amount of discretion in his determination of whether a photograph will aid the jury or tend to cause confusion or prejudice. Bucyrus-Erie Co. v. Von Haden, 416 So.2d 699, 701 (Ala.1982).
"`Courts and juries cannot be too squeamish about looking at unpleasant things, objects or circumstances in proceedings to enforce the law and especially if truth is on trial. The mere fact that an item of evidence is gruesome or revolting, if it sheds light on, strengthens or gives character to other evidence sustaining the issues in the case, should not exclude it.' Baldwin v. State, 282 Ala. 653, 655-56, 213 So.2d 819, 820 (1968)."
536 So.2d at 125. The photographs of the victim's injuries were correctly received into evidence.
Moreover, the photographs of the crime scene were correctly received into evidence. "Photographs that depict the crime scene are relevant and, therefore, admissible." Broadnax v. State, 825 So.2d 134, 158 (Ala.Crim.App.2000).
X.
Adams argues that the trial court erred in admitting the autopsy report on the victim. He contends that the report was not relevant and that it contained information unnecessary to the State's case.
When the autopsy report was introduced into evidence during the coroner's testimony, the following occurred:
"[Prosecutor]: I'm going to show you State's Exhibit 55 and ask you if you can recognize that exhibit.
*1073 "[Coroner]: Yes, sir. This is a copy of my autopsy report.
"[Prosecutor]: Your Honor, we move to admit State's 55.
"The Court: It's admitted.
(State's Exhibit 55 was premarked for identification and admitted in evidence.)"
(R. 629.) The record shows that defense made no objection at the time that the autopsy report was received into evidence. Therefore, we are limited to reviewing this issue for plain error. Rule 45A, Ala. R.App.P.
According to § 15-4-2, Ala.Code 1975, the coroner must make a report as to the cause of death of all persons who are not attended by a physician at the time of death. In § 254.01(18), McElroy's Alabama Evidence (5th ed.1996), Charles Gamble states, "An autopsy report made in the regular course of business is admissible under the business records exception." In Baker v. State, 473 So.2d 1127 (Ala.Crim.App.1984), we stated:
"We hold that an autopsy report, made in the regular course of the business of the Department of Forensic Sciences, is admissible into evidence under the Alabama Business Records Act [§ 12-21-43, Ala.Code 1975]. To the extent that such a report contains opinions, those opinions are admissible on the theory that if the physician who performed the autopsy were a witness, his testimony would be admissible as that of an expert."
473 So.2d at 1129. See also Seals v. State, 282 Ala. 586, 604, 213 So.2d 645, 663 (1968) ("such reports, properly certified, are admissible in evidence when offered by a defendant in a criminal case. . . . ").
There was no error, much less plain error, in allowing the autopsy report to be introduced into evidence.
XI.
Adams next argues that the trial court erred by allowing certain items of physical evidence to be introduced at trial without, he argues, a proper chain of custody. He attacks the admission of items marked as State's exhibits 4, 16, 39, 42, and 57.
"`The purpose . . . of establishing a chain of custody is to satisfy the court that it is reasonably probable that the exhibit is authentic and that no one has altered or tampered with the proffered physical exhibit. . . . A chain of custody only need be proved to a reasonable probability. One need not negate remote possibilities of substitution, alteration, or tampering with proffered physical evidence in order to establish a proper chain of custody. . . . In essence, what must be shown to introduce physical evidence is that the proffered item is the same object and that is in substantially the same condition as it was at the commencement of the chain.'"
Riddle v. State, 669 So.2d 1014, 1018 (Ala. Crim.App.1994), quoting J. Colquitt, Alabama Law of Evidence § 9.1(c) at 484 (1990). However, we are mindful of § 12-21-13, Ala.Code 1975, which states:
"Physical evidence connected with or collected in the investigation of a crime shall not be excluded from consideration by a jury or court due to a failure to prove the chain of custody of the evidence. Whenever a witness in a criminal trial identifies a physical piece of evidence connected with or collected in the investigation of a crime, the evidence shall be submitted to the jury or court for whatever weight the jury or court may deem proper. The trial court in its charge to the jury shall explain any break in the chain of custody concerning the physical evidence."
*1074 A.
Adams initially argues that State's exhibit 4 was improperly received into evidence. The following is the extent of his argument on this issue in Adams's brief, "In addition, the trial court reversibly erred in to admit [sic] state's exhibit 4 absent testimony from any witness to authenticate the tape of the telephone call." (Adams's brief, p. 119.)
The following occurred during Andrew Mills's testimony:
"[Prosecutor]: I want to show you what's been marked as State's Exhibit 4 (indicating) and ask you if you can recognize that exhibit.
"[Andrew Mills]: Yes.
"[Prosecutor]: And what is this?
"[Andrew Mills]: It's a copy of the complete 911 call that was made to 911.
"[Prosecutor]: At that time?
"[Andrew Mills]: Yes.
"[Prosecutor]: From the Winn-Dixie [grocery store]?
"[Andrew Mills]: Correct.
"[Prosecutor]: And have you listened to this tape?
"[Andrew Mills]: I have.
"[Prosecutor]: And what's on this tape, what's actually, actually, said during the course of that conversation?
"[Andrew Mills]: Yes."
(R. 432-33.) Defense counsel objected and argued that Mills was not the proper person to authenticate the tape. Defense counsel argued that the 911 operator was the only individual who could testify as to the authenticity of the 911 telephone conversation. The examination of Mills continued with the following:
"[Prosecutor]: But you were a party to this conversation; correct?
"[Andrew Mills]: Correct.
"[Prosecutor]: Any you know what was said?
"[Andrew Mills]: Correct.
"[Prosecutor]: And what you heard on this tape, was that actually what was said in that conversation on the phone at the Winn Dixie on August 20 of last year?
"[Andrew Mills]: That's correct."
Mills identified his voice as the voice on the recording. He also identified the recording as an accurate account of his conversation with the 911 telephone operator on the day of his wife's murder.
This court in Johnson v. State, 823 So.2d 1 (Ala.Crim.App.), cert. denied, 823 So.2d 57 (Ala.2001), quoting Ex parte Fuller, 620 So.2d 675 (Ala.1993), stated:
"`The proper foundation required for the admission of a sound recording into evidence depends on the circumstances of the case in which the admission is sought.' Smith v. State, 727 So.2d 147, 167 (Ala.Crim.App.1998), aff'd, 727 So.2d 173 (Ala.), cert. denied, 528 U.S. 833, 120 S.Ct. 91, 145 L.Ed.2d 77 (1999). In Ex parte Fuller, 620 So.2d 675 (Ala.1993), the Alabama Supreme Court set out the two alternative methods of laying a foundation for the admissibility of sound recordings:
"`The proper foundation required for admission into evidence of a sound recording or other medium by which a scene or event is recorded (e.g., a photograph, motion picture, videotape, etc.) depends upon the particular circumstances. If there is no qualified and competent witness who can testify that the sound recording or other medium accurately and reliably represents what he or she sensed at the time in question, then the "silent witness" foundation must be laid. Under the "silent witness" theory, a witness must explain how the process or *1075 mechanism that created the item works and how the process or mechanism ensures reliability. When the "silent witness" theory is used, the party seeking to have the sound recording or other medium admitted into evidence must meet the seven-prong Voudrie [v. State, 387 So.2d 248 (Ala.Crim.App.), cert. denied, 387 So.2d 256 (Ala.1980)] test. Rewritten to have more general application, the Voudrie standard requires:
"`(1) a showing that the device or process or mechanism that produced the item being offered as evidence was capable of recording what a witness would have seen or heard had a witness been present at the scene or event recorded,
"`(2) a showing that the operator of the device or process or mechanism was competent,
"`(3) establishment of the authenticity and correctness of the resulting recording, photograph, videotape, etc.,
"`(4) a showing that no changes, additions, or deletions have been made,
"`(5) a showing of the manner in which the recording, photograph, videotape, etc., was preserved,
"`(6) identification of the speakers, or persons pictured, and
"`(7) for criminal cases only, a showing that any statement made in the recording, tape, etc., was voluntarily made without any kind of coercion or improper inducement.
"`On the other hand, when a qualified and competent witness can testify that the sound recording or other medium accurately and reliably represents what the witness sensed at the time in question, then the foundation required is that for the "pictorial communication" theory. Under this theory, the party offering the item must present sufficient evidence to meet the `reliable representation' standard, that is, the witness must testify that the witness has sufficient personal knowledge of the scene or events pictured or the sounds recorded and that the item offered accurately and reliably represents the actual scene or sounds.'
"620 So.2d at 678.
"Here, the State presented sufficient evidence of the authenticity of the tape recording of the 911 calls. Barry Rushakoff testified that he had listened to the tape of the two 911 calls that he placed the night of the murder and that the tape was an accurate representation of what had transpired during those calls. Although Rushakoff did not identify all of the voices that can be heard in the background of the tape, positive identification of every sound on a tape recording is not necessary for its admission. See, e.g., Molina v. State, 533 So.2d 701, 711 (Ala.Crim.App.1988), cert. denied, 489 U.S. 1086, 109 S.Ct. 1547, 103 L.Ed.2d 851 (1989) (holding that videotape of defendant placing telephone call while being `booked' at the police station was properly admitted even though witness could not verify every word that the defendant spoke as one he personally heard; as long as `portions' of video and/or sound recordings are verified by a witness, the recordings are admissible). Rule 901(a), Ala.R.Evid., states that `authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.' Testimony of a witness with knowledge that the matter `is what it is claimed to be' is sufficient authentication to warrant admission. *1076 Rule 901(b)(1), Ala.R.Evid. Under the `pictorial communication' theory, Rushakoff's testimony was sufficient to authenticate the tape recording of the 911 calls. Any unidentified sounds or voices on the tape recording affected the weight and credibility of the tape, not its admissibility. Therefore, we find no error, plain or otherwise, in the admission of the tape recording of the 911 calls."
823 So.2d at 23-25. The 911 telephone conversation was properly authenticated and was correctly received into evidence.
B.
Adams next challenges the admission of the knife purportedly used in the stabbing. He asserts that the knife was admitted into evidence despite, he argues, massive gaps in its chain of custody.
Our review of the record shows that a proper chain of custody was established for the knife. The record reflects that the knife was first identified by Andrew Mills as the knife he saw the intruder brandishing on the night of the murder. Officer R.L. Engle also testified that he located the knife near the area where Adams was arrested and that he stayed with the evidence until an evidence technician arrived to collect the evidence. Officer Ronald VanHerwyn, an evidence technician, testified that he collected the knife that was smeared with what appeared to be blood and took the knife and other evidence to Dr. Mike Hitchcock for testing on the smear. Dr. Hitchcock stated that he received the evidence in a sealed box. He conducted tests on the knife and identified the substance on the knife as blood. Dr. Hitchcock testified that he sealed the item and transferred it to the DNA expert Katherine McGeehan. McGeehan testified that she received the blood evidence collected from the knife from Dr. Hitchcock and that she tested it and that it matched the victim's blood. There was no break in the chain of custody for the knife and it was correctly received into evidence.
C.
Adams next argues that the trial court erred in allowing the two vials of blood taken from Adams to be received into evidence.
The record reflects that Officer Richard Cleghorn testified that a detective obtained a court order to draw Adams's blood. Nurse Lynn Russell drew the blood and gave it to Officer Cleghorn. The record reflects that the State attempted to introduce the vials during Officer Cleghorn's testimony; however, the trial court refused to admit the evidence until a proper chain of custody was established. Officer VanHerwyn testified that he received the vials of blood from Officer Cleghorn and he, in turn, delivered the blood to Dr. Hitchcock. Dr. Hitchcock testified that he received the blood from Officer VanHerwyn and that he drew blood from the vials to make a bloodstain used for comparison when conducting the DNA tests. There was no break in the chain of custody for this evidence. It was properly admitted.
D.
Adams argues that the trial court erred in allowing State's exhibit 42, the rape kit, to be received into evidence because, he says, no chain of custody was established for this evidence. Specifically, he contends that there was no testimony from any State witness that he or she received the rape kit from Lee Anderson.
The record reflects that Dr. Gregory Wanger conducted the autopsy on the body and collected certain evidence from the victim's body. He collected State's exhibit 42, referred to as a rape kit, which *1077 consisted of the collection of fluids and other samples taken from the victim's body, and delivered the kit to Lee Anderson, an employee of the Department of Forensic Sciences. Anderson testified that he transported the rape kit to Katherine McGeehan. McGeehan testified:
"[Prosecutor]: I want to show you, first, what's been marked as State's Exhibit 42. I want to ask if you can recognize this exhibit.
"[McGeehan]: Yes. It is It has our case number on it and my initials. It is a sexual assault, evidence collection kit that was collected by Dr. Wanger that I received from Mr. Lee Anderson on August 25, 1997."
We note that this evidence was admitted without objection. Therefore, we are confined to conducting a plain error analysis. Rule 45A, Ala.R.App.P.
There was no break in the chain of custody for this evidence. It is clear that McGeehan received the evidence from Anderson and that she gave portions of it to Dr. Hitchcock, who, in turn, returned them to her after he completed his portion of the tests. There was no break in the chain of custody for this evidence.
E.
Adams last argues that the trial court erred in allowing State's exhibit 57, a videotape showing the victim's neighborhood, to be received into evidence.
As we stated in Harrison v. State, 869 So.2d 509, 514-15 (Ala.Crim.App.2002):
"`The appellant argues that the trial court erred in admitting a videotape into evidence . . . because, he argues, the proper foundation had not been laid. The appellant contends that the recording should be subject to the same foundational analysis as a tape recording. He also argues that a proper chain of custody was not established for its introduction. However, this court has determined that video recordings are admissible under the rules for the admission of photographic evidence. Molina v. State, 533 So.2d 701 (Ala.Cr.App.1988).
"`"We adopt the `better reasoned rule' that `video recordings are admissible on the same basis as other types of photographic evidence, i.e. admissible when verified by some witness who can state that they are a reliable reproduction of the recorded picture and sound.' C. Scott, Photographic Evidence, supra, § 1297 at 98 n. 42.40 (1987 Pocket Part).
"`". . . .
"`"Accordingly, we reaffirm the predicate for admitting videotape [motion picture] evidence announced by our Supreme Court in U.A.W.-C.I.O. v. Russell, [264 Ala. 456, 88 So.2d 175 (1956), aff'd, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958),] and we specifically reject the dicta in Voudrie v. State, 387 So.2d [248] at 256, and cases following it, that have upheld the more stringent seven-pronged predicate for admitting sound recordings. . . .
"`"The videotape was thus admissible without a showing of its chain of custody. `[A] proper foundation laid for the accuracy of what the film portrays obviates the need to establish a chain of custody to demonstrate its authenticity.' State v. Deering, 291 N.W.2d 38, 41 (Iowa 1980); Accord, Mikus v. United States, 433 F.2d 719, 725-26 (2d Cir.1970); Paramore v. State, 229 So.2d 855, 859 (Fla.1969), vacated on other grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972); Bremer v. State, 18 Md.App. 291, 307 A.2d 503, 535 (1973), cert. denied, 415 U.S. 930, 94 S.Ct. 1440, 39 *1078 L.Ed.2d 488 (1974) (Videotape of attempted assassination of Governor George Wallace admitted without proving chain of custody of the film)."
"`Molina v. State, supra, at 712.'"
Officer R.L. Engle identified the video as an accurate depiction of the neighborhood as he observed it on the night of the murder. This video was correctly received into evidence. Harrison.
XII.
Adams argues that the trial court erred in denying his motion to exclude an inculpatory statement he made to a teacher while he was attending a class in the county jail. He contends that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose the statement in a timely manner before trial.
The record reflects that the Thursday before Adams's trial was scheduled to begin the next Monday, the prosecution learned from a former evidence technician that there was a rumor that Adams had made an incriminating statement to a teacher at the county jail. The technician did not know the identity of the teacher. The prosecutor then obtained a list of all of the teachers who had taught at the county jail. The prosecutor located Archie Lammon, who had taught a class that Adams had attended. Lammon told the prosecutor that during one of his classes a group of students came in the classroom talking very loudly. He asked the students what they were talking about and they told him that a guy in the jail had been beaten up pretty badly. Lammon remarked that he wondered if it was the person who had raped and killed the women in Capitol Heights. Adams responded "No, that was me." Lammon was later able to identify the speaker as Adams.
The prosecutor faxed this information to the defense as soon as it discovered the statement. Defense counsel then moved that the State be precluded from introducing this evidence because of its late disclosure to the defense. The trial court heard arguments on the issue but allowed the statement into evidence.
Adams cites Ex parte Grandberry, 640 So.2d 919 (Ala.1993), and Ex parte Williams, 642 So.2d 391 (Ala.1993), and argues that based on the holdings in those cases we must reverse his convictions and sentence of death.
In Grandberry, the Supreme Court reversed Grandberry's conviction for attempted murder after the State failed to disclose until four days before trial the fact that Grandberry's hands tested negative for gunpowder residue after the shooting. The Court stated:
"After obtaining that evidence, Grandberry moved for a continuance, stating, inter alia, that he did not have adequate time to retain the services of forensic experts to assist in the presentation of the gunpowder residue report. The trial court, concluding that `this is going to be principally an eyewitness trial,' denied the motion."
640 So.2d at 920.
In Williams, the Alabama Supreme Court reversed Williams's first-degree-robbery conviction because the State failed to disclose the victim's statement that contained a description of the robber the statement did not match his trial testimony, the State failed to disclose the photographs used in the lineup, and the State failed to disclose the fact that a black hat was discovered at the scene of the robbery that had the name of Williams's brother inside.
The facts in this case are not analogous to Grandberry and Williams; they are *1079 more analogous to Waldrop v. State, 859 So.2d 1138, 1152 (Ala.Crim.App.2000) (opinion on return to remand) and Minnis v. State, 690 So.2d 521 (Ala.Crim.App. 1996).
This Court in Waldrop considered whether the State's failure to disclose to the defense a statement that Waldrop made that he was in Georgia at the time of the murders constituted a Brady violation. The trial court denied the motion for a mistrial, stating that defense counsel could have conferred with Waldrop about the statement. This Court stated:
"In Freeman v. State, 722 So.2d 806 (Ala.Crim.App.1998), this Court addressed the discovery of a defendant's statements to the police, wherein we stated:
"`To prove a Brady violation, a defendant must show that "`(1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; (3) the evidence was material to the issues at trial.'" Johnson v. State, 612 So.2d 1288, 1293 (Ala.Cr. App.1992), quoting Stano v. Dugger, 901 F.2d 898, 899 (11th Cir.1990), cert. denied, Stano v. Singletary, 516 U.S. 1122, 116 S.Ct. 932, 133 L.Ed.2d 859 (1996). See Smith v. State, 675 So.2d 100 (Ala.Cr.App.1995). "`The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.'" Johnson, 612 So.2d at 1293, quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985).
"`. . . .
"` . . . As for the appellant's statement to the police, the appellant's counsel could have discovered from the appellant himself the fact that the appellant had given a statement. Thus, the appellant could have obtained all of the evidence in question by exercising due diligence. "There is no Brady violation where the information in question could have been obtained by the defense through its own efforts." Johnson, 612 So.2d at 1294; see also Jackson v. State, 674 So.2d 1318 (Ala.Cr. App.1993), aff'd in part and rev'd in part on other grounds, 674 So.2d 1365 (Ala.1995). "`Evidence is not "suppressed" if the defendant either knew . . . or should have known . . . of the essential facts permitting him to take advantage of any exculpatory evidence.' United States v. LeRoy, 687 F.2d 610, 618 (2d Cir.1982)[, cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983)]." Carr v. State, 505 So.2d 1294, 1297 (Ala.Cr.App. 1987) (noting, "The statement the appellant contends was suppressed in this case was his own, and no reason was set forth to explain why he should not have been aware of it.") Where there is no suppression of evidence, there is no Brady violation. Carr, 505 So.2d at 1297.'
"722 So.2d at 810-11."
Waldrop, 859 So.2d at 1160.
Moreover, as we stated in Minnis:
"Rule 16.5, Ala.R.Crim.P., provides in pertinent part:
"`[I]f at any time during the course of proceedings it is brought to the attention of the court that a party has failed to comply with this rule . . ., the court . . . may grant a continuance if requested by the aggrieved party; may prohibit the party from introducing evidence not disclosed; or may enter such other order as the court deems just under the circumstances.'
*1080 "The appellant did not seek a continuance or request a recess. As we noted in McLemore v. State, 562 So.2d 639, 645 (Ala.Cr.App.1989):
"`[U]nder the circumstances presented here, . . . it appears "that either a recess or continuance would have been sufficient to protect [the appellant's] interests and permit him to review and evaluate this particular evidence in the same manner as had he received this information prior to trial. Having failed to make any showing to the contrary and having failed to request either a continuance or recess, [the appellant] cannot claim error on the part of the trial court in denying his request to exclude the evidence. United States v. Bartle, [835 F.2d 646 (6th Cir.1987)]; United States v. Kubiak, [704 F.2d 1545 (11th Cir.), cert. denied 464 U.S. 852, 104 S.Ct. 163, 78 L.Ed.2d 149 (1983)]."'
"For the reasons stated above, we conclude that the trial court did not err in denying the appellant's motion to exclude the evidence.
"Furthermore,
"`"Pursuant to United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), undisclosed evidence is material under the Brady rule . . . only when it is reasonably probable that the outcome of the trial would have been different had the evidence been disclosed to the defense.' Hamilton v. State, 520 So.2d 155 (Ala.Cr.App.1986); Spellman v. State, 500 So.2d 110 (Ala.Cr.App.1986). In the case sub judice, the prosecutor's failure to disclose Leonard's statement to Sergeant White does not constitute a Brady violation. The defendant has failed to satisfy the two-pronged test of Bagley. It is not reasonably probable that the prosecutor's not disclosing Leonard's statement in the present case would have affected the outcome of the trial. Because the defense counsel already had access to the information contained in the statement made by Leonard to Sergeant White, through the testimony of Leonard in the two prior hearings, we find that the result of the trial would not have varied had this information been given to the appellant prior to trial. Furthermore, it is clear that any error in the prosecutor's failure to disclose this statement merely constituted harmless error. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972). "The appellant's guilt was established beyond a reasonable doubt, and access to the [statement] would have been inconsequential to his defense even if the [statement] was subject to discovery. United States v. Hogan, 769 F.2d 1293 (8th Cir.1985); United States v. Keithan, 751 F.2d 9 (1st Cir.1984); United States v. Rodriguez, 765 F.2d 1546 (11th Cir.1985)." Hamilton v. State, 496 So.2d 100 (Ala.Cr.App.1986).'
"Kinder v. State, 515 So.2d 55, 64 (Ala. Cr.App.1986)."
690 So.2d at 526-27.
For the reasons stated in Waldrop and Minnis we find no reversible error. Here, as we stated in Waldrop, the statement that defense alleges was suppressed was Adams's own statement. There were no reasons set forth as to why he was not aware of the statement. Nor did defense seek a continuance. We find no Brady violation.
Even if we were to find a Brady violation, as we stated in Minnis, any error would have been harmless based on the fact that Adams's guilt was established beyond a reasonable doubt. Also, defense *1081 counsel thoroughly cross-examined this witness on the circumstances surrounding the statement.
XIII.
Adams argues that the trial court erred in restricting his cross-examination of one of the police officers who had prior misdemeanor convictions for encouraging the delinquency of a minor and for indecent exposure. He asserts that according to Rule 609, Ala.R.Evid., those convictions were admissible for impeachment purposes and he was severely prejudiced by his inability to impeach this witness's credibility with evidence of these prior convictions.
Rule 609, Ala.R.Evid., states, in part:
"(a) General Rule. For the purpose of attacking the credibility of a witness,
"(1)(A) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and
"(1)(B) evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
"(2) evidenc'e that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment."
The record reflects that the following occurred during the police officer's testimony:
"[Defense counsel]: We have another disagreement. I show you what we propose to ask their witns about. I have a certified copy of the witness's conviction in the Circuit Court of Elmore County for two offenses, encouraging the delinquency of a child and indecent exposure. We submit that these convictions would be of such a sort that they should be admitted for purposes of impeaching a witness.
"[Prosecutor]: [Rule] 609 is very clear. That's to a felony or misdemeanor involving a crime of dishonesty. Neither one of them fit.
"The Court: Let me see [Rule] 609.
"[Prosecutor]: I need to say I would object to this exhibit for the reason I just stated.
"The Court: What are you saying [Rule] 609 says?
"[Defense counsel]: Obviously, I would have been in much better shape had the rules of evidence not been promulgated however, we have this man we have a witness whose been convicted of encouraging the delinquency of a child, indecent exposure. It falls into this type category. I think he's dishonest.
"The Court: You've got to convince me of dishonesty or false statement.
"[Defense counsel]: I think it does.
"[Prosecutor]: No matter what, I object to the case action summary coming in.
"The Court: Y'all all agree this is a misdemeanor?
"[Prosecutor]: Correct.
"The Court: I can't say this involves dishonesty or false statements. So I'm not going to let you do it."
(R. 565-66.)
Adams, citing our holding in Huffman v. State, 706 So.2d 808 (Ala.Crim.App.1997) argues that because we have adopted a broad interpretation of dishonesty and false statements, the crimes of contributing to the delinquency of a minor and indecent exposure must be included within that definition. Adams also cites other cases in other jurisdictions that, he argues, *1082 hold that the crime of indecent exposure is a crime of moral turpitude.
Adams's reliance on these cases is misplaced. Rule 609, Ala.R.Evid., which was adopted in 1996, changed the existing law regarding what prior convictions could be used to impeach a witness. Before the adoption of this rule, convictions that involved crimes of moral turpitude were admissible for impeachment purposes.[3] However, Rule 609, Ala.R.Evid., significantly narrowed the definition of crimes that were admissible to impeach a witness.
In Huffman, this Court first had occasion to determine whether the offense of theft was a crime involving dishonesty or false statements so that it was admissible for impeachment purposes under Rule 609, Ala.R.Evid. That Court quoting from the Advisory Committee's Notes to Rule 609(a) stated:
"`Section (a). General rule. The preexisting Alabama statutory provision authorizing impeachment by evidence showing conviction for a crime involving moral turpitude, Ala.Code 1975, § 12-21-162(b), has been superseded by Rule 609.
"`Under Rule 609, there will be alternative tests: one based upon the seriousness of the crime, met only if the crime was punishable by death or imprisonment in excess of one year, and the other based upon whether the crime involved dishonesty or false statement. This rule is based upon Federal Rule of Evidence 609(a) as amended January 26, 1990, effective December 1, 1990. The special balancing test embodied in Rule 609(a)(1)(B) is to be applied only to the criminal defendant who testifies in the criminal case in which he or she is being prosecuted.
"`Crimes involving "dishonesty or false statement," as indicated in the report of the Senate Committee on the Judiciary during the process of adopting the corresponding Federal Rule 609, include crimes "such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully." Senate Comm. on Judiciary, Fed. Rules of Evidence, S.Rep. No. 1277, 93d Cong., 2d Sess., 14 (1974).
"`This rule makes no distinction with regard to the court in which the conviction arises or with regard to the law that establishes the crime. Consequently, contrary to preexisting Alabama law, a conviction is usable even if it occurred in the municipal court or is for a crime that constitutes a violation of a municipal ordinance. Contra Parker v. State, 280 Ala. 685, 198 So.2d 261 (1967); Muse v. State, 29 Ala.App. 271, 196 So. 148, cert. denied, 239 Ala. 557, 196 So. 151 (1940).'"
706 So.2d at 811-12 (emphasis added). The Huffman court ultimately determined that "the crime of theft involves deceit and would directly bear on the ability of the person convicted of the offense to testify truthfully." 706 So.2d at 813. Compare Sullivan v. State, 742 So.2d 202 (Ala.Crim. App.1999) (crime of possession of marijuana *1083 in the second degree is not a crime involving dishonesty or false statements so as to be admissible for impeachment purposes under Rule 609, Ala.R.Evid.)
Alabama has never held that the crimes of indecent exposure and contributing to the delinquency of a minor are crimes that fit within the definition of Rule 609, Ala. R.Evid. Indeed, neither crime involves dishonesty or false statements and have no bearing on a person's ability to testify truthfully. Compare Alfa Mutual General Insurance Company v. Oglesby, 711 So.2d 938 (Ala.1997) ("[t]he courts of this state have not determined whether indecent exposure is a crime involving moral turpitude.") Duckett v. State, 61 Md.App. 151, 157, 485 A.2d 691, 694 (1985), aff'd, 306 Md. 503, 510 A.2d 253 (1986) ("We hold, therefore, that, for purposes of impeachment, indecent exposure is not an infamous crime, a crime of moral turpitude, a felony, nor a crime involving dishonesty or deceit.")
Moreover, even if we were to hold that these offenses were offenses that fit within the Rule 609 definition we would find no reversible error. "Evidentiary rulings involving error under Federal Rule of Evidence 609 are subject to harmless error analysis." United States v. Scisney, 885 F.2d 325, 326 (6th Cir.1989). This officer's testimony was cumulative of many other police officers's testimony; therefore, any error in failing to allow impeachment with these prior convictions would not have affected the results of the trial and was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
XIV.
Adams argues that the prosecutor improperly commented on his right not to testify during the questioning of Cpl. J.W. Solomon, a former detective with the Montgomery Police Department. The following occurred during the State's examination of this witness:
"[Prosecutor]: Does this photograph depict [Adams] as you remember him looking that morning?
"[Solomon]: Yes, sir, it does.
"[Prosecutor]: And the shirt that [Adams] is wearing in that photograph, is that the shirt that we saw earlier?
"[Solomon]: Yes, sir, it is.
"[Prosecutor]: Okay. Detective, after you collected certain or saw these certain types of evidence, were you assigned to any special portion of this case?
"[Solomon]: I was advised to go back and assist another detective that was working this case.
"[Prosecutor]: Okay. In what aspect?
"[Solomon]: To complete interviews and interview the suspect with that detective.
"[Prosecutor]: For any specific charge
"[Prosecutor]: Approach.
"(The following was held at the bench sotto voce:)
"[Defense counsel]: Your Honor, this is the subject of the motion in limine which was addressed.
"Didn't you say interview with suspect?
"[Prosecutor]: He said, interview witnesses.
"[Defense counsel]: Did he say suspect?
"[Prosecutor]: I thought he did.
"[Defense counsel]: He went back to interview the suspect.
"This was a subject of a motion in limine that was agreed to by the State.
*1084 "[Prosecutor]: Where I was going was with the robbery, I can straighten that out. He interviewed he interviewed suspects associated with the robbery the ATM.
"[Prosecutor]: We'll straighten it up.
". . . .
"[Prosecutor]: We're not going to get into any of that evidence.
"[Defense counsel]: The problem is, you talked about him interviewing the suspect. Now the jury is going to go on what he said We'll move for a mistrial now.
"[Prosecutor]: I don't' think it will rise to a mistrial.
"[Defense counsel]: We've got a situation where the State concedes the statement is inadmissible. I commend the State for doing that. And they agree, the motion in limine to eliminate anything about advising him of his rights should not be mentioned during the trial. And then they ask a question Well, I went back to interview the gentleman.
"[Prosecutor]: He was not to If he said it, he just blurted it even over our instructions.
"The Court: I am going to deny the motion for mistrial."
(R. 545-48.) Adams asserts on appeal that the jury could infer from the answer given by Cpl. Solomon that Adams had given a statement to police. He asserts that the comment was a direct comment on his right to remain silent.
"A comment on the defendant's failure to testify is to be `scrupulously avoided.' Arthur v. State, 575 So.2d 1165, 1186 (Ala.Cr.App.1990), cert. denied, 575 So.2d 1191 (Ala.1991)." Taylor v. State, 808 So.2d 1148, 1186 (Ala.Crim.App.2000). In Thomas v. State, 824 So.2d 1 (Ala.Crim. App.1999), we stated:
"`"Every time a prosecutor stresses a failure to present testimony, the facts and circumstances must be closely examined to see whether the defendant's right to remain silent has been violated." Windsor v. State, 593 So.2d 87, 91 (Ala. Cr.App.1991), quoting Padgett v. State, 45 Ala.App. 56, 223 So.2d 597, 602 (1969). "In a case where there has been only an indirect reference to a defendant's failure to testify, in order for the comment to constitute reversible error, there must be a close identification of the defendant as the person who did not become a witness." Windsor v. State, [593 So.2d at 91] quoting, Ex parte Williams, 461 So.2d 852 (Ala.1984). There are many Alabama cases which have been reversed because prosecutors have pointed out that the only remaining witness to the crime was the defendant thus indirectly commenting on the defendant's right to remain silent. In Ex parte Purser, 607 So.2d 301 (Ala. 1992), the defendant's conviction was reversed based on the following comment by the prosecutor in opening statements: "[The victim is] the only one out there . . . when it all happens, and she can tell you what happened. Well, excuse me. She's not the only one, other than [the deceased victim], who is no longer with us, and Allen Purser, who is on trial for [murder and attempted murder.]" Likewise, in Whitt v. State, 370 So.2d 736, 737 (Ala.1979), the Court found the following to be an impermissible comment on the defendant's failure to testify: "The only person alive today that knows what happened out there that night is sitting right there."'"
824 So.2d at 24.
Clearly, the remarks were in no way a comment on Adams's failure to make a statement. There was no reversible error here.
*1085 XV.
Adams argues that the trial court erred in allowing certain items of evidence to be introduced that were seized he alleges, after an illegal interrogation. He cites the case of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), in support of his contention that the stocking mask and the blood samples taken from him were due to be suppressed because they were fruits of the poisonous tree.
Adams filed a motion in limine regarding the stocking mask. He argued, "The discovery of the mask was a product of the earlier violation of Defendant Adams['] rights." Adams did not mention the blood samples that were taken after he was arrested in this motion.
The record reflects that Adams was questioned on August 20, 1997, and that the stocking mask was discovered on August 24, 1997. Adams told police that he threw the stocking mask as he was running from the scene of the murder. Police searched the area for four days and found the stocking mask near where Adams had been taken into custody. When the motion in limine was addressed, the prosecutor told the court that the stocking mask would have inevitably been discovered because police were making a thorough search of the area where Adams was arrested. Other items of evidence had also been recovered at the same general area blood-smeared money and a blood-smeared knife.
We likewise agree that the stocking mask would have been inevitably discovered through the police department's investigation. As we stated in Musgrove v. State, 519 So.2d 565, 574 (Ala.Crim.App.), aff'd, 519 So.2d 586 (Ala.1986):
"In Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the United States Supreme Court recognized an `inevitable discovery' exception to the exclusionary rule, holding that `if the Government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings.' 467 U.S. at 447, 104 S.Ct. at 2511, 81 L.Ed.2d at 389. See generally, 3 W. LaFave, Search and Seizure § 11.4 at 620-28 (1978); Appel, `The Inevitable Discovery Exception to the Exclusionary Rule,' 21 Crim.L.Bull. 101 (1985)."
Certainly, an area where a murder suspect was arrested would be thoroughly searched for any evidence that the individual might have discarded prior to his arrest. When the mask was discovered an investigation was firmly under way into Mills's death. The inevitable discovery rule has most frequently been applied when the illegal conduct occurred while an investigation was already in progress. See Jones v. State, 615 So.2d 1293 (Ala.Crim. App.1993).
Moreover, the stocking mask was discovered in a bush in a neighbor's yard in the area where the murder occurred. Certainly, the owner of the house would have discovered the mask and presented it to police. "[T]he doctrine should be applicable where the inevitable discovery would have come through the efforts of a private party who then would have presented the evidence to the police." Wayne R. LaFave et al., Criminal Procedure § 9.3(e) at 353 (2d ed.1999). See United States v. Hernandez-Cano, 808 F.2d 779 (11th Cir.1987) (applied inevitable discovery rule to discovery made by private party).
Adams also attacks the admission of the blood samples taken from him because, *1086 he argues in his brief to this Court, they were the fruits of the poisonous tree. The blood was not drawn from Adams as a result of any consent that he gave at the time that he made his statement to police. The blood samples were taken after the police obtained a court order to collect the blood samples from the appellant. There is absolutely no indication that the blood samples were the fruits of the poisonous tree.
XVI.
Adams argues that the trial court erred in allowing the deoxyribonucleic acid ("DNA") evidence to be received into evidence. Adams makes several different arguments concerning the admission of the DNA evidence.
Initially, we note that there was no objection to the introduction of the DNA evidence before trial. The record reflects that in November 1997 the State filed a notice of its intent to use DNA evidence at trial. Also in November 1997 defense counsel filed a detailed nine-page motion for production of DNA evidence, i.e., all the information pertinent to the laboratory's testing of the samples in this case. The only mention of DNA in the transcript is at a pretrial motion hearing in December 1997, where the prosecutor mentioned that the laboratory had been given the motion for production and the results would be ready for defense counsel within several weeks. There is no other mention of the DNA evidence before the DNA expert was called to testify at trial. Because the DNA evidence was not contested, there was no pretrial hearing in regard to its admissibility. Also, only one objection was made during the testimony of the DNA expert. We are confined to a plain-error analysis on the majority of the issues raised in regard to the DNA evidence. Rule 45A, Ala.R.App.P.
The Alabama Supreme Court in Turner v. State, 746 So.2d 355 (Ala.1998), set out the guidelines for the admission of DNA test results. The Court stated:
"[I]f the admissibility of DNA evidence is contested, the trial court must hold a hearing, outside the presence of the jury, and, pursuant to § 36-18-30 [, Ala. Code 1975], determine whether the proponent of the evidence sufficiently establishes affirmative answers to these two questions:
"I. Are the theory and the technique (i.e., the principle and the methodology) on which the proffered DNA forensic evidence is based `reliable'?
"II. Are the theory and the technique (i.e., the principle and the methodology) on which the proffered DNA evidence is based `relevant' to understanding the evidence or to determining a fact in issue?
"Trial courts should use the flexible Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),] analysis in making the `reliability' (scientific validity) assessment. In making that assessment, the courts should employ the following factors: (1) testing; (2) peer review; (3) rate of error; and (4) general acceptance.
"Trial courts should make the `relevance' assessment by addressing the `fit' between what the scientific theory and technique are supposed to show and what must be shown to resolve the factual dispute at trial. Whether otherwise reliable testing procedures were performed without error in a particular case goes to the weight of the evidence, not its admissibility. Only if a party challenges the performance of a reliable and relevant technique and shows that the performance was so particularly and critically deficient that it undermined *1087 the reliability of the technique, will evidence that is otherwise reliable and relevant be deemed inadmissible.
"Of course, once a particular theory or technique has satisfied § 36-18-30, a court may take judicial notice of that theory or technique's reliability. See [Ex parte] Perry, 586 So.2d [242] at 251 [(Ala.1991)]; [United States v.] Beasley, 102 F.3d [1440] at 1448 [(8th Cir.1996)] (holding that reliability of the polymerase chain reaction (`PCR') method of DNA typing would be subject to judicial notice in future cases); [United States v.] Martinez, 3 F.3d [1191] at 1197 [(8th Cir.1993)] (holding that the reliability of the restriction fragment length polymorphism (`RFLP') procedure was subject to judicial notice). We recognize that the state of scientific theories and the techniques for producing DNA evidence is not static, and that the scientific community undoubtedly will produce new theories and techniques regarding DNA. Each new theory and technique will be subject to the test set out above until its reliability warrants judicial notice."
746 So.2d at 361-62 (footnotes omitted).
Adams first argues that the trial court erred in not holding a pretrial hearing on the admissibility of the DNA test results. As we stated in Simmons v. State, 797 So.2d 1134, 1145 (Ala.Crim.App. 1999):
"In the present case, because the admission of the DNA evidence was not contested or challenged before or during trial, the trial court did not hold a hearing outside the presence of the jury. In Payne v. State, 683 So.2d 440, 455 (Ala. Cr.App.1995), aff'd, 683 So.2d 458 (Ala. 1996), cert. denied, 520 U.S. 1146, 117 S.Ct. 1319, 137 L.Ed.2d 481 (1997), we held that a trial court did not commit reversible error by not holding a hearing outside the presence of the jury to determine the admissibility of the DNA evidence. In Payne, we concluded that if a defendant wanted to allege that the trial court erred in not conducting a hearing outside the jury's presence to determine the admissibility of the DNA evidence, it was incumbent upon the defendant to have first requested that such a hearing be conducted. Accordingly, because Simmons did not request a hearing, no reversible error occurred in this regard in the trial court's admission of the DNA evidence."[4]
We likewise hold that the trial court did not err in failing to hold a pretrial hearing on the admissibility of the DNA evidence when no objection had been made to the DNA evidence at that time.
Adams next argues that the DNA tests were riddled with errors and therefore that the results should not have been allowed into evidence. The record reflects that Katherine McGeehan, a forensic biologist with the Alabama Department of Forensic Sciences, conducted the DNA tests on the blood samples collected in this case. She testified that she had been with the department for 10 years and that she had been qualified as an expert on DNA testing in eight prior cases. McGeehan further testified that the procedures she used on the samples in this case were "PCR-based",[5]*1088 i.e., that she followed the procedures as set out in the TWGDAM[6] guidelines. She testified that the procedures have many built-in controls. She said,
"With the DNA procedures, there are lots and lots of controls. We have controls that check the chemicals that we use in our procedure. We have controls that test the test kit to make sure that the kits are working properly. We, also, have controls that check the equipment that is used. If any of these controls do not work then the samples are repeated. We also have some administrative controls in our procedure."
(R. 656.) She further testified that there were a few errors in the controls for the samples in this case and she had to repeat the procedures.[7] She testified,
"[McGeehan]: When I was working with the question samples in this case, there was one place on a post-stamp gel which what this gel does is just test to make sure that the copying of the DNA worked properly. I left out a stamp. That sample was developed with the other sample with no problems in duplicate. There was, also, a step where I added didn't add quite enough water to the step where I make my copies. But the samples were checked with the post-stamp gel, everything amplified. So the second step after that, everything worked. And the samples were developed in duplicate. And then the third big thing that happened with me was on the development of my question samples with my CTT gel which we should be talking about, there was a problem with one of my controls. Also I repeated the gel, and the gel worked in all but one sample because the gel stuck to the plate. The CTT gels are like a jello that we put in between two glass plates. And it's very, very thin. It's like .4 millimeters thick, the gel is. So when I took those two glass plates apart, part of that gel stuck to one of the plates that it wasn't supposed to stick to. So those samples I couldn't read. So those samples, I repeated one more time. And I got results in duplicate.
"[Prosecutor]: These things that you just discussed, would they affect the reliability in any of the tests that you would run?
"[McGeehan]: No, it did not.
"[Prosecutor]: Were the controls run at the same time with the test that were run in this case?
"[McGeehan]: Yes. The controls follow all the way through from start to finish."
(R. 656-58.) McGeehan further testified that the procedures she followed were generally accepted in the scientific community and were approved by the Federal Bureau of Investigation ("FBI").
Adams argues that the errors that McGeehan identified rendered the DNA evidence inadmissible. This issue was specifically addressed by the Alabama Supreme *1089 Court in Turner, supra. The Turner court stated:
"In this case, the Court of Criminal Appeals held that the Legislature's enactment of § 36-18-30[, Ala.Code 1975,] did not affect the three-pronged [Ex parte] Perry[, 586 So.2d 242 (Ala.1991),] test. 746 So.2d 352, 353 (1996). Specifically, the Court of criminal Appeals held that the third prong of the Perry test, which requires the expert to establish that the generally accepted scientific techniques were performed in the particular case without error, survived the enactment of § 36-18-30. 746 So.2d at 353. We disagree.
". . . .
. . . . Moreover, in United States v. Beasley, 102 F.3d 1440, 1446-47 (8th Cir.1996), cert. denied, 520 U.S. 1246, 117 S.Ct. 1856, 137 L.Ed.2d 1058 (1997), the Eighth Circuit held that under Daubert [v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993),] the defendant's argument concerning the laboratory's testing of the DNA in his particular case went to the weight of the evidence, not its admissibility."
746 So.2d at 360-61. This holding is in accord with the majority of other states that have likewise held that errors in the performance of the DNA testing procedure go to the weight and not the admissibility of the DNA evidence. See State v. Proctor, 348 S.C. 322, 559 S.E.2d 318 (Ct.App. 2001); State v. Tankersley, 191 Ariz. 359, 956 P.2d 486 (1998); Keen v. Commonwealth, 24 Va.App. 795, 485 S.E.2d 659 (1997); State v. Bauer, 512 N.W.2d 112, 115 (Minn.Ct.App.1994), aff'd, 516 N.W.2d 174 (Minn.1994); State v. Kalakosky, 121 Wash.2d 525, 852 P.2d 1064, 1072 (1993); Martinez v. State, 549 So.2d 694 (Fla.Dist. Ct.App.1989). As the Oklahoma Court of Criminal Appeals said, there is no requirement that the testing procedures be "flawlessly performed." Taylor v. State, 889 P.2d 319, 330 n. 46 (Okl.Crim.App.1995).
Adams argues for the first time on appeal that McGeehan was not qualified to testify as an expert.
McGeehan testified that she had worked for the Alabama Department of Forensic Sciences for approximately 10 years and that for the last several years she has worked exclusively on DNA analysis. She testified that she has a bachelor of science degree in microbiology from Auburn University and that she had taken courses in chemistry, biochemistry, genetics, and microbiology. She attended numerous workshops and training seminars in forensic science specifically related to DNA, attended DNA courses, and had gone through extensive training with her department before she was allowed to work with DNA samples. McGeehan said that she is a member of Southern Association of Forensic Scientists, the Alabama State Association of Forensic Sciences, and the Montgomery County Sexual Assault Response Team. McGeehan further testified that she had given lectures on DNA and had trained others in DNA testing procedures. Lastly, she testified that she had been qualified as an expert on eight prior cases.
Certainly, the evidence showed that McGeehan was qualified to testify as an expert in the field of DNA analysis. "Whether a witness is sufficiently qualified to testify as an expert is a question for the trial court to resolve in its discretion, and its ruling will not be disturbed on appeal unless it has abused that discretion." Smith v. State, 698 So.2d 189, 205 (Ala. Crim.App.1996), aff'd, 698 So.2d 219 (Ala. 1997). Moreover, "[i]t is for the jury to determine the weight and credibility of an expert witness's testimony." Kilcrease v. John Deere Indus. Equip. Co., 663 So.2d 900, 902 (Ala.1995).
*1090 Last, Adams argues that because the testing procedures utilized in this case were not the testing procedures used by the FBI, the introduction of the DNA evidence violated § 36-18-23, Ala.Code 1975. This section states, "The director shall ensure that forensic DNA testing conducted pursuant to the provisions of this article shall be conducted in a manner that is compatible with procedures specified by the FBI."
Adams argues in his brief to this Court, "There was no indication that those guidelines [used in this case] paralleled the FBI guidelines, that they were of comparable reliability, or that they required the same procedures and protocols." (Adams's brief at page 75.) Adams argument is premised on the conclusion that § 36-18-23 requires that the procedures followed are the exact same as the FBI guidelines. This is not what the statute provides. The following occurred at trial:
"[Defense counsel]: Your Honor, we object to this. The witness has testified that these procedures were done in accordance with the TWGDAM guidelines. However, the Alabama Code requires an establishment that they were done in accordance with the FBI guidelines.
"[Prosecutor]: Do you need to follow upon on TWGDAM and FBI guidelines?
"[McGeehan]: The TWGDAM is controlled by the Federal Bureau of Investigation. The Federal Bureau of Investigation is the one that monitored TWGDAM; is the one that invited various scientists throughout the community to come there and was in charge of the TWGDAM guidelines.
"[Prosecutor]: Is there any difference in the guidelines that would effect the reliability, the test results reliability?
"[McGeehan]: No. The TWGDAM guidelines are the accepted guidelines in the forensic community.
"[Prosecutor]: And to help her out, would you do TWGDAM for us?
"[McGeehan]: T-W-G-D-A-M.
"[Prosecutor]: Thank you.
"[Defense counsel]: Submit, that's still not sufficient predicate for FBI guidelines being followed.
"[Prosecutor]: Your Honor, we're following the guidelines
"The Court: Let me ask you this: Are the TWGDAM and the FBI the same?
"[McGeehan]: It is not the same. But the FBI was in control of TWGDAM. So they have other scientists that they ask from the forensic community that weren't just FBI scientists. We have scientists from our state, technical working groups. But the FBI scientist were the ones in charge of it, the chairman of the organization and [sic] hosted the meetings and conferences where these guidelines were published. The FBI published these guidelines.
"[Prosecutor]: The guidelines, are they generally accepted in the scientific community as being reliable? Is this the proper procedure in which to do this? Is it generally accepted in the scientific community as being reliable?
"[McGeehan]: Yes. These are the accepted guidelines in the forensic community."
(R. 663-65.) Clearly, the testimony was sufficient to comply with the requirements of § 36-18-23. Compare Smith v. State, 677 So.2d 1240 (Ala.Crim.App.1995) (TWGDAM procedures used in DNA analysis found to satisfy the more stringent Ex parte Perry, 586 So.2d 242 (Ala.1991), test.)
*1091 XVII.
Adams argues that the trial court erred when it prevented him from introducing a copy of Andrew Mills's statement to police. He argues in brief, "The state repeatedly objected to playing the tape for the jury, . . . and the trial court prevented Mr. Adams from ever playing the tape." (Adams's brief at page 102.)
Adams's contention is not supported by the record. The record reflects:
"The Court: As to Mr. Mills['s] statement, how long does it last?
"[Defense counsel]: Let me look at the transcription.
"(Pause in the proceedings.)
"[Defense counsel]: Ten minutes.
"The Court: All right. How do you propose to play it?
"[Defense counsel]: It has you have Solomon Well, he's gone.
"I guess Solomon is the one who made it He's already identified it and everything. I've got a tape recorder here. Just play it. Solomon play it.
"The Court: I'm going to let him do that.
"[Prosecutor]: Note our objection."
(R. 579-80.) Not only did the trial court not make an adverse ruling but the court allowed the tape to be introduced over the State's objection. There is no adverse ruling for this Court to review. "The general rule is that, in order for this Court to review an issue on appeal, the appellant must have received an adverse ruling by the trial court. . . . However, because [the appellant] was sentenced to death, we will review the claim for plain error." Griffin v. State, 790 So.2d 267, 313 (Ala.Crim.App. 1999).
There is no further discussion of the tape anywhere in the record. We cannot predicate error based on a silent record. Smelcher v. State, 520 So.2d 229 (Ala.Crim.App.1987). "Where the record on appeal is silent, it will be presumed that what ought to have been done was not only done, but was rightly done." Jolly v. State, 405 So.2d 76, 77 (Ala.Crim.App. 1981). We cannot find, based on the record before us that any error occurred here.
XVIII.
Adams argues that the trial court erred in failing to give any instructions on any lesser-included offenses. He cites Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), in support of this contention.
The United States Supreme Court in Beck v. Alabama, held that Alabama's former death-penalty statute, § 13-11-2, Ala.Code 1975, was unconstitutional because it did not allow a jury to consider any lesser-included offenses. However, one year after the Court's release of Beck that Court released its decision in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). The Hopper Court held that when the record fails to establish any support for instructions on any lesser-included offenses there is no reversible error. Adams was not charged under the former death-penalty statute but was charged under § 13A-5-40, Ala.Code 1975.
"A trial judge may refuse to charge on a lesser included offense when it is clear to the judicial mind that there is no evidence to support the jury's being charged on the lesser included offense. Greer v. State, 475 So.2d 885, 890 (Ala. Cr.App.1985); Wesley v. State, 424 So.2d 648 (Ala.Cr.App.1982).
"`[W]here the accused denies committing any offense, if any reasonable interpretation of the evidence will justify a verdict finding the accused *1092 guilty of a lesser included offense, the jury must be so instructed. Ex parte Stork, 475 So.2d 623 (Ala.1985). A judge may properly refuse to charge on lesser included offenses only where the only reasonable conclusion from the evidence is that the accused is guilty of the offense charged or no crime at all or where the requested charge would have a tendency to mislead or confuse the jury.'
"McKeithen v. State, 480 So.2d 36, 37 (Ala.Cr.App.1985). See also Williams v. State, 377 So.2d 634 (Ala.Cr.App.), cert. denied, 377 So.2d 639 (Ala.1979); Lami v. State, 43 Ala.App. 108, 180 So.2d 279 (1965).
"`If, however, the defendant denies the charge but the evidence presented by the State suggests a reasonable theory supporting a charge on a lesser offense, the trial court is obliged to give a charge on the lesser offense when requested.' Ex parte Pruitt, 457 So.2d 456, 457 (Ala.1984). It is clear that neither Gurganus's defense of alibi, nor the evidence presented by the prosecution, presented a reasonable theory supporting a charge on a lesser included offense. See Daniels v. State, [534 So.2d 628] (Ala.Cr.App. 1985). `Clearly, if the jury believes [the appellant], he must have been found not guilty; if they believed the prosecution's evidence, he must have been found guilty of the crime charged. See Cook v. State, 431 So.2d 1322, 1324-25 (Ala.1983).' Daniels v. State, supra, [at 642]."
Gurganus v. State, 520 So.2d 170, 174-75 (Ala.Crim.App.1987).
Adams objected only to the trial court's failure to give an instruction on the lesser offense of felony murder. A discussion was held concerning that instruction, and Adams stated:
"I think we both agree the felony murder covers any type of aggravating circumstance when the killing is anything but an intentional killing, when there's any evidence, whatsoever, regardless of how weak it is to support an inference that it was not an intentional charge a matter of due process, it must be given.
"Here, we have, as I recall the evidence, there were multiple stab wounds. However, the deceased was not dead at the time. The inference could be drawn that if the assailant had intended to kill her, certainly, that would have been done. And she would have not been alive according to the witnesses. The assailant was still in the house, standing in another room, going off. So I think I acknowledge that will be weak. However, I think there is some evidence from which an inference could be drawn that there wasn't intent to kill."
(R. 703-04.) On appeal Adams argues that the jury could have easily found that Adams did not have the intent to kill because "the jury did not hear a confession, there was no eyewitness identification, and there was no testimony or evidence of planning or plotting to commit the capital offense of intentional murder in the course of a felony." (Adams's brief at page 1.)
There was no rational basis for giving a jury instruction on the lesser-included offense of felony murder. Felony murder is confined to those felons who commit an unintended death during the course of committing any of the enumerated felonies. Dunaway v. State, 746 So.2d 1021 (Ala.Crim.App.1998), aff'd, 746 So.2d 1042 (Ala.1999). Here, there was absolutely no rational basis for concluding that the homicide was unintended. Melissa Mills was stabbed six times after Adams broke into her house and raped and robbed her. Melissa was stabbed in the *1093 chest twice and in the back three times. The wounds to her chest punctured her liver and lungs. Clearly, there was no rational basis for concluding that the murder was anything but intended.
Moreover, we agree with the trial court that there was no reasonable theory for the trial court to give any instructions on lesser-included offenses. There was absolutely no evidence to support any instructions on any lesser offenses. There was no evidence indicating that Adams was intoxicated or that the murder did not occur during the course of any of the enumerated felonies under which Adams was indicted. Here, either Adams was not guilty or he was guilty of capital murder. The trial court committed no plain error in failing to instruct the jury on any lesser-included offenses.
XIX.
Adams argues that the prosecutor's misconduct denied him a fair trial and a reliable sentencing determination.
We note that only one objection was made to any of the challenged comments made by the prosecutor in argument to the jury. Therefore, we review the majority of these contentions for plain error. Rule 45A, Ala.R.App.P. As we stated in Acklin v. State, 790 So.2d 975, 1002 (Ala.Crim.App.2000), cert. denied, 790 So.2d 1012 (Ala.2001):
"In reviewing these claims of alleged improper prosecutorial argument, we must evaluate the comments and their impact in the context of the entire argument, and not view the allegations of improper argument in the abstract. Duren v. State, 590 So.2d 360 (Ala.Cr. App.1990), aff'd, 590 So.2d 369 (Ala. 1991). Also,
"`"This court has concluded that the failure to object to improper prosecutorial arguments . . . should be weighed as part of our evaluation of the claim on the merits because of its suggestion that the defense did not consider the comments in question to be particularly harmful."'
"Kuenzel v. State, 577 So.2d 474, 489 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991), quoting Johnson v. Wainwright, 778 F.2d 623, 629 n. 6 (11th. Cir.1985), cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987). We also point out that the control of a closing argument is in the broad discretion of the trial court. Thomas v. State, 601 So.2d 191 (Ala.Cr. App.1992). That court is in the best position to determine if counsel's argument is legitimate or if it degenerates into impropriety. Thomas, supra. `In judging a prosecutor's closing argument, the standard is whether the argument "so infected the trial with unfairness as to make the resulting conviction a denial of due process."' Bankhead v. State, 585 So.2d 97, 107 (Ala.Crim.App.1989), quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)."
Adams argues that the prosecutor vouched for the strength of the State's case when he said in opening statement and in his closing arguments that there was no reasonable doubt or there was no doubt that Adams had committed the murder. He also asserts that he argued facts not in evidence when he made remarks that Mills was sleeping on the sofa in deference to his pregnant wife. Last, he argues that the prosecutor made an incorrect statement of law when he said that the jury could find intent from the character and manner of the assault.
*1094 We have reviewed all of the challenged comments. The record shows that the comments were either legitimate impressions from the evidence, were based on facts in evidence, or were correct statements of the law. A prosecutor may argue all legitimates inferences that may be drawn from the evidence. Taylor v. State, 666 So.2d 36, 64 (Ala.Crim.App.1994), aff'd, 666 So.2d 73 (Ala.1995).
Moreover, the standard of review for challenged comments the standard is not whether the defendant was prejudiced, but whether the comment "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 169, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Clearly the challenged comments in this case fell well below that threshold.
XX.
Adams also argues that the trial court's jury instructions were deficient for several different reasons.
"When reviewing a trial court's jury instructions, we must view them as a whole, not in bits and pieces, and as a reasonable juror would have interpreted them. Ingram v. State, 779 So.2d 1225 (Ala.Cr.App.1999). `The absence of an objection in a case involving the death penalty does not preclude review of the issue; however, the defendant's failure to object does weigh against his claim of prejudice.' Ex parte Boyd, 715 So.2d 852 (Ala.), cert. denied, 525 U.S. 968, 119 S.Ct. 416, 142 L.Ed.2d 338 (1998)."
Johnson v. State, 820 So.2d 842, 874 (Ala. Crim.App.2000), aff'd, 820 So.2d 883 (Ala. 2001).
A.
Adams first argues that the trial court's instructions on circumstantial evidence were confusing and incomprehensible. Adams complains about the following instruction:
"The State relies upon circumstantial evidence to prove a material element of the offense charged if there is any rational hypothesis inconsistent with the hypothesis advanced by the State of Alabama to the assertion of guilt that circumstantial evidence is sufficient upon which to base a conviction of guilty."
(R. 771-72.)
This instruction was given after defense counsel requested this instruction requested jury instruction number 11. Defense counsel argued at the charge conference that this instruction should be given because it was "a correct statement of law on circumstantial evidence." (R. 725.) If error occurred because of the giving of this jury instruction, it was invited by Adams.
As we stated in Williams v. State, 710 So.2d 1276, 1316 (Ala.Crim.App. 1996), aff'd, 710 So.2d 1350 (Ala.1997):
"The appellant seeks a reversal because of an alleged error that he invited: the trial court's instruction that he now claims constituted error was specifically requested by him in writing. . . . `A party cannot assume inconsistent positions at trial and on appeal, and a party cannot allege as error proceedings in the trial court that were invited by him or were a natural consequence of his own actions.' Fountain v. State, 586 So.2d 277, 282 (Ala.Cr.App.1991). `The invited error rule has been applied equally in both capital cases and noncapital cases.' Rogers v. State, 630 So.2d 78 (Ala.Cr. App.1991), rev'd on other grounds, 630 So.2d 88 (Ala.1992). `An invited error is waived, unless it rises to the level of plain error.' Ex parte Bankhead, 585 So.2d 112, 126 (Ala.1991). If any error did indeed occur in the instant case, it *1095 did not rise to the level of plain error. However, we do not believe that error occurred here."
Likewise here there was no plain error. Adams cites an isolated portion of a very detailed instruction on circumstantial evidence. We have thoroughly reviewed the instructions and find no plain error.
B.
Adams asserts that the trial court's instruction on reasonable doubt violated Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), because, he says, it lowered the State's burden of proof. Specifically, he argues that the trial court's use of the phrases "a doubt that remains after going over in your minds" and that doubt "must be a doubt more concrete than a possible doubt," violated the United States Supreme Court's holding in Cage.
Adams did not object to the trial court's jury instruction on reasonable doubt; thus, we limit our review to a plain-error analysis. Rule 45A, Ala.R.App.P.
In Cage, the United States Supreme Court held that a jury instruction on reasonable doubt that defined that term by using together the three phrases "grave uncertainty," "actual substantial doubt" and "moral certainty," could have led a jury to believe that a lesser standard of proof was needed to convict than is required by the constitution. 498 U.S. at 41, 111 S.Ct. 328.
The trial court gave the following instruction on reasonable doubt:
"Now I mention reasonable doubt. What does that mean? It is simply a fair doubt based upon reason and common sense and arising from the evidence. In short, it is a doubt for which there can for which you can assign a reason that comes from the evidence. A reasonable doubt may arise not only from the evidence produced but also from a lack of evidence or any part of evidence. The burden is on the State to prove the defendant guilty beyond a reasonable doubt of each and every essential element of the crime as charged.
"As I have already told you, the burden is upon the State to prove the Defendant guilty as charged. Before a conviction can be had in this case, the State must have satisfied each and every member of the jury of the Defendant's guilt beyond a reasonable doubt. Even if the State demonstrates a probability of guilt, if it does not establish it beyond a reasonable doubt, you must acquit the Defendant.
"The phrase reasonable doubt is self-explanatory. Efforts to define it do not always clarify the term. It is not a mere possible doubt because everything related to human affairs is open to some possible or imaginary doubt. A reasonable doubt is a doubt of a fair-minded juror honestly seeking the truth after a careful consideration of all of the evidence in the case. It is a doubt based upon reason and common sense. It does not mean a vague or arbitrary notion. But it is an actual doubt based upon the evidence, a lack of evidence, a conflict in the evidence or a combination thereof. It is a doubt that remains after going over in your minds the entire case and giving consideration to all of the testimony. It is distinguished from a doubt arising from mere possibility, from bare imagination or from fanciful conjecture."
(R. 769-71.)
The instruction given on reasonable doubt was substantially similar to the pattern jury instruction. The giving of a pattern jury instruction weighs heavily against any finding of plain error. Price v. State, 725 So.2d 1003 (Ala.Cr.App.1997), *1096 aff'd, 725 So.2d 1063 (Ala.1998). We have upheld the giving of the same pattern jury instruction on reasonable doubt against a claim of plain error. See Smith v. State, 756 So.2d 892 (Ala.Crim.App.1997), aff'd, 756 So.2d 957 (Ala.2000).
C.
Adams next argues that the trial court erred in reading the indictment to the jury and informing it that the indictment was signed by the district attorney.
There was no objection to the trial court regarding the indictment to the jury; therefore, we evaluate this issue for plain error. Rule 45A, Ala.R.App.P.
Though the trial court did read the indictment to the jury the court also immediately gave the following instruction:
"Now I want you to understand, from the beginning, that the indictment has no bearing on the guilt or innocence of any person. It is not evidence in the case. It is merely the paperwork or legal process by which a case is presented to trial."
(R. 767.)
We addressed a similar issue in Broadnax v. State, 825 So.2d 134 (Ala.Crim.App. 2000), aff'd, 825 So.2d 233 (Ala.2001), and found no plain error. We stated in Broadnax:
"The trial court then again read the indictment to the jury, specifically setting out the different counts with which Broadnax was charged. (R. Vol. VIII at 265-68.) We conclude that the trial court made clear, through its instructions, that the indictment was not to be considered as evidence against Broadnax and that the charges contained in it should not have weighed into its deliberation of the evidence presented in court. . . . Jurors are presumed to follow the trial court's instructions. See Perkins v. State, 808 So.2d 1041 (Ala.Cr. App.1999); Holland v. State, 588 So.2d 543 (Ala.Cr.App.1991). Thus, in light of these specific instructions, we conclude that the trial court did not commit plain error in reading the indictment to the jury, in telling the jury that the document had been signed by the district attorney, or in sending the indictment to the jury room upon its request."
Broadnax, 825 So.2d at 165. We likewise find no plain error here.
D.
Adams next argues that the trial court erred in giving the jury an instruction on flight. Specifically, he argues that the jury instruction on flight was held to be inadequate in Ex parte Weaver, 678 So.2d 284 (Ala.1996).
Initially, we note that the only objection given to the flight instruction was that "I think it an improper comment on the evidence." Adams never challenged the sufficiency of the actual instruction on flight that was given to the jury. Therefore, we review this issue for plain error. Rule 45A, Ala.R.App.P.
The trial court gave the following instruction on flight:
"If you find from the evidence that [Adams] fled from the scene of the crime then you may consider that evidence as tending to show his consciousness of guilt."
(R. 789.)
In Weaver, the Alabama Supreme Court reversed Weaver's conviction not merely because an instruction on flight[8] was given, but because there was no evidence that *1097 Weaver fled the state to avoid prosecution. The Alabama Supreme Court later in Ex parte Clark, 728 So.2d 1126 (Ala.1998), when upholding the giving of a jury instruction virtually identical to the one in Weaver stated:
"The facts of Weaver are distinguishable from the facts of this case. In Ex parte Weaver, the defendant Weaver murdered the victim in December 1989 and left the state in September 1990. When Weaver left the state, he was not aware that he was under suspicion for the crime for which he was later accused. Clark, on the other hand, left the state almost immediately after the crime and traveled extensively, using the victim's automobile and credit cards. The immediacy of his departure, coupled with his attempt to take money from Posey's account before that departure, clearly, in our opinion, made flight pertinent for the jury to consider."
728 So.2d at 1137.
Here, there was evidence that the appellant ran from the scene of the crime as the police arrived at the Millses' house. The Alabama Supreme Court in Ex parte Jones, 541 So.2d 1052 (Ala.1989), quoted the well-established Alabama law on what type of evidence constitutes flight evidence. That court stated:
"`All evasions, or attempts to evade justice, by a person suspected or charged with crime, are circumstances from which a consciousness of guilt may be inferred, if connected with other criminating facts. Of themselves, they may not warrant a conviction, but they are relevant as evidence, and the weight to which they are entitled, it is the province of the jury to determine, under proper instructions from the court. [Citations omitted.] Flight, for which no proper motive can be assigned, and which remains unexplained, is a circumstance all authorities agree it is proper to submit to the jury, in connection with other evidence tending to show the guilt of the accused. In the old common law, the rule which passed into a maxim, was, that flight was equivalent to a confession of guilt: fatetur facinus qui judicium fugit. At the present day it is regarded as a mere criminative circumstance, indicative of a consciousness of guilt, and of an attempt to evade justice, which is subject to infirmative considerations that may deprive it of all force.'"
541 So.2d at 1055, quoting Bowles v. State, 58 Ala. 335, 338 (1877). Certainly, running from the scene of the crime as police approach is evidence of flight. This case is more analogous to Clark than it is to Weaver.
Moreover, the instruction in this case was not identical to the instruction given in either Clark or Weaver. Here, the jury was instructed that, "If you find. . . ." There was absolutely no implication by the court's instruction that flight evidence was affirmatively present in the case. There was no error in the trial court's instruction on flight.
XXI.
Adams argues that the trial court erred in allowing the prosecution to proceed with four capital-murder counts against him.
Adams was indicted for four counts of capital murder and one count of robbery. Count 1 charged Adams with killing Melissa Mills during the course of a rape; count 2 charged Adams with killing Melissa Mills during the course of a burglary; count 3 charged Adams with killing Melissa Mills during the course of a robbery; count 4 charged Adams with killing Melissa Mills during the course of robbing her husband Andrew Mills; and count 5 charged Adams with robbing Andrew Mills.
*1098 Adams specifically argues that the State should not have been allowed to proceed with four counts of capital murder because of the prejudice to him. Our Supreme Court has upheld this practice. As the Alabama Supreme Court stated in Ex parte McWilliams, 640 So.2d 1015 (Ala. 1993), a capital case in which the defendant was indicted and convicted of two counts of capital murder:
"In Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), the United States Supreme Court addressed the scope of the coverage of the Double Jeopardy Clause, as follows:
"`The Double Jeopardy Clause embodies three protections: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). The Blockburger [v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932),] test was developed "in the context of multiple punishments imposed in a single prosecution." Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985).'
"Grady, 495 U.S. at 516-17, 110 S.Ct. at 2090-91, 109 L.Ed.2d at 561. This Court has also held that the Double Jeopardy Clause of the Alabama Constitution, Art. I, § 9, applies only in the three areas enumerated above. Ex parte Wright, 477 So.2d 492 (Ala.1985).
"In this case, McWilliams was not prosecuted for the same offense after an acquittal; nor was he prosecuted for the same offense after a conviction. That is, he was not prosecuted twice for the same offense. Moreover, while in King [v. State, 574 So.2d 921 (Ala.Crim.App. 1990),] the defendant received four separate prison sentences for the same offense, McWilliams has only been sentenced to die once and, indeed, can only be put to death once.
"In the context of prescribing multiple punishments for the same offense, the United States Supreme Court has stated that the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.' Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).
"In the present case, it is clear that the jury knew that it was convicting McWilliams of murdering Patricia Reynolds only once. It is also clear that the jury knew that McWilliams's crime was made capital because his victim was murdered in the course of one robbery and one rape. We conclude, therefore, that the sentencing court has not prescribed a greater punishment than the legislature intended. Even if McWilliams's rights against double jeopardy had been violated by the two convictions of robbery-murder, the convictions for one count of robbery-murder and one count of rape-murder would remain; and either of these would be sufficient to support a death sentence."
640 So.2d at 1022 (footnote omitted).
However, Adams's conviction for robbery in the first degree as to Andrew Mills was included in the capital offense of robbing Andrew Mills during the course of murdering Melissa Mills. A defendant cannot be convicted of both a capital offense and a lesser offense that is included in the capital charge. See Mangione v. State, 740 So.2d 444 (Ala.Crim.App.1998); Borden v. State, 711 So.2d 498 (Ala.Crim. *1099 App.1997), aff'd, 711 So.2d 506 (Ala.1998). As this Court stated in Mangione:
"While the appellant was properly charged with the two capital offenses, see Borden, 711 So.2d at 503-04, n. 3, and both offenses were properly submitted to the jury, the prohibition against double jeopardy was violated when the appellant was convicted of the capital offense of murder during the course of a kidnapping under Count I of the indictment and also was convicted of the lesser-included offense of intentional murder under Count II of the indictment, because the `same murder was an element of the capital offense and the intentional murder conviction.' Borden, 711 So.2d at 503. See also Coral v. State, 628 So.2d 954, 958 (Ala.Cr.App.1992), aff'd, 628 So.2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994) (holding that the defendant's conviction of the lesser-included offense of intentional murder under a count alleging the capital offense of murder-robbery and his conviction of the capital offense of murder-burglary violated the principles of double jeopardy where the same murder was an element of both convictions)."
740 So.2d at 449. Accordingly, this case must be remanded for the trial court to vacate the conviction for the robbery of Andrew Mills because that offense was included in the capital offense for which he was convicted.
XXII.
Adams argues that Alabama's statutory cap on attorney fees violates the separation-of-powers doctrine, constitutes a taking without just compensation, deprives indigent capital defendants of the effective assistance of counsel, and violates the Equal Protection Clause of both the state and federal constitutions.
We have upheld § 15-12-21, Ala.Code 1975, against the same constitutional challenges. Stallworth v. State, 868 So.2d 1128 (Ala.Crim.App.2001); Duke v. State, 889 So.2d 1 (Ala.Crim.App.2002); Dorsey v. State, 881 So.2d 460 (Ala.Crim.App. 2001). As we stated in Duke:
"Alabama's statutory limitation on compensation has withstood numerous challenges on these same grounds. . . . As we noted in Samra v. State, 771 So.2d [1108] at 1112 [(Ala.Crim.App. 1999), aff'd, 771 So.2d 1122 (Ala.2000)]: `Because this court is bound by the decisions of the Alabama Supreme Court, we are not in a position to reverse that court's approval of the current compensation system.' Accordingly, no basis for reversal exists as to this claim."
889 So.2d at 13.
Moreover, § 15-12-21, Ala.Code 1975, was amended in 1999 to remove the cap for attorney fees that an attorney may receive when representing an indigent defendant in a capital case.
XXIII.
Adams next argues that the prosecutor elicited illegal victim-impact evidence during the guilt phase of the proceedings. Specifically, he argues that the prosecutor questioned Andrew Mills about his family, the number of children he and Melissa had, the fact that Melissa was pregnant with their fourth child when she was killed, the names of the children, the length of their marriage, and his nickname for Melissa. He contends that the introduction of this evidence denied him a fair and impartial trial.
Initially, we note that some of the elicited evidence was not victim-impact evidence. Andrew Mills related the facts relating to his family members because they were all in the house when the murder *1100 occurred and because one of his daughters opened the door when he and police arrived at the house. While some of the information was not necessary to the State's case, we find no reversible error. As the Alabama Supreme Court stated in Ex parte Land, 678 So.2d 224, 236 (Ala. 1996):
"Recently, this Court examined the issue of victim impact evidence in Ex parte Rieber, 663 So.2d 999 (Ala.1995). In Rieber, we acknowledged that testimony regarding a murder victim's children was not relevant to the issue of the accused's guilt or innocence and was, thus, inadmissible during the guilt phase of trial; we noted, however, that `a judgment of conviction can be upheld if the record conclusively shows that the admission of the victim impact evidence during the guilt phase of the trial did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.' 663 So.2d at 1005. After thoroughly reviewing the record of this present case, we conclude that the limited testimony regarding Ms. Brown's infant son and the impact of Ms. Brown's death on her family, and the prosecution's limited references to such evidence, did not operate to deny Land a fair trial or to prejudice his substantial rights. Thus, we find no reversible error as to this issue."
Similarly, no reversible error exists on this ground in the present case.
XXIV.
Adams next argues that there was not sufficient evidence to convict him of the capital offenses. We do not agree.
We have detailed the evidence in our statement of facts in this opinion and we will not recite all of that evidence here. Briefly, Andrew Mills testified that he was awakened by an intruder who was standing in the hall of his house armed with a knife and wearing a stocking mask. He said that the intruder forced him to get money. Mills said that he went to an ATM and came back with $375. The intruder wanted more so Mills left again, leaving his wife and children with the intruder. He went to a nearby grocery store and told the clerk what was happening at his house. Police met Mills at his house in time to see an intruder running through the house and leaving out the back door. A chase ensued and police captured Adams approximately 20 minutes later near the Millses' house. Adams was in possession of the knife used to kill Melissa Mills and was wearing only one scandal. The mate to the scandal was discovered in the backyard of the victim's house. Adams's cloths were covered in blood. The blood matched Melissa's. DNA evidence conducted on the sperm collected from the victim also matched Adams's DNA.
Certainly, there was more than sufficient evidence to establish Adams's guilt beyond a reasonable doubt.
XXV.
Adams last argues that the cumulative effect of all of the errors demands that he be given a new trial. However, as we have stated, "`"Because we find no error in the specific instances alleged by the appellant, we find no cumulative error."'" Lacy v. State, 673 So.2d 820, 825 (Ala.Crim.App.1995), (quoting Chandler v. State, 615 So.2d 100, 110 (Ala.Crim.App. 1992), quoting in turn other cases). See also McGriff v. State, 908 So.2d 961 (Ala. Crim.App.2000).
Penalty-Phase Issues
XXVI.
Adams next argues that Alabama's manner of execution constitutes *1101 cruel and unusual punishment because, he says, the electric chair is "antiquated" and has numerous design flaws.
With the recent adoption of § 15-18-82.1, Ala.Code 1975, Alabama's method of execution was changed from electrocution to lethal injection. Therefore, any issue concerning the constitutionality of electrocution has been rendered moot by the adoption of this alternate method of execution. As we stated in Tomlin v. State, 909 So.2d 213 (Ala.Crim.App.2002):
"Tomlin last argues that death by electrocution is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. This issue is now moot. Recently, the Legislature passed Act No. 2002-492, Ala. Acts 2002, which will become effective on July 1, 2002. This Act changes the primary method of execution from the electric chair to lethal injection. The Act, in part, amends § 15-18-1, Ala.Code 1975, to provide that `A death sentence shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution.' This Acts applies to all persons currently on Alabama's death row.
909 So.2d at 277-78. See also Turner v. State, 924 So.2d 737 (Ala.Crim.App.2002); Duke, supra.
XXVII.
Adams argues, for the first time on appeal, that Alabama's death-penalty statute is unconstitutional because it does not require that the jury make specific findings about what aggravating circumstances it found to exist and it does not specify the weight that a trial court is to give the jury's recommendation.
In Haney v. State, 603 So.2d 368, 388 (Ala.Crim.App.1991), aff'd, 603 So.2d 412 (Ala.1992), this Court rejected a similar claim that the jury must make findings concerning the aggravating circumstances it found to exist. The Court stated:
"We have previously addressed this issue and concluded that there is no statutory or constitutional requirement that the jury make specific findings of aggravating or mitigating circumstances during the sentencing phase of a capital case under Alabama's capital offense statute."
Likewise, the Alabama Supreme Court has also held that Alabama's death-penalty statute is not unconstitutional because it does not assign the specific weight that the trial court is to give the jury's recommendation.
"In Harris [v. Alabama, 513 U.S. 504 (1995)], the petitioner sought a mandate from the Supreme Court stating that the United States Constitution requires Alabama trial judges to give `great weight' to the jury's advisory verdict. However, the Supreme Court ruled that Alabama's death penalty sentencing scheme, which does not prescribe the weight the trial judge is to give the jury's verdict, is not unconstitutional. The Court stated: `The Constitution permits the trial judge, acting alone, to impose a capital sentence. It is thus not offended when a State further requires the sentencing judge to consider a jury's recommendation and trusts the judge to give it the proper weight.' [513] U.S. at [515], 115 S.Ct. at 1037."
Ex parte Taylor, 666 So.2d 73, 88 (Ala. 1995).
Trial Court's Sentencing Order
XXVIII.
Last, as required by § 13A-5-53, Ala.Code 1975, we will address the propriety of Adams's sentence to death. The record reflects that Adams's sentence was not imposed under the influence of passion, *1102 prejudice, or any other arbitrary factor. Section 13A-5-53(b)(1).
Adams was indicted for, and convicted of, killing Melissa Mills during the course of a rape, burglary, robbery, and for murdering Mills during the course of robbing her husband. These offenses are punishable by death.[9]
The trial court found the existence of four aggravating circumstances the murder occurred during a rape, robbery, and a burglary, and the murder was especially heinous, atrocious, or cruel when compared to other capital offenses. The trial court stated:
"The jury, by its verdict, found Adams committed the capital offense while in the commission of the rape of [Melissa] Mills. The evidence, specifically the testimony of Dr. Gregory Wanger, Michael Hitchcock, and Katherine McGeehan, established Adams raped [Melissa] Mills. Dr. Wanger testified regarding the vaginal injuries sustained by [Melissa] Mills and to collecting this evidence in a sexual assault kit. Hitchcock and McGeehan testified that semen collected from the body of [Melissa] Mills and transferred to them in that sexual assault kit belonged to Adams. During the course of committing this offense, Adams stabbed [Melissa] Mills six times, killing her. This Court concurs with the jury's finding and, based upon the evidence presented, finds that the State proved beyond a reasonable doubt that Adams committed the capital offense during the commission of a rape. Section 13A-5-49(4), Ala.Code 1975.
"The jury, by its verdict found Adams committed the capital offense while in the commission of a burglary. The evidence presented by the State shows that Adams entered into the Millses' home through a window by using a chair from the back porch to hoist himself through the window. The evidence also showed Adams entered the home wearing a stocking mask and black leather gloves, and in the possession of a knife. Adams then raped [Melissa] Mills and held [Melissa] at knife point while forcing the Mills to give him money. During the course of committing this offense, Adams stabbed [Melissa] Mills six times, killing her. This Court concurs with the jury's finding and based on the evidence presented, finds that the State proved beyond a reasonable doubt that Adams committed the capital offense during the commission of a burglary. Section 13A-5-49(4), Ala.Code 1975.
"The jury, by its verdict, found Adams committed the capital offense while in the commission of the robbery of [Melissa] Mills and of Andy Mills. As stated *1103 above, Adams held [Melissa] Mills at knife point and forced the Mills to hand over money. Andy Mills offered personal property to Adams and gave him nine dollars from his wallet. Andy Mills then drove to two different locations and drew the maximum amount allowable by this ATM, $375, and cashed a check, in order to comply with Adams' demands. During the course of committing this offense, Adams stabbed [Melissa] Mills six times, killing her. This Court concurs with the jury's finding and, based upon the evidence presented, finds that the State proved beyond a reasonable doubt that Adams committed the capital offense during the commission of a robbery. Section 13A-5-49(4), Ala.Code 1975.
"This Court also finds that the capital offense committed by Adams was especially heinous, atrocious or cruel when compared to other capital offenses. The State must prove beyond a reasonable doubt, as this Court finds in the instant case, that [Melissa] Mills experienced pre-mortem suffering; this suffering can be both physical and psychological. See Dallas v. State, 711 So.2d 1101 (Ala. Crim.App.1997), aff'd, Ex parte Dallas, 711 So.2d 1114 (Ala.1998), cert. denied, [525] U.S. [860], 119 S.Ct. 145 (1998). `Heinous' means extremely wicked or shockingly evil. `Atrocious' means outrageously wicked and vile. `Cruel' means designed to inflict a high degree of pain with utter indifference to or even the enjoyment of the sufferings of others.
"The evidence presented at trial established that [Melissa] Mills, prior to her death, suffered extremely torturous treatment at the hands of Adams. This Court cannot imagine a more depraved and cruel murder of a person than what [Melissa] Mills suffered. Adams stabbed [Melissa] Mills six different times during or just after he raped her. [Melissa], although four months pregnant, fought with all her might to fend off Adams, incurring defensive slash wounds on both of her hands. Adams's treatment of Missy did not end there. After [Melissa] crawled out of her bed onto her bedroom floor, Adams stabbed her again, leaving her to lie on the floor, bleeding to death.
"Dr. Wanger testified that the resulting stab wounds would not have led to [Melissa's] immediate death, nor would they have led to an immediate state of unconsciousness. During this period, [Melissa] would have been aware of her husband trying to get money for Adams in an effort to appease him and get him to leave their home without harming anyone. [Melissa] would also have been aware of her children who were sleeping just down the hallway, fearing not only for her own life, but also for the lives of her children, her unborn child, and her husband. The facts of this case support that a horrendous amount of psychological torture was wreaked upon [Melissa] in the fleeting minutes of her life. The additional physical suffering inflicted upon the 5'2", 105 pound frame of [Melissa] Mills substantiates the outrageously wicked nature of Adams's conduct. Following the standard set forth in Ex parte Kyzer, 399 So.2d 330 (Ala.1981), this Court finds that Adams's multiple stabbing of [Melissa] Mills after raping her fits within that class of capital offenses which are `conscienceless or pitiless homicides which are unnecessarily torturous to the victim.' Kyzer, 399 So.2d at 334. Accordingly, this Court finds that the State proved beyond a reasonable doubt that the capital offense was especially heinous, atrocious or cruel when compared to other capital offense. *1104 Section 13A-5-49(8), Ala.Code 1975."
(C.R. 306-08.)
Adams specifically argues that it was unconstitutional to count rape, robbery, and burglary, both as elements of the offense and as aggravating circumstances. He asserts that doing so constitutes an impermissible overlap. This practice is commonly referred to as "double-counting" and has consistently been upheld against constitutional attacks. As the Alabama Supreme Court stated in Ex parte Windsor, 683 So.2d 1042, 1060 (Ala.1996):
"`The practice of permitting the use of an element of the underlying crime as an aggravating circumstance is referred to as "double-counting" or "overlap" and is constitutionally permissible. Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988); Ritter v. Thigpen, 828 F.2d 662 (11th Cir.1987); Ex parte Ford, 515 So.2d 48 (Ala.1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1023 (1988); Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).
"`Moreover, our statutes allow "double-counting" or "overlap" and provide that the jury, by its verdict of guilty of the capital offense, finds the aggravating circumstance encompassed in the indictment to exist beyond a reasonable doubt. See §§ 13A-5-45(e) and -50. "The fact that a particular capital offense as defined in section 13A-5-40(a) necessarily includes one or more aggravating circumstances as specified in section 13A-5-49 shall not be construed to preclude the finding and consideration of that relevant circumstance or circumstances in determining sentence." § 13A-5-50.'
Coral v. State, 628 So.2d 954, 965-66 (Ala.Cr.App.1992). See also Burton v. State, 651 So.2d 641 (Ala.Cr.App.1993). The trial court correctly considered the robbery as an aggravating circumstance."
The trial court correctly considered rape, robbery, and burglary as aggravating circumstances.
Adams argues that the trial court erred in finding that the murder was especially heinous, atrocious, or cruel because, he argues, that aggravating circumstance is unconstitutionally vague and was incorrectly applied in this case based on incorrect factual findings.
The only objection raised to the application of this circumstance was that it was unconstitutionally vague. No other objections were made concerning this issue before the trial court.
This Court has upheld the constitutionality of this aggravating circumstance against charges that it is unconstitutionally vague. See Duke, supra; Hallford v. State, 548 So.2d 526 (Ala.Crim.App.1988), aff'd, 548 So.2d 547 (Ala.1989).
As the trial court so thoroughly stated in its order, this aggravating circumstance is correctly applied using the standard articulated by the Alabama Supreme Court in Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981), and is reserved for only those murders that are "unnecessarily torturous to the victim." Here, there is absolutely no doubt that this aggravating circumstance was correctly applied. Melissa Mills fought her attacker as evidenced by her defense wounds; she was alive throughout the entire ordeal as evidenced by the fact that she was gasping for air when she was discovered; and the coroner testified that the stab wounds would not *1105 have been immediately fatal. Certainly, it is logical to conclude, as did the trial court, that during this whole ordeal, while Melissa was alone in the house with her attacker and her three children, Melissa was in fear for not only her life but for the lives of her family members as well. Clearly this aggravating circumstance was more than proven at trial and correctly applied in this case. See Kyzer supra.
The trial court found as statutory mitigating circumstances that Adams had no significant history of prior criminal activity and that Adams was 17 years old at the time of the offense. The trial court found as a nonstatutory mitigating circumstance that Adams is "loved and supported by his family."
The trial court weighed the aggravating and the mitigating circumstances, considered the jury's recommendation of 10 to 2 for death, and sentenced Adams to death.
Pursuant to § 13-A-5-53(b)(2), we must independently weigh the aggravating and the mitigating circumstances to determine if death is the appropriate sentence. After reviewing the record, the presentence report, and the trial court's thorough sentencing order, we are convinced, that death is the appropriate sentence for Adams's conduct.
This Court must also determine if Adams's sentence was disproportionate when compared to penalties imposed in similar cases. Adams argues that his sentence was disproportionate based on his age. He argues in brief that he was 16 at the time of the murder; however, the record clearly shows that Adams was 17 years old at the time of the murder.
The Alabama Supreme Court and the United States Supreme Court has upheld sentencing 16- and 17-year-olds to death. See Ex parte Pressley, 770 So.2d 143 (Ala. 2000), and Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989). Neither does sentencing a 17-year-old to death violate international law. As we stated in Duke:
"Duke also argues for the first time on appeal that the imposition of the death sentence in his case violates international law, specifically the International Covenant on Civil and Political Rights, which was ratified by the United States in 1992. This identical issue was addressed by the Alabama Supreme Court in Ex parte Pressley, 770 So.2d [143] at 148-49 [(Ala.2000)]. After a thorough discussion of the merits of the issue, the Supreme Court rejected this claim. In light of the Supreme Court's holding in Pressley, we see no reason to revisit this issue."
889 So.2d at 33. Adams's death sentence is not disproportionate to the penalties imposed in similar cases.
See Ex parte Roberts, 735 So.2d 1270 (Ala.1999) (robbery-murder); Neal v. State, 731 So.2d 609 (Ala.Crim.App.1997), aff'd, 731 So.2d 621 (Ala.1999) (burglary-murder); Brooks v. State, 695 So.2d 176 (Ala.Crim.App.1996), aff'd, 695 So.2d 184 (Ala.1997) (rape-murder); Freeman v. State, 555 So.2d 196 (Ala.Crim.App.1988), aff'd, 555 So.2d 215 (Ala.1989) (rape-murder); Thomas v. State, 539 So.2d 375 (Ala. Crim.App.), aff'd, 539 So.2d 399 (Ala.1988) (burglary-murder); Baldwin v. State, 456 So.2d 117 (Ala.Crim.App.1983); aff'd, 456 So.2d 129 (Ala.1984) (robbery-murder).
Adams's capital-murder convictions are due to be affirmed. However, as stated in Part XXI of this opinion, this case is due to be remanded for the Montgomery County Circuit Court to vacate Adams's conviction for robbery in the first degree and his sentence for that conviction because that offense was encompassed in one of his capital-murder convictions.
*1106 Due return should be filed in this Court no later than 42 days after the date of this opinion.
AFFIRMED AS TO CAPITAL MURDER CONVICTIONS; REVERSED AS TO ROBBERY CONVICTION AND SENTENCE; AND REMANDED.
COBB, BASCHAB, SHAW, and WISE, JJ., concur.
On Return to Remand
McMILLAN, Presiding Judge.
The appellant, Renaldo Chante Adams, was convicted of four counts of capital murder for murdering Melissa Mills during the course of committing a rape, a robbery, and a burglary, and for murdering Mills during the course of robbing her husband, Andrew Mills. Adams was also convicted of robbery in the first degree for robbing Andrew Mills. We remanded this case for the trial court to set aside Adams's conviction for robbery in the first degree because that conviction was encompassed in one of the capital-murder counts. See Adams v. State, 955 So.2d 1037 (Ala. Crim.App.2003).
The trial court has complied with our directions and has set aside Adams's conviction and sentence for robbery in the first degree.
In our previous opinion we addressed the propriety of Adam's convictions and death sentence and found that the trial court correctly determined that the aggravating circumstances outweighed the mitigating circumstances and warranted the imposition of the death penalty in this case. We affirmed Adams's capital-murder convictions and his death sentence in our opinion on original submission. See Adams.
According to Rule 45A, Ala.R.App.P., we have also searched the record for any error that may have affected Adams's substantial rights and have found none.
For the foregoing reasons, the judgment in this case is due to be, and is hereby, affirmed.
AFFIRMED.
COBB, BASCHAB, SHAW, and WISE, JJ., concur.
NOTES
[1] The Alabama Supreme Court denied certiorari review without an opinion in Ex parte Anderson (No. 1972213).
[2] Rule 19.3 was amended effective December 1, 1997. The quoted material is now found at Rule 19.3(b).
[3] Section 12-21-162(b), specifically stated, "[A] witness may be examined touching his conviction for a crime involving moral turpitude, and his answers may be contradicted by other evidence." The Advisory Committee Notes to Rule 609, Ala.R.Evid., state, "The preexisting Alabama statutory provision authorizing impeachment by evidence showing conviction for a crime involving moral turpitude, Ala.Code 1975, § 12-21-162(b), has been superseded by Rule 609."
[4] Also, § 36-18-30, Ala.Code 1975, states:
"Expert testimony or evidence relating to the use of genetic markers contained in or derived from DNA for identification purposes shall be admissible and accepted as evidence in all cases arising in all courts of this state, provided, however, the trial court shall be satisfied that the expert testimony or evidence meets the criteria for admissibility as set forth by the United States Supreme Court in Daubert, et. ux., et. al., v. Merrell Dow Pharmaceuticals, Inc., decided on June 18, 1993."
[5] PCR is an acronym for polymerase chain reaction.
[6] TWGDAM is an acronym for Technical Working Group on DNA Analysis Methods. "TWGDAM is a voluntary quality assurance group coordinated through the FBI and composed of 35 forensic scientists representing 22 state and local agencies around the county." Ex parte Brooks, 695 So.2d 184, 193 n. 3 (Ala.1997).
[7] The State argues in its brief that we should take judicial notice of the reliability of the PCR method of DNA testing. We note that this Court did just that in Simmons v. State, 797 So.2d 1134 (Ala.Crim.App.1999), but the Alabama Supreme Court in Ex parte Taylor, 825 So.2d 769 (Ala.2002), specifically criticized our holding on that issue in Simmons.
[8] The instruction in Weaver read, "`A defendant's flight to avoid prosecution may be considered by you as tending to show his consciousness of guilt.'" 678 So.2d at 285.
[9] This case is not affected by the holding in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Adams was convicted of killing Melissa Mills during the course of a rape, robbery, and burglary. All three of these felonies, which elevate the crime to a crime that is punishment by death, were found to exist by the jury beyond a reasonable doubt in the guilt phase. Therefore, the jury's verdict established the three aggravating circumstances that made Adams eligible for the death penalty. There is no Ring violation in this case. See Ex parte Waldrop, 859 So.2d 1181 (Ala.2002).
Neither is there evidence that the death sentence imposed on Adams violates Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), by imposing the death sentence on a mentally retarded individual. The presentence report reflects that Adams was in high school at the time of the murder and that he had had several jobs before his arrest. He even told the probation officer that he had been a camp counselor. There is no evidence indicating that Adams is mentally retarded as that term was discussed by our Supreme Court in Ex parte Perkins, 851 So.2d 453 (Ala.2002) (on remand from the United States Supreme Court). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2016271/ | 169 Wis.2d 703 (1992)
486 N.W.2d 567
Uriel R. LIMJOCO, M.D., Plaintiff-Appellant,[]
v.
Jeffrey W. SCHENCK, M.D., and Beth A. Schenck, M.D., Defendants-Respondents,
Gary W. STEWART, M.D., and Does I-XX, Defendants.
No. 91-2658.
Court of Appeals of Wisconsin.
Oral argument April 29, 1992.
Decided June 10, 1992.
*706 On behalf of the plaintiff-appellant, the cause was submitted on the briefs of William H. Alverson, Michael B. Apfeld and John L. Kirtley of Godfrey & Kahn, S.C. of Milwaukee. There was oral argument by William H. Alverson.
On behalf of the defendants-respondents, the cause was submitted on the brief of Stephen E. Kravit and Brian G. Cahill of Kravit, Gass & Weber, S.C. of Milwaukee. There was oral argument by Stephen E. Kravit.
Before Nettesheim, P.J., Brown and Anderson, JJ.
*707 BROWN, J.
This appeal involves the interpretation of the statute granting immunity from liability to those who in good faith participate in peer review of health care providers, sec. 146.37, Stats. We affirm the summary judgment dismissing Dr. Uriel Limjoco's claim against Drs. Jeffrey and Beth Schenck for conspiracy and tortious interference with contract because the Schencks had the good faith belief that they were participating in a peer review of Limjoco's surgical decisions, and Limjoco established no facts or inferences to negate the presumption of good faith they enjoyed as participants in that process.
Limjoco is a general surgeon who was employed by the Falls Medical Group (the clinic) from October 1969 through July 1989. In early 1989, there was a decline in the number of surgery referrals to Limjoco from the other doctors at the clinic. In March or April 1989, Dr. Gary Stewart, who was the quality assurance director and the only other general surgeon at the clinic besides Limjoco, reviewed the files of twenty-two patients of Limjoco. Stewart also asked Jeffrey Schenck, a gastroenterologist, and Beth Schenck, a dermatologist, to review some of those files and give their opinions as to whether the cases had been handled appropriately. The Schencks had performed some of the same surgical procedures as Limjoco in their respective specialties. On May 6, Stewart presented his concerns about Limjoco to the executive committee.
Stewart then drew up a list of questions on the problem cases and presented them to Limjoco for him to provide the clinic's executive committee with answers. In June, Limjoco went to the executive committee meeting, accompanied by his attorney. However, the executive committee postponed the meeting because Limjoco had not given advance notice that he would be represented *708 by counsel and the clinic's attorney was not present.
On July 5, Limjoco met with three doctors of his choice at one of the doctor's homes to discuss the twenty-two cases. At this meeting, Limjoco submitted his resignation effective the end of the month. Limjoco claims that he resigned because the three doctors did not give him the opportunity to explain the twenty-two cases but simply told him that the referring physicians had lost confidence in him and that he should leave the clinic. The Schencks claim Limjoco came to the meeting with a typed letter of resignation.
Later, Limjoco received approximately $900,000, which the trial court called "negotiated resignation benefits." Limjoco claims that this payment was made pursuant to his employment contract and represented his ownership interests in the clinic's accounts receivable and physical plant, as well as his pension and profit sharing plan. He claims there was no payment for damage to his career.
In April 1990, Limjoco brought a lawsuit against both Stewart and the Schencks for tortious interference and conspiracy. He argues that the Schencks participated in destroying his reputation by reviewing the cases Stewart gave them, by helping Stewart draw up the questions later presented to Limjoco, and by Jeffrey Schenck's response to questions about the cases at the May 6 executive committee meeting. The Schencks deny helping to draw up the questions.
The Schencks moved for summary judgment. The trial court granted their motion on grounds that the Schencks were immunized from liability by the "peer review" statute, sec. 146.37, Stats. The claim against Stewart remains pending in the circuit court.
*709 Limjoco argues that summary judgment for the Schencks was inappropriate because there was a factual dispute in the form of legitimate competing inferences about the Schencks' good faith. He also contends that the trial court made an error of law when it granted the Schencks immunity from liability under the "peer review" statute because the informal procedure followed by Stewart and the executive committee was an ad hoc investigation of him, not a peer review procedure having the characteristics required by sec. 146.37, Stats.
[1, 2]
In reviewing a summary judgment, we apply the same methodology as the trial court without deference to the trial court's conclusions. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816, 820-21 (1987). If a claim for relief has been stated, summary judgment must be entered 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 the moving party is entitled to judgment as a matter of law. Section 802.08(2), Stats.; Green Spring Farms at 315, 401 N.W.2d at 820.
Limjoco argues that a program reviewing health care providers must have the following characteristics to give the participants immunity from liability: (1) it must be conducted as part of an organized program; (2) the program must have the remedial purpose of improving health care; (3) records must be kept pursuant to sec. 146.38, Stats.; and (4) the person being investigated must have a reasonable opportunity to be heard. Limjoco also argues that the participants do not have a presumption of good faith unless the peer review program has these characteristics.
*710 Limjoco contends that he was subjected to an ad hoc investigation with no record requirements and no opportunity for him to be heard. He also claims that the investigation did not have a remedial health care objective but was for the business expediency of terminating his association with the clinic in order to increase the earnings of the other doctors.
The Schencks respond that, in order to qualify as a protected peer review program, sec. 146.37, Stats., requires only that the program be organized and operated for the purpose of improving the quality of health care. They contend that nothing in the statute requires the protected program to be established by formal written procedures or to have the characteristics proposed by Limjoco. The Schencks contend that their review of some of Limjoco's cases was part of a protected peer review program in which the quality assurance director and the executive committee handled quality of care issues involving any of the clinic's doctors.
[3-7]
The issue to be decided in this case is the meaning of sec. 146.37, Stats. Interpretation of a statute presents a question of law. Brandt v. LIRC, 160 Wis. 2d 353, 361, 466 N.W.2d 673, 676 (Ct. App. 1991). We follow well-established principles when determining the meaning of a statute. State v. Gassen, 143 Wis. 2d 761, 764, 422 N.W.2d 863, 864 (Ct. App. 1988). The aim of statutory construction is to discern the intent of the legislature, and the primary source to be used is the language of the statute itself. State v. Eichman, 155 Wis. 2d 552, 560, 456 N.W.2d 143, 146 (1990). The statute must be interpreted on the basis of the plain meaning of its terms and, unless there is ambiguity, the plain meaning must be followed. State v. Livingston, 159 Wis. 2d 561, 573, 464 N.W.2d 839, 844 (1991). A statute is ambiguous if reasonable *711 persons can understand it differently, but whether reasonable persons can disagree on a statute's meaning is a question of law. Meunier v. Ogurek, 140 Wis.2d 782, 786, 412 N.W.2d 155, 157 (Ct. App. 1987). This court may not search for ways to find a statute ambiguous when its terms are clear. Dickie v. City of Tomah, 160 Wis. 2d 20, 25, 465 N.W.2d 262, 263-64 (Ct. App. 1990).
The relevant portions of sec. 146.37, Stats., are the following:
(1g) [N]o person acting in good faith who participates in the review or evaluation of the services of health care providers ... in connection with any program organized and operated to help improve the quality of health care ... is liable for any civil damages as a result of any act or omission by such person in the course of such review or evaluation.
(1m) The good faith of any person specified in subs. (1g) and (3) shall be presumed in any civil action. Any person who asserts that such a person has not acted in good faith has the burden of proving that assertion by clear and convincing evidence.
We conclude that the terms of the statute are plain and admit of no ambiguity. The clear purpose of the statute, as found in subsec. (1g), is to improve the quality of health care by encouraging persons to participate in the review of health care providers. The statute does this by freeing such persons from fear of a lawsuit through a grant of immunity to those who participate in such a review in good faith.
We conclude that it would defeat the purpose of the statute and create a trap for the unwary to deny immunity to a good faith participant in medical peer review *712 even if the peer review program itself was not organized and conducted in the proper manner, if indeed there is a "proper" manner. It would similarly defeat the purpose of the statute to say that the good faith of the participants can be presumed only if the peer review program is correctly organized. Therefore, anyone who has the good faith belief that they are participating in a valid peer review procedure of a health care provider is entitled to the presumption of good faith in sec. 146.37(1g), Stats., and is immune from liability, unless the presumption of good faith is overcome.
In this case, the issue is not whether the clinic actually had a statutorily protected peer review program but whether the Schencks had the good faith belief that they were participating in such a program. On the facts of this case, it puts the proverbial cart before the horse to look at how the clinic's program was organized and conducted rather than looking first at the good faith of the Schencks.
[10]
The Schencks submitted affidavits stating that they "reviewed the cases and discussed them with Dr. Stewart with the understanding that [their] comments were part of the peer review of Dr. Limjoco's work then being conducted by Falls Medical Group's Executive Committee." The summary judgment record also shows that the Schencks did not organize the committee or volunteer their services to review Limjoco's decisions. Moreover, it was not just another colleague at the clinic but the quality assurance director who requested the Schencks' evaluations of Limjoco. There is no evidence that the Schencks participated in the events affecting Limjoco beyond that initial review. Thus, the objective evidence indicates that the Schencks had every reason to believe *713 that they were acting within a legitimate peer review program.
[11]
The Schencks are entitled to the presumption of good faith in sec. 146.37, Stats., even if Stewart's and the executive committee's actions were more in the nature of an ad hoc committee rather than a properly organized peer review committee. This presumption entitled the Schencks to immunity from liability unless Limjoco could overcome the presumption.
At trial, it would require clear and convincing evidence to overcome the presumption. At the summary judgment stage, Limjoco simply had to present facts or alternate competing inferences sufficient to convince the trial court that there was a triable dispute regarding the Schencks' good faith.
[12]
By way of challenge to the Schencks' good faith, Limjoco claims that Jeffrey Schenck had a grudge against him which also colored Beth Schenck's evaluation. Limjoco further contends that both Schencks had an economic motive to remove him from the clinic because they believed more surgeries would then be referred to them.
Limjoco bases his allegation about a grudge on Beth Schenck's deposition testimony that she believed the clinic was better off without Limjoco "because he did not frequently perform the correct surgical procedures and ... other doctors ... were often called upon to bail him out...." She said that the source of this belief was her knowledge of cases involving her husband. Limjoco also cites Jeffrey Schenck's deposition testimony that he thought Limjoco had misdiagnosed a case which resulted in a lawsuit being initiated against Schenck. We conclude that this deposition testimony is not enough to *714 raise an inference that a grudge or vendetta existed. There is simply no nexus between the Schencks' opinion of Limjoco's procedures and the allegation that there was a "grudge."
Similarly, there is no link established between Limjoco's departure and any economic gain enjoyed by the Schencks after that departure. Limjoco points to Jeffrey Schenck's deposition testimony that after Limjoco's departure he was doing more endoscopies and his volume of professional activity and earnings increased. However, Jeffrey Schenck later testified that these increases were not due to Limjoco's leaving but were because Jeffrey Schenck had expanded his practice to West Bend and this accounted for twenty-five percent of his total productivity.
Limjoco also bases his economic gain argument on an allegation that the Schencks made it known on their arrival at the clinic that they believed certain procedures in their fields, previously performed by Limjoco, should be referred exclusively to them. However, Limjoco himself testified that he got this information, as it related to Beth Schenck, from his secretary, who got it from a receptionist. This is inadmissible hearsay upon hearsay. Furthermore, Limjoco testified that he had no direct evidence or even hearsay knowledge for this allegation relative to Jeffrey Schenck.
We conclude that Limjoco fails to make the Schencks' good faith a disputed issue of fact because he offers only conclusory statements about the grudge and the Schencks' economic gain. He does not present established facts from which inferences of bad faith could be *715 drawn. Therefore, we conclude that summary judgment was properly granted to the Schencks as a matter of law.
By the Court.Judgment affirmed.
NOTES
[] Petition to review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621145/ | VISION AVIATION, L.L.C.
v.
AIRPORT AUTHORITY FOR AIRPORT DISTRICT NO. 1 OF CALCASIEU PARISH, LOUISIANA
CONSOLIDATED WITH: AIRPORT AUTHORITY FOR AIRPORT DISTRICT NO. 1 OF CALCASIEU PARISH, LOUISIANA
v.
VISION AVIATION, L.L.C.
No. 09-742
Court of Appeals of Louisiana, Third Circuit.
July 29, 2009
Not Designated for Publication
KENNETH MICHAEL WRIGHT, Attorney at Law, Counsel for Plaintiff/Appellant Vision Aviation, L.L.C.
RUDIE SOILEAU, Jr., Lundy, Lundy, Soileau & South, L.L.P. Counsel for Defendant/Appellee: Airport Authority for Airport District No. 1 of Calcasieu Parish, Louisiana
DAVID J. HALPERN JILL ANNE GAUTREAUX McGlinchey Stafford P.L.L.C. Counsel for Defendant/Appellee Airport Authority for Airport District No. 1 of Calcasieu Parish, Louisiana.
Court composed of SAUNDERS, SULLIVAN, and GENOVESE, Judges.
SAUNDERS, Judge.
The Defendant-Appellee, Airport Authority for Airport District No. 1 of Calcasieu Parish, Louisiana (the Airport Authority), moves to dismiss these unlodged appeals for failure to comply with the procedural requirements for seeking an appeal in an eviction action. For the reasons given herein, we grant the motion to dismiss the suspensive appeals, but maintain the appeals as devolutive.
Appellant, Vision Aviation, L.L.C. (Vision), leased hangers two and three at the Lake Charles Regional Airport from the Airport Authority. Vision also leased from the Airport Authority a fixed base operator hangar and other land pursuant to a Development Agreement dated November 7, 2002. On May 15, 2006, Vision filed a Verified Petition for Declaratory Judgment, Specific Performance, and Injunctive Relief in connection with the lease. The Airport Authority filed an answer and reconventional demand seeking termination of the lease and Development Agreement. Vision answered the reconventional demand but allegedly did not do so under oath.
The Airport Authority also filed a separate action seeking to have Vision evicted from the leased premises for breach of both the lease and the Development Agreement. Vision did not file an answer or any affirmative defenses in response to the eviction action. The eviction action and the declaratory judgment action were consolidated on March 14, 2007.
The case went to trial on April 1, 2009, and the trial court ruled in favor of the Airport Authority, finding sufficient cause to terminate the Development Agreement and evict Vision from the fixed base operator hangar. A judgment to that effect was signed on May 5, 2009.
Vision filed a motion for suspensive appeal in these consolidated actions on May 19, 2009; the appeal order had been signed on May 12, 2009. The appeal bond was set for ten thousand dollars, and Vision posted bond on June 5, 2009.
The Airport Authority moves to dismiss the suspensive appeals on the ground that Vision failed to meet the conditions of La.Code Civ.P. art. 4735, which provides as follows:
An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.
The Airport Authority contends that although La.Code Civ.P. art. 4735 requires that a suspensive appeal and an appeal bond be filed within twenty-four hours after the rendition of the judgment of eviction, Vision has not met this requirement. In that regard, the Airport Authority notes that on April 1, 2009, the trial court granted the rule for eviction and gave oral reasons at that time. The Airport Authority points out that although the Judgment was signed on May 5, 2009, Vision did not file its motion and order for suspensive appeal until May 19, 2009, and did not post its appeal bond until June 5, 2009. Since neither the appeals nor the appeal bond were filed within the twenty-four hours after rendition of the judgment, the Airport Authority argues that Vision is precluded from seeking suspensive appeals of the judgment.
Alternatively, the Airport Authority asserts that Vision's appeals are precluded because Vision did not answer the rule for eviction as required by La.Code Civ.P. art. 4735. In support of this position, the Airport Authority cites Rourke v. Cloud, 398 So. 2d 57 (La.App. 3 Cir. 1981), wherein this court dismissed a suspensive appeal because the answer did not state affirmative defenses as required by La.Code Civ.P. art. 4735. In the instant case, the Airport Authority asserts that Vision did not even file an answer, let alone file an answer under oath pleading an affirmative defense entitling Vision to retain possession of the leased premises.
Furthermore, the Airport Authority, while denying that the pleadings filed in the declaratory judgment action are applicable to the eviction action, argues that even if those pleadings were applicable, Vision still failed to comply with the answer requirement set forth in La.Code Civ.P. art. 4735. In that regard, the Airport Authority contends that the only verified pleading which Vision filed in connection with the declaratory judgment action was the original action for injunction and that pleading only pertains to the lease of hangers two and three. However, the Airport Authority maintains that there are no verified pleadings wherein Vision asserts its right to maintain possession of the base operation hanger pursuant to the Development Agreement, which is what is at is issue in the instant appeal.
In response to the motion to dismiss, Vision asserts that the judgment appealed contains more than just an eviction. Vision contends that in addition to appealing an eviction ruling, it is also appealing the trial court's finding that the Development Agreement was terminated and the trial court's failure to grant a preliminary injunction. While the Airport Authority asserts the these three issues are so inextricably linked that they cannot be bifurcated for purposes of the appeal, Vision argues that the suspensive appeals should not be dismissed in their entirety.
To the extent that Vision seeks appellate review of the decision to evict it from the base operation hanger, we find that Vision has not complied with La.Code Civ.P. art. 4735, which sets forth the express prerequisites for suspensively appealing such a decision. Since the motion for suspensive appeal was filed fourteen days after the rendition of judgment and since the appeal bond was not posted until one month after rendition of judgment, Vision's appeals clearly were not sought within twenty-four hours as required by Article 4735. Therefore, we find that Vision's suspensive appeals of the eviction ruling must be dismissed, and we maintain the appeals from the eviction ruling as devolutive. Having found that these suspensive appeals were not timely perfected, we find moot the issue of whether Vision failed to answer the eviction suit under oath and to raise an affirmative defense alleging its entitlement to possession of the base operation hanger.
To the extent that Vision seeks to suspensively appeal the trial court's failure to grant a preliminary injunction, we find that Vision has failed to comply with the bond requirement set forth in La.Code Civ.P. art. 3612(C), which provides, in pertinent part, that "[a]n appeal from an order or judgment relating to a preliminary injunction must be taken, and any bond required must be furnished, within fifteen days from the date of the order or judgment." In the instant case, although the judgment was signed on May 5, 2009, Vision did not post its appeal bond until June 5, 2009. Since the appeal bond was posted more than fifteen days after the judgment was rendered, we find that pursuant to La.Code Civ.P. art. 3612(C), Vision's appeal bond was posted untimely. As such, we determine that suspensive appeals cannot be maintained with regards to the ruling denying the preliminary injunction.
Inasmuch as dismissal of the suspensive appeals relating to the eviction and the injunctive relief renders ineffective any suspensive relief with respect to the portion of the trial court's ruling terminating the Development Agreement, we find that the entirety of these appeals should be maintained only as devolutive. Accordingly, we hereby grant the instant motion to dismiss the suspensive appeals and maintain the appeals as devolutive.
SUSPENSIVE APPEALS DISMISSED; APPEALS MAINTAINED AS DEVOLUTIVE. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620448/ | 294 S.W.2d 123 (1956)
Burt HARRIS, Appellant,
v.
The STATE of Texas, Appellee.
No. 28450.
Court of Criminal Appeals of Texas.
October 17, 1956.
Scarborough, Yates, Scarborough & Black, Abilene, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
DAVIDSON, Judge.
This is a conviction for violating the liquor laws, with punishment assessed at a fine of $700 and six months in jail.
Under and by authority of a search warrant, agents of the Liquor Control Board, together with the sheriff, searched the private residence of appellant for intoxicating liquor. The search revealed only two empty pint bottles, which had been used as whisky containers. Appellant was in the residence during the search.
While the search of the residence was in progress, one of the liquor control agents searched the surrounding areas. From his testimony, we quote:
"While I was out there searching, I noticed some fresh trails leading from the house out through a wooded area, and I began following these trails. I followed them up a road, which was approximately 200 yards from the house, and I wasn't able to find anything the first time. I went back to the house and I started out again and started up another trail, that is trails leading west of the house, and they led over to a road, and the second time I didn't find anything, and then the third time I started out as a separate trail, which trail from the house led up to this fence; so I *124 crossed the road and began looking in the borrow ditches on the other side of the road. As I remember, by that time Sheriff Ed Powell was with me, and he walked on across the road, out into the field, and, as I remember, stomped the weeds and the bushes in this ditch and uncovered some whiskey; as I was searching in this grassy section and the borrow ditch that was across the road from the trails that led up to this fence, I found some whiskey and some wine and gin." (Emphasis supplied.)
It is for the possession of the wine, whisky, and gin so found that the appellant has been here convicted.
The sufficiency of the evidence to sustain the conviction is here challenged.
To connect appellant with the possession of the liquors so found, the state relies upon proof of the fact that tracks made by the appellant led from his home, some 200 yards away, to the fence separating the road and the premises.
There was testimony that similar tracks were found within something like five to ten feet from where the liquors were found. The tracks were identified as having been made by appellant, by reason of the shoes he was wearing and which the officers took from his feet after the tracks had been discovered. The identifying characteristic of the tracks and the shoes was by reason of a rubber heel made by a certain well known manufacturer. By reason of this, as well as the size of the tracks, the officers expressed the opinion that the tracks so found had been made by the appellant.
The liquors were found hidden in or covered with brush in a ditch along a well traveled hard surfaced public road and on the opposite side of the road from the premises occupied by the appellant as his residence. To reach the liquors from appellant's premises it was necessary to cross the road. No tracks were found crossing the road from appellant's premises.
It was shown that another person lived nearer than did the appellant, and on the same side of the road, to the place where the liquors were found.
There appears to have been no investigation as to the tracks leading from the liquors to this other and nearer residence, nor was there any effort made to overcome any outstanding hypothesis that the liquors could have been possessed by others. There was no evidence that tended to show that the possession by appellant was exclusive.
Reduced to its final analysis, then, appellant's guilt is made to depend upon the fact that his footprints or tracks were found leading to and in the vicinity of the liquors which were hidden from view upon and along a public highway.
It has long been the established rule of law that, ordinarily, identity of an accused may not be established by tracks alone. Ennox v. State, 130 Tex. Crim. 328, 94 S.W.2d 473; Powell v. State, 100 Tex. Cr.R. 43, 271 S.W. 913; Gilbreath v. State, 158 Tex. Crim. 616, 259 S.W.2d 223.
The facts in the case of Dodd v. State, 149 Tex. Crim. 278, 193 S.W.2d 819, where the above rule was applied, which have a striking similarity to the instant facts, were held to be insufficient to sustain the conviction.
Believing the evidence insufficient to support the conviction, the judgment is reversed and the cause is remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620549/ | 294 S.W.2d 174 (1956)
Anna RAMM et al., Appellants,
v.
Adele RAMM et al., Appellees.
No. 13009.
Court of Civil Appeals of Texas, Galveston.
September 20, 1956.
Rehearing Denied October 11, 1956.
*175 Charles L. Krueger, Austin, for appellants.
W. D. Bryan, Sealy, W. I. Hill, Bellville, Richard Spinn, Brenham, for appellees.
HAMBLEN, Chief Justice.
This suit was instituted by Anna and Henry Ramm, appellants, in the District Court of Austin County, seeking to set aside and cancel a certain deed executed by appellants on January 21, 1955, conveying an undivided 2/3 interest in and to an undivided ½ interest in 360 acres of land. Such cancellation was sought upon the ground that the execution and delivery of the deed had been procured by fraud practiced by appellee, Adele Ramm. Trial of the cause was before a jury which, at the conclusion of the evidence, returned a verdict upon which the court entered judgment denying appellants all relief sought.
The issues presented on this appeal can best be understood when prefaced by a recitation of the material facts.
John and Francisca Ramm were husband and wife. John died in September, 1918, and Francisca died in August, 1922. Both died intestate and seised and possessed of considerable personal property and two tracts of land, one of 235 acres and one the 360 acres here involved. They were survived by four children, who were their sole and only heirs at law. These children were Anna and Henry, the appellants herein, Joe, an appellee herein, and Emil, now deceased and who was the husband of Adele, an appellee herein. About six months after the death of their mother, the above named four children and heirs at law of her estate decided to partition the properties in severalty between themselves. To accomplish this purpose they employed the services of Alex Jones, a justice of the peace. The method employed by him to accomplish his clients' purpose was unique but, as we view it, entirely effective. All four children met with the justice of the peace; the latter thereupon received bids from each child on each piece of property belonging to the estate; the highest bidder was required to pay his bid in cash. After all properties belonging to the estate were thus disposed of, the necessary deeds and other evidence of transfer were prepared and executed. The justice of the peace then divided the funds received from this "sale" between the four children and the transaction was completed. While not material, it appears from the evidence that Joe became the purchaser of personalty consisting of cattle, cotton and farm equipment; Henry purchased a note which he owed to his mother; Joe and Anna together purchased the 235-acre tract of land, and Emil purchased the 360-acre tract. Emil's purchase was evidenced by a deed from his brothers and sisters conveying their interest in the tract to him dated January 12, 1923, and reciting a consideration of $4,320 paid in cash.
After this transaction Emil and his wife, Adele, who is appellee herein, claimed the 360-acre tract of land so conveyed to him continuously until Emil's death intestate in 1954. On January 21, 1955, Anna, Joe and Henry, the surviving brothers and sister of Emil, executed and delivered to Adele a deed purporting to convey the 360-acre tract here involved to Adele for a recited consideration of $10 and love and affection. It is this deed which appellants, Anna and Henry, seek to have set aside and cancelled. Joe did not join them in this suit but was made a party defendant. He filed an answer disclaiming any interest in the land and ratifying and affirming both the 1923 and the 1955 deeds above described.
Appellants alleged, as grounds for cancellation of their deed of 1955 to Adele, that the same was procured by Adele upon the representation that the instrument which they were asked to sign (the 1955 deed) was simply an instrument which would permit Adele to collect annual delay rentals due upon said land; that such *176 representation was false; that it was made by Adele, knowing of its falsity and for the purpose of defrauding appellants; that appellants were illiterate and uneducated persons; that they believed and relied on the representation made to them by Adele, and that but for such representation and their reliance on the truth thereof they would not have executed the 1955 deed. Appellants also alleged inadequacy of consideration for the deed.
Appellees filed pleas of limitation and general and special denials of appellants' allegations.
The special issues submitted to the jury and the jury's answers thereto were as follows:
"Special Issue No. 1
"Do you find from a preponderance of the evidence that the heirs of John and Franzisca Ramm divided the estate of their parents?
"Answer `yes' or `no' Yes
"If you have answered Special Issue No. 1 `yes', then in that event only, answer the following questions:
"Special Issue No. 2
"Do you find from a preponderance of the evidence that Emil Ramm received the land described in the deed dated January 18, 1923, as his part of his parents' estate?
"Answer `yes' or `no' No
"If you have answered Special Issue No. 2 `no', then in that event only, answer question No. 3:
"Special Issue No. 3
"Do you find from a preponderance of the evidence that Emil Ramm did not purchase said land described in said deed dated January 12, 1923 with community funds?
"Answer `He did not' or `He did' He did
"By `community funds' is meant earnings or income received during marriage, excluding separate gifts to husband or wife or separate funds of each, not mingled. `Income includes money borrowed, if any, during marriage.'
"Special Issue No. 4
"Do you find from a preponderance of the evidence that plaintiffs knew that the instrument, which they signed, dated January 21, 1955, was a deed?
"Answer `yes' or `no' Yes
"If you have answered Special Issue No. 4 `yes', then in that event only, answer the following:
"Special Issue No. 5
"Do you find from a preponderance of the evidence that any consideration was given for said deed?
"Answer `yes' or `no' Yes"
The judgment adverse to them is attacked by appellants in twelve points of error, however in their brief they assert that there were only two issues raised by the pleadings, first, whether the deed of January 21, 1955, was obtained by fraud and deception and without any consideration, and second, whether the 360 acres was inherited by Emil Ramm and was, therefore, his separate property, or was purchased by him with community funds and, therefore, community property of Emil and Adele Ramm. Since both litigants are in agreement that these two issues comprehend the merits of this lawsuit, we deem it appropriate to dispose of them before considering appellants' assigned points of error. We treat the issues in inverse order.
It was appellees' position, set forth in their defensive pleadings, that the transaction between the four children of Francisca Ramm, together with Alex Jones, the justice of the peace, in 1923 did not constitute a partition between such four children of the estate of their mother and father, but in law constituted a sale and that as a result of such transaction Emil *177 Ramm became a "purchaser" of the 360 acres here involved. It is further their position that since the funds used by Emil Ramm in this purchase were community funds, the property became the community property of Emil and Adele Ramm, and upon the death of Emil became the property of Adele Ramm. In line with this theory, they requested and the court submitted Special Issues Nos. 2 and 3.
We consider appellees' position in this respect to be erroneous, as a matter of law. Neither do we think that their position is helped in any respect by the jury verdict responsive to Special Issues Nos. 2 and 3. Those issues submitted to the jury questions of law which were not properly within their province to determine. It appears to this Court that the method employed by the justice of the peace for the purpose of dividing their parents' estate between the four children was just as effective a partition, and nothing more, as if a partition had been effected in the more usual and customary manner. The only community interest which Adele Ramm could have received by virtue of the deed from Henry, Joe and Anna to Emil would be an interest equal to the extent that the price paid for the 360 acres exceeded an equal one-fourth value of the total estate divided. We do not deem it necessary to pursue the matter further because it is our opinion that the conclusions which the record compel with respect to the first issue above mentioned render the second completely immaterial.
Regardless of what may have been the legal effect of the 1923 transaction by which Emil Ramm acquired the 360 acres here involved and regardless of whether on his death intestate in 1954 Henry and Anna acquired any interest in said property by inheritance, they did on January 21, 1955, by a deed perfectly regular and valid on its face convey that interest to Adele Ramm. In order to prevail in this lawsuit the burden is upon them to have that deed cancelled and set aside. The grounds upon which they sought such relief have already been set forth.
We have carefully examined the record in this case from the standpoint of the support or lack thereof for the jury verdict in response to Special Issue No. 4. The evidence bearing most directly upon the issue consists of the testimony of Henry and Anna on the one hand, and Adele on the other. Henry and Anna testified that Adele represented to them that the 360 acres was subject to an oil and gas lease upon which delay rentals were due and that in order to collect such delay rentals it would be necessary for them to sign the instrument which she tendered to them. Adele, on the other hand, testified unequivocally that she represented to them that the instrument tendered was a deed conveying their interest in this 360 acres to her. Other evidence of circumstantial character was offered in support of both lines of testimony. We do not consider it necessary to discuss that evidence further for we are of the opinion that the testimony of Adele Ramm, standing alone, is sufficient to support the jury answer to Special Issue No. 4. It will be noted that by that answer the jury found that the appellants knew that the instrument which they signed, dated January 21, 1955, was a deed, thus destroying the only ground of attack made by them upon the validity of that deed. Their argument that the nature of the consideration recited in the deed is insufficient and invalid, as a matter of law, is entirely without merit. Most of the cases which appellants cite in support of their contention are cases dealing with executory contracts to convey and not with executed and delivered deeds of conveyance. The rule in Texas is set forth in the case of Rogers v. Rogers, 15 S.W.2d 1037, 1039, decided by the Commission of Appeals of Texas, wherein the following language is employed: "When an instrument conforms to the requirements of this statute [Art. 1294], and purports an executed conveyance of land, the delivery of such instrument has effect, as between the parties, *178 to vest title in the grantee in all respects the same when there is no consideration for the conveyance as when there is one."
In their brief and in argument before this Court, appellants urged and called to the attention of the Court other evidence of what they called fraud and deceit practiced by appellee, Adele Ramm. The only ground for cancellation which they plead and upon which they requested a jury finding is that which we have discussed. If other grounds were tried by consent and without pleadings, the burden was upon appellants to request issues thereupon, absent which they must be deemed to have abandoned such grounds.
We consider that the conclusions which we have stated with reference to the jury finding responsive to Special Issue No. 4 are determinative of this litigation in so far as the merits of the case are concerned, and, absent some procedural error, require an affirmance of the judgment of the court below.
The points of error asserted by appellants are as follows:
"Point of Error No. 1
"The Court erred in declining to sustain plaintiffs' special exception to Paragraph IV of defendants' First Amended Original Answer wherein it was charged `that each and every year the taxes on said land as well as the maintenance of said property were paid for out of community funds by Emil and Adele Ramm; that Henry Ramm and Anna Ramm have not at any time paid or offered to pay any of the taxes due on said land.' All of the quoted allegations were excepted to, because the same were not relevant to any issue in the case and constituted no affirmative defense to plaintiffs' cause of action.
"Point of Error No. 2
"The Court erred in declining to sustain plaintiffs' special exception to Paragraph VI of defendants' First Amended Original Answer wherein it is charged and alleged `that for thirty-two long years since plaintiffs, Henry Ramm and Anna Ramm, executed said deed to Emil Ramm, they and each of them, by their inaction ratified the terms and conditions of said deed and especially the receipt of the $4,320 cash consideration, which they expressly recited in said deed, and that at no time during the said thirty-two long years have they, or either of them, ever raised a voice in denial of the recitals in said deed, and it was not until their brother, Emil Ramm, and the husband of this defendant, Adele Ramm, had his lips closed by death so that he could not speak out against the fraudulent scheme and devices of these plaintiffs, his brother and sister, Henry Ramm and Anna Ramm, that they uttered a sound, and this defendant, Adele Ramm, would show that they are not only estopped to deny each and every recital in their said deed dated January 18, 1923, when they executed a deed conveying the land involved in this lawsuit, but their demands at this time are stale and each of them are guilty of laches in attempting to show this Court, after the passage of thirty-two long years from the date of said deed.' The Court at the time the exceptions were presented to him remarked that he would carry the exceptions along with the case and thus permitted defendants to read to the jury all of said irrelevant, nonsensical and prejudicial matter to plaintiffs' great prejudice.
"Point of Error No. 3
"The Court erred in admitting in evidence over the timely objections of plaintiff to the deposition testimony of the witness Alex Jones to the following question: `When you sold this land to Emil Ramm, you sold it for the full value that you could get from anybody else, and he paid the full value; is that right?' He answered, `That is right.' Plaintiffs requested that the answer be stricken because it doesn't show that he ever dealt with anybody else; that he knew anything of market value or *179 full market value. The witness was never qualified on the subject.
"Point of Error No. 4
"The Court erred in declining to sustain plaintiffs' Motion for an Instruction to the Jury at the close of all testimony by both plaintiffs and defendants, to return a verdict for plaintiffs.
"Point of Error No. 5
"The Court erred in submitting to the jury Special Issue No. 2 which reads as follows: `Do you find from a preponderance of the evidence that Emil Ramm inherited the land?' because the uncontroverted evidence shows that the land in question was a part of the estate of John and Francisca Ramm, the parents of Anna, Joe, Henry and Emil Ramm; that when the parents died, their entire estate consisting of real and personal property immediately vested in the four children jointly and they became co-tenants.
"Point of Error No. 6
"The finding of the jury to Special Issue No. 2 is not only contrary to the evidence but is contrary to the undisputed evidence.
"Point of Error No. 7
"The Court erred in submitting Special Issue No. 3 over the timely objection of plaintiffs because the issue as framed by the Court assumed that Emil purchased the land and the same shifted the burden of proof.
"Point of Error No. 8
"The Court erred in not sustaining plaintiffs' motion made at the close of the evidence by both plaintiffs and defendants to instruct the jury to return a verdict for plaintiffs on the issue of no consideration, because the defendant testified that she did not pay the $10.00 nor did she give to plaintiffs anything of value as a consideration for the conveyance to her of the land in question and sought to be recovered in this suit. Plaintiffs testified that they did not have such love and affection for defendant as prompted them to convey their undivided 2/3 or ½ of 360 acres of land to defendant.
"Point of Error No. 9
"The Court erred in instructing the jury that love and affection was a good consideration, thus applying it generally without regard to relationship of consanguinity, whereas he should have given a definition of the law as it pertains to relationship of consanguinity (blood relationship) from which natural love and affection arise and should have restricted it to natural love and affection, since it does not apply between persons who are not related by consanguinity.
"Point of Error No. 10
"The Court erred in construing the finding of the jury to Special Issue No. 5 as a finding by the jury that it was good consideration and sufficient to support and sustain the deed, dated January 21, 1955, notwithstanding the evidence of grantors that they did not have such love and affection for grantee as would have prompted and moved them to convey 120 acres of land to grantee worth approximately $1,000.00 and their testimony was not contradicted.
"Point of Error No. 11
"The Court erred in rendering judgment on the verdict of the jury because there is no evidence to support such a verdict.
"Point of Error No. 12
"The Court erred in not granting a new trial because the verdict of the jury is contrary to the overwhelming preponderance of the evidence."
Points Nos. 1 and 2 are directed to pleadings of the appellees, based upon which the trial court submitted Special Issues 2 and 3, which we have already discussed. We agree that the issues should not have been submitted for the reasons heretofore set forth; however, the judgment of the *180 trial court does not rest upon the jury verdict responsive to those issues, but as we have stated rests entirely upon the answer to Special Issue No. 4. Appellants do not point out, and we are unable to see, in what manner the complained-of action of the trial court could have been prejudicial to them in so far as Issue No. 4 is concerned. If, as they contend, the trial court erred, the error was harmless and immaterial. The same conclusion is compelled with reference to the testimony to which they object in Point No. 3. In so far as this appeal is concerned, Points Nos. 4, 8, 9 and 10 depend for their applicability upon the correctness of appellants' contention that the January, 1955, deed is void for lack or inadequacy of consideration. We have already discussed that contention.
Point No. 6 is not argued by appellant, however we have already pointed out the immateriality of the special issue complained of.
We have already discussed the evidence in the record which supports the jury verdict responsive to Special Issue No. 4 and thereby dispose of appellants' Points Nos. 11 and 12.
We sustain Points Nos. 5 and 7, but hold that any error in the submission of the complained-of issues is, as heretofore pointed out, harmless and immaterial.
During the pendency of this case on the docket of this Court appellants filed a motion for certiorari, the stated purpose of which was to correctly reflect the action of the trial court in ruling upon bills of exception taken by appellants for the purpose of preserving the errors to which their Points Nos. 1 and 2 are directed. This Court ordered the motion taken with the case. The motion has not since that time been again urged upon this Court and we consider that our rulings referable to appellants' points Nos. 1 and 2 make it unnecessary for us to act formally upon such motion. However, in order that the motion may be disposed of, it is ordered that it be denied.
Finding no error in the record which requires a reversal of the judgment appealed from, that judgment is accordingly in all things affirmed.
CODY, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920318/ | 133 N.J. Super. 445 (1975)
337 A.2d 381
NEW JERSEY TURNPIKE AUTHORITY, PLAINTIFF-APPELLANT,
v.
JOHN I. O'NEILL, AS SUBSTITUTED ADMINISTRATOR C.T.A. AND SUCCESSOR TRUSTEE UNDER THE WILL OF JOHN I. O'NEILL, DECEASED, AND AS EXECUTOR UNDER THE WILL OF CATHERINE O'NEILL, DECEASED; JOHN I. O'NEILL, INDIVIDUALLY, AND ROSANNE O'NEILL, HIS WIFE; PETER L. O'NEILL AND GRETA B. O'NEILL, HIS WIFE; AND JAMES ROGERS O'NEILL AND ANDREA O'NEILL, HIS WIFE; THE BOROUGH OF EAST RUTHERFORD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; AND THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued February 3, 1975.
Decided April 15, 1975.
*447 Before Judges MICHELS, MORGAN and MILMED.
Mr. Bernard M. Reilly argued the cause for the appellant.
Mr. John C. Heavey argued the cause for the respondents (Messrs. Carpenter, Bennett & Morrissey, attorneys; Mr. James R. Lamb, on the brief).
PER CURIAM.
In this condemnation case plaintiff-condemnor, New Jersey Turnpike Authority, appeals from a judgment of the Law Division entered after a nonjury trial awarding defendant O'Neill $199,660 plus interest as compensation for the parcel taken and consequential damages to the property remaining in defendants' ownership.
In July 1967 plaintiff, as part of its Turnpike widening program, filed its complaint and declaration of taking of approximately five acres (parcel 2R420) of the northwesterly section of the approximately 15-acre O'Neill holdings in East *448 Rutherford in the Hackensack Meadowlands area. The total holdings (Lots 36, 36B and 37B in Block 108A on the East Rutherford Tax Map) were bounded on the north by westbound Route 3, on the south by eastbound Route 3, and extended from the Hackensack River on the east to the connecting ramp between Routes 3 and 20 on the west. Access to the property was possible from Route 3 eastbound, but physically impossible from Route 3 westbound. The property is traversed by 2 tidal streams, Blackman's Creek and Branch Creek. It is also traversed by an easement of the Transcontinental Gas Pipeline Corporation for an underground pipe line. The appointment of condemnation commissioners was stayed pending the outcome of litigation between O'Neill and the State Highway Department to determine title to the property. For a history of that litigation see O'Neill v. State Highway Dept., 77 N.J. Super. 262 (App. Div. 1962), rev'd 40 N.J. 326 (1963); and see, O'Neill v. State Highway Dept., 50 N.J. 307 (1967), in which the cause was remanded for retrial on the issue whether the lands were tidelands. Thereafter, the question of title was resolved by a consent judgment filed June 1, 1972, which, among other things, declared the beds of the two creeks to be owned by the State as riparian lands of the State free of any claim by O'Neill. The condemnation action was then reactivated. The condemnation commissioners subsequently appointed made an award of $165,000, from which the New Jersey Turnpike Authority appealed to the Law Division. A motion by the Authority to amend its complaint and declaration of taking to show an access easement to the remaining property of O'Neill was denied. Following a nonjury trial, the court made its award of compensation for the taking (at $20,000 an acre) and consequential damages to the remainder (in the sum of $100,960) totaling $199,660 plus interest.
On this appeal plaintiff contends in the main that the trial judge erred in allowing consequential damages and in fixing the compensation to be paid for the property taken. We agree. The beds of Blackman's and Branch creeks, riparian *449 lands owned by the State, effectively divide defendants' lands into three separated and noncontiguous parcels. Title to the beds of these creeks was never in defendants. No application was ever made by them for a conveyance of the State's rights in these riparian lands. See N.J.S.A. 12: 3-7; 12:3-10; 13:1B-13 et seq.; 13:1D-3(b). They had no right of access or ownership in these lands. There was no unity of use of the three separated and noncontiguous parcels. There was no functional relationship between them. They were separate, independent parcels. In the circumstances there was no lawful basis for an award of consequential damages. See 4A Nichols on Eminent Domain (rev. 3 ed. 1974), §§ 14.3, 14.31[1]; 29A C.J.S., Eminent Domain, § 140 at 592; 1 Orgel, Valuation Under The Law of Eminent Domain (2 ed. 1953), § 47 at 228-232; Bergen Neck Ry. Co. v. Point Breeze Ferry Co., 57 N.J.L. 163 (E. & A. 1894); Annotation, "Unity or contiguity of properties essential to allowance of damages in eminent domain proceedings on account of remaining property," 6 A.L.R.2d 1197, §§ 11-14 at 1219-1226. It is clear that the property actually taken did not constitute "an integral and inseparable part of a single use to which the land taken and other adjoining land" was put. State v. Elizabeth Bd. of Ed., 116 N.J. Super. 305, 315 (Law Div. 1971). And see, Public Service Elec. & Gas Co. v. Oldwick Farms, Inc., 125 N.J. Super. 31, 37 (App. Div. 1973), certif. den. 64 N.J. 153 (1973).
It is well settled that when the whole or a part of a particular tract of land is taken for public use, the owner of such land is not entitled to compensation for injury to other separate and independent parcels belonging to him which result from the taking. [4A Nichols on Eminent Domain (rev. 3 ed. 1974), § 14.3 at XX-XXX-XX-XXX]
In their "Counter-Statement of Facts" contained in their brief submitted on this appeal, defendants, referring to the respective positions of the parties in the trial court on the issue of consequential damages, say that
*450 On the question of consequential damages to the 9.4758 acre remainder, there was a significant difference of opinion between the parties. The Authority contended that the remainder was comprised of three separate parcels of land with, by far, the largest parcel (some 8.6738 acres) being "noncontiguous" to the condemned property as a result of the State judicially determined ownership of the bed of Blackman's Creek which is situated between the area of the taking and the major portion of the remainder. Based upon this view, the Authority's appraiser opined that there was virtually no damage to the remainder.
* * * * * * * *
It was O'Neill's position that the State's riparian title to the bed of Blackman's and Branch Creeks did not create separate parcels since O'Neill had a statutory preemptive right as upland owner to routinely obtain title to the beds of those creeks from the State as of the taking date. Based upon this analysis, defendant's appraiser testified that the landlocked remainder had a value of $12,000.00 per acre on the date of taking and was damaged to the extent of 90% by the taking.
Defendants argue:
As is indicated by the Boswell map of the premises (Da inside back cover), that portion of the remainder which is in dispute lies to the east of Blackman's Creek while the land involved in the taking lies to the west of that creek. It is evident, therefore, that a strip of land judicially determined to be owned by the State in 1967 lies between the area of the taking and that which has been judicially held to constitute O'Neill's remainder. Such intervening ownership and lack of unitary use, the Authority contends, resolves the ultimate question of consequential damages adversely to the condemnee. However, in reaching this conclusion, the Authority has chosen to ignore the fact that O'Neill was denied the statutory option to routinely acquire title to the creek beds from the State as of the 1967 taking date. As the State's representative, Johnson, testified, had O'Neill applied for a grant of title to the creek beds in 1967, such grant would have been routinely issued.
Accepting defendants' thesis, the trial court premised its award of consequential damages upon the assumption "that the defendant could have acquired title to the creek beds from the State for $1,000 per acre, or a total of $1,440."
The error in the trial court's assumption and the lack of merit in defendants' contention is that both are grounded *451 on pure speculation. As pointed out in LeCompte v. State, 65 N.J. 447 (1974):
No one disputes the proposition that tidal lands, lying between mean high and low water marks, are owned by the State, to the extent they have not been validly conveyed to others. Bailey v. Driscoll, 19 N.J. 363, 367 (1955); Ross v. Mayor, etc., of Borough of Edgewater, 115 N.J.L. 477, 483 (Sup. Ct. 1934), aff'd 116 N.J.L. 447 (E. & A. 1936), cert. den. 299 U.S. 543, 57 S.Ct. 37, 81 L.Ed. 400 (1936); Schultz v. Wilson, 44 N.J. Super. 591, 596 (App. Div. 1957), certif. den. 24 N.J. 546 (1957). As the holder of such title the State possesses all attributes of ownership, including the right, subject to the demands of the public trust doctrine, to grant or alien the lands so held. In large measure the responsibility of overseeing and controlling tidelands has been allocated by the Legislature to the Department of Environmental Protection. Within that Department the Natural Resource Council has been empowered to negotiate leases and conveyances on behalf of the State. N.J.S.A. 12:3-7; 12:3-10; 13:1B-13; 13:1D-3(b). The Council is given the right to fix such price or compensation as it shall see fit as consideration for any such lease or conveyance. Id.
* * * * * * * *
Finally, it is important to bear in mind that the State is under no obligation to convey riparian lands when requested to do so, but may, if it sees fit, simply continue to retain title. [at 450-451; emphasis supplied]
Defendant's right under N.J.S.A. 12:3-10 to apply for a conveyance to them of title to the creek beds can, therefore, in no way be equated with what they conceive is a "statutory option to routinely acquire" such title from the State. There was clearly no showing by defendants that at the time of the taking in July 1967 there was a reasonable probability that they would acquire ownership of the creek beds in the reasonably near future. See N.J. Turnpike Authority v. Bowley, 27 N.J. 549, 555-556 (1958), cert. den. 358 U.S. 927, 79 S.Ct. 312, 3 L.Ed.2d 301 (1959); State v. Gorga, 26 N.J. 113 (1958). In the factual situation of the case no such showing could be made. As it turned out, at the time of trial, which was more than six years after the taking, defendants had still not even applied for a riparian grant from the State. N.J.S.A. 12:3-7; 12:3-10; 13:1B-13 et seq.; 13:1D-3 (b).
*452 Accordingly, the award of consequential damages cannot stand and is, in its entirety, vacated. The remaining component of the judgment appealed from, i.e., the award of compensation for the parcel actually taken, is set aside. The proper valuation of that parcel is to be determined following a new trial, on that issue only, at which the proof is to be limited "to the value of the land as of the control date, i.e., the date of taking, in the condition of the land at that time and to the uses to which it is naturally adapted and restricted." Port of N.Y. Authority v. Howell, 59 N.J. Super. 343, 347 (Law Div. 1960), aff'd 68 N.J. Super. 559 (App. Div. 1961), certif. den. 36 N.J. 144 (1961). See also, State v. Mehlman, 118 N.J. Super. 587 (App. Div. 1972).
In his testimony as a real estate expert on behalf of defendants, Sanford Krasner emphasized that his appraisal "does not take into consideration in any fashion any possibility that the State owns the two creeks"; and that his "assumption" was "that there was no ownership by the State, or if there was ownership by the State this was contiguous use." His valuation of the parcel taken as an integral part of the overall holdings of defendants in the area ignores the actual condition of the land and is without substance. The trial judge's reliance upon that valuation in fixing the compensation to be paid for the property actually taken invalidates that portion of its judgment. On the new trial which is ordered, the parcel taken is to be valued as a separate, independent parcel, and not as an integral part of the remaining parcels in defendants' ownership.
The judgment under review is reversed and the case is remanded to the Law Division for further proceedings consistent with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920337/ | 461 Pa. 653 (1975)
337 A.2d 592
In re ESTATE of Gertrude FICKERT, Deceased. Appeal of Joseph J. LORD et ux.
Supreme Court of Pennsylvania.
Argued January 14, 1975.
Decided May 13, 1975.
*654 *655 Anthony C. Falvello, Michael J. Hudacek, Plymouth, Conrad A. Falvello, Falvello, Ustynoski, Giuliani & Bernstein, Hazleton, for appellants.
Harry R. Hiscox, Rosenn, Jenkins & Greenwald, Wilkes-Barre, for appellee, Walter Platt Smith, III.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY and MANDERINO, JJ.
OPINION OF THE COURT
ROBERTS, Justice.
This is an appeal from a decree holding certain portions of a will invalid on the ground that those portions had been procured by the use of undue influence.[1] Appellant claims 1) that certain instructions given to the advisory jury were erroneous and confusing and 2) that the evidence is insufficient to support the finding of undue influence. We affirm.
We are unsure that erroneous jury instructions could ever be a basis for reversal in this type of case. Section 777 of the Probate, Estates & Fiduciaries Code, 20 Pa.C. *656 S. § 777 (Special Pamphlet, 1972), provides, in pertinent part:
"(c) When a contest shall arise concerning the validity of a writing alleged to be testamentary, or concerning any matter other [not covered by certain provisions not relevant here], the orphans' court division in its discretion . . ., may impanel a jury to decide any question of fact, but the verdict of the jury shall be advisory only."
The statute confers no right to jury trial and the jury verdict is only advisory. Consequently, it is doubtful that any error in instructing the jury would ever be prejudicial error. Appellant offers no authority for the proposition that a reversal can be predicated on such an error and our own research has discovered none. However, we need not decide this point to dispose of this case.
Appellant contends that part of the charge was confusing and erroneously instructed the jury on the burden of proof.[2] However, appellant's objection was *657 not timely presented to the orphans' court. Exceptions to the charge must be presented before the jury retires. Pa.R.Civ.P. 227(b), 12 P.S. Appendix. Of the three points for charge relied upon by appellant as presenting his claim to the orphans' court, two related to testamentary capacity, an issue resolved favorably to appellant below and not before this Court. The third read: "Testimony which reveals nothing but the existence of suspicion or conjecture of undue influence does not constitute probative fact." Clearly this does not raise the issue which appellant now seeks to present. Consequently, this claim is waived. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Dinio v. Goshorn, 437 Pa. 224, 228, 270 A.2d 203, 205-06 (1970).
Appellant also contends that the evidence was insufficient to support the finding that the portions of the will benefiting him were procured by undue influence. Appellee (the contestant) offered no direct evidence of undue influence, but rather sought to use indirect evidence to raise a presumption of undue influence and thereby shift the burden of proof on this issue to appellant (the proponent of the will). In Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975), we recently clarified the requirements for raising such a presumption. There we held that the contestant must establish by clear and convincing evidence that 1) when the will was executed the testator was of weakened intellect, and 2) that a person in a confidential relationship with the testator 3) receives a substantial benefit under the will. Id. at 57, 334 A.2d at 632 (opinion of Jones, C.J., announcing the judgment) & id. at 67, 334 A.2d at 635 (concurring opinion by Roberts, J., joined by Pomeroy, Nix & Manderino, JJ.). Appellant contends that the evidence was insufficient to raise the presumption.
"In passing upon the issues of testamentary capacity and undue influence our scope of review is limited and *658 restricted. The findings of fact of a chancellor, approved by the court en banc, are controlling provided such findings are based upon legally competent and sufficient evidence and our scope of review is to determine whether the findings of fact are supported by sufficient evidence and whether the court below committed an error of law or abused its discretion.. . . Moreover, in reviewing the proceedings in the court below, we do not pass upon or determine the credibility of the witnesses; that is a matter for the chancellor, not for this Court . . .."
Abrams Will, 419 Pa. 92, 101, 213 A.2d 638, 643 (1965); Holtz Will, 422 Pa. 540, 547, 222 A.2d 885, 889 (1966); Dettra Will, 415 Pa. 197, 201, 202 A.2d 827, 830 (1964). We must therefore view the record in the light most favorable to appellee.
While there are sharp conflicts in the testimony, this does not preclude a finding by the orphans' court that contestant has met his burden of producing clear and convincing evidence. In La Rocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963), we defined clear and convincing evidence as follows:
"[T]he witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty, and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. . . . It is not necessary that the evidence be uncontradicted . . ., provided it `carries a clear conviction to the mind'. . . or carries `a clear conviction of its truth. . ..'"
Accord, Thomas v. Seaman, 451 Pa. 347, 351, 304 A.2d 134, 137 (1973); Broida v. Travelers Insurance Co., 316 Pa. 444, 448, 175 A. 492, 494 (1934).
*659 We have examined the record in light of these standards and conclude that there was ample evidence to support the findings of the chancellor that the evidence raised a presumption of undue influence which appellant failed to rebut.
Decree affirmed. Each party pay own costs.
NIX, J., did not participate in the consideration or decision of this case.
NOTES
[1] Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, § 202(2), 17 P.S. § 211.202(2) (Supp. 1974) is the source of our jurisdiction.
[2] The challenged portion of the charge read as follows:
". . . If at that time you would find that Gertrude Fickert suffered from a weakened mind and that Joseph J. Lord was instrumental in procuring the execution of the Fickert Will on October 1, 1969, then it's up to you to determine that the burden of proving the Will of October 1, 1969, was executed free from any other influence. In other words, the burden at that time shifts to the other side. Am I confusing you. What I am saying here is if you believe that Gertrude Fickert was suffering from a weakness of the mind on October 1, 1969, and at that time that Joseph J. Lord was instrumental in procuring the execution of this will, then you will have to judge whether that burden has been overcome by the Proponents in this case. Mr. Hudacek is representing the Proponents and the Contestants are represented by Mr. Hiscox. Is there any questions that you would like to ask me?
"By a Juror: When you say that the burden lies with the proponent, would you explain that portion of it?
"By the Court: When I say that, I mean the burden of proof from their witnesses or from any of the other witnesses. Their burden is to prove that that is not so. That there was not undue influence." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920252/ | 461 Pa. 577 (1975)
337 A.2d 554
COMMONWEALTH of Pennsylvania
v.
Eldimiro COLON, Appellant (two cases).
Supreme Court of Pennsylvania.
Submitted November 27, 1974.
Decided May 13, 1975.
*578 *579 Eugene John Lewis, Lewis & Granoff, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Jr., Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION
ROBERTS, Justice.
Appellant Eldimiro Colon was tried before a jury and found guilty of murder in the first degree, burglary, and aggravated robbery. Post-verdict motions were filed and denied. The court sentenced appellant to serve a term of life imprisonment for the murder conviction. The court also sentenced him to serve concurrent terms of ten to twenty years imprisonment for the burglary and the aggravated robbery convictions, both to be served concurrently with the life sentence. This appeal ensued.[1]
In this appeal, appellant raises a single issue: whether the trial court improperly excluded from evidence the confession of one Jose Hernandez in which Hernandez admitted killing the victim while acting alone. Although appellant concedes that Hernandez's statement is hearsay, he argues that it was a declaration against penal interest and therefore admissible. See Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974). See also Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). We conclude that the relevant portions of Hernandez's confession were not contrary *580 to Hernandez's penal interest and were therefore inadmissible hearsay and affirm.
On April 17, 1972, the corpse of Michael Kochmanowicz, age 91, was discovered on his living room floor. Examination of the scene revealed that Kochmanowicz had been murdered in the course of a burglary.
The following day the police arrested Jose Hernandez. After a period of interrogation, Hernandez gave the police a formal statement in which he admitted murdering Mr. Kochmanowicz and burglarizing his home. At the end of his statement, Hernandez stated in response to a police question:
"I was alone. I went there alone and came out alone."
On May 7, 1972, the police arrested appellant. After interrogation, appellant also confessed to the murder and burglary. The account given by appellant was virtually identical to Hernandez's. However, appellant's statement maintains that Hernandez and he had acted in concert.
At trial, the Commonwealth proceeded on the theory that both appellant and Hernandez were responsible for the murder. To establish this theory, the Commonwealth introduced into evidence appellant's confession and the testimony of an alcoholic shopkeeper who testified that he overheard appellant discussing the murder with Hernandez.
Appellant's defense strategy was to establish that Hernandez had acted alone. Appellant took the stand and testified that he had been coerced into signing a statement prepared by the police. The defense called Hernandez and questioned him about the murder and his confession. Hernandez, however, asserted his constitutional privilege against self-incrimination and would answer no questions. At the end of the presentation of evidence appellant moved that Hernandez's confession be admitted into evidence. Pursuant to a ruling obtained earlier in *581 the trial, the motion was denied on the ground that the statement was inadmissible hearsay. Appellant now contends that this ruling was error and that, had this statement been admitted, his theory that Hernandez acted alone would have seemed more plausible to the jury.
The Court recently addressed the issue of the admissibility of declarations against penal interest in Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974). Although the Court unanimously agreed that such declarations should be admissible in some circumstances, there was no majority view as to the rationale for or the conditions of admissibility.
A plurality of the Court (Mr. Chief Justice Jones, Mr. Justice Pomeroy, and this writer) in a concurring opinion, id. at ___, 324 A.2d at 347, concluded that there was no logical ground upon which declarations against penal interest could be distinguished from declarations against pecuniary and proprietary interest. The plurality recognized that declarations against interest are admissible as an exception to the hearsay rule because their trustworthiness is safeguarded by the improbability that a declarant would fabricate a statement which is contrary to his own interests. It resolved that this rationale was equally applicable whether the interest involved was pecuniary, proprietary, or penal.
"A statement that subjected the declarant to possible criminal sanctions could hardly be considered anything but against interest. The limitation of the exception to declarations against pecuniary and proprietary interests is grounded in the belief that they are less likely to be motivated by extraneous considerations and provide less inducement to perjury. This reasoning is unsound. If the object of the present lawsuit were a $100,000,000 judgment, can one doubt that there would be any less incentive to swear falsely? Viewing the materialistic limitation from a different *582 perspective, the New York Court of Appeals stated:
`[T]he distinction which would authorize a court to receive proof that a man admitted he never had title to an Elgin watch, but not to receive proof that he had admitted striking Jones over the head with a club, assuming equal relevancy of both statements, does not readily withstand analysis.' People v. Brown, 26 N.Y.2d 88, 91, 308 N.Y.S.2d 825, 827, 257 N.E.2d 16, 17 (1970)."[2]
Commonwealth v. Nash, supra, at 308, 324 A.2d at 349. The plurality also noted that no Pennsylvania precedent held that declarations against penal interest should be treated differently from declarations against pecuniary interest.[3] Therefore it concluded that declarations *583 against penal interest are admissible on the same basis as statements against pecuniary and proprietary interests.[4] Thus, if the proponent can show that the declaration states facts that were against the declarant's penal interest at the time they were made and the declarant is unavailable at the time of trial, the declaration is not made inadmissible under the hearsay rule. Id. at ___ n. 4, 324 A.2d at 318 n. 4.[4a]
In the present case, Hernandez, having availed himself of the constitutional privilege against self-incrimination, was an unavailable witness. See McCormick's Handbook of the Law of Evidence § 280 (2d ed. E. Cleary 1971); 5 J. Wigmore, supra § 1409. Therefore, the sole question is whether the facts contained in his statement were against his penal interest.
Hernandez's confession to the police was clearly against his penal interest. However, this does not resolve the controversy for as Wigmore states:
"It must be remembered that it is not merely the statement that must be against interest, but the fact stated. *584 It is because the fact is against interest that the open and deliberate mention of it is likely to be true. Hence the question whether the statement of the fact could create a liability is beside the mark."
Wigmore, supra § 1462, at 337 (footnote omitted, emphasis in original).
We conclude that the fact stated in that portion of Hernandez's confession which exculpated any possible accomplices was not against interest and hence that portion was inadmissible. By telling the police that he acted alone, Hernandez admitted no additional crime, subjected himself to no additional punishment. Since it was not contrary to Hernandez's interest to assert he acted alone, the portion of the statement in which he claimed to have acted alone does not have the safeguards of trustworthiness attributed to a statement truly against interest. On this basis, the trial court's decision was correct as to this part of the statement.
This result is in accord with cases decided in the federal courts. In United States v. Seyfried, 435 F.2d 696 (7th Cir. 1970), cert. denied, 402 U.S. 912, 91 S. Ct. 1393, 28 L. Ed. 2d 654 (1971), the appellant was accused of being the driver of the getaway car in a bank robbery. At his trial the accused sought to place into evidence a portion of the confession of another indicted for the robbery. This confession stated, inter alia, "No other person had knowledge of or participated in the above described robbery." The Seventh Circuit held that this statement "exonerating any possible accomplices did not subject the declarant to any additional charges or more severe punishment and in no way could be considered to adversely affect his penal interest." Id. at 697-98. The court therefore ruled that refusal to admit the quoted part of the statement was not error.
In United States v. Marquez, 462 F.2d 893 (2d Cir. 1972), the appellant was accused of selling and possessing *585 cocaine and of conspiring to sell and possess cocaine. The appellant contended that an out-of-court statement of a co-defendant, in which he stated, "Cocaine mine. Other guys have nothing to do with it. Got cocaine yesterday. Don't know who I got it from," was a declaration against interest and hence admissible. The Court of Appeals ruled that the portion of the statement exculpating the appellant was not against penal interests. The court said:
"This declaration did not admit an additional crime or subject [the declarant] to more serious charges or more severe punishment. [The declarant] merely sought to exculpate his friends, and the statement therefore lacks the inherent reliability which justifies the declaration against interest exception to the hearsay rule. See United States v. Seyfried, 435 F.2d 696, 697-98 (7th Cir. 1970), cert. denied, 402 U.S. 912, 91 S. Ct. 1393, 28 L. Ed. 2d 654 (1971)."
Id. at 895. See United States v. McKee, 462 F.2d 275 (2d Cir. 1972).
The only remaining question is whether the remainder of the statement, which clearly states facts contrary to interest, was admissible. See McCormick, supra § 677. We conclude that it was inadmissible because not relevant.[5]
Throughout appellant's trial, it was the Commonwealth's theory that Hernandez and appellant had acted together in committing the crime. Thus Hernandez's statement admitting his role in the crime was not inconsistent with the Commonwealth's theory of the crime. As such, his confession did not meet the test of relevancy because it would not tend to make the inference that Colon did not participate in the crime more likely. McCormick, *586 supra § 185. We therefore conclude that there was no error in the court's refusal to admit the confession.
Judgments of sentence affirmed.
EAGEN, O'BRIEN and NIX, JJ., concur in the result.
POMEROY, J., filed a concurring opinion.
POMEROY, Justice (concurring).
I agree that the trial court acted correctly in not admitting into evidence the confession of Jose Hernandez. I come to this conclusion, however, because at his separate trial for the murder of Michael Kochmanowicz (the same victim for whose murder Colon was tried), Hernandez repudiated his statement under oath. He charged that he was coerced into giving the statement because the police had beaten him. I agree with Mr. Justice Roberts in his statement that the plurality opinion in Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974), which I joined, "recognized that declarations against interest are admissible as an exception to the hearsay rule because their trustworthiness is safeguarded by the improbability that a declaration would fabricate a statement which is contrary to his own interests." Here, however, the element of improbability has been undercut by the fact that the declarant himself has denied the truth of his prior declaration in sworn testimony.[*] The presumed trustworthiness which forms the basis of the hearsay exception is therefore lacking, and the statement was properly excluded.
In view of this approach to the case at bar I do not reach the question addressed by Mr. Justice Roberts as *587 to whether statements against penal interest are "divisible" for the purpose of determining their admissibility. See V J. Wigmore, Evidence § 1465 (1974).
NOTES
[1] Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 202(1), 17 P.S. § 211.202(1) (Supp. 1974).
[2] only practical consequences of this unreasoning limitation [on the admissibility of declarations against penal interest] are shocking to the sense of justice; for, in its commonest application it requires, in a criminal trial, the rejection of a confession, however well authenticated, of a person deceased or insane or fled from the jurisdiction (and therefore quite unavailable) who has avowed himself to be the true culprit. The absurdity and wrong of rejecting indiscriminately all such evidence is patent . . ..
.......
"It is therefore not too late to retrace our steps, and to discard this barbarous doctrine, which would refuse to let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written confession, made on the very gallows, by the true culprit now beyond the reach of justice. Those who watched (in 1899) with self-righteous indignation the course of proceedings in Captain Dreyfus' trial should remember that, if that trial had occurred in our own courts, the spectacle would have been no less shameful if we, following our own supposed precedents, had refused to admit what the French Court never for a moment hesitated to admit, the authenticated confession of the absconded Major Esterhazy, avowing himself the guilty author of the treason there charged, and now known beyond a doubt to have been the real traitor."
5 J. Wigmore, Evidence § 1477, at 289-90 (Chadbourn rev. 1974) (footnotes omitted).
[3] Nash, supra, at 304, 324 A.2d at 347 (footnote omitted):
"The cases usually relied upon as authority for the proposition that a declaration against penal interest is inadmissible are Commonwealth v. Somershoe, 217 Pa.Super. 156, 269 A.2d 149 (1970); Commonwealth v. Honigman, 216 Pa.Super. 303, 264 A.2d 424 (1970); Commonwealth v. Antonini, 165 Pa.Super. 501, 69 A.2d 436 (1949). Cf. S. Feldman, Pennsylvania Trial Guide § 7.56 (rev. ed. 1973). Both Somershoe and Honigman were simply per curiam opinionless affirmances. Thus, no ratio decidendi can be extracted from these decisions. Antonini can be easily distinguished because there the declaration, a suicide note by a decedent, was offered to inculpate the accused and therefore its introduction would violate the confrontation clause. More recently, the Superior Court has permitted declarations against penal interest, in certain circumstances, to be admitted into evidence. Commonwealth v. Hackett, 225 Pa.Super. 22, 307 A.2d 334 (1973)."
[4] But see Federal Rules of Evidence, Pub.L. 93-595, Rule 804(b)(3) (Jan. 2, 1975), 16 Crim.L.Rptr. 3009 (Jan. 15, 1975).
[4a] Mr. Justice Pomeroy notes in his concurring opinion that he agrees that declarations against penal interests are admissible as exceptions to the hearsay rule. Thus a majority of this Court is in agreement as to this principle, although not as to its application in this case.
[5] We may, of course, affirm a ruling of a court below if it is correct on any ground. See, e.g., Commonwealth v. Dancer, 460 Pa. 95, 101 n. 5, 331 A.2d 435, 438 n. 5.
[*] Unless previously excluded at a suppression hearing, this disclaimer by Hernandez and his charge of physical coercion by the police would not serve to keep the statement out of evidence in his own trial, but would go to its weight. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/98340/ | 236 U.S. 58 (1915)
REYNOLDS
v.
FEWELL.
No. 102.
Supreme Court of United States.
Argued December 7, 8, 1914.
Decided January 18, 1915.
ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA.
*59 Mr. William R. Lawrence and Mr. F.W. Clements for plaintiff in error.
Mr. Joseph C. Stone, with whom Mr. Henry B. Martin was on the brief, for defendant in error.
MR. JUSTICE HUGHES delivered the opinion of the court.
The defendant in error brought this action to recover certain lands which had been allotted under the Original Creek Agreement (act of March 1, 1901, c. 676; 31 Stat. 861; 32 Stat. 1971). The allotments described in the complaint had been made on behalf of two deceased Creeks, Minnie Solander and her infant daughter, Hettie L. Solander, that is, the respective allotments ran to the `heirs' of each. The defendant in error claimed under a lease, executed on September 7, 1905, by George A. Solander, the surviving husband of Minnie Solander and father of the other decedent. At the time of the death of his wife and daughter, as for some years previously, George A. Solander `resided in the Creek Nation,' but he was not a citizen of that Nation. The plaintiff in error claimed under a conveyance from Phoebe B. Trusler, an enrolled Creek, who as the sister of Minnie Solander was the nearest relative of Indian blood. The question was whether George A. Solander was entitled to take as `heir,' despite *60 the fact that he was not a Creek citizen. It was answered by the state court in the affirmative. 34 Oklahoma, 112; 124 Pac. Rep. 623.
While the complaint embraced a portion of the lands allotted on behalf of Minnie Solander, as well as lands allotted on behalf of Hettie L. Solander, it appears from the record that the judgment related exclusively to the latter. According to the agreed statement of facts, Hettie L. Solander was born on February 22, 1899, and died on November 17, 1899, before receiving her allotment and leaving her father and aunt surviving. She was entitled to be enrolled, and was enrolled, as a member of the tribe, and the allotment on her behalf was made to her `heirs,' without further description, on December 4, 1901, under the second paragraph of § 28 of the act of 1901, supra, and the tribal deed was thereafter executed accordingly. Section 28 is as follows:
"No person, except as herein provided, shall be added to the rolls of citizenship of said tribe after the date of this agreement, and no person whomsoever shall be added to said rolls after the ratification of this agreement.
"All citizens who were living on the first day of April, eighteen hundred and ninety-nine, entitled to be enrolled under section twenty-one of the Act of Congress approved June twenty-eighth, eighteen hundred and ninety-eight, entitled `An Act for the protection of the people of the Indian Territory, and for other purposes,' shall be placed upon the rolls to be made by said commission under said Act of Congress, and if any such citizen has died since that time, or may hereafter die, before receiving his allotment of lands and distributive share of all the funds of the tribe, the lands and money to which he would be entitled, if living, shall descend to his heirs according to the laws of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly.
"All children born to citizens so entitled to enrollment, *61 up to and including the first day of July, nineteen hundred, and then living, shall be placed on the rolls made by said commission; and if any such child die after said date, the lands and moneys to which it would be entitled, if living, shall descend to its heirs according to the laws of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly.
"The rolls so made by said commission, when approved by the Secretary of the Interior, shall be the final rolls of citizenship of said tribe, upon which the allotment of all lands and the distribution of all moneys and other property of the tribe shall be made, and to no other persons."
We are thus referred to the `laws of descent and distribution of the Creek nation' to ascertain the persons entitled to the property. This explicit and determinative reference disposes of the contention that George A. Solander, although he might be an `heir' under the Creek laws, nevertheless could not take the lands in controversy because being a non-citizen he was not entitled to the allotment of a distributive share of the tribal lands in his own right. It is sought to find support for this contention in the concluding paragraph of § 28, above quoted, which provides that the approved rolls shall be the final rolls of citizenship, upon which `allotment of all lands . . . shall be made, and to no other persons.' But this paragraph should be read in the light of § 3 of the act of 1901, supra, under which all lands were to be allotted `among the citizens of the tribe' so as `to give each an equal share of the whole in value, as nearly as may be.' The persons who were to receive these equal portions were those duly ascertained and enrolled, and the rolls approved by the Secretary of the Interior were to be final with respect to membership in the tribe and the corresponding determination of the distributive shares of the tribal lands. Thus, the provision of the last paragraph of § 28 had manifest regard to those who were to receive allotments if living, *62 and to those on whose behalf allotments were to be made if they had died. In the latter case, the allotment of the distributive share which would have gone to the enrolled citizen, if living, was to go to his `heirs.' One who took as such `heir' would be none the less entitled because he might have in addition an allotment in his own right as a member of the tribe; that would not be a disturbance of the principle of equality in distribution which was so emphatically laid down. Nor, on the other hand, would one be excluded from taking, if he were a described `heir,' by reason of the fact that he could not himself have received a distributive share as an enrolled citizen. The right of such `heir' to take would not be determined by reference to his status as a citizen or non-citizen, or by his right to a distributive share of the tribal lands as one enrolled, but by the status of the decedent and the fact that he was an `heir' of the decedent within the statutory definition.
We have recently had occasion to review the course of legislation with respect to the distribution of the property of Creek intestates. Washington v. Miller, 235 U.S. 422; Sizemore v. Brady, 235 U.S. 441. The Creek nation, as a `distinct political society' (Cherokee Nation v. Georgia, 5 Pet. 1, 16) had its own laws governing the devolution of the property of its citizens. When Congress put in force in the Indian Territory certain general laws of Arkansas, including Chapter 49 of Mansfield's Digest relating to descents and distributions, it provided that `the judicial tribunals of the Indian nations' should retain exclusive jurisdiction in all cases in which members of the nation should be the only parties and that to such cases the laws of Arkansas should not apply. Act of May 2, 1890, c. 182, §§ 30, 31; 26 Stat. 81, 94, 95. In 1897, however, it was provided that the laws of the United States and of the State of Arkansas in force in the Indian Territory should `apply to all persons therein, irrespective of race' (Act of June 7, 1897, c. 3; 30 Stat. 62, 83); and, in 1898, Congress *63 abolished the tribal courts and prohibited the enforcement of the tribal laws. Act of June 28, 1898, c. 517, §§ 26, 28; 30 Stat. 495, 504. The Original Creek Agreement of 1901, supra, operated again to make effective, for the purposes stated, the Creek tribal laws with respect to `descent and distribution' of the property of Creek intestates (see §§ 7 and 28), and the provisions having this import remained in force until their repeal in the following year. Act of May 27, 1902, c. 888; 32 Stat. 245, 258, 742; Supplemental Agreement, Act of June 30, 1902, c. 1323, § 6; 32 Stat. 500, 501.
The Creek laws thus made controlling are set forth in the agreed statement as follows:
"SEC. 6. Be it further enacted, that if any person die without a will, having property and children, the property shall be equally divided among the children by disinterested persons; and in all cases where there are no children, the nearest relation shall inherit the property. Laws of Muscogee Nation, 1880, p. 132.
"SEC. 8. The lawful or acknowledged wife of a deceased husband shall be entitled to one half of the estate, if there are no other heirs and an heir's part, if there should be other heirs, in all cases where there is no will. The husband surviving shall inherit of a deceased wife in like manner. Laws of Muscogee Nation, 1880, p. 60.
"SEC. 1. All non-citizens, not previously adopted, and being married to citizens of this nation, or having children entitled to citizenship, shall have a right to live in this nation and enjoy all the privileges enjoyed by other citizens, except participation in the annuities and final participation in the lands. Laws of the Muscogee Nation, 1890, p. 60."
See Perryman's Compiled Creek Laws of 1890; § 6 p. 32; § 8, p. 76; § 1, p. 66; Bledsoe's Indian Land Laws, 2d ed., §§ 829-831.
It will be observed that §§ 6 and 8 make no distinction between citizens and non-citizens. Under § 8, it is `the *64 lawful or acknowledged wife,' or `husband,' that is entitled to take. If a non-citizen within this description was to have `an heir's part,' there would seem to be no reason for construing § 6 so as to exclude a non-citizen father of a deceased citizen, when the father is the `nearest relation.' And it is contended by the defendant in error that the provision of § 1, above quoted, only debarred the non-citizen husband, or non-citizen father, from taking a membership interest in the tribal property, that is, from being counted as one of the units in the final distribution of the tribal lands, and did not deprive him of the right to take the part of an heir or next of kin in whatever property had come to be owned individually by the deceased wife or child.
While the agreed statement asserts that the laws above quoted are the `only' Creek statutes `in relation to descent and distribution' at the time in question, the plaintiff in error insists that we should take judicial notice of numerous other provisions of the Creek laws which it is urged must control. Thus we are referred taking those statutes which are most nearly in point to §§ 299 and 300 of McKellop's Compilation (1893) of Creek Laws to the effect that `no non-citizens shall, on account of marriage with a citizen of this Nation, acquire any right pertaining or belonging to a citizen of this Nation' and that `no non-citizen shall have the right to reside in or to own any improvement in this Nation, except as provided for in the treaties between this Nation and the United States'; and also to § 108 (McKellop's Comp., 1900), apparently approved October 30, 1894, that `no non-citizen shall be permitted to own houses or fences of any kind within the Nation, or any interest therein' and that `any purchase, grant, lease or other conveyance of lands of the Muskogee Nation, or title or claim thereto given by any citizen or person claiming to be a citizen, contrary to § 2116 of the United States Intercourse Laws' shall be void.
*65 It is not certain that any of these last-mentioned provisions was intended to apply to the succession of a husband or father in case of intestacy. On the other hand, the acquisition of property rights within the Nation by an intermarried person, although a non-citizen, was distinctly recognized by the Creek Act of April 6, 1894 (McKellop's Comp., 1900, §§ 76, 77), relating to the jurisdiction of the tribal courts. This act provided:
"SEC. 76. The courts of this Nation shall have and exercise jurisdiction over all controversies arising out of or pertaining to property rights acquired in this Nation, and situated in the same, by non-citizens who have intermarried with citizens of this Nation and by reason of such marriage secured rights and privileges in this Nation under which such property was acquired and accumulated by them. The jurisdiction of our courts shall extend to controversies over property and property rights acquired by intermarried non-citizens of our Nation who, by virtue of this intermarriage with citizens, acquired such property rights and privileges, and that irrespective of whether such controversies are between non-citizens and citizens of the Muskogee Nation or between any persons whomsoever, who claim in this Nation property rights under and through such intermarried non-citizens which are by them acquired in the manner aforesaid; and all persons hereafter intermarrying with citizens of this Nation shall thereby be deemed to consent that the courts of this Nation exercise jurisdiction over all property rights and privileges that they acquire in this Nation by virtue of their said marriage.
"SEC. 77. All property brought into this Nation by non-citizens in consequence of intermarriage of such non-citizens with citizens of this Nation shall likewise be under the jurisdiction of the courts of this Nation."
That the intermarried non-citizen could inherit under the tribal laws appears to have been the conclusion reached *66 in an unreported case (Porter v. Brook) in the United States court for the Western District of the Indian Territory, and this ruling was followed by the Supreme Court of the State of Oklahoma in the case of De Graffenreid v. Iowa Land & Trust Co., 20 Oklahoma, 687. It was held that a non-citizen husband, while, by reason of the fact of his non-membership, he was not to be counted in determining the distributive shares for the purpose of allotment to, or in the right of, enrolled members of the tribe, was entitled under the tribal laws to take an heir's part of the lands which had been allotted to his deceased citizen wife. In that case the descent was controlled by the provision of § 7 of the Original Creek Agreement that the land allotted should descend to the heirs of the allottee `according to the laws of descent and distribution of the Creek Nation,' the same expression that is used in § 28.
This decision as to the right of intermarried non-citizens to inherit has been repeatedly followed and has become a rule of property which, recognizing the importance of the security of titles, we should not disturb unless it is clearly wrong. But so far from the case being one of manifest error, it is apparent from the review of their provisions that the most that can be said is that the Creek laws were uncertain and ambiguous and that their proper construction as an original question might be regarded as doubtful. It is true, of course, as urged by the plaintiff in error, that we are not dealing with a statute of a State the meaning of which is necessarily settled by the state court, but even where we have undoubted right of review we ought not to overturn, in a case at most debatable, a local rule of construction which for years has governed transfers of property. See Nadal v. May, 233 U.S. 447, 454.
It is insisted that the Supplemental Creek Agreement of 1902 (supra), in § 6, contains an interpretation by Congress of the words used in §§ 7 and 28 of the act of 1901. But we do not so read the later statute. Its evident *67 purpose was not to interpret the reference in the act of 1901 to the Creek laws of `descent and distribution,' or to define the content and significance of such laws, but to supersede the former provision and to establish another rule. The previous provision with respect to descent and distribution according to the Creek laws was expressly repealed, and it was provided that `the descent and distribution' should be in accordance with Chapter 49 of Mansfield's Digest of the statutes of Arkansas with the proviso that Creek heirs, if there were such, should take to the exclusion of others. This was a recognition of dissatisfaction with the provision of the Original Agreement which made the Creek laws controlling, but the meaning and application of that provision in the cases governed by it was in no way affected.
We are therefore of the opinion that George A. Solander was entitled to the land which was allotted on behalf of his infant daughter and, as in the case of an allotment of this sort the restriction upon alienation was not applicable, he had the right to make the conveyance under which the defendant in error claims. Skelton v. Dill, 235 U.S. 206.
The judgment of the state court is affirmed.
Judgment affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/98341/ | 236 U.S. 68 (1915)
SHELLENBARGER
v.
FEWELL.
No. 103.
Supreme Court of United States.
Argued December 7, 8, 1914.
Decided January 18, 1915.
ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA.
Mr. William R. Lawrence and Mr. F.W. Clements for plaintiff in error.
Mr. Joseph C. Stone, with whom Mr. Henry B. Martin was on the brief, for defendant in error.
By leave of court Mr. Grant Foreman and Mr. James D. Simms filed a brief as amici curiae, in support of plaintiff in error.
MR. JUSTICE HUGHES delivered the opinion of the court.
Minnie Solander, a Creek, died intestate on October 8, 1899, leaving her husband, George Solander (who resided *69 in the Creek Nation but was not a citizen thereof), her child, Hettie L. Solander, and her sister, Phoebe Trusler, surviving. Hettie L. Solander died intestate on December 19, 1899,[1] without husband or issue; her father and aunt (above mentioned) survived her. Minnie Solander was duly enrolled as a member of the Creek tribe and, after the death of herself and her daughter, an allotment was made to her `heirs' of certain land, the title to which is here in controversy. Her husband, George Solander, on April 27, 1906, executed a conveyance of this land to William M. Fewell, who brought the present action in ejectment against the plaintiff in error, John H. Shellenbarger; the latter claimed the property under a deed from Phoebe Trusler, the nearest relative of Indian blood.
The Supreme Court of the State of Oklahoma held that the husband, although a non-citizen, had title to the lands allotted on behalf of his wife and that they passed under his conveyance. 34 Oklahoma, 79; 124 Pac. Rep. 617. And this writ of error has been sued out.
The record in this case does not show the date of the allotment made on behalf of Minnie Solander[2] but the state court concluded `from the admissions in the agreed statement of facts and the briefs of both parties' that the allotment had been selected, and the certificate issued, under the Original Creek Agreement of March 1, 1901, c. 676, 31 Stat. 861. This has also been assumed in the argument here. The case is, therefore, controlled by § 28 of the act of 1901, supra, which provides that the lands to which the deceased member of the tribe would have been entitled, if living, should `descend to his heirs according to the laws of descent and distribution of the Creek Nation, and be allotted . . . accordingly.' Under *70 these laws, according to the settled rule of construction, George Solander was entitled to the property and had the right to convey. Reynolds v. Fewell, ante, p. 58.
The question whether the persons entitled to take lands allotted under § 28 on behalf of a deceased member of the tribe, should be ascertained by reference to the time of the death of the decedent, or by reference to the date of the allotment, has been discussed in the briefs but is not material here, inasmuch as in either event George Solander took all the lands in question; it is not necessary to inquire whether an undivided interest should be treated as one passing in the first instance to his daughter and on her death to him.
Judgment affirmed.
NOTES
[1] The date of her death is given in the agreed statement in No. 102, Reynolds v. Fewell, ante, p. 58, as November 17, 1899.
[2] The date of this allotment is stated in the record in No. 102, Reynolds v. Fewell, ante, p. 58, as December 3, 1901. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/98415/ | 237 U.S. 63 (1915)
STATE OF SOUTH CAROLINA, EX REL. PHOENIX MUTUAL LIFE INSURANCE COMPANY
v.
McMASTER, AS INSURANCE COMMISSIONER OF THE STATE OF SOUTH CAROLINA.
STATE OF SOUTH CAROLINA, EX REL. SHERFESEE
v.
SAME.
No. 195, 196.
Supreme Court of United States.
Argued March 12, 1915.
Decided April 5, 1915.
ERROR TO THE SUPREME COURT OF THE STATE OF SOUTH CAROLINA.
*64 Mr. T. Moultrie Mordecai for plaintiffs in error.
Mr. F.H. Dominick for defendant in error.
*67 MR. JUSTICE DAY delivered the opinion of the court.
These cases involve the same questions, and, being practically one proceeding, may be disposed of together. They arise out of an application to the Supreme Court of the State of South Carolina for a writ of mandamus, requiring the respondent, Fitz. H. McMaster, as Insurance Commissioner of the State of South Carolina, to issue to the Phoenix Mutual Life Insurance Company, a corporation of the State of Connecticut (hereinafter called the Phoenix Company), a license to do business in South Carolina as a life insurance company for the year beginning April 1st, 1912. The Supreme Court of the State refused to issue the writ (94 S. Car. 379, 382), and the case is brought here, because of alleged deprivation of rights under the Fourteenth Amendment to the Federal Constitution.
By the act of March 8, 1910, § 13, 26 Statutes at Large (South Carolina), 774, it was provided:
"Before licensing any insurance company to do business in this State, the Insurance Commissioner shall require each such company to deposit with him an approved bond or approved securities, in the discretion of the Commissioner, as follows: Each legal reserve life insurance company, twenty thousand dollars; each fire, accident, or casualty or surety insurance company, or any company not herein specified, ten thousand dollars: Provided, That domestic industrial insurance companies shall in no case *68 be required to deposit more than the legal reserve on their policies, but not less than one thousand dollars, which said deposit may be made at the rate of five hundred dollars a year, on April 1st of each year, until the whole be deposited; each domestic mutual life insurance company doing business on a recognized table of mortality with interest assumption not higher than four per centum per annum, not less than three thousand dollars. But each such domestic company shall keep on deposit with the Insurance Commissioner at all times, not less than the legal reserve on all of its outstanding policies: Provided, Further, That the terms of this Section shall not apply to domestic mutual assessment companies not doing business in more than two adjoining counties. If a bond be given, it shall be conditioned to pay any judgment entered up against any such company in any court of competent jurisdiction in this State, and such judgment shall be a lien upon the bond or securities. In case a bond is given, the judgment creditor shall have the right to bring suit on said bond for the satisfaction of the judgment in the county in which the judgment is received."
Under authority of this act, the Insurance Commissioner notified insurance companies that, exercising a discretion reposed in him to require such companies to make deposits with the Insurance Commissioner or accept a surety bond, beginning April 1, 1912, companies which had not invested at least one-fourth of their reserve in South Carolina in securities named in the act of 1910, would be required to deposit South Carolina securities with the Department. From such companies no surety bond would be accepted. From companies which had invested at least one-fourth of their reserve on South Carolina policies in securities of that State, a surety bond would be accepted. The letter also stated that the Department would receive on deposit South Carolina state, county, or municipal bonds; first mortgage bonds of real estate in the State; *69 first mortgage bonds of solvent domestic corporations, whose property was situate entirely within the State; or time certificates of deposit in banks of the State.
The Phoenix Company applied for a license for the year beginning April 1, 1912, and inclosed its check for the license fee and a surety bond in the sum of $20,000. The Insurance Commissioner refused the license, and declined to issue the same unless the Phoenix Company would make a deposit with him of securities acceptable to him, in the sum of $20,000, in bonds of the State of South Carolina, of any county, state or town of the State of South Carolina, or first mortgage bonds on real estate in the State of South Carolina, or first mortgage bonds of solvent domestic corporations, whose property was situated entirely within that State, or any property situated in that State and taxable therein, or time certificates of deposit in banks of that State.
Afterwards the Commissioner notified the surety company that he would not accept a bond from the Phoenix Company unless the latter would furnish him with an affidavit showing that at least one-fourth of its reserve on South Carolina policies had been invested in the securities named in the act of 1910. The Insurance Company declined to make such affidavit, or to make such investments, on the ground that the same was not required by any law of the State of South Carolina. It is the contention of the Insurance Company that the action of the Commissioner in undertaking to exact from it as a condition of receiving a license the investment of at least one-fourth of its reserves in the securities as required by the Commissioner, and in accepting from other insurance companies, which had complied with the requirement of the Commissioner, the bond of a surety company, and issuing to them a license, was discriminatory. And the Phoenix Company particularly insisted that the action of the Commissioner in licensing the Mutual Benefit *70 Life Insurance Company of New Jersey on giving a surety company bond, without that company having invested 25 per cent. of its reserve in securities demanded by the Commissioner, discriminated against the plaintiff in error, which action, it was contended, deprived the company of its property without due process of law, and violated the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.
The Supreme Court of the State of South Carolina put its decision denying the writ on the ground that the petitioner had failed to deposit with the Insurance Commissioner any securities, or to comply with the law and the ruling of the Commissioner, and that it stood in no position to raise the question involved; and dealing with the equal protection of the law, the court held that the Commissioner, under the act of 1910, was given broad authority to examine into the safety and solvency of applicants for the privilege of doing business within the State, with reference to their dealings and the conduct of their business; that the statute gave him authority to determine whether the applicant had the necessary qualifications for doing business within the State; and that the Commissioner had the right to determine whether the particular applicant should deposit bond or securities. In this way only could the discretionary power conferred upon the Commissioner be exercised, and the court therefore concluded that there was no denial of the equal protection of the laws.
The case is presented here only in its aspect of deprivation of alleged rights secured by the Federal Constitution. We fail to see any substantial merit in the contention that the applicant has been deprived of due process of law in the exercise of the discretion given to the Commissioner to accept or reject applicants for the insurance privilege under the laws of the State, and in requiring some to give bonds and others to deposit securities, after having *71 investigated their condition and methods of doing business.
The main contention, pressed in argument, and upon which the reversal of the judgment of the Supreme Court of South Carolina is contended for, is based upon the equal protection clause of the Fourteenth Amendment, because of the alleged discriminatory action of the Commissioner in dealing with different insurance companies, and particularly with the case of the Mutual Benefit Life Insurance Company of New Jersey. An inspection of the record, however, shows a different condition of facts with reference to that company from that shown as to the Phoenix Company. While it is true that both are life insurance companies, and doubtless solvent and sound in their business methods, and while it appears that the Mutual Benefit Life Insurance Company did not have, actually invested in South Carolina securities, one-fourth of its reserve on South Carolina policies, it did have, on April 1, 1912, real estate mortgage loans in the State, duly approved, and awaiting investment, considerably in excess of one-fourth of its reserve on South Carolina policies; while the Phoenix Company, out of its reserve on South Carolina policies of $375,000, had only $10,350 of investments in the form of South Carolina securities, and did not indicate any purpose or intention of acquiring more.
Furthermore, the Phoenix Company is a foreign corporation, whose license to do business in the State of South Carolina would expire upon the first day of April, 1912, and, therefore, it was within the power of the State, so long as it did not impose upon the company as a condition of doing business within the State any deprivation of rights secured to it under the Federal Constitution, to determine for itself the conditions upon which such foreign corporation could do business within the State. This principle has been often affirmed by the decisions of this court, and the Insurance Company, being within that *72 class of companies not doing an interstate business, the State might, in the exercise of its lawful authority, exclude it from doing business within the State, so long as no rights conferred by the Constitution and laws of the United States were destroyed or abridged. See Harrison v. St. Louis & San Francisco R.R., 232 U.S. 318, 332, 333, and cases in this court therein cited.
Assuming, without deciding, that the Phoenix Company occupied such attitude in the State of South Carolina as to entitle it to claim the benefit of the equal protection clause of the Fourteenth Amendment, we are of opinion that upon this record no such facts are shown as would lead to the conclusion that the action of the Insurance Commissioner in this case amounted to a deprivation of the equal protection of the law. The state court put its decision, as we have seen, upon the ground that under the authority given in the statute to the Insurance Commissioner to license one company and reject another, the exercise of such statutory authority in good faith would not make his action in any given case obnoxious to the protection of the rule of equality prescribed by the Constitution.
The equal protection of the laws, as this court has frequently decided, means subjection to equal laws applying alike to all in the same situation, or as expressed by Mr. Justice Field, speaking for this court in Barbier v. Connolly, 113 U.S. 27, 31, a case much relied upon by the plaintiffs in error, equal protection of laws means "that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances, in the enjoyment of their personal and civil rights. . . . That no greater burdens should be laid upon any one than are laid upon others in the same calling and condition." In this general definition, the court recognizes, as it always has, that what *73 the equal protection of the law requires is equality of burdens upon those in like situation or condition. It has always been held consistent with this general requirement to permit the States to classify the subjects of legislation, and make differences of regulation where substantial differences of condition exist.
In this case, where the Insurance Commissioner was under examination concerning the differences between the treatment of the Mutual Benefit Life Insurance Company and the Phoenix Company, after speaking of the action of the Mutual Benefit Company in making large loans in the State of South Carolina, when inquired of as to whether approved loans of the Mutual Benefit Company would bring property into the State of South Carolina, against which local policy holders could enforce their claims, the Commissioner answered that it was not a question of added safety, but to have within the State of South Carolina actual things that could be levied upon in case of suit. These large loans of the Mutual Benefit Company within the State of South Carolina would not only bring property into that State, which might be reached through the local courts, but would evidence a purpose in the Company to remain in the State in a permanent way, a fact which was entitled to significance in determining the matter of licensing the Company to do business.
The Supreme Court of South Carolina has sustained the Act as giving authority, so far as the State is concerned, to the Insurance Commissioner to take the action which he did concerning the withholding of a license to the Phoenix Company and the granting of licenses to other companies, notably the Mutual Benefit Life Insurance Company of New Jersey. We are only concerned with the question whether this conduct of the state authority was so arbitrary and discriminatory in its character as to amount to a deprivation of the equal protection of the *74 laws, within the meaning of the Federal Constitution. We think the action here challenged was based upon real and substantial differences, and was not that merely arbitrary classification which this court has condemned because of the Fourteenth Amendment.
We find no error in the judgment of the Supreme Court of the State of South Carolina, and the same is
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1920468/ | 107 B.R. 143 (1989)
In re FLO-LIZER, INC., Debtor.
Bankruptcy No. C2-89-0560.
United States District Court, S.D. Ohio, E.D.
October 5, 1989.
E. James Hopple, Schottenstein, Zox & Dunn, Columbus, Ohio, for debtor.
Joanne C. Rutkowski, U.S. Dept. of Justice, Tax Div., Washington, D.C.
OPINION AND ORDER
GRAHAM, District Judge.
Appellant, The United States of America, filed this appeal from a May 18, 1989 order of the United States Bankruptcy Court sustaining the objection of debtor Flo-lizer, Inc. ("Flo-lizer") to the claim of the Internal Revenue Service ("I.R.S.") for administrative expenses.
This case originated in the United States Bankruptcy Court as a Chapter 11 bankruptcy filed by the debtor on April 30, 1986. The United States became involved in this case on behalf of the I.R.S. when the debtor objected to the administrative expense claims which the I.R.S. had filed against the bankruptcy estate. The I.R.S.'s claims were for employer withholding, Federal Insurance Contributions Act ("F.I.C.A."), and Federal Unemployment Tax Act ("F.U.T.A.") tax liability and penalties, and interest thereon. The I.R.S. limited its claims solely to those taxes, penalties, and interest which the debtor had incurred after the filing of its bankruptcy petition. On February *144 13, 1989, the debtor filed an objection to the administrative expense claims to the extent that they included interest on the post-petition taxes and penalties. On May 18, 1989, the bankruptcy court sustained the debtor's objection, holding that "interest is not allowable on such priority tax claim and that the United States of America is not entitled to an administrative claim for interest on its Section 503(b) priority claim." The United States filed a notice of appeal of the bankruptcy court's decision on June 2, 1989.
The United States seeks first priority treatment of its claim for interest as an administrative expense pursuant to 11 U.S.C. §§ 503, 507. Administrative expenses entitled to first priority treatment are defined at 11 U.S.C. § 503, which provides in pertinent part as follows:
(b) After notice and a hearing, there shall be allowed, administrative expenses, other than claims allowed under section 502(f) of this title, including
(1)(A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case;
(B) any tax
(i) incurred by the estate, except a tax of a kind specified in section 507(a)(7) of this title;
. . .; and
(C) any fine, penalty, or reduction in credit, relating to a tax of a kind specified in subparagraph (B) of this paragraph.
Id. (Emphasis added).
Although conceding that this statutory provision does not expressly address the priority status of interest on first priority taxes and penalties, The United States contends that the language of the statute is ambiguous, that pre-Bankruptcy Code law treated interest on any first priority tax and/or penalty as a first priority administrative expense, and that the legislative history of the Bankruptcy Code exhibits Congress's intent to preserve this treatment. The United States further notes that the United States Court of Appeals for the Fourth Circuit in United States v. Friendship College, Inc., 737 F.2d 430 (1984) afforded interest first priority administrative expense status. The debtor contests The United States' characterization of the statutory language and its reading of the legislative history. The debtor further notes that the Bankruptcy Appellate Panel of the United States Court of Appeals for the Ninth Circuit in In re Mark Anthony Construction, Inc., 78 B.R. 260 (1987) disallowed first priority administrative expense status to interest on first priority taxes and/or penalties.
The Court would here interject that the decision of the Bankruptcy Appellate Panel was reversed by the Ninth Circuit on September 22, 1989. In re Mark Anthony Construction, Inc., 886 F.2d 1101 (9th Cir. 1989). Whereas the bankruptcy panel held that the legislative history affirmatively evidenced Congress's intent to disallow interest, the Ninth Circuit found the legislative history to be inconclusive, and therefore, construed the statute to treat interest in the same manner as pre-Bankruptcy Code law did.
All bankruptcy cases filed before October 1, 1979 were governed by the Bankruptcy Act of 1898. Bankruptcy cases filed thereafter are governed by the Bankruptcy Code of 1978 ("Bankruptcy Code") which was enacted as part of the Bankruptcy Reform Act of 1978. The Bankruptcy Reform Act of 1978 was designed to modernize and codify the bankruptcy laws. 9 Am.Jur.2d Bankruptcy §§ 2, 4 & 5 (1980).
Recently, the Supreme Court of the United States had the opportunity to address the significance of the Bankruptcy Act of 1898 in construing a provision of the Bankruptcy Code. United States v. Ron Pair Enterprises, Inc., ___ U.S. ___, 109 S. Ct. 1026, 103 L. Ed. 2d 290 (1989). The Supreme Court recognized that the Bankruptcy Code
was intended to modernize the bankruptcy laws, and as a result made significant changes in both the substantive and procedural laws of bankruptcy. . . . In such a substantial overhaul of the system, it is not appropriate or realistic to expect Congress *145 to have explained with particularity each step it took. Rather, as long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute.
Id. 109 S.Ct. at 1030 (citations omitted). The Supreme Court made it clear that when the language of the Bankruptcy Code is unambiguous, its plain meaning is generally controlling and, in most cases, inquiry need not be made into legislative intent. However, "[t]he plain meaning of legislation should be conclusive, except in the `rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters.' In such cases, the intention of the drafters, rather than the strict language, controls." Id. (citations omitted) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S. Ct. 3245, 3250, 73 L. Ed. 2d 973 (1982)). This analysis would not be applicable when the statute being construed is ambiguous. In the case of an ambiguous statute, inquiry into legislative intent would be not only justified but necessary.
The wording of the statute in the instant case, 11 U.S.C. § 503(b), is ambiguous on its face. On this point, as well as generally, the Court is in full agreement with the Ninth Circuit's analysis in In re Mark Anthony Construction, Inc., 886 F.2d 1101. Although the statute expressly addresses the priority status of taxes and penalties in its definition of administrative expenses, it simply does not address the status of interest. Although silence alone might not warrant inquiry into legislative intent, the statute also includes an express element of ambiguity. In particular, 11 U.S.C. § 503(b) provides that "there shall be allowed, administrative expenses, other than claims allowed under section 502(f) of this title, including [actual, necessary costs and expenses of preserving the estate; taxes; fines and penalties; etc.]." The word "including" is certainly open to the interpretation that the enumeration of claims defined as administrative expenses pursuant to 11 U.S.C. § 503(b) are not exhaustive. This interpretation is bolstered by 11 U.S.C. § 102(3) which provides that, in construing Title 11, "`includes' and `including' are not limiting." Therefore, administrative expenses entitled to first priority status are not necessarily confined to those enumerated at 11 U.S.C. § 503(b). In order to determine what other claims might fall within the ambit of "administrative expenses," inquiry must be made into legislative intent. In light of this ambiguity in the statute, the debtor's reliance on Ron Pair Enterprises, Inc. for not looking beyond the face of the statute is misplaced.
Clearly established law prior to the enactment of the Bankruptcy Code held that interest was entitled to first priority status as an administrative expense even though the statutory predecessor to 11 U.S.C. § 503(b), § 64(a)(1) of the Bankruptcy Act of 1898, did not expressly include interest as an administrative expense. Nicholas v. United States, 384 U.S. 678, 686, 86 S. Ct. 1674, 1681, 16 L. Ed. 2d 853 (1966). The issue which the Court must now address is whether Congress intended to retain or change this treatment of interest when it enacted the Bankruptcy Code.
The Senate version of 11 U.S.C. § 503(b) expressly included within administrative expenses "any taxes, including interest thereon." S. 2266, 95th Cong., 2d Sess. § 503(b)(1)(B). The Report of the Senate Judiciary Committee affirmed the intention to afford interest first priority administrative expense status. S.REP. NO. 95-989, 95th Cong., 2d Sess. 66 reprinted in 1979 U.S.CODE CONG. & ADMIN.NEWS 5787, 5852. However, the House bill, after amendments by the Senate and then the House of Representatives, was the bill that was finally enacted.
The House bill, H.R. 8200, 95th Cong., 2d Sess., and committee reports did not mention interest in discussing administrative expenses. Furthermore, the House bill as enacted was not amended to expressly include interest as an administrative expense. Although the Senate bill included both interest and penalties, H.R. 8200 included neither. The House bill as enacted was amended to include penalties but remained *146 silent as to interest. This possibly suggests a compromise to include penalties but not interest.
On the other hand, the Court agrees with The United States that 11 U.S.C. § 503(b) "is derived mainly from section 64(a)(1) of the Bankruptcy Act, with some changes," H.R.REP. NO. 95-595, 95th Cong., 2d Sess. 355 reprinted in 1979 U.S.CODE CONG. & ADMIN.NEWS 5963, 6311. The House reports indicate that "[t]he major change from current law in [regard to first priority administrative expenses] is the elimination of fees for the Referees Salary and Expense Fund, which is eliminated for cases filed under the new law." Id. at 6147. Although certain changes were expressly discussed in the House reports, the treatment of interest was never mentioned. The Court would note that the absence of any mention of interest is not surprising since the statute never expressly dealt with interest either before or after the enactment of the Bankruptcy Code, and in that sense the statute never changed. The Court would further note that the House reports include a reference in the footnotes to Security First National Bank v. United States, 153 F.2d 563, 565 (9th Cir.1946), which allowed a government claim for "taxes . . . plus interest." H.R.REP. NO. 96-595, 95th Cong., 2d Sess. 193 reprinted in 1979 U.S.CODE CONG. & ADMIN.NEWS 5973, 6153-54 n. 123.
In conclusion, the Court agrees with the United States Court of Appeals for the Ninth Circuit that the legislative history is inconclusive. In re Mark Anthony Construction, Inc., 886 F.2d 1101 (1989). As recognized by the Ninth Circuit, the Supreme Court of the United States has set forth the rule in cases where a statute is ambiguous and the legislative intent unclear that "`no changes in law or policy are to be presumed from changes of language in [a statutory] revision unless an intent to make such changes is clearly expressed.'" Finley v. United States, ___ U.S. ___, ___, 109 S. Ct. 2003, 2006, 104 L. Ed. 2d 593 (1989) (quoting Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227, 77 S. Ct. 787, 790, 1 L. Ed. 2d 786 (1957)). In light of the lack of clarity in the legislative history, the Court must construe the statute in the instant case to present no change from prior law.
This Court is in full agreement with the Ninth Circuit's analysis in In re Mark Anthony Construction, Inc. and follows it and the Fourth Circuit in United States v. Friendship College, Inc., 737 F.2d 430 (1984) in holding that the pre-Bankruptcy Code common law treatment of interest on administrative expense taxes and/or penalties survives the statutory revision. This interest is therefore entitled to first priority administrative expenses status pursuant to 11 U.S.C. § 503, 507. The United States Bankruptcy Court's May 18, 1989 order disallowing interest as an administrative expense is REVERSED and REMANDED for further proceedings consistent with this Opinion and Order.
It is so ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620456/ | 13 So. 3d 52 (2007)
EX PARTE JERRY WHITE.
No. 1060552 (CR-05-0784).
Supreme Court of Alabama.
April 13, 2007.
Decision without published opinion. Certiorari denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/669704/ | 23 F.3d 1039
146 L.R.R.M. (BNA) 2274, 128 Lab.Cas. P 11,094
GENERAL DRIVERS, SALESMEN AND WAREHOUSEMEN'S LOCAL UNION NO.984, an Affiliate of the International Brotherhood ofTeamsters, Chauffeurs, Warehousemen and Helpers of America,AFL-CIO, Plaintiff-Appellee,v.MALONE & HYDE, INC., Defendant-Appellant.
No. 92-6505.
United States Court of Appeals,Sixth Circuit.
Argued Nov. 30, 1993.Decided May 11, 1994.Rehearing and Suggestion for Rehearing En Banc Denied June23, 1994.*
Howard R. Paul (argued & briefed), Memphis, TN, for plaintiff-appellee.
David P. Jaqua (argued & briefed), Kullman, Inma, Bee, Downing & Banta, Memphis, TN, for defendant-appellant.
Before: BOGGS and SILER, Circuit Judges; and CHURCHILL, Senior District Judge.*
SILER, Circuit Judge, entered the opinion of the court, in which BOGGS, Circuit Judge, joined. CHURCHILL, Senior District Judge (p. 1046), delivered a separate opinion concurring in part and dissenting in part.
SILER, Circuit Judge.
1
This case arises from an employment dispute involving Richard Mack, his former employer, Malone & Hyde, Inc. ("Malone & Hyde" or "the Employer"), and Mack's union. Defendant, Malone & Hyde, appeals the decision of the district court leaving questions of abandonment, withdrawal, estoppel, and waiver to be resolved by arbitration, should the parties proceed to arbitration.
2
For the reasons stated below, we affirm the decision of the district court.
I.
3
On January 28, 1988, Malone & Hyde issued a notice of discipline to Richard Mack, placing him on a two-week suspension. Mack was a member of the bargaining unit exclusively represented by Plaintiff, General Drivers, Salesmen, and Warehousemen's Local Union No. 984 ("the Union"). On February 29, 1988, Mack received an employee disciplinary notice terminating his employment. On both occasions, Mack signed a record of grievance, which the Union submitted as a grievance to the Employer. At the time of Mack's grievances, the Employer and the Union were parties to a collective bargaining agreement ("CBA"). The CBA in effect at the time of Mack's grievances expired on January 8, 1989, and a subsequent agreement expired on January 8, 1992. In November 1991, the Employer withdrew recognition of the Union. The Union subsequently filed a petition seeking an election. The Union lost the election in May 1992.
4
Article XIII of the CBA sets out the procedures for filing and resolving grievances. Article XIII provides for arbitration where the representatives of the Employer and the Union cannot reach a settlement. The Union and the Employer processed Mack's grievances according to the CBA up to arbitration but were unable to resolve the grievances at any of the pre-arbitration phases.
5
The Union requested that Mack's grievances be arbitrated. However, Mack did not want the designated Union agent representing him at the arbitration and requested that he be represented by an attorney. The Union denied Mack's request for an attorney but did assign a different Union agent, Arthur B. Crutcher, Vice President of the local Union, to represent Mack.
6
In August 1988, Kim G. Sims, an attorney, notified the Union that she represented Mack with regard to his arbitration hearing. On September 9, 1988, Sims again notified the Union that she represented Mack and asked to be included in the selection of the arbitrator. Crutcher subsequently received a letter from Mack on October 12, 1988, notifying him that Mack had hired Sims to represent him in the arbitration and requesting that the Union forward to Sims all information regarding his case. In response to Mack's letter, Crutcher wrote Mack, stating in part:
7
Since you have made this request that Ms. Sims present your case, we are requesting specifically if you are disbarring the Local Union from presenting your cases and will only use officials of the Local Union as witnesses to testify.
8
We therefore ask that you sign this letter releasing the Local Union of all of its duties, requirements and obligations under the terms and provisions of the present contract with Malone and Hyde Company.
9
At the bottom of Crutcher's letter to Mack, the following release language appeared:
10
I, Richard Mack, do hereby release Teamsters Local Union No. 984 of all of its duties, requirements and obligations under the terms and provisions of the present contract with Malone & Hyde Company concerning my cases.
11
Mack signed the release on November 16, 1988. In late November, John Lane, Malone & Hyde's operations manager, received a call from Crutcher advising him that Mack had retained outside counsel and that the Union was "out of it."
12
In July 1988, the American Arbitration Association ("AAA") had furnished panels of arbitrators to the representatives of the Union and the Employer, who each selected separate arbitrators to hear the grievances. The AAA sent letters dated October 14, 1988, to the Union and the Employer acknowledging their selections of arbitrators. In late October and early November 1988, the AAA notified representatives of the Union and the Employer of dates the arbitrators would be available to hear Mack's grievances. Receiving no response, the AAA wrote the Union and the Employer in early December requesting information as to the current status of Mack's grievances. In order to respond to the AAA's request, John Lane of Malone & Hyde wrote the Union on December 23, 1988, seeking clarification of the status of Mack's grievances:
13
You informed me recently that Teamsters Local Union No. 984 will not pursue [Richard Mack's] arbitration cases. Since that time, the American Arbitration Association, by letters dated December 6, 1988, has requested that we advise them of the status of the cases. In order that we may respond definitely to the AAA and close out these cases, please confirm below that the union will not pursue these cases further. Also, Malone & Hyde needs assurance that these cases will not be reinstituted by the Union and that all disputes and controversies between Malone & Hyde, Inc. and Teamsters Local Union No. 984 concerning the employment and termination of employment of Richard Mack are concluded.
14
Mack subsequently filed an unfair labor practice charge against the Union with the National Labor Relations Board ("N.L.R.B.") alleging bad faith on the part of the Union in representing him. On January 12, 1989, about two weeks after Mack filed his N.L.R.B. charge, Howard Paul, the Union's attorney, wrote the Employer stating that
15
[n]o action of [the Union] is to be construed as an abandonment of Mr. Mack's grievances. Neither should they be construed as acknowledging that the grievance has no merit.
16
On the contrary, Mr. Mack desires to proceed to arbitration. He simply did not want a Union business agent representing him at the hearing. He has relieved the Union of any further obligations in the processing of his grievances and has retained an attorney, Ms. Kim G. Sims[.]
17
On January 23, 1989, Sims wrote to Malone & Hyde to inquire about the grievance hearing. The Employer's attorney responded on February 2, 1989, asserting that
18
[e]mployees have no individual right to arbitrate under the union contract. Only the union and the company have such a right. Moreover the company has no obligation to deal with any representative of Mr. Mack except the union, which by law is the representative of employees covered by the collective bargaining agreement. Therefore, the company declines to deal with you as a representative of Mr. Mack.
19
On February 2, 1989, Malone & Hyde also wrote the AAA stating that, based on the Union's notification that Mack did not wish for the Union to represent him with respect to his grievances and Malone & Hyde's understanding that the "union ha[d] been relieved of any further obligation to process [Mack's] grievances," Malone & Hyde was "relieved of any obligation to proceed further in these cases."
20
On February 7, 1989, the AAA notified the Union and the Employer that the AAA would consider the matter closed unless there was an objection by February 14, 1989. Having received no objections by February 20, 1989, the AAA wrote the Union and the Employer on that date stating that the AAA considered the matter withdrawn. On April 5, 1989, the Union's attorney wrote the AAA stating that he did not receive a copy of the February 20, 1989, letter and that he only became aware of that letter on March 25, 1989. The Union's attorney went on to state that the matter involving Mack's grievances
21
ha[d] not been withdrawn and should proceed to arbitration. The grievant desires to have his own attorney process this grievance and the grievant and the Union have agreed. The company has declined to arbitrate with the grievant's personal attorney.
22
The AAA then requested comments from Malone & Hyde regarding the Union attorney's letter. Responding through its attorney, Malone & Hyde claimed that it had no obligation to arbitrate Mack's grievances.
23
On May 12, 1989, the Union filed suit against the Employer under 29 U.S.C. Sec. 185 alleging that the Employer's refusal to arbitrate Mack's grievances violated the collective bargaining agreement. The Union requested the court to either compel the Employer to arbitrate or decide the merits of Mack's grievances. On October 8, 1991, the district court denied the Union's motion for summary judgment; the court concluded that an employer has no duty to arbitrate a grievance with an individual employee and his personal attorney but found that an issue of fact existed as to whether the Union still represented Mack and whether the release signed by Mack constituted a formal rejection of union representation.
24
A hearing was held on April 20, 1992, and on April 21, 1992, the district judge issued his decision from the bench. The judge dismissed the Union's complaint, deciding that Malone & Hyde acted properly in refusing to arbitrate with Mack or his attorney; the court held that Malone & Hyde "cannot be compelled to arbitrate with Mr. Mack or his attorney, either on their own or in conjunction with the Union's passive presentation of the grievances[.]" The district court found that the Union was not entitled to choose to allow Mack to participate with his own attorney. The court reasoned that, because Mack was not a party to the collective bargaining agreement, he could not be a party to the arbitration, and any further processing of Mack's grievances must be carried out by the Union "with the permission of Mr. Mack without delegation of that function to Mr. Mack or his attorney." Finally, the district court determined that questions as to whether the Union withdrew from or abandoned the arbitration, whether the arbitration was time-barred,1 and whether the employer had asserted valid equitable defenses are to be determined by the arbitrator.
II.
25
While the Union does not explicitly challenge the district court's decision that the Employer is obligated to arbitrate only with the Union, we will address the issue briefly.
26
The district court, in denying the Union's request to compel the Employer to arbitrate with the individual employee and his privately retained counsel, looked to this court's decision in Malone v. United States Postal Service, 526 F.2d 1099 (6th Cir.1975). Malone held that, in the absence of language in a CBA guaranteeing an employee the right to be represented in grievance and arbitration proceedings by someone other than the exclusive bargaining representative, an employer has no obligation to deal with an individual employee or any representative of the employee other than the exclusive bargaining representative. Id. at 1101. In the present case, the grievance and arbitration procedures set out in the CBA refer only to representatives of the union and the employer; nowhere is it stated that an individual employee can be party to either the CBA or an arbitration proceeding conducted pursuant to the CBA. Accordingly, the district court properly found that Malone & Hyde had no obligation to arbitrate directly with either Mack or his attorney.
III.
27
Malone & Hyde contends that the release signed by Mack, the turning over of Mack's grievances to Mack and his attorney, the Union's loss of representative status, and the termination of the CBA relieve Malone & Hyde of any obligation to arbitrate Mack's grievances with the Union.
28
National labor policy favors arbitration, and where the parties to a collective bargaining agreement have agreed to submit to arbitration, United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S. Ct. 1347, 1353, 4 L. Ed. 2d 1409 (1960) ("arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit"), and the agreement, accordingly, contains an arbitration clause, there is a presumption of arbitrability. AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650, 106 S. Ct. 1415, 1419, 89 L. Ed. 2d 648 (1986). This presumption can be overcome only if " 'it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.' " Id. (quoting Steelworkers v. Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1353). The presumption favoring arbitration is based on a policy recognizing arbitration as a "substitute for industrial strife," Steelworkers v. Warrior & Gulf, 363 U.S. at 578, 80 S.Ct. at 1351, and on the belief that arbitrators, more so than the courts, possess the proper experience and expertise to resolve labor disputes, Litton Financial Printing Div'n v. NLRB, 501 U.S. 190, ----, 111 S. Ct. 2215, 2229, 115 L. Ed. 2d 177 (1991) (Marshall, J., dissenting).
29
In the realm of industrial relations, it is not for the courts to weigh the merits of a grievance or to undertake to determine the rights of parties under a collective bargaining agreement, AT & T Technologies, 475 U.S. at 649, 106 S.Ct. at 1418; a court's role is limited to deciding if "the party seeking arbitration is making a claim which on its face is governed by the contract." United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 568, 80 S. Ct. 1343, 1346, 4 L. Ed. 2d 1403 (1960).
A.
30
The district court made no finding as to the legal effect of the November 16, 1988, release signed by Mack, finding that the issue was procedural and, therefore, leaving the issue for arbitration. Malone & Hyde argues that construction of the release is properly the responsibility of a court as the agreement is collateral to the CBA. Malone & Hyde contends that the release, as a matter of law, relieved the Union of any obligation to process Mack's grievances. In Malone & Hyde's view, once the Union was released from its obligation to arbitrate, Malone & Hyde, as the other party to the CBA, was likewise released from any further duty to arbitrate. The Union contends that the district court properly left the question of interpreting the release to the arbitrator, arguing that the only purpose of the release was to protect the Union should Mack later sue the Union. The Union further asserts that it "remains willing to go forward" with the processing of Mack's grievances.
31
Article XIII of the CBA contains a broad arbitration clause covering "any discharge, suspension, or dispute or controversy of any kind over the application of this Agreement." (Emphasis added). Such language is typical of broad arbitration clauses, see Brotherhood of Teamsters and Auto Truck Drivers, Local No. 70 v. Interstate Distributor Co., 832 F.2d 507, 510 n. 2 (9th Cir.1987), and strengthens the presumption favoring arbitrability, AT & T Technologies, 475 U.S. at 650, 106 S.Ct. at 1419. See also John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 550, 84 S. Ct. 909, 914, 11 L. Ed. 2d 898 (1964).
32
The Employer posits that construction of Mack's signed release is properly the responsibility of a court as the agreement is collateral to the CBA. The Employer reasons that, because the release is collateral to the CBA, interpretation of the release does not depend on interpreting the CBA itself. However, this circuit has held that interpretation of a settlement agreement separate from an existing CBA is an issue properly left for arbitration. Amalgamated Clothing Workers v. Ironall Factories Co., 386 F.2d 586 (6th Cir.1967).
33
Amalgamated Clothing Workers involved a separately negotiated settlement between the employer and the union settling particular grievances of specified individual employees. Id. at 588. The employer in Amalgamated Clothing Workers argued that the settlement resolved a broader array of disputes than the issues specifically set out. Id. at 590. Noting that the parties had agreed to submit to arbitration "any complaint ... or dispute arising out of or relating to provisions of this Agreement, or the interpretation ... thereof," id. (quotation omitted), this court determined that construction of the settlement agreement "concern[ed] the correct interpretation to be accorded to the collective bargaining agreements between union and management" and was, consequently, a properly arbitrable issue, id.
34
Whether or not the release signed by Mack constitutes a "collateral agreement," we find that construction of the release involves a question of the application of the CBA and is properly left for arbitration.2 Similarly, Malone & Hyde's claim that it was no longer required to submit to arbitration by virtue of the Union's turning over of Mack's grievances to Mack and his attorney, the Union's loss of representative status, and the termination of the CBA raises issues involving interpretation of various provisions of the CBA. Therefore, resolution of this claim falls within the arbitrator's jurisdiction.3B.
35
Malone & Hyde contends that the district court should have determined, as a matter of law, whether the Union can require Malone & Hyde to arbitrate instead of leaving the matter to arbitration. Malone & Hyde notes language in the CBA stating that "[n]o rights or obligations created by or arising out of [the CBA] shall extend beyond its termination." Malone & Hyde argues that this provision, in light of the Union's loss of representative status and the termination of the CBA, means that the arbitrator no longer has jurisdiction over the matter.
36
As discussed above, these claims require examining the terms of the CBA itself and are, therefore, arbitrable. Furthermore, we note that the Supreme Court has recognized that a party's obligation to arbitrate does not automatically cease upon termination of the collective bargaining agreement. Nolde Brothers, Inc. v. Bakery & Confectionery Workers Union, Local No. 358, 430 U.S. 243, 252, 97 S. Ct. 1067, 1072, 51 L. Ed. 2d 300 (1977); International Brotherhood of Teamsters, Local No. 1199 v. Pepsi-Cola General Bottlers, Inc., 958 F.2d 1331, 1333 (6th Cir.1992). The presumption that disputes arising under a collective bargaining agreement are arbitrable remains even after the CBA itself has terminated. Litton Financial Printing, 501 U.S. at ----, 111 S. Ct. at 2225 (explaining Nolde Brothers, 430 U.S. 243, 97 S. Ct. 1067).
37
A postexpiration grievance can be said to arise under the contract only where it involves facts and occurrences that arose before expiration, where an action taken after expiration infringes a right that accrued or vested under the agreement, or where, under normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement.
38
Id. Applying this definition, Mack's grievances are clearly entitled to the presumption of arbitrability.
39
Malone & Hyde argues that the Court's decision in Nolde Brothers supports its contention that, as a matter of law, it is no longer bound by the arbitration clause. Malone & Hyde points out that the Court specifically stated that the parties to a collective bargaining agreement can expressly or by clear implication provide for arbitration obligations to cease upon termination of the CBA. Nolde Brothers, 430 U.S. at 255, 97 S.Ct. at 1074. Malone & Hyde contends that, because the CBA itself provides that "[n]o rights or obligations created by or arising out of this Agreement shall extend beyond its termination," the parties have expressly negated any inference that the arbitration clause survives the contract's termination.
40
We find this argument unpersuasive. First, Nolde Brothers, 430 U.S. at 244, 97 S.Ct. at 1068, recognized the arbitrability of a dispute that actually arose after the collective bargaining agreement had terminated.4 In contrast, the disputes underlying Mack's grievances arose in 1988, while the CBA was still in effect. As a result, the presumption set out in Nolde Brothers should be, if anything, even stronger where the dispute actually arose before the CBA expired.
41
Second, it is not obvious that the CBA's termination language covers grievance procedures that are ongoing when the agreement is terminated. It would be inconsistent with the policy favoring arbitration to summarily relieve the parties of the obligation to arbitrate where a dispute arose while the CBA was in effect and the resulting grievance procedure was initiated and well under way before either the CBA expired or the Union lost its representative status. See General Drivers, Warehousemen and Helpers, Local No. 89 v. Moog Louisville Warehouse, 852 F.2d 871, 874 (6th Cir.1988) (doubts as to whether a dispute is covered by arbitration clause should be resolved in favor of coverage).
IV.
42
Among other issues, the district court left Malone & Hyde's claims of equitable and legal estoppel for resolution by the arbitrator in the event that the Union processed the arbitration. Malone & Hyde contends that the district court should have addressed these defenses. The Union argues that Malone & Hyde's estoppel defenses are "procedural" questions to be addressed at arbitration.
43
Malone & Hyde contends that the Union is estopped from seeking to require Malone & Hyde to arbitrate with the Union on the basis of positions taken by the Union in the present case and in Mack's separate N.L.R.B. action against the Union. The Employer claims that, in Mack's suit against the Union, the Union took the position that it had surrendered responsibility for processing Mack's claim to Mack and his attorney. Additionally, the Employer contends that, up to and including the trial in the instant case, the Union continued to request that the district court compel Malone & Hyde to arbitrate directly with Mack and his attorney.
44
The Supreme Court has found that, once it has been determined that the subject matter of a dispute is properly arbitrable, " 'procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator." John Wiley & Sons, 376 U.S. at 557, 84 S.Ct. at 918. Here, the underlying dispute involves Mack's discharge and clearly presents an arbitrable issue. Therefore, Malone & Hyde's estoppel claims, which concern both procedural prerequisites to arbitration and substantive provisions of the CBA, are properly left to arbitration. See International Union of Operating Engineers, Local 150 v. Flair Builders, Inc., 406 U.S. 487, 92 S. Ct. 1710, 32 L. Ed. 2d 248 (1972); John Wiley & Sons, 376 U.S. at 556-57, 84 S.Ct. at 918 ("Questions concerning the procedural prerequisites to arbitration do not arise in a vacuum; they develop in the context of an actual dispute about the rights of the parties to the contract or those covered by it.").
45
Malone & Hyde cites to our decision in Amalgamated Clothing Workers, 386 F.2d at 592, where this court determined that a claim of laches was a proper subject for court consideration. In so holding, we specifically found that "a decision on laches adds or subtracts nothing from the meaning of the agreement. Furthermore, consideration of the issue [of laches] in no way involves a consideration of the merits of the underlying substantive issue." Id. However, unlike the laches claim in Amalgamated Clothing Workers, 386 F.2d at 591-92, Malone & Hyde's estoppel defenses "grow out of the dispute and bear on its final disposition," id. at 591, and are, therefore, arbitrable.
46
The judgment of the district court dismissing the Union's complaint is AFFIRMED.
47
CHURCHILL, Senior District Judge, concurring in part and dissenting in part.
48
I concur in the majority opinion except in one major respect. It is my opinion that on the facts of this case, the issue of whether arbitration is barred by release, abandonment, withdrawal, waiver or estoppel is for the court and not the arbitrator to resolve.
49
The arbitration clause of the collective bargaining agreement in this case is significantly narrower than the arbitration clause at issue in Amalgamated Clothing Workers v. Ironall Factories Co., 386 F.2d 586 (6th Cir.1967). Article XIII of the CBA does provide that "any discharge, suspension, or dispute or controversy of any kind over the application of this Agreement" shall be subject to the grievance process including arbitration. However, the final sentence in Article XIII delimits the scope of the arbitrator's powers: "the Committee of Arbitration is bound to decide the case upon the express language of this Agreement and shall not add to or alter the Agreement by interpretation." Article XIII; p 24 (emphasis added).
50
The issue of whether the conduct of Mack, his attorney, or the union has caused him to lose his right to have his grievance determined by arbitration cannot be determined by reference to the CBA. Furthermore, except with respect to the issue of time bar, the issue cannot be classified as a procedural issue. Procedural issues are defined as those which "involve claims by one of the parties that the other party has failed to follow the procedural conditions specified in the collective bargaining agreement." Amalgamated, 386 F.2d at 591 (emphasis added).
51
In my opinion questions, other than time bar, which the district court ruled were determinable by the arbitrator cannot be resolved by reference to the CBA and therefore are not arbitrable. I would remand the case to the district court for resolution of these issues.
*
Judge Churchill would grant rehearing for the reasons stated in his dissent
*
The Honorable James P. Churchill, Senior United States District Judge for the Eastern District of Michigan, sitting by designation
1
Neither party challenges the decision of the district court leaving the question of whether the arbitration is time-barred to be determined by the arbitrator
2
In light of the reasoning in Amalgamated Clothing Workers, 386 F.2d at 590, it is unnecessary to classify this question as either "procedural" or "substantive."
3
In support of its position, Malone & Hyde refers to two Second Circuit decisions, Peerless Importers, Inc. v. Wine, Liquor & Distillery Workers, Local One, 903 F.2d 924 (2d Cir.1990) and Rochdale Village, Inc. v. Public Service Employees Union, Local 80, 605 F.2d 1290 (2d Cir.1979), where the court held that agreements collateral to collective bargaining agreements were properly examined by the district court, not the arbitrator. We find neither of these authorities persuasive
In Peerless, 903 F.2d at 929, the court held that an agreement settling a single labor dispute constituted a collateral agreement not to arbitrate and that construction of that agreement was properly for a court. However, the Peerless court concluded that the arbitration clause in the existing CBA did not cover the employee's grievance, id.; therefore, the only existing basis for arbitration was an oral agreement to arbitrate the particular claims of that one employee. The Peerless court specifically relied on the narrow scope of the arbitration agreement: "where an agreement [to arbitrate] is narrow, a court has greater leeway in determining whether the parties ended an agreement to arbitrate." Id. at 929. Here, in contrast, it is uncontested that the arbitration clause covers the subject matter of Mack's grievances.
Rochdale, 605 F.2d at 1296, involved the question of whether the parties to a collective bargaining agreement terminated the agreement. Addressing the question of whether the parties to a collective bargaining agreement had entered into a side agreement terminating the CBA and the precise terms of such a side agreement, the court held that such matters were beyond the scope of the particular arbitration clause involved and, therefore, properly evaluated by the court. Id. at 1297. The release signed by Mack does not concern termination of the entire agreement. Mack's release only concerns arbitration of Mack's grievances and is not collateral to the CBA because it relates directly to the CBA's arbitration and grievance provisions.
4
Similarly, Litton Financial Printing, 501 U.S. at ----, 111 S. Ct. at 2218, involved a dispute that occurred after expiration of the collective bargaining agreement | 01-03-2023 | 04-16-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2588308/ | 146 P.3d 884 (2006)
341 Or. 579
State
v.
Garcia
(S54029).
Supreme Court of Oregon.
October 31, 2006.
Petition for Review Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1484059/ | 990 A.2d 417 (2010)
Ezra PENDLETON, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.
No. 389, 2009.
Supreme Court of Delaware.
Submitted: January 20, 2010.
Decided: February 23, 2010.
*418 Michael R. Abram, Law Office of Michael R. Abram, Georgetown, DE, for appellant.
Abby Adams, Department of Justice, Georgetown, DE, for appellee.
Before STEELE, Chief Justice, BERGER and RIDGELY, Justices.
STEELE, Chief Justice:
In this appeal, we consider the validity of evidence seized during an administrative search conducted after a probation officer telephonically conferred with his supervisor but failed to complete a tangible, paper copy of a pre-search checklist. Ezra Pendleton contends that absent exigent circumstances, probation officers should strictly comply with the Department of Corrections' guidelines and failure to do so here necessitates a reversal of his Possession with intent to Deliver Cocaine conviction. *419 In Fuller v. State,[1] we acknowledged that substantial compliance with departmental guidelines alonenot absolute compliancesufficiently withstands review of an administrative search. Here, we find substantial compliance. Therefore, we must AFFIRM.
Factual and Procedural Background
On October 7, 2008, Probation Officer Kevin McClure and other members of the Governor's Task Force convened near Milford, Delaware for a GTF operation. When the activities failed to produce the desired results, McClure decided to conduct curfew checks instead. Using the Department of Corrections automated computer system, McClure searched for probationers in the Milford area. After finding Ezra Pendleton's name in the DACS system, McClure noted three items of information that he believed to be relevant: (i) Pendleton tested positive for marijuana and cocaine on four previous occasions;[2] (ii) Pendleton was a career criminal; and (iii) Pendleton missed a curfew on or about the 21st of August.[3]
Believing Pendleton's positive drug screenings to be indicative of consistent drug use, McClure phoned his supervisor, Perry Allfather, seeking approval for an administrative search of Pendleton's home. Neither McClure nor Allfather prepared a pre-search checklist; instead, they orally analyzed the information McClure had gathered.
Despite the absence of a completed, physical copy of the checklist, Allfather approved the "administrative" search. Upon approval of the search, four GTF members, three probation officers and one Delaware State Police officer, descended on Pendleton's apartment and collected approximately 3.05 grams of crack cocaine on the kitchen counter, in the kitchen's trashcan, in a sandwich bag box, and on the floor. Pendleton waived his right to a jury trial. After a stipulated, bench trial, a Superior Court judge denied a motion to suppress the seized evidence and found Pendleton guilty of Possession with intent to Deliver Cocaine. Pendleton now appeals.
Standard of Review
We review a Superior Court judge's denial of a motion to suppress after an evidentiary hearing for abuse of discretion.[4] Where it is alleged that the Superior Court erred in formulating and applying the law to undisputed facts, we exercise de novo review.[5]
Discussion
Title Eleven, Section 4321(d) of the Delaware Code invests authority in probation and parole officers to conduct warrantless searches; however, that power is not absolute. As a restraint, the officer must demonstrate that reasonable suspicion of criminal activity existed before the warrantless search began. In Fuller v. State,[6] we analyzed Griffin v. *420 Wisconsin[7] and followed its conclusion that when a regulatory scheme requires reasonable grounds for a search, compliance with those regulations is sufficient to render the search reasonable under the Fourth Amendment.[8] In that reaffirmation, we also recognized that probationers' and parolees' status curtails their rights; consequently, substantial compliance with departmental regulations is satisfactory evidence of reasonableness in Delaware.
Pendleton acknowledges that our precedent only requires substantial compliance; yet, he contends that unless urgent or exigent circumstances exist, probation officers should strictly adhere to the departmental regulations. In making this contention, Pendleton relies on the Delaware Department of Corrections Bureau of Community Corrections Probation and Parole Procedure No. 7.19, §§ VI.A.6, VI.E which states that absent exigent circumstances, a supervisor must hold a case conference and complete and review a pre-search checklist. Pendleton concedes that a conference occurred, albeit telephonic; yet, he complains that McClure's failure to complete a physical, paper-copy of the checklist invalidates the October 7, 2008 search and all evidence seized during the search.
In light of our substantial compliance holding in Fuller, we find no merit to Pendleton's complaint. Essentially, it is nothing other than an attempt to elevate form over substance. Although McClure did not physically check the boxes on the departmental pre-search checklist, he did analyze each of the five factors listed before a search ensued. Pendleton's positive drug screening satisfies guidelines one and two by indicating to any reasonable person that Pendleton may possess contraband and that he had violated his probation on at least four previous occasions.
Guidelines three and four concern whether a probation officer received corroborated information from an informant. Here, McClure acquired his information through the DACS computer systemrendering guidelines three and four irrelevant. Finally, the fifth guideline questions whether a supervisor, manager, or director approved the search. Pendleton's own concession that McClure phoned his supervisor, discussed the factors, and obtained permission before searching his home satisfies the final guideline.
McClure's failure to complete the technical requirements does not negate the importance of his discussion of the five factors with Allfather. Although he did not physically fill out the pre-search checklist, McClure's conduct fulfills the spirit of the guidelines. In analyzing the factors, rationally assessing the facts known to him, and obtaining supervisory approval, McClure ensured that the Department of Corrections had sufficient grounds before searching Pendleton's home.[9]
While the search of Pendleton's home may have been a matter of convenience arising from frustration and not a matter of urgency, we will not invalidate the search because of a technical deficiency. Nevertheless, we must insert a caveat. In discharging their duties as public servants, probation officers are called upon to fulfill several rolesadvisor, advocate, enforcement agent. Often, conflicts may arise in the execution of those duties. Indeed, GTF probation officers working in tandem with the police may be more susceptible to *421 conflicts simply because of the nature of their collaboration and may find themselves placing a greater emphasis on enforcement to the detriment of their other, equally important roles.
We remind all probation officers to pursue the rehabilitation of their probationers as fervently as they pursue compliance, curfew checks, spontaneous searches, and deterrence. Delaware law places the responsibility upon probation officers of reintegrating probationers into society by creating treatment plans to "alleviate [the] conditions which brought about the criminal behavior,"[10] "secur[ing] employment,"[11] and "us[ing] all suitable methods to aid and encourage them to bring about improvement in their conduct and conditions and to meet their probation or parole obligations."[12] Any neglect of these important responsibilities only denigrates society's trust and confidence in the corrections system.
Conclusion
The Superior Court properly dismissed Pendleton's motion to suppress. Sufficient evidence supports his conviction; therefore, we AFFIRM the judgment of the Superior Court.
NOTES
[1] 844 A.2d 290, 291 (Del.2004).
[2] Pendleton tested positive for drugs on July 8 (marijuana and cocaine), August 12 (marijuana), September 3 (marijuana), and September 23 (marijuana and cocaine).
[3] McClure also recalled an email indicating that Pendleton had previously tested positive for drugs.
[4] Donald v. State, 903 A.2d 315, 318 (Del. 2006).
[5] Id.
[6] 844 A.2d 290 (Del.2004).
[7] 483 U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987).
[8] Fuller, 844 A.2d at 292.
[9] See Fuller, 844 A.2d at 292; Culver v. State, 956 A.2d 5, 11 (2008); and King v. State, 984 A.2d 1205, 1209 (2009).
[10] 11 Del. C. § 4321(b)(2).
[11] Id. § 4321(b)(3).
[12] Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620496/ | 585 N.W.2d 425 (1998)
Marilyn SCHMUCKLER, Respondent,
v.
Linda Marie CREURER, Appellant.
No. C6-98-684.
Court of Appeals of Minnesota.
November 3, 1998.
Review Denied December 22, 1998.
*426 Norman Perl, Lauris A. Heyerdahl, Norman Perl & Associates, Minneapolis, (for respondent).
Elliot L. Olsen, Gislason, Dosland, Hunter & Malecki, P.L.L.P., Minnetonka, (for appellant).
Considered and decided by LANSING, P.J., KLAPHAKE and THOREEN,[*] JJ.
OPINION
KLAPHAKE, Judge.
Appellant Linda Marie Creurer lost control of her car and drove into a town house rented and occupied by respondent Marilyn Schmuckler. Schmuckler recovered under her renter's insurance policy for the property damage and then sued Creurer for property damage, emotional distress, and medical expenses. A jury returned a special verdict in favor of Schmuckler.
In post-trial motions, Creurer sought to apply Minnesota's collateral source statute, Minn.Stat. § 548.36 (1996), and reduce the verdict by the amount that Schmuckler had received from her renter's insurance policy. The trial court concluded that the collateral source statute does not apply to cases involving property damage and that, in any event, Schmuckler's insurer had properly asserted a subrogation claim. The court also concluded that because Schmuckler failed to meet the no-fault thresholds, she was barred from recovering non-economic damages. Minn.Stat. § 65B.51 (1996).
*427 Creurer appeals, arguing that the trial court erred by refusing to apply the collateral source statute. Schmuckler has filed a notice of review, claiming that the court erred by applying the no-fault thresholds. We affirm on the collateral source issue and decline to address the issue raised in Schmuckler's notice of review. We also deny Schmuckler's motion to supplement the record.
FACTS
On April 16, 1995, while backing out of a driveway, Creurer lost control of her car and drove into a town house rented and occupied by Schmuckler. At the time of the accident, Creurer had an automobile insurance policy with Illinois Farmers Insurance Company (Illinois Farmers).
Schmuckler was insured by Illinois Farmers under a renter's insurance policy. She collected $32,831.95 for her property damage and incidental living expenses and then sued Creurer for negligence. The jury was instructed on the no-fault thresholds and on the general law governing negligent infliction of emotional distress. In response to special verdict questions, the jury awarded Schmuckler $32,455 for property damage, $11,000 for emotional distress and disability, $2,046 for past medical expenses, and $1,100 for future medical expenses. The jury further found that Schmuckler did not sustain a permanent injury or a disability for 60 days or more as a result of the accident.
Following post-trial motions, the trial court determined that the collateral source statute does not apply to payments for property damage and denied Creurer's request to reduce the property damage award by the amount paid to Schmuckler by her renter's insurance. The court further concluded that Schmuckler cannot recover either the $11,000 for disability and emotional distress or the $1,100 for future medical because she did not sustain a permanent injury or disability for 60 days or more, the thresholds required by the no-fault act.
ISSUES
I. Did the trial court err in concluding that Schmuckler's property damage award is not subject to the collateral source statute?
II. Has Schmuckler adequately preserved for review the issue of whether the trial court erred by applying the no-fault thresholds to bar her recovery of damages for negligent infliction of emotional distress?
ANALYSIS
I.
The relevant facts in this issue are undisputed. We therefore apply a de novo standard of review. Dean v. American Family Mut. Ins. Co., 535 N.W.2d 342, 343 (Minn. 1995).
Minnesota's collateral source statute provides in pertinent part:
Subdivision 1. Definition. For purposes of this section, "collateral sources" means payments related to the injury or disability in question made to the plaintiff, or on the plaintiff's behalf up to the date of the verdict, by or pursuant to:
(1) a federal, state, or local income disability or workers' compensation act; or other public program providing medical expenses, disability payments, or similar benefits;
(2) health, accident and sickness, or automobile accident insurance or liability insurance that provides health benefits or income disability coverage * * *;
(3) a contract or agreement of a group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental or other health care services; or
(4) a contractual or voluntary wage continuation plan provided by employers or any other system intended to provide wages during a period of disability * * *.
Minn.Stat. § 548.36, subd. 1 (1996).
This statute "abrogate[s] a plaintiff's common law right to be over-compensated and now prevent[s] double recoveries in many circumstances by requiring the deduction from the verdict of certain benefits received by a plaintiff." Imlay v. City of Lake Crystal, 453 N.W.2d 326, 331 (Minn.1990) (emphasis added). We have suggested that *428 payments for some types of losses are not "certain benefits" subject to the statutory collateral source deduction. For example, in Duluth Steam Coop. Ass'n v. Ringsred, 519 N.W.2d 215, 217-18 (Minn.App.1994), we concluded that the collateral source statute did not apply to a claim that did not involve physical injury; therefore, the plaintiff's claim for property damage was protected by the common law collateral source rule, which provides that if a plaintiff's special damages are paid by a third party, the plaintiff may still recover those damages from the defendant.
Creurer argues that our language in Ringsred was dicta because it was not essential to the decision. We now expressly hold that the collateral source statute does not apply to claims for property damage. As we pointed out in Ringsred, the statute's plain language indicates a legislative intent to limit its scope to payments related to physical injury, rather than property damage. Id. at 217.
While not a basis for our decision, we note that the collateral source statute also expressly excludes those payments for which a subrogation right has been asserted. Minn. Stat. § 548.36, subd. 2(1). Illinois Farmers asserted such a subrogation right in this case. Although Creurer's attorney later submitted an affidavit in which he claimed that Illinois Farmers was willing to waive that right, the trial court properly rejected this affidavit and determined that only Illinois Farmers could waive its subrogation claim.[1]
II.
In addition to her claim for property damage, Schmuckler claimed damages for emotional distress. Before trial, Creurer submitted a list of proposed jury instructions, including an instruction on the requirements of the no-fault thresholds. See 4 Minnesota Practice, CIVJIG 600 (1986). Schmuckler submitted proposed instructions on the general law governing negligent infliction of emotional distress. Both sets of instructions were given to the jury, and the special verdict questions included questions relating to both.
In her notice of review, Schmuckler argues that the trial court erred by instructing the jury to apply the no-fault thresholds to her common law negligence claim for emotional distress. Although her notice of review originally indicated that some portions of the transcript were necessary for this appeal, no trial transcript has been filed. Instead, Schmuckler submitted a statement of the proceedings, claiming that the parties' arguments regarding jury instructions were not transcribed. See Minn. R. Civ.App. P. 110.03 (parties may prepare statement of proceedings if no transcript available).
In that statement, the trial court agrees that Schmuckler objected to inclusion of the no-fault thresholds because Creurer failed to plead the threshold requirements as an affirmative defense. The court could not recall, however, whether Schmuckler objected to these instructions on the basis that they were unwarranted or an incorrect statement of the law. The court further attests that it generally includes, as part of the record, all objections to jury instructions and arguments on those objections. The court finally states that a trial transcript was not ordered by either party.
Thus, any objection Schmuckler may have made to the jury instructions was likely placed on the record, but she never ordered a transcript. Rule 110.03 is properly used when a transcript of proceedings is not available because not recorded by a court reporter or because a transcript is unavailable due to the death or unavailability of the reporter or loss of the reporter's notes; it should not be used in lieu of a transcript or as an attempt to make the record at the appellate level. See Eric J. Magnuson & David F. Herr, 3 Minnesota Practice *429 § 110.11, at 357 (1996). Failure to follow rule 110.03 may result in dismissal of the appeal or affirmance of the trial court's actions, absent a showing there was a clear abuse of discretion. See, e.g., Kuehl v. National Tea Co., 310 Minn. 48, 51, 245 N.W.2d 235, 238 (1976). Even if Schmuckler is correct in her assertion that this part of the proceedings was never transcribed, as the party raising the issue, she had the burden of proof to insure the record was sufficient for our review. Hunt v. Regents of the Univ. of Minn., 460 N.W.2d 28, 31 (Minn.1990).
Without a more complete record, we cannot ascertain whether objections were properly made before the instructions were given or rather after the verdict was rendered, the basis for any objections that might have been made, or the trial court's reasons for inclusion of these instructions. Because addressing this issue on such an incomplete record would distort the analysis, we conclude that the issue has not been properly preserved for appeal and decline to address it. See McCarthy Well Co. v. St. Peter Creamery, Inc., 389 N.W.2d 514, 519-20 (Minn.App. 1986) (when record insufficient to consider challenge to trial court's examination of potential jurors and parties could not agree on what transpired, reviewing court refused to consider issue on appeal and affirmed trial court), aff'd in part, rev'd in part, 410 N.W.2d 312, 316 (Minn.1987) (affirming voir dire issue as not abuse of discretion).
DECISION
We affirm the trial court's conclusion that Schmuckler's property damage award is not subject to the collateral source statute, decline to address Schmuckler's claim involving application of the no-fault thresholds because it was not adequately preserved for appeal, and deny Schmuckler's motion to supplement the record.
Affirmed; motion denied.
NOTES
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
[1] In fact, following oral argument to this court, Schmuckler filed a motion to allow inclusion in the record of a complaint filed by Illinois Farmers, which apparently asserts its subrogation claim. In light of our decision in favor of Schmuckler on this issue, along with our general reluctance to consider matters outside the record, we deny Schmuckler's motion to supplement the record. See Minn. R. Civ.App. P. 110.01 (record on appeal consists of papers filed in trial court). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620493/ | 916 So. 2d 627 (2005)
Lamarcus Kentez HARRIS
v.
STATE of Alabama.
CR-03-2093.
Court of Criminal Appeals of Alabama.
March 18, 2005.
*628 Lamarcus Kentez Harris, pro se.
Troy King, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
SHAW, Judge.
Lamarcus Kentez Harris appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his August 2003 conviction for murder, entered pursuant *629 to a guilty plea, and his resulting sentence of 25 years' imprisonment. He did not appeal.
Harris filed the present petition on May 17, 2004, raising several claims. After receiving a response from the State, the circuit court summarily denied Harris's Rule 32 petition on August 9, 2004, finding that there was no material issue of fact. For the reasons stated in Parts II and III of this opinion, we remand for further proceedings.
I.
Harris contends that he was denied his right to compulsory process when the trial court denied a motion to continue his counsel filed on the day his trial was set to begin. This claim is barred by Rule 32.2(a)(5), Ala.R.Crim.P., because it could have been, but was not, raised and addressed on appeal.
II.
Harris further contends that his failure to file a direct appeal was through no fault of his own because, he says, immediately after he entered his guilty plea, his trial counsel told him that he could not appeal, that he had no grounds to support an appeal, and that an appeal would be a waste of time. According to Harris, the only reason he did not pursue an appeal was because of counsel's statement that he could not.[1] The State did not specifically address this claim in its response to Harris's petition, and the circuit court did not address this claim in its order summarily denying Harris's petition. This claim is sufficiently pleaded under Rule 32.3 and Rule 32.6(b), Ala.R.Crim.P.; thus, we must remand this case for the circuit court to address the merits of this claim.
III.
Harris also contends that his trial counsel was ineffective and that his guilty plea was involuntary.
Harris argues that his trial counsel was ineffective for not adequately preparing for trial by subpoenaing two eyewitnesses to the murder, Shamette Allen and Sheika L. Vinson, who he says identified someone other than himself as the shooter. In support of his contention, Harris attached to his petition copies of what purport to be written statements that Allen and Vinson had made to the Auburn Police Department the day after the murder, in which both identify Jela Marshall as the person who shot the victim. Additionally, Harris attached as exhibits to his petition three unissued subpoenas that he says he obtained from the file his trial counsel had maintained on him. Those unissued subpoenas list Harris as the defendant and indicated that the witnesses were to appear at trial on August 25, 2003 (the day Harris ultimately pleaded guilty), but the subpoenas did not list a witness's name. Harris maintains that these unissued subpoenas show his trial counsel's lack of effort to prepare for trial and that she never intended for the case to go to trial.
Harris also argues that his counsel's lack of preparation for trial rendered his guilty plea involuntary. According to Harris, *630 he wanted to go to trial and present the testimony of the above witnesses in order to prove his innocence, but because counsel failed to subpoena these witnesses for the trial, counsel advised him to plead guilty in exchange for a 25-year sentence and said that if he went to trial he would lose and probably receive the maximum sentence of 99 years' imprisonment. Thus, Harris concludes, counsel's ineffectiveness effectively forced him to plead guilty. Finally, Harris argues that his guilty plea was involuntary because, he says, he was never informed of the nature and elements of the charge against him. Harris maintains that, although he signed an Ireland form[2] before pleading guilty, which specifically states that he was advised of the nature and elements of the charge against him, neither his counsel nor the trial court ever explained to him the contents of the form.
In its response to Harris's petition, the State alleged that Harris's claims regarding counsel's effectiveness and the voluntariness of his plea were meritless, and it attached to its response the Ireland form signed by Harris as well as a form entitled "Defendant's Statement of Satisfaction of Services Rendered by Attorney," also signed by Harris, that it argued refuted Harris's claims. In its order summarily denying Harris's petition, the circuit court also relied on these forms in finding that there was no material issue of fact.
With respect to the voluntariness of Harris's plea, it is well settled that "a signed Ireland form is, alone, insufficient to establish the voluntariness of a plea." Waddle v. State, 784 So. 2d 367, 370 (Ala.Crim.App.2000). "Rule 14.4(d), Ala.R.Crim.P., specifically allows an Ireland form to be used to supplement the guilty-plea colloquy under Rule 14.4(a), Ala.R.Crim.P., [but only] if the trial court determines `from a personal colloquy with the defendant that the defendant has read, or has had read to [him], and understands each item' in the Ireland form." Id. In this case, the record does not contain a transcript of the guilty-plea colloquy, and the State did not refute Harris's allegations that he was never advised of the nature and elements of the charge against him and that the trial court failed to engage in a personal colloquy with him regarding the contents of the Ireland form. Therefore, we must remand this case for the circuit court to address the merits of Harris's claim regarding the voluntariness of his plea.
With respect to Harris's ineffective-assistance-of-counsel claim, the form entitled "Defendant's Statement of Satisfaction of Services Rendered by Attorney," although signed by Harris, is not sufficient to refute an ineffective-assistance claim. In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his counsel's performance was deficient and (2) that the deficient performance actually prejudiced the defense. Counsel's performance is viewed objectively; therefore, a defendant's subjective satisfaction with counsel's performance is irrelevant in determining whether counsel was ineffective. Other than the form signed by Harris, the State did not otherwise refute Harris's allegations regarding his counsel's alleged ineffectiveness or its impact on the voluntariness of Harris's plea.[3] Therefore, we must remand this *631 case for the circuit court to address the merits of Harris's ineffectiveness-assistance-of-counsel claim.
IV.
Based on the foregoing, we remand this case for the circuit court to address the merits of Harris's claims (1) that his failure to appeal was through no fault of his own; (2) that his trial counsel was ineffective for not adequately preparing for trial; and (3) that because of counsel's alleged ineffectiveness and because he was never informed of the nature and elements of the charged offense his guilty plea was involuntary. The circuit court may conduct an evidentiary hearing or take evidence in the form of written affidavits, depositions, or interrogatories, and it shall issue specific written findings of fact regarding these claims. If the circuit court determines that Harris is entitled to relief on one or more of these claims, it may grant whatever relief it deems necessary. Due return shall be filed with this Court no later than 49 days from the date of this opinion. The return to remand shall include the circuit court's written findings of fact; a transcript of the evidentiary hearing, if one is conducted; any other evidence received or relied on by the court; and a transcript of the guilty-plea colloquy.
REMANDED WITH DIRECTIONS.[*]
McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.
NOTES
[1] We note that any direct appeal from his guilty plea would have been dismissed unless Harris had either reserved the right to appeal a certain issue before he entered his guilty plea or made a timely motion to withdraw his guilty plea. See Williams v. State, 854 So. 2d 625 (Ala.Crim.App.2003). Although Harris did not allege in his petition that he had expressly reserved the right to appeal an issue before he entered his plea, he maintained that he discussed the possibility of an appeal with his attorney immediately "[a]fter the judge had left the bench" following the entry of his plea, well within the time for filing a motion to withdraw. (C. 34.)
[2] Ireland v. State, 47 Ala.App. 65, 250 So. 2d 602 (1971).
[3] The State argued in its response that, although the two eyewitnesses referred to by Harris in his petition did not identify Harris as the shooter, there were other eyewitnesses who did identify Harris as the shooter and that it would have been the State's position at trial that both Harris and Jela Marshall, the person identified by the two eyewitnesses as the shooter, were involved in the shooting. However, what evidence the State would have presented had a trial been conducted does not address the question whether Harris's trial counsel adequately prepared for such a trial or what impact counsel's alleged lack of preparation had on the voluntariness of Harris's guilty plea.
[*] Note from the reporter of decisions: On June 17, 2005, on return to remand, the Court of Criminal Appeals affirmed, without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620499/ | 13 So. 3d 1044 (2009)
In re AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION AND THE FLORIDA RULES OF APPELLATE PROCEDURE-IMPLEMENTATION OF COMMISSION ON TRIAL COURT PERFORMANCE AND ACCOUNTABILITY RECOMMENDATIONS.
No. SC08-1658.
Supreme Court of Florida.
July 16, 2009.
John G. Crabtree, Chair, Florida Rules of Appellate Procedure Committee, Key Biscayne, Florida, John S. Mills, Past Chair, Florida Rules of Appellate Procedure Committee, Jacksonville, Florida; Judge Lisa Davidson, Chair, Florida Rules of Judicial Administration Committee, Eighteen Judicial Circuit, Viera, Florida, Scott M. Dimond, Past Chair, Florida Rules of Judicial Administration Committee and Katherine E. Giddings of Akerman Senterfitt, Tallahassee, Florida; Judge Robert B. Bennett, Jr., Chair, Commission on Trial Court Performance and Accountability, Twelfth Judicial Circuit, Sarasota, Florida and Laura Rush, Staff, Commission on Trial Court Performance and Accountability, Tallahassee, Florida; B. Elaine New, Court Counsel, Sixth Judicial Circuit, and Sherry McDonald, Senior Staff Attorney, St. Petersburg, Florida; and John F. Harkness, Jr., Executive Director, Krys Godwin, Staff Liaison to Appellate Rules Committee, and J. Craig Shaw, Staff Liaison to Judicial Administration Committee, The Florida Bar, Tallahassee, Florida, for Petitioners.
Thomas C. Saunders, Bartow, Florida, Jennifer Gaul, FCRA President and Susan D. Wasilewski, FCRA President-Elect and FCCRC Chairman, Altamonte Springs, Florida, on behalf of Florida Court Reporters Association; Gregg D. Thomas and Rachel E. Fugate of Thomas and LoCicero, P.L., Tampa, Florida, on behalf of Cox Newspapers, Inc., publisher of The Palm Beach Post, Media General Operations, Inc., d/b/a/ The Tampa Tribune and WFLA-TV, Lakeland Ledger Publishing Corporation, publisher of The Ledger, New York Times Regional Media Group, publisher of the Sarasota herald-Tribune, Gainesville Sun and Ocala Star-Banner, and Sun-Sentinel Company, publisher of the South Florida Sun-Sentinel (collectively the "Florida Media Organizations"); Carey Haughwout, Public Defender, and Robert Dewitt Trammell, General Counsel, Tallahassee, Florida, on behalf of Florida Public Defender Association, Inc.; Barbara A. Petersen, President and Adria E. Harper, Director, Tallahassee, Florida, on behalf of First Amendment Foundation; and Mary Watson, BSN, CPC, Lake Worth, Florida, Responding with comments.
PER CURIAM.
This matter is before the Court for consideration of proposed amendments to the Florida Rules of Judicial Administration and the Florida Rules of Appellate Procedure.[1] The proposed amendments implement recommendations of the Commission on Trial Court Performance and Accountability concerning court reporting services and the use of electronic recordings of court proceedings. We adopt the majority of the proposed amendments but decline to adopt the amendments that would restrict disclosure of electronic recordings of court proceedings.
BACKGROUND
The Commission on Trial Court Performance and Accountability (Commission) *1045 was created in 2002 to make recommendations concerning the improvement and accountability of Florida's trial courts. See In re Comm'n on Trial Court Performance and Accountability, AOSC02-27, at 2 (Aug. 30, 2002) (on file with Clerk, Fla. Sup.Ct.). In 2006, the Commission was charged with making "recommendations on the effective and efficient management of due process services." In re Comm'n on Trial Court Performance and Accountability, AOSC06-54, at 1 (Sept. 19, 2006) (on file with Clerk, Fla. Sup.Ct.). As relevant here, the Commission was directed to focus on "clarifying the legal and operational issues arising from the use of digital recording technology" and "developing operational standards and best practices for providing court reporting services." Id. at 1-2. The Commission was authorized "to propose amendments to rules of court procedure on issues involving trial court performance and accountability, for consideration by the Court." Id. at 4.
In October 2007, the Commission submitted its report, titled "Recommendations for the Provision of Court Reporting Services in Florida's Trial Courts," and also filed a petition proposing amendments to Rules of Judicial Administration 2.420, Public Access to Judicial Branch Records, and 2.535, Court Reporting, and Rules of Appellate Procedure 9.141, Appeal Proceedings in Criminal Cases, 9.200, The Record, and 9.900(h), Designation to Reporter (form).[2] In its petition, the Commission explained that recent legal challenges relating to problems with the use of digital reporting technology have focused on the shift away from trained court reporters toward the use of untrained transcriptionists and the potential presence of confidential information on digital recordings. In several cases, the district courts have expressed concern with respect to both the potential disclosure of confidential discourse that was inadvertently captured on digital recordings and the poor quality of transcripts prepared from digital recordings by untrained transcriptionists. See Moorman v. Hatfield, 958 So. 2d 396, 397 (Fla. 2d DCA 2007) (noting serious errors in a written transcript prepared from an audio recording of a court proceeding); Holt v. Chief Judge of Thirteenth Judicial Circuit, 920 So. 2d 814, 818 (Fla. 2d DCA 2006) (noting concern with respect to the unintended recording of confidential conversations in a court proceeding); see also R.P. v. Dep't of Children & Family Servs., 975 So. 2d 435, 437 (Fla. 2d DCA 2007) ("[T]he trial proceedings were tape-recorded and transcribed by a court reporter with results that can only be described as dismal."). The Commission proposed a number of rule amendments intended to address these concerns.
After consideration of the Commission's proposals, the Court referred them to the affected rules committees, the Rules of Judicial Administration Committee (RJA Committee) and the Appellate Court Rules Committee (Appellate Committee), for consideration. The Court asked the committees to file proper out-of-cycle reports and proposals, which they have done. The committees' proposals are consistent with the Commission's proposals. The proposals of the RJA Committee and Appellate Committee were published in the October 1, 2008, edition of The Florida Bar News, and several comments were filed concerning the proposed amendments to rules 2.420 and 2.535. The RJA Committee filed a response to two comments addressing technical matters. No comments were filed concerning the proposed amendments to the appellate rules.
*1046 AMENDMENTS
Upon consideration of the reports of the Commission and the rules committees, the comments, and the presentations of the interested parties at oral argument, which was heard in this matter on April 6, 2009, we amend the Florida Rules of Judicial Administration and the Florida Rules of Appellate Procedure as explained below.
First, Florida Rule of Judicial Administration 2.535(a) is amended to add definitions of several key terms. An "approved court reporter" is defined as "a court employee or contractor who performs court reporting services, including transcription, at public expense and who meets the court's certification, training, and other qualifications for court reporting." An "approved transcriptionist" is defined as "a court employee, contractor, or other individual who performs transcription services at public expense and who meets the court's certification, training, and other qualifications for transcribing proceedings." A "civil court reporter" is defined as a "court reporter who performs court reporting services in civil proceedings not required to be reported at public expense, and who meets the court's certification, training, and other qualifications for court reporting." The "electronic record" is defined as "the audio, analog, digital, or video record of a court proceeding," and the "official record" is "the transcript, which is the written record of court proceedings and depositions prepared in accordance with the requirements of subdivision (f)" of this rule.[3]
In conjunction with the amendments to rule 2.535(a), renumbered subdivisions (g) and (h) of rule 2.535, as well as appellate rules 9.140, 9.200, and 9.900(h)[4] are amended to incorporate the terms "approved transcriptionist," "approved court reporter," and "civil court reporter," where appropriate, throughout. Additionally, renumbered subdivision 2.535(h)(1) is amended to provide that all proceedings required by law or administrative order to be reported shall be reported at public expense, and new subdivision 2.535(h)(2) is added providing that proceedings reported for the court's own use may be reported at public expense. Renumbered subdivision 2.535(h)(3), Circuit Plan, requires each chief judge to enter an administrative order developing and implementing a circuit-wide plan for court reporting of proceedings required to be reported at public expense. This subdivision is amended to require that the circuit plan "ensure that all court reporting services are provided by `approved court reporters or approved transcriptionists.'"[5] Finally, a committee *1047 note is added to rule 2.535 explaining that when a court proceeding or deposition is electronically recorded and is also recorded via a written transcript, the written transcript is the "official record" and that the definitions of "electronic record" and "official record" in the rule do not alter the definition of the term "record" for appellate purposes.
The above discussed amendments to rules 2.535, 9.140, 9.200, and 9.900(h) are intended to address concerns about the integrity of transcripts prepared from digital recordings by authorizing preparation of the official record of proceedings by approved court reporters and approved transcriptionists who meet the circuit court's training and certification standards. The amendments are also intended to distinguish "approved transcriptionists" and "approved court reporters" from "civil court reporters," and clarify that the written transcript is the "official record" of a proceeding.
Next, in order to address concerns relating to the potential disclosure of confidential discourse inadvertently captured on digital recordings of court proceedings, a new subdivision is added to rule 2.535, entitled "Safeguarding Confidential Communications When Electronic Recording Equipment Is Used in the Courtroom." This subdivision requires court personnel to notify participants in a courtroom proceeding that electronic recording equipment is being used and warn participants that they should safeguard information they do not want recorded. It also states that participants have a duty to protect confidential information and specifically requires attorneys to take "all reasonable and available precautions" to protect disclosure of confidential communications, including muting microphones and moving to a location inaccessible to the recording equipment.
Finally, we decline to adopt several amendments to Florida Rules of Judicial Administration 2.420 and 2.535 proposed by the Commission and concurred with by the RJA Committee that would delete "electronic records, videotapes, or stenographic tapes of court proceedings" from the definition of "court records" and would restrict disclosure of electronic records except as permitted under certain circumstances in the discretion of the court or the chief judge. Although there are strong policy and practical concerns on both sides of this issue, we conclude that the concerns supporting the restriction of access to digital recordings of judicial proceedings are better addressed through means less restrictive than the proposal here, which would essentially deny access to digital recordings of courtroom proceedings, that are otherwise open to the public, except as permitted in the discretion of the court or the chief judge. Such a provision is overly restrictive and is contrary to Florida's well established public policy of government in the sunshine and this Court's longstanding presumption in favor of openness for all court proceedings and allowing access to records of those proceedings. See In re Amend. to Fla. R. Jud. Admin. 2.420-Sealing of Court Records & Dockets, 954 So. 2d 16, 23 (Fla.2007). Additionally, according to the comments filed in this matter, digital recordings of court proceedings are now widely used throughout the state by those involved in the court system, as well as the media, and have proven useful, reliable, efficient, and cost effective. We agree that access to these recordings should not be denied or left to the unfettered discretion of the trial court or the chief judge. Contra Media Gen. Operations, Inc. v. State, 12 So. 3d 239 (Fla. 2d *1048 DCA 2009) (concluding that an unedited audio recording created by digital electronic court reporting system is not an electronic record of court proceedings and thus is not a court record subject to disclosure under Rule of Judicial Administration 2.420).
CONCLUSION
Accordingly, the Florida Rules of Judicial Administration and the Florida Rules of Appellate Procedure are hereby amended as set forth in the appendix to this opinion. New language is underscored; deleted language is struck through. Committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.
APPENDIX
Amendments to Florida Rules of Judicial Administration
RULE 2.535. COURT REPORTING
(a) Definitions.
(1) "Approved court reporter" means a court employee or contractor who performs court reporting services, including transcription, at public expense and who meets the court's certification, training, and other qualifications for court reporting.
(2) "Approved transcriptionist" means a court employee, contractor, or other individual who performs transcription services at public expense and who meets the court's certification, training, and other qualifications for transcribing proceedings.
(3) "Civil court reporter" means a court reporter who performs court reporting services in civil proceedings not required to be reported at public expense, and who meets the court's certification, training, and other qualifications for court reporting.
(4) Court reporting means the act of making a verbatim record of the spoken word, whether by the use of written symbols, stenomask equipment, stenographic equipment, or electronic devices, in any proceedings pending in any of the courts of this state, including all discovery proceedings conducted in connection therewith, any proceedings reported for the courts own use, and all proceedings required by statute to be reported by a certified or official an approved court reporter or civil court reporter. It does not mean either the act of taking witness statements not intended for use in court as substantive evidence, or the act of electronic recording and transcription of proceedings as provided for in subdivision (g)(3).
(5) "Electronic record" means the audio, analog, digital, or video record of a court proceeding.
(6) "Official record" means the transcript, which is the written record of court proceedings and depositions prepared in accordance with the requirements of subdivision (f).
(b)-(c) [No change]
(d) Ownership of Records.The chief judge of the circuit in which a proceeding is pending, in his or her official capacity, is the owner of all records and electronic records made by an official court reporter or quasi-judicial officer in proceedings required to be reported at public expense and proceedings reported for the court's own use.
*1049 (d)(e) Fees. The chief judge shall have the discretion to adopt an administrative order establishing maximum fees for court reporting services not covered in the plan adopted pursuant to subdivision (g). Any such order must make a specific factual finding that the setting of such maximum fees is necessary to ensure access to the courts. Such finding shall include consideration of the number of court reporters in the county or circuit, any past history of fee schedules, and any other relevant factors.
(e)(f) Transcripts. Transcripts of all judicial proceedings, including depositions, shall be uniform in and for all courts throughout the state. The form, size, spacing, and method of printing transcripts are as follows:
(1)-(10) [No change]
(f)(g) Reporter as Officers of the Court. AApproved court reporters, civil court reporters, and approved transcriptionists are is an officers of the court for all purposes while acting as acourt reporters in a judicial proceedings or discovery proceedings or as transcriptionists. The Approved court reporters, civil court reporters, and approved transcriptionists shall comply with all rules and statutes governing the proceeding that are applicable to court reporters and approved transcriptionists.
(g)(h) Court Reporting Services Provided in Mental Health Proceedings or at Public Expense.
(1) When Reporting Is Required. All criminal and juvenile proceedings, and any other judicial proceedings required by law, or court rule, or administrative order to be reported shall be reported at public expense, shall be reported.
(2) When Reporting May Be Required. Proceedings reported for the court's own use may be reported at public expense.
(2)(3) Circuit Plan. The chief judge, after consultation with the circuit court and county court judges in the circuit, shall enter an administrative order developing and implementing a circuit-wide plan for the court reporting of all proceedings required to be reported at public expense using either full or part time court employees or independent contractors. The plan shall ensure that all court reporting services are provided by qualified personsapproved court reporters or approved transcriptionists. This plan may provide for multiple service delivery strategies if they are necessary to ensure the efficient provision of court reporting services. Each circuits plan for court reporting services shall be developed after consideration of guidelines issued by the Office of the State Courts Administrator.
(3)(4) Electronic Recording and Transcription of Proceedings Without Court Reporters. A chief judge may enter a circuit-wide administrative order, which shall be recorded, authorizing the electronic recording and subsequent transcription by persons other thanapproved court reporters or approved transcriptionists, of any judicial proceedings, including depositions, that are otherwise required to be reported by a court reporter. Appropriate procedures shall be prescribed in the order which shall:
(A) set forth responsibilities for the courts support personnel to ensure a reliable record of the proceedings;
(B) provide a means to have the recording transcribed by approved court reporters or approved transcriptionists, either in whole or in part, when necessary for an appeal or for further use in the trial court; and
*1050 (C) provide for the safekeeping of such recordings.
The presiding judge in a specific case, however, may require a court reporter, if available, or either party may provide and pay for the cost of a court reporter. Such court reporter shall be subject to the orders of the court and directions to transcribe the record from all parties.
(5) Safeguarding Confidential Communications When Electronic Recording Equipment Is Used in the Courtroom.
(A) Court personnel shall provide notice to participants in a courtroom proceeding that electronic recording equipment is in use and that they should safeguard information they do not want recorded.
(B) Attorneys shall take all reasonable and available precautions to protect disclosure of confidential communications in the courtroom. Such precautions may include muting microphones or going to a designated location that is inaccessible to the recording equipment.
(C) Participants have a duty to protect confidential information.
(4)(6) Grand Jury Proceedings. Testimony in grand jury proceedings shall be reported by an approved court reporter, but shall not be transcribed unless required by order of court. Other parts of grand jury proceedings, including deliberations and voting, shall not be reported. The approved court reporters work product, including stenographic notes, electronic recordings, and transcripts, shall be filed with the clerk of the court under seal.
(h)(i) Court Reporting Services in Capital Cases. On or before January 1, 2001, the The chief judge, after consultation with the circuit court judges in the circuit, shall enter an administrative order developing and implementing a circuit-wide plan for court reporting in all trials in which the state seeks the death penalty and in capital postconviction proceedings. The plan shall require the use of all measures necessary to expedite the preparation of the transcript, including but not limited to:
(1) where available, the use of an approved court reporter who has the capacity to provide real-time transcription of the proceedings;
(2) if real-time transcription services are not available, the use of a computer-aided transcription qualified court reporter;
(3) the use of scopists, text editors, alternating court reporters, or other means to expedite the finalization of the certified transcript; and
(4) the imposition of reasonable restrictions on work assignments by employee or contract approved court reporters to ensure that transcript production in capital cases is given a priority.
Committee Note
The definitions of "electronic record" in n subdivision (a)(5) and of "official record" in subdivision (a)(6) are intended to clarify that when a court proceeding is electronically recorded by means of audio, analog, digital, or video equipment, and is also recorded via a written transcript prepared by a court reporter, the written transcript shall be the "official record" of the proceeding to the exclusion of all electronic records. While the term "record" is used within Rule 2.535 and within Fla. R.App. P. 9.200, it has a different meaning within the unique context of each rule. Accordingly, the meaning of the term "record" as defined for purposes of this rule does not in any way alter, amend, change, or conflict with the meaning of the term "record" *1051 as defined for appellate purposes in Fla. R.App. P. 9.200(a).
Amendments to the Florida Rules of Appellate Procedure
RULE 9.140. Appeal Proceedings in Criminal Cases
(a) [No change]
(b) Appeals by Defendant.
(1) [No change]
(2) Guilty or Nolo Contendere Pleas.
(A) [No change]
(B) Record.
(i) Except for appeals under subdivision (b)(2)(A)(i) of this rule, the record for appeals involving a plea of guilty or nolo contendere shall be limited to:
a.-e. [No change]
f. notice of appeal, statement of judicial acts to be reviewed, directions to the clerk, and designation to the approved court reporter or approved transcriptionist.
(ii) [No change]
(3)-(4) [No change]
(c) [No change]
(d) Withdrawal of Defense Counsel after Judgment and Sentence or after Appeal by State.
(1) The attorney of record for a defendant in a criminal proceeding shall not be relieved of any professional duties, or be permitted to withdraw as defense counsel of record, except with approval of the lower tribunal on good cause shown on written motion, until either the time has expired for filing an authorized notice of appeal and no such notice has been filed by the defendant or the state, or after the following have been completed:
(A)-(C) [No change]
(D) designations to the approved court reporter or approved transcriptionist have been filed for transcripts of those portions of the proceedings necessary to support the issues on appeal or, if transcripts will require the expenditure of public funds for the defendant, of those portions of the proceedings necessary to support the statement of judicial acts to be reviewed; and
(E) [No change]
(2) [No change]
(e) [No change]
(f) Record.
(1) [No change]
(2) Transcripts.
(A) If a defendant's designation of a transcript of proceedings requires expenditure of public funds, trial counsel for the defendant (in conjunction with appellate counsel, if possible) shall serve, within 10 days of filing the notice, a statement of judicial acts to be reviewed, and a designation to the approved court reporter or approved transcriptionist requiring preparation of only so much of the proceedings as fairly supports the issue raised.
(B) Either party may file motions in the lower tribunal to reduce or expand the transcripts.
(C) Except as permitted in subdivision (f)(2)(D) of this rule, the parties shall designate the approved court reporter or approved transcriptionist to file with the clerk of the lower tribunal the original transcripts for the court and sufficient copies for the state and all indigent defendants.
(D) Non-indigent defendants represented by counsel may designate the approved court reporter or approved transcriptionist to prepare only original transcripts. Counsel adopting this procedure shall, within 5 days of receipt of *1052 the original transcripts from the approved court reporter or approved transcriptionist, file the original transcripts along with securely bound copies for the state and all defendants. Counsel shall serve notice of the use of this procedure on the attorney general (or the state attorney in appeals to circuit court) and the clerk of the lower tribunal. Counsel shall attach a certificate to each copy certifying that it is an accurate and complete copy of the original transcript. When this procedure is used, the clerk of the lower tribunal upon conclusion of the appeal shall retain the original transcript for use as needed by the state in any collateral proceedings and shall not destroy the transcripts without the consent of the Office of the Attorney General.
(E) In state appeals, the state shall designate the approved court reporter or approved transcriptionist to prepare and file with the clerk of the lower tribunal the original transcripts and sufficient copies for all separately represented defendants. Alternatively, the state may elect to use the procedure specified in subdivision (f)(2)(D) of this rule.
(F) The lower tribunal may by administrative order in publicly-funded cases direct the clerk of the lower tribunal rather than the approved court reporter or approved transcriptionist to prepare the necessary copies of the original transcripts.
(3)-(5) [No change]
(6) Supplemental Record for Motion to Correct Sentencing Error Pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).
(A) [No change]
(B) If any appellate counsel determines that a transcript of a proceeding relating to such a motion is required to review the sentencing issue, appellate counsel shall, within 5 days from the transmittal of the supplement described in subdivision (A), designate those portions of the proceedings not on file deemed necessary for transcription and inclusion in the record. A copy of the designation shall be filed with the appellate court. The procedure for this supplementation shall be in accordance with this subdivision, except that counsel is not required to file a revised statement of judicial acts to be reviewed, the approved court reporter or approved transcriptionist shall deliver the transcript within 15 days, and the clerk shall supplement the record with the transcript within 5 days of its receipt.
(g)-(i) [No change]
Committee Notes
[No change]
RULE 9.200. The Record
(a) [No change]
(b) Transcript(s) of Proceedings.
(1) Within 10 days of filing the notice, the appellant shall designate those portions of the proceedings not on file deemed necessary for transcription and inclusion in the record. Within 20 days of filing the notice, an appellee may designate additional portions of the proceedings. Copies of designations shall be served on the approved court reporter, civil court reporter, or approved transcriptionist. Costs of the original and all copies of the transcript(s) so designated shall be borne initially by the designating party, subject to appropriate taxation of costs as prescribed by rule 9.400. At the time of the designation, unless other satisfactory arrangements have been made, the designating party must make a deposit of 1/2 of the estimated transcript costs, and must pay the full balance of the fee on delivery of the completed transcript(s).
*1053 (2) Within 30 days of service of a designation, or within the additional time provided for under subdivision (b)(3) of this rule, the approved court reporter, civil court reporter, or approved transcriptionist shall transcribe and file with the clerk of the lower tribunal the designated proceedings and shall serve copies as requested in the designation. In addition to the paper copies, the approved court reporter, civil court reporter, or approved transcriptionist shall file with the clerk of the lower tribunal and serve on the designated parties an electronic copy of the designated proceedings in a format approved by the supreme court. If a designating party directs the approved court reporter, civil court reporter, or approved transcriptionist to furnish the transcript(s) to fewer than all parties, that designating party shall serve a copy of the designated transcript(s), in both electronic and paper form, on the parties within 5 days of receipt from the approved court reporter, civil court reporter, or approved transcriptionist. The transcript of the trial shall be securely bound in consecutively numbered volumes not to exceed 200 pages each, and each page shall be numbered consecutively. Each volume shall be prefaced by an index containing the names of the witnesses, a list of all exhibits offered and introduced in evidence, and the pages where each may be found.
(3) On service of a designation, the approved court reporter, civil court reporter, or approved transcriptionist shall acknowledge at the foot of the designation the fact that it has been received and the date on which the approved court reporter, civil court reporter, or approved transcriptionist expects to have the transcript(s) completed and shall transmit the designation, so endorsed, to the parties and to the clerk of the appellate court within 5 days of service. If the transcript(s) cannot be completed within 30 days of service of the designation, the approved court reporter, civil court reporter, or approved transcriptionist shall request such additional time as is reasonably necessary and shall state the reasons therefor. If the approved court reporter, civil court reporter, or approved transcriptionist requests an extension of time, the court shall allow the parties 5 days in which to object or agree. The appellate court shall approve the request or take other appropriate action and shall notify the reporter and the parties of the due date of the transcript(s).
(4) [No change]
(c)-(g) [No change]
9.900(h). Designation to Approved Court Reporter,Civil Court Reporter, or Approved Transcriptionist.
IN THE .....(NAME OF LOWER
TRIBUNAL WHOSE ORDER
IS TO BE REVIEWED)......
Case No. _________
_________________________,
Plaintiff/Appellant,
v.
_________________________,
Defendant/Appellee.
DESIGNATION TO APPROVED COURT REPORTER, CIVIL COURT REPORTER, OR APPROVED TRANSCRIPTIONIST, AND REPORTER'S OR APPROVED TRANSCRIPTIONIST'S ACKNOWLEDGEMENT
I. DESIGNATION
Plaintiff/Appellant, _________________, files this Designation to Approved Court Reporter, Civil Court Reporter, or Approved Transcriptionist and directs.....(name of approved court reporter, civil court reporter, or approved *1054 transcriptionist)..... to transcribe an original and ____ copies of the following portions of the trial proceedings to be used in this appeal:
1. The entire trial proceedings recorded by the reporter on .....(date)....., before the Honorable .....(judge)....., except _________________________.
2. [Indicate all other portions of reported proceedings.]
3. The approved court reporter, civil court reporter, or approved transcriptionist is directed to file the original with the clerk of the lower tribunal and to serve one copy on each of the following:
1.
2.
3.
I, counsel for Appellant, certify that satisfactory financial arrangements have been made with the approved court reporter, civil court reporter, or approved transcriptionist for preparation of the transcript.
______________________
Attorney for .....(name of party)
.....
.... (address and phone number)
....Florida Bar No.
..................
II. APPROVED COURT REPORTER'S, CIVIL COURT REPORTER'S, OR APPROVED TRANSCRIPTIONIST'S ACKNOWLEDGMENT
1. The foregoing designation was served on .....(date)....., and received on .....(date).....
2. Satisfactory arrangements have ( ) have not ( ) been made for payment of the transcript cost. These financial arrangements were completed on.....(date).....
3. Number of trial or hearing days ____.
4. Estimated number of transcript pages ____.
5a. The transcript will be available within 30 days of service of the foregoing designation and will be filed on or before.....(date).....
OR
5b. For the following reason(s) the approved court reporter, civil court reporter or approved transcriptionist requests an extension of time of _____ days for preparation of the transcript that will be filed on or before .....(date).....
6. Completion and filing of this acknowledgment by the approved court reporter, civil court reporter or approved transcriptionist constitutes submission to the jurisdiction of the court for all purposes in connection with these appellate proceedings.
7. The undersigned approved court reporter, civil court reporter or approved transcriptionist certifies that the foregoing is true and correct and that a copy has been furnished by mail ( ) hand delivery ( ) on.....(date)....., to each of the parties or their counsel.
______________________________
Approved Court Reporter, Civil
Court Reporter or Approved Transcriptionist
.....(address).....
Note: The foregoing approved court reporter's, civil court reporter's, or approved transcriptionist's acknowledgment to be placed "at the foot of" or attached to a copy of the designation, shall be properly completed, signed by the court reporter, and filed with the clerk of the appellate *1055 court within 5 days of service of the designation on the approved court reporter, civil court reporter, or approved transcriptionist. A copy shall be served on all parties or their counsel, who shall have 5 days to object to any requested extension of time. See Fla. R.App. P. 9.200(b)(1), (2), & (3).
NOTES
[1] We have jurisdiction. See art. V, § 2(a), Fla. Const.
[2] In the report, the Commission also made a number of related administrative recommendations that are being considered separately from this rules case.
[3] The definition of "court reporting" is also amended to (1) add "any proceedings reported for the court's own use" to the description of the kinds of proceedings covered, (2) change the term "certified or official" court reporter to "an approved" court reporter and add "civil court reporter," (3) delete language stating that court reporting does not mean "the act of electronic recording and transcription of proceedings as provided for in subdivision (g)(3)" and (4) add the term "stenographic equipment" to the list of ways the record may be made.
[4] Florida Rule of Appellate Procedure 9.900(h) is a form, "Designation to Reporter." The title of the form is changed to "Designation to Approved Court Reporter, Civil Court Reporter, or Approved Transcriptionist."
[5] New subdivision 2.535(d), Ownership of Record, is also added, providing that the chief judge of the circuit, in his or her official capacity, is the owner of all records and electronic records made by an approved court reporter or quasi-judicial officer in proceedings required to be reported at public expense and proceedings reported for the court's own use. Additionally, renumbered subdivision 2.535(e) provides that the chief judge has discretion to adopt an administrative order establishing maximum fees for court reporting services. This subdivision is amended to delete language referencing services "not covered in the plan adopted pursuant to subdivision (g)." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620494/ | 221 Wis. 2d 692 (1998)
585 N.W.2d 826
C.L. and T.W. (minor), by his Guardian ad Litem, D. Michael Guerin, Plaintiffs,
v.
The SCHOOL DISTRICT OF MENOMONEE FALLS and Crum & Forster, Defendants,
John W. BAUERNFEIND, Defendant-Appellant,
AETNA CASUALTY & SURETY Co., Defendant-Intervenor,
HORACE MANN INSURANCE Co., Defendant-Intervenor-Respondent.
No. 97-0083.
Court of Appeals of Wisconsin.
Submitted on briefs July 1, 1998.
Decided September 1, 1998.
*694 On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark J. Goldstein of Padway & Padway, Ltd. of Milwaukee.
On behalf of the defendant-intervenor-respondent, the cause was submitted on the brief of John D. Finerty, Jr. of Kravit, Gass & Weber, S.C. of Milwaukee.
Before Wedemeyer, P.J., Schudson and Curley, JJ.
WEDEMEYER, P.J.
John W. Bauernfeind appeals from a grant of summary judgment in favor of Horace Mann Insurance Co., the employment liability insurer for educators. He claims the trial court erred in concluding that the criminal acts and intentional acts exclusions in the policy relieved Horace Mann of defending Bauernfeind in the civil suit filed by T.W., which alleged that Bauernfeind sexually assaulted T.W. He also claims that Horace Mann must defend him against the school district's cross claim. Because *695 the intentional acts exclusion relied on by the trial court precludes coverage under the policy, and because the exclusion also precludes coverage on the cross claim, we affirm.
I. BACKGROUND
T.W., a thirteen-year-old boy, and his mother, C.L., filed a civil suit against Bauernfeind, his employer (the school district), and the district's insurance company. The complaint alleged that, while working as a middle school librarian, Bauernfeind had sexual contact with T.W., a student, on four separate occasions. The complaint alleged that Bauernfeind "intentionally had sexual contact" with T.W., contributed to the delinquency of T.W., intentionally inflicted emotional distress on T.W., and, in the alternative, that Bauernfeind was "negligent in that he knew or should have known that having sexual contact with T.W. might cause T.W. physical or emotional harm."
Horace Mann provided employment liability insurance coverage to Bauernfeind in his capacity as an educator and, upon notice of the suit from Bauernfeind, Horace Mann agreed to defend him under a reservation of rights.[1] Horace Mann intervened in this action and filed a motion for summary judgment claiming that the allegations against Bauernfeind were criminal and/or intentional as a matter of law and sought a declaration that, based on *696 the exclusions in the policy, it had no duty to defend Bauernfeind.
Bauernfeind also faced criminal charges based on T.W.'s allegations. Bauernfeind resolved the criminal charges by entering Alford[2] pleas to one count of thirddegree sexual assault and one count of exposing a child to harmful materials, contrary to §§ 940.225(3) and 948.11(2)(a), STATS. He was sentenced to five years in prison on the first count and two years in prison, imposed and stayed, on the second count. In addition, the trial court placed him on four years probation consecutive to the first count.
Granting summary judgment, the trial court ruled in pertinent part:
This lawsuit no matter what the nature of the claims are [sic], direct liability or contribution, arise [sic] out of acts which have been held by a court to constitute a crime. And I don't think that language is ambiguous. I don't think it's unclear. It's as clear as clear could be. And he has been convicted of actually two crimes, but one in particular that directly relates to the conduct which is the core of the claim against him; that is, he has been convicted of third degree sexual assault. And given those facts the exclusion applies. It applies clearly. It applies unambiguously. And I think they're out on that basis.
Secondly, I think they're . . . out on the intentional acts basis exclusion as well.
The occurrence, sexual assault, involved damages which are the intended conduct of the actions taken by this person. . . . I don't think there is any reasonable argument about that.
And then you get into this issue about whether the conduct is substantially certain to cause injury, *697 . . . we're talking about a 13-year-old child here. . . . If you take a 13-year-old child and subject that child to sexual molestations you, in my view, should clearly infer as a matter of law that harm is going to flow to this child.
Judgment was entered. Bauernfeind now appeals.
II. DISCUSSION
A. Standard of Review.
[1, 2]
The rubrics by which we review a grant of summary judgment are well known and need not be repeated here. See § 802.08, STATS. Our review is de novo. See M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496-97, 536 N.W.2d 175, 182 (Ct. App. 1995). Moreover, interpretation of an insurance contract also involves this court's independent review. See Smith v. State Farm Fire & Casualty Co, 192 Wis. 2d 322, 328-29, 531 N.W.2d 376, 379 (Ct. App. 1995). We also note that insurance policies are construed to give their language "its common and ordinary meaning as [that language] would be understood by a reasonable person in the position of the insured." Id., 192 Wis. 2d at 329, 531 N.W.2d at 379.
B. Pertinent Insurance Provisions.
Horace Mann's policy provided in pertinent part:
In this part, we indicate the contract coverages subject to the exclusions, conditions, limits of coverage and other terms of this contract.
A. EDUCATORS LIABILITY. We agree to pay all damages which you shall become legally *698 required to pay as a result of any claim: which comes from an occurrence in the course of your educational employment activities; and which is caused by your acts or omissions or those of other persons for whose acts you are held liable, not to exceed the limit of coverage stated in the declarations for this coverage.[3]
. . . .
EXCLUSIONS
. . . .
B. CIVIL SUITS ARISING FROM CRIMINAL ACTS. . . . this contract does not apply to any civil suit arising out of an act, other than corporal punishment, which has been held by a court to constitute a crime.
. . . .
J. INTENTIONAL DAMAGES. . . . this contract does not apply to occurrences involving damages which are the intended consequence of action taken by or at your direction, unless the action involves corporal punishment.
C. Application.
Bauernfeind claims that the allegations in the complaint do not constitute intentional or criminal acts. He asserts that the conduct cannot fall under the intentional exclusion because Bauernfeind did not intend to harm T.W., and that the conduct involved here is analogous to the conduct at issue in Loveridge v. Chartier, 161 Wis. 2d 150, 468 N.W.2d 146 (1991), *699 where our supreme court held that an insured engaging in consensual sexual intercourse with a sixteenyear-old minor did not, as a matter of law, intend to cause bodily injury to the minor. See id. at 175, 468 N.W.2d at 153. He also asserts that the conduct cannot fall under the criminal acts exclusion because he entered an Alford plea to the criminal charges rather than a guilty plea and, in the alternative, the criminal acts exclusion is ambiguous and illusory. We reject Bauernfeind's argument regarding the intentional acts exclusion and, therefore, it is not necessary to address the criminal acts exclusion. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the narrowest possible grounds).
[3, 4]
When determining whether an insurer has a duty to defend, we must compare the allegations within the four corners of the complaint with the terms of the insurance policy. See Newhouse v. Citizens Sec. Mut. Ins. Co., 176 Wis. 2d 824, 835, 501 N.W.2d 1, 5 (1993). The existence of the duty to defend depends solely upon the nature of the claim being asserted against the insured and has nothing to do with the merits of the claim. See Radke v. Fireman's Fund Ins. Co., 217 Wis. 2d 39, 43, 577 N.W.2d 366, 369 (Ct. App. 1998). If there are allegations in the complaint which, if proven, would be covered by the policy, the insurer has a duty to defend. See Grube v. Daun, 173 Wis. 2d 30, 72, 496 N.W.2d 106, 122 (Ct. App. 1992). Policy exclusions are to be narrowly construed against the insurer and any ambiguity regarding coverage is to be resolved in favor of the insured. See Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597, 598 (1990).
*700 The complaint in the instant case makes four allegations against Bauernfeind: (1) intentional sexual contact in violation of § 948.02(2), STATS.; (2) contributing to the delinquency of a minor, contrary to § 948.40, STATS.; (3) intentional infliction of emotional distress; and (4) in the alternative, negligent infliction of emotional distress in that Bauernfeind knew or should have known that his conduct might harm T.W.
The question is whether these allegations fall within an exclusion under the policy. If the allegations, if proven, fall under any exclusion, Horace Mann is not obligated to defend Bauernfeind, and the trial court properly granted summary judgment.
Bauernfeind argues that the intentional acts exclusion does not apply because he did not intend to injure T.W., and the conduct at issue in this case is analogous to Loveridge, where the supreme court refused to infer an intent to injure as a matter of law based on allegations of sexual assault of a minor. We do not agree that the facts alleged here are analogous to those in Loveridge. The Loveridge case involved an undisputed ongoing consensual relationship between an adult and a sixteen-year-old minor. These two factors, consent, and age, influenced the court's decision. The court based its decision, in part, on our legislature's recognition that sexual contact with persons between sixteen and eighteen is "less harmful than sexual contact between an adult and a person under" the age of sixteen. Id., 161 Wis. 2d at 175, 468 N.W.2d at 153.
[5]
In addressing Bauernfeind's claim, we emphasize again that the allegations in cases such as these must be viewed on a case-by-case basis. See K.A.G. v. Stanford, 148 Wis. 2d 158, 165, 434 N.W.2d 790, 793 (Ct. *701 App. 1988). In K.A.G., this court addressed whether an intent to injure may be inferred for the purpose of applying the intentional acts exclusion. See id. at 163, 434 N.W.2d at 792. We held that intent to injure "may be inferred where injury is substantially certain to result from an insured's intentional conduct." Id. In applying this rule, two requirements must be satisfied: (1) the conduct must be intentional; and (2) the conduct must be substantially certain to cause injury. See id. If these two requirements are met, this rule will be applied "if the degree of certainty that the conduct will cause injury is sufficiently great to justify inferring intent to injure as a matter of law." Id.
[6]
Applying this rule to the instant case, we conclude that intent to injure may be inferred as a matter of law. With the exception of the negligent infliction of emotional distress claim, the complaint alleges that Bauernfeind's conduct was intentional. The first two claims actually refer to criminal statutes that require a showing of intent. All three claims clearly allege that the conduct at issue was intentional. Moreover, the fourth claim, although labeled as "negligent" infliction of emotional distress, alleges facts that certainly are intentional in nature. The claim incorporates the facts set forth under the intentional claims and then alleges that Bauernfeind was "negligent in that he knew or should have known that having sexual contact with T.W. might cause" harm. We recently addressed a similar issue in Jessica M.F. v. Liberty Mutual Fire Insurance Co., 209 Wis. 2d 42, 561 N.W.2d 787 (Ct. App. 1997).
In Jessica M.F., we concluded that "the intentional-acts exclusion precludes homeowner insurance coverage for one who knew or should have known of *702 sexual abuse committed by one's spouse," even when the allegation is one based in negligence. See id. at 53, 561 N.W.2d at 792. In that case, the complaint alleged that the grandfather" `had sexual contact and engaged in sexually explicit conduct' with each of the four grandchildren." Id. at 45-46, 561 N.W.2d at 789. It was conceded on appeal that the intentional acts exclusion of the grandparents' homeowners policy precluded coverage for the claims asserted against the grandfather. See id. at 49, 561 N.W.2d at 791. The appeal issue involved whether the intentional acts exclusion precluded coverage for the claim against the grandmother where the complaint alleged that she was negligent in that she "knew or, in the exercise of reasonable care, should have known" of the grandfather's abuse of their four grandchildren. Id. at 54, 561 N.W.2d at 792-93. We concluded that "in the context of child sexual abuse allegedly committed by one's spouse under circumstances in which the spouse `in the exercise of reasonable care, should have known,' the intentional-acts exclusion precludes coverage." Id. at 55, 561 N.W.2d at 793. It logically follows then that the negligence allegation in the instant case is actually one that falls under an intentional act.
Moreover, any negligence theory in this case is inapplicable because the alleged acts committed by Bauernfeind were intentional. Where intent to injure flows from intentional conduct, it is illogical to assert that negligence played any role. Where intent to injure is inferred as a matter of law, as is the case here, then none of the claimed injuries can be caused by negligent conduct. As stated by Judge Burns in dismissing Aetna from this case: "What this really boils down to . . . is that the term `negligent sexual molestation' is really an oxymoron. I say this because in this case, where intent *703 to harm is a given, negligence is out of the case." We agree. Accordingly, the first requirement set forth in K.A.G. is satisfied and we now address the second requirement.
Wisconsin courts have already inferred an intent to injure as a matter of law where an adult engages in sexual molestation of a minor because such conduct is "so certain to result in injury to that minor" regardless of the actor's claimed intent in cases involving a six-year-old minor, and a nine-year-old minor. See K.A.G., 148 Wis. 2d at 165, 434 N.W.2d at 793, N.N. v. Morraine Mut. Ins. Co., 153 Wis. 2d 84, 94, 450 N.W.2d 445, 449 (1990). As noted above, however, our supreme court refused to infer intent to injure when the case involved a sixteen- to seventeen-year-old. In this case, we must decide whether the intent to injure can be inferred when the minor is thirteen-years-old. Under the facts alleged here, we conclude that the sexual assaults against T.W. are so certain to result in injury, that intent to injure may be inferred as a matter of law.
The complaint alleges that the sexual contact occurred on four separate occasions when Bauernfeind manipulated the circumstances to create situations where he and T.W. were alone. Further, the complaint alleges that Bauernfeind threatened T.W. not to tell anyone about the sexual contact. We also find it significant that our legislature has concluded that: (1) sexual assaults of minors between the ages of sixteen and eighteen are not as serious a crime as a sexual assault of minors under the age of sixteen, see § 948.09, STATS. (sexual intercourse with child sixteen or older is misdemeanor); § 948.02, STATS. (sexual assault of child under age sixteen is a felony); and (2) a child under the age of sixteen cannot consent to sexual contact. See State v. *704 Fisher, 211 Wis. 2d 665, 669-70, 565 N.W.2d 565, 568 ( Ct. App. 1997).
[7]
This case involves a thirteen-year-old child. Although not as young as the victims in K.A.G., or N.N., we conclude that T.W. was a child of vulnerable years and this case, like K.A.G., involves conduct so substantially certain to cause injury that it justifies inferring intent to injure as a matter of law. Again, we adopt the reasoning set forth by Judge Burns in dismissing Aetna from this case:
The conduct which T.W. alleged in this complaint was certainly intentional and I conclude it was substantially certain to cause injury for a boy of 13 entering or in his pubescent years at a time when he was just discovering his own sexuality he certainly is particularly vulnerable.
There can be no doubt that the sexual activity with an adult male at that point in his life is substantially certain to cause injury within the meaning of that requirement. I, therefore, conclude that the rationale of K.A.G. applies to this case with a peculiar fitness and that the two constitutive elements required for an establishment of this cause of action are met as a matter of law.
Therefore, we hold that the conduct alleged here falls into the intentional acts exclusion of Horace Mann's insurance policy and precludes coverage.[4] Because we *705 have concluded that the intentional acts exclusion precludes coverage, it is not necessary for us to address whether coverage is also precluded under the criminal acts exclusion. See Blalock, 150 Wis. 2d at 703, 442 N.W.2d at 520 (cases should be decided on the narrowest possible grounds).
D. Cross Claim.
Bauernfeind also claims that Horace Mann should not be relieved of defending him on the cross claim filed by the school district. T.W. also sued the school district for negligent supervision/failure to warn, violation of his civil rights, and punitive damages. The school district cross-claimed against Bauernfeind, alleging, "In the event, upon the trial of this action, [the school district and its insurer] are found to be jointly liable with John W. Bauernfeind to the plaintiffs for damages, then these answering defendants shall be entitled to contribution according to law from John W. Bauernfeind." The trial court determined that, because the allegations against Bauernfeind all are intentional acts, there is no coverage, whether the claim is a direct action against Bauernfeind by the plaintiffs or a contribution claim against Bauernfeind by the school district. Bauernfeind's conduct is excluded under the policy; therefore, there is no coverage. We agree with the trial court, but add the following analysis.
[8, 9]
Contribution allows a negligent joint tortfeasor to recover his or her portion of a judgment against a negligent joint tortfeasor who is apportioned a greater *706 percentage of causal negligence. See Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 178, 290 N.W.2d 276, 278-79 (1980). Bauernfeind, however, cannot be considered a negligent joint tortfeasor with the school district because his conduct was intentional. Contribution is inapplicable to this case. Whether the school district, if found liable, may be able to recover from Bauernfeind under another theory is not for us to decide at this time.
If recovery is sought, however, Horace Mann's policy does not provide coverage for Bauernfeind's conduct because of the applicable exclusion in the policy. The school district's cross claim does not alter the nature of Bauernfeind's conduct. Under these facts and circumstances, the intentional acts exclusion precludes coverage on both the plaintiffs' claim and the cross claim. Therefore, the trial court did not err in granting summary judgment and dismissing Horace Mann from the case.
By the Court.Judgment affirmed.
NOTES
[1] Bauernfeind's homeowners' insurer, Aetna Casualty & Surety Co., also agreed to defend under a reservation of rights. Aetna intervened and moved for summary judgment on the basis that the intentional acts exclusion barred coverage. The trial court presiding over that motion, the Hon. George A. Burns, granted the motion and Aetna was dismissed from the case.
[2] See North Carolina v. Alford, 400 U.S. 25 (1970).
[3] The parties do not argue and, therefore, we do not decide whether the conduct alleged in this case constitutes an "occurrence in the course of your educational employment activities" as those terms are defined in the insurance policy.
[4] We are not persuaded by Bauernfeind's claim that, because this case involves an educators' employment liability policy rather than a homeowner's policy, a reasonable insured would expect the policy to provide coverage for allegations of sexual contact. No reasonable person would expect an insurance policy to provide coverage for damages resulting from his or her sexual misconduct when the language in the intentional acts exclusion would alert a reasonable person that injury inflicted intentionally is not subject to coverage. See K.A.G. v. Stanford, 148 Wis. 2d 158, 165-66, 434 N.W.2d 790, 793 (Ct. App. 1988). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620514/ | 294 S.W.2d 851 (1956)
CITY OF GRAND PRAIRIE, Appellant,
v.
Ruth FINCH et vir, Appellees.
No. 15160.
Court of Civil Appeals of Texas, Dallas.
September 28, 1956.
*852 June R. Welch, Grand Prairie, for appellant.
Hubert D. Wills and Arthur H. Waddell, Grand Prairie, for appellees.
DIXON, Chief Justice.
In a suit against Ruth Finch and her husband J. T. Finch the City of Grand Prairie, Texas, seeks an injunction to restrain appellee Ruth Finch from allegedly violating the city's zoning ordinance by operating a nursery, or "baby-sitting" business at the home of the appellees, 521 Shawnee Street, in a district zoned for single family dwellings. The trial court refused to grant the injunction. The city on appeal asks us to reverse the trial court's judgment and either to enjoin appellees from further violating the city's zoning ordinance, or to remand the cause with instructions to enter the judgment prayed for by appellant.
The particular provisions in the ordinance which the city says appellees are violating are as follows:
*853 "Section 3. Use Districts. * * * no buildings or premises shall be used * * * for other than one or more of the uses assigned and allocated to same respectively as follows: (A) One Family or Single Family Dwelling District (1) One-Family Dwellings. (2) Public Park or Play Grounds. (3) Accessory buildings are permitted, including a private garage and servant's quarters * * *. (4) The uses customarily incident to any of the above uses when situated in the same dwelling and not involving the conduct of a business, including customary home occupations engaged in by the occupants of the dwelling and including also the office of a physician, surgeon, dentist, musician or artist when situated in the same dwelling used by such physician, surgeon, dentist, musician or artist as his or her private dwelling, but said incidental use shall never be permitted as principal use, but only as a secondary use when indispensably necessary to the enjoyment of the premises for any one of the uses permitted by this section and actually made of the premises, but not otherwise; * * *."
Violation of the ordinance is punishable by a fine not exceeding $100.
The trial court in its judgment made findings to the effect that (1) the city had "* * * produced no evidence showing by what authority this suit was prosecuted in the name of and on behalf of said City of Grand Prairie"; and (2) the "* * * City of Grand Prairie has produced no clear and convincing evidence which entitles said plaintiff to an injunction; * * *."
Upon request of appellant the court also filed separate findings of fact and conclusions of law. In these separate findings and conclusions the court made no mention of the matter of the authority by which the suit was prosecuted.
The material portions of these separate findings and conclusions may be summarized as follows: (1) The principal use made of the property is as a home for appellees and their three children. (2) At the times herein involved Ruth Finch kept children for friendly neighbors in her home with the assistance of a maid, acting as "baby sitter" for mothers away from home at work, or otherwise engaged, said children being tended for varying hours at irregular intervals. (3) The zoning ordinance does not specify where a "baby-sitting" establishment may be operated; nor does it define "baby-sitting" or any other business prohibited in a single family dwelling; nor does it prohibit the use of any property in the city for a baby-sitting establishment. (4) The zoning ordinance permits "customary home occupations" to be carried on in "single family" zones. (5) "Baby-Sitting" is a "customary home occupation."
The court concluded that "baby-sitting," being a "customary home occupation," is exempt from the operation of the ordinance, and further, that the city had not made out a clear case warranting the granting of injunctive relief.
Appellant correctly states in connection with its point one that since appellees did not invoke Rule 12, Texas Rules of Civil Procedure, it was not necessary for appellant to prove the authority by which the suit was brought in behalf of the city. Cook v. City of Booker, Tex.Civ.App., 167 S.W.2d 232; Brite v. Atascosa County, Tex.Civ.App., 247 S.W. 878; Hess v. Webb, Tex.Civ.App., 113 S.W. 618; McQuillin on "Municipal Corporations," Sec. 49.33. Ordinarily the finding in question would constitute reversible error, but under the circumstances presented in this case we must hold that the error was harmless. It is plain from the record that, notwithstanding the court's finding as stated in the written judgment, the case was tried and judgment rendered on the merits of the controversy. For that reason, and for other reasons which we shall hereinafter discuss, we have concluded that the finding of the court that appellant "produced no evidence showing *854 by what authority this suit was prosecuted in the name of and on behalf of said City * * *," does not require a reversal of the judgment.
We sustain the trial court's finding that appellant did not produce clear and convincing evidence entitling the city to an injunction. For one thing, the record is not clear as to whether appellee Ruth Finch charges a fee for her "baby-sitting" services. While we may strongly suspect that she does, we are not permitted to assume that she does. That is a fact which appellant had the burden of proving if appellees are to be enjoined from operating a business. But even if it were clearly shown that she does charge a fee, the evidence is sufficient to support the court's finding and conclusion that "baby-sitting" is a customary home occupation within the meaning of the ordinance.
In our opinion the ordinance is ambiguous. That its terms are not clear is shown by the conflicting interpretations put upon it by the parties to this controversy. For example the parties disagree as to the effect of the phrases, "including customary home occupations engaged in by occupants of the dwelling and including also the office of a physician, surgeon, dentist, musician, or artist when situated in the same dwelling used by such physician, surgeon, dentist, musician, or artist as his or her private dwelling * * *." Appellant contends that the above quoted language modifies the word "business," hence the activities described are expressly prohibited in single family dwelling districts. On the other hand appellees contend that the quoted language modifies the phrase, "The uses customarily incident to any of the above uses * * *," hence the activities described are expressly permitted in single family dwelling districts.
Appellees further argue that since the word "business"a word of many and varying meaningsis not defined in the ordinance, its meaning as used in the ordinance may be understood only from a study of the context; and then the ordinance will properly be interpreted not to include a home nursery as a business.
The ordinance in question, being in derogation of common law, must be construed strictly and all uncertainties resolved against parties seeking its enforcement. Texas Co. v. Grant, 143 Tex. 145, 182 S.W.2d 996, at page 1000. When so construed we believe that the ordinance does not prohibit the operation of a children's nursery in a single family dwelling district in the City of Grand Prairie. Bryan v. Darlington, Tex.Civ.App., 207 S.W.2d 681; Livingston v. Davis, 243 Iowa 21, 50 N.W.2d 592, 27 A.L.R. 2d 1237; City of Chicago v. Sachs, 1 Ill. 2d 342, 115 N.E.2d 762; Langbein v. Board of Zoning Appeals, 135 Conn. 575, 67 A.2d 5.
Apparently our interpretation as above stated is not at variance with the interpretation heretofore put upon the ordinance by the city authorities themselves. The undisputed evidence of both appellee Ruth Finch and the only prosecuting witness, her next door neighbor, is that numerous nurseries for children have been permitted by the city authorities to operate in the City of Grand Prairieall in single family dwelling districts. We are aware that mere failure in the past to enforce a plain unambiguous ordinance constitutes no defense when enforcement is undertaken. But in cases of doubtful construction, if the circumstances indicate that the city authorities have themselves applied a certain interpretation, their acts and conduct will be accorded some weight by the courts in arriving at a correct interpretation. State ex rel. Richmond Plaza Civic Ass'n v. City of Houston, Tex.Civ.App., 270 S.W.2d 235; Baird v. City of Fresno, 97 Cal. App. 2d 336, 217 P.2d 681.
We overrule appellant's points two to five inclusive and point seven.
In its point six appellant points out that the court erred in finding that the penalty for violation of the ordinance is a fine *855 of $200. The ordinance provides for a fine of only $100. However the mistaken finding is immaterial since this case involves only appellant's application for an injunction. Appellant's point six is overruled.
Finding no reversible error in the record, we affirm the trial court's judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620535/ | 585 N.W.2d 269 (1998)
RINGLAND JOHNSON, INC., Appellee,
v.
Employment Appeal Board, Iowa Division of Job Service, Respondents,
Brian J. HUNECKE, Appellant.
No. 96-1888.
Supreme Court of Iowa.
October 21, 1998.
*270 Joseph H. Laverty, Davenport, for appellant.
A. John Frey, Jr. of Frey, Haufe & Current, P.L.C., Clinton, for appellee.
Considered by HARRIS, P.J., and LARSON, LAVORATO, NEUMAN, and ANDREASEN,[*] JJ.
LARSON, Justice.
Ringland Johnson, Inc. fired Brian J. Hunecke for alleged theft of company property, and it later objected to payment of unemployment benefits to Hunecke because of his alleged misconduct. See Iowa Code § 96.5(2)(a) (1995). The Employment Appeal Board awarded benefits, but the district court reversed for lack of substantial supporting evidence. The court of appeals reversed the district court, allowing Hunecke to receive benefits, and the employer applied for further review. We vacate the decision of the court of appeals and affirm the judgment of the district court.
I. Facts and Prior Proceedings.
Ringland Johnson, Inc. hired Hunecke as the supervisor of its Clinton, Iowa cabinet shop. Hunecke's duties included hiring and firing employees, ordering material, estimating *271 projects, assigning personnel, and coordinating deliveries. He occasionally used his own pickup for company business, and he was reimbursed for it. On April 1, 1995, after business hours, Larry Johnson, chairman of Ringland Johnson, watched from a distance as Hunecke took cabinet shop material and placed it into five "staging piles," in apparent preparation for loading it onto his pickup. (Johnson was watching Hunecke because other employees had alerted Johnson to the fact that Hunecke was stealing company property.) Johnson says Hunecke was in the process of stealing the material; Hunecke says he was only rearranging it. At any rate, when Johnson confronted Hunecke, Hunecke stopped piling the material and began to unload the material he had just put on his pickup. Johnson fired him.
Hunecke filed a claim for unemployment benefits, and Ringland Johnson resisted. A Job Service claims deputy denied benefits. On appeal, a Job Service administrative law judge (ALJ) reversed the denial of benefits, finding "no disqualifiable reason" for Hunecke's termination. The employment appeal board affirmed the ALJ's decision. On Ringland Johnson's petition for judicial review, the district court denied benefits, concluding that the final agency decision was unsupported by substantial evidence. Hunecke appealed. The court of appeals reversed on the ground the district court did not accord sufficient weight to the ALJ's findings of fact. We granted further review.
II. The Law.
An individual shall be disqualified for benefits:
2. Discharge for misconduct. If the division of job service finds that the individual has been discharged for misconduct in connection with the individual's employment:
a. The individual shall be disqualified for benefits until the individual has worked in and has been paid wages for insured work equal to ten times the individual's weekly benefit amount, provided the individual is otherwise eligible.
Iowa Code § 96.5(2)(a) (1995).
The Iowa Administrative Code defines misconduct as follows:
Misconduct is defined as a deliberate act or omission by a worker which constitutes a material breach of the duties and obligations arising out of such worker's contract of employment. Misconduct as the term is used in the disqualification provision as being limited to conduct evincing such willful or wanton disregard of an employer's interest as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of employees, or in carelessness or negligence of such degree of recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed misconduct within the meaning of the statute.
Iowa Admin. Code r. 345-4.32(1) (1986) (currently Iowa Admin. Code r. 871-24.32(1)(a) (1996)).
III. Judicial Review Principles.
On judicial review of agency action, a court is "authorized to grant relief only if the agency's action is affected by error of law, unsupported by substantial evidence in the record, or characterized by abuse of discretion." George A. Hormel & Co. v. Jordan, 569 N.W.2d 148, 151 (Iowa 1997).
A termination for misconduct will not justify a denial of unemployment compensation if the termination is based solely on past acts. Iowa Admin. Code r. 345-4.32(8) (1986) (currently Iowa Admin. Code r. 871-24.32(8) (1996)). Past acts, however, can be used to determine the magnitude of the current act. Id.; see also Flesher v. Iowa Dep't of Job Serv., 372 N.W.2d 230, 234 (Iowa 1985); Budding v. Iowa Dep't of Job Serv., 337 N.W.2d 219, 223 (Iowa App.1983) (describing the "past acts" provision as the "last straw doctrine," in which even a relatively minor *272 infraction, viewed with prior infractions, may constitute misconduct).
IV. Sufficiency of the Evidence.
Substantial evidence means evidence that a reasonable person would accept as adequate to reach the same finding. City of Hampton v. Iowa Civil Rights Comm'n, 554 N.W.2d 532, 536 (Iowa 1996). Evidence is not insubstantial merely because of the possibility of drawing two different conclusions from it. So, as we have often said, the ultimate question is not whether the evidence would support a different finding but whether it supports the finding actually made. See id. (citing Gaskey v. Iowa Dep't of Transp., 537 N.W.2d 695, 698 (Iowa 1995)). Evidence is not substantial if a reasonable mind would find the evidence inadequate to reach the same conclusion as the agency. Sahu v. Board of Med. Exam'rs, 537 N.W.2d 674, 677 (Iowa 1995).
The ALJ focused primarily on the events of April 1, 1995, concluding that Hunecke had not removed the property from the company premises, so his act was not theft. The employer argues that this finding was unsupported by the record. The employer complains the ALJ failed to give appropriate weight to the evidence of past acts by Hunecke as testified to by Johnson and several of Hunecke's coemployees. The employer also argues that the ALJ made a mistake of law because actual removal of the property is not required to constitute theft. See Iowa Code § 714.1 (theft committed by taking control of another's property with intent to deprive owner of it).
Evidence of past acts lends additional weight to the employer's claim of misconduct here. For example, Hunecke had previously directed Ringland Johnson employees to make twelve to fourteen pieces of Adirondack furniture from cypress lumber taken from company stock. Hunecke loaded the furniture on his truck, and company employees later saw identical furniture at Hunecke's home. Hunecke claimed he had paid for the furniture taken from the company inventory, but company records belie that claim. Ringland Johnson employees also had made a birdseye maple dresser at Hunecke's request, from company material. Hunecke loaded it onto his truck and hauled it away. Company records show no invoice or payment for the material or the labor. Evidence also showed that Hunecke had taken a pair of power grips, valued at approximately $265, and put his initials on them. They disappeared.
Hunecke hauled three to five pickup loads of material from the shop. He claimed he had merely taken scrap material, with his employer's consent, to donate to a union apprenticeship program. The testimony of other employees, however, was that it was not scrap; it was valuable material. Further, Hunecke was only able to show a receipt from the apprenticeship program for one load of material. (Even that receipt is suspect because it was dated after Hunecke was confronted by Johnson for his apparent theft on April 1.) Employees of Ringland Johnson built a white oak glider, which, they testified, ended up at Hunecke's house. Hunecke denied this, but again failed to show evidence that he purchased the material as he claimed.
The ALJ concluded that no misconduct was shown because (1) no one actually saw Hunecke take company property (a finding of doubtful validity in view of testimony of employees who had seen him load material and furniture on his pickup); and (2) as to the April 1 incident, Hunecke could not be guilty of theft or attempted theft because he did not actually remove the "staged" material from the company premises (a conclusion without legal support).
On appellate review of an agency ruling, a court must consider all evidence, including the evidence that weighs against the agency determination as well as that supporting it. Iowa Health Sys. Agency, Inc. v. Wade, 327 N.W.2d 732, 733 (Iowa 1982). On our review of the entire record, we conclude that the direct and circumstantial evidence of theft is so compelling that a reasonable mind would find the evidence inadequate to reach the same conclusion as the agency. See Sahu, 537 N.W.2d at 677. We vacate the court of appeals decision and affirm the judgment of the district court.
*273 DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.
NOTES
[*] Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620581/ | 916 So. 2d 44 (2005)
Rene CORVO, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D04-3231.
District Court of Appeal of Florida, Third District.
December 7, 2005.
*45 Bennett H. Brummer, Public Defender and Clayton R. Kaeiser, Special Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
Before FLETCHER, WELLS, and SUAREZ, JJ.
SUAREZ, J.
Rene Corvo (the "Defendant") appeals his convictions for third-degree grand theft and dealing in stolen property. We affirm his conviction for dealing in stolen property and reverse his conviction and sentence for grand theft.
The Defendant contends that he should receive a new trial because trial counsel was ineffective for making an inaccurate stipulation at trial. He also asserts that his convictions for both grand theft and dealing in stolen property are illegal dual convictions because they relate to the same property. The State argues that the Defendant's claim of ineffective assistance of trial counsel is not cognizable on direct appeal, and that the dual convictions do not constitute fundamental error.
The Defendant was charged with burglary of an unoccupied dwelling, third-degree *46 grand theft, and dealing in stolen property. He allegedly broke into the victim's home and took items including jewelry, conga drums, and electronic equipment. The Defendant denied that he was involved in the burglary but admitted that he pawned the victim's jewelry as a favor to a friend shortly after the burglary. His fingerprints appear on the pawn slip. The police recovered the stolen conga drums from the apartment where the Defendant was arrested a few days after the burglary and pawning of the jewelry. The jury acquitted the Defendant of burglary and convicted him of the grand theft and dealing in stolen property charges. The trial court sentenced the Defendant as a habitual offender to thirty years imprisonment for the dealing in stolen property, and a concurrent ten-year term for the grand theft. The Defendant challenges his convictions in this belated appeal.
First, we agree with the State that the Defendant's claim of ineffective assistance of trial counsel is not cognizable on this direct appeal. With rare exceptions, ineffective assistance of trial counsel claims should be raised on a motion for post conviction relief. Gore v. State, 784 So. 2d 418, 438 (Fla.2001). "Only in cases where the incompetence is apparent on the face of the record and prejudice to the defendant is obvious do appellate courts address this issue on direct appeal." McMullen v. State, 876 So. 2d 589 (Fla. 5th DCA 2004).
In the instant case, it is not apparent on the face of the record that trial counsel was ineffective. Counsel mistakenly agreed to stipulate that the Defendant's fingerprints were found inside the victim's burglarized home. Counsel recognized her error almost immediately and withdrew the stipulation. Nor is it obvious that the Defendant was prejudiced by counsel's error. As stated above, counsel corrected herself almost immediately. Furthermore, the jury acquitted the Defendant on the burglary charge to which the erroneous stipulation pertained. As the record reveals no error which resulted in obvious prejudice to the Defendant, this claim of ineffective assistance of trial counsel is not cognizable on this direct appeal. The Defendant may bring this claim on a motion for post conviction relief. See White v. State, 850 So. 2d 624 (Fla. 2d DCA 2003) (affirming without prejudice to the defendant's right to file a motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850).
Second, we agree with the Defendant that his conviction for grand theft should be reversed. Convictions for both dealing in stolen property and grand theft violate double jeopardy when the convictions arise "in connection with one scheme or course of conduct...." § 812.025, Fla. Stat. (2005). A double jeopardy violation constitutes fundamental error that can be raised for the first time on appeal. Barfield v. State, 871 So. 2d 929 (Fla. 5th DCA 2004).
The State charged the Defendant in Count 2 of the information with the grand theft of "DRUMS and/or JEWELRY and/or TELEVISIONS and/or A DIGITAL VIDEO DISC PLAYER and/or CAMERAS and/or WINE, and/or LIQUOR...." Count 3 charged the Defendant with dealing in stolen property, "to wit: JEWELRY...." The jury found the Defendant guilty of both grand theft and dealing in stolen property. As both charges relate to the same jewelry and to one scheme or course of conduct, the Defendant's conviction for grand theft of the jewelry violates double jeopardy. Stallworth v. State, 538 So. 2d 1296 (Fla. 1st DCA 1989) (reversing the defendant's grand theft conviction where he was charged with grand theft of two television *47 sets, and trafficking in one of the stolen television sets four days later); see Jones v. State, 453 So. 2d 1192 (Fla. 3d DCA 1984) (rejecting the state's attempt to limit the grand theft count to a stolen car, and the dealing in stolen property count to a stereo system). The Defendant's conviction and ten-year sentence for grand theft must therefore be reversed. Wilson v. State, 884 So. 2d 74 (Fla. 2d DCA 2004); Simon v. State, 840 So. 2d 1173 (Fla. 5th DCA 2003).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620565/ | 272 Neb. 918
VICTORIA M. FOSTER, FORMERLY KNOWN AS VICTORIA M. COLLINS, APPELLANT,
v.
BryanLGH MEDICAL CENTER EAST, A NEBRASKA CORPORATION, APPELLEE.
No. S-06-258.
Supreme Court of Nebraska.
Filed January 12, 2007.
Rolf Edward Shasteen, of Shasteen & Scholz, P.C., for appellant.
Jeffrey A. Silver also filing briefs and arguing on behalf of Victoria M. Foster.
No appearance for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
GERRARD, J.
NATURE OF CASE
Before going to trial in her workers' compensation case, Victoria M. Foster, formerly known as Victoria M. Collins, discharged her attorney, Rolf Shasteen, and hired a new attorney. Shasteen perfected an attorney's lien in the Workers' Compensation Court pursuant to Neb. Rev. Stat. § 48-108 (Reissue 2004). Represented by a new attorney, Foster tried her case to a single judge of the Workers' Compensation Court. The single judge determined that Foster was entitled to certain benefits and, later, approved a lump-sum settlement.
Shasteen filed a motion with the compensation court to establish the amount of his attorney's lien. The single judge determined that Shasteen had been paid all he was entitled to and declined to award him further attorney fees or costs. Shasteen ultimately appealed to the Nebraska Court of Appeals, which dismissed the appeal, concluding that the Workers' Compensation Court did not have jurisdiction to decide the fee dispute. See Foster v. BryanLGH Med. Ctr. East, 14 Neb. App. ___ (No. A-06-258, May 1, 2006). The issue before this court, on further review, is whether the Workers' Compensation Court has jurisdiction to determine a fee dispute arising out of an attorney's lien perfected under § 48-108. Because we conclude that it does, we reverse the judgment of the Court of Appeals and remand this cause with directions.
BACKGROUND
Foster retained Shasteen and his law firm to represent her with regard to a workers' compensation claim. Foster signed a fee agreement which provided in pertinent part that Shasteen would receive a one-third contingency fee and reimbursement for costs advanced. While Shasteen was counsel for Foster, he was paid a total of $5,419.37 for attorney fees and costs.
During Shasteen's representation of Foster, Foster was scheduled to have her deposition taken. Foster appeared at the deposition, and the defendant offered $15,000 to settle the case. Foster initially said she would accept the settlement offer, without having her deposition taken. Approximately 2 months later, Foster discharged the Shasteen firm and rejected the $15,000 proposed settlement. The Shasteen firm then filed a motion to withdraw as counsel and establish an attorney's lien. The single judge of the compensation court entered an order granting the motion to withdraw and allowing the attorney's lien.
Foster hired a second lawyer to replace Shasteen as her attorney. With her new attorney, Foster's case was tried to the single judge. The single judge determined that Foster was entitled to certain indemnity benefits and subsequently approved a lump-sum settlement of $18,000.
Following the single judge's approval of the lump-sum settlement, Shasteen filed a motion to establish the amount of his attorney's lien. The single judge determined that Shasteen had been paid all he was entitled to under his agreement with Foster and declined to award him further attorney fees or costs. Shasteen appealed this decision to the review panel. The review panel reversed, and remanded with directions to the single judge to enter an order of dismissal, concluding that, pursuant to Wells v. Goodyear Tire & Rubber Co., 14 Neb. Ct. App. 384, 707 N.W.2d 438 (2005), the Workers' Compensation Court did not have jurisdiction to determine a fee dispute between present and former counsel. Shasteen appealed to the Court of Appeals.
The Court of Appeals, citing Wells, supra, dismissed Shasteen's appeal for lack of jurisdiction. Shasteen petitioned this court for further review, which was granted.
ASSIGNMENTS OF ERROR
Shasteen assigns, consolidated and restated, that the Court of Appeals erred in (1) determining that the Workers' Compensation Court lacked jurisdiction to determine the allocation of an attorney fee between a claimant's former attorney and a claimant's attorney at the time of the hearing and (2) failing to award a lien for additional attorney fees and costs.
STANDARD OF REVIEW
[1] An appellate court is obligated in workers' compensation cases to make its own determination as to questions of law. Veatch v. American Tool, 267 Neb. 711, 676 N.W.2d 730 (2004).
ANALYSIS
The issue presented in this appeal is whether the Workers' Compensation Court has jurisdiction to enforce an attorney's lien filed under § 48-108 when, at the time of the claimant's award, the attorney seeking enforcement of the lien no longer represents the claimant. We conclude that the Legislature intended the Workers' Compensation Court to have such jurisdiction pursuant to § 48-108.
[2-4] As a statutorily created court, the compensation court is a tribunal of limited and special jurisdiction and has only such authority as has been conferred on it by statute. Hagelstein v. Swift-Eckrich, 257 Neb. 312, 597 N.W.2d 394 (1999). The Workers' Compensation Court can only resolve disputes that arise from provisions of the Nebraska Workers' Compensation Act. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003), disapproved on other grounds, Kimminau v. Uribe Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005). The power of the Workers' Compensation Court to resolve attorney fee disputes is derived from § 48-108 which states:
No claim or agreement for legal services or disbursements in support of any demand made or suit brought under the Nebraska Workers' Compensation Act shall be an enforceable lien against the amounts to be paid as damages or compensation or be valid or binding in any other respect, unless the same be approved in writing by the judge presiding at the trial or, in case of settlement without trial, by a judge of the Nebraska Workers' Compensation Court. After such approval, if notice in writing be given the defendant of such claim or agreement for legal services and disbursements, the same shall be a lien against any amount thereafter to be paid as damages or compensation. When the employee's compensation is payable by the employer in periodical installments, the compensation court shall fix, at the time of approval, the proportion of each installment to be paid on account of legal services and disbursements.
[5-7] In construing a statute, appellate courts are guided by the presumption that the Legislature intended a sensible rather than absurd result in enacting the statute. Spaghetti Ltd. Partnership v. Wolfe, 264 Neb. 365, 647 N.W.2d 615 (2002). An appellate court will place a sensible construction upon a statute to effectuate the object of the legislation, as opposed to a literal meaning that would have the effect of defeating the legislative intent. Keller v. Tavarone, 265 Neb. 236, 655 N.W.2d 899 (2003). In construing a statute, a court must look to the statutory objective to be accomplished, the evils and mischiefs sought to be remedied, and the purpose to be served, and then must place on the statute a reasonable or liberal construction that best achieves the statute's purpose, rather than a construction that defeats the statutory purpose. Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004).
Section 48-108 represents a legislative determination that the Workers' Compensation Court is an appropriate forum for determining fees payable to an attorney for the services rendered while representing the claimant before the Workers' Compensation Court. However, to a previously discharged attorney with a properly filed lien, the protection granted by this statute would be meaningless if the compensation court did not have jurisdiction to enforce his or her lien. In other words, so long as a lien created under § 48-108 remains effective, the compensation court's power to enforce that lien necessarily remains effective as well.
The statute's language does not expressly require that for the compensation court to have the authority to enforce the lien, the attorney seeking enforcement be the claimant's current attorney. Rather, the purpose of the statute is to provide a general mechanism by which an attorney, who has represented a claimant in a workers' compensation action, may secure a lien on the claimant's award to ensure that the attorney receives his or her fees. Under the circumstances presented here, the claimant's relationship with present counsel is necessarily implicated by the dispute. In this case, as in most instances, the fee dispute with former counsel is inextricably related to the issue of fees for the claimant's current counsel.
In short, we conclude that the Legislature did not limit the compensation court's authority to enforce § 48-108 liens to only those cases where the attorney seeking enforcement is presently representing the claimant. It would be illogical to conclude that the compensation court may determine the fee of a claimant's present counsel, but not that of his prior counsel, particularly where those questions are essentially inseparable. For the Workers' Compensation Court's authority to grant an attorney's lien under § 48-108 to be completely effective, the compensation court must also have the power to enforce the lien, even if the attorney seeking the lien's enforcement is no longer representing the claimant.
The compensation court is also the most sensible venue for such determinations, since the court is aware of the circumstances of each case, is familiar with the facts and issues presented, and observes firsthand the efforts of each attorney involved in the dispute. Given this unique knowledge of the case, the compensation court, as opposed to the district court in a separate action, is in the best position to determine the proper fee to be distributed to respective attorneys.
[8] In sum, we hold that the Workers' Compensation Court has jurisdiction to determine a fee dispute arising out of an attorney's lien perfected pursuant to § 48-108, regardless of whether the attorney seeking enforcement had previously been discharged. By so holding, we disapprove Wells v. Goodyear Tire & Rubber Co., 14 Neb. Ct. App. 384, 707 N.W.2d 438 (2005), insofar as it concluded otherwise. Because the compensation court's review panel has not considered the merits of the underlying fee dispute, it is premature for us to consider in this appeal Shasteen's assignment of error regarding the fee amount determined by the single judge.
CONCLUSION
The Court of Appeals erred in dismissing Shasteen's appeal for lack of jurisdiction. We reverse the decision of the Court of Appeals and remand the matter with directions to remand the cause to the review panel for further proceedings consistent with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620692/ | 916 So. 2d 934 (2005)
SECURITY NATIONAL SERVICING CORP., Appellant,
v.
LAW OFFICE OF DAVID J. STERN, P.A., Appellee.
No. 4D04-776.
District Court of Appeal of Florida, Fourth District.
November 30, 2005.
Rehearing Denied January 20, 2006.
Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellant.
*936 Forrest G. McSurdy of Stern & McSurdy, P.A., Plantation, for appellee.
*935 TAYLOR, J.
Security National Servicing Corp. (Security National) appeals a summary judgment entered against it on its legal malpractice action against the Law Offices of David J. Stern, P.A. (Stern). This legal malpractice action arises out of a botched mortgage foreclosure. Security National is the transferee of the underlying note and mortgage. Because the malpractice action was transferred incident to the transfer of the note and mortgage, the trial court incorrectly found that this malpractice action was non-assignable.
This case concerns a note and mortgage in a face amount of $108,000. In 1997, the holder of the note and mortgage, UMLIC-SIX CORP., timely filed a mortgage foreclosure action. While that action was pending, UMLIC-SIX assigned the loan to EMC Mortgage. EMC hired Stern to foreclose the loan. Stern filed a second foreclosure action on the same note and mortgage on December 15, 1998. By this time, the statute of limitations had already expired, so that this 1998 foreclosure action was untimely.
On February 19, 1999, Stern substituted as counsel in the timely 1997 foreclosure suit, then five days later voluntarily dismissed that timely action, leaving only the untimely action intact. Stern essentially admits that this was malpractice.
On August 27, 1999, EMC assigned the loan to Universal Portfolio Buyers, Inc. (Universal). Stern continued on as Universal's counsel in the untimely 1998 action. On October 15, 1999, Universal assigned the loan to North American Mortgage Co. (North American). Stern remained as North American's counsel in the 1998 action.
On July 24, 2000, the owner of the encumbered property moved for summary judgment on statute of limitations grounds. On November 5, 2000, the trial court entered summary judgment for the defendant. North American appealed.
On April 30, 2001, while the appeal was pending, North American assigned the loan to Security National. The record does not reflect whether there was consideration for this transfer or whether Security National had knowledge of the status of the foreclosure at the time. Thereafter, Stern remained as counsel representing Security National, but only for a month or two.
On December 7, 2001, the second district affirmed the final judgment. Universal Portfolio Buyers, II v. Islands Int'l. Realty, Inc., 806 So. 2d 479 (Fla. 2nd DCA 2001). Security National then brought this legal malpractice action against Stern. The complaint alleges negligence in dismissing the timely 1997 action (at the time EMC owned the loan) and in failing to timely move to reinstate the 1997 action until after the motion for summary judgment was filed (potentially spanning the ownership of EMC, Universal, and North American).
Although the trial court stated in her order that she "may take issue with the fairness of such ruling," she felt bound to enter summary judgment on Stern's behalf because there was no attorney-client relationship between Stern and Security National "at the time the cause of action accrued."
The standard of review of a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.2000). A legal malpractice action has three elements: 1) the attorney's employment; 2) the attorney's neglect of a reasonable duty; and 3) the attorney's negligence as the proximate *937 cause of loss to the client. See Kates v. Robinson, 786 So. 2d 61, 64 (Fla. 4th DCA 2001). For statute of limitations purposes, a cause of action for legal malpractice does not accrue until the underlying adverse judgment becomes final, including exhaustion of appellate rights. See Silvestrone v. Edell, 721 So. 2d 1173, 1175 n. 2 (Fla.1998). That is the first point at which there is a redressable harm. Id. at 1175. Until then, a malpractice claim is "hypothetical" and damages are "speculative." Id.; see also Hold v. Manzini, 736 So. 2d 138, 142 (Fla. 3d DCA 1999) ("mere knowledge of possible malpractice is not dispositive of when a malpractice action accrues"). Security National points to this law and argues that because it owned the loan by the time the appeal was completed and the cause of action accrued, the law regarding the assignment of legal malpractice claims is irrelevant. Simply put, it claims that it was the owner of the loan at the critical point in time.
By contrast, Stern points to language from our decision in Kates, 786 So.2d at 64:
In stating a claim for legal malpractice, it is not sufficient merely to assert an attorney-client relationship. The plaintiff must also allege that a relationship existed between the parties with respect to the acts or omissions upon which the malpractice claim is based.
See also Maillard v. Dowdell, 528 So. 2d 512 (Fla. 3d DCA 1988). These cases rejected attempts by former clients to retroactively expand the scope of the attorney's representation. While they are factually different, the basic point seems sound: the time of the alleged negligent act or omission is the critical point for testing the scope and existence of the attorney-client relationship. Thus, we must examine the law on assignment of legal malpractice actions, as it appears that it is only by assignment of the immature claim that Security National's rights arose.
The majority view in this country is that legal malpractice actions are not assignable. See Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So. 2d 755, 759 n. 3 (Fla.2005) (counting eighteen states adhering to the majority view and seven to the minority view). The minority jurisdictions generally look at the validity of malpractice assignments on a case by case basis in light of the relevant policy considerations. See Delaware CWC Liquidation Corp. v. Martin, 213 W.Va. 617, 584 S.E.2d 473, 479 (2003) (surveying law and characterizing minority view); Gregory v. Lovlien, 174 Or.App. 483, 26 P.3d 180, 184 (2001) (same).
In Kaplan, the court first explained that the main concern with permitting assignment is that a "market for legal malpractice claims" might be created. The court continued by quoting from the seminal California case in this area:
It is the unique quality of legal services, the personal nature of the attorney's duty to the client and the confidentiality of the attorney-client relationship that invoke public policy considerations in our conclusion that malpractice claims should not be subject to assignment. The assignment of such claims could relegate the legal malpractice action to the market place and convert it to a commodity to be exploited and transferred to economic bidders who have never had a professional relationship with the attorney and to whom the attorney has never owed a legal duty.... The commercial aspect of assignability of ... legal malpractice [actions] is rife with probabilities that could only debase the legal profession. The almost certain end result of merchandizing such causes of action is the lucrative business of factoring malpractice claims which *938 would encourage unjustified lawsuits against members of the legal profession, generate an increase in legal malpractice litigation, promote champerty and force attorneys to defend themselves against strangers. The endless complications and litigious intricacies arising out of such commercial activities would place an undue burden on not only the legal profession but the already overburdened judicial system, restrict the availability of competent legal services, embarrass the attorney-client relationship and imperil the sanctity of the highly confidential and fiduciary relationship existing between attorney and client.
Kaplan, 902 So.2d at 760 (quoting Goodley v. Wank & Wank, Inc., 62 Cal. App. 3d 389, 133 Cal. Rptr. 83, 87 (1976)).
The relevant policy concerns are more readily apparent when the legal representation and assignment occur in a non-commercial setting, particularly when the assignment is made to a former adversary. Gurski v. Rosenblum, 48 Conn.Supp. 226, 838 A.2d 1090, 1098 (2003). This latter situation, where a largely judgment-proof defendant assigns the right to sue his attorney to the successful plaintiff in exchange for a release, is generally recognized as the worst excess to be avoided. See Kevin Pennell, Note, On the Assignment of Legal Malpractice Claims: A Contractual Solution to a Contractual Problem, 82 Tex. L.Rev. 481, 496-501 (2003).
Because bringing a malpractice action necessarily works a limited waiver of the attorney-client privilege to allow defending the claim, an assignment causes the client to lose control over that waiver. On Kaplan's unique facts, the court focused almost exclusively on the absence of that underlying policy concern. In Kaplan there was no attorney-client privilege, because the attorney's employment was for the purpose of creating private placement memoranda which involved public information not covered by the privilege. It appears from Kaplan that because the "privilege" policy rationale did not apply on those facts, that was enough in itself to allow the assigned claim to go forward. However, the Kaplan court also noted that the claim did not involve "personal services."
This case likewise does not involve personal services. It also seems highly unlikely that EMC or North American shared privileged information with Stern. In Cerberus Partners, L.P. v. Gadsby & Hannah, 728 A.2d 1057 (R.I.1999), the court briefly addressed the attorney-client privilege argument which took center stage in Kaplan, sensibly stating that on the commercial facts presented there, the assignment of the loans was a waiver of the attorney-client privilege. Id. at 1060. In New Hampshire Insurance Co. v. McCann, 429 Mass. 202, 707 N.E.2d 332, 337 (1999), the court similarly pointed out that the insurance company assignor in that case was a sophisticated business that:
... could assess the economic value of the claim against the possibility that the assignment could lead to disclosures that otherwise would be confidential, and make an informed decision whether one consideration outweighed the other.
Id.
Regardless, protecting the attorney-client privilege is not the main policy ground underlying the general anti-assignment rule. The main concern is the creation of a market for legal malpractice claims. Kaplan, 902 So.2d at 760. As discussed below, it is that main concern which is absent from the current facts. The significance of Kaplan is not a narrow point pertaining to the attorney-client privilege, but rather the more broad view that *939 the door is now open to assignment of legal malpractice actions in exceptional cases which do not fully implicate the core policy concerns underlying the general rule. See id. at 761 (cautioning that general policy concerns would still prevent the assignment of "most" legal malpractice claims).
The Cerberus case from the Rhode Island Supreme Court is factually similar to this case. After the creditors of SLM International, Inc. commenced bankruptcy proceedings against it, some of SLM's lenders began selling their SLM loans, "including all of their rights and obligations connected with those loans," to other financial institutions. Those buyers then instituted suit against the original lenders' attorneys for failing to perfect the security interest in the loans so that they received less than full value for them. The Rhode Island Supreme Court stated:
We conclude that on the specific factual circumstances present in this case, where an assignee of a commercial loan agreement brings a legal malpractice action against the attorney who represented the original lender in the commercial loan transaction, the assignment of that negligence claim, if arising from the assigned commercial loan agreement, is not prohibited by Rhode Island law.
Cerberus, 728 A.2d at 1059. The court distinguished between mere purchase of a legal malpractice claim and assignment of the lender's original agreements with respect to the loans, as the assignee in that latter case acquired "all of the attendant obligations and rights that went along with those loans." Id. The court stated, "Thus, we are not dealing here with a situation where a legal malpractice claim was transferred to a person without any other rights or obligations being transferred along with it." Id.
Attempting to distinguish Cerberus, Stern argues that the loans which Security National bought were almost worthless when purchased (except for their malpractice claim potential) and that only a reversal from the second district could have breathed life back into them. However, unless the argument which Stern raised to the second district was frivolous, then clearly the loans did have some value at that point, making the distinction from the Cerberus loans more a question of degree than of substance.
In Gurski, 838 A.2d at 1098, the Connecticut court applauded the Cerberus holding, stating:
Given the free and active market in corporate debt and business assets, it is both expedient and practical to allow the assignment of potential legal malpractice claims against an assignor's counsel when the transfer is part of a broader transaction. Such transfers would not tend to create a marketplace where such claims would be traded as commodities as feared by the Goodley court.
The absence of the main policy concern underlying the general rule distinguishes this case from those involving "most" assignments. Thus, we conclude that this assignment was permissible under Kaplan. See also Richter v. Analex Corp., 940 F. Supp. 353 (D.D.C.1996) (purchaser of corporate assets could sue for malpractice); but see Earth Sci. Labs., Inc. v. Adkins & Wondra, P.C., 246 Neb. 798, 523 N.W.2d 254 (1994).
Accordingly, we reverse the summary judgment and remand with instructions to the trial court to reinstate appellant's legal malpractice claim against appellee.
Reversed and Remanded.
STEVENSON, C.J., and HAZOURI, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920332/ | 133 N.J. Super. 432 (1975)
337 A.2d 374
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEROME PROVET, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted April 8, 1975.
Decided April 16, 1975.
*434 Before Judges MATTHEWS, FRITZ and BOTTER.
Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Michael R. Klekman, Assistant Deputy Public Defender, of counsel and on the brief).
Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. Damon R. Sedita, Assistant Prosecutor, of counsel and on the brief).
*435 The opinion of the court was delivered by BOTTER, J.A.D.
Defendant was found guilty in a jury trial of rape (N.J.S.A. 2A:138-1) and armed robbery (N.J.S.A. 2A:141-1, N.J.S.A. 2A:151-5). He was sentenced to New Jersey State Prison for a period of seven to ten years on the rape conviction, with a concurrent term of four to six years on the robbery conviction and a term of one to two years for being armed, consecutive to the sentence imposed for the rape.
Three points are raised on this appeal. The first, which was not raised below, is that the trial judge erred in charging the jury that they could consider the omission of a material factual assertion in a statement given to the police by the complaining witness only for the purpose of affecting the credibility of the witness. The second point is that the court improperly made the sentence on the conviction for being armed consecutive to the rape conviction although the indictment did not charge the commission of rape while armed but only charged the commission of robbery while armed. Lastly, it is contended that the trial judge improperly imposed a State Prison sentence rather than a sentence to the Youth Correctional Institution Complex.
The complaining witness, G.T., a 25-year-old student nurse and "minister in holiness," testified that she was robbed and raped at gunpoint by defendant. She said that she was able to see defendant's face during the course of the robbery, but that after he ordered her to unclothe he tied her dress around her head so she could not see. On cross-examination, however, she testified that during the rape she pretended that she could not breathe and that her assailant removed the dress, enabling her to observe his face thereafter. She had not testified on direct examination to the removal of the dress from around her head, nor was this included in the statement that she gave to the police one day after the rape. Referring to this omission, the trial court charged the jury as follows:
Now, evidence showing that at a prior time a witness has failed to say something which is inconsistent with the witness's testimony at *436 trial may be considered by you for the sole purpose of adjudging the witness's credibility. In other words, this may simply go to her credibility if you find that it should go to her credibility at all. * * *
At any rate, you will have to consider the importance, whether this is important and whether it does go to the witness's credibility and the extent to which it does go to the witness's credibility if you find it does go to her credibility at all.
So that the weight and the application of this prior omission, if you find it in fact to have been an omission, is for you to determine.
No exception was taken to this part of the court's charge and we are asked to consider it plain error. State v. Macon, 57 N.J. 325 (1971).
Prior to the adoption of the Rules of Evidence in September 1967 New Jersey followed the prevailing, traditional view that a prior inconsistent statement cannot be offered as substantive evidence of the facts stated, that is, as proof of the matter asserted therein, but can be offered only for the purpose of impeaching the witness. State v. Laws, 50 N.J. 159, 177 (1967), mod. o.g., 51 N.J. 494 (1968), cert. den. 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968); Goglia v. Janssen Dairy Co., 116 N.J.L. 396, 397 (E. & A. 1936); State v. Salimone, 19 N.J. Super. 600, 608-609 (App. Div. 1952), certif. den. 10 N.J. 316 (1952); Kulinka v. Flockhart Foundry Co., 9 N.J. Super. 495, 500-501 (Cty. Ct. 1950), aff'd sub nom. Bujalski v. Flockhart Foundry Co., 16 N.J. Super. 249 (App. Div. 1951), certif. den. 8 N.J. 505 (1952); see Link v. Eastern Aircraft, etc., Gen'l Motors Corp., 136 N.J.L. 540 (E. & A. 1948), and State v. D'Adame, 84 N.J.L. 386, 395-397 (E. & A. 1913); 3A Wigmore, Evidence (Chadbourn rev. 1970), § 1018 at 995-998; McCormick, Evidence (2 ed. 1972), § 34 at 67, § 251 at 601. Under that rule: "Contradictory statements are admissible solely to impeach the witness and for no other purpose. They are ineffective as direct and affirmative proof of the facts to which they relate." Goglia v. Janssen Dairy Co., supra, 116 N.J.L. at 397. As such, a limiting instruction was required. McCormick, supra, n. 62 at 601; see also State v. D'Adame, supra, 84 N.J.L. at 397, and United *437 States v. Lipscomb, 425 F.2d 226, 227 (6 Cir.1970), both referring to the general rule but dealing specifically with evidence admitted solely for the purpose of neutralizing surprise testimony of a witness.
However, with the adoption of the Rules of Evidence in 1967, New Jersey moved to the more modern view (see McCormick, supra at 602-603) that a prior inconsistent extra-judicial statement of a witness called by another party is admissible as "substantive" evidence, as an exception to the hearsay rule, providing the statement would be admissible if made by the witness while testifying. Evid. R. 63(1) (a); Comment 63(1) (a), New Jersey Rules of Evidence (1972). The principal rationale for this rule is that the declarant is available for cross-examination, so that the fact-finder may give such weight to the statement as it deserves, considering the reasons, if any, given for the contradiction and other evidence bearing on the issue. 3A Wigmore, supra at 996.
A statement from which there has been omitted a material assertion that would normally have been made and which is presently testified to may be considered a prior inconsistent statement. State v. Rosa, 71 N.J.L. 316 (E. & A. 1904); Esderts v. Chicago, Rock Island & Pacific R. Co., 76 III. App.2d 210, 222 N.E.2d 117 (App. Ct. 1966), cert. den. 386 U.S. 993, 87 S. Ct. 1309, 18 L. Ed. 2d 339 (1967); Commonwealth v. West, 312 Mass. 438, 45 N.E.2d 260 (Sup. Jud. Ct. 1942); Erickson v. Erickson & Co., 212 Minn. 119, 2 N.W.2d 824 (Sup. Ct. 1942); 3A Wigmore, supra, § 1042 at 1056; McCormick, supra at 68. While it can be readily understood that a material omission in a prior statement may affect the credibility of a witness, the omission alone cannot logically serve as affirmative proof of a fact asserted. But the prior statement as a whole, because of the omission, may serve as an implied contradiction of the testimony given by the witness. 3A Wigmore, supra. In the case at hand the statement was offered to impeach G.T.'s testimony that her dress was removed from her eyes during the sexual assault. It was offered not simply to attack her credibility but to prove *438 a negative proposition as well, namely, that the dress was not removed and that she could not have observed her assailant during the rape. For this reason the limiting instruction should not have been given. When a prior contradictory statement is introduced pursuant to Evid R. 63(1) (a) it is now improper to give a limiting instruction unless the statement has been offered for a limited purpose (see Evid. R. 6) or as neutralizing evidence under Evid. R. 20.[1]
Nevertheless, the instruction could not have prejudiced defendant's rights in the case at hand. See McCormick, supra at 604, saying: "Allowing it as substantive evidence pays an added dividend in avoiding the ritual of a limiting instruction unlikely to be heeded by a jury." See also Report of the N.J. Supreme Court Committee on Evidence, Comment, R. 63(1) at 130 (1963), speaking of the traditional rule:
* * * the prior statement is limited to an evaluation of credibility and the jury is instructed that they are not to consider the statement as substantive evidence. It is widely acknowledged that this is a fiction, and that the jury in fact often gives the prior statement substantive effect. If confronted with two conflicting statements a typical jury will tend to believe one of them. The instruction is confusing and requires a form of mental gymnastic that is obviously beyond the capacity of the ordinary juror.
Despite these views we cannot condone the erroneous instruction on the assumption that the jury did not comply with the limitation. In the case at hand, however, the attempted limitation could not have been meaningful. If the credibility of the witness was impeached it would have served the purpose of disproving her assertion that the dress-blindfold was removed. This tends to the same conclusion sought by proving, through the omission, the negative proposition that the dress was not removed. While we disapprove a limiting *439 charge where an omission is introduced as proof of prior inconsistency, we cannot conclude that the charge here constituted plain error justifying a reversal of the conviction. See State v. Macon, supra. There was ample evidence that the victim observed defendant before and after the interval when he had forced intercourse with her.
Defendant also contends that the judge erred in sentencing this 23-year-old defendant to State Prison rather than "Yardville." We find no merit to this contention. At sentencing the trial judge expressed the view that he considered defendant dangerous and capable of repeating this type of offense unless incarcerated. He made it clear that he did not intend to sentence defendant to an indefinite term and that he was imposing a State Prison sentence to assure defendant's incarceration for a certain minimum period of time for the protection of society. Nevertheless, the trial judge indicated that he would recommend an institutional transfer "to Yardville, if possible." We find no error in this disposition by the trial judge. State v. McBride, 67 N.J. 577 (1975), aff'g 127 N.J. Super. 399 (App. Div. 1974). Although a sentence to the Youth Correctional Institution Complex is generally preferred for youthful offenders, the trial judge had good reason for the sentence he imposed.
The third count of the indictment charged defendant with having "in his possession a pistol while committing the robbery of the said G.T. contrary to the provisions of N.J.S.A. 2A:151-5 * * *." Although N.J.S.A. 2A:151-5 provides for the enhancement of a rape sentence if committed while armed, defendant was not so charged in the indictment. Accordingly, the court could not enhance the sentence for rape by an additional consecutive term for being armed. In this case, the additional sentence could be imposed consecutive only to the sentence for robbery.
N.J.S.A. 2A:151-5 provides that any person who commits an assault, robbery, rape or other enumerated offenses when armed with a firearm or other dangerous instrument "* * * shall, in addition to the punishment provided for the *440 crime, be punished * * *" (emphasis added) for certain specified terms. The last sentence of that section provides, "No such additional punishment shall be imposed unless the indictment shall have averred that the person was armed with or had in his possession any such instrument and conviction was had thereon."
We conclude that the legislative intent was to allow the imposition of a penalty for being armed in addition to that imposed for the substantive crime, provided the indictment charges the armed feature while the substantive crime was being committed. Since the indictment in the case at hand charged the enhancement offense of being armed with respect to the robbery only, and not the rape, the additional penalty can be imposed only with respect to the sentence for the robbery. Accordingly, the sentence on the third count of the indictment is vacated and the cause is remanded to the trial court for resentencing in accordance with this opinion.
Affirmed, except as to the sentence imposed on the third count, and remanded for resentencing.
NOTES
[1] When a prior contradictory statement is offered for the purpose of neutralizing surprise testimony of one's own witness pursuant to Evid. R. 20, a limiting instruction is required. State v. Gallicchio, 44 N.J. 540, 547 (1965). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920370/ | 461 Pa. 535 (1975)
337 A.2d 282
COMMONWEALTH of Pennsylvania, Appellant,
v.
Ronald MILTON.
COMMONWEALTH of Pennsylvania, Appellant,
v.
Ronald F. MILTON.
COMMONWEALTH of Pennsylvania, Appellant,
v.
Thomas E. WORMSLEY (two cases).
Supreme Court of Pennsylvania.
Argued March 11, 1975.
Decided April 25, 1975.
*536 *537 John J. Hickton, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., for appellant.
John J. Dean, Pittsburgh, for appellees.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION
EAGEN, Justice.
These appeals were consolidated for presentation to this Court, and will be disposed of in this one opinion. The background is this:
About 7:45 p.m. on November 21, 1973, Mrs. Cecelia Buczkowski was the victim of a purse snatching in the automobile parking area of a shopping center in *538 Pleasant Hills Borough, Allegheny County. Shortly thereafter, Mrs. Buczkowski was found lying on the ground unconscious. She was removed to a hospital where she died two days later. In the course of the police investigation, Ronald Milton and Thomas E. Wormsley were questioned about the crime. They were later indicted for the murder of Mrs. Buczkowski and other charges related to the assault and theft. Each filed a pretrial motion to suppress evidence of his statements to the police. After evidentiary hearings, the trial court granted the motions. The Commonwealth filed these appeals.[1]
The testimony at the suppression hearings remained uncontradicted throughout and established these facts:
About one hour after the occurrence of the purse snatching, police officers of Pleasant Hills Borough had cause to pursue a "Blue Torino" automobile. During the chase the "Blue Torino" crashed into a pole and was substantially damaged. The driver, who was the sole occupant, fled on foot and escaped. A police search of the abandoned vehicle disclosed a sales slip on the front seat from Kaufman's department store located in the shopping center where Mrs. Buczkowski was assaulted. The sales slip was issued in the name of Richard A. Buczkowski, which is the name of the husband of the victim.
*539 Later the same night, about 10:00 p.m., Ronald Milton was taken into custody by the Pleasant Hills Borough police on a warrant issued by the authorities of nearby West Mifflin Borough, Allegheny County, charging him with having committed a robbery in that borough. After his arrest, Milton was warned of his constitutional rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The chief of police of Pleasant Hills Borough then, noting that the robbery charge from West Mifflin Borough involved a purse snatching, asked Milton if he had been near the Pleasant Hills Shopping Center earlier that evening. Milton said "no", but in a brief period of questioning that followed, he stated that the "Blue Torino" which the police pursued earlier in the evening was a "hot" car and the driver at the time of the chase was a Thomas Wormsley. Milton was then turned over to the custody of the West Mifflin Borough police.
About 1:00 p.m., on November 23, 1973, Milton appeared voluntarily at the Allegheny County Detective Bureau at the request of the Captain of Detectives. In answer to questions, Milton explained how he knew Wormsley was the driver of the "Blue Torino" the police chased on the night of November 21st. The interview lasted about one and three-quarters hours and was recorded on a typewriter. In this interview, Milton said nothing self-incriminating and at its conclusion he was permitted to leave.
A warrant charging murder then issued for Wormsley and he was taken into custody at his residence in McKeesport about 12:15 a.m., on November 24th. He was escorted to the Allegheny County Detective Bureau arriving about 1:00 a.m. He was immediately advised of his Miranda rights and the reason for his arrest. After being "processed", questioning by the Captain of Detectives commenced about 1:15 a.m. Initially, Wormsley said nothing incriminating, but when he was informed *540 Milton had told the police he was the driver of the "Blue Torino", a "hot" car, he became "upset" and asked permission to phone a Samuel Gunter and a Gerald Parker. Permission was given and about 2:00 a.m., an effort was made to contact Gunter and Parker but without success. Wormsley then pressed the Captain of Detectives for a detailed account of what Milton had said. Sometime before 4:00 a.m., Wormsley admitted his involvement in the Buczkowski assault and theft. Then beginning at 4:00 a.m., and continuing for about one hour, he detailed the occurrence. This statement which was recorded on a typewriter, not only described Wormsley's participation in the Buczkowski crime, but also identified Milton, Gunter and Parker as active participants.
As a result of Wormsley's incriminating and accusatory statement, a warrant issued for Milton and he was taken into police custody at his residence about 10:35 a. m., on November 24th. Upon his arrival at the Allegheny County Detective Bureau about 11:10 a.m., he was immediately advised of the nature of the charges upon which he had been arrested, as well as his Miranda rights. Milton was also informed that Wormsley had implicated him in the Buczkowski assault and theft. Without hesitation, Milton admitted he participated and said he was ready to make a complete statement. The recording of the statement began shortly after 12:00 noon and was completed within two hours. Milton and Wormsley were arraigned at 3:15 p.m.[2]
Based on the foregoing, the trial court suppressed the evidence of everything Milton said to the police on November 23rd and 24th, and everything Wormsley said to the police on November 24th. We reverse these orders for the reasons that follow.
The suppression orders were based on the trial court's conclusion that there was an unnecessary delay *541 between the arrest and arraignment of both Milton and Wormsley in violation of the Pennsylvania Rules of Criminal Procedure, Rule No. 118 [now 130], 19 P.S. Appendix, and this "unnecessary delay . . . caused" the challenged statements to be given. See Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). But as the uncontradicted testimony demonstrated there was no "unnecessary delay" between Milton's arrest and his self-incrimination. His initial admission of involvement ensued within minutes of his arrival at the County Detective Bureau on November 24th, and his detailed statement of the crime and his participation therein was completed and recorded within a three-hour period. This cannot be viewed as the "unnecessary delay" contemplated by Rule 118. Cf. Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974).
While some time elapsed between Wormsley's arrest and his initial self-incrimination, evidentiary use of his statements to the police was not proscribed under Rule 118. Even assuming, there was "unnecessary delay" between his arrest and self-incrimination,[3] this does not "ipso facto" render evidence of his self-incriminations inadmissible at trial. Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973). In order for such evidence to be excluded, under Rule 118, the evidence must be reasonably related to the delay. In other words, a "nexus" between the delay and the challenged evidence must be established and the burden of proving this "nexus" is upon the party who asserts it. Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975). This "nexus" was not proven here.
Orders reversed.
*542 POMEROY and NIX, JJ., agree with the result because they do not believe the delay in either case constituted an unnecessary delay.
ROBERTS, J., files a concurring and dissenting opinion in which MANDERINO, J., joins.
ROBERTS, Justice (concurring and dissenting).
The majority concedes that Wormsley's statement was obtained by the Commonwealth during a period of unnecessary delay between arrest and arraignment, in violation of the command of Pa.R.Crim.P. 116 (now renumbered as Rule 122). I cannot agree that the statement had "no reasonable relationship to the delay whatsoever." Commonwealth v. Futch, 447 Pa. 389, 394, 290 A.2d 417, 419 (1972); Commonwealth v. Dixon, 454 Pa. 444, 445, 311 A.2d 613, 614 (1973); Commonwealth v. Wayman, 454 Pa. 79, 83, 309 A.2d 784, 787 (1973); Commonwealth v. Dutton, 453 Pa. 547, 550, 307 A.2d 238, 240 (1973); Commonwealth v. Tingle, 451 Pa. 241, 244, 301 A.2d 701, 702 (1973). Therefore I must conclude that the statement was properly suppressed. Commonwealth v. Futch, supra; Commonwealth v. Barilak, 460 Pa. 449, 333 A.2d 859 (1975); Commonwealth v. Sanders, 458 Pa. 281, 327 A.2d 43 (1974); Commonwealth v. Johnson, 459 Pa. 171, 327 A.2d 618 (1974); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974); Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974); Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974); Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973); Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973); Commonwealth v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973); see Geiger Appeal, 454 Pa. 51, 309 A.2d 559 (1973); Commonwealth v. Peters, 453 Pa. 615, 306 A.2d 901 (1973).
There can be no doubt that the delay in arraignment here was unnecessary, for the Commonwealth admits *543 that the only reason for the delay was the desire to extract a confession.[1] Delay in arraignment for the sole purpose of obtaining incriminatory statements is always unnecessary. Commonwealth v. Barilak, supra; Commonwealth v. Johnson, supra; Commonwealth v. Cherry, supra; Commonwealth v. Williams, supra; Commonwealth v. Dixon, supra; Commonwealth v. Tingle, supra.[2]
The majority, however, finds no "nexus" between the delay and the making of the inculpatory statement. While it is true that a defendant must show "a nexus between the delay and the challenged evidence," Commonwealth v. Tingle, supra, this requires only a showing that the challenged evidence was obtained during a period of unnecessary delay rather than a period of necessary delay which was followed by an unrelated period of unnecessary delay. Compare Commonwealth v. Rowe, 459 Pa. *544 163, 327 A.2d 358, 361-62 (1974) with Commonwealth v. Tingle, supra, 451 Pa. at 246-47, 301 A.2d 703-04 (1973). In this case, the nexus between the unnecessary delay and the challenged statement was indubitably established by the testimony of the Commonwealth's own witnesses.
As one commentator has recently written:
"In [Commonwealth v. Wayman] it was not the length of time between arrest and confession that established a `reasonable relationship' between the evidence and the delay. Rather, the relationship was established because delay had been manufactured by police to allow opportunity to elicit a confession. Therefore, to argue that the length of the delay itself should in any way be relevant to the issue at hand is to ignore the fact that the length of time between arrest and confession is determined merely by the power of the accused to withstand interrogation or by his inability to satisfy his interrogators. It is hence absurd to suggest that the strength of the relationship between the evidence given and the `unnecessary delay' is dependent upon the number of hours the accused can resist questioning. On the contrary, since the evidence follows the interrogation during `unnecessary delay,' and the delay in turn is created to permit such questioning, once the interrogation is begun the relationship is established independent of how long the delay lasts. It is the action of the police, therefore, that establishes the connection between unnecessary delay and the evidence obtained."
Comment, Admissibility of Confessions Obtained Between Arrest and Arraignment: Federal and Pennsylvania Approaches, 79 Dick.L.Rev. 309, 347 (1975).
Moreover, it is clear from the suppression court's discussion of the legal standard to be applied that the court found the delay was a cause of the statement. Surely a defendant is not required to exclude all causal factors *545 other than delay, for we have held that all evidence obtained during a period of unnecessary delay must be excluded unless it "has no reasonable relationship to the delay whatsoever." Commonwealth v. Futch, supra, 447 Pa. at 394, 290 A.2d at 419; Commonwealth v. Dixon, supra, 454 Pa. at 445, 311 A.2d at 614; Commonwealth v. Wayman, supra, 454 Pa. at 83, 309 A.2d at 787; Commonwealth v. Dutton, supra, 453 Pa. at 550, 307 A.2d at 240; Commonwealth v. Tingle, supra, 451 Pa. at 244, 301 A.2d at 702. Thus, we have repeatedly held that precipitation of an incriminatory statement by the results of a polygraph test does not destroy the nexus between the delay and the statement so precipitated. Commonwealth v. Barilak, supra (polygraph test combined with confrontation with other evidence of guilt); Commonwealth v. Sanders, supra; Commonwealth v. Cherry, supra; Commonwealth v. Dixon, supra. Moreover, we have considered precisely the type of situation here and held that confrontation with an accusation by a co-defendant is likewise insufficient to destroy the nexus between unnecessary delay and a statement obtained during that delay. Commonwealth v. Johnson, supra; see Commonwealth v. Doamaral, ___ Pa. ___, 327 A.2d 273 (1975) (confrontation with accusatory statement by witness).
I am unable to see any basis for disturbing the finding by the suppression court that the required nexus between the unnecessary delay and the challenged statement was present. I would therefore affirm the order suppressing Wormsley's statement.
Because I agree that Milton's statement was not obtained during a period of unnecessary delay, I agree that the order suppressing his statement must be reversed.
MANDERINO, J., joins in this concurring and dissenting opinion.
NOTES
[1] Appellate jurisdiction of appeals Nos. 38 & 39 is in the Superior Court, and these appeals were properly filed in that court. Appellate jurisdiction of appeals Nos. 9 & 18 is in this Court, and these appeals were properly filed here. Since all appeals were interrelated and arose as a result of the same incident, the appeals filed in the Superior Court were certified here.
The record establishes that as a result of the suppression of the challenged evidence the Commonwealth will be substantially handicapped in the prosecution of the indictments against Milton and Wormsley, because it will be unable to present all available relevant evidence. Hence, the Commonwealth has the right to appeal from the suppression orders. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).
[2] Gunter and Parker were arraigned at the same time.
[3] The time elapsing between the obtaining of a confession and the arraignment is not relevant to the issue of "unnecessary delay" under Rule 118. See Commonwealth v. Rowe, supra.
[1] The following colloquy between the court and the attorney for the Commonwealth occurred during closing argument at the suppression hearing:
"THE COURT: Let me ask you one other question. Wasn't the sole purpose of the detention in this case directed solely and exclusively at obtaining a confession from Mr. Wormsley? Was there any other reason for the delay between the time of arrest and taking him to arraignment?
"MR. JOHNSON: Under the present state of the record, Your Honor, there was not."
Later in the argument, the point was further discussed in the following exchange:
"MR. JOHNSON: The purpose of any delay, if one existed, Your Honor, was to conduct a further investigation of this case. At this point these police
"THE COURT: What other investigation did they conduct now, outside of the taking of a statement from Wormsley?
...........
"MR. JOHNSON: The Commonwealth does not submit that they did conduct any outside of that, Your Honor."
[2] The Commonwealth's reliance on the opinion announcing the judgment in Commonwealth v. Blagman, ___ Pa. ___, 326 A.2d 296 (1974), is entirely misplaced because that opinion represented the views of only two members of this Court. The holding of Blagman is to be found in the concurring opinion, id. at ___, 326 A.2d at 300, which was joined by five members of this Court and rested on the conclusion that the claim of unnecessary delay had not been preserved for appellate review. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1100837/ | 507 So. 2d 729 (1987)
In re the ESTATE OF Austin PEARCE, Deceased.
No. 4-86-1974.
District Court of Appeal of Florida, Fourth District.
May 20, 1987.
*730 John R. Beranek of Klein & Beranek, West Palm Beach, and George H. Moss of Moss, Henderson & Lloyd, Vero Beach, for appellant John F. Pearce.
George E. Adams of Adams, Hill, Fulford & Morgan, Orlando, for appellee D.L. Pearce.
GLICKSTEIN, Judge.
This is an appeal of an order in Okeechobee County probate court, surcharging attorney's fees for an unauthorized appeal against the appellant, a co-personal representative, personally. We reverse.
Appellant, John F. Pearce, who was appointed copersonal representative in the probate of decedent Austin Pearce's estate, single-handedly and in that capacity appealed an order revoking probate of a will he had in good faith offered for probate. The basis of the order was undue influence of someone other than appellant. The appeal in Pearce v. Foster, 454 So. 2d 721 (Fla. 4th DCA 1984), ended ultimately in dismissal, because section 733.615, Florida Statutes (1983), requires concurrence of all personal representatives for such an action. The other copersonal representative not only refused to concur in the appeal, but opposed it. This court did not at once dismiss the appeal, but remanded for determination of whether the co-personal representative's refusal to join in the appeal constituted grounds for her removal pursuant to section 733.504, Florida Statutes (1983). It was determined, upon relinquishment of jurisdiction, that the other co-personal representative should not be removed.
Attorney's fees of the parties who defended against the aborted appeal were at first allowed against the estate, but subsequently the probate court ordered appellant to bear personally the payment of all attorney's fees incurred during that appeal by any party and previously charged to the estate. This appeal followed.
The issue is whether the trial court erred in surcharging attorney's fees against the co-personal representative who proceeded in good faith with an appeal that is, however, unauthorized under section 733.615, Florida Statutes (1983). We conclude it did.
Appellant argues (a) if he had appealed as an individual beneficiary, rather than in his position as co-personal representative, the attorney's fees now surcharged to him would have been paid by the estate; and (b) his appeal was in good faith. Accordingly, he contends he should not have to pay the other parties' attorney's fees, but they should be paid out of estate funds. He admits, of course, that that appeal was properly dismissed because of the unmet requirement of section 733.615.
Appellees point out that according to section 733.609, Florida Statutes (1983), a personal representative is liable to interested persons for damage or loss resulting from breach of his fiduciary duty, if the personal representative improperly exercises power concerning the estate. Appellees contend that the dismissed appeal constitutes such an improper exercise of power, and the dismissal itself shows that appellant exercised estate power improperly. Hence, say appellees, the order surcharging the other parties' attorney's fees in the former appeal to appellant is correct. They point out all the usual steps up to and including oral argument were taken in the appeal, and that was costly.
Section 733.609, Florida Statutes (1983), reads as follows:
Improper exercise of power; breach of fiduciary duty. If the exercise of power concerning the estate is improper or in bad faith, the personal representative is liable to interested persons for damage or loss resulting from a breach of his fiduciary duty to the same extent as a trustee of an express trust. In all actions challenging the proper exercise of a personal representative's powers, the court shall award taxable costs as in *731 chancery actions, including attorney's fees.
The section is located in Part VI of the chapter, entitled "Duties and Powers of Personal Representative." Section 733.602 is headed "General duties"; section 733.608 is headed "General power of the personal representative" and refers to his control of the estate's assets; section 733.612 identifies a large number of transactions authorized for the personal representative if the will or an order of the court has not provided otherwise; among these authorized transactions is the following:
(20) Prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of his duties.
We refer to the nature of the other nearby sections of the part to provide a context for section 733.609.
It is to be noted that the first sentence of section 733.609 makes "the personal representative ... liable to interested persons for damage or loss resulting from a breach of his fiduciary duty to the same extent as a trustee of an express trust." It is small wonder that historically this provision and its antecedents have been applicable in cases where the personal representative has committed waste. The earlier part of the sentence, just quoted in part, is a conditional clause: "If the exercise of power concerning the estate is improper or in bad faith." We believe "improper or in bad faith" "exercise of power" in that clause and "breach of ... fiduciary duty" in the main clause refer to the same kind of conduct. We hold if the personal representative's conduct is improper or in bad faith to the extent of breaching his fiduciary duty and causing interested persons damage or loss, the personal representative can be liable to those persons under this section. The conduct here so far as can be seen from the record, does not approach that kind of improper conduct. This court remanded the former appeal for determination of whether the other co-personal representative should be removed for refusing to join in the appeal. This court never reached the merits of that appeal.
In Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980), the court stated that the personal representative of an estate and the guardian of property are required to exercise the same standard of care as a trustee of an express trust. The court cited, among other statutory sections, section 733.602(1), which sets forth the general duties of a personal representative.
In light of the provision of section 733.106(2) and the provision of section 733.612(2), we do not perceive appellant's attempt here to appeal the probate court's order on the will for which appellant was proponent as a breach of his fiduciary duty, merely because it is the effect of another statute that a co-personal representative may not "go it alone" to appeal a probate court order that he could appeal if he were the sole personal representative. If appellant's conduct here was egregious, the opposing parties have failed to show it.
Inasmuch as section 733.609 likens the role of a personal representative to that of a trustee of an express trust, we find it helpful to see what is the usual law respecting surcharge, which is payment by a trustee of damages to a beneficiary out of the trustee's own funds for breach of trust. Bogert says that such a right in favor of beneficiaries arises, according to the cases, from the following actions of the trustee: making of unauthorized payments to other beneficiaries; conversion of trust property; negligence in recording instruments affecting the trust property, or in obtaining security, or in collecting trust property, or in holding the property until it became worthless; wrongful sale of trust property, and negligence or misconduct in the making or retaining of investments. Bogert, Trusts and Trustees § 862 (2d ed. 1982). From this litany it seems inappropriate to surcharge a co-personal representative for attorney's fees incurred by estate beneficiaries when the co-personal representative *732 erroneously attempted to appeal a determination of the probate court that the will he propounded and thought in good faith was valid was obtained by another person's undue influence.
Recent Florida case law involving section 733.609 typically concerns conversion of estate business interests, as in In re Corbin's Estate, 391 So. 2d 731 (Fla. 3d DCA 1980) (estate's personal representative acts as fiduciary of beneficiaries and is practically, trustee of an express trust; estate could recover, on the personal representative's malfeasance in sale of estate's business, either for conversion or breach of fiduciary trust, but not both). A point made in that case, albeit quoting from Dacus v. Blackwell, 90 So. 2d 324, 328 (Fla. 1956), is that the personal representative should not be allowed to profit by failing to do what the fiduciary relationship requires him to do.
We believe section 733.609 provides for holding a personal representative accountable for malfeasance and misfeasance in conducting the affairs of the estate and should not be construed to concern what is no more than an effort to carry out one's obligations to the estate as one sees them, while being ignorant of the fact an appeal will not lie if only one of two co-personal representatives attempts to maintain it.
Appellees make much of the fact that the amount of the attorney's fees here at issue was substantial because the appeal went all the way to oral argument before it was determined that the statute would not permit a single co-personal representative to maintain such an appeal. In response we observe that the fact the appeal went that far suggests appellant's error, if that is a proper characterization, was hardly the kind of fault that would support a surcharge. Arguably, this court's deferral of action on a motion to quash that appeal, until after argument on the merits, suggests that the effect on that appeal of section 733.615 was less than clear to this court. Appellant's conduct in mounting the appeal was not patently improper, when there was the possibility the other co-personal representative's refusal to join in the appeal was improper.
HERSEY, C.J., and GUNTHER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1310602/ | 80 S.E.2d 518 (1954)
MANN
v.
PECK et al.
No. 10598.
Supreme Court of Appeals of West Virginia.
Submitted January 26, 1954.
Decided March 16, 1954.
*519 H. E. DeJarnette, W. Cody Fletcher, Princeton, for appellant.
Sherman Ballard, Peterstown, for appellee.
RILEY, Judge.
R. P. Mann brought this suit in equity in the Circuit Court of Monroe County on behalf of himself and of all creditors, known and unknown, of Lula Christian, deceased, against the defendants, C. W. Peck, Administrator of the Estate of Lula Christian, deceased; Hinton Hospital, a corporation; and D. C. Christian, for the purpose of selling decedent's real estate to make assets available to satisfy claims outstanding against the decedent's estate. From a decree declaring that the personal property in decedent's estate is insufficient to pay the debts, allowing the claim of the plaintiff, R. P. Mann, in the amount of $879.67, based upon two demand promissory notes, and decreeing the sale of decedent's real estate by named special commissioners, the administrator prosecutes this appeal.
Lula Christian, about sixty years of age, residing in Monroe County, died intestate *520 on August 14, 1950, leaving D. C. Christian, her son, as her only heir at law. Later defendant, C. W. Peck, qualified as administrator of decedent's estate. The estate was appraised at $4,216.85, the real estate having been appraised at $3,100. The accounts of the administrator, having been referred to a commissioner of accounts, notice was given, as required by Code, 44-4-11.
Pursuant to this notice, the plaintiff, R. P. Mann, decedent's brother presented an itemized claim, consisting of four items, against the estate in the total amount of $965.40, two of which items, in the respective amounts of $631 and $248.67, were evidenced by two promissory demand notes, executed during decedent's last illness, and the other two items of which were claims for services alleged to have been rendered decedent during her lifetime, in the respective amounts of $52 and $33.73, or a total of $85.73. To this claim the administrator set up a claim against Mann for money alleged to have been received by the latter during the decedent's lifetime from the sale of a cow, in the amount of $150, and chickens, in the amount of $28, both of which were owned by decedent, it being asserted by the administrator that Mann had not accounted to the estate for the proceeds of these sales.
The commissioner of accounts allowed plaintiff's claim in the full amount of $965.40, and refused the items of $150 and $28, claimed by the administrator.
On December 7, 1951, the commissioner of accounts completed his report, the only exception taken thereto being presented by the administrator; and thereafter on December 1, 1951, the commissioner of accounts filed his report in the county court clerk's office as required by statute.
On January 7, 1952, Mann, by his attorney, moved the County Court of Monroe County to consider the report of the commissioner of accounts and to ratify it. Thereupon, the defendant administrator, by his attorney, filed an exception to the report, stating as ground for the exception that the claim of Hinton Hospital, a corporation, for services rendered during decedent's last illness, amounting to $325, had not been allowed. The county court sustained the administrator's exception to the report, and approved the commissioner's report, with the following qualification: That the administrator allow "the claim of Hinton Hospital as a preferred claim in the amount of $50, and allow the residue of the claim as a general claim against the estate."
Then followed the bringing of this suit by a precipe filed on March 3, 1952, in which, as heretofore indicated, the plaintiff sought to have the decedent's real estate sold to satisfy the outstanding indebtedness of the estate. In this suit the matters arising therein were referred to a commissioner in chancery on April 1, 1952; and on May 5, 1952, decedent's administrator Peck was granted a writ of error by the Circuit Court of Monroe County to the order of the county court allowing plaintiff's claim in the full amount. Depositions were taken in this suit in equity on June 24, and July 8, 1952; and on July 8, 1952, the commissioner in chancery filed his report in compliance with the decree of the Circuit Court of Monroe County.
On July 11, 1952, the circuit court by order entered on that day, to which no objection was made, consolidated the case arising on the writ of error to the order of the county court with the suit in equity now before this Court on appeal.
In the suit in equity the circuit court entered a decree of sale, which recited, inter alia, that "upon consideration whereof, the exceptions to the said report are sustained as to the open account of R. P. Mann amounting to $85.73, which is disallowed, and as to the other matters set forth in said report, the exceptions are overruled and the said report as modified is confirmed." This decree further recites that the personal property in the hands of the administrator, which is available for the payment of debts, is not sufficient to pay the debts of decedent's estate, and that it will be necessary to subject decedent's real estate to the payment thereof; and further it is "adjudged, ordered and decreed that *521 unless the said D. C. Christian, or someone for him, shall pay the said debts, with interest thereon from July 8, 1952, the date of the said report, and the costs of this suit within thirty (30) days from the entry of this order, then" the commissioners named in the decree "for the purpose, shall offer the said real estate of decedent for sale at public auction on terms of sale specified in the decree."
The only question before this Court on this appeal is whether decedent's brother, R. P. Mann, the plaintiff in this suit, has properly proved the part of his claim evidenced by the two notes in the total amount of $879.67, with interest thereon from July 8, 1952, the date of the report of the commissioner in chancery.
As the solution of this question involves the sufficiency of proof as to the alleged services rendered by plaintiff to decedent during her lifetime, and in particular during her last illness, and the execution of the two notes evidencing plaintiff's claim by the decedent affixing her mark to her signatures on the notes, is largely dependent upon plaintiff's testimony, this record raises the initial question whether plaintiff was a competent witness under Code, 57-3-1, which provides, in part, that "No party to any action, suit or proceeding, nor any person interested in the event thereof, * * *, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased, * * *." Certainly, the question whether plaintiff rendered services to the decedent and the nature thereof involves a "personal transaction or communication" between plaintiff and decedent within the meaning of Code, 57-3-1. Owens v. Owens' Adm'r, 14 W.Va. 88, 94; Poling v. Huffman, 48 W.Va. 639, 649, 37 S.E. 526. And the factual questions whether decedent executed the two notes in question by affixing her mark to her signatures and whether at the time of the execution of the notes she was of sufficiently sound mind to understand the nature of the transaction, in which she was engaged, likewise involve personal transactions within the inhibitions of the statute between the witness and the decedent. Poole v. Beller, 104 W.Va. 547, 551, 140 S.E. 534, 58 A.L.R. 207.
The plaintiff, being the holder of the two notes upon which his claim is based and a party to this suit, was under the statute incompetent to testify, and such incompetency would have precluded recovery, had timely objection been made to its admission. Beginning with the early case of Middleton's Ex'r v. White, 5 W.Va. 572, it was for many years the settled law in this jurisdiction that an objection to the testimony of an incompetent witness may be made for the first time in this Court. See Rose & Co. v. Brown, 11 W.Va. 122; Martin, Adm'x v. Smith, 25 W.Va. 579, Kimmel, Adm'r v. Shroyer, 28 W.Va. 505; Vanscoy v. Stinchcomb, 29 W.Va. 263, 11 S.E. 927; Long v. Perine, 41 W.Va. 314, 23 S.E. 611; Woodville v. Woodville, 63 W. Va. 286, 60 S.E. 140; Cooper v. Cooper, 65 W.Va. 712, 64 S.E. 927; Sayre v. Woodyard, 66 W.Va. 288, 66 S.E. 320, 28 L.R.A., N.S., 388; Poteet v. Imboden, 77 W.Va. 570, 88 S.E. 1024; 64 A.L.R. 1161 note.
However, in the rather recent case of Willhide, Ex'x v. Biggs, 118 W.Va. 160, 188 S.E. 876, this Court departed from its holding in Middleton's Ex'r v. White, supra, and the kindred cases heretofore cited, and held in point 3 of the syllabus that: "The competence of a witness to give material testimony may not be challenged for the first time in this court, but must be raised and passed upon in the trial court before it can be made the basis of an assignment of error here. The West Virginia cases holding the contrary which are named in the body of this opinion are, in so far as they conflict herewith, expressly overruled." Consistently thereafter the rule stated in point 3 of the syllabus of the Willhide case has been adhered to. Lilly v. Bowling, 120 W.Va. 169, 172, 197 S.E. 299; Tyler v. Reynolds, 120 W.Va. 232, 246, 197 S.E. 735; Carter v. Walker, 121 W.Va. 81, 85, 1 S.E.2d 483. As no objection was made to Mann's testimony in the trial court, his incompetency as a witness, though the testimony *522 involves personal transactions with the decedent, cannot be raised in this Court. As we must take the record as we find it, Mann's testimony will be considered on this appeal on the question whether there was sufficient evidence from which the trial court could find, as it did, that the part of plaintiff's claim, which is based upon the two promissory notes in evidence, is valid.
The plaintiff, R. P. Mann, decedent's brother, is a bachelor about seventy-eight years old. After decedent's husband died in the year 1933 or 1934, plaintiff, who had been living with a married niece in Jackson County, went to decedent's home in Monroe County, in February, 1949, where he stayed for about eight months. On October 10, 1949, he returned to Jackson County, and remained there, evidently at the home of his niece, until April, 1950, when, at decedent's request, he returned to decedent's home in Monroe County, remaining with decedent at her home until decedent became so ill during the summer of 1950 that on the advice of Dr. Robert J. Smith, decedent's personal physician, she was removed to a hospital at Hinton, where she died on August 14, 1950. During decedent's stay at the hospital she was cared for by plaintiff.
In February, 1949, decedent had living with her at the Christian home, and until the time she was taken to the hospital, a young girl by the name of Dorothy Mae Graham, about sixteen years of age at that time, who, the record discloses, was a ward of the State, and for whom decedent received compensation from the Department of Public Assistance covering her care and maintenance. Dorothy Mae Graham was a pupil at Red Sulphur District High School, located in Monroe County at Peterstown, during the course of events portrayed by the record in this case.
During plaintiff's stay at the Christian home in 1949, he worked about the Christian home and yard, and helped to maintain a garden near the house. On at least one occasion decedent told plaintiff that he was to be paid for what he did. This record discloses that plaintiff kept an account, which was at least partial, of the money he personally spent for doctor bills and for feed bills for the cow and chickens, which were kept at decedent's homeplace. During the summer of 1950 the decedent, Lula Christian, became ill, so that her physician Dr. Smith advised her only son, the defendant, D. W. Christian, to arrange for a nurse, which the son did not do. So Dorothy Mae Graham and the plaintiff, according to their testimony, waited on and cared for decedent during this time. On June 14, 1950, decedent, though in a very weakened condition, executed the notes in controversy, payable on demand to the order of plaintiff, R. P. Mann, "or his assigns", which notes were signed by the decedent, Lula Christian, by making an "X" after her name on the notes, in the presence of plaintiff and Dorothy Mae Graham, the latter of whom signed as a witness to decedent's mark.
Dorothy Mae Graham testified, and she is corroborated by plaintiff, that at decedent's request she made out the notes and signed decedent's name to both of them, and that thereafter decedent affixed her mark after each of her signatures.
During decedent's last illness, and after decedent had been removed to the hospital at Hinton, plaintiff sold decedent's cow and the chickens, which were then at decedent's homeplace, and though plaintiff testified that he used the money to pay some of decedent's bills, the administrator asserts in the claim which he filed before the commissioner of accounts that plaintiff did not account for the proceeds of these sales, which claim of the administrator was disallowed in the county court proceeding and by the decree in the equity suit, entered on April 8, 1953, to which this appeal is prosecuted.
The administrator asserts that at the time the notes were executed that decedent was ill, and of such unsoundness of mind that, even if she made her mark to her signatures on the two notes, she did so at a time when she did not know the nature *523 of the transaction in which she was then engaged; but the evidence on this question conflicts.
According to the testimony of Dorothy Mae Graham and plaintiff, the notes were prepared by the Graham girl, and decedent's name was signed thereto at decedent's request, to which notes decedent affixed her mark; and that at the time the notes were executed, decedent was of sufficiently sound mind to know the nature of the transaction. Dr. Robert J. Smith, decedent's personal physician, testified in answer to the inquiry whether during the month of June, 1950, when decedent executed the two notes to plaintiff, R. P. Mann: "Would you say that she was competent or incompetent to execute notes, checks and other writings," that "I would say she was competent." To the contrary Irene Greene, decedent's close neighbor, testified that she had visited decedent every day for a month or longer before decedent was removed to the hospital at Hinton; that she would talk with decedent on those occasions; that she was wont to take her something to eat; that during the last two or three weeks before decedent was taken to the hospital, on her daily visits with decedent, she found that decedent's mental condition was "bad"; and that decedent "didn't know she was at home, and would ask where she was. She would say the state road wasn't supposed to go in front of her house; and then on one occasion she said there was a fat pig in bed with her, and then one day she was looking down between her bed and the wall and said there was a fat baby down there and she wanted me to get it for her so she could love it."
This conflict in the evidence, bearing on the integrity of decedent's mind at the time she executed the notes, has been resolved by the trial court in plaintiff's favor in the first instance on the writ of error in the proceeding before the county court in the settlement of the administrator's account; and then in the final decree entered on April 8, 1953, to which this appeal is being prosecuted. We cannot say, in view of the evidence adduced in support of plaintiff's claim on the two notes and the evidence in support of the administrator's position, that the finding of the trial court in the entry of the decree of April 8, 1953, was clearly wrong or against the preponderance of the evidence. Holt Motors, Inc. v. Casto, 136 W.Va. 284, pt. 1 syl. 67 S.E.2d 432; Bennett v. Neff, 130 W.Va. 121, pt. 6 syl., 42 S.E.2d 793; Sutton v. Sutton, 128 W.Va. 290, pt. 2 syl., 36 S.E.2d 608; Shipper v. Downey, 119 W.Va. 591, pt. 3 syl., 197 S.E. 355. The finding, therefore, will not be disturbed.
The two notes, which evidence plaintiff's claim, are, under the finding of the trial chancellor, valid obligations against decedent's estate. The record discloses that while plaintiff was living at decedent's home, and especially during her last illness at the hospital at Hinton, plaintiff rendered services to the decedent which were vitally necessary to decedent's comfort and well-being, services which her own son failed to furnish for her. The value which the maker of the notes placed on the services rendered by plaintiff constitute the consideration for the two notes. In point 5 of the syllabus of Bade, Adm'r v. Feay, 63 W.Va. 166, 61 S.E. 348, this Court held that: "A promissory note given to a near relative, by a person in declining years, by way of compensation or reward for services rendered and to be rendered, is so much in the nature of a testamentary disposition of property that ordinarily the maker's estimate of the value of the services will not be disturbed on the ground of disparity between the actual value thereof and the amount of the note."
For the foregoing reasons the decree of the Circuit Court of Monroe County, entered on April 8, 1953, is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620543/ | 294 S.W.2d 36 (1956)
Richard E. WILLIAMS, Appellant,
v.
KANSAS CITY PUBLIC SERVICE COMPANY, a corporation, Respondent.
No. 44974.
Supreme Court of Missouri. Division No. 2.
September 10, 1956.
Motions to Modify and for Rehearing Denied October 8, 1956.
*37 Robert J. Taylor, William E. Tipton, Tipton, Birmingham, Taylor & Furry, Kansas City, for appellant.
Charles L. Carr, Hogsett, Houts & James, Kansas City, for respondent.
STOCKARD, Commissioner.
Plaintiff has appealed from an adverse judgment, the effect of which was to sustain a motion to dismiss his petition for failure to state a claim upon which reliet can be granted. Jurisdiction is in this court because the amount of damages sought is $19,000.
Plaintiff's petition, other than caption and signatures, is as follows:
"Comes now the plaintiff and with leave of Court amends his petition herein and states:
"Count I.
"1. That the defendant, Kansas City Public Service Company is a Corporation, organized and existing under the laws of the State of Missouri and engaged in operating a public transportation system in Kansas City, Jackson County, Missouri.
"2. Plaintiff further states that he was employed by said defendant from December 15, 1942, until on or about August 3, 1951, as a streetcar and bus operator at the defendant's 9th and Brighton Division; that while plaintiff was so employed, he was subject to an agreement or contract between Division No. 1287, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America and the defendant Kansas City Public Service Company, dated as of January 1, 1950, which at all times mentioned herein was in full force and effect.
"3. Plaintiff further states that on or about August 3, 1951 he was discharged for allegedly misappropriating company funds and in accordance with the agreement or contract aforementioned, the plaintiff's grievance was submitted to a purported arbitration and a hearing was held to determine plaintiff's rights; and that plaintiff has fully complied with the terms of said agreement and exhausted his grievance remedies thereunder.
"4. Plaintiff further states that said hearing and the resulting award were unfair, unjust, improper and not impartial and that plaintiff's rights were prejudiced in that only one of the three arbitrators was permitted to view the conduct and demeanor of the only witnesses upon whose testimony the award was based; that there was no competent evidence to support the charge or on which to base an award; that the evidence was contradictory and insufficient; that since the charge was criminal in nature, the plaintiff was entitled to the basic constitutional right of confrontation of his accusers *38 but that plaintiff was deprived of this right and the testimony on which the purported award was based was given by unknown and unseen parties sitting behind a screen, over the objection of plaintiff and his representative; that the evidence submitted in no way proved the charge beyond a reasonable doubt; and that therefore plaintiff was wrongfully and unlawfully dismissed and discharged by the defendant.
"5. Plaintiff further states that as a result of the aforementioned award and wrongful dismissal his reputation and character have been irreparably damaged; that he has been deprived of working at his usual occupation or any employment commensurate with his experience and ability; that he has suffered loss of seniority rights and other fringe benefits; that he has been caused to accept employment of a kind and nature that the compensation is much less than that previously earned; and that he has suffered undue hardship, humiliation and loss of income.
"6. Plaintiff further states that because of said wrongful and unlawful discharge he has suffered actual damages in the amount of Nine Thousand ($9,000.00) Dollars loss of wages to date.
"Count II.
"1. For Count II herein, plaintiff adopts and makes a part hereof as though fully copied herein all the allegations and averments set forth in Count I and states that the said agreement or contract aforementioned, according to its terms, created a duty on the part of the defendant to provide the plaintiff with a fair, just and impartial hearing and investigation; and that defendant's failure to so provide was malicious and capricious and constituted a breach of said duty and that by reason of such facts plaintiff is entitled to punitive damages in the sum of Ten Thousand ($10,000.00) Dollars.
"Wherefore, plaintiff prays for judgment against the defendant in the total sum of Nineteen Thousand ($19,000.00) Dollars, together with his costs herein incurred and expended."
The defendant filed an answer in which it incorporated a motion to dismiss the petition for failure to state a claim upon which relief can be granted, and in which it also alleged an affirmative defense to the effect that the contract between the defendant and the labor union mentioned in the petition provided for a grievance procedure the result of which was to be final and binding on the parties; that plaintiff submitted his grievance resulting from his discharge to arbitration according to the terms of the said contract; and that the award of the arbitration board was that the discharge of plaintiff was authorized by the contract. No evidence was taken and the record does not disclose any motion for judgment on the pleadings. The trial court entered judgment that "both defenses are well founded" and that "plaintiff take nothing by his suit." We shall consider first the correctness of the judgment that the petition fails to state a claim upon which relief can be granted, and in doing so shall consider only those allegations contained in the petition and disregard those in the answer.
This is not a suit to have the arbitration hearing and award set aside as was the case in Continental Bank Supply Co. v. International Brotherhood of Bookbinders, Local No. 243, Mexico, Mo., 239 Mo.App. 1247, 201 S.W.2d 531. Neither is it a suit to obtain a judicial review of the correctness of the arbitration award. Plaintiff bases his claim in count I of the petition for damages resulting from a wrongful discharge from employment. Unless there is a contract pertaining to the duration of the employment or limiting the reasons for which the employee may be discharged the employment is at the will of either party, and the employer may terminate the relationship at any time. Culver *39 v. Kurn, 354 Mo. 1158, 193 S.W.2d 602 [2], 166 A.L.R. 644; Douglas v. Metropolitan Life Ins. Co., Mo.App., 297 S.W. 87; Bell v. Faulkner, Mo.App., 75 S.W.2d 612 [1]; 56 C.J.S., Master and Servant, § 48; 35 Am.Jur., Master and Servant § 19; Annotations: 11 A.L.R. 470; 100 A.L.R. 835. Therefore a contract of employment and a breach thereof is a prerequisite to a cause of action for wrongful discharge. Jenkins v. Thompson, Mo.Sup., 251 S.W.2d 325 [4]; Craig v. Thompson, Mo.Sup., 244 S.W.2d 37 [4]. A petition for wrongful discharge from employment in breach of contract must set forth the essential elements of a valid contract, and a discharge in violation thereof. Mullin v. St. Louis-San Francisco Ry. Co., Mo.App., 254 S.W.2d 438 [2].
Plaintiff has alleged the existence of a contract between the defendant and a labor union to which it is generally stated plaintiff's employment was subject, but he does not allege the terms thereof pertaining to his employment or the circumstances under which his relationship to defendant as employee may or may not be terminated, and he does not allege facts from which it can be reasonably inferred that the discharge of plaintiff was in violation of that contract. What plaintiff does allege is that plaintiff was discharged for allegedly misappropriating company funds; that pursuant to the contract of employment plaintiff's grievance (we assume that his grievance was that he was unjustly or wrongfully discharged) was submitted to arbitration and a hearing was held to determine "plaintiff's rights;" that said hearing and the resulting award (we assume that the award was adverse to plaintiff) were unfair, unjust, improper and not impartial; that "plaintiff's rights" were prejudiced by reason of the various occurrences as set forth in paragraph four of the petition; and "that therefore plaintiff was wrongfully and unlawfully dismissed and discharged by the defendant."
The manner of conducting the hearing on "plaintiff's grievance" may have been so improper (but we are not ruling this question) that upon proper and timely challenge, the hearing and the result reached might be declared to be void and of no effect. See Continental Bank Supply Co. v. International Brotherhood of Bookbinders, Local No. 243, Mexico, Mo., supra. However, plaintiff does not seek that relief here, and it does not necessarily follow that if the arbitration hearing was improperly conducted the discharge was in violation of the contract of employment. The discharge may have been authorized by the contract, and if so, the discharge does not subsequently become a violation of the contract because the administrative procedure for review provided for in the contract was not performed in a proper manner. We do not hold that plaintiff has not exhausted the administrative remedy provided for in the contract, but we do hold that if plaintiff seeks to bring a suit in the courts for damages for wrongful discharge from employment, in addition to alleging that he has exhausted his administrative remedy, he must allege the essential facts to show his employment was subject to a contract which was breached by the discharge.
The allegation that the discharge was wrongful and unlawful constitutes nothing more than a conclusion, Folger v. Lowery, Mo.App., 210 S.W.2d 1011 [2], which is not admitted by a motion to dismiss for failure to state a claim upon which relief could be granted. Therrien v. Mercantile-Commerce Bank & Trust Co., 360 Mo. 149, 227 S.W.2d 708 [3]. We must necessarily conclude that there are no allegations of fact in the petition which if proved would establish, or from which it reasonably could be found, that the discharge of plaintiff was in violation of plaintiff's contract of employment.
Plaintiff relies on Transcontinental & Western Air, Inc., v. Koppal, 345 U.S. 653, 73 S. Ct. 906, 97 L. Ed. 1325; Reed v. St. Louis S. W. R. Co., Mo.App., 95 S.W.2d 887; Mayfield v. Thompson, Mo.App., 262 *40 S.W.2d 157; and Mullin v. St. Louis-San Francisco Ry. Co., Mo.App., 254 S.W.2d 438. As far as material to this case, the first three of these cited cases hold that an employee must exhaust his administrative remedies under the contract of employment before he may maintain action for wrongful discharge in violation of the contract. None of these cases holds that an employee may maintain an action for wrongful discharge on the ground that it was in violation of a contract of employment by alleging only that certain administrative procedures authorized or required by the contract were not properly held and without alleging in a proper manner that the discharge constituted a violation of the contract. The Mullin case, insofar as here material, is adverse to plaintiff's position because it holds that in an action for damages for wrongful discharge the discharge must be averred as constituting the breach of the contract and as the fact constituting the cause of action.
While count I is based on an alleged breach of the employment contract by reason of a wrongful discharge of plaintiff, count II apparently purports to allege another and different breach of the contract by defendant in "maliciously and capriciously" failing "to provide the plaintiff with a fair, just and impartial hearing and investigation."
If we treat count II as a purported statement of a separate claim, it is somewhat unique in that while plaintiff seeks $10,000 punitive damages he does not allege that any actual damages, not even nominal, resulted from this alleged breach. However, whether we treat count II as purporting to state a claim separate from that in count I as Section 509.120 RSMo 1949, V.A.M.S., contemplates separate claims should be stated, or treat count II in connection with count I and as separately stating items of punitive damages as required by Section 509.200 RSMo 1949, V.A.M.S., the result is that in either case by what is designated as count II plaintiff seeks punitive damages in a suit on a contract for the alleged breach thereof. It has repeatedly been held (except perhaps within certain narrow exceptions) that punitive damages are not recoverable in an action on contract. Trammell v. Vaughan, 158 Mo. 214, 59 S.W. 79 [3], 51 L.R.A. 854; Hilderbrand v. Anderson, Mo.App., 270 S.W.2d 406 [7]; Barton v. Farmers Ins. Exchange, Mo.App., 255 S.W.2d 451 [8]; Thomas v. Sterling Finance Co., Mo.App., 180 S.W.2d 788, 792; Zweifel v. LeeSchermen Realty Co., Mo.App., 173 S.W.2d 690 [10]; Trout v. Watkins Livery & Undertaking Co., 148 Mo.App. 621, 130 S.W. 136 [4]; Restatement of the Law of Contracts, Vol. 1, § 342, p. 561; 25 C.J.S., Damages, § 120; 15 Am.Jur., Damages, § 273; Annotations: 23 A.L.R. at p. 961 and 84 A.L.R. at p. 1345. There have been recognized a few exceptions to the above rule where the breach amounts to an independent, willful tort and there are proper allegations of malice, wantonness, or oppression. See 15 Am.Jur., Damages, § 273, at p. 709, and 25 C.J.S., Damages, § 120, at page 717. In Holland v. Spartanburg Herald-Journal Co., 166 S.C. 454, 165 S.E. 203, 84 A.L.R. 1336, in a suit for damages for breach of an employment contract it was held that acts of willfulness would not support an allowance of punitive damages. Plaintiff has not attempted to allege facts which would bring this claim for punitive damages under any recognized exception to this rule.
The trial court correctly ruled that the petition failed to state a claim upon which relief can be granted, and it is therefore unnecessary to consider the other reason advanced for its judgment. However, this is not to be taken as indicating approval of the procedure whereby the trial court apparently ruled on the sufficiency of an affirmative defense before evidence was taken and when, at least as shown by the record, no motion for judgment on the pleadings had been filed.
*41 The judgment of the trial court that plaintiff take nothing by his suit is affirmed.
All concur.
BOHLING and BARRETT, CC., concur.
PER CURIAM.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620559/ | 916 So. 2d 891 (2005)
O.L. RAULERSON, Sheriff of Okeechobee County, Appellant,
v.
Marshall MITCHELL and Milton Mitchell, Sr., Appellees.
No. 4D04-2432.
District Court of Appeal of Florida, Fourth District.
November 9, 2005.
*892 Michael J. Stephenson of Purdy, Jolly & Giuffreda, P.A., Fort Lauderdale, for appellant.
No brief filed for appellees.
PER CURIAM.
Appellant, O.L. Raulerson, appeals the trial court's order granting injunctive relief. We reverse the order on the ground that the appellees, Marshall and Milton Mitchell, have failed to establish a clear legal right to an injunction.
Marshall and Milton Mitchell filed an Emergency Petition for Injunction in *893 which they alleged violations of their rights concerning the quality of their confinement at the Okeechobee County Jail while awaiting trial. Among the relief requested, the Mitchells asked the trial court to mandate Raulerson, the Sheriff of Okeechobee County, to perform certain actions, including delivering the Mitchells' personal and legal mail in a timely manner and providing the Mitchells access to a deputy to log criminal complaints. The trial judge construed the request for injunctive relief as a supplement to a previously filed habeas corpus complaint and held an evidentiary hearing.
As a result of the hearing, the trial judge concluded that the issues addressed in the order were properly filed under a petition for writ of habeas corpus and proceeded to grant injunctive relief on two grounds, but denied all other relief. Specifically, the judge required Raulerson to bring in a Deputy, or other law enforcement officer authorized to take criminal complaints, within ten days of the order to speak with the Mitchells and take any criminal complaints which they wished to lodge. Further, the trial court ordered Raulerson "to follow the institution's policies and procedures regarding Plaintiff Marshall Mitchell's legal mail, to-wit: all legal and privileged mail must be logged, envelopes must be Xeroxed and if legal or privileged mail needs to be opened, it must be opened in the presence of the inmate in the canteen and if it does not need to be opened, it must be delivered to the inmate on the day it is received and inspected."
On appeal, Raulerson argues that the order granting injunctive relief should be reversed because the order is legally insufficient. Raulerson cites K.W. Brown & Co. v. McCutchen, 819 So. 2d 977 (Fla. 4th DCA 2002), for the proposition that in order for a plaintiff to "obtain a permanent injunction, a plaintiff must establish a clear legal right, an inadequate remedy at law and that irreparable harm will arise absent injunctive relief." Id. at 979 (citing Dania Jai Alai Int'l, Inc. v. Murua, 375 So. 2d 57, 58 (Fla. 4th DCA 1979)). Raulerson contends that the Mitchells failed to establish all three elements necessary for injunctive relief. For the reasons that follow, we agree with appellant and reverse the granting of injunctive relief concerning the mail delivery as well as the requirement that a deputy log the Mitchells' criminal complaints.
We review the order granting the injunction under the abuse of discretion standard. Net First Nat'l Bank v. First Telebanc Corp., 834 So. 2d 944 (Fla. 4th DCA 2003) (citing Weinstein v. Aisenberg, 758 So. 2d 705, 706 (Fla. 4th DCA 2000)).
Raulerson first challenges the imposition of the injunction related to the mail delivery, basing his argument on Marshall Mitchell's failure to show that a clear legal right was violated. This Court held in K.W. Brown & Co. that in order for a plaintiff to obtain a permanent injunction, the plaintiff must establish a "clear legal right" to injunctive relief. K.W. Brown & Co., 819 So.2d at 979.
Interference with legal mail implicates a prison inmate's rights to access the courts and free speech as guaranteed by the First and Fourteenth Amendments to the U.S. Constitution. Davis v. Goord, 320 F.3d 346, 351 (2nd Cir.2003). However, while a prisoner has a right to be present when his legal mail is opened, an isolated incident of mail tampering is usually insufficient to establish a constitutional violation. Id. Rather, the inmate must show that prison officials "regularly and unjustifiably interfered with the incoming legal mail." Id.
We agree with the appellant that Marshall Mitchell failed to establish that Raulerson *894 unconstitutionally interfered with his mail. While the trial court does not make any definitive finding as to whether the violations were on-going or isolated, the order does include a finding that the violations were "perhaps inadvertent" and that adherence to the policy would prevent any future violation of Mitchell's right. The trial court further found that Raulerson's policies and procedures regarding mail delivery are "adequate to protect the Plaintiff's constitutional rights." In addition, the court's finding that the interference with mail occurred "on at least two occasions" also does not amount to a showing that the prison officials "regularly" interfered with Mitchell's incoming mail as required in Davis. Davis, 320 F.3d at 351. Therefore, because Mitchell failed to show that prison officials "regularly and unjustifiably" interfered with his incoming mail, we conclude that the trial court order granting injunctive relief was an abuse of discretion as it was not based on legally sufficient evidence demonstrating that a clear legal right was violated.
In addition to establishing a violation of a clear legal right, K.W. Brown & Co. requires that Mitchell show that no adequate remedy at law exists in order to obtain an injunction. K.W. Brown & Co., 819 So.2d at 979. In Sallier v. Brooks, 343 F.3d 868 (6th Cir.2003), the appellate court affirmed, in part, a state prisoner's section 1983 action against two prison mailroom clerks who opened legal mail outside the presence of the prisoner. Id. The prisoner won on 13 of the 20 claims of violations and was awarded compensatory and punitive damages in the amount of $13,000. On appeal, the court reversed 10 of the 13 successful claims and reduced the damages accordingly. Id. at 880. Therefore, based on Sallier, we find that a remedy at law is available under section 1983, and that Mitchell failed to show how a section 1983 action would be an inadequate remedy at law. Thus, we conclude that the granting of injunctive relief concerning the mail delivery was an abuse of discretion because Mitchell failed to show that no adequate remedy at law exists in addition to his failure to establish that a clear legal right was violated.
Finally, we also reverse the order granting injunctive relief requiring the deputy to log criminal complaints. The trial court ordered that Raulerson must "either personally or through the jail administrator. . . within ten days . . . cause a Deputy or other law enforcement officer authorized to take criminal complaints to speak with the [brothers] to take any criminal complaints which they wish to lodge." Again, we find that the trial court erred in concluding that the failure to bring a deputy into the jail to allow the Mitchells to file a criminal complaint is a violation of the constitutional right to access the courts. We find that the right to be given access to a deputy to log criminal complaints is not the type of "clear legal right" as required to be granted injunctive relief. See K.W. Brown & Co., supra. Therefore, injunctive relief is not warranted.
For these reasons, we conclude that the trial court's order granting injunctive relief was an abuse of discretion and reverse.
Reversed.
GUNTHER, FARMER and TAYLOR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620599/ | 294 S.W.2d 74 (1956)
Leslie G. CARLISLE et al., Appellants,
v.
Orman G. REEVES, Appellee.
Court of Appeals of Kentucky.
June 1, 1956.
Rehearing Denied November 2, 1956.
James W. Stites, Walter R. King, Charles W. Porter, Louisville, for appellants.
Joseph E. Stopher, J. L. Richardson, A. J. Deindoerfer, Boehl, Stopher, Kilgarriff, Graves & Deindoerfer, Louisville, for appellee.
CAMMACK, Judge.
This action was instituted by Orman G. Reeves, the appellee, to recover damages for injuries received in a multiple automobile collision in the City of Louisville. Reeves' car, proceeding north on Fourth Street, after dark, was struck from behind by a truck driven by the appellant, Leslie G. Carlisle, and owned by the appellant, the Ferry-Morse Seed Company. Damages to the car totaled $152.37, and the appellants, admitting that the accident just mentioned was caused by Carlisle's negligence, have paid that claim.
Immediately after the aforementioned accident, the vehicles were left in their respective positions, and Reeves went to a fire engine house across the street and called the police. The appellee contends that, while he was calling the police, Carlisle, allegedly intoxicated, moved his truck and parked it at a 45-degree angle, with the back end protruding into Fourth Street. He claims also that Carlisle turned the truck lights off, despite the fact that the particular night was dark and rainy, with only poor visibility. The alleged subsequent acts by Carlisle are controverted by the appellants.
Shortly after Reeves returned from calling the police, he went into the street behind the truck in order to obtain its license number. There, he was struck by a car driven by an intoxicated driver, Charles S. Gilkey, a co-defendant below. Reeves was pinned between the bumper of the truck and the car, and suffered injuries subsequently necessitating amputation of his right leg above the knee.
The jury returned a verdict for $63,991 in favor of Reeves against all of the defendants, and judgment was entered thereon. *75 The appellants seek a reversal on the grounds that (1) they violated no duty owed to the appellee, and hence were not negligent; (2) the negligence of the appellants, if any, was not the proximate cause of the appellee's injury; (3) the appellee was guilty of contributory negligence as a matter of law; (4) the appellants' theory of the case was not presented in the instructions to the jury; (5) the verdict is excessive and shows that it was the result of passion and prejudice; and (6) erroneous instructions were given. The appellee insists that (1) the issue of proximate cause was submitted to the jury properly; (2) the issue of contributory negligence was for the jury; and (3) the verdict is not excessive.
Under our view of the case, the controlling issue is that of the appellee's own conduct. Since our decision on that point will be determinative of the case, we will express no opinion upon the other issues developed in the briefs.
Reeves said at the trial that he knew it was dangerous to stand in the street, with his back to the oncoming traffic, for the purpose of obtaining the license number of the truck which had collided with his car. While the testimony may or may not constitute a judicial admission of contributory negligence, it does show that Reeves knew the risk involved in his undertaking, and that he voluntarily assumed the risk. We have held consistently that a person who, with knowledge of a dangerous situation, voluntarily places himself in a position where he takes the chance of being hurt, and is in fact injured, cannot recover for his injuries. Geller v. Geller, 314 Ky. 291, 234 S.W.2d 974 (doctrine recognized therein); Porter v. Cornett, 306 Ky. 25, 206 S.W.2d 83; Gates v. Kuchle, 281 Ky. 13, 134 S.W.2d 1002; Poole v. Lutz & Schmidt, 273 Ky. 586, 117 S.W.2d 575. While knowledge of the danger is essential in an application of the doctrine of assumed risk (see Marks v. Goldstein, Ky., 266 S.W.2d 104), that element of the case is provided here by the appellee's own testimony. It is significant also that Reeves said Carlisle's truck was moved toward the curb and parked at a 45-degree angle, with the lights off, while he was at the fire house. There was no showing that Carlisle was moving or about to move the truck again when Reeves went into the street to get the license number. On this record, the issue was not one on which reasonable minds could differ; hence, was not an issue for the jury.
For the foregoing reasons, the judgment is reversed, with directions to set it aside, and to enter a judgment notwithstanding the verdict, in accordance with the appellants' motion therefor. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/86220/ | 41 U.S. 336 (____)
16 Pet. 336
DAVID PROUTY AND JOHN MEARS, PLAINTIFFS IN ERROR,
v.
DRAPER RUGGLES ET AL., DEFENDANTS IN ERROR.
Supreme Court of United States.
The case was submitted to the Court on printed arguments by *337 Mr. Choate, for the plaintiffs in error; and by Mr. Dexter, for the defendants.
The case is fully stated in the opinion of the Court.
Mr. Chief Justice TANEY delivered the opinion of the Court.
This case is brought here by a writ of error to the Circuit Court of the United States, for the district of Massachusetts.
The action was instituted for the purpose of recovering damages for an infringement of a patent, which the plaintiffs had obtained for an improvement in the construction of the plough.
The invention is described in the specification, as follows:
"Be it known, that we, the said Prouty and Mears, have jointly invented, made, and applied to use, a new and useful improvement in the construction of the plough, which invention and improvement we describe and specify as follows, viz.:
Heretofore, the standard and landside of the plough has been placed perpendicular to, and at right angles with the plane of the share; on this standard the beam has been placed in such manner as to form an acute angle with the landside, of such extent as to place that part of the beam to which the moving power is applied at the distance of three or more inches from an extended line of the landside, to the right; while the after-part of the beam extends one or more inches to the left of the perpendicular of the landside, near the handle; the object has been to cause the plough `to run to land,' or hold its width of furrow. The effect produced has been an uneasy, struggling motion, as it meets resistance at the point, wing, or heel.
We make our plough with the standard and landside forming an acute angle with the plane of the share, the standard inclining to the right or furrow side, in such manner as to enable us to place the centre of the beam on a line parallel with the landside, the forepart thereof at such distance from the extended line aforesaid, as to cause the plough to hold its width of furrow, and the after-part falling within the perpendicular of the landside of the plough, the centre of it being nearly perpendicular to the centre of resistance, on the mould-board, which we conceive to be at about one-fourth part of the lateral distance from the landside to the wing of the share, and at about one-third part of the perpendicular *338 height from the plane of the share to the upper edge of the mould-board.
This location of the centre of resistance, we base on the fact, that many ploughs which have been used in sharp, sandy soils, have been worn quite through at that point. The result of this formation of the plough, is a steady, well-balanced motion, requiring less power of draft, and less effort in directing the plough in its course.
The inclination of the standard and landside causes the plough to cut under, and take up the furrow in the form of an oblique-angled parallelogram, or like a board, feather-edged, which being turned over, falls in level with the last furrow more readily than right-angled or square-edged work.
The coulter or knife, having a similar inclination, cuts the roots of the grass, &c., and leaves all vegetable matter on the surface, at a greater distance from the under edge of the furrow, which being turned over, more readily falls in, and is far better covered than with square-edged work.
The top of the standard, through which the bolt passes to secure the beam, is transversely parallel to the plane of the share, and extends back from the bolt to such distance as to form a brace to the beam, when the after-part is passed down by lifting at the forepart; the share being fast under a rock, or other obstruction, the after-part of this extension is squared in such manner, that being jogged into the beam, it relieves the bolt in heavy draft.
The bolts which we use to fasten the pieces of cast iron, of which our ploughs are made, together, and the wood-work, are round, with inverted convex heads, like the wood screw, with a projection on the under side of the head, of semicircular form, which fits into a groove in the counter-sink part of the bolt hole, as it is cast to receive it, which not only prevents its turning, but also diminishes the liability of breakage at the corners of square holes; all which will more fully appear by reference to the drawing annexed to, and forming part of this specification.
We hereby declare, that what we claim as new, and of our invention, is the construction of such ploughs as aforesaid, and the several parts thereof, not separately, but in combination, for the purposes aforesaid, viz.:
*339 1. The inclining the standard and landside so as to form an acute angle with the plane of the share.
2. The placing the beam on a line parallel to the landside, within the body of the plough and its centre, nearly in the perpendicular of the centre of resistance.
3. The forming the top of the standard for brace and draft. We do not intend to confine our claim to any particular form or construction, excepting such form as may be necessary to place the beam in the perpendicular of the centre of resistance, and parallel to the landside, and also to such form of the top of the standard, as shall serve for brace and draft, but have given such form as we deem to be most convenient, which may be varied, as is obvious."
The plaintiffs offered to prove the utility of the alleged improvement, which proof was dispensed with by the defendants. Certain ploughs alleged by the plaintiffs to be made in conformity with their letters patent, and certain ploughs made by the defendants, which were the alleged infringement of the plaintiff's patent, were produced in Court; and no substantial difference between them was shown by the defendants to exist, unless the fact, that the top of the standard in the defendant's plough was not jogged into the beam, and did not extend so far back upon the beam, was to be so considered.
And the plaintiffs offered evidence to show, that the top of the standard formed, as stated in the specification, would serve for both purposes of brace and draft, although not jogged into the beam.
The defendants introduced no evidence. The counsel for the plaintiffs requested the Court to instruct the jury as follows, to wit:
The counsel of plaintiffs respectfully move the Court to instruct the jury, that if the defendants have used, in combination with the other two parts, a standard of the description set forth in the specification, and it is proved to serve both for brace and draft, such use was an infringement of the plaintiffs claim in that particular, although the defendants may not have inserted into a jog in the beam.
Also, that if any two of the three parts described, as composing the construction claimed in the specification, had been used in *340 combination by the defendants, it was an infringement of the patent, although the third had not been used with them.
The Court refused to give the instructions so prayed, or either of them, in manner and form as prayed by the plaintiffs; but did instruct the jury as follows, to wit:
That upon the true construction of the patent, it is for a combination, and for a combination only. That the combination, as stated in the summing up, consists of three things, viz.:
1. The inclining the standard and landside so as to form an acute angle with the plane of the share.
2. The placing the beam on a line parallel to the landside, within the body of the plough and its centre, nearly in the perpendicular of the centre of resistance.
3. The forming the top of the standard for brace and draft.
That unless it is proved, that the whole combination is substantially used in the defendants' ploughs, it is not a violation of the plaintiffs' patent, although one or more of the parts specified, as aforesaid, may be used in combination by the defendants. And that the plaintiffs, by their specification and summing up, have treated the jogging of the standard behind, as well as the extension, to be essential parts of their combination for the purpose of brace and draft; and that the use of either alone by the defendants would not be an infringement of the combination patented.
And thereupon the jury rendered their verdict for the defendants.
The first question presented by the exception is, whether the extension of the standard, and the jogging of it into the beam, are claimed as material parts of the plaintiff's improvement. We think they are. In the paragraph in which it is described, he states that it "extends back from the bolt to such a distance as to form a brace to the beam;" and also, "that being jogged into the beam it relieves the bolt in a heavy draft." And in their summing up, they declare that they claim as new, and of their invention, the construction of such ploughs as aforesaid, and the several parts thereof, not separately but in combination; and proceeding then to specify the parts so claimed, they mention, "the forming of the top of the standard for brace and draft." They indeed say that they do not mean to confine their claim to any particular form of construction, *341 except "to such form of the top as shall serve for brace and draft." That is to say, the top is to be so formed and so connected with the beam as to answer both purposes. And as those purposes, according to the preceding part of the specification, are to be accomplished by its extension back from the bolt, and by jogging it into the beam, these two things are essential to it whatever variation may be made in its shape or size. They are, therefore, material parts of the improvement they claim.
The remaining question may be disposed of in a few words. The patent is for a combination, and the improvement consists in arranging different portions of the plough, and combining them together in the manner stated in the specification for the purpose of producing a certain effect. None of the parts referred to are new, and none are claimed as new; nor is any portion of the combination less than the whole claimed as new, or stated to produce any given result. The end in view is proposed to be accomplished by the union of all, arranged and combined together in the manner described. And this combination, composed of all the parts mentioned in the specification, and arranged with reference to each other, and to other parts of the plough in the manner therein described, is stated to be the improvement, and is the thing patented. The use of any two of these parts only, or of two combined with a third, which is substantially different, in form or in the manner of its arrangement and connection with the others; is therefore not the thing patented. It is not the same combination if it substantially differs from it in any of its parts. The jogging of the standard into the beam, and its extension backward from the bolt, are both treated by the plaintiffs as essential parts of their combination for the purpose of brace and draft. Consequently the use of either alone, by the defendants, would not be the same improvement, nor infringe the patent of the plaintiffs.
The judgment of the Circuit Court must therefore be affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3344589/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION TO STRIKE #105 FACTS
The plaintiff; John R. Noack (plaintiff), filed a four count complaint on March 21, 2001, against the defendants, Raymond A. Noack (R. Noack) and Joan Duzak-Noack for injuries he sustained as a result of the defendants conduct. The facts as alleged in the complaint are as follows: The plaintiff is a tenant and R. Noack is the successor landlord under a commercial lease dated April 12, 1999. This lease is recorded in the Hartland Land Records. The premises under the lease is located at 26 CT Page 16117 Westwoods Road in East Hartland, Connecticut. The term of the lease is April 12, 1999 to May 1, 2029.
The complaint alleges that in July 2000, R. Noack forged the plaintiff's name to a document entitled "Release and Termination of Lease (RTL)." The RTL is recorded in the Hartland Records and purports to release and discharge the Notice of Lease and to terminate and cancel the lease. On or about July 19, 2000, R. Noack mortgaged the leased premises to Pinnfund USA. This Mortgage is recorded in the Hartland Land Records. Based on these facts, the plaintiff alleges the following causes of action against the defendants: count one, willful, wanton and reckless misconduct; and count two, intentional infliction of emotional distress.
Count three of the complaint claims that R. Noack, without the plaintiff's permission or knowledge, forged the plaintiff's name to bonds that plaintiff's mother, Beatrice A. Noack, purchased. Such bonds were to be paid to the plaintiff upon her death. The plaintiff alleges that R. Noack converted the proceeds of the bonds for his own use and that the plaintiff received no benefits from any part of proceeds.
Count four alleges that on October 18, 2000, the plaintiff gave notice to R. Noack that the RTL contained the plaintiff's forged signature. Subsequent to this notice, R. Noack transferred three parcels of real estate to Joan Duzak-Nowak. The plaintiff claims that these transfers were made without adequate consideration and made with the intent to defraud the plaintiff, by shielding the properties from attachment and levy by the plaintiff based upon claims set forth in the complaint. Accordingly, the plaintiff seeks damages, punitive damages, interest, a declaratory judgment declaring the RTL void, an order setting aside the conveyances of the real property between the defendants, and attorney's fees.
On August 6, 2001, the defendants filed the present motion to strike count two of the plaintiff's complaint. They have filed an accompanying memorandum of law. On August 22, 2001, the plaintiff filed a memorandum of law in opposition to the defendants' motion to strike.
ISSUE
Whether the defendants' motion to strike count two of the plaintiff's complaint should be granted because it does not allege sufficient facts to establish a claim for intentional infliction of emotional distress. The court concludes that the motion to strike should be granted.
DISCUSSION
CT Page 16118
"[A] motion to strike challenges the legal sufficiency of a pleading. . . ." Gazo v. Stamford, 255 Conn. 245, 260,765 A.2d 505 (2001). [I]f the facts provable in the allegations would support a cause of action, the motion to strike must be denied." Id. "[The court takes] the facts to be those alleged in the complaint that has been stricken and [construes] the complaint in the manner most favorable to sustaining its legal sufficiency." Id.
"A motion to strike admits all facts well pleased; it does not admitlegal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.)Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293
(1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged."Novamedrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215,618 A.2d 25 (1992).
In count two of the complaint the plaintiff realleges the allegations of count one and alleges further that as a result of the intentional misconduct of R. Noack, the plaintiff has suffered severe stress, anxiety, loss of sleep, emotional distress and mental suffering. He also alleges that R. Noack knew or should have known that his conduct involved an unreasonable risk of causing emotional distress to the plaintiff and that such distress might result in illness and harm to the plaintiff.
The defendants argue that count two should be stricken because the allegations contained in the count are insufficient to establish a claim for intentional infliction of emotional distress. Specifically, the defendants argue that count two alleges mere conclusions of law that are unsupported by the facts alleged, thus, failing to state a claim. The defendants further contend that the plaintiff fails to plead sufficient facts of R. Noack's intention to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct. Moreover, defendants argue that the plaintiff fails to plead sufficient facts to establish that R. Noack's conduct was "extreme and outrageous" and "especially calculated" to cause sever emotional distress.
In his memorandum in opposition, the plaintiff maintains that he does plead sufficient facts. Specifically, he argues that he alleged that the defendant "knew or should have known that his conduct involved an unreasonable risk of causing emotional distress to the plaintiff and that such distress might result is an illness and harm to the plaintiff" The plaintiff also contends that he alleged that he has suffered severe emotional distress as a result of the defendant's conduct. The plaintiff further argues that he has alleged R. Noack's intention to inflict CT Page 16119 emotional distress by asserting in count one at paragraphs four and five the forgery of a document purporting to terminate the plaintiff's business lease and that such forgery was an intentional act intended to terminate his lease.
In order to establish a claim for intentional infliction of emotional distress against the defendant, the plaintiff must allege four elements: "(1) that the actor intended to inflict emotional distress, or knew or should have known that emotional distress was a likely result of his or her conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe."Appleton v. Board of Education of Stonington, 254 Conn. 205, 210,757 A.2d 1059 (2000). It is axiomatic that all of the elements of a claim must be pled in order for the claim to survive a motion to strike.
In this case, the plaintiff has not alleged all four elements of intentional infliction of emotional distress necessary to withstand a motion to strike. Here, the plaintiff merely asserts legal conclusions for two of the elements of intentional infliction of emotional distress, which are not supported by facts. These assertions are insufficient to state a claim upon which relief can be granted. Moreover, implicitly providing one or more of the requisite elements in another count that is subsequently realleged in a count for intentional infliction of emotional distress is also insufficient for establishing a claim for intentional infliction of emotional distress. All four elements of intentional infliction of emotional distress must be sufficiently pleaded to survive a motion to strike.
Therefore, the defendant's motion to strike is granted.
Cremins, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3344590/ | The plaintiff's action is directed against the City of New Haven and Louis L. Rosenberg, Trustee, to recover damages for injuries received when she slipped upon an icy sidewalk adjacent to the property owned by the defendant, Rosenberg, within the City of New Haven. To the complaint, the City has filed an answer. Rosenberg, however, has demurred and, in so doing, has raised two questions:
1. Does Chapter 330 of the Special Acts of 1935 impose civil liability upon a property owner for injuries sustained by a traveler who has slipped on snow or ice located upon the sidewalk adjacent to his property.
2. If the Legislature intended to create such liability, is its action constitutional in view of the Fourteenth Amendment
to the Federal Constitution as well as of Sections 1, 9, 11 and 12 of Article First of our State Constitution?
Whether the Legislature remained within its constitutional limitations demands no present consideration because of the view taken of the Act in question. Suffice it to observe with reference to such constitutionality that the authorities are by no means in accord. Seward vs. Wilmington, 2 Marv. (Del.) 189; Noonanvs. Stillwater, 33 Minn., 198; Contra, Lincoln vs.Janesch, 63 Neb. 707.
The act passed by the General Assembly in 1935 is entitled "An Act Concerning Sidewalks in the City of New Haven". Of its five sections, the first three may appropriately be set forth in full: *Page 483
"Section 1. Any action brought against the City of New Haven claiming damages for injuries to person or property under Section 1419 or 1420 of the General Statutes shall be tried to the court and, if the court shall find for the plaintiff, a judgment rendered for him shall be recorded as in other civil actions, but no costs or judgment fee shall be taxed against the defendant.
"Sec. 2. After the first day of July, 1935, the duty of keeping in reasonable repair sidewalks within the limits of said city shall devolve upon said city and said city is authorized to repair all sidewalks and to make appropriation for payment therefor in the month of September, 1935, and annually thereafter.
"Sec. 3. The duty of keeping sidewalks in said city free from snow and ice shall be upon the adjoining property owner and said city is authorized to make suitable ordinances relating thereto."
This Act became effective on May 24, 1935. From that date until several months after the plaintiff sustained her injuries, no ordinance predicated upon the grant of power found in Section 3 was enacted by the City. It was not until June 1, 1936, that the Board of Aldermen adopted an ordinance, known as Section 771, by whose terms a property owner is required either to remove snow and ice from sidewalks abutting his land or to render it harmless by sprinkling sand or ashes upon it. Its concluding paragraph provides that "any person injured in person or property by means of a defective sidewalk caused by an accumulation of snow or ice or sleet thereon, shall recover damages therefor from the adjoining property owner of land".
This ordinance was a substitution for a similarly denominated one, namely, Section 771, in force on the day of the plaintiff's mishap. Charter and Ordinances of the City ofNew Haven, Revision of 1928, page 520. The only substantial change affected by the passage of the ordinance of June 1, 1936, was to create a civil liability to a traveler in lieu of a penal obligation to pay a fine of not over $10.00 for failing to comply with the terms of the ordinance.
The sequence of the plaintiff's argument, in opposition to the demurrer, appears to be this: the presence of snow or ice may render a sidewalk defective: Section 1420 of the General *Page 484 Statutes affords relief to any person injured by a fall due to a defective sidewalk; this relief consists of a right of action to recover damages from the party bound to keep the walk in repair; Chapter 330 imposes upon adjoining property owners the duty of keeping the adjacent sidewalks free from snow and ice; property owners are, therefore, the parties bound to keep the sidewalks in repair by freeing them from the dangers of icy conditions and accordingly such owners must respond in damages to travelers injured by slipping on ice.
It is, of course, obvious that the solution of the problem raised by the demurrer hinges on a construction of the Act known as Chapter 330 of the Special Acts of 1935. It is elementary, but entirely proper, to remark that the fundamental rule for the interpretation of a legislative enactment is the application of the intention of the General Assembly. This intention must be ascertained from the Act itself, if the language is plain; but, if doubtful, the true meaning may be determined by considering it in the light of all its provisions, the object to be accomplished by its passage, its title, preexisting legislation upon the same subject, and other relevant circumstances.Old Saybrook vs. Public Utilities Commission,100 Conn. 322. Another principle of present application is that where a statute is in derogation of common law, or where it creates a liability when formerly none existed, it should receive a strict construction in favor of those persons sought to be subjected to its operation. A court is not justified in going beyond its clearly expressed provisions. Nor is such a statute to be extended or enlarged in its scope by the mechanics of construction. Stoll vs. Judd Company, 106 Conn. 551; Alexandervs. Crosby, 143 Ia., 50.
The General Assembly must be presumed to have known of its own traditional policy, expressed in numerous legislative enactments dating back to the dawn of Connecticut history, whereby the governmental duty of maintaining highways in a reasonably safe condition has uniformly been placed upon towns save in exceptional cases such as those affecting turnpike, street railway companies, and the like. Goshen Sharon Turnpike Company vs. Sears, 7 Conn. 86; Lavignevs. New Haven, 75 Conn. 693.
If Chapter 330 is authority for what the plaintiff would have it mean, then this is the first instance brought to the attention of this Court where the Legislature has removed *Page 485
from a town and transferred to private citizens the burden of maintaining sidewalks in a reasonably safe condition. It seems appropriate to observe that had the Legislature any intention to make such a radical departure from its time-honored policy, it would doubtless have found apt words to indicate its intention clearly and free from any doubt as to its purpose. Stevensvs. Neligon, 116 Conn. 307.
For after all, the basis of the plaintiff's interpretation of the Act lies in an appeal to the magic of inferences and implications. She argues that the primary duty of the care of sidewalks (and I now speak of them with reference to snow and ice) has been removed from the city's shoulders Of necessity, she must take this stand, for otherwise, she would find herself in the untenable position of attempting to reconcile the existence of a primary duty upon the city and another such duty upon the adjoining property owner. This would give birth to an impossible legal monstrosity because, although the duty of maintaining its sidewalks in a reasonably safe condition might be breached by the City, no injured party could ever recover in view of the long line of decisions from Bartramvs. Sharon, 71 Conn. 686, that a municipality is never liable under Section 1420 of the General Statutes where the act of another combines to cause injury to a traveler on the highway.
One examines the Act in vain for any language expressly relieving the City from the burden placed upon it by Section1411 of the General Statutes. On the contrary, Section two quite definitely lodges with the City "the duty of keeping in reasonable repair" the sidewalks within its territorial limits.
It would therefore appear that Section two is but a restatement of existing statutory law, unless Section three, by implication, nullifies this construction.
The important section of the Act then, is Section three, which for the sake of clarity is restated:
"Sec. 3. The duty of keeping sidewalks in said city free from snow and ice shall be upon the adjoining property owner and said city is authorized to make suitable ordinances relating thereto."
To assert that this section places a primary duty on the property owner as well as, by implication, destroys the primary duty resting on the City, places the asserter in the uncomfortable *Page 486
position of trying to explain what the Legislature meant by the words: "and said City is authorized to make suitable ordinances relating thereto". For, if the property owner has been legislated by the first portion of Section three into the ranks of "the party bound to keep the walk in repair", Section 1420 of the General Statutes provides ample authority to impose the penalty of civil liability and no action on the part of the City by way of ordinances or otherwise is necessary to create it.
Unless one wishes to ignore entirely the latter portion of the section, the only conclusion which logically may be reached is that the Legislature intended to make the property owner subject to a duty to clear the sidewalk of icy conditions and empowered the City to fix a penalty by appropriate ordinances. Whether such authority is so far reaching as to permit the City to create a civil liability need not here be decided, but manifestly it is impossible to give an intelligent interpretation to the entire section by the simple expedient of stating, as the plaintiff does that the first portion of the section imposes a primary duty on the property owner and that the latter may be ignored as surplusage.
This Court concludes that the Act is but the declaration of existing statutory law, with certain minor changes as to costs and trial procedure. The primary obligation still rests upon the municipality.
Quite anomalously the plaintiff concedes this by her very act of joining the City as party defendant and claiming damages from it for failure to keep its sidewalks free from ice. The City likewise recognizes no primary obligation resting upon the property owner through the force of the Act in question. As indicated above, if section three placed this primary duty on the property owner, no ordinance was necessary. the General Statutes would have prescribed the penalty. If, on the other hand, the passage of an ordinance was essential, one enacted several months after the plaintiff's fall could not in retroactive fashion affix a penalty upon the defendant Rosenberg and give to this plaintiff a right of action against him.
Finally, the ordinance in force when the plaintiff fell provided for no other liability than the payment of a fine. At common law the owner of property owes no duty to pedestrians to keep the adjacent sidewalks free from snow or ice *Page 487
due to natural causes, or to obviate an icy condition, so resulting, by covering it with sand and ashes. Hartford vs.Talcott, 48 Conn. 525. Not infrequently, however, are found ordinances passed pursuant to charter authority, requiring abutting owners to remove snow and ice from the adjacent sidewalks and prescribing a criminal liability for failure so to do. This is a proper and valid exercise of municipal power.State vs. McMahon, 76 Conn. 97. Of such a character was the New Haven ordinance at the time the plaintiff received her injuries. But such liability cannot be made the basis of a civil liability to one injured by falling upon an icy sidewalk which the abutting owner has neglected to make reasonably safe. There is an unanimity of opinion that owners of premises abutting a sidewalk are not responsible to individuals for injuries resulting from a failure to remove snow and ice created by natural causes, even where there is a valid ordinance requiring them to do so. Their sole liability is to pay the penalty prescribed by the ordinance. I Thompson on Negligence,Sec. 1209; Kirby vs. Boylston Market Assn.14 Gray (Mass.) 249; Flynn vs. Canton Company, 40 Md., 312; Hartfordvs. Talcott, supra.
For the foregoing reasons the plaintiff has failed to state a cause of action against the defendant Rosenberg and his demurrer is sustained upon the first ground. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1920472/ | 107 B.R. 461 (1989)
In re FRG, INC., et al., Debtors.
Bankruptcy Nos. 89B-11120 (HCB)-89B-11125 (HCB), 89B-11269 (HCB).
United States Bankruptcy Court, S.D. New York.
July 28, 1989.
*462 *463 Hahn & Hessen by Gabriel Schwartz, Jeffrey Schwartz and Mark S. Indelicato, New York City, for FRG, Inc., FRP Ltd. Partnership and FMI Ltd. Partnership, debtors.
Marilyn Simon, New York City, for Franklin Greenbriar Associates, Franklin Charlotte Associates, Franklin Willow Ridge Associates and Franklin Southeast Investors Ltd., debtors.
Stroock & Stroock & Lavan by Robin E. Keller and Karen Burns-Cummings, New York City, for Frederick Blumberg.
Schnader, Harrison, Segal & Lewis by David S. Hope and David Smith, New York City, for Official Unsecured Creditors Committee.
Skadden, Arps, Slate, Meagher & Flom by Michael L. Cook and Carlene J. Gatting, New York City, for Home Federal Sav. and Loan Ass'n.
Kaye, Scholer, Fierman, Hays & Handler by Susan A. Mills, New York City, for Prudential Bache Securities, Inc.
Schulte, Roth & Zabel by Daniel Goodman, New York City, for DCB Murphy, No. 1, Ltd.
DECISION
HOWARD C. BUSCHMAN, III, Bankruptcy Judge.
Frederick Blumberg, a creditor of three of these Debtors, seeks an order transferring all of these jointly administered Chapter 11 cases to the Eastern District of Pennsylvania pursuant to 28 U.S.C. §§ 1408 and 1412 and Rule 1014(a)(2) of the Bankruptcy Rules.[1]
This motion raises the issue of whether a creditor in a bankruptcy case filed in a district on the basis of being related to a prior pending case has standing to challenge the venue of the prior related case. We hold that such a creditor has standing. We further hold that the movant has demonstrated, by a preponderance of the evidence, that the Debtors' bankruptcy petitions were improperly filed here in the Southern District of New York and that transfer of venue to the Eastern District of Pennsylvania is in the interest of justice and for the convenience of the parties.
I
One of these debtors, FRG, Inc., f/d/b/a Franklin Realty Group, Inc., ("FRG"), a *464 Pennsylvania corporation, is a holding company. Through its affiliates and subsidiaries it acts as a multi-service real estate company engaged in property management and packaging syndication. Voluntary Petition for Relief Under Chapter 11 of Title 11 of the United States Code, Case No. 89B-11122, Exhibit A, ¶ 3 (the "FRG Petition"). FRG's principal place of business is located in Ambler, Pennsylvania. It also maintains regional offices in San Antonio, Texas and Phoenix, Arizona. FRG Petition, Exhibit D, ¶ 7. Along with five of its affiliates, it filed for relief under Chapter 11 of Title 11 of the United States Code, 11 U.S.C. § 1101 et seq. (the "Bankruptcy Code" or the "Code") in the Southern District of New York on May 17, 1989. A sixth affiliate filed for Chapter 11 relief on June 1, 1989. The Debtors' cases were procedurally consolidated for the purpose of joint administration by Orders of this Court dated May 18 and June 8, 1989.
The six Chapter 11 petitions filed on May 17, 1989 were filed literally within minutes of each other. First to file was Franklin Greenbriar Associates ("Greenbriar"). Greenbriar is a Pennsylvania limited partnership with its principal place of business in Orlando, Florida, where it owns and operates a 386-unit garden apartment complex. Voluntary Petition for Relief Under Chapter 11 of Title 11 of the United States Code, Case No. 89B-1120, Exhibit C, ¶ 3 (the "Greenbriar Petition"). It also shares an office with the other Debtors in Ambler, Pennsylvania. Greenbriar Petition ¶ 1. In its petition, Greenbriar asserts that venue is proper before this Court pursuant to 28 U.S.C. § 1408(1) because "several of the limited partners of [Greenbriar] have been residents of this district" for 180 days immediately preceding the filing of its petition. Id. ¶ 2. According to Exhibit E to the Greenbriar Petition, only five of the ninety-four limited partners listed have residences in the Southern District of New York. The Greenbriar Petition was filed at 6:25 p.m. on May 17, 1989.
Next to file, at 6:26 p.m. on May 17, 1989, was FRP Limited Partnership, f/k/a Franklin Realty Partners ("FRP"). FRP, a Pennsylvania limited partnership, has its principal office in Ambler, Pennsylvania with regional offices in San Antonio, Texas and Phoenix, Arizona. Voluntary Petition for Relief Under Chapter 11 of Title 11 of the United States Code, Case No. 89B-11121, Exhibit D, ¶ 9 (the "FRP Petition"). FRP asserts that venue is proper here pursuant to 28 U.S.C. § 1408(2) because it is a general partner of Greenbriar "which is a debtor in a case pending under Title 11 of the United States Code in this district." FRP Petition ¶ 2. FRP is managing general partner of sixty-six syndicated limited partnerships ("SLPs"), three of which (Greenbriar, Franklin Charlotte Associates and Franklin Willow Ridge Associates) are Debtors under Chapter 11 in cases before this Court. FRP Petition, Exhibit D, ¶ 8.
The FRG Petition was next filed, at 6:28 p.m. It asserted that venue is proper here pursuant to 28 U.S.C. § 1408(2) because it is a general partner of FRP, a debtor in a Chapter 11 case pending in this district. FRG Petition ¶ 2.
The next Debtor to file, at 6:29 p.m., in turn, based its venue on that of FRG. FMI Limited Partnership, f/d/b/a Franklin Mortgage Investors ("FMI") asserted that venue is proper here pursuant to 28 U.S.C. § 1408(2) since FRG, FMI's general partner, is a debtor in a case pending here. Voluntary Petition for Relief Under Chapter 11 of Title 11 of the United States Code, Case No. 89B-11123 ¶ 2 (the "FMI Petition"). FMI, along with FRP and FRG, has its principal office in Ambler, Pennsylvania with regional offices in San Antonio, Texas and Phoenix, Arizona. FMI Petition, Exhibit D, ¶ 7; FRP Petition, Exhibit D, ¶ 9; FRG Petition, Exhibit D, ¶ 7.
The petition of Franklin Charlotte Associates ("Charlotte") was filed at 6:30 p.m. Charlotte is a Pennsylvania limited partnership with its principal place of business in Charlotte, North Carolina, where it owns and operates a 224-unit garden apartment complex. Voluntary Petition for Relief Under Chapter 11 of Title 11 of the United States Code, Case No. 89B-11124, Exhibit C, ¶ 3 (the "Charlotte Petition"). It also shares the office in Ambler, Pennsylvania. Charlotte Petition ¶ 1. Charlotte claimed *465 proper venue, pursuant to 28 U.S.C. ¶ 1408(2), by virtue of the pending case of its general partner, FRP. Id. ¶ 2.
The last of the Debtors' petitions to be filed on May 17, 1989, was that of Franklin Willow Ridge Associates ("Willow Ridge"), filed at 6:31 p.m. Voluntary Petition for Relief Under Chapter 11 of Title 11 of the United States Code, Case No. 89B-11125 (the "Willow Ridge Petition"). Willow Ridge, a Pennsylvania limited partnership, has its principal place of business in Charlotte, North Carolina where it owns and operates a 232-unit garden apartment complex. Willow Ridge Petition, Exhibit C, ¶ 3. It too shares the Ambler office. Willow Ridge Petition ¶ 1. Willow Ridge asserts that venue is proper here pursuant to 28 U.S.C. § 1408(1) and (2) because of the pending case of its general partner, FRP and, because several of Willow Ridge's limited partners have been residents of this district for the 180 days immediately preceding the filing of its petition. Willow Ridge Petition ¶ 2. According to its list of limited partners, however, only three of the sixty-three listed have residences in the Southern District of New York. Willow Ridge Petition, Exhibit E.
Two weeks later, on June 1, 1989, Franklin Southeast Investors Limited ("Southeast"), a Pennsylvania limited partnership filed its Chapter 11 petition (the "Southeast Petition"). Southeast maintains its principal place of business in Casselberry, Florida, with an additional office in Ambler, Pennsylvania. Voluntary Petition for Relief Under Chapter 11 of Title 11 of the United States Code, Case No. 89B-11279, ¶ 1 (the "Southeast Petition"). Southeast asserted that venue is proper in this district pursuant to 28 U.S.C. § 1408(2) because of the pending case of FRP, a general partner of Southeast. Id. ¶ 2. Southeast owns and operates a 160-unit garden apartment complex in Casselberry, Florida. Id., Exhibit C, ¶ 3.
FRG and FRP, pursuant to the terms of partnership agreements with the SLPs, including Greenbriar, Charlotte and Willow Ridge, are obligated to perform managing, accounting and consulting services for the SLPs. Application for Order Authorizing Debtors to Continue Pre-Petition Cash Management System, dated May 18, 1989, ¶ 6 (the "Cash Management Order"). FRG and FRP provide for the performance of those services through a management contract with FRG Management, Inc. ("FRGM") a wholly-owned subsidiary of FRG. FRGM has not filed a bankruptcy petition. FRG Petition, Exhibit D, ¶ 24.
FRGM provides on-site managers to collect rents and other fees for the SLPs. For each individual SLP, those funds are initially deposited in a bank located near the SLP. Application for Cash Management Order ¶ 7. All of these funds are then transferred to a single account in Philadelphia. Id. ¶ 9. A corporate savings and checking account is kept in Ambler, Pennsylvania. Id. The Debtors have characterized FRGM as being the financial "nerve center" of the operations of the Debtors and their affiliates and subsidiaries. Id. ¶ 22. FRGM's principal office is in Ambler, Pennsylvania. FRG Petition ¶¶ 17, 24.
The record demonstrates that none of the Debtors has any tangible presence in New York. None has a place of business, assets, office, post office box, or even a telephone listing in this District. The real property assets belonging to the Debtors are located principally in Orlando, Florida and Charlotte, North Carolina. Greenbriar Petition, Exhibit C, ¶ 3; Charlotte Petition, Exhibit C, ¶ 3; Willow Ridge Associates, Exhibit C, ¶ 3. The "nerve center" for management clearly is in Ambler, Pennsylvania, in the Eastern District of Pennsylvania.
Frederick Blumberg has asked this Court to transfer these consolidated cases to the Eastern District of Pennsylvania where he resides. See FMI Petition, Exhibit E. Blumberg was an officer, director and shareholder of FRG From 1981 through May of 1986. Affidavit of Frederick Blumberg dated June 12, 1989 ¶ 2 (the "Blumberg Affidavit"). Since 1981, he has been a limited partner of FRP and FMI. Id. Blumberg claims that he is among the twenty largest unsecured creditors of FMI, and among the twenty largest creditors of *466 FRG, FRP and FMI taken as a combined financial reporting entity. Id. ¶ 5.
Blumberg's claim stems from a 1981 Purchase Agreement he entered into with FMI and two individual directors and shareholders of FRG. Pursuant to that agreement, the individuals apparently purchased Blumberg's shares of FRG, along with his limited partner's interest in FRP. In addition, FMI apparently redeemed Blumberg's limited partner's interest in FMI for $400,000, payable at closing by two promissory notes in the amount of $250,000 and $150,000. Id. ¶ 4. Blumberg claims that he is owed the outstanding balance and accrued interest on the FMI notes in excess of $30,000. Id. ¶ 5, as well as $47,288 in undistributed cash flow from the sale or refinancing of real estate related assets of FRP and FMI. Id.
Blumberg is listed as one of the largest unsecured creditors in the documents filed with the FRG, FRP and FMI petitions as having a contingent, unliquidated and disputed claim in the amount of $327,288. FRG, FMI and FRP Petitions, Exhibit E. He is not a creditor of Greenbriar, Charlotte or Willow Ridge.
Blumberg's motion to transfer venue is supported by the Official Unsecured Creditors Committee.
The single largest creditor of Greenbriar, Home Federal Savings and Loan Association ("Home Federal"), has requested that venue be retained in this district. If it is found, however, that the venue of Greenbriar is improper here, Home Federal requests that the Greenbriar case be transferred to the Middle District of Florida, where the case of Franklin Tampa Associates, an affiliate of Greenbriar, is pending. Response of Home Federal Savings and Loan Association to Blumberg's Motion for Transfer of Venue. ¶ 4 ("Response of Home Federal").
At the hearing on the instant motion to transfer venue, held on July 7, 1989, two other secured creditors, Prudential Bache Securities, Inc. and DCB Murphy No. 1, Ltd., stated that retention of venue in this district is more convenient to them. After the hearing, John Hancock Mutual Life Insurance Co., a secured creditor of Franklin Southeast, filed a motion to transfer venue of that case to the Middle District of Florida. That motion has been held in abeyance pending resolution of the instant motion.
II
The Debtors assert that Blumberg lacks standing to challenge the venue of the Greenbriar case. Memorandum in Opposition to Motion by Frederick Blumberg for Transfer of Venue or Relief from the Automatic Stay 3-5 (the "Debtors Memorandum"). They argue that, with respect to Greenbriar, Blumberg is not a "party in interest" within the meaning of Bankruptcy Rule 1014(a)(2), and, therefore, lacks standing to challenge the venue of the Greenbriar case in this district. They then conclude that the motion must be denied since the other cases in which Blumberg is a creditor are correctly filed as related cases under 28 U.S.C. § 1408(2).[2]
It might appear that the joinder by the Official Committee of Unsecured Creditors ("Committee") in the motion would obviate the need to address this issue. But, it is not at all clear on this record that Greenbriar has any unsecured creditors. Annexed to its petition is a list of Greenbriar's unsecured creditors as of 18 days prior to the filing of the petition. They total two in number and the amount of debt is scheduled at $40,000. Greenbriar Petition, Exhibit *467 D. It is also stated, however, that these debts may have been satisfied prior to the filing of the Greenbriar Petition. Id. Although Home Federal is a secured creditor, there is no evidence as to the value of its collateral and whether it is undersecured. It is, therefore, hardly clear that the Committee represents anyone in the Greenbriar case. On this record, its standing is subject to the same challenge raised with respect to Blumberg's standing.
With respect to standing, Bankruptcy Rule 1014(a)(2) provides, in pertinent part,
If a petition is filed in an improper district, on timely motion of a party in interest . . . the case may be dismissed or transferred to any other district if the Court determines that transfer is in the interest of justice or for the convenience of the parties.
Id. (emphasis added).
The term "party in interest" is not defined by the rule. In section 1109(b) of the Bankruptcy Code, that term is defined to include a "debtor, trustee, creditors committee, equity securities holders committee, a creditor, an equity security holder or an indenture trustee" of the debtor. 11 U.S.C. § 1109(b) (1986). Section 1109(b), however, is not applicable to all chapters of the Code. See 11 U.S.C. § 103. Rule 1014(a)(2) applies to all chapters. Our task is to determine whether the contours of the phrase "party in interest" employed in Rule 1014(a)(2) permit a creditor of a debtor that is the subject of a petition filed as a proceeding related to a prior pending case under 28 U.S.C. § 1408(2) to move for a change of venue on the ground that the venue of the prior case is improper.
In this exercise, we take guidance from Section 1109(b) and the cases interpreting it, notwithstanding its inapplicability. Legislation employing the same term of art in the same general context is presumed to convey the same general meaning. See Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM.L. REV. 527, 535-38 (1947). Further guidance is to be taken from standing concepts, for the purpose of the phrase in Rule 1014(a)(2) is to describe those who may make the motion. Those concepts, as discussed below, lead to the conclusion that a creditor of a tag-along debtor is able, under Rule 1014(a)(2), to make a venue motion with respect to the related prior proceeding.
It is established that section 1109(b)'s enumeration of entities having party in interest status is merely illustrative and the party in interest concept has been broadly interpreted to include those persons having a stake in the outcome of the bankruptcy case or a right at issue in a particular proceeding. E.g., Roslyn Savings Bank v. Comcoach Corp. (In re Comcoach Corp.), 698 F.2d 571, 573 (2d Cir. 1983); McLean Industries, Inc. v. Medical Laboratory Automation (In re McLean Industries, Inc.), 96 B.R. 440, 445 (Bankr. S.D.N.Y.1989) (citations omitted).
Blumberg clearly has a stake in the proper venue of the cases in which he is a creditor. As a holder of two promissory notes, of which $30,000 in principal and accrued interest remains unpaid, Blumberg is a creditor of FMI. Blumberg Affidavit ¶¶ 4, 5. He also claims that he is owed $47,288 in undistributed cash flow from the sale or refinancing of real estate related assets of FRP and FMI. Id. ¶ 5. Since FRG is the general partner of FRP and FMI, Blumberg is also a creditor of FRG. In addition Blumberg is a limited partner of FRP and FMI. Blumberg Affidavit ¶ 2. The relationship of FMI, FRG and FRP to Greenbriar is direct and substantial and is hardly tenuous. Blumberg clearly has a direct stake in the venue of the three cases in which he is a creditor. Because these case were filed here by virtue of the presence of the Greenbriar case, filed only minutes before, that stake gives him a direct interest in the proper venue of the Greenbriar case.
The plain purpose of section 1408 is that at least one of two or more related bankruptcy cases is to be filed in a district having proper venue. As stated by the Second Circuit in Comcoach, "[w]hen interpreting the meaning of Code terms such as party in interest, we are governed by the *468 Code's purposes," 698 F.2d at 573 (citation omitted). To deny standing to a creditor or creditors committee in an instance such as this not only could permit manipulation of venue, but would subvert that purpose.[3]
Nothing in Rule 1014(a)(2) nor the Advisory Committee notes for 1983 and 1987 indicates the slightest inclination to define the parties who could make a venue motion so to preclude the exertion of an interest of a creditor of a tag-along debtor that there be proper venue of the case to which the case of the tag-along debtor is related. Indeed, the rule was amended in 1987 to preclude, on the making of a timely motion to change venue, the retention of bankruptcy cases in the wrong venue.[4] That change strongly indicates a concern for proper venue, an intention that timely motions be recognized and a desire that improperly filed cases be transferred if such a motion is made. Recognizing the standing of creditors to a tag-along case to challenge in timely fashion under 28 U.S.C. § 1408(1) the proper venue of the prior case, the pendency of which is asserted as the basis for venue under section 1408(2), fully accords with that intention.
In this, moreover, Blumberg and the Creditors Committee, unlike the plaintiffs in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982) who lacked standing, do not seek to bootstrap their claims to the interests of someone they do not represent. Rather, the interest they have is their own in there being at least one of these cases properly filed in this district. Blumberg's interest in having the bankruptcy cases in which he is a creditor be located in the district where he resides is "direct and palpable" and hardly "abstract" or "conjectural," see Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 3324, 82 L. Ed. 2d 556 (1984), and his and the Committee's complaint regarding wrongful venue falls within the "zone of interests" protected by section 1408. Ibid; Association of Data Processing Service Orgs. v. Camp., 397 U.S. 150, 153, 90 S. Ct. 827, 830, 25 L. Ed. 2d 184 (1970). Accordingly, they have standing to advance that interest.
III
In establishing proper venue for bankruptcy cases, section 1408 provides five alternative bases: domicile, residence, principal place of business, location of principal assets in the United States, and the pendency of a bankruptcy case concerning the debtor's affiliate, general partner or partnership. 28 U.S.C. § 1408(1), (2).
A.
Since the Greenbriar case is claimed to have served as the "pending case" upon which the other Debtors base their venue pursuant to 28 U.S.C. § 1408(2), we address that case first.
In the Greenbriar Petition, it is asserted that venue is proper in this district since "several" of its limited partners have lived here for the 180 days immediately preceding the filing of the petition. Greenbriar Petition ¶ 2. The list of limited partners annexed to that petition reveals, however, that only five of the ninety-four limited partners reside in this district. Id. Exhibit E. Hence, Greenbriar's sole basis for venue in the Southern District of New *469 York is the residence of five limited partners. It makes no claim that its domicile, principal place of business or principal assets are located here.
It is established, however, that the residence of the general partners or limited partners of a debtor limited partnership has little if any relevance in determining venue. In re Nantucket Apartments Associates, 80 B.R. 154, 156 (Bankr.E.D. Mo.1987). The "only meaningful" factors in determining whether a debtor limited partnership has commenced its bankruptcy case in the proper district are (i) the location of its principal place of business and (ii) location of its principal assets. In re Bell Tower Associates, Ltd., 86 B.R. 795, 799 (Bankr.S.D.N.Y.1988) quoting from 1 L. KING, K. KLEE & R. LEVIN, 1 COLLIER ON BANKRUPTCY, ¶ 3.02[c][ii] at 3-1113 (15th Ed.1989); accord, In re Garden Manor Associates, L.P., 99 B.R. 551 (Bankr.S.D.N.Y.1988).
Greenbriar's principal place of business and the location of its assets is in Orlando, Florida, where it operates an apartment complex. Greenbriar Petition, Exhibit C ¶¶ 2, 3. It also has a principal office in Ambler, Pennsylvania. Id. ¶ 2. Because Greenbriar has no physical presence in New York, it asserts, in effect, that we should put aside the authorities noted above and adopt that so-called "entity" test and "aggregate" theory developed under 28 U.S.C. § 1391(b).
This argument, as artful as it may be, has no merit. Section 1391 of the Judicial Code is a general venue section applicable to civil litigation governed by the Federal Rules of Civil Procedure. Sub-section (b) provides
(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.
28 U.S.C. § 1391(b) (1989). The reference to "defendants" plainly indicates the section's inapplicability to the question of residence of a debtor in a bankruptcy case.
Nevertheless, it is asserted that the Supreme Court announced a general "entity" test for venue in Denver & Rio Grande Western Railroad Co. v. Brotherhood of Railroad Trainmen, 387 U.S. 556, 87 S. Ct. 1746, 18 L. Ed. 2d 954 (1967). The Court did no such thing. Rather, it struggled with applying section 1391(b) to a labor union in determining whether the union could be sued only where it was headquartered or where it does business and is subject to personal jurisdiction. See, 387 U.S. at 561-63, 87 S. Ct. at 1749-50. In opting for the latter, the Court relied on, inter alia, labor law policy. Id. at 562, 87 S. Ct. at 1750. That reasoning is completely inapplicable to the considerations of venue for bankruptcy cases under section 1408.
The so-called "aggregate" test the Debtors extract from such cases as Thee v. Marvin Glass & Assoc., 412 F. Supp. 1116 (E.D.N.Y.1976), and Koons v. Kaiser, 91 F. Supp. 511 (S.D.N.Y.1950) is equally inapplicable for the same reasons. In those cases, the courts sought to define venue under section 1391 for suits against a defendant partnership. They hold that, since under state law the residence of a partnership is that of its individual partners, and the presence of a partner can afford personal jurisdiction over the partnership, section 1391 should be interpreted to permit venue of a suit against a partnership wherever the partners reside. See, e.g., Thee v. Marvin Glass Associates, 412 F.Supp. at 1118.
These considerations have no application to section 1408. The statute itself, in speaking of a debtor's domicile, principal place of business, location of assets and residence for the 180 days period prior to the filing of its bankruptcy petition gives the connotation that more than being subject to personal jurisdiction is contemplated. Were "residence" interpreted to mean merely where a debtor does business, the other terms would be redundant. An entity perforce does business where it is domiciled, has its principal place of business or location of assets. See, e.g., International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S. Ct. 154, 160, 90 L. Ed. 95 (1945); United States Lines v. GAC Marine *470 Fuels, Ltd. (In re McLean Industries, Inc.), 68 B.R. 690, 699, 15 BANKR.CT.DEC. (CCR) 703 (Bankr.S.D.N.Y.1986); Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915 (1917). These terms, instead, indicate that the court in which a debtor's debts are to be compromised and a debtor reorganized or liquidated should be located in a district where the debtor at least has a presence. See, e.g., Commonwealth of Puerto Rico v. Commonwealth Oil Refining Co., Inc. (In re Commonwealth Oil Refining Co., Inc.), 596 F.2d 1239, 1247 (5th Cir.1979), cert. denied, 444 U.S. 1045, 100 S. Ct. 732, 62 L. Ed. 2d 731 (1980); Bell Tower, 86 B.R. at 800.[5]
It being given that Greenbriar has no presence in this district, venue is lacking under § 1408(1).
B.
Since the basis for venue asserted by Greenbriar, i.e., the residence of a few limited partners in this district, collapses, so too do the bases for venue of the other partnership Debtors who, in their petitions, bootstrapped their cases directly to the pending case of Greenbriar or indirectly to the pending case of another tag-along Debtor.
Even were the venue of the other partnership Debtors analyzed independently, the basis for venue fails for the same reasons as does that of Greenbriar. Not one of the real estate assets held by any of these Debtors is located in New York. Hence, venue in this district based on the Debtors' location of assets cannot be sustained.
Nor is venue properly here based on the Debtors' principal place of business, "[t]he place where the debtor makes its major business decisions . . . notwithstanding the physical location of its assets or production facilities." In re Landmark Capital Company, 19 B.R. 342, 347, 8 BANKR.CT.DEC. (CRR) 1160, BANKR.L.REP. (CCH) ¶ 68762, 6 COLLIER BANKR.CAS.2d (MB) 447 (Bankr.S.D.N.Y.) aff'd sub nom., Landmark Capital Company v. North Central Development Company (In re Landmark Capital Company), 20 B.R. 220, BANKR.L.REP. (CCH) ¶ 68689, 6 COLLIER BANKR.CAS.2d (ML) 455 (S.D.N.Y.1982) (citation omitted); see also, In re Garden Manor Associates, L.P., 99 B.R. at 553. Each of the partnership Debtors is a Pennsylvania limited partnership sharing an office with FRG in Ambler, Pennsylvania, where all of their books and records are kept. Indeed, the Ambler, Pennsylvania location of its management company FRGM is the "nerve center" of their operations. Cash Management Order ¶ 22. Thus, on this record it appears that they have their principal place of business there.[6]Commonwealth Oil, 596 F.2d at 1245-47.
IV
With respect to the singular corporate debtor, FRG, it is asserted that venue lies in this district solely because FRG constantly visits this district to solicit investments in its various partnerships and to obtain loans. It is argued that that regular and continuous activity constitutes doing business in New York and that therefore, under 28 U.S.C. § 1391(c), it must be deemed to reside here.
Assuming that this activity constitutes doing business in New York so as to subject FRG generally to personal jurisdiction, this argument is of no merit. Like 28 U.S.C. § 1391(b), § 1391(c) is part of the general venue statute applicable to lawsuits. It provides, in pertinent part,
*471 For purposes of venue under this chapter. a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.
28 U.S.C. § 1391(c). The Debtors assert, that unlike § 1391(b), the language "For purposes of venue under this chapter" indicates a Congressional intention to refer to debtor corporations. Sections 1391 and 1408 are both in Chapter 87 of Title 28.
This argument fails because it focuses only on part of the statutory language. Regardless of its placement within the same chapter as section 1408, section 1391(b) clearly refers to determinations of venue only when a corporation is a defendant and makes no reference to debtor corporations in bankruptcy.
None of the other criteria set forth in § 1408(1) support venue in this district. Since a corporation's domicile is generally held to be its state of incorporation, FRG, a Pennsylvania Corporation, is clearly not "domiciled" in New York. See, Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 226, 77 S. Ct. 787, 790, 1 L. Ed. 2d 786 (1957). FRG's principal place of business is in Amber, Pennsylvania, where it maintains an office and its books and records and where the management and business decisions are made. Ambler, Pennsylvania, is also the location of FRG's principal assets, entity interests held in real estate developments, and other real estate assets, none of which are located in New York.
In sum, for both the Debtor partnerships and the Debtor corporation, we hold that venue in the Southern District of New York is improper pursuant to 28 U.S.C. § 1408(1). Thus, there is no properly venued pending proceeding to which any of these cases are related as provided in section 1408(2). We thus turn to Blumberg's request that we transfer these cases to the Eastern District of Pennsylvania pursuant to Rule 1014(a)(2).
V
Rule 1014(a)(2) provides for transfer of an improperly filed case if the Court determines that transfer is "in the interest of justice or for the convenience of the parties." Id. That phrase, borrowed from 28 U.S.C. § 1412, implements the factors applicable under that section. 1983 Advisory Committee Note.
The standards for determining the "interest of justice" and "convenience of the parties" overlap. They are:
(1) The proximity of creditors of every kind to the Court;
(2) The proximity of the bankrupt (debtor) to the Court;
(3) The proximity of the witnesses necessary to the administration of the estate;
(4) The location of the assets;
(5) The economic administration of the estate;
(6) The necessity for ancillary administration if bankruptcy should result.
In re Commonwealth Oil, 596 F.2d at 1247.
Under each factor set forth in the Commonwealth Oil test, it is clear that venue of these related cases should be transferred to the Eastern District of Pennsylvania since they cannot be retained in New York as three secured creditors desire. Each debtor is a Pennsylvania corporation or partnership, maintaining its books and records in an office in Ambler, Pennsylvania. Thus, these Debtors are proximate to the bankruptcy court in Philadelphia. So too are the witnesses necessary to the administration of the estates. The Debtors' officers, directors and other employees and FRGM, the Debtors' management company, are located in Ambler. In light of those factors, moreover, it is clear that these estates can be most economically administered in the Eastern District of Pennsylvania.
To some degree, the proximity of creditors also points to that district. Fourteen of the twenty largest unsecured creditors of FRG, FMI and FRP reside or are domiciled in Pennsylvania. See, Petitions of FRG, FMI and FRP, Exhibit E. While it *472 may be that Greenbriar, Willow Creek and Charlotte have few, if any, unsecured creditors and that their secured creditors are located elsewhere, that factor is not determinative on this motion nor is the location of their assets in Florida and North Carolina. Home Federal's plea that we decentralize these cases by transferring Greenbriar to the Middle District of Florida where its assets are located is best reserved to the Eastern District of Pennsylvania. Location of assets assumes great significance if liquidation is in the offing, Commonwealth Oil, 596 F.2d at 1248, or if the case involves local concerns and local witnesses. See, Bell Tower, 86 B.R. at 803 and cases cited therein. It is not at all clear on this record that liquidation will occur, that such concerns are present, or that these related cases should be transferred to different districts.
For the foregoing reasons, we grant Blumberg's motion to transfer these jointly administered cases to the Eastern District of Pennsylvania. An order is being entered concurrently with this Decision.
NOTES
[1] Alternatively, Blumberg seeks an order modifying the automatic stay pursuant to 11 U.S.C. § 362(d)(1) in order to allow his action against these Debtors to proceed in the Eastern District of Pennsylvania. By agreement at oral argument, the provisions of 11 U.S.C. § 362(e) are waived with respect to the motion for relief from the automatic stay to permit the venue issue to be decided first.
[2] 28 U.S.C. § 1408 provides:
Except as provided in section 1410 of this title, a case under title 11 may be commenced in the district court for the district
(1) in which the domicile, residence, principal place of business in the United States, or principal assets in the United States, of the person or entity that is the subject of such case have been located for the one hundred and eighty days immediately preceding such commencement, or for a longer portion of such one-hundred-and-eighty-day period than the domicile, residence, or principal place of business, in the United States, or principal assets in the United States, of such person were located in any other district; or
(2) in which there is pending a case under title 11 concerning such person's affiliate, general partner, or partnership.
[3] To be sure, such a creditor could request that the case in which he is a creditor be transferred to another district under 28 U.S.C. § 1412 "in the interest of justice or for the convenience of the parties," as that section provides. But transfer under § 1412 raises considerations, see Commonwealth of Puerto Rico v. Commonwealth Oil Refining Co., Inc. (In re Commonwealth Oil Refining Co., Inc.), 596 F.2d 1239 (5th Cir.1979), cert. denied, 444 U.S. 1045, 100 S. Ct. 732, 62 L. Ed. 2d 731 (1980), additional to those arising under § 1408(1), including whether related cases ought to be split up in different districts. The ability to make that motion does not negate the interest of a creditor of a related tag-along case, lacking any independent basis for proper venue, in having the prior case be filed in a district with proper venue. He is thereupon able to insure that the case in which he is a creditor will have, by virtue of being related to the prior case, some connection to the district in which it is to be heard.
[4] In 1987, Rule 1014 was amended to remove the option of retaining a bankruptcy case filed in an improper district.
[5] Even were residence of a partner a determining factor in whether or not venue of a partnership was proper, one would look to the residence of a general partner, rather than that of a limited partner. By definition, limited partners do not participate in the management or decision making process of the partnership. Those business decisions are made by general partners. Greenbriar has chosen to base its venue here on the basis of the residence of a very few limited partners, an even less compelling reason for finding a residence of a partnership.
[6] Willow Ridge asserts that venue is proper here because two of its limited partners reside here. That argument is of no merit for the reasons discussed supra with respect to Greenbriar. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304716/ | PELTS, J.
This is a bill to construe the will of Kate M. Hooper, who died at her home in Nashville February 14, 1952, leaving a holograph will which was in these words:
*469“March 21,1951
“I wish my estate to be divided equally between my sister, Mrs. John Donelson and Nieces Mrs. Mary Hooper Donelson Jones, Mrs. Eleanor Handle Hunter, Mrs. Mary Love Doubleday, Mrs. Elizabeth Love Brittain .and Mrs. Grayson Love Hancock. In the event either should pass away, divide estate among the remaining ones.
“I appoint Mrs. Mary Hooper Donelson Jones executor of estate without bond.
“Kate M. Hooper”
The question is whether the estate is to be equally divided per capita among the six individuals named, each taking a one-sixth; or equally divided per stirpes between the sister as one class and the five named nieces .as the other class, the sister taking one-half and the nieces the other half, or one-tenth each.
The Chancellor adopted the latter construction and decreed that the sister, Mrs. Donelson, shall take one-half of the estate and that the other half shall be equally divided among the five nieces.
All of the nieces, except Mrs. Jones, daughter of Mrs. Donelson, appealed and insist that the true construction and intention of the will is that the estate be equally divided among the six legatees named and that they severally take as individuals, and not collectively as members of two classes, each taldng a one-sixth of the estate.
As an aid to the construction of the will, the surrounding circumstances were shown in the evidence. What the testatrix called a “copy”, entirely in her handwriting, was found in her lock box and was exhibited with the bill and introduced in evidence. It was ,as follows:
*470“March 21, 1951
Copy
“I wish to leave my estate, w-hioh-in* to he divided equally between my sister, Mrs. ,’Jolm Donelson and nieces Mrs. Mary Hooper Donelson Jones, Mrs. Eleanor Dandle Hunter, Mrs. Mary Fuller Love Doubleday, Mrs. Elizabeth Love .Brittain and Mrs. Grayson Love Hancock.
“In case of death of any of the beneficiaries, the estate to be divided between the others.
“I appoint Mrs. Mary Hooper Donelson Jones executor of estate without bond.
“Kate M. Hooper”
Testatrix was the youngest of ten children, six sons and four daughters. All of her brothers and all of her sisters except Mrs. Donelson predeceased her. She never married, had no child, and her next of kin were her sister Mrs. Donelson, her five nieces named in the will, and a number of other nieces and nephews.
She and Mrs. Donelson, being the two youngest, grew up together, went to the same schools, and lived together until Mrs. Donelson married. Testatrix then went to live in the home of her oldest sister, Mrs. James R. (Mary Hooper) Love, mother of Mrs. Mary Love Doubleday, Mrs. Elizabeth Love Brittain, and Mrs. Grayson Love Hancock, three of the nieces mentioned in the will. She lived with this sister and these nieces for more than 20 years, until she went to South Carolina.
She was a teacher and taught Home Economics in South Carolina for many years. During this period she spent most of her summer vacations in the home of Mrs. Love until the latter’s death in 1935, and thereafter in the homes of these nieces until she retired in 1946. From then on she lived in Nashville and was intimately associ*471ated with Mrs. Donelson and the five nieces named in the will. It is stated in the bill that her estate, all personalty, amounts to some $30,000.
The object in the construction of every will is to find the intention the testator has expressed in the will. That intention is to be gathered from the particular words used, their context, and the will as a whole, considered in the light of the surrounding circumstances. Jones v. Hunt, 96 Tenn. 369, 34 S. W. 693; Hoggatt v. Clopton, 142 Tenn. 154, 217 S. W. 657; Adkisson v. Adkisson, 4 Tenn. Civ. A. 453.
“The fundamental rule of construction of all instruments, is that the intention shall prevail, and for this purpose the whole of the instrument will be looked to. The real intention will always prevail over the literal use of terms”. Brown v. Hamlett, 76 Tenn. 732, 733, 735 (Italics ours).
The words of a will are to be taken in their ordinary, proper, grammatical sense unless this would raise an ambiguity, conflict, or other difficulty of construction ; and in such case the primary meaning of the words may be modified so far as to avoid the difficulty and conform to the intention gathered from the whole will. Puryear v. Edmondson, 51 Tenn. 43, 44, 51; Sizer’s Pritchard on Wills (2 Ed), Secs. 392, 395, 396.
As we have seen, the testatrix wrote her will in these two sentences: “I wish my estate to be divided equally between my sister (naming the sister) and nieces (naming five nieces as individual legatees). In the event either should pass away, divide estate among the remaining ones. ’ ’
For Mrs. Donelson, it is argued that the word “between” imports only two things while “among” means more than two; that the use by the testatrix of “between” *472in the first sentence shows she intended her estate to he equally divided per stirpes between her sister as one class and the nieces as another class, the sister taking one-half and the nieces the other half. And it is said that in the second sentence she used the word “either” as showing she still had in mind a division of her estate to the two groups or classes.
We think this argument is unsound. The testatrix expressed her intent that her estate be divided equally between the six persons named, designating them not as member of a class or classes but as individual legatees. It is clear she used the word “between” as synonymous with “among”, to import not two but six individuals.
It is also clear that she used the word ‘ ‘ either ’ ’ in the second sentence as synonymous with “any” and to refer to these individuals and not to “two groups or classes.” For if she had been thinking of two classes, she would have known that if “either” (class) passed aw.ay, only one would be left — there would be no “remaining ones” among whom to divide the estate.
Our cases show that this bequest does not come within the “class doctrine”. That doctrine has been discussed in numerous cases, particularly Sanders v. Byrom, 112 Tenn. 472, 79 S. W. 1028; Tate v. Tate, 126 Tenn. 169, 148 S. W. 1042; Denison v. Jowers, 192 Tenn. 356, 241 S. W. (2d) 427, 428.
In Denison v. Jowers, supra, Mr. Justice Gailor stated the class doctrine rule thus:
“ ‘The rule is well settled that, where a bequest is made to a class of persons, subject to fluctuation in increase or diminution of its number, in consequence of future births or death, and the time of payment or distribution of the fund is fixed at a subsequent period, or on the happening of a future event; *473tlie entire interest vests in such persons, only, as at that time, fall within the description of persons, constituting such class. ’ Satterfield v. Mayes, 30 Tenn. 58.”
In Sanders v. Byrom, supra, 112 Tenn. at pages 477-478, 79 S. W. at page 1029', the Court stated the essentials required to bring a bequest or devise within the class doctrine as follows:
“It is observed that there are three elements in the rule. One is that there must be a class of persons subject to fluctuation by increase or diminution of its number; second, that the bequest must be to the class; and, third, that the time of payment or distribution must be fixed at a subsequent period.”
In Tate v. Tate, supra, Chief Justice Neil reviewed numerous cases, and, after doing so, said:
“If the testator should single out any individuals, either by name or in any other manner, so as to designate and distinguish them, this would necessarily break up the class idea.” Tate v. Tate, supra, 126 Tenn. at page 180, 148 S. W. at page 1045.
Farley v. Farley, 121 Tenn. 324, 115 S. W. 921, relied on by Mrs. D'onelson, differs from this ease. There the gift was “to James Osborne and heirs of Lucy Farley, equally,” the word “heirs” being descriptive of the class of persons, subject to fluctuation, who would take one-half and James Osborne the other half.
In the case before us there was no such word descriptive of a class. Instead, each of the six persons was explicitly named as legatees. In the Farley case it was said:
“ ‘If the bequest in a will of a remainder is as explicit as to the persons who are to take as if they were named, the remainder vests as it would have done if the parties *474Rad been named, and they do not take ,as a class. ’ ’ ’ 121 Tenn. at page 329,115 S. W. at page 922.
In Denison v. Jowers, snpra, 192 Tenn. at page 359, 241 S. W. (2d) at page 428, referring to the class doctrine rule, Mr. Justice Qailor said: ‘ ‘ This is often a hard rule, and if there be even a slight ground upon which to base a construction of a devise to the individuals, rather than to a class, the Court will seize the opportunity to do so as a matter of equity. ” (Citing cases.)
It is a generally accepted rule of construction that in a gift to a person described as standing in a certain relation to the testator and to the children (or grandchildren) of another person standing in the same relation, the objects of the gift take per capita,and not per stirpes; and, therefore, each child of the latter person takes a share equal to the share of the first person. 57 Am. Jur., Wills, Sec. 1313; 2 Jarman on Wills (5 ed), *1050-1051. See cases cited in annotation 16 A. L. B. 98.
This rule has been .applied in many Tennessee cases, among others the following: Seay v. Winston, 26 Tenn. 472, 478; Malone v. Majors, 27 Tenn. 577, 579; Puryear v. Edmondson, 51 Tenn. 43, 47; Ford v. Iredale, 3 Shan. Cas. 764; Kimbro v. Johnston, 83 Tenn. 78, 79.
In each of those cases the word “between” was used to indicate an equal division among more than two legatees or devisees. But there was no particular discussion of the word, doubtless because it was regarded as synonymous with “among”, as Judge Turley did, in Seay v. Winston, 26 Tenn. 472, 478.
The testatrix herself has supplied proof that she used “between” and “among” as synonymous andinterchangable. In the second sentence of the will she said, “divide estate among the remaining ones”; in the second sentence *475of the “copy”, she said “the estate to be divided between the others.”
“In popular usage no distinction is made between the words 'between’ ,and ‘among’; both being used without regard to the number involved. This confusion of meaning frequently appears in wills; and effect is given to testator’s actual intention. Ocas-sionally it seems that there is not even a prima facie assumption that the terms ,are employed accurately. In other cases it seems that there is a prima facie inference of accuracy” 3 Page on Wills (3 Ed.), Sec. 1084.
This statement is supported by many cases among others these: McIntire v. McIntire, 192 U. S. 116, 121, 24 S. Ct. 196, 48 L. Ed. 369, 371 (opinion by Holmes) ; Hicks’ Estate, 134 Pa. 507, 508, 19 A. 705; Edwards v. Kelly, 83 Miss. 144, 35 So. 418; Hill v. Van Sant, 133, N. J. Eq. 133, 136, 301 A. (2d) 904. See cases collected in annotation 16 A. L. R. 27.
For these reasons we think the intention of the testatrix was to divide her estate equally among the six named legatees, her sister and the five nieces mentioned in the will, each taking a one-sixth of the estate.
The decree of the Chancellor is reversed and a decree will be entered in this Court as above indicated. We think the costs of the appeal should be paid by the executrix and taxed as a part of the cost of administration and it is so ordered.
Howell, J., not participating.
Hiekerson, J., concurs. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2353100/ | 927 A.2d 626 (2007)
EASTWOOD NURSING AND REHABILITATION CENTER
v.
DEPARTMENT OF PUBLIC WELFARE.
No. 1017 MAL (2006).
Supreme Court of Pennsylvania.
July 3, 2007.
Disposition of petition for allowance of appeals. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620575/ | 294 S.W.2d 899 (1956)
Allen B. CROW, Appellant,
v.
CITY OF SAN ANTONIO, Appellee.
No. 12967.
Court of Civil Appeals of Texas, San Antonio.
September 12, 1956.
Rehearing Denied October 31, 1956.
*900 Lieck & Lieck, San Antonio, for appellant.
Carlos C. Cadena, City Atty., G. Bert Smith, Perry Rowan Smith, Asst. Dist. Attys., San Antonio, for appellee.
W. O. MURRAY, Chief Justice.
This suit was instituted by Allen B. Crow against the City of San Antonio, a municipal corporation, seeking to recover damages for personal injuries received by him on June 6, 1947, when a motorcycle which he was riding struck a rope stretched across Taylor Street at its junction with Fourth Street, both being public streets in the City of San Antonio.
The suit was tried to a jury and the issues submitted were answered favorably to Allen B. Crow, but the trial court granted the city's motion for judgment non obstante veredicto and entered judgment that Allen B. Crow take nothing, from which judgment Allen B. Crow has prosecuted this appeal.
Appellee's motion for judgment non obstante veredicto was based on two grounds: (1) That appellant had not complied with the requirements of Sec. 46 of the Charter of the City of San Antonio, which was in force at the time of the accident, providing in effect that as a prerequisite to the bringing of a suit against the city for personal injuries the injured person, or someone acting in his behalf, should give written notice of such accident within twenty days of its occurrence; (2) that the city employees in stretching the rope across Taylor Street were acting in a governmental capacity and that therefore the city was not liable for their negligence, if any, in doing so.
Appellant contends that the trial court erred in granting appellee's motion for judgment non obstante veredicto.
Section 46 of the Charter of the City of San Antonio, which was in effect on June 6, 1947, the date of the accident, reads as follows:
"Before the City of San Antonio shall be liable for damages of any kind, the person injured or someone in his behalf shall give the Mayor notice in writing of such injury twenty days after the same is received, stating in such notice when, where, and how the injury occurred and the extent thereof."
*901 Appellant testified that he did comply with this section of the City Charter in the following manner: Appellant's father went to his brother-in-law and got him to type the following letter:
"To: The Mayor and June 14th, 1947
Commissioners of Route 6, box 303
City of San Antonio, San Antonio, Texas
Tex.
City Hall
"I wish to advise that my Son, Allen Crow, met with an accident on June 6th, 1947, at Taylor and Fourth Streets in the City of San Antonio, Texas; and by reasons thereof suffered severe injuries.
"We hold the City of San Antonio liable on same, by reasons of the negligence by not keeping an Officer of the Law on duty and failure to place warning signs.
"I believe this notice to you is proper to protect any rights my Son, Allen Crow, might have.
"Respectively yours,
"R. B. Crow."
The letter was placed in an envelope addressed to the Mayor and City Commissioners of San Antonio, Texas, properly stamped, and was then placed in the United States Mail on June 14, 1947, some eight days after the accident. The evidence shows that a letter so addressed should have been delivered at the City Hall on the next day. The evidence further shows that the letter, being addressed to the Mayor and City Commissioners, would have been delivered to J. Frank Gallagher, City Clerk, and if it proved to be a claim against the city he would have sent it to the mayor's office. The City Clerk testified he never received the letter. The then Mayor of San Antonio, Alfred Callaghan, testified that he never saw the letter, as did his two secretaries. There was no record made of the receipt of such a letter, as should have been done if it was received and related to a claim against the city. The jury found in effect that the letter was received by the mayor within the twenty-day period. The trial court disregarded this finding by the jury and rendered judgment for the city.
There can be no question but that a failure to comply with Sec. 46, supra, is a bar to the bringing of a suit against the city for personal injuries. City of Fort Worth v. Shero, 16 Tex. Civ. App. 487, 41 S.W. 704; City of Beaumont v. Baker, Tex.Civ.App., 95 S.W.2d 1365.
There is a legal presumption that a letter properly addressed, postage prepaid, and placed in the United States Mail will be received by the person to whom it is addressed in due course. McCormick & Ray, Texas Law of Evidence, 126, § 70; Wichita Valley Ry. Co. v. Davis, Tex.Civ.App., 275 S.W. 169; Hobson v. Wise County Home Protection Ass'n, Tex.Civ.App., 214 S.W. 583; Opet v. Denzer, Goodhart & Schener, Tex.Civ.App., 93 S.W. 527; Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854.
The letter here was addressed to the mayor and commissioners. The testimony of the clerk was to the effect that a letter so addressed, if delivered at the City Hall, would be turned over to him, and if he discovered it related to a claim against the city it would be sent by him to the mayor's office. Under such circumstances, the fact that the letter was not addressed solely to the mayor becomes immaterial. Under the evidence, it would have reached his office anyway.
Appellee seems to contend that when the mayor and city employees testified that they did not receive the letter or at least that they had no recollection of having received it, that the legal presumption that the letter was received disappears, and there remains no evidence that the mayor was given notice, as is required by § 46.
It is true that when the addressee of a letter testifies that he did not receive the letter the legal presumption does disappear, but the evidence upon which it was *902 based does not disappear, and the evidence remains to be weighed by the trier of facts in determining whether the notice was in fact received. There is some conflict among the decisions on this question but a majority of the courts, including those of Texas, agree with the above statement.
The Texas Commission of Appeals, in an opinion adopted by the Supreme Court, in Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854, 857, definitely commits this State to the majority rule. We here quote from that opinion, as follows:
"We agree with the company's contention that a presumption, as such, is not evidence and that it vanished as such in view of the opposing evidence; but we do not agree that the evidentiary facts upon which it was established, could no longer be considered by the trier of the facts. Wigmore on Evidence, 2d Ed., sec. 2491. The section just cited states that if substantial contrary evidence is offered `the presumption disappears as a rule of law, and the case is in the jury's hands free from any rule,' and that `it is therefore a fallacy to attribute probative force to a presumption, increasing for the jury the weight of the facts, even when the opponent has come forward with some evidence to the contrary.'
"The foregoing statement is quoted in an annotation upon the subject in 95 A.L.R. p. 880, as `the rule which is approved by most text writers and the majority of the courts which have discussed the subject.' In a comment note beginning at 121 A.L.R. 1078, the following statement of the rule, as to whether a presumption is in the nature of evidence to be weighed as such against probative facts to the contrary, is made: `The majority of courts adhere to the view that a presumption of law, as such, is not in the nature of evidence and has no probative force, and that when some substantial evidence has been introduced tending to overcome the presumption, it disappears entirely from the case. * * * It is clear, however, that the facts and circumstances which are the basis of a presumption are themselves evidence to be considered by the jury. In such cases, it is not the presumption that the jury considers, as such; they merely consider the facts and draw inferences therefrom.'
"American Jurisprudence, Vol. 20, sec. 166, states the general rule thus: `The facts which gave rise to a presumption, as distinguished from the presumption itself, are evidentiary; those facts, when established by evidence, remain in the record and may be properly considered by the jury as they tend to sustain a finding of fact presumed, no matter what other facts the record may reveal. It is not the presumption or inference that the jury considers in such cases, but only the facts and whatever inferences flow therefrom.'
"The prima facie case of due receipt of the letter made out by plaintiff in the present case is not conclusively rebutted by the company's evidence tending to establish it was not received; nor is such evidence so clear, positive and disinterested as to overcome (other than as a rule of law) the presumption of fact in the insured's favor."
Appellee contends that the only kind of notice that will meet the requirements of Sec. 46, supra, is personal service of the mayor with a written notice. We cannot agree. This question is settled by the recent decision of the Supreme Court in McLendon v. City of Houston, 153 Tex. 318, 267 S.W.2d 805.
We are not here passing on the question, whether the evidence is legally sufficient to support the jury's finding to the effect that the mayor received the letter, *903 nor whether such finding is against the great weight and overwhelming preponderance of the evidence. We can only decide whether there is some evidence to support the jury's finding and we do find that there is some evidence. Unless there was no evidence, the judgment non obstante veredicto was improper. Rule 301, Texas Rules of Civil Procedure; Hicks v. Frost, Tex.Civ. App., 195 S.W.2d 606; Texas & P. Ry. Co. v. Hagenloh, Tex.Civ.App., 241 S.W.2d 669, affirmed 151 Tex. 191, 247 S.W.2d 236; Brewer v. Maryland Cas. Co., Tex.Civ. App., 245 S.W.2d 532.
It is only permissible for a trial court to render judgment non obstante veredicto where an instructed verdict would have been proper before the cause was submitted to the jury. Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846; Walston v. Mabry, Tex.Civ.App., 225 S.W.2d 1014; Rineheart v. Tomerlin, Tex.Civ.App., 227 S.W.2d 876; Broussard v. Burton Const. & Shipbuilding Co., Tex.Civ.App., 265 S.W.2d 665.
This brings us to a consideration of the second ground of appellee's motion for judgment, to-wit:
"The evidence in this case shows as a matter of law that the firemen, in placing the rope in question across Taylor Street, were acting in a governmental function for negligence in the performance of which the City is not liable."
Appellee contends that the trial court did not err in granting judgment non obstante veredicto, even though the city employees were guilty of negligence proximately causing appellant's injuries, in barricading Taylor Street with a rope and in failing to place sufficient warning signs on said rope to properly warn a person of ordinary prudence of its presence and in failing to keep an officer, agent or servant to warn traffic of the presence of said rope barricade, because such employees were engaged at the time in a purely governmental function arising out of the police power of the State.
It is undisputed that the sole and only purpose in barricading Taylor Street with a rope was to prevent any travel by motor vehicles on that part of the street barricaded, so that small children attending a church school could go back and forth across the street from one church building to another without danger of being struck by motor vehicles passing along Taylor Street between Fourth and Fifth Streets.
It is also clear that a city is not liable for the negligence of its employees when exercising a purely governmental function, but is liable for negligence when such employees are engaged in a proprietary function. The difficulty is in determining just what functions are purely governmental and which are proprietary.
It has been said that governmental functions are those which are performed on behalf of the State for the benefit of the general public, and proprietary functions are those which a city performs primarily for the benefit of the local inhabitants. This general definition is not very helpful in deciding the many questions that arise with reference to the non-liability of cities when its representatives are engaged in duties which are purely a governmental function.
It occurs to us that it has definitely been decided in this State that as a general rule the regulation and control of traffic in and by a municipality is strictly a governmental function. City of Austin v. Schmedes, 154 Tex. 416, 279 S.W.2d 326; Baker v. City of Waco, Tex.Civ.App., 129 S.W.2d 499; Parson v. Texas City, Tex. Civ.App., 259 S.W.2d 333.
A well recognized exception to this general rule is the duty of the city to post such directing and warning signs at the site where street construction or improvement is being made, as are reasonably necessary to protect users of the streets from dangers *904 and hazards incident to such construction or improvement. City of Austin v. Schmedes, supra, and authorities there cited. The reason for the exception is that the construction, repair or improvement of streets is a proprietary function.
In the present case there is no contention that the barricading of Taylor Street was in any remote way connected with any proprietary function of the city, such as street repairs or construction.
Appellant contends, however, that the street was barricaded primarily for the protection of the children who were attending the Bible class at the First Baptist Church and not for the benefit of the public generally, and therefore the city was not engaged in a purely governmental function. We do not agree. When the employees of a city are controlling or directing traffic not in connection with any proprietary function, such as street repairs, maintenance or construction, they are exercising a governmental function and the city is not liable for the negligence of such employees while performing such duties. Baker v. City of Waco, Tex.Civ.App., 129 S.W.2d 499; Parson v. Texas City, Tex. Civ.App., 259 S.W.2d 333; Crowley v. City of Raymand, 198 Wash. 432, 88 P.2d 858.
Appellant says even though the city employees were engaged in a governmental function while stretching the rope across Taylor Street, the city was not exempt from liability, because such rope constituted a dangerous obstruction in the street. To say that the rope constituted a dangerous obstruction in the street, in our opinion, is just another way of saying that the rope barricade constituted a nuisance in the street. In any event, if appellant desired to recover on the theory of a dangerous obstruction or nuisance in the street, he should have requested that the issue of nuisance or dangerous obstruction be submitted to the jury, as it was not conclusively established by the evidence, and his failure to request such an issue was a waiver of this independent ground of recovery. Rule 279, T.R.C.P.; Baker v. City of Waco, Tex.Civ.App., 129 S.W.2d 499; Parsons v. Texas City, Tex.Civ.App., 259 S.W.2d 333; Harris v. Harris, Tex.Civ. App., 174 S.W.2d 996; Utilities Natural Gas Corp. v. Hill, Tex.Civ.App., 239 S.W.2d 431; Johnson v. Miller, 142 Tex. 228, 177 S.W.2d 249.
The evidence does not conclusively establish that the rope stretched across Taylor Street was a nuisance or dangerous obstruction. The evidence was conflicting as to how big the rope was, as to whether there were cardboard signs on the rope, and as to just how high above the street the rope was stretched. Whether under all the evidence the rope constituted a dangerous obstruction or a nuisance was at most a question of fact to be decided by the finder of facts. 31 Tex.Jur. 421, § 11; Walker v. City of Dallas, Tex.Civ.App., 278 S.W.2d 215; Strickland v. City of Odessa, Tex.Civ.App., 268 S.W.2d 722; City of San Angelo v. Sitas, 143 Tex. 154, 183 S.W.2d 417. We do not find it necessary to determine whether or not the evidence would sustain a finding by the jury as to dangerous physical obstruction or nuisance in the street as such issue was waived by appellant.
We therefore conclude that the trial court did not err in rendering judgment non obstante veredicto and that the judgment so rendered should be affirmed.
Our judgment heretofore entered on July 11, 1956, is set aside and judgment here and now rendered affirming the judgment of the trial court. The original opinion is withdrawn and this opinion is substituted therefor.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620594/ | 447 F. Supp. 867 (1978)
FUCHS SUGARS & SYRUPS, INC., and Francis J. Prael, doing business as Lewis & Company, Plaintiffs,
v.
AMSTAR CORPORATION, Defendant.
No. 74 Civ. 2954.
United States District Court, S. D. New York.
March 21, 1978.
*868 *869 LeBoeuf, Lamb, Leiby & MacRae, New York City, for plaintiffs; H. Richard Wachtel, Grant S. Lewis, Michael R. W. Green, William G. Primps, New York City, of counsel.
Sullivan & Cromwell, New York City, for defendant; William E. Willis, James H. Carter, Jr., William M. Dallas, Jr., Steven E. Harbour, New York City, of counsel.
OPINION
ROBERT J. WARD, District Judge.
At the end of a three-week trial involving 47 witnesses and hundreds of documents, a jury found that defendant Amstar Corporation ("Amstar") had violated § 1 of the Sherman Act, 15 U.S.C. § 1, and was liable to both plaintiffs, Fuchs Sugars & Syrups, Inc. ("Fuchs") and Francis J. Prael, doing business as Lewis & Company ("Prael"). Plaintiffs' claims arose out of Amstar's April 1, 1974 termination of general sugar brokers, including Fuchs and Prael, and the events leading up to the termination.[1] The jury awarded Fuchs $80,000 and Prael $70,000; each award will be trebled under § 4 of the Clayton Act, 15 U.S.C. § 15. Amstar now moves pursuant to Rule 50(b), Fed.R. Civ.P., for judgment notwithstanding the verdict on the grounds that:
(1) As a matter of law, plaintiffs failed to prove a combination or conspiracy;
(2) Plaintiffs failed to prove any causal link between the purported violation and injury allegedly sustained by plaintiffs;
(3) As a matter of law, § 2(c) of the Robinson-Patman Act, 15 U.S.C. § 13(c), would be violated by plaintiffs' receipt of brokerage commissions, and as a matter of law, termination of brokerage commissions in order to avoid such violations is a complete defense to this purported Sherman Act § 1 violation.
Also pending is a fee application under 15 U.S.C. § 15 on behalf of counsel for plaintiffs.[2]*870 For the reasons hereinafter stated, defendant's motion for judgment notwithstanding the verdict is denied, and decision on the fee application is deferred until final determination of this case on appeal.
Amstar sells its sugar to three classes of customers: industrial purchasers such as candy, cookie and soda companies which purchase in bulk quantities approximately 75% to 80% of the refined sugar; grocery chains which purchase approximately 20% of the refined sugar; and institutional purchasers such as restaurants which purchase individual packets and other specialty items for consumption by their individual customers.
Prior to April 1, 1974, Amstar marketed its sugar to these customers in a number of ways, including use of general sugar brokers, direct sugar brokers and its own sales force. The sole distinction between general and direct sugar brokers is that general sugar brokers simultaneously represent more than one sugar refinery, while direct sugar brokers represent only one. Brokers do not take title to the sugar and do not buy and sell for their own accounts. Rather, they participate in the refiner's initial sale of sugar by functioning as go-betweens who bring together buyers and sellers at terms agreeable to both.[3] For this they are compensated by the refiner in the form of commissions for sales of the refiner's sugar. They are never compensated by the customers to whom the sugar is sold.
For one reason or another, Amstar was not pleased with the use of general sugar brokers as a means of distributing its product and so it decided to terminate them and replace them with direct brokers and Amstar sales people.[4] The questions for the jury were whether the terminations were the product of an anti-competitive purpose, whether they had an anti-competitive effect, and, if so, whether the plaintiffs were injured as a direct result of the antitrust violation.
Amstar argued to the jury that the terminations were motivated by many good business reasons. The jury, however, chose to reject Amstar's argument and to accept plaintiffs' explanation of why the general brokers had been terminated. The theory of plaintiffs' case was that Amstar had a multi-phase five-year plan for the control and eventual elimination of general sugar brokers. The plan culminated in the April 1, 1974 termination of general sugar brokers and their replacement by direct brokers and Amstar's own sales people. According to plaintiffs, this constituted an unreasonable restraint of trade in violation of § 1 of the Sherman Act because it was motivated not by the business reasons Amstar proffered, but by an anti-competitive purpose to suppress particularly price, but also non-price, competition among various brokers.
Amstar did not object to this Court's instruction allowing the jury to consider, in relation to the purpose and effect of the broker terminations, Amstar's activities leading up to and following the April 1, 1974 terminations. Nor does it now contend that it was error to have so charged. Similarly, Amstar does not appear to explicitly challenge the sufficiency of the evidence with respect to anti-competitive purpose or effect.
The starting point of this Court's analysis must be a recognition that the standard for granting judgment notwithstanding the verdict is most stringent.
*871 Simply stated, it is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached. [Furthermore] the evidence must be viewed in the light most favorable to the party against whom the motion is made and he must be given the benefit of all reasonable inferences which may be drawn in his favor from that evidence.
Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2524 (1971). Moreover, the evidence which must be considered is not all the evidence, but only the evidence favorable to the non-moving party and the uncontradicted, unimpeached evidence unfavorable to the non-moving party, Bigelow v. Agway, Inc., 506 F.2d 551, 554 (2d Cir. 1974); Horowitz v. Anker, 437 F. Supp. 495, 503 (E.D.N.Y.1977), at least to the extent that the latter comes from disinterested witnesses. Wright & Miller, supra § 2529 at 572-73. But see Simblest v. Maynard, supra at 5 n.3. And "[s]ince grant of one of these motions deprives the party of a determination of the facts by a jury, they should be cautiously and sparingly granted." Wright & Miller, supra § 2524 at 542. With these principles in mind, the Court now turns to a review of the evidence to determine whether or not there was sufficient proof to justify the jury's accepting plaintiffs' theory.
FACTS
There was evidence in the record from which the jury could have found the following facts:
Sugar refining is, and was during the period in question, an oligopoly industry in which a limited number of smaller firms are dominated by Amstar, which markets Domino brand sugar. In the Northeastern United States, where plaintiffs transacted most of their business and which the parties agreed is a relevant submarket, over 80% of the refined sugar market, which the jury could have found to be the relevant product market, has been controlled by four firms. Of these four firms, Amstar has predominated, and had approximately 45% to 50% of the market share of sales of refined sugar in the Northeast in 1974.
Plaintiffs' contention that the elimination of the general sugar broker had an adverse effect on intrabrand and interbrand price and non-price competition turns on the peculiar status and function of the general broker. Based on the fact that brokers were compensated by the refiner, Amstar characterized general brokers as merely its agents. In doing so, however, it ignored the fact that inherent in the concept of simultaneous representation of multiple refiners is a disclosed conflict of interest between the "agents" and "principals". Thus, general sugar brokers by definition are independent of, and at times adverse to, the refiners they represent.
This inherent conflict between "agent" and multiple "principals" is intensified by the method of compensating brokers. Brokerage commissions generally are based upon volume, increasing in proportion to the volume of sugar sold and without regard to the sales price or profit margin to the refiner on the sale. Thus, the usual brokerage compensation scheme contains an incentive for the broker to sell as much sugar as possible, but no incentive for the broker to get the best possible price for his refiner. In fact, if there is any built-in incentive it is for the broker to seek as low a price as the market will bear so as to attract customers away from other brokers and the refiner's own sales people and induce those customers to buy in greater quantity.[5] Thus, there is another inherent conflict between the refiners' interest in maximized profits and the brokers' interest in maximized sales regardless of the refiners' *872 profit. Furthermore, because other refiners generally compensate brokers in the same manner, the general broker concept contains no intrinsic incentive for the broker to sell the product of any particular principal.[6]
Because brokerage commissions were based on volume of sugar sold there was intense competition among brokers for high volume sales. However, because brokers had no discretion in negotiating price or other terms and no authority to bind the refiner, and were limited to relaying price quotations and other information back and forth from buyer to seller, they had to develop other means of distinguishing themselves so as to compete for more sales. What ensued was broker competition to provide additional services to sugar purchasers, such as distributing free price forecast sheets and other data on the market, or obtaining free or cheaper delivery of sugar, or locating cheaper, or "distress", sources of sugar or introducing cheaper "private label" brand sugar.[7] Most importantly, brokers often competed by "shopping" for the lowest price among the refiners they represented. For example, brokers would sometimes inform a small volume purchaser of the price quote that had been given to a larger volume purchaser and thereby force down the price the small purchaser would be willing to pay. Or the general broker, being privy to price quotes from other refiners, might tell Amstar or the prospective purchaser that Amstar's quote was higher than that of a rival refiner and then tell Amstar that it must meet the competitor's quote if it hoped to make the sale. In these ways the general broker created interbrand competition among refiners which had a downward effect on price. At the same time, there was intrabrand price competition between the general sugar broker who sought the most competitive price and the Amstar salesman who generally sought to sell at the list price. The existence of such intrabrand competition is supported by the testimony of Edwin O. Holtz, formerly of Southern Biscuit Co., Howard Tiekert, formerly of Bond Baking Company, and Terrance Webster of Sunshine Biscuit, Inc., who testified to the effect that they generally got lower prices from general brokers than they got from Amstar people or from direct brokers.
Another avenue of competition brought about by the general sugar brokers was the introduction of private label sugar to the New York metropolitan area grocery market. It was through the efforts of general brokers, particularly Czarnikow-Rionda, that grocery stores were given the opportunity to buy the less expensive private label brands and offer these alongside and in competition with the name brands.
There was evidence in the record to suggest that it was Amstar's displeasure with these pro-competitive activities of the general brokers that led to their termination. For example, Amstar had communicated to various general brokers on a number of occasions its displeasure with the general brokers' depressing effect on prices. In addition, Amstar documents demonstrate a concern with the destabilizing effect the general brokers had on prices. Furthermore, William P. Cleaver, Vice President of Amstar and President of the American Sugar Division of Amstar, testified in a deposition that the only dissatisfaction with general sugar brokers he remembers having been expressed by Mr. Shanley, Executive Vice President of the American Sugar Division and formerly Vice President of Industrial Sales, had to do with the detrimental impact the general brokers were having on the price Amstar was receiving. Mr. Cleaver did not recall Mr. Shanley's ever having mentioned in connection with his dissatisfaction *873 with the general brokers any of the business reasons which purportedly motivated Amstar to terminate the general brokers.
As further evidence of anti-competitive motive or purpose, there was the testimony of Ronald Blenderman, who had been Vice President of grocery products, from which the jury could have concluded that in order to protect the dominance of its name in the New York metropolitan grocery market, Amstar refused to sell its sugar for marketing under a private label. In addition, the jury could have found that in 1970 when Amstar terminated Czarnikow-Rionda, which at that time was Amstar's leading general sugar broker in the New York area, it did so because Czarnikow-Rionda was buying sugar from Puerto Rico, repackaging it and selling it to New York grocery stores as private label at a price substantially less than Amstar's Domino brand. Furthermore, the jury could have found that Amstar intended to restrain competition with the Domino brand in the New York metropolitan grocery market when in 1970 it terminated all but three of the remaining general brokers in the New York grocery market, when in 1971 it induced Susan Goodman, formerly a leading sales person with Czarnikow-Rionda, to join Fuchs, and when in July 1972 it induced Fuchs to become an exclusive broker in the grocery market along with Andorn, Bergida & Danks ("ABD"), a food broker who became a direct broker for Amstar and replaced the 16 or so general brokers terminated by Amstar in 1970.
Amstar also argued to the jury that the terminations did not have an anti-competitive effect.[8] The jury, however, was entitled to draw the contrary inference from plaintiffs' documentary evidence that Amstar's market shares in the Northeast increased dramatically between the end of 1973 and the end of 1974, and that in 1975 Amstar reported the highest net income in its history despite the change-over in 1974 to the "lifo" method of reporting income. From this the jury could have inferred that the termination of all general brokers, not just plaintiffs, had an anti-competitive impact on the Northeast geographic submarket. In addition, the jury could have found, on the basis of the testimony of Dennis J. O'Connell, President of Ambrosia Chocolate Company and Hooton Chocolate Company, subsidiaries of W. R. Grace & Co., that subsequent to the terminations Amstar began a practice of offering long term requirements contracts. He also testified that Amstar had attempted to force him to sign a one-year contract for almost a year's requirements of sugar. Joseph Torter of M. Polaner & Son, Inc., testified similarly. Under such contracts, the customer bears the risk of a rise in the price of raw sugar; Amstar assumes no risk. Mr. Shanley of Amstar testified that in the past, prior to the April 1, 1974 termination of the general sugar brokers, it had offered contracts with a minimum, maximum and specified period, and had offered 90 day coverage at a fixed price, but these had not been successful. Only in 1974, after the general brokers had been terminated, did Amstar succeed in convincing customers to tie up their requirements, to the possible detriment of competing refiners and customers.
In sum, the jury was entitled to conclude that the terminations and events leading up to and following the terminations had the anticompetitive purpose and effect of eliminating intrabrand price competition, depressing interbrand price competition and enhancing Amstar's dominant position in the market such that, for example, Amstar could now for the first time impose on its customers long term (six months or a year) requirements contracts under which the customer bore the risk of loss.
AMSTAR'S GROUNDS FOR JUDGMENT NOTWITHSTANDING THE VERDICT
I. No Combination or Conspiracy
It is hornbook law that a manufacturer, or in this case a refiner, has the right to *874 unilaterally choose the customers with whom he will deal. United States v. Colgate & Co., 250 U.S. 300, 39 S. Ct. 465, 63 L. Ed. 992 (1919). However, the post-Colgate Supreme Court decisions, most notably, United States v. Parke, Davis & Co., 362 U.S. 29, 80 S. Ct. 503, 4 L. Ed. 2d 505 (1960), and Albrecht v. Herald Co., 390 U.S. 145, 88 S. Ct. 869, 19 L. Ed. 2d 998 (1968),[9] have read Colgate as narrowly as possible, leading many to question to what extent Colgate has any continued application. See, e. g., Greene v. General Foods Corporation, 517 F.2d 635, 651-55 (5th Cir. 1975), cert. denied, 424 U.S. 942, 96 S. Ct. 1409, 47 L. Ed. 2d 348 (1976); George W. Warner & Co. v. Black & Decker Mfg. Co., 277 F.2d 787, 790 (2d Cir. 1960) ("The Supreme Court [in Parke, Davis] has left a narrow [Colgate] channel through which a manufacturer may pass even though the facts would have to be of such Doric simplicity as to be somewhat rare in this day of complex business enterprise."); Handler, Through The Antitrust Looking Glass Twenty-First Annual Antitrust Review, 57 Calif.L.Rev. 182, 187-91 (1969); Pitofsky, Is the Colgate Doctrine Dead?, 37 Antitrust L.J. 772 (1968); The Supreme Court, 1967 Term, 82 Harv.L. Rev. 63, 259 (1968). See also Tamaron Distributing Corporation v. Weiner, 418 F.2d 137 (7th Cir. 1969).
It was primarily on the basis of the facts, reasoning and broad dicta in Albrecht, supra, that this Court denied Amstar's motion for a directed verdict on the grounds of no combination or conspiracy. There, the Supreme Court found as a matter of law a combination between the defendant and two third parties, one of whom had a purpose entirely different from the defendant's purpose and the other of whom had a purpose antithetical to the achievement of defendant's purpose. 390 U.S. at 149-50, 88 S. Ct. 869. By implication, what the Court held was required to establish such a combination was an anti-competitive purpose on the part of the defendant and a material aiding and abetting of that purpose by third parties having knowledge of the purpose, even though the third parties did not specifically intend to advance defendant's purpose.
Under this holding, so long as the jury in the instant case found an anti-competitive purpose, which they could have, they also could have found that Amstar combined with Kenneth L. Fox and George David Waller in pursuit of that purpose.[10] Amstar knew that in order for its plan to succeed it would need to hire additional people to serve as either direct brokers or Amstar sales people. There was evidence that it expected at least one of these additional people to "fall out" of the ranks of the terminated general brokers. Fox and Waller did not merely "fall out", however. They were induced by Amstar to give up representing competing refiners, and they agreed to do so, knowing the nature of Amstar's dissatisfaction with the general sugar brokers and what would be expected of them as direct sugar brokers. When Fox and Waller fell in line, they provided the experience Amstar required and thus materially aided and abetted the overall plan.
In addition, if the jury found an anti-competitive purpose in the elimination of general brokers with respect to New York City grocery accounts and the imposition of exclusive brokerage arrangements involving territorial and customer restrictions with Fuchs and ABD, under the Albrecht holding the jury could also have found that Amstar combined with ABD in order to *875 reduce interbrand competition, stabilize prices, and eliminate general brokers servicing New York City grocery accounts.
Furthermore, in the famous footnote 6 in Albrecht, the Supreme Court outlined three other possible combinations:
Under Parke, Davis [plaintiff] could have claimed a combination between [defendant] and himself, at least as of the day he unwillingly complied with [defendant's] advertised price. Likewise, he might successfully have claimed that [defendant] had combined with other carriers [plaintiff's competitors] because the firmly enforced price policy applied to all carriers, most of whom acquiesced in it. See United States v. Arnold, Schwinn & Co., 388 U.S. 365, 372 [87 S. Ct. 1856, 1862, 18 L. Ed. 2d 1249] (1967). . . .
[Plaintiff's] amended complaint did allege a combination between [defendant] and [plaintiff's] customers. Because of our disposition of this case it is unnecessary to pass on this claim. It was not, however, a frivolous contention.
Under the first of these alternatives, both of which were approved in Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 142, 88 S. Ct. 1981, 20 L. Ed. 2d 982 (1968), the jury could have found that Amstar combined with Fuchs who unwillingly complied with territorial and customer restrictions intended to suppress competition with the Domino brand in the New York City grocery market. Under the first and second alternatives posed in footnote 6 of Albrecht, the jury might have found a combination with the thirteen terminated general brokers who agreed to accept the termination payments offered by Amstar.
Amstar urges, however, that there could be no unlawful combination or conspiracy unless the terminations were for the purpose of coercing future compliance with an illegal plan. The thrust of this argument is that since Amstar terminated all, rather than selective, general brokers and the terminations were final, there was no element of coercing future compliance. This argument has superficial appeal, but falters under closer scrutiny. First, even assuming that coercion is required in termination cases, contrary to Amstar's view of the case there was proof from which the jury could have inferred coercion. Over an extended period of time Amstar had used threats, selective terminations and territorial and customer restrictions to control general brokers. Then, simultaneously with announcing the termination of the remaining general brokers, but prior to the effective date of the terminations, Amstar offered Fox and Waller the position of direct brokers, but told them they must decide almost immediately. Fox and Waller knew that if they declined the offer they would be terminated entirely by Amstar. Under all these circumstances the jury could have found that Fox and Waller were coerced into acquiescing.
Second, Amstar's argument rests on the assumption that the terminations were merely a complete change-over in distribution. If all that were involved were a mere change-over in vertical distribution, with no anti-competitive purpose or effect, then Amstar is correct that there could not have been a combination or conspiracy in illegal restraint of trade, for as the Second Circuit recently pronounced:
Where a manufacturer simply decides on his own to substitute one dealer for another, and cuts off the former dealer, his decision to sell exclusively to a new dealer does not amount to an antitrust "conspiracy" with the latter, . . . even though the manufacturer has agreed with the new dealer to transfer patronage to him and to terminate sales to the former dealer.
Bowen v. New York News, Inc., 522 F.2d 1242, 1254 (2d Cir. 1975), cert. denied, 425 U.S. 936, 96 S. Ct. 1667, 48 L. Ed. 2d 177 (1976) (emphasis added, citations omitted).[11] However
*876 [t]he critical inquiry in such "refusal to deal" cases is not whether there was a refusal to deal, or whether a refusal to deal was carried out by agreement with others, but rather whether the refusal to deal, manifested by a combination or conspiracy, is so anticompetitive, in purpose or effect, or both, as to be an unreasonable restraint of trade. Hawaiian Oke, [416 F.2d] supra, at 77-78; Walker Distributing Co. v. Lucky Lager Brewing Co., 323 F.2d 1, 7 (9th Cir. 1963). This inquiry is primarily a factual one, and its resolution often requires determination of motive or intent.
Alpha Distributing Co. of Calif., Inc. v. Jack Daniel Distillery, 454 F.2d 442, 452 (9th Cir. 1972), cert. denied, 419 U.S. 842, 95 S. Ct. 74, 42 L. Ed. 2d 70 (1974).[12] The question, then, is whether reasonable men could only conclude that Amstar simply substituted direct brokers and its own sales force for the terminated general brokers, or simply vertically confined its product, as Amstar chooses to characterize the facts; or could reasonable men have concluded that the terminations were a means of effectuating a broader anti-competitive purpose and in fact had an anti-competitive effect. Viewing the evidence in the light most favorable to plaintiffs and giving plaintiffs the benefit of all reasonable inferences to be drawn therefrom, the Court concludes that the jury could reasonably have found an anti-competitive purpose and effect and therefore could have found an illegal combination or conspiracy.[13] Accordingly, the numerous cases cited by Amstar, which went off not on the absence of agreement but on the absence of anti-competitive motive or effect, are inapposite.[14]
*877 II. No Causal Connection Between Violation and Injury Sustained By Plaintiffs
The thrust of this argument seems to be that: the combination, if any, was between Amstar and two of its Midwestern general brokers (Fox and Waller) who agreed to become direct brokers; this combination could not have injured plaintiffs inasmuch as plaintiffs did not compete in the Midwest; in the Northeast where plaintiffs do compete, and where their injury, if any, would have occurred, the general brokers were replaced by Amstar employees; because, as a matter of law, Amstar and its employees could not constitute a combination, plaintiffs were not harmed by any combination.
There are a number of flaws in this argument. First, there is evidence in the record that as an Amstar direct broker Fox called on RKO Bottlers, an account upon which Prael was calling on behalf of Sucrest, and that Waller had national accounts throughout the United States whereby he competed with all brokers selling on a national basis, including Fuchs and Prael. From this the jury could have inferred that some of the business plaintiffs lost was due to direct competition from Fox and Waller. Second, just as the terminations could not be viewed in isolation from what motivated them and resulted from them, so too the combinations cannot be viewed in isolation from the overall plan they facilitated. In order for the plan to succeed, Amstar had to be able to replace the general brokers with experienced substitutes. Fox and Waller, in providing experience, materially aided and abetted the overall plan. Therefore, if the overall plan injured plaintiffs and Fox and Waller contributed to the success of the plan, then Fox and Waller contributed to plaintiffs' injury. Third, as discussed supra, Fox and Waller were not the only possible members of a combination or conspiracy. Fourth, the Court is of the view that the causal connection must be between plaintiffs' injury and the antitrust violation, rather than between plaintiffs' injury and the combination. Billy Baxter, Inc. v. Coca Cola Co., 431 F.2d 183, 187 (2d Cir. 1970), cert. denied, 401 U.S. 923, 91 S. Ct. 877, 27 L. Ed. 2d 826 (1971). Thus, the question is whether there is a causal connection between plaintiffs' injury and the illegal restraint of trade, namely, suppression of price competition, attempted price stabilization and enhancement of Amstar's power to control the movement of sugar within the market generally.
It should first be noted that plaintiffs introduced sufficient evidence through their expert, Peter Max, whereby the jury could have found that plaintiffs lost business and therefore were injured by virtue of the termination of their representation of Amstar.
Amstar appears to contest plaintiffs' standing to assert this injury, however, relying on Calderone Enterprises Corp. v. United Artists Theatre Circuit, Inc., 454 F.2d 1292 (2d Cir. 1971), cert. denied, 406 U.S. 930, 92 S. Ct. 1776, 32 L. Ed. 2d 132 (1972); Billy Baxter, Inc. v. Coca-Cola Co., supra, 431 F.2d 183, and Productive Inventions, Inc. v. Trico Products Corp., 224 F.2d 678 (2d Cir. 1955), cert. denied, 350 U.S. 936, 76 S. Ct. 301, 100 L. Ed. 818 (1956). The plaintiffs in those cases were not within the "target area" because their injury was derivative of the injury to the target. By contrast, because Fuchs and Prael were deliberately selected by Amstar as the means to the end restraint and they were harmed as a result, their injury was not derivative *878 of the injury to Amstar's competitors or customers; in fact, the injury to Amstar's competitors and customers in a sense was derivative of the harm caused plaintiffs by the four-phase plan to control and ultimately terminate all the general sugar brokers. Accordingly, plaintiffs were within the target area and therefore have standing. See Bravman v. Bassett Furniture Industries, Inc., 552 F.2d 90, 100 (3d Cir.), cert. denied, 434 U.S. 823, 98 S. Ct. 69, 54 L. Ed. 2d 80 (1977); cf. International Railways of Central America v. United Brands Co., 358 F. Supp. 1363, 1370, 1372, 1373 (S.D.N.Y. 1973), aff'd on other grounds, 532 F.2d 231 (2d Cir. 1976). See generally Berger & Bernstein, An Analytical Framework for Antitrust Standing, 86 Yale L. J. 809 (1977).
Similarly, the Court believes that plaintiffs proved there was a causal connection between the injury and the antitrust violation: the terminations facilitated the anti-competitive restraint and therefore were part of the violation; the terminations injured plaintiffs; therefore, plaintiffs' injury was causally related to the violation.
Nonetheless, Amstar argues that the recent Supreme Court decisions of Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S. Ct. 2061, 52 L. Ed. 2d 707 (1977) and Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S. Ct. 690, 50 L. Ed. 2d 701 (1977) require judgment in its favor. The Court believes only the latter to be relevant.
Brunswick held
that for plaintiffs to recover treble damages on account of § 7 violations, they must prove more than injury causally linked to an illegal presence in the market. Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. It should, in short, be "the type of loss that the claimed violations . . . would be likely to cause."
429 U.S. at 489, 97 S.Ct. at 697, quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 125, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969) (emphasis in original). Put simply, private plaintiffs in § 7 suits must prove not merely that their "loss occurred `by reason of' the unlawful acquisitions [but rather that it occurred] `by reason of' that which made the acquisitions unlawful." Id. 429 U.S. at 488, 97 S.Ct. at 697. Assuming that Brunswick applies in a § 1 suit, but see Handler, Changing Trends in Antitrust Doctrines: An Unprecedented Supreme Court Term 1977, 77 Colum.L. Rev. 979, 992 n.76 (1977), by a parity of reasoning Fuchs and Prael would have to prove not merely that their injury occurred by reason of their termination, but that it occurred by reason of that which made the terminations unlawful. What made the terminations unlawful was that the purpose and effect of the overall plan which culminated in the terminations was to enhance Amstar's power over the price and movement of sugar in the market generally by restricting the general broker's ability to compete. In the case of those who went along with the plan, e. g., ABD, Fox and Waller, the purpose was achieved by their giving up the right to handle directly competitive lines and exert downward pressure on prices. In the case of plaintiffs, who ultimately refused to go along, the purpose was achieved by their being rendered less effective by their inability to offer Amstar products. Because Amstar is the industry giant, particularly in the Northeast where plaintiffs' efforts are concentrated, and because Amstar offers a wide variety of specialty items not available from other refiners and is a large reliable source of supply, the ability to offer Amstar products in addition to those of other refiners has a "door-opener" effect. Conversely, there was ample proof that because plaintiffs cannot offer Amstar products along with other refiners' products they have been foreclosed from competing for certain customers' accounts. See Greene v. General Foods Corp., supra, 517 F.2d at 664. Thus, plaintiffs' injury was causally connected to that which made the terminations unlawful.
*879 III. Section 2(c) of the Robinson-Patman Act, 15 U.S.C. § 13(c), Would be Violated by Plaintiffs' Receipt of Brokerage Commissions; Therefore, Termination of Brokerage Commissions in Order to Avoid Such a Violation is a Complete Defense to Plaintiffs' Claimed Sherman Act § 1 Violation
Section 2(c) of the Robinson-Patman Act, 15 U.S.C. § 13(c), provides:
It shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party to such transaction other than the person by whom such compensation is so granted or paid. (emphasis added).
For purposes of its Robinson-Patman defense, Amstar contends that the general sugar brokers were in fact buyers' agents and therefore it violated § 2(c) for the refiners to pay and the brokers to accept compensation.[15] It follows, Amstar contends, that Amstar could not be found liable under the Sherman Act for terminating a practice which violated § 2(c) of Robinson-Patman; therefore, the existence of a § 2(c) violation was a complete defense to the finding of a § 1 violation.
In asserting that plaintiffs were "in fact" acting on behalf of sugar purchasers, Amstar does not suggest that plaintiffs were not its agents. Rather, its position is that because plaintiffs at times made recommendations which were in the best interest of the customers they were in fact acting on behalf of such customers and must have been acting adversely to the interests of Amstar, making them unfaithful Amstar agents. The only difficulty with this position is that, contrary to Amstar's protestations, the question of whether plaintiffs acted primarily, as opposed to incidentally, for the benefit of customers is factual and was for the jury to decide.[16] The jury resolved *880 this issue against Amstar[17] and that finding will not be disturbed inasmuch as there was ample evidence from which the jury could have inferred that plaintiffs were in fact acting primarily either for the sellers or for themselves.[18] If they found that plaintiffs acted primarily for the seller, then, as a matter of law, there could not possibly have been a § 2(c) violation. Whether there was a violation if the jury found that plaintiffs acted primarily for themselves, rather than for either the buyer or seller, is a question of law the Court will now explore.[19]
Amstar relies on Great Atlantic & Pacific Tea Co. v. FTC, 106 F.2d 667, 674-75 (3d Cir. 1939), aff'g, 26 F.T.C. 486 (1938), cert. denied, 308 U.S. 625, 60 S. Ct. 380, 84 L. Ed. 521 (1940), and Quality Bakers of America v. FTC, 114 F.2d 393, 399 (1st Cir. 1940), which contain language to the effect that under § 2(c) of Robinson-Patman a broker cannot be a dual agent of a buyer and a seller, or, more accurately, cannot be a true intermediary who acts in his own best interest in securing commissions by consummating as many sales as possible and in so doing benefits both the buyer and the seller. However, in both cases the language is dictum, the facts are distinguishable and these precedents would not otherwise be controlling in any event. Moreover, there is recent authority to the contrary,[20] and the question has been left open in this Circuit.[21] For these reasons, the Court deems it appropriate to approach the issue anew, in light of the purpose of § 2(c) and the abuses at which it was directed.
"The Robinson-Patman Act was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power." FTC v. Henry Broch & Co., 363 U.S. 166, 168, 80 S. Ct. 1158, 1160, 4 L. Ed. 2d 1124 (1960). See generally Fulda, Food Distribution in the *881 United States, the Struggle Between Independents and Chains, 99 U.Pa.L.Rev. 1051 (1951). The chief devices employed by large buyers to coerce secret price concessions were "to demand the allowance of brokerage direct to them upon their purchases, or its payment to an employee, agent, or corporate subsidiary whom they set up in the guise of a broker, and through whom they demand that sales to them be made." Great Atlantic & Pacific Tea Co., supra, 26 F.T.C. at 503, 504, quoting Sen. Rep. No. 1502, 74th Cong., 2d Sess. at 7 and H.R.Rep. No. 2287, 74th Cong., 2d Sess. at 14. In other words, the primary concern of § 2(c) was the large buyer's use of "discounts in lieu of brokerage" and "dummy brokerage." Henry Broch & Co., supra, 363 U.S. at 169, 80 S. Ct. 1158; In re Borman Food Stores, Inc., 81 F.T.C. 201, 207 (1972) (Elman, Comm'r, dissenting from issuing complaint) (Food Fair case); Calvani, Functional Discounts Under the Robinson-Patman Act, 17 B.C.Ind. & Comm.L.Rev. 543, 557 (1976); Schiering, The Robinson-Patman Act: Is Section 2(c) Back?, 26 Case Wes.Res.L.Rev. 594, 597 (1976). Accordingly, most § 2(c) cases, including the majority of the cases relied upon by Amstar,[22] involved these abuses. Inasmuch as these abuses are not involved here, this line of precedent is distinguishable.
There is legislative history, however, which indicates some passing concern with preventing abuses of the fiduciary relationship between broker and client. Sen.Rep. No. 1502, 74th Cong., 2d Sess., at 7 states:
Among the prevalent modes of discrimination at which this bill is directed, is the practice of certain large buyers to demand the allowance of brokerage direct to them upon their purchases, or its payment to an employee, agent, or corporate subsidiary whom they set up in the guise of a broker, and through whom they demand that sales to them be made. Whether employed by the buyer in good faith to find a source of supply, or by the seller to find a market, the broker so employed discharges a sound economic function and is entitled to appropriate compensation by the one in whose interest he so serves. But to permit its payment or allowance where no such service is rendered, where in fact, if a "broker," so labeled, enters the picture at all, it is one whom the buyer points out to the seller, rather than one who brings the buyer to the seller, is but to permit the corruption of this function to the purposes of competitive discrimination. The relation of the broker to his client is a fiduciary one. To collect from a client `for services rendered in the interest of a party adverse to him, is a violation of that relationship; and to protect those who deal in the streams of commerce against breaches of faith in its relations of trust, is to foster confidence in its processes and promote its wholesomeness and volume. (emphasis added).
H.R.Rep. No. 2287, 74th Cong., 2d Sess., at 14 states:
*882 [This section] deals with the abuse of the brokerage function for purposes of oppressive discrimination. . . . [T]he positions of buyer and seller are by nature adverse, and it is a contradiction in terms incompatible with his natural function for an intermediary to claim to be rendering services for the seller when he is acting in fact for or under the control of the buyer, and no seller can be expected to pay such an intermediary so controlled for such services unless compelled to do so by coercive influences in compromise of his natural interest. (emphasis added).
It is apparent from reading this legislative history in context, that in enacting § 2(c) Congress was not motivated by an abstract concern for protecting or regulating the fiduciary relationship between broker and client. Rather, the concern with the perversion of the fiduciary relationship was incidental to the related, primary objective of eliminating price discrimination caused by oppressive tactics of large buyers who abused the brokerage function. However, there is dictum in FTC v. Broch & Co., supra, 363 U.S. at 169-70 n.6, 80 S.Ct. at 1161, stating that "although not mentioned in the Committee Reports, the debates on the bill show clearly that § 2(c) was intended to proscribe other practices such as the `bribing' of a seller's broker by the buyer. See 80 Cong.Rec. 7759-7760, 8111-8112."
Based on the above-quoted committee reports and the dictum in Broch, it has been held that § 2(c) covers commercial bribery "where [the] violation has an anti-competitive effect," Grace v. E. J. Kozin Co., 538 F.2d 170, 173 (7th Cir. 1976), or "[gives] one seller a grossly unfair advantage over a competing seller," Rangen, Inc. v. Sterling Nelson & Sons, 351 F.2d 851, 857 (9th Cir. 1965), cert. denied, 383 U.S. 936, 86 S. Ct. 1067, 15 L. Ed. 2d 853 (1966). These cases followed the landmark case of Fitch v. Kentucky-Tennessee Light & Power Co., 136 F.2d 12 (6th Cir. 1943), which outlawed such payments as "an unfair trade practice, . . obviously result[ing] in lessening competition." Id. at 16.
Because commercial bribery has an anti-competitive impact analogous to the discriminatory effect of dummy brokerage and other secret price concessions with which § 2(c) is primarily concerned, cf. Grace v. E. J. Kozin Co., supra, 538 F.2d at 174, these commercial bribery cases are reconcilable with the purpose of § 2(c). However, they are inapposite inasmuch as the jury in the instant case impliedly found that Amstar's compensating the general brokers had a pro-competitive effect. More importantly, they are inapposite because none of these cases involved a true intermediary[23] one who is not "acting in fact for or in behalf" of the other party to the transaction,[24] as the jury could have found these plaintiffs to be.[25] On the contrary, each of these cases involved a fiduciary who committed a classic breach of faith in acting "for his own pocket," Fitch, supra, 136 F.2d at 15.
Amstar attempts to fit within the ambit of these commercial bribery cases by characterizing the general brokers as "faithless *883 agents." However, the Court believes that this characterization is superficial and the jury was warranted in rejecting it for the same reasons that the jury was entitled to find plaintiffs to be intermediaries: Amstar knew that plaintiffs, unlike ordinary agents, were acting in their own self-interest and that this interest did not always accord with the interests of Amstar or any other refiner or, for that matter, the purchaser. Thus, neither Fuchs nor Prael, as general sugar brokers, could fairly be regarded as a pure fiduciary such as Fitch. See Fitch v. Kentucky-Tennessee Light & Power Co., supra. At the same time, the pursuit of plaintiffs' self-interest did not necessitate their being actually adverse to either side of the transaction. Therefore, to the extent that there was a conflict between plaintiffs and Amstar, it certainly was not comparable to a breach of trust such as that committed by Fitch.
For the foregoing reasons, and inasmuch as the commissions paid Fuchs and Prael were for services actually rendered, the Court does not perceive any policy reason why § 2(c) should proscribe a true intermediary's being compensated by one of the parties benefitting from the intermediary's services.[26] Therefore, the Court holds that as a matter of law § 2(c) of the Robinson-Patman Act was not violated.
This holding makes it unnecessary to reach the question of whether such a Robinson-Patman violation should be a complete defense to a Sherman Act § 1 violation. See Kentucky Rural Electric Corp. v. Moloney Electric Corp., 282 F.2d 481, 484 (6th Cir. 1960), cert. denied, 365 U.S. 812, 81 S. Ct. 692, 5 L. Ed. 2d 691 (1961) (held § 2(c) violation was defense to plaintiff's claim under other sections of the Robinson-Patman Act); cf. United States v. United States Gypsum Co., 550 F.2d 115 (3d Cir.), cert. granted, 434 U.S. 815, 98 S. Ct. 52, 54 L. Ed. 2d 71. Moreover, the Court notes that it is somewhat disingenuous of Amstar to assert such a defense when the evidence in the record suggests that the terminations were not motivated by a desire to avoid such violations.
CONCLUSION
Defendant's motion for judgment notwithstanding the verdict is denied; decision on plaintiffs' attorneys' fee application is deferred pending appeal.
The Court believes that the interests of justice require that judgment be entered nunc pro tunc as of March 17, 1977, the date of the jury's verdict.
Settle judgment on notice.
NOTES
[1] The jury found Amstar not liable for attempted monopolization under § 2 of the Sherman Act, 15 U.S.C. § 2. In addition, the jury found against Amstar on the special question directed at its defense that the brokerage payments constituted violations of § 2(c) of the Robinson-Patman Act, 15 U.S.C. § 13(c). All other claims and counterclaims were withdrawn.
[2] The Court denied from the bench plaintiffs' oral motions: for judgment notwithstanding the verdict or a new trial on the § 2 claim; for a directed verdict on pre-judgment damages on the § 1 claim and a new trial on the post-judgment damages on the § 1 claim; and for an injunction compelling Amstar to reinstate Fuchs and Prael as general sugar brokers.
[3] Therefore, resale price maintenance was not an issue in this case.
[4] In order to do so, additional direct brokers and sales people were needed. For this purpose, Amstar induced, for example, Kenneth L. Fox and George David Waller, to become direct brokers in the Midwest. In addition, Joseph Gavin, formerly a Fuchs vice president, joined Amstar after Fuchs was terminated in April of 1974 and thereafter called on customers previously serviced by Fuchs.
[5] In 1972, Amstar attempted to alter these incentives by offering the general brokers a Bonus Incentive Plan under which those brokers who effected sales at list price received an additional 3 cents/cwt commission, while those who sold at off-list received the usual commission of 9½ cents/cwt.
[6] In practice, however, general brokers did develop loyalties, whether based on friendships with employees at a particular refinery, or on practicalities such as the desirability of offering or being in a position to offer the products of a dominant and diversified refiner such as Amstar.
[7] Private label brands are owned by the sugar purchaser, such as a chain store, rather than by the refiner. An example of a private label brand is Ann Page, owned by A & P.
[8] The Court notes that anti-competitive impact is judged in terms of a relevant market, not in terms of the adverse effects, if any, on the terminated brokers. See Burdett Sound, Inc. v. Altec Corp., 515 F.2d 1245, 1248 (5th Cir. 1975); Bushie v. Stenocord Corp., 460 F.2d 116, 119-20 (9th Cir. 1972).
[9] See also United States v. Arnold, Schwinn & Co., 388 U.S. 365, 378, 87 S. Ct. 1856, 18 L. Ed. 2d 1249 (1967), overruled in part on other grounds, Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S. Ct. 2549, 53 L. Ed. 2d 568 (1977).
[10] Although whether the general brokers were "agents" is an issue with respect to the Robinson-Patman defense and is an implicit issue with respect to whether Amstar's attempts to control them was illegal under § 1 of the Sherman Act, it is not an issue with respect to whether or not they were capable of combining or conspiring. In other words, Amstar does not contend, and rightly, that the general brokers lacked sufficient independence such that any conspiracy with them would have been intra-corporate. See Tamaron Distributing Corp. v. Weiner, supra, 418 F.2d at 139.
[11] Bowen relied on the often quoted language from Schwinn:
[A manufacturer] may "franchise" certain dealers to whom, alone, he will sell his goods. Cf. United States v. Colgate & Co., 250 U.S. 300, 39 S. Ct. 465, 63 L. Ed. 992 (1919). If the restraint stops at that point if nothing more is involved than vertical "confinement" of the manufacturer's own sales of the merchandise to selected dealers, and if competitive products are readily available to others, the restriction, on these facts alone, would not violate the Sherman Act.
United States v. Arnold, Schwinn & Co., 388 U.S. 365, 376, 87 S. Ct. 1856, 18 L. Ed. 2d 1249 (1967), overruled in part on other grounds, Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S. Ct. 2549, 53 L. Ed. 2d 568 (1977) (emphasis added).
[12] Amstar has contended that this is not a refusal to deal case at all, as it has never refused to sell sugar to plaintiffs but has merely refused to compensate them for arranging sales of Amstar's sugar. It would seem that a refusal to deal must be a function of the capacity in which the parties dealt prior to the termination. Therefore, inasmuch as Amstar had never dealt with plaintiffs as sugar purchasers, it is not significant that Amstar has never refused to sell sugar to plaintiffs.
[13] In connection with refusals to deal the courts have found to be "arrangements restraining trade" such practices as refusals to deal to eliminate price-cutting dealers, United States v. Parke, Davis & Co., [362 U.S. 29, [80 S. Ct. 503, 4 L. Ed. 2d 505] (1960)]; Klor's v. Broadway-Hale Stores, 359 U.S. 207, 79 S. Ct. 705, 3 L. Ed. 2d 741 (1958); to keep new competition out of a market, Radiant Burners, Inc. v. Peoples Gas, Light & Coke Co., 364 U.S. 656, 81 S. Ct. 365, 5 L. Ed. 2d 358 (1961); to enforce a tying arrangement, Lessig v. Tidewater Oil Co., 327 F.2d 459 (9th Cir. 1964); to create a monopoly in a product market, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962), or to further strengthen an already dominant market position. Eastman Kodak v. Southern Photo Materials Co., 273 U.S. 359, 47 S. Ct. 400, 71 L. Ed. 684 (1927).
Bushie v. Stenocord Corp., 460 F.2d 116, 119 (9th Cir. 1972).
[14] E. g., Burdett Sound, Inc. v. Altec Corp., supra, 515 F.2d at 1248 (agreement, but no anti-competitive intent or effect); Bushie v. Stenocord Corp., supra, 460 F.2d at 120 (proof of and concession of agreement, but lack of anti-competitive purpose); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 78 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S. Ct. 752, 24 L. Ed. 2d 755 (1970) (went off not on lack of agreement but on lack of any evidence of anti-competitive motive for terminating and lack of proof of anti-competitive practices); Ace Beer Distributors, Inc. v. Kohn, Inc., 318 F.2d 283 (6th Cir.), cert. denied, 375 U.S. 922, 84 S. Ct. 267, 11 L. Ed. 2d 166 (1963) (went off on lack of anti-competitive motive or effect, not on lack of conspiracy).
Amstar compares its offering some of the terminated general brokers positions as direct brokers to the situation in Bowen, supra, where the Second Circuit upheld a newspaper publisher's offering a franchise to some but not all of the independent carriers it was terminating. Amstar's reliance on Bowen is misplaced, however, inasmuch as Bowen did not go off on the absence of combination or conspiracy, but on the absence of an anti-competitive purpose and effect. Id. at 1252-53, 1254. The Court reasoned that when the defendant substituted exclusive franchisees for independent carriers who had previously sold not only defendant's newspapers but those of its competitors the substitution was not motivated by and would not have the effect of eliminating competition from other newspapers inasmuch as it was contemplated that the franchisees would sell, rather than abandon, their independent routes. Id. at 1254. The instant case is directly to the contrary: the very purpose of inviting general brokers to become direct brokers was to prevent them from representing competing refiners.
Amstar's reliance on Oreck Corp. v. Whirlpool Corp., 563 F.2d 54, 58 (2d Cir. 1977), is entirely misplaced as the narrow holding of that case that it was plain error to have in effect charged a per se rule in instructing the jury that the facts, if found to be true, would constitute a violation has no application to this case.
[15] In connection with Amstar's Robinson-Patman defense, the jury was charged in pertinent part as follows:
This provision of the Robinson-Patman Act prohibits compensation by a seller to an agent, representative or other intermediary, if that agent is in fact acting on behalf of the purchaser.
Now, merely because that agent provides incidental or supplementary services for the purchaser, such as tracking orders, placing orders, providing sales information and the like, does not mean that the agent is acting on behalf of the purchaser. So, if that is all that you find these plaintiffs did for purchasers, then it was legal for the seller, defendant, Amstar to pay them brokerage. However, if you find, by a preponderance of the evidence, that either or both plaintiffs in this case were acting primarily for the benefit of purchasers in attempting to reduce the price of sugar, rather than primarily for their own benefit in securing commissions, or primarily for the benefit of Amstar in securing the sale of Amstar's sugar, then you must find that that plaintiff or both plaintiffs in this action have violated the Robinson-Patman Act. Amstar objected to the insertion of the words "rather than primarily for their own benefit in securing commissions."
[16] Amstar urged that whether plaintiffs were in fact acting on behalf of customers was a question of law which must be resolved in its favor on the basis of certain inferences that could be drawn from Stipulations of Fact 18, 22, 35, 36, 37, and 39. Suffice it to say that these stipulations are susceptible of more than one inference and therefore the question was properly left to the jury.
Amstar also cited portions of the Federal Trade Commission's Trade Practice Rules for the Fresh Fruit and Vegetable Industry, 16 C.F.R. §§ 74 et seq., as indicative of how the issue must be resolved. Even assuming that rules formulated on the basis of practices within the fruit and vegetable industry would have application to the sugar industry where practices, such as brokerage always being paid by the refiner, may be different, these rules merely set forth guidelines, not determinants. The rules themselves emphasize that
[i]n determining whether a broker acts for a buyer or a seller, each transaction must be considered on its own facts. A rule of general applicability can be helpful only in clarifying the pertinent legal principles and affording guidance to industry members in the application of these principles to particular situations. 16 C.F.R. § 74.2(c)(1)(ii)(c) Example No. 2.
[17] The jury was asked:
Do you find by a preponderance of the evidence that either plaintiff Fuchs Sugars & Syrups or plaintiff Francis J. Prael, doing business as Lewis & Company, or both, acted primarily for the benefit of purchasers in attempting to reduce the price of sugar rather than primarily for their own benefit in securing commissions, or primarily for the benefit of Amstar in securing the sale of Amstar sugar?
The answer was negative as to both Fuchs and Prael.
[18] The jury was entitled to take into account that Amstar knew that the marketing system it used (simultaneous representation of multiple refiners and compensation based on volume of sugar sold) was structured in accordance with the general broker's self-interest. Therefore, Amstar knew that the system dictated that the broker would be inherently adverse to the refiner and would have no inherent incentive to owe allegiance to any particular refiner. Based on this the jury could have found that the plaintiff general brokers were not merely agents of the multiple refiners they served, but were in fact intermediaries pursuing their own interest to the benefit of buyers and sellers and to the detriment of neither. See In re Food Fair Stores, Inc., 83 F.T.C. 1213, 1227 (1973) (decision of administrative law judge), modified [1973-1976] Trade Reg.Rep. (CCH) ¶ 20,519 (F.T.C.1974) (affirmed administrative law judge finding based on admission of complaint counsel that evidence complaint counsel intended to offer would not support finding that broker was acting for buyer). Moreover, there was other evidence to support a finding that plaintiffs did not favor the purchaser's interest over the seller's interest. For example, one of Amstar's own witnesses, Martin William Goldberg, Director of Grocery Purchasing for Wakefern Food Corporation, testified in answer to written interrogatories that "In our judgment, no sugar brokers acted specifically in our interests at any time."
[19] Amstar contends that the charge and special jury question on this point purportedly made plaintiffs' motive relevant and that this was error inasmuch as there is nothing in the language or history of § 2(c) to suggest that motive is a factor. The Court is of the opinion, however, that when it in effect asked the jury to distinguish between a buyer's agent, seller's agent or intermediary it was merely instructing the jury to look at the totality of the circumstances and base its finding with respect to plaintiffs' function and status on the realities of the situation.
[20] In re Food Fair Stores, Inc., supra at 1225-28; Tillie Lewis Foods, Inc. v. Flotill Products, Inc., 65 F.T.C. 1099, 1111, 1114 (1963), aff'd, 65 F.T.C. 1131 (1964).
[21] See FTC v. Herzog, 150 F.2d 450, 451 (2d Cir. 1945); Biddle Purchasing Co. v. FTC, 96 F.2d 687, 691 (2d Cir.), cert. denied, 305 U.S. 634, 59 S. Ct. 101, 83 L. Ed. 407 (1938).
[22] In Great Atlantic & Pacific Tea Co., supra, the brokers were agents of the buyer, rendered no services to the seller, and the unearned commissions paid them by the seller were passed on to the buyer as a "quantity discount." In Quality Bakers of America, supra, the seller paid brokerage to a corporation owned by and acting for the buyer. This buyer's agent did not actually render service to the seller and most of the unearned commissions were indirectly passed on to the buyer. In Biddle Purchasing Co. v. FTC, 96 F.2d 687 (2d Cir.) cert. denied, 305 U.S. 634, 59 S. Ct. 101, 83 L. Ed. 407 (1938), which did not resolve the legality of one party's compensating an intermediary broker, the seller paid a broker under the buyer's control and acting as the buyer's agent, knowing that the commissions would be paid over to the buyer, thus giving the buyer a discount. In FTC v. Herzog, 150 F.2d 450 (2d Cir. 1945), which again left open the question of the legality of compensating an intermediary, the brokers admitted in their answer that they acted as agents for fur garment retailers (buyers), they placed orders with manufacturers "at `the most advantageous price from the standpoint of the buyer,' [and] . . . other competitive retailers . . . `under[went] buying expense by maintaining buying offices, retain[ing] the services of . . . "fee" buyers, or send[ing] representatives to New York City to make fur garment purchases.' This result[ed] in a price discrimination in favor of the retailers who [did] business with the [brokers] . . .." Id. at 452. FTC v. Henry Broch & Co., supra, likewise involved what the Court found to be an allowance in lieu of brokerage.
[23] Although Rangen, supra, denominated the malefactor (Grimes) in that case as "other intermediary," it was for lack of a better description, since Grimes did not fit precisely into the category of "agent" or "representative." It is clear on the facts that Grimes was not an intermediary in the true sense of the word. See 351 F.2d at 862.
[24] The Fitch court observed that the "`acting in fact for or in behalf, or . . . subject to the direct or indirect control'" language in § 2(c) modifies only intermediaries, not representatives or agents of buyers.
"The qualifying words were used for the purpose of excluding from the act legitimate brokerage, which is is [sic] no wise [sic] condemned by the act. Since a broker would be an `intermediary', legitimate brokerage would be included and made illegal unless such qualifying words were used. The act catches such intermediaries as are acting for the buyer or under the buyer's control, without being an agent or representative in the legal sense of the word."
136 F.2d at 15, quoting the opinion below, 37 F. Supp. 728, 734 (W.D.Ky.1941) (emphasis added). The implication of this passage is that not all intermediaries act for or are under the control of buyers; therefore, compensation of an intermediary is not per se a violation.
[25] See notes 17 and 18, supra, and accompanying text.
[26] See Food Fair Stores, Inc., supra; Tillie Lewis Foods, Inc. v. Flotill Products, Inc., supra, 65 F.T.C. at 1111, 1114; id. at 1149-50 (Elman, Comm'r, concurring); cf. In re Hruby, 61 F.T.C. 1445 (1962). See also In re Borman Food Stores, Inc., 81 F.T.C. 201, 203 (1972) (Elman, Comm'r, dissenting from issuing complaint) (Food Fair case). See generally Note, Beleaguered Brokers: The Evisceration of Section 2(c) of the Robinson-Patman Act, 77 Harv. L.Rev. 1308 (1964). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2757415/ | Electronically Filed
Supreme Court
SCWC-13-0000306
03-DEC-2014
01:49 PM
SCWC-11-0001081, SCWC-13-0000306, and SCWC-13-0001307
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
GMAC MORTGAGE, LCC, a Delaware Limited Liability Company,
Respondent/Plaintiff-Appellee,
vs.
JOYCELYN WANDA UNCIANO, Petitioner/Defendant-Appellant,
and
WAYNE NOELANI TOM, et al., Defendants.
(SCWC-11-0001081; CAAP-11-0001081; CIV. NO. 03-1-1029)
-----------------------------------------------------------------
GMAC MORTGAGE, LLC, a Delaware Limited Liability Company,
Respondent/Plaintiff-Appellee,
vs.
JOYCELYN WANDA UNCIANO, Petitioner/Defendant-Appellant,
and
WAYNE NOELANI TOM, et al., Defendants.
(SCWC-13-0000306; CAAP-13-0000306; CIV. NO. 03-1-1029)
-----------------------------------------------------------------
JOYCELYN W. UNCIANO, Petitioner/Petitioner-Appellant,
vs.
GMAC MORTGAGE, LLC, Respondent/Respondent-Appellee.
(SCWC-13-0001307; CAAP-13-0001307; APPLICATION NO. 1069;
CASE NO. 11-1069)
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner Jocelyn W. Unciano’s Application for Writ of
Certiorari, filed on October 27, 2014, is hereby rejected.
DATED: Honolulu, Hawai#i, December 3, 2014.
Jocelyn W. Unciano, /s/ Mark E. Recktenwald
petitioner pro se
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
2 | 01-03-2023 | 12-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1988848/ | 266 N.W.2d 15 (1978)
STATE of Iowa, Appellee,
v.
Robert CORNELL, Appellant.
No. 60630.
Supreme Court of Iowa.
May 17, 1978.
*16 Scalise, Scism, Gentry, Brick & Brick, and Keith E. Uhl, Des Moines, and Brown & Ramsey, Osceola, for appellant.
Richard C. Turner, Atty. Gen., Lona Hansen, Asst. Atty. Gen., and Richard J. Murphy, County Atty., for appellee.
Considered en banc.
REES, Justice.
Defendant Robert Allen Cornell was charged by county attorney's information on September 14, 1976 with the crime of murder in violation of §§ 690.1 and 690.2, The Code, 1975. Upon the entry of his plea of not guilty, he was tried to a jury, convicted, sentenced and now appeals. We affirm.
The charge in this case arose from the alleged murder of one Kenneth Crow by defendant during a motor trip from Texas to Des Moines. A half-brother of defendant, Glenn Albert Oliver, aged 14, had accompanied the two men on the trip, and *17 was the key witness for the State. Prior to the commencement of the trial, the State filed a motion in limine to exclude all evidence respecting Oliver's residence in a juvenile home or facility, on the basis that such fact was immaterial to any issue in the case, and would be an attempt to improperly impeach the witness Oliver. The court sustained the motion conditionally, reciting in its order, "unless for some reason not now apparent to the court it should appear that the residence of the witness, Glenn Albert Oliver, in a juvenile home or facility might be material to some investigation of the incident in question".
Oliver testified as a witness for the State that the defendant Cornell, Kenneth Crow and he were traveling from Texas to Des Moines on August 30, 1976 in a jeep, the property of defendant. They were pulling a trailer loaded with defendant's personal effects, and Crow and the defendant engaged in some argument about the trailer. Oliver testified Cornell told him he was going to have to get rid of Crow.
Oliver further testified the defendant decided to stop along the highway for the stated purpose of butchering a cow, and that Crow and the defendant got out of the jeep and walked into a wooded area along Interstate Highway # 35. Oliver testified he heard a shot and the defendant returned to the jeep by himself. These circumstances were reported to the police by Oliver some days later, which led to the eventual discovery of Crow's body in the woods.
Defendant's counsel attempted to impeach Oliver's testimony by showing prior inconsistent statements he had made to Officer Robert Pontious, and an investigator defendant's counsel had retained, one John Dolan. The testimony which the defendant's counsel sought to elicit from Pontious and Dolan involved statements allegedly made to them by Oliver, concerning how much Crow and the defendant had been drinking, when their arguments took place, who removed the gun from the jeep, when Oliver slept on the trip, the purchase of drugs in Texas, the clothing which defendant was wearing, and whose idea it was to shoot and butcher the cow. On re-direct examination of Pontious, an agent for the Bureau of Criminal Investigation, some days later, which led to the eventual discovery of Crow's body in the woods.
Defendant's counsel attempted to impeach Oliver's testimony by showing prior inconsistent statements he had made to Officer Robert Pontious, and an investigator defendant's counsel had retained, one John Dolan. The testimony which the defendant's counsel sought to elicit from Pontious and Dolan involved statements allegedly made to them by Oliver, concerning how much Crow and the defendant had been drinking, when their arguments took place, who removed the gun from the jeep, when Oliver slept on the trip, the purchase of drugs in Texas, the clothing which defendant was wearing, and whose idea it was to shoot and butcher the cow. On re-direct examination of Pontious, an agent for the Bureau of Criminal Investigation, Pontious was asked by the prosecutor if he recalled when Oliver said it was Crow's idea to shoot the cow and what was said about where this statement was made. This line of testimony was objected to by defendant's counsel as calling for hearsay and for an answer made by a witness who was not under oath in violation of defendant's Sixth Amendment right to be confronted by witnesses against him. The court overruled defendant's objection and permitted Pontious to answer. Pontious' answer was that Oliver told him the statements were made in Texas. A motion to strike the answer was overruled by the court.
The witness John Dolan, a private investigator hired by defendant's counsel, testified as to his interview with Oliver concerning certain statements Oliver had made which were both consistent and inconsistent with Oliver's direct testimony.
The jury was instructed and retired to deliberate on its verdict at 1:00 o'clock, p. m. on December 14, 1976, at the close of all the evidence and after defendant's motion for a directed verdict had been overruled. After the jury had been in actual deliberation for fifteen hours, at 3:45 p. m. on December 16, 1976, and had not reached a verdict, the defendant requested the court to declare a mistrial on the basis that the jury was unable to reach a verdict. The State countered by resisting the motion for a mistrial and requesting that the court give to the jury the Allen charge, or verdict-urging instruction.
The following morning, at 9:00 o'clock, a. m., December 17, 1976, the court advised counsel it intended to question the jury as to its numerical standing and then give to the jury the Allen charge or verdict-urging instruction which appears in the record of this case as instruction No. 28. Defendant's counsel objected to the court's making the inquiry as to the numerical division of the jury and also to the giving of the Allen charge on the ground that either course of conduct on the part of the court would *18 coerce the jury into reaching a decision and deny defendant's right to a fair trial and due process under the Fourteenth Amendment. Both objections were overruled.
At 9:30 o'clock, a. m., on December 17, 1976, the jurors were called into the courtroom and were asked by the court to disclose the jury's numerical standing, but not to mention which of the three offenses (first degree murder, second degree murder, manslaughter) the jurors were considering, or how many jurors favored conviction or acquittal. The foreman of the jury responded that the numerical division of the jury stood at seven-five, and the court then asked how long the jury had stood at that numerical division. The foreman responded the seven-five standing had prevailed since the preceding morning. Thereupon, the court read instruction No. 28 to the jury, said instruction being as follows:
"Ladies and gentlemen of the jury:
"The Court gives you the following additional instruction:
"You have now been deliberating upon this case for a considerable period of time, and the Court deems it proper to advise you further in regard to the desirability of agreement if possible.
"The case has been exhaustively and carefully tried by both sides, and has been submitted to you for decision and verdict, if possible, not for disagreement. It is the law that a unanimous verdict is required, and while this verdict must be the conclusion of each juror and not a mere acquiescence of the jurors in order to reach an agreement, it is still necessary for all of the jurors to examine the issues and questions submitted to them with candor and fairness and with a proper regard for, and deference to, the opinion of each other. A proper regard for the judgment of others will greatly aid us in forming our own judgment.
"This case must be decided by some jury selected in the same manner this jury was selected, and there is no reason to think a jury better qualified would ever be chosen. Each juror should listen to the arguments of other jurors with a disposition to be convinced by them; and if the members of the jury differ in their views of the evidence, such difference of opinion should cause them all to scrutinize the evidence more closely and to reexamine the grounds of their opinion. Your duty is to decide the issues of fact which have been submitted to you, if you can conscientiously do so. In conferring you should lay aside all mere pride of opinion and should bear in mind that the jury room is no place for espousing and maintaining in a spirit of controversy, either side of a cause. The aim ever to be kept in view is the truth as it appears from the evidence, examined in the light of the instructions of the Court.
"You will again retire to your jury room and examine your differences in a spirit of fairness and candor and try to arrive at a verdict."
Deliberations were resumed by the jury at 9:40 a. m., and about three hours later the defendant renewed his motion for mistrial since the jury had still not reached a verdict. The motion was overruled and renewed at 2:38 p. m., and again overruled. At 3:20 p. m., on December 17, 1976, the jury returned a verdict of guilty of murder in the first degree.
Defendant's motion for a new trial was overruled and defendant was sentenced to life imprisonment at the State Penitentiary. He appeals, stating the following issues for review:
(1) Trial court erred by inquiring into the numerical division of the jury after the jury had been deliberating on its verdict for a considerable period of time.
(2) The trial court erred when, after inquiring into the numerical division of the jury, it gave the jury the so-called Allen charge or verdict-urging instruction.
(3) Trial court erred in permitting the prosecution to question witnesses concerning statements made to them by the witness Glenn Oliver, which were consistent with his testimony over the hearsay objections lodged thereto by defendant's counsel.
*19 (4) Trial court abused its discretion by unduly restricting the cross-examination of the witness, Glenn Oliver, denying the defendant's rights under the confrontation clause of the Sixth Amendment.
I. In his first issue stated for review, defendant asserts it was error for the trial court to inquire into the numerical division of the jury, as such inquiry violated his constitutional right to due process and a fair trial. In the alternative, he suggests that even if there is no constitutional prohibition against such inquiry, reversal is still required because of the coercive effect upon the jury and the inherent potential of prejudice which such an inquiry creates.
The State contends we should review the totality of the circumstances and find there was no coercive effect on the jury since approximately five hours passed from the time the inquiry was made by the court until the jury returned its verdict.
Defendant places particular reliance in support of his contention on Brasfield v. United States, 272 U.S. 448, 47 S. Ct. 135, 71 L. Ed. 345 (1926). See also Jones v. Norvell, 472 F.2d 1185 (6 Cir.), cert. denied 411 U.S. 986, 93 S. Ct. 2275, 36 L. Ed. 2d 964 (1973); United States v. Hayes, 446 F.2d 309 (5 Cir. 1971); Jacobs v. United States, 279 F.2d 826 (8 Cir. 1960).
While Brasfield might be subject to differing interpretations, it appears to us the court's conclusion therein was based on the Supreme Court's administrative power over other federal courts, and that the prohibition enunciated therein on judicial inquiry into the numerical division of a jury does not seem to rest on any constitutional basis. State courts of some jurisdictions have been reluctant to follow the lead of the Supreme Court in Brasfield. Courts of some jurisdictions have held it is proper for a trial court to make inquiry into the numerical division of a jury in order to evaluate the prospects for agreement on a verdict. See e. g., Sharplin v. State, 330 So. 2d 591, 596 (Miss. 1976); Joyner v. State, 484 P.2d 560 (Okl. Cr.1971); Huffaker v. State, 119 Ga.App. 742, 168 S.E.2d 895 (1969).
To indicate the split of authority on this question, we note other courts have followed Brasfield. See State v. Aragon, 89 N.M. 91, 547 P.2d 574 (Ct.App.), cert. denied 89 N.M. 206, 549 P.2d 284 (1976); People v. Wilson, 390 Mich. 689, 213 N.W.2d 193 (1973). Other jurisdictions have followed a third approach, in which the court reviews the totality of the circumstances to determine whether the trial judge committed reversible error by inquiring into the numerical division of the jury. See e. g., Lowe v. People, 175 Colo. 491, 488 P.2d 559 (1971); State v. Nelson, 428 S.W.2d 518, 520 (Mo.1968); People v. Duszkewycz, 27 Ill. 2d 257, 262, 189 N.E.2d 299, 302 (1963). We have employed a similar standard of review in determining the propriety of a trial court's giving a verdict-urging instruction to the jury. See State v. Quitt, 204 N.W.2d 913, 914 (Iowa 1973). We adhere to that standard to determine whether inquiry into the numerical division of the jury was reversible error.
Since approximately five hours elapsed from the time the court made its inquiry into the numerical division of the jury, and gave to the jury the verdict-urging instruction, or Allen charge, to the time the jury reached its verdict, we believe the total circumstances of this case do not indicate the action of the trial court in making its inquiry into the division of the jury was in any manner coercive of a guilty verdict. While we do not wish to be understood as condoning the action of the trial court in this case, as the inquiry into the numerical division of a jury is not necessary to the court's determination as to whether a verdict can be reached by the jury, we do not believe the total circumstances of this case are such that reversal is required.
II. The defendant claims the trial court's action in giving to the jury the verdict-urging instruction after its inquiry into the numerical division of the jury is reversible error per se or in view of the totality of the circumstances of the case.
We have heretofore refused to say that the giving of the Allen charge, or verdict-urging instruction, is error per se. See *20 State v. Quitt, 204 N.W.2d at 913, and citations.
After a review of the totality of the circumstances, as required by Quitt, we hold that since a five-hour period elapsed from the time the verdict-urging instruction was given until the verdict was reached, the instruction was not coercive and the trial court did not err in giving the jury the Allen charge.
III. The defendant asserts the trial court erred in permitting the State to elicit from certain witnesses testimony which showed that the witness, Glenn Oliver, had made out-of-court statements which were consistent with his testimony at the trial.
Defendant had attempted to impeach Oliver's testimony by the use of prior inconsistent statements he had made to Officer Robert Pontious and defense investigator John Dolan. Such impeachment involved questions commented upon hereinabove.
Counsel for the defendant had elicited from Pontious on cross-examination testimony to the effect that Oliver said it was Crow's idea to shoot the cow, which was inconsistent with Oliver's testimony on direct examination that the idea was the defendant's, but on re-direct examination the State asked Pontious with reference to Oliver's out-of-court statement made to Pontious that it was Crow's idea to shoot the cow whether Oliver indicated where and when Crow had made such statement. Defendant's counsel objected to such questions posed to Pontious as hearsay and in violation of the defendant's Sixth Amendment right to confront the witnesses against him. The court overruled defendant's objections and permitted Pontious to answer that Oliver had told him the statements concerning the shooting of the cow had been made in Texas.
Defendant's counsel also questioned witness John Dolan on direct examination about an interview he had had with Glenn Oliver in which Oliver made statements inconsistent with his testimony at the trial. On cross-examination of Dolan by the State, Dolan was asked whether during that interview Oliver had made certain statements which were in effect consistent with his direct testimony at trial. Such question to Dolan was objected to by defendant's counsel, based on a claimed violation of the attorney-client privilege, and as eliciting hearsay testimony in violation of the Sixth Amendment right to confront witnesses. The attorney-client privilege was invoked on the basis that Dolan had been employed as an investigator by defendant's counsel. The court overruled defendant's objections to the question so put to Dolan and permitted the State to inquire into the subjects discussed on the direct examination of Dolan concerning his interview with Oliver. Dolan then testified Oliver told him defendant went over a fence for the purpose of shooting a cow, that the defendant and Crow had discussed purchasing drugs and that the defendant had returned to the jeep alone after Oliver heard a shot.
The defendant contends that the testimony elicited by the State from the witnesses Pontious and Dolan was in the nature of prior consistent statements used to rehabilitate a witness, and as such were inadmissible hearsay.
We have said it is proper to use prior out-of-court statements of a witness inconsistent with his testimony in order to impeach him. Use of prior statements consistent with his testimony may be appropriate to rehabilitate an impeached witness. See State v. Galloway, 187 N.W.2d 725, 728 (Iowa 1971); State v. Cordaro, 214 Iowa 1070, 1076-1077, 241 N.W. 448, 450-451; State v. Bell, 206 Iowa 816, 818, 221 N.W. 521, 522. The latter doctrine renders admissible evidence offered for the purpose of contradicting impeachment evidence, and that evidence is admissible on redirect examination and in rebuttal to show that there was no such inconsistency. State v. Galloway, 187 N.W.2d at 728. It is clear from the record that the questioning by the prosecution of the witnesses re-established the testimony of Oliver since the interrogatories posed to Dolan put the claimed inconsistent statements of Oliver in a context with the entire conversation between Dolan *21 and Oliver which then was obviously consistent with Oliver's testimony at the trial. The questioning of Pontious on re-direct examination explained the apparent inconsistency raised on cross-examination since it disclosed Oliver had related to Pontious the fact that Crow made the statement in Texas concerning the shooting of the cow which did not contradict Oliver's testimony that defendant said he wanted to shoot a cow on the trip back to Iowa.
We find that the trial court committed no reversible error in allowing this testimony to come into the record.
IV. Defendant next contends the trial court abused its discretion by unduly restricting the cross-examination of Glenn Oliver, denying the defendant his rights under the confrontation clause of the Sixth Amendment. Specifically he complains that the trial court should have permitted defendant's counsel to ask Oliver whether he had ever lived in a juvenile home. The questioning in this same area had been limited by the court's ruling on a motion in limine prior to trial, and the court did not permit the defendant to pursue the line of questioning which might have elicited from Oliver the fact of his one-time residence in a juvenile home.
The State contends either that error was not preserved or that the trial court did not abuse its discretion in so holding. The State's contention error was not preserved is based on its claim that it was incumbent upon the defendant to offer proof that Oliver had lived in a juvenile home. We find no merit in the State's contention in this direction, since no offer of proof is necessary to preserve the issue as to whether a trial court has abused its discretion in limiting cross-examination. See State v. Droste, 232 N.W.2d 483, 489-490 (Iowa 1975).
We incline to the view the trial court did not err in refusing to permit defense counsel to pursue a line of questioning which might have brought out the fact that Glenn Oliver had lived in a juvenile home. The scope of cross-examination is a matter within the discretion of the trial court. State v. Sheffey, 250 N.W.2d 51, 55 (Iowa 1977); State v. Carney, 236 N.W.2d 44, 46 (Iowa 1975); State v. Monroe, 236 N.W.2d 24, 29 (Iowa 1975).
Our review of the record convinces us the trial court acted well within the latitude of its permissible discretion in limiting the cross-examination of the witness Oliver as to whether he had ever been in a juvenile home. We also conclude there was no violation of the confrontation clause of the Sixth Amendment.
As we find no reversible error, this case is affirmed.
AFFIRMED.
All Justices concur, except McCORMICK and MASON, JJ., who concur specially.
RAWLINGS, J., dissents.
REYNOLDSON, J., takes no part.
McCORMICK, Justice (concurring specially).
I agree with the dissent that the trial court erred in making inquiry into the numerical standing of the jury and in giving the Allen instruction, but I concur in the result reached by the majority because I do not believe, under the entire record, this constitutes reversible error in the present case.
MASON, J., joins this special concurrence.
RAWLINGS, Justice (dissenting).
Being unable to agree with the reasoning or result reached in Divisions I and II of the majority opinion, I respectfully dissent.
Trial court's post-submission interrogation of the jury and giving of the so-called Allen charge, all over repeated timely objections, constituted prejudicial error, regardless of time, sequence, or circumstances.
I. At the outset, this statement in Brasfield v. United States, 272 U.S. 448, 450, 47 S. Ct. 135, 135-136, 71 L. Ed. 345 (1926), manifest a constitutionally based condemnation of any post-submission interrogation as to numerical standing of the jury:
*22 "We deem it essential to the fair and impartial conduct of the trial that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned." (emphasis added).
Further in this vein, one basic precept of the Fifth Amendment is that due process requires an accused be accorded a fair trial. Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 1693, 48 L. Ed. 2d 126 (1976). And judicial conduct which tends to coerce "minority view" jurors into acquiescence effectively prevents a fair trial by depriving an accused his Sixth Amendment right to an impartial jury. Cf. Jenkins v. United States, 380 U.S. 445, 446, 85 S. Ct. 1059, 1060, 13 L. Ed. 2d 957 (1965). Brasfield's characterization of post-submission interrogation was inherently coercive and its attendant reference to fair trial, suffices to place its rationale within constitutional parameters. See Jones v. Norvell, 472 F.2d 1185, 1186 (6th Cir. 1973); People v. Sellars, 76 Cal. App. 3d 265, 271 n. 4, 141 Cal. Rptr. 294, 297 (1977); Smoot v. State, 31 Md.App. 138, 355 A.2d 495, 502-503 (1976), citing Taylor v. State, 17 Md.App. 41, 299 A.2d 841, 845 & n. 8 (1973); State v. Aragon, 89 N.M. 91, 547 P.2d 574, 580 (Ct.App.), cert. denied, 89 N.M. 206, 549 P.2d 284 (1976). This conclusion is bolstered by the Supreme Court's reversal in Brasfield notwithstanding absence of timely exception at trial. 272 U.S. at 450, 47 S.Ct. at 136.
But even if Brasfield be deemed not binding upon us as a state court it still remains an accused's fair trial right dictates we adopt its teaching. See, e. g., People v. Wilson, 390 Mich. 689, 213 N.W.2d 193, 195 (1973); Kersey v. State, 525 S.W.2d 139, 141 (Tenn.1975); Annot., 77 A.L.R. 3d 769, 777-780.
Furthermore, this court cited Brasfield with approval in State v. Robinette, 216 N.W.2d 317, 318 (Iowa 1974), wherein error had not been preserved.
In brief, I find no reason to abandon that stance by purporting to examine circumstances which, as Brasfield aptly notes, cannot be reviewed properly by the courts.
II. Noticeably, the foregoing initial error was only compounded by trial court's subsequent Allen charge. Sellars, 76 Cal. App.3d at 271 n. 4, 141 Cal. Rptr. at 297; Kersey, 525 S.W.2d at 141. In support of my disagreement with the majority's Allen charge approval, see the dissent in State v. Kelley, 161 N.W.2d 123, 127-128 (Iowa 1968). See also United States v. Jacobs, 547 F.2d 772, 776 (2d Cir. 1976); United States v. Fioravanti, 412 F.2d 407, 419-420 (3d Cir.), cert. denied, 396 U.S. 837, 90 S. Ct. 97, 24 L. Ed. 2d 88 (1969); Redeford v. State, 572 P.2d 219, 220-221 (Nev.1977).
I would reverse and remand for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620654/ | 447 F. Supp. 1240 (1978)
Janet W. HERITAGE, Plaintiff,
v.
BOARD OF EDUCATION, DeLaWARR SCHOOL DISTRICT, and Delaware State Education Association, Inc., Defendants.
Civ. A. No. 76-385.
United States District Court, D. Delaware.
March 9, 1978.
*1241 Eugene J. Maurer, Jr., Wilmington, Del., for plaintiff.
Thomas S. Lodge of Connolly, Bove & Lodge, Wilmington, Del., for defendant Bd. of Ed., DeLaWarr School Dist.
Sheldon N. Sandler of Bader, Dorsey & Kreshtool, Wilmington, Del., for defendant Del. State Ed. Ass'n, Inc.
OPINION
MURRAY M. SCHWARTZ, District Judge.
Plaintiff, a former teacher, has sued the Delaware State Education Association, Inc. ("DSEA") and the Board of Education of the DeLaWarr School District for damages and reinstatement, alleging that she was discharged without being afforded certain procedural rights. Defendant DSEA has moved to dismiss the complaint on the grounds, inter alia, that the applicable statute of limitations has run.[1]
The dates on which the relevant occurrences in this case transpired are not in dispute. In April 1974, plaintiff was notified that her contract would not be renewed for the 1974-75 school year. Plaintiff requested a hearing before defendant school board and a hearing was held on May 16, 1974. Although plaintiff was not present, the hearing proceeded, allegedly because a representative of defendant DSEA informed the school board that he was acting as plaintiff's representative and that her presence at the hearing was not required. The Complaint in this action was filed on November 10, 1976. Thus the Complaint was timely filed if a three year or longer statute of limitations governs, but was dilatory and must be dismissed if a two year or shorter limitations period is in effect.
The issue before the Court is which statute of limitations governs. The primary[2] legal theory advanced by plaintiff is that defendant DSEA breached its duty of fair representation.[3] The parties are agreed and the Court concludes that because no express statute of limitations has been provided federally for this type of action, the most appropriate state statute of limitations must be applied. See Auto Workers v. Hoosier Corp., 383 U.S. 696, 86 S. Ct. 1107, 16 L. Ed. 2d 192 (1966); Read v. *1242 Local Lodge 1284, 528 F.2d 823, 825 n. 1 (3d Cir. 1975); Howell v. Cataldi, 464 F.2d 272, 277 (3d Cir. 1972).
Plaintiff avers that the claim is governed by the three year statute of limitations in 10 Del.C. § 8106[4] because breach of duty of fair representation is an action based on a statute. Plaintiff also states that section 8106 controls because the action is based on an implied promise that DSEA made to its members. Defendant relies on 10 Del.C. § 8119.[5] That section, which supersedes section 8106 in cases in which both could be deemed applicable,[6] prescribes a two year statute of limitations for recovery of damages for "alleged personal injuries." Thus the question that must be resolved is whether an action for reinstatement and damages for a termination allegedly involving a breach of a duty of fair representation constitutes an action for personal injuries within the purview of section 8119 or, if not, an action upon a statute or promise under section 8106.
The starting point for analysis is Read v. Local Lodge 1284, supra. In that case, plaintiff railroad employee sued his union, alleging that the union breached its duty of fair representation by arbitrarily rejecting plaintiff's grievance, and that this breach caused plaintiff's ensuing back injuries. The Third Circuit affirmed the decision of the Delaware district court that the two year statute of limitations applicable to personal injuries governed the case.[7] The circuit court first concluded that under Patterson v. Vincent, 5 Del.Super. 442, 5 Terry 442, 61 A.2d 416 (1948), a court interpreting the Delaware limitations scheme must focus on the particular injury suffered, rather than on the nature of the cause of action.[8] This focus on the particular injury led the circuit court to conclude that because the case involved "a suit for damages based on a claim for personal injuries," 528 F.2d at 825, the two year statute of limitations pertinent to alleged personal injuries applied.
The Third Circuit stressed in Read that the damages sought were those generally recoverable in a personal injury action, noting particularly the physical and mental pain suffered and the resultant termination of employment. 528 F.2d at 825-26. Plaintiff's mental pain and lost salary were caused by his physical infirmity. This prominent consideration of physical injury distinguishes Read from the instant case, in which no physical injury was suffered.
Thus the most relevant cases to the instant action are those in which it was alleged that the personal injury statute of limitations applied, the focus was upon the particular injury suffered, and no physical injury was discerned. One such case is McNeill v. Tarumianz, 138 F. Supp. 713 (D.Del.1956), a libel action. Reasoning that *1243 the concept of a personal injury includes injuries to the reputation, the district court held that libel was a personal injury within the meaning of the statute.
McNeill contrasts with Hood v. McConemy, 53 F.R.D. 435 (D.Del.1971), a legal malpractice action. The district court in Hood rejected the concept that legal malpractice necessarily must be labelled a personal injury for statute of limitations purposes. "[T]he personal injuries are relevant only to the merits of the Hoods' initial claim. Their [legal malpractice] claim against McConemy relates to damages he may have committed to their [medical] malpractice action, personal property." 53 F.R.D. at 443 n. 13. Accordingly, Hood decided that labelling legal malpractice as either a tort action or a contract action was unhelpful, and that the two year personal injury statute of limitations was inapplicable.
Because the present case fits closely within the reasoning of Hood, and in the absence of a definitive pronouncement from the Delaware state courts, the Court concludes that the action is not a personal injury action as contemplated by 10 Del.C. § 8119. The personal injuries in the instant case are relevant only to the allegedly improper termination of the employment relationship. The breach of duty of fair representation claim relates to damage allegedly inflicted upon the improper termination action, personal property.[9] This analysis distinguishes the present case from McNeill, supra, because in that situation the personal injury resulted directly from the allegedly libellous conduct.
This conclusion comports with that reached within this District in Marshall v. Electric Hose & Rubber Co., 68 F.R.D. 287 (D.Del.1975).[10]Marshall was a non-physical injury case involving a breach of a duty of fair representation claim. The unfair representation claim was predicated upon the alleged failure of a union to represent some of its members because of their race.[11] Apparently rejecting use of 10 Del.C. § 8119, the district court stated that the three year statute of limitations in 10 Del.C. § 8106 applied, whether the action arose "from the union-member relationship or from a breach of a statutorily imposed duty." 68 F.R.D. at 294.
Having decided that the two year statute of limitations of 10 Del.C. § 8119 is inapplicable, the determination of the appropriate statute of limitations must be made. Plaintiff urges use of 10 Del.C. § 8106 because this case is an action based upon a statute and upon a promise. Defendant, referring first to plaintiff's state claim under 14 Del.C. § 1413, see n. 2 p. 2, supra, avers that the phrase "based on a statute" in 10 Del.C. § 8106 must be narrowly construed and is not applicable to this case.[12] Construing Butler v. Butler, 222 A.2d 269 (Del.1966), defendant claims the phrase refers specifically to statutes creating a right to sue for the recovery of money or property. Defendant later broadens this argument by indicating that the claim of *1244 breach of duty of fair representation does not fit within section 8106 because that entire section is limited to "a collection of causes of action expressly authorizing the recovery of money or property."[13]
In the context of this case, several responses to the argument may be advanced. First, Marshall held, 68 F.R.D. at 294, and Read implied, 528 F.2d at 825-26, that a claim for breach of duty of fair representation that does not fall within the purview of 10 Del.C. § 8119 must be governed by the three year limitations period in 10 Del.C. § 8106. Second, Butler resolved that because the language "based on a statute" failed to apply to that case, no statute of limitations could be raised as a defense to an action for divorce. 222 A.2d at 272. If no statute of limitations were to govern the present action, defendant's motion on the ground of expiration would have to be denied. Third, given that section 8119 does not apply, defendant does not propose a statutory limitations provision more applicable to this action than section 8106. Fourth, the overall intent of section 8106 was to encompass this action. This determination is based upon the cumulative effect of the language "based on a promise," "based on a statute," and "caused by an injury unaccompanied with force," that appears within section 8106.
It is held the three year statute of limitations in 10 Del.C. § 8106 governs this action. Accordingly, defendant's motion to dismiss the complaint will be denied.
NOTES
[1] Defendant DSEA propounded three other grounds in support of its motion to dismiss: (1) failure to allege in the complaint that internal union remedies were exhausted; (2) failure to allege in the complaint a breach of a duty of fair representation by defendant union DSEA; and (3) lack of jurisdiction due to failure to allege facts sufficient to prove that defendant DSEA acted under color of state law. Grounds one and two, respectively, are no longer in dispute because plaintiff has amended her complaint to rectify the alleged pleading deficiencies. With respect to ground three, plaintiff claims jurisdiction over defendant union DSEA based upon diversity, 28 U.S.C. § 1332, so that proof that DSEA acted under color of state law is unnecessary.
[2] Plaintiff secondarily asserts a violation of state law, on the grounds that 14 Del.C. § 1413 delineates rights which plaintiff sought and was entitled to as a matter of state law. In so far as this statute is relevant to defendant union DSEA, a matter not now decided, the statute of limitations analysis set forth in this opinion governs the section 1413 claim because the Delaware limitations scheme is based on the particular injury suffered, not on the type of action instituted. See text accompanying n. 8 p. 5 infra.
[3] Breach of duty of fair representation is a judicially defined doctrine initially established in the context of racial discrimination. See Read v. Local Lodge 1284, 383 F. Supp. 776, 778 (D.Del.1974), aff'd, 528 F.2d 823 (3d Cir. 1975). Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967), extensively discusses the doctrine in the context of the grievance process.
[4] 10 Del.C. § 8106 states:
"No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action; subject, however, to the provisions of §§ 8108-8110, 8119 and 8127 of this title."
[5] 10 Del.C. § 8119 provides:
"No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained; subject, however, to the provisions of § 8127 of this title."
[6] 10 Del.C. § 8106; Read, supra, 528 F.2d at 825.
[7] At the time of Read, the statute of limitations for alleged personal injuries was 10 Del.C. § 8118. The same statutory provision was made 10 Del.C. § 8119 as part of a 1974 renumbering of the statutory scheme. 10 Del. C.Rev.1974, § 8119.
[8] This requirement of focus on the particular injury distinguishes the instant case from cases arising in other jurisdictions that were cited by defendant. See Doc. 10, at 6.
[9] Defendant argues that in Delaware an action based on injury to personal property is subject to a two year statute of limitations, citing Hanby v. Cross, 364 A.2d 834 (Del.Super.1976). Doc. 7, at 7. In Hanby, the relevant statute with respect to personal property was 10 Del.C. § 8107. But Hood v. McConemy, supra, makes clear that section 8107 applies only to injuries accompanied by force. 53 F.R.D. at 444. Thus although Hanby involved injury to personal property as a result of an automobile accident, the present case contains no such act of force and section 8107 cannot apply.
[10] The conclusion here reached also dovetails with that expressed sub silentio by Judge Garth in his dissenting opinion in Read, supra, on an issue not reached by the majority in that case. Although Read contained actual physical injury to plaintiff and the majority focused upon this infirmity, Judge Garth indicated that the claim of breach of duty of fair representation could encompass damages not related to the personal injury and that such damages would not be subject to the two year limitation of 10 Del.C. § 8119. The types of damages identified by Judge Garth were attorney's fees incurred in obtaining the right allegedly breached and punitive damages. See 528 F.2d at 826-28 (dissenting opinion).
[11] The precise facts of Marshall appear in an earlier opinion in the case, located at 65 F.R.D. 599 (D.Del.1974).
[12] Doc. 10, at 2.
[13] Doc. 10, at 4-5. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620655/ | 13 So. 3d 853 (2009)
April FAERBER, Appellant
v.
Robert Edward FAERBER, Appellee.
No. 2008-CA-00236-COA.
Court of Appeals of Mississippi.
July 21, 2009.
*855 William B. Jacob, Meridian, attorney for appellant.
Robert D. Jones, Brookhaven, attorney for appellee.
Before LEE, P.J., CARLTON and MAXWELL, JJ.
CARLTON, J., for the Court.
¶ 1. On January 14, 2008, the chancellor granted April and Robert (Bobby) Faerbers' divorce, after ten years of marriage, on the ground of Bobby's uncondoned adultery. April appeals, alleging that the chancellor erred when he: (1) failed to correctly apply the Ferguson factors in determining the equitable distribution of the couple's marital property; (2) considered the business, College Park Auto (CPA), as Bobby's separate property; (3) failed to award April permanent alimony; (4) failed to award April attorney's fees; and (5) reduced Bobby's child support obligations. Upon review, we find that the chancellor erred in his application of the law and abused his discretion in the manner that he: (1) classified April's and Bobby's property, (2) structured April's lumpsum alimony, and (3) determined Bobby's adjusted gross income for purposes of *856 child support. Therefore, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
¶ 2. April and Bobby were married on July 7, 1995. According to April, the couple separated on February 11, 2005, when she discovered Bobby had engaged in an affair. At the divorce trial on December 4-5, 2007, Bobby admitted that he had engaged in three adulterous relationships during the couple's marriage. On January 14, 2008, the chancellor granted April and Bobby a divorce on the ground of Bobby's uncondoned adultery.
¶ 3. April and Bobby have two children, Jenna and Landon. Bobby did not seek physical custody of either child. As a result, the chancellor granted April custody of both children and set a visitation schedule for Bobby. The focus in this case concerns the manner in which the chancellor classified the property at issue, structured April's lump-sum alimony award, and determined Bobby's adjusted gross income.
I. The Chancellor's Distribution of April's and Bobby's Property
¶ 4. The chancellor summarized the equitable division of the marital estate in that April would receive the following property: (1) equity in the former family home, $55,000; (2) furniture in the former marital home, $32,950; (3) 2002 Ford Expedition, $6,600; (4) 1992 GMC Z-71, $2,000; (5) April's jewelry, $7,000; (6) Roth IRA, $425; and (7) Honda ATV proceeds, $3,500. The chancellor determined that April's distribution of the marital estate totaled $107,475.
¶ 5. In turn, the chancellor awarded Bobby the following marital property: (1) equity in the former marital home, $55,000; (2) furniture in the former marital home, $3,600; (3) 1981 Ford Bronco, $1,500; (4) shotguns and rifles, $4,500; (5) tractor, $10,500; (6) lawnmower, $5,150; and (7) Roth IRA, $425. The chancellor determined that Bobby's distribution of the marital estate totaled $80,675.
¶ 6. The chancellor classified and valuated the following items as Bobby's separate property: (1) the family home; (2) CPA, $298,000; (3) furniture Bobby acquired after the couple's separation, $19,200; (4) 2002 Volkswagen Jetta, $8,750; and (5) one-half interest in a 2006 Dodge pickup truck, $14,500. The chancellor valued Bobby's total separate estate at $340,450. The chancellor found April owned no separate property.
¶ 7. In evaluating the chancellor's classification of the property and the factors he considered, we now turn to the chancellor's specific findings regarding CPA, alimony, attorney's fees, and child support.
A. The Business, CPA
¶ 8. The chancellor classified CPA as Bobby's separate property. The chancellor found that CPA constituted Bobby's separate property based on the following reasons: (1) on December 14, 1995, Bobby's father gave Bobby, via inter vivos gift, CPA and the real property on which CPA operates; (2) April did not directly contribute to CPA; (3) April did not work at CPA on a regular basis; (4) April did not prove that any appreciation in CPA's value during the marriage would have been divisible property; and (5) both April and Bobby considered CPA to be Bobby's separate property before the marriage.
¶ 9. As to CPA's valuation, the chancellor found that since the parties failed to present the business-evaluation expert's report as evidence, he was left with the testimony of the witnesses to determine the value of the business. The chancellor *857 stated that Bobby had agreed on paper that his equitable interest in the business was approximately $298,000, which Bobby arrived at by valuing of all the business assets at $412,000 less $114,000 in debt.
¶ 10. The chancellor found that April had estimated that Bobby's equity in CPA amounted to $400,000, but the chancellor stated that April had failed to take into account the $114,000 in debt. The chancellor, finding no evidence to dispute Bobby's valuation of CPA, accepted Bobby's testimony that Bobby's equitable interest in CPA amounted to $412,000 less the $114,000 outstanding debt from Bobby's $183,377 loan for CPA for a total value of $298,000.
B. Alimony
¶ 11. The chancellor ordered Bobby to pay April $55,000 in lump-sum alimony at a monthly rate of $1,000, until paid in full. However, the chancellor ordered that for every month April resided in the family home, Bobby would not be required to make his $1,000 monthly lump-sum alimony payment. Per the chancellor's order, April's lump-sum alimony, in the amount of $55,000, represented her share of the $111,000 of equity in the family home.
¶ 12. At trial, Bobby admitted that he fraudulently obtained a loan by having a girlfriend sign April's name to a $183,377 loan for CPA by using the $225,000 family home as collateral. April had refused to sign such a loan.[1] Despite Bobby's admission regarding the fraudulent nature of the loan, the chancellor calculated the equity in the family home by subtracting $114,000, which was the amount remaining on Bobby's $183,377 loan, against the family home's value of $225,000, to arrive at $111,000 in equity. Then, the chancellor divided this figure of $111,000 in half in determining that April's and Bobby's shares of the equity in the family home each amounted to $55,000.
¶ 13. However, as noted above, the chancellor determined that April's $55,000 of equity in the family home constituted her lump-sum alimony; however, Bobby's $55,000 of equity in the family home constituted his portion of the marital estate.
C. Attorney's Fees
¶ 14. The chancellor found that April's monthly income of $2,579, along with her distribution of the marital estate, provided April "ample resources with which to pay her attorney." The chancellor also noted that "Bobby has his own attorney to pay." As a result, the chancellor denied April an award of attorney's fees.
II. Child Support
¶ 15. Bobby did not seek custody of his two children. Therefore, the chancellor ordered Bobby to pay child support. The chancellor ordered Bobby to pay child support in the amount of $376 per month, which amounted to twenty-five and three/ tenths percent of his reported self-employment adjusted gross income of $1,880 per month. The chancellor also ordered Bobby to pay half of his children's medical expenses. The chancellor determined Bobby's adjusted gross income for purposes of child support solely upon the basis of what Bobby reported as his self-employment income.
STANDARD OF REVIEW
¶ 16. Generally, a chancellor's findings in domestic cases will not be reversed unless they are manifestly wrong, *858 clearly erroneous, or the proper legal standard was not applied. Smith v. Smith, 994 So. 2d 882, 885(¶ 7) (Miss.Ct.App.2008).
DISCUSSION
I. Distribution of April and Bobby's Marital Property
¶ 17. Marital property consists of assets acquired or accumulated during the course of the marriage. Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss.1994). In contrast, separate property consists of property acquired before or outside of the marriage. MacDonald v. MacDonald, 698 So. 2d 1079, 1082-83 (Miss.1997) (citation omitted).
¶ 18. In Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss.1994), the supreme court provided a number of guidelines for chancellors to follow in equitably distributing property. The chancellor must: (1) classify the parties' assets as marital or separate; (2) value those assets; and (3) equitably divide the marital assets pursuant to the Ferguson factors. Id. The Ferguson factors include the following:
1. [A spouse's] substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family, duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and emotional value of assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse[.]
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution[.]
6. The 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[.]
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity[.]
8. Any other factor which in equity should be considered.
Id. Below, we address several of the Ferguson factors pertinent to this appeal.
A. Contribution and Accumulation of Marital Property
¶ 19. We find that the chancellor erred in his application of the law and abused his discretion in his consideration of the Ferguson factors wherein he: (1) classified, valuated, and distributed CPA; (2) classified and distributed the family home; and (3) determined the accumulation and dissipation of April and Bobby's marital assets.
1. Classification, Valuation, and Distribution of CPA
¶ 20. The chancellor classified the business, CPA, as Bobby's separate property *859 because: (1) Bobby's father gave CPA and the real property on which CPA operates to Bobby via an inter vivos gift; (2) April did not work regularly at CPA; (3) April failed to prove that any appreciation in CPA's value during the marriage could be considered divisible; (4) April made no direct contribution to CPA; and (5) both April and Bobby considered CPA to be Bobby's separate property before the marriage.
¶ 21. In Hankins, we dealt with the issue of the classification and equitable division of the husband's business. Hankins v. Hankins, 866 So. 2d 508, 511-12 (¶¶ 11-20) (Miss.Ct.App.2004). In Hankins, the wife argued on appeal that her husband's chicken farm, although his separate property upon entering the marriage, constituted marital property at the time of the couple's divorce because the capital purchases made in furtherance of the chicken farm "were acquired during the marriage." Id. at 511(¶ 15).
¶ 22. However, we found the that chicken farm remained the husband's separate property because the husband alone obtained loans for the chicken farm; the wife did not contribute financially to the chicken farm; and the wife did not work on the chicken farm. Id. at 512 (¶ 19). As a result, we concluded that "[t]he farm and the value of the equipment remain[ed] [the husband's] separate property and should not have been included as part of the marital estate." Id. However, we continued our analysis as to the distribution of the chicken farm's value in the following manner:
As the supreme court has repeatedly discussed, the relationship between a wage-earning spouse and a homemaking spouse is symbiotic. We presume that the efforts of each make the contributions of the other possible. The contributions are to be considered equal. Hemsley, 639 So.2d at 915. [The wife] is not entitled to a portion of the business itself or of the value of equipment but she is entitled to that which she helped to create. She is entitled to an equitable distribution of "the accumulated portion, or the increase in value" of the business during the course of the marriage. Craft [v. Craft], 825 So.2d [605,] 609(¶ 14) [ (Miss.2002)]. ... It is this increase in value which should have been included in the calculation of the marital estate.
Id. at 512(¶ 20).
¶ 23. In the case at bar, we find that when the chancellor classified CPA as Bobby's separate property, he failed to consider how Bobby's present $183,377 loan for CPA as well as past loans secured by the family home impacted the value of April's equity in the home. See id. All of Bobby's loans, unlike the loans made solely by the husband in Hankins, placed liens on the family home. Id. Hence April's equity in the home was utilized in support and furtherance of CPA.
¶ 24. Additionally, the chancellor failed to properly consider April's contributions as a homemaker when he found that April possessed no marital stake in CPA. Id. Hemsley explains that the contributions of the spouses are considered equal. Hemsley, 639 So.2d at 915. Thus, under Hemsley, April is entitled to an equitable distribution of any increase in the value of CPA during the marriage. Id.
¶ 25. The chancellor stated that neither party in this case provided a valuation of CPA. However, the record does contain several years of CPA's tax records,[2] 8.05 *860 financial statements,[3] and testimony of the parties. The chancellor in his opinion cited Dunaway v. Dunaway, 749 So. 2d 1112, 1121(¶ 28) (Miss.Ct.App.1999), for the proposition that where parties provide inadequate proof of an asset's value, a chancellor's valuation with some evidentiary support will be upheld. Therefore, in finding no evidence to dispute Bobby's valuation of CPA, the chancellor accepted Bobby's testimony that Bobby's equitable interest amounted to $412,000 less the $114,000 outstanding debt from Bobby's $183,377 loan for CPA for a total value of $298,000. However, we find that in the case at bar, unlike in Dunaway, the chancellor failed to fully explore the available proof at trial in valuating the property at issue. Id.; see also Smith, 994 So.2d at 886(¶ 11) (finding that the chancellor did not abuse her discretion in equitably distributing the value of improvements and labor expended during the marriage to husband's separate property).
¶ 26. Hence, on remand, the chancellor should consider the contributions of both spouses, the effect of any loans made for the benefit of CPA, and the potential commingling of personal assets and expenses with CPA's assets and expenses.[4]See Dunaway, 749 So.2d at 1121(¶ 28); Smith, 994 So.2d at 887(¶ 11); Hankins, 866 So.2d at 512(20).
2. Classification, Valuation, and Distribution of the Family Home
¶ 27. The chancellor determined that the family home belonged to Bobby as his separate property. The chancellor stated the following in his opinion:
The former marital residence is the property of Bobby, but that [sic] April does have an equitable interest in it acquired through the use as the family home for more than [twelve] years. All *861 of the debt on the property was paid with income from the business, and income from the business is marital property. Bobby used April's valuable homestead rights to [fraudulently] acquire loans against the property, and she is entitled to compensation.
¶ 28. We find that the chancellor erroneously applied the law and abused his discretion in finding that the family home was Bobby's separate property when he failed to properly consider: (1) the family's use of the home, (2) April's separate contributions to the home, and, (3) April's contribution as a homemaker. See Hemsley, 639 So.2d at 915 (finding homemaker's contributions equal those of wage-earning spouse); Lockert v. Lockert, 815 So.2d 1267,1269 (¶¶ 7-8) (Miss.Ct.App.2002) (finding that the couple's home converted from wife's separate property to the couple's marital property through the family's use of the home and the husband's substantial contributions). Moreover, according to the supreme court, the family-use doctrine will almost always convert a separately owned "marital" home to marital property. See Stewart v. Stewart, 864 So. 2d 934, 938-39(¶ 16) (Miss.2003).
¶ 29. April and Bobby built the family home in 1995. Bobby testified that he paid for the home. April and Bobby and their children lived in this home until April and Bobby separated in February 2005, thus, triggering the family-use doctrine. See Lockert, 815 So.2d at 1269(¶¶ 7-8). April stated that she and Bobby finished the interior of the home themselves except for the plumbing and the electrical work. April also testified that she financially contributed to finishing the home's interior by cashing in her retirement fund, selling her former residence and car. The chancellor found that she invested the proceeds from these sources into the home. In sum, April testified that she separately contributed to the home's equity in three ways: homemaker contributions, sweat equity, and financial investment. See id.
¶ 30. The chancellor noted that neither party provided the court with an appraisal of the family home. April's 8.05 financial statement showed a value of $286,000 with no debt, but she admitted that due to needed repairs the home was worth approximately $225,000. In contrast, Bobby's 8.05 financial statement showed a value of $300,000, a mortgage of $130,160 that was paid by CPA at $3,000 a month and a resulting equity of $169,840. The court then concluded that the value of the former marital residence was $225,000, the mortgage debt was $114,000, and the equity was $111,000.[5]
¶ 31. On remand, consistent with the authority cited herein, the chancellor should consider the contributions of both spouses, the impact of the family-use doctrine, and any liens on the family home when he classifies, valuates, and distributes the family home.
3. Accumulation and Dissipation of Marital Assets
¶ 32. Bobby left the family home in February 2005. On July 5, 2005, a previous chancellor entered a temporary support order. Under our governing case law, marital property continues to accumulate until the court enters a temporary support order. Stone v. Stone, 824 So. 2d 645, 648(¶ 7) (Miss.Ct.App.2002). Hence, April and Bobby's marital property continued *862 to accumulate until the July 5, 2005, temporary support order. See id.
¶ 33. This case presents some confusion in addressing the accumulation of marital property and dissipation of assets. Such confusion takes root from several sources in the record, including CPA's tax records,[6] Bobby's reported self-employment income, both parties' testimony,[7] the conflicting 8.05 financial statements,[8] and the assertion of the commingling of CPA's expenses with personal expenses.[9]
¶ 34. With respect to the dissipation of marital assets, we note that ordinary and reasonable living expenses used during separation generally do not constitute a dissipation of marital assets. See Childs v.Childs, 806 So. 2d 273, 275-76 (¶¶ 13-20) (Miss.Ct.App.2000); Pittman v. Pittman, 791 So. 2d 857, 865(¶ 22) (Miss.Ct. App.2001). We classify debts incurred for the benefit of the marriage as marital debt. See Prescott v. Prescott, 736 So. 2d 409, 418(¶ 48) (Miss.Ct.App.1999) (stating that chancellor properly ordered husband to pay wife's credit card debt for items purchased for the marital home). Additionally, we consider debts incurred by a spouse before marriage or for individual purposes and not used for the general welfare of the marriage as separate debt. See, e.g., Garriga v. Garriga, 770 So. 2d 978, 984(¶ 27) (Miss.Ct.App.2000) (stating that funds used by the wife for extramarital relationship constituted dissipation and required reimbursement to the marital estate).
¶ 35. We note that April's 8.05 financial statement asserts that Bobby possesses various personal assets, including a $35,000 motorcycle; a $52,000 boat; and a $8,500 Gator.[10] To determine if the above expenses constituted separate, marital, or business property, the chancellor must consider whether the assets were acquired with marital or separate funds and whether they were acquired after the demarcation in the marriage or outside of the marriage. See Childs, 806 So.2d at 275 (¶¶ 11-20); Strong v. Strong, 981 So. 2d 1052, 1055(¶ 17) (Miss.Ct.App.2008); Garriga, 770 So.2d at 984(¶ 27); Prescott, 736 So.2d at 418(¶ 48).
B. Alimony
¶ 36. We find that the chancellor committed reversible error in the manner in which he structured April's lump-sum alimony. A "chancellor may divide marital assets, real and personal, as *863 well as award ... alimony, as equity demands." Ferguson, 639 So.2d at 929. "[T]he purpose of alimony is not punitive, but instead, is designed to assist the spouse in meeting his or her reasonable needs while transitioning into a new life." Holley v. Holley, 892 So. 2d 183, 185(¶ 7) (Miss.2004) (citation omitted). Accordingly, the chancellor should consider alimony only after the equitable division of the marital property. Lauro v. Lauro, 924 So. 2d 584, 588(¶ 9) (Miss.Ct.App.2006) (stating that alimony recedes when equitable distribution expands).
¶ 37. Here, the chancellor determined that April's share of equity in the family home amounted to $55,000. The chancellor then ordered Bobby to pay April her share of equity in the family home in the form of lump-sum alimony at a monthly rate of $1,000, until paid in full, while at the same time crediting Bobby this monthly amount for every month that April resided in the family home.[11]See Cheatham v. Cheatham, 537 So. 2d 435, 438 (Miss.1988) (providing factors for chancellors to consider when awarding lump-sum alimony). Lump-sum alimony is a final settlement that vests when awarded and is not subject to modification. Hubbard v. Hubbard, 656 So. 2d 124, 129 (Miss.1995). A chancellor may order one party to make third-party payments as part of some types of alimony, but not with lump-sum alimony. See id.
¶ 38. As stated above, April's lump-sum alimony award of $55,000 represented her share of the equity in the family home. Additionally, the chancellor ordered that for each month April resided in the marital home, Bobby would not be required to pay April her share of her lump-sum alimony for that month. However, as we noted above, lump-sum alimony vests when ordered and cannot be modified. Id. Therefore, the chancellor abused his discretion and committed reversible error when he awarded April lump-sum alimony in this manner. See Miller v. Miller, 874 So. 2d 469, 474-75 (¶¶ 14-16) (Miss.Ct.App.2004).
¶ 39. Moreover, when we reverse a court's division of marital property, we must also reverse any accompanying award or denial of alimony. Lauro, 924 So.2d at 588(¶ 9). On remand, if the chancellor determines that either April or Bobby suffers a deficit after he equitably divides April's and Bobby's property pursuant to the controlling precedent, he should then consider the issue of alimony pursuant to the Armstrong[12] factors. See Ferguson, 639 So.2d at 928-29.
C. Any Other Factors
¶ 40. The chancellor denied April an award of attorney's fees. The chancellor possesses the discretion to award attorney's fees. Spahn v. Spahn, 959 So. 2d 8, 15(¶ 18) (Miss.Ct.App.2006). Upon remand, the chancellor should consider each party's financial ability when deciding whether to award attorney's fees. Id. The chancellor can consider assets received as part of an equitable distribution when determining a party's ability to pay attorney's fees. See Hankins v. Hankins, 729 So. 2d 1283, 1286(¶ 13) (Miss.1999) (reversing and remanding for chancellor to consider the $210,000 award in equitable distribution in determining the party's *864 ability to pay attorney's fees). Since we remand this case regarding equitable distribution, alimony, and child support, the chancellor should consequentially reconsider this issue as well. See Lauro, 924 So.2d at 588(¶ 9).
II. Child Support
¶ 41. Bobby did not seek custody of his two children. The chancellor ordered Bobby, as the non-custodial parent, to pay $376 a month in child support, which amounted to twenty-five and three/tenths percent of Bobby's reported self-employment income of $1,880. The chancellor also ordered Bobby to pay half of his children's medical expenses. However, the record does not substantially support the chancellor's child support award in light of Mississippi Code Annotated section 43-19-101(3)(a)-(b) (Rev.2004).
¶ 42. Section 43-19-101(3)(a)-(b) provides the parameters for determining a party's adjusted gross income for child support purposes in the following manner:
(a) Determine gross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self[-]employment; income from commissions; income from investments...; interest income and income on any trust account or property; absent parent's portion of any joint income of both parents; ... annuity and retirement benefits ...; any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income ...
(b) Subtract the following legally mandated deductions:
(i) Federal, state and local taxes. Contributions to the payment of taxes over and beyond the actual liability for the taxable year shall not be considered a mandatory deduction;
(ii) Social security contributions;
(iii) Retirement and disability contributions except any voluntary retirement and disability contributions[.]
(Emphasis added).
¶ 43. Here, the chancellor accepted Bobby's asserted monthly self-employment income[13] reflected on his tax documents as $1,880 without considering the potential commingling of CPA's assets and expenses with personal assets and expenses,[14] all of Bobby's income sources, and without considering the generally recognized test for determining self-employment income. Generally, self-employment income amounts to gross income less ordinary and reasonable expenses incurred in *865 producing the income. See, e.g., Henderson v. Henderson, 952 So. 2d 273, 279(¶ 18) (Miss.Ct.App.2006) (stating that chancellor properly deducted medical malpractice premiums from a physician's income to arrive at adjusted gross income).
¶ 44. On remand, the chancellor should consider the potential commingling of business and personal expenses, all of Bobby's income sources, and the manner in which Bobby determined his self-employment income when calculating Bobby's adjusted gross income for child support purposes. Miss.Code Ann. § 43-19-101(3)(b); Henderson, 952 So.2d at 279(¶ 18).
III. Other Considerations on Remand
¶ 45. During the proceedings below, April filed a motion to recuse the chancellor due to alleged bias in favor of Bobby in this case. On appeal, April fails to designate this issue as a separate assignment of error, but she does argue that the chancellor's findings display bias. The chancellor denied April's motion. Upon review, we find that April failed to provide this Court with sufficient proof that the chancellor abused his discretion when he failed to recuse himself from this case. However, since this Court remands this case for reconsideration by the chancellor, the issue of recusal may be also revisited on remand.
¶ 46. A judge's decision regarding recusal is reviewed under an abuse of discretion standard. Miss. United Methodist Conference v. Brown, 929 So. 2d 907, 908(¶ 4) (Miss.2006). Canon 3E(1) of the Mississippi Code of Judicial Conduct states that judges "should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances..." This Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased. Hathcock v. S. Farm Bureau Cas. Ins. Co., 912 So. 2d 844, 848(¶ 9) (Miss.2005) (citation omitted). This presumption is overcome only by showing beyond a reasonable doubt that the judge was biased or unqualified. Id. (citation omitted).
¶ 47. April argues in her brief that the chancellor exercised bias toward Bobby as shown in the chancellor's findings and ultimate judgment in the case. April argues that the chancellor showed bias as a result of the following circumstances: (1) Bobby's attorney, Robert Jones, supported the chancellor's election campaign; (2) Bobby supported the chancellor's campaign as evidenced by an invitation to a post-election appreciation gathering sponsored by Bubba Hampton that was mailed from Jones's law firm as indicated by the invitation's return address; (3) statements and activities allegedly attributable to Bobby; and (4) Hampton's service as co-chair of the chancellor's election campaign.
¶ 48. When April discovered the invitation to the post-election appreciation gathering for the chancellor addressed to Bobby, she filed a motion for judicial recusal, which the chancellor denied. As stated, April failed to designate the chancellor's bias as a separate assignment of error on appeal. However, this Court could review the recusal issue in this case under the plain-error doctrine if April had presented sufficient evidence to warrant such review. "The plain-error doctrine has been construed to include anything that `seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Pickle v. State, 942 So. 2d 243, 246(¶ 13) (Miss.Ct. App.2006) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)).
¶ 49. However, April has failed to show any evidence beyond a reasonable doubt *866 that the chancellor in this case was biased or unqualified thereby requiring his recusal in this case. See Hathcock, 912 So.2d at 848(¶ 9); see also Code of Judicial Conduct 3E(2) ("A party may file a motion to recuse a judge based on the fact that an opposing party or counsel of record for that party is a major donor to the election campaign of such judge.").
¶ 50. We find the chancellor's opinion, and not evidence presented by April, actually sheds the most light on this issue. In response to April's motion for recusal, the chancellor stated the following in his order:
This judge takes notice that the law firm of counsel for [Bobby] was actively involved in this judge's campaign, but that involvement was primarily on the part of [Jones's] partner,[15] since [Jones] as a [m]unicipal [j]udge, was restricted in political activity. This judge also takes notice that [Jacob], attorney for [April], expressed his support for this judge's candidacy during the campaign.
From the above facts, the chancellor concluded that "there [was not a] reasonable basis to form a conclusion that there [was] a question of the court's impartiality in this case."
¶ 51. From the record before us, we find that April has failed to present sufficient evidence that the chancellor was biased beyond a reasonable doubt in this case. See id.; Brown, 929 So.2d at 908(¶ 4). Nonetheless, since we reverse and remand this case on other grounds, this issue may be revisited on remand.
¶ 52. THE JUDGMENT OF THE LAUDERDALE COUNTY CHANCERY COURT IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.
KING, C.J., LEE, P.J., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MYERS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, J., NOT PARTICIPATING.
NOTES
[1] The record reflects that in 1996, April signed a deed of trust on the family home so that Bobby could borrow money for CPA, but she refused to sign any more loans after that date.
[2] CPA's tax records for 2006 reflect the following expenses and net profit: car and truck expenses, $30,046; mortgage paid to bank, $15,080; unspecified contributions, $2,860; and a net profit of $3,781. In 2004, CPA's tax records indicate the following: car and truck expenses, $9,999; mortgage paid to bank, $9,042; unspecified contributions, $1,405; "miscellaneous expenses," $1,114; and a net profit of $18,494. In 2003, CPA tax records reflect the following: car and truck expenses, $9,317; mortgage paid to bank, $10,725; unspecified contributions, $4,000; "miscellaneous expenses," $14,047; and a net loss of $530. In 2002, CPA's tax records include the following: bus purchased, $84,410; truck purchased, $13,444; car and truck expenses, $8,344; mortgage paid to bank, $4,938; and a net profit of $14,025. The record contains no determination as to whether the assets and expenses that Bobby claimed belonged to CPA actually constituted personal expenses, and if so, there is no consideration of the impact of such on the valuation of the business and marital property.
[3] April disputes the credibility of CPA's assets and expenses as evidenced by her 8.05 financial statement. For example, in April's 8.05 financial statement, she includes the following regarding "other personal property": (1) 1998 Eagle Motor Home, $175,000; (2) motorcycle, $35,000; (3) boat, $52,000; (4) backhoe, $75,000; (5) tractor, $13,000; (6) Gator, $8,500; (7) dump truck, $6,000; (8) bulldozer, $30,000; (9) rollback wheeler, $13,000; (10) travel trailer, $10,000; (11) lawnmower, $20,000; (12) vehicles used in CPA, $200,000; (13) household furniture, $6,000; (14) guns, $4,500; and (15) tools, $7,000.
In comparison, Bobby's unsigned 8.05 financial statement shows none of the following personal expenses: (1) mortgage/rent, (2) oil and gas, and (3) car payments. However, Bobby claims all three of these items on CPA's tax records. Bobby claims as "other personal property" on his 8.05 financial statement, the following assets: (1) furniture, $16,000; (2) patio furniture, $1,700; (3) television and stereo equipment, $1,500; (4) lawnmower and weed eater, $300; (5) backhoe, $12,000; (6) guns ("some non-marital"), $4,500; and (7) tractor ("non-marital"), $8,000. As shown, Bobby's 8.05 financial statement conflicts with April's 8.05 financial statement as to what constitutes personal versus business property.
[4] See supra notes 2-3.
[5] The chancellor deducted the $183,377 loan for CPA from the value of the family home and also the value of CPA. A lien should not be deducted from the value of two different assets. The valuation of the marital property should reflect one satisfaction of a lien from the appropriate asset.
[6] See supra note 2.
[7] Bobby testified that CPA bought a Caterpillar backhoe purchased before the separation valued at approximately $12,000. The record does not reflect the date of purchase, but Bobby testified that he also bought a Harley Davidson chopper motorcycle, but he sold it four months before the divorce hearing at a loss. The business also bought, on a trade, Bobby's father's household furniture consisting of a couch and love seat. Bobby explained also in his testimony that the motor home, which is listed as a bus on CPA's tax returns, helps him on his taxes because the business assets are depreciated. So, CPA's tax returns show no profit even though it has assets, and Bobby and his father take salary draws from CPA.
[8] See supra note 3.
[9] For example, Bobby testified at the divorce trial that he purchased two trucks for $56,000 on February 11, 2005, through CPA. He also testified that he purchased $30,000 in furniture by "decreas[ing] a debt that Wrangler furniture owed CPA." Additionally, the record contains testimony by Bobby that he used the motor home, identified on CPA's tax documents as a bus, to entertain potential customers and take them to the races and trips to entice them to use his garage instead of his competitors' garages.
[10] See supra note 3.
[11] We note that in determining the alimony award, the chancellor provided in his opinion that Bobby's separate estate was substantial and that Bobby possessed assets that were not essential to his business which he could liquidate to pay April's lump-sum alimony. However, the chancellor's findings did not set forth any resolution or evaluation of these non-essential assets.
[12] Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).
[13] Bobby's testimony reveals that he generally does not show a profit or pay taxes for CPA, even though he makes a monthly draw from the business and has assets that CPA owns, because of the depreciation of assets. In his opinion, the chancellor notes April's assertion that Bobby understated his income and that during the marriage he provided her with $1,500 a month to run the household, as well as a gas card and a credit card, all paid by CPA. The chancellor concluded that Bobby's tax returns were commensurate with what he reported on his 8.05 financial statement. The chancellor stated that if April was indeed paying the household bills with the $1,500 per month provided by Bobby, then Bobby must have been turning over most of his paycheck to her for the mutual benefit of the household. He noted that Bobby reported expenses were $1,835 per month and that his expenses did not appear to be overstated. However, the chancellor failed to determine if the expenses attributed to CPA were indeed for the benefit of CPA or were personal in nature.
[14] See supra notes 2-3.
[15] The chancellor did not provide the name of Jones's law partner in his order denying April's motion for recusal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620710/ | 916 So. 2d 243 (2005)
SLIDELL MEMORIAL HOSPITAL
v.
Frank MULL
Frank Mull
v.
Slidell Memorial Hospital
No. 2004 CA 1309, 2004 CA 1310.
Court of Appeal of Louisiana, First Circuit.
June 10, 2005.
*244 Frank A. Bruno, New Orleans, Counsel for Defendant/Appellant Frank Mull.
John A. Keller, Madisonville, Counsel for Plaintiff/Appellee Slidell Memorial Hospital.
Before: GUIDRY, GAIDRY, and McCLENDON, J.J.
McCLENDON, J.
In this workers' compensation dispute, the claimant, Frank Mull, alleged that he hurt his neck and back on December 16, 1999, while in the course and scope of his employment as an emergency room technician for Slidell Memorial Hospital (SMH). *245 SMH paid indemnity and medical benefits from February 10, 2000 to November 7, 2003. On July, 7, 2003, SMH filed a disputed claim form, seeking to suspend benefits and alleging that Mr. Mull failed to cooperate with vocational rehabilitation recommendations. SMH later amended its claim form to request penalties and restitution, asserting that Mr. Mull willfully made false statements in violation of LSA-R.S. 23:1208 for the purpose of receiving workers' compensation benefits. On August 20, 2003, Mr. Mull filed his own disputed claim form seeking reinstatement of benefits. The matters were consolidated and trial was held on February 12, 2004. The workers' compensation judge (WCJ) rendered judgment finding that Mr. Mull failed to meet his burden of proving that he remained disabled as the result of a work-related accident.[1] The WCJ denied all other relief. Mr. Mull appealed asserting that the WCJ committed manifest error in dismissing his claim for the reinstatement of his benefits. SMH answered the appeal asserting error in the WCJ's decision denying SMH's claim that Mr. Mull violated LSA-R.S. 23:1208. We affirm.
Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Jenkins v. Country Corner Auto Center, LLC, 03-2221, p. 2 (La.App. 1 Cir. 6/25/04), 886 So. 2d 512, 513. Factual findings in a workers' compensation case are subject to the manifest error or clearly wrong standard of review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So. 2d 551, 556. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Mart v. Hill, 505 So. 2d 1120, 1127 (La.1987). Thus, "[i]f the [fact finder's] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Sistler v. Liberty Mut. Ins. Co., 558 So. 2d 1106, 1112 (La.1990).
Further, with regard to alleged violations of LSA-R.S. 23:1208, the burden of proof requires more than a mere showing of inconsistent statements or inadvertent omissions by the claimant.[2] Here, the WCJ did not find any willful misrepresentations. The issue of whether an employee forfeited his or her workers' compensation benefits is one of fact, which is not to be reversed on appeal, absent manifest error. Ivy v. V's Holding Co., 02-1927, pp. 9-10 (La.App. 1 Cir. 7/2/03), 859 So. 2d 22, 30.
After a thorough review of the record and exhibits in this matter, we cannot conclude that the decision of the workers' compensation judge was manifestly erroneous. Thus, in accordance with Uniform Rules-Courts of Appeal, Rule 2-16.2A(8), the decision of the Office of Workers' Compensation is affirmed. Costs are assessed against Mr. Mull and Slidell Memorial Hospital.
AFFIRMED.
GUIDRY, J., dissents in part and assigns reasons.
*246 GUIDRY, J., dissenting in part.
On reviewing the record in this matter, I am troubled by the majority opinion in two respects. First, I note that Mr. Mull initially filed a disputed claim for compensation on March 28, 2000, seeking indemnity benefits. Although the record does not contain an ultimate judgment as emanating from this filing, neither does the record expressly contain any proof that the filing was dismissed without any adjudication of the issue of whether the injuries sustained by Mr. Mull were attributable to the accident at issue. Although it has been acknowledged by the parties that Slidell Memorial paid indemnity and medical benefits, the record contains no proof that such benefits were paid voluntarily or without prior adjudication that such were owed. Accordingly, I believe the record before us to be deficient and would suggest that this matter be remanded to the trial court to hold an evidentiary hearing regarding whether the status of Mr. Mull's injuries as being work-related has previously been adjudicated. If it was previously adjudicated that Mr. Mull had sustained a work-related injury, then the judgment of the WCJ would clearly be erroneous in that the wrong standard and burden of proof were thus applied in this matter. See Snelling Personnel Services v. Duhon, 00-661, p. (La.App. 3rd Cir.11/2/00), 772 So. 2d 350, 353; Levickey v. Cargill, Inc., 405 So. 2d 615, 617 ("It is well settled that in proceedings for modification of decrees awarding workmen's compensation benefits to an employee, the employer bears the burden of proving, by a preponderance of the evidence, that the condition of the injured employee is favorably altered from what it was at the time of the original adjudication.")
Second, I am troubled by the fact the WCJ found that Mr. Mull did not violate La. R.S. 23:1208, but still held that "inconsistencies in the Claimant's versions of the accident together with contradictory statements regarding onset of pain and prior medical treatment and injuries are detrimental to the [Claimant's] ability to meet his burden of proof in showing his current symptoms are related to a work accident/injury." In so holding, the WCJ did not find that Mr. Mull "failed to meet his burden of proving that he remained disabled as a result of a work-related accident" (emphasis added), as noted in the majority opinion. Rather, the WCJ essentially held that Mr. Mull failed to prove that his complained of injuries were related to the workplace accident at issue. In other words, the WCJ determined that Mr. Mull did not suffer any injuries as a result of the workplace accident, which finding I believe is not supported by the record. Further such a determination would be clearly erroneous if there has been a prior adjudication that Mr. Mull did sustain a work-related injury.
I, thus, respectfully dissent in part from that portion of the majority opinion affirming the judgment relative to Mr. Mull's request for reinstatement of benefits. In all other respects, I agree with the majority opinion rendered herein.
NOTES
[1] Specifically, the WCJ found "vast inconsistencies in the Claimant's versions of the accident together with contradictory statements regarding onset of pain and prior medical treatment and injuries."
[2] Pursuant to LSA-R.S. 23:1208, any willful false statements or misrepresentations made for the purpose of obtaining or defeating any benefit or payment will result in the forfeiture of all workers' compensation benefits. St. Bernard Parish Police Jury v. Duplessis, 02-0632, p. 8 (La.12/4/02), 831 So. 2d 955, 959. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/538422/ | 898 F.2d 519
29 Soc.Sec.Rep.Ser. 137, Unempl.Ins.Rep. CCH 15314AThomas L. SCOTT, Plaintiff-Appellant,v.Louis W. SULLIVAN, M.D.,* Defendant-Appellee.
No. 89-1378.
United States Court of Appeals,Seventh Circuit.
Submitted Feb. 7, 1990.**Decided Feb. 22, 1990.Opinion Published March 28, 1990.***
John Manning, Wisconsin Rapids, Wis., for plaintiff-appellant.
Michael C. Messer, Dept. of Health and Human Services, Region V, Office of the Gen. Counsel, Chicago, Ill., for defendant-appellee.
Before BAUER, Chief Judge, CUDAHY, Circuit Judge, and PELL, Senior Circuit Judge.
PELL, Senior Circuit Judge.
1
Claimant Thomas L. Scott appeals the district court's affirmance of the Secretary's determination1 that Scott is not disabled under the Social Security Act and therefore is not entitled to benefits.
I.
2
When the disability hearing in this case was held in 1987, Scott was forty-one years old, had a general education diploma, and had been employed at Consoweld Corporation (n.k.a. Sterling Engineered Products) since 1967 as a laborer. His job involved substantial lifting, bending, stooping, and carrying of materials usually weighing fifty to sixty pounds but sometimes as much as 100 pounds. Scott injured his back at work on April 28, 1976. During 1977, Scott twice reinjured his back at work, and in early 1980, Scott reinjured his back at home.
3
On June 11, 1980, Scott underwent a laminectomy. Dr. Beuchel, who had previously treated Scott for his back problems, performed this procedure which involves the excision of a vertebral arch. Scott reported that the surgery was successful in relieving his pain. Scott was advised to refrain from lifting heavy weights and to avoid excessive twisting and bending. Despite the successful surgery and post-operative therapy, Scott's back problems returned within one year. He received treatment for his problems and consulted various doctors and specialists.
4
In August 1983, Scott again reinjured his back at work. He saw a chiropractor, Dr. Birdwell, who diagnosed a sprained back. On September 18, 1983, Scott returned to work with no restrictions on the amount of weight he could handle. In late 1984, Scott was involved in an automobile accident that aggravated his back condition. In early 1985, Scott returned to Dr. Beuchel for treatment. Dr. Beuchel recommended that Scott be assigned to light duty work and recommended reinstituting restrictions on the amount of weight Scott should handle on the job. Dr. Beuchel also referred Scott to Dr. Szmanda, a neurologist, for further evaluation.
5
In July 1985, Scott was hospitalized for three days. An EMG and nerve conduction study were undertaken by Dr. Szmanda who concluded that the results were abnormal and evidenced moderate acute denervation in one area and partial denervation in another. His diagnosis was "moderate to severe peripheral nervous system disease with the presence of superimposed corticospinal tract pathology." A myelogram taken in October 1985, however, was negative for disc herniation or nerve root displacement, but did show some disc bulging. A CT scan confirmed these results. In December 1985, Dr. Beuchel approved Scott's return to work with the previous restrictions.
6
Scott continued to have lower back pain and consulted Drs. Beuchel and Szmanda, among others, about further treatments. The possibility of a second laminectomy and spinal fusion was discussed, but no action was taken. On August 8, 1986, Scott stopped going to work. Scott was hospitalized from August 19 to 20, and Dr. Szmanda conducted several tests. A myelogram again showed that no disc was herniated, but that visible bulging existed. Scott was diagnosed as having "sensorimotor peripheral polyneuropathy and spastic paraparesis."
7
Dr. Beuchel wrote on August 26, 1986, that Scott had suffered a 20% permanent partial disability of his back and that a second laminectomy and fusion were probably indicated. He further wrote that Scott reported that he was only able to stand four to six hours in an eight hour workday, sit for four hours, ride in a car for up to eight hours, and lift frequently a maximum of twenty pounds.
8
On September 8, 1986, Scott filed for disability benefits, alleging that his disability began on August 8, 1986 (the last date he worked at Consoweld). On October 8, 1986, Consoweld referred Scott to Dr. Allen for an examination. Dr. Allen concluded that, although Scott could perform all of the activities of daily living, he doubted "[Scott] is ever going to get much better." On November 11, 1986, the Social Security Administration informed Scott that he was denied disability benefits. Scott appealed this initial decision, but it was affirmed on January 6, 1987.
9
On February 18, 1987, Dr. Beuchel reexamined Scott and reported that his condition had worsened. He wrote that Scott thought that the previous estimates were too high--"[Scott] felt standing should be 1 to 3 hours, sitting about 2 to 3 hours, driving 2 to 3 hours, lifting 10 to 20# ." Dr. Beuchel concluded his letter by stating that Scott "is presently totally disabled as far as Social Security is concerned at this time." On February 20, 1987, Scott requested a hearing on his request for benefits.
10
A hearing on Scott's case was held on June 1, 1987, before an Administrative Law Judge.2 At the hearing, Scott and his wife testified, and Scott's attorney entered into evidence numerous medical exhibits. Scott testified that his back constantly gave him pain; he said he occasionally took medication (Flexoril) to relieve the pain, but that he avoided the medication when possible because it made him drowsy. He stated that his activities were limited by the injury, but that he could still help around the house with chores such as carrying the groceries, setting the table, and cutting the lawn with a riding mower. In addition, he testified that he was able to go hunting and fishing occasionally, ride a bike from time to time, and could walk four blocks without back pain.
11
At end of the hearing, Scott's counsel and the ALJ had the following discussion:
12
ALJ: ... Are there other matters you want to get into today?
13
ATTY: Judge, there's one thing that I would like to offer for the Judge's consideration, under the listing of impairments. If I can find what I'm looking for here. Under List 105C, which has to do with, it's called vertebrogenic disorders.
14
ALJ: Right, I have it before me.
15
ATTY: And I wish the Judge would consider whether he meets this listing of impairmentsALJ: All right.
16
ATTY: --particularly with regard to the reports in the record from ... Dr. Simanda [sic].
17
ALJ: What I could do is have a[n] MA, medical advisor, on this, interrogatories. And that way the doctor would be reviewing, if he should conclude that Mr. Scott doesn't quite meet but does equal it, that would be the same thing. But I think that it would be, over the long haul, the shortest way home to go for one that's on the Secretary's list because that's the only one we'd be sure of on the equals, if he would conclude that it equals the listing.
18
ATTY: All right....
19
ALJ: ... [W]ould Dr. Simanda [sic], conclude that he met, do you think?
20
ATTY: I don't know if he would or not because I don't think he'd have the particular criteria before him.
21
ALJ: Uh-huh. That's another way to go.
22
ATTY: That's a possibility.
23
ALJ: You can pose that.
24
ATTY: Why don't you let me do that?
25
ALJ: All right, go ahead. I will leave the file open for, give you 30 days--
26
ATTY: Very good, very good.
27
ALJ: --to pose that.... because there are some difficulties. I don't say they're insurmountable but there are some difficulties, given the age of this gentleman [Scott].
28
....
29
... I will leave the file open for 30 days. And if you find out earlier that there is ... a possible need to go for a medical advisory on that, let me know.
30
ATTY: Very good.
31
ALJ: And I will send for that.
32
ATTY: Thank you. That's all I have.
33
After the hearing, Scott's counsel sought to solicit a medical opinion from Dr. Szmanda regarding whether Scott met the requirements of section 1.05c. See 40 C.F.R. pt. 404, subpt. P, app. 1. Counsel enclosed a copy and an explanation of the listing to apply to the case. Dr. Szmanda refused to give his opinion on this issue, however, and referred the attorney to Dr. Beuchel. On August 14, 1987, after several letters from counsel asking for his opinion, Dr. Beuchel responded as follows: "Tom does have evidence of spasm, discomfort, tenderness, a list and pain along with degenerative arthritis of his back with chronic low back pain and intermittent sciatica associated with degenerative disc disease."
34
Scott's counsel forwarded Dr. Beuchel's letter to the ALJ with the following explanation:
35
I am submitting to you what I received today from Dr. Beuchel, consisting of one page. It is not what I asked of him, having sent him the appropriate listing of impairments and explanations of those listings to apply in this case. I am afraid that this is the best I can do so please make this part of the record and close the record and make your decision in the case. I am sorry to have delayed it this long but I thought that I could get the additional opinion to make it easy for you.
36
The ALJ then rendered his decision and held that, although there was no question that Scott suffered from chronic low back pain, he "d[id] not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4." The ALJ held that it was clear that Scott was unable to perform his old job, but that he had the "residual functional capacity to perform the full range of light work." Given this capacity and Scott's age, high school diploma equivalency, and work experience, the ALJ concluded that Scott was not disabled for purposes of the Social Security Act.
37
On appeal, the district court affirmed on the ground that the ALJ's decision was based on substantial evidence.
II.
38
Decisions of the Secretary are upheld if they are supported by substantial evidence. Walker v. Bowen, 834 F.2d 635, 639 (7th Cir.1987). Scott argues that the ALJ erred because there was no evidence in the record to support the ALJ's conclusion that Scott failed to meet the two-pronged requirements of section 1.05c, and that therefore we should remand to the ALJ for additional findings.
39
An examination of the record reveals the flaws in Scott's argument. At the hearing, Scott's attorney raised the possibility that Scott qualified for benefits under section 1.05c. 40 C.F.R. pt. 404, subpt. P, app. 1. When asked, the ALJ said that he would consider whether the section was applicable, but suggested that Scott's best theory of recovery, given his age and background, would be to qualify directly under a specific listing, rather than under section 1.05c which is a catch-all for all "other vertebrogenic disorders." Id.; see also Reynolds v. Bowen, 844 F.2d 451, 453 (7th Cir.1988).
40
Scott argues that once the ALJ agreed to consider whether Scott qualified under section 1.05c, the ALJ had a duty to ensure that sufficient evidence on the issue was produced before closing the file and rendering a decision. Scott admits that he could not get either Dr. Szmanda or Dr. Beuchel to offer opinions on this issue, but he argues that the ALJ was under a duty to bring in a medical advisor to offer an opinion so that there would be some specific evidence in the record on which to base an opinion.
41
Scott's argument is not supported factually.3 Scott attempted to qualify under section 1.05c; he therefore had to prove both (1) that he suffered from pain and muscle spasms, and had significant limitation of motion in the spine; and (2) that there was appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. Scott argues that his medical records clearly show that he met the first prong of section 1.05c because tests showed movement limitation and muscle spasms. Assuming this is true, however, a claimant must also prove the second prong to qualify for benefits under section 1.05c. Reynolds, 844 F.2d at 455; Nunn v. Bowen, 828 F.2d 1140, 1144 (6th Cir.1987). Even Scott admits, however, that "[t]here are a good number of notations in the record of examinations by doctors that [Scott] did not have any sensory loss ... [or] reflex loss." Scott argues, however, that we cannot be sure because the medical records are confusing and no definitive medical opinion directly addresses the point.
42
There was sufficient evidence in the record, however, for the ALJ to determine that Scott had no sensory or motor loss, and thus that he did not qualify under section 1.05c. On May 28, 1986, Dr. Szmanda wrote Dr. Beuchel and informed him of the results of various tests he had conducted on Scott. These tests revealed, among other things, that a "[s]ensory examination was normal to pinprick, light touch, sharp/dull discrimination, proprioception, vibration, stereognosis, and graphesthesis." This evidence supports a finding that Scott failed to demonstrate that he suffered from one of the requirements under section 1.05c.
43
Further, as the Secretary argues, the ALJ's finding of noneligibility is also supported by a number of "negative inferences" evident from a review of the record. For example, the Secretary points out that Scott's counsel asked Dr. Szmanda for a direct opinion whether Scott met the requirements of section 1.05c. Dr. Szmanda declined to give his opinion, however, which suggests that Scott failed to meet the listing. In addition, Dr. Beuchel was given the specific listing and its requirements, but stated, in essence, that Scott met only the first requirement of section 1.05c. Given our often-repeated observation that treating physicians may occasionally "go the extra step in helping their patients obtain benefits for a medical condition," DeFrancesco v. Bowen, 867 F.2d 1040, 1043 (7th Cir.1989) (citing Stephens v. Heckler, 766 F.2d 284, 289 (7th Cir.1985)), the refusal of either of Scott's treating physicians directly to substantiate Scott's claim that he met section 1.05c further supports the ALJ's determination that Scott was not eligible for disability benefits.
44
Finally, Scott argues that there is "no opinion by any doctor" specifically holding that Scott "meets or does not meet or equals or does not equal any of the listings, especially 1.05C." The Secretary points out, however, that a disability examination by a state agency physician on November 4, 1986 (two months after Scott filed for benefits) resulted in a finding that Scott failed to meet any of the listings in question (including section 1.05c) and that he was not eligible for benefits.4 Since the state agency physician was a physician designated by the Secretary to determine medical equivalence, the ALJ may rely upon the physician's opinion to determine eligibility. Waite v. Bowen, 819 F.2d 1356, 1360 (7th Cir.1987).5 Thus, this opinion further supported the ALJ's decision that although Scott may have had a "severe impairment," it was not so severe as to prevent Scott from doing light or sedentary work.6
III.
45
The opinion of the ALJ was supported by substantial evidence and is therefore
46
AFFIRMED.
*
Louis W. Sullivan, M.D., has been substituted as appellee for Otis R. Bowen, M.D., pursuant to Fed.R.App.P. 43(c)
**
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Rule 34(a), Fed.R.App.P.; Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record
***
Pursuant to Circuit Rule 53, this opinion was originally issued as an unpublished order on February 22, 1990. The court, upon request, issues this decision as an opinion
1
The Appeals Council declined review of the ALJ's opinion; thus, the opinion became the final decision of the Secretary. See Steward v. Bowen, 858 F.2d 1295, 1296 n. 1 (7th Cir.1988)
2
On May 29, 1987, two days before the hearing, Consoweld notified Scott that there were no positions at the company that Scott could perform given his back problems. As a result, the company terminated his employment due to his medical condition
3
Since we hold that Scott's argument is not supported factually, we do not reach the argument pressed by the Secretary that Scott waived any right to have a medical advisor's opinion admitted into evidence when Scott's counsel asked the ALJ to close the record and render a decision without requesting such an opinion
4
The opinion of a doctor that a claimant "is disabled for purposes of Social Security" need not be accepted if there is contradictory evidence suggesting nonqualification. Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir.1988); Waite v. Bowen, 819 F.2d 1356, 1359 (7th Cir.1987). Thus, Dr. Beuchel's comment that Scott was totally disabled for purposes of Social Security need not have been heeded given the conflicting evidence
5
Scott also argues that SR 83-19, which requires an ALJ to admit as expert opinion evidence the medical judgment of a physician designated by the Secretary, is unconstitutional and should be held invalid. Since we find that substantial evidence in the record (besides the state physician's report) supports the decision of the ALJ, we need not and do not reach this argument
6
Further support could be found in the testimony of the claimant himself. Scott testified that he still had the capacity to help out around the house, carry groceries, set the table, ride a bike, and go hunting and fishing | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1502975/ | 254 S.W.2d 891 (1952)
YELLOW TRANSIT FREIGHT LINES, Inc. et al.
v.
HOUSTON FIRE & CASUALTY INS. CO.
No. 6263.
Court of Civil Appeals of Texas, Amarillo.
December 15, 1952.
Rehearing Denied January 12, 1953.
Brundidge, Fountain, Elliott & Bateman, Dallas, for appellants.
Lucian Touchstone and W. Richard Bernays, Dallas, for appellee.
MARTIN, Justice.
Massachusetts Bonding & Insurance Company issued to appellant, Yellow Transit Freight Lines, Inc., a public liability automobile insurance policy covering a tractor owned by said appellant. Appellant, *892 Earl C. Price, while driving this tractor for Yellow Transit Freight Lines, Inc., and pulling a trailer owned by East Texas Motor Freight Lines collided with an automobile resulting in claims for damage against appellants.
Massachusetts Bonding & Insurance Company, as insurer, settled all the damage claims accruing by reason of the collision. Following such settlement, Yellow Transit Freight Lines, Inc., and Earl C. Price, assigned to Massachusetts Bonding & Insurance Company all demands they might have against appellee as insurer of the trailer owned by East Texas Motor Freight Lines. Massachusetts Bonding & Insurance Company then filed this suit in the name of appellants, Yellow Transit Freight Lines, Inc., and Earl C. Price, against appellee, Houston Fire & Casualty Insurance Company. The suit alleges that appellee was liable for the damage claims under its policy of insurance issued to East Texas Motor Freight Lines and covering the trailer owned by said company and pulled by the tractor owned by appellant, Yellow Transit Freight Lines, Inc.
The policy of insurance issued by appellee to the East Texas Motor Freight Lines not only insured the East Texas Motor Freight Lines against any public liability and property damage which might result from the use of its trailer, but also defined "insured" as follows, "the unqualified word "insured" includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. * * *" The policy issued by appellee to East Texas Motor Freight Lines further provided under the heading "Exclusions:" "This policy does not apply: (c) Under coverage A and B (bodily injury and property damage liability) while * * * any trailer covered by this policy is used with any automobile owned or hired by the insured and not covered by like insurance in the company."
Appellants, under their contention that a summary judgment was improperly rendered for appellee by the trial court, first present the proposition that both appellants were within the provisions of the term "insured" as used in appellee's policy of insurance and that there being no proof that either of the appellants owned or hired the automobile or tractor with which the trailer was used, that they were not within the above policy exclusion and were therefore entitled to a summary judgment against appellee under the terms of its policy. On this issue it should be stated that the written assignments of appellants' claims and demands as made to the Massachusetts Bonding & Insurance Company contain sufficient admissions to place ownership of the tractor in appellant, Yellow Transit Freight Lines, Inc. Therefore, under appellants' own theory of the case, summary judgment was correctly rendered against Yellow Transit Freight Lines, Inc.
The above ruling leaves for determination the principal issue raised by appellants which is a rather ingenious presentation. Appellants contend that appellant, Earl C. Price, was an "insured" within appellee's policy definition of "insured,' and that as to appellant Price there was no proof that he was either the owner or the hirer of the tractor with which the insured trailer was used. Appellants further point out that appellant Price was as liable for the damages arising out of the collision as was his employer, Yellow Transit Freight Lines, Inc., and that since he was neither an owner nor a hirer of the tractor he could recover from appellee under its policy of insurance issued to East Texas Motor Freight Lines although liability might not exist under such policy as between appellee and appellant, Yellow Transit Freight Lines, Inc., because of the exclusion clause therein.
An examination of the evidence and admissions of the parties under the terms of appellee's policy of insurance and under the contention of appellants as above outlined reveals the following facts: Appellants correctly allege that they were using the trailer owned by the East Texas Motor Freight Lines with the permission of such owner and are each within the term "insured" as defined in appellee's policy of insurance issued to the East Texas Motor *893 Freight Lines. Appellant, Yellow Transit Freight Lines, Inc., as such insured, is the owner of the tractor used with the trailer of the East Texas Motor Freight Lines. It is admitted that appellant's tractor was not insured with the appellee, Houston Fire & Casualty Insurance Company, the insurer of the trailer. Since appellee's policy of insurance did not apply while any trailer covered by such policy was used with an automobile owned by the insured and not covered by like insurance in the company, the case resolves itself into a mere question of application of the law under the uncontroverted facts and admissions of the parties. The trial court correctly rendered a summary judgment for the appellee thereon as to all issues. American Indemnity Co. v. Carney, D. C., 54 F. Supp. 273; Commercial Standard Insurance Co. v. Central Produce Company, D. C., 42 F. Supp. 31, affirmed 6 Cir., 122 F.2d 1021.
A summary of appellants' theory reveals that appellants correctly state that Earl C. Price was just as liable to the individuals who sustained damage as a result of the collision as was his employer, Yellow Transit Freight Lines, Inc. It should be observed that Yellow Transit Freight Lines, Inc., is insistent that it is also within the term "insured" as used in appellee's policy as much so as is the appellant, Earl C. Price. But, appellants' theory finally resolves itself into the proposition that since Earl C. Price was neither the owner nor the hirer of the tractor he was insured under appellee's policy although the owner of the tractor, Yellow Transit Freight Lines, Inc., was not so insured under the same policy by reason of the exclusion clause therein. However, appellants do not call attention to the fact that any settlement of the damage claims of the injured individuals as made on behalf of appellant Price would likewise insure to the benefit of appellant, Yellow Transit Freight Lines, Inc., and absolve it from all further liability. Therefore, a final analysis of appellants' theory in the cause reveals that Yellow Transit Freight Lines, Inc., owner of the tractor, though barred from recovery against appellee by the policy exclusion, could in effect extend the protection of appellee's written contract of insurance to cover any damage occasioned by its tractor merely by hiring appellant Price to drive the same.
It is not a sound legal proposition that protection as agreed upon in a written contract of insurance between two persons can be extended to a third person who is expressly excluded as an insured under the terms of such policy merely by the act of such third party in hiring a driver for its tractor.
Appellants' three points of error presenting the issues discussed herein are overruled, and the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/51393/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 27, 2007
No. 06-11959 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00205-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD MORRISON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(February 27, 2007)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Richard Morrison appeals his conviction and 78-month sentence for one
count of maliciously destroying by means of a fire a building, Bronco Bill’s Dance
Club, a.k.a. Mobile’s Pub (“Bronco Bill’s”), in Mobile, Alabama, that was used in
an activity affecting interstate commerce, in violation of 18 U.S.C. § 844(i). The
government, however, proved beyond a reasonable doubt his guilt, including the
element that the building had a sufficient nexus to interstate commerce. The
district court did not abuse its discretion in denying Morrison’s motion for new
trial based on newly discovered evidence, or for not holding an evidentiary hearing
on that motion, because the evidence at issue was not admissible under Federal
Rule of Evidence 608(b) and, thus, not material. Finally, the district court properly
calculated Morrison’s adjusted offense level, including the enhancement for
obstruction of justice because he retaliated against a government witness by
threatening him during a post-trial telephone conversation. We AFFIRM.
I. BACKGROUND
Richard Morrison was indicted for maliciously destroying Bronco Bill’s by
fire and, through attorney Dwight Reid, entered a plea of not guilty.1 Reid later
withdrew as Morrison’s counsel and attorney Neil Hanley entered an appearance as
1
Morrison also was convicted on one count of forfeiture, however, he has abandoned any
argument with respect to this conviction by not challenging it on appeal. See United States v. Ford,
270 F.3d 1346, 1347 (11th Cir. 2001) (per curiam).
2
Morrison’s counsel. Hanley filed a notice of intent to use the prior convictions of
Terry Fredriksen, a government witness, for impeachment purposes. The
government objected that because the prior convictions were more than ten years
old, they fell outside of the ten-year limitation in Federal Rule of Evidence 609.
The district court agreed with the government and held that the convictions were
inadmissible under Rule 609.
At trial, the government called, among others, a fire scene responder and
investigators; arson experts; the former owner of the property, Rachel Vallas, who
previously sold the property to Morrison via a vendor’s lien deed; and the
Shantazios, who were leasing the property from Morrison at the time of the fire. In
defense, Morrison called as witnesses, among others, Dwight Reed, an attorney
who had represented him prior the fire in other matters and at the beginning of the
criminal trial; and arson expert Charles Butler.
To establish a prima facie case of a violation of § 844(i), or arson, the
government called Frank Byrd, Captain of the Mobile Fire Department, who
testified that his unit responded to a call at 4:32 A.M. on 6 October 2004 regarding
an ongoing fire at Bronco Bill’s and had to force entry into the building because
the doors were locked. Once inside, Byrd heard a loud explosion, felt the fire
intensify, and commanded the firefighters to evacuate the burning building.
3
Shortly thereafter, the roof of the building partially collapsed.
The government also presented the testimony of Samuel Stephens, an
investigator for the City of Mobile Fire Department’s Bureau of Fire Prevention;
Harvey Douglas Cranford, a follow-up investigator with the Mobile Fire Rescue
Department; Daniel Hebert, a special agent for the Bureau of Alcohol, Tobacco
and Firearms (“ATF”) who had been recognized by the International Association
of Arson Investigators as the investigator of the year; and R. Harold Deese, a
certified fire and explosives investigator, all of whom independently opined that,
based on the burn patterns, the fire had been intentionally set using some type of
flammable liquid and had not been ignited accidently or by a natural cause.
Stephens, Cranford, and Deese believed that the fire originated on the dance floor
area, while Hebert concluded that the fire originated elsewhere in the building,
since the dance floor had a non-porous surface and there was no damage
underneath it. Although forensic tests on three samples taken from the building
after the fire tested negative for accelerants, the government witnesses uniformly
agreed that the negative results did not prove that a flammable liquid had not been
used, considering the amount of time that the fire burned and the amount of water
that was pumped into the building.
In order to establish its theory on how the fire had been set, the government
4
elicited from Hebert that it was possible that the burn pattern was consistent with
an ignitable liquid being poured from a height, and from Deese that he had
investigated arson cases in which a person had poured flammable liquids into the
building from a hole in the roof. Hebert and Deese’s testimonies were consistent
with that of Detective Mark Henderson’s testimony that he discovered “several”
holes in the south wall of the building, directly above the dance floor area, during
his investigation of the fire, and his opinion that these holes, if they existed at the
time of the fire, could have been used to introduce ignitable liquid into the
building. Doc. 74 at 799-801, 805. These holes were “basically cracks where two
boards ha[d] been placed together and then a cover board was placed over them
and they ha[d] been pried apart.” Id. at 801.
To establish a motive for the crime, the government elicited from Cranford
that, during an interview with Morrison around 6:00 P.M. on the day of the fire,
Morrison acknowledged that Bronco Bill’s was being foreclosed upon at that time
because he had missed two monthly payments and was in breach of contract by
permitting insurance on the building to lapse. This testimony was later
corroborated by two other government witnesses, Rachel Vallas and her nephew
and attorney, Pete Vallas. According to Rachel and Pete, Rachel sold the business
to Morrison in December 2001 via a vendor’s lien deed, but had initiated
5
foreclosure proceedings on the property after she received a worthless check from
him in June 2004 and had not received any checks from him for the months of
August or September. The foreclosure sale was set for 7 October 2006, the day
after the fire, but because of the fire and concerns about insurance coverage, it was
postponed.
Rachel also testified that she obtained mortgagee insurance on the property,
because Morrison had permitted the insurance on Bronco Bill’s to lapse for the
second time on 8 August 2004. With respect to the lapsed insurance, Pete testified
that, during a telephone conversation with Morrison on 1 October 2004, he
mistakenly informed Morrison that Rachel had “reinstated” the insurance policy,
when she actually had purchased mortgagee insurance, which was limited to the
amount of the vendor’s lien and not to the extent of the total loss. Doc. 73 at 558-
60, 569-70. After the fire, the insurance company paid her the amount of her
vendor’s lien and, consequently, Morrison became the fee simple owner of the
property.
The government also presented testimony from Shawn Michael Shantazio
and his wife, Alicia Shantazio, to prove that the building was used in an activity
that affected interstate commerce and that Morrison had the opportunity to commit
the crime. Shawn testified that he and Morrison had executed a one-year lease for
6
Bronco Bill’s on 7 July 2004, and that he and Alicia were running a restaurant on
the property named “Mobile’s Pub” at the time of the fire. Id. at 571-72, 574-76,
582-83. Shawn also testified that Morrison had arrived at the restaurant around
1:00 A.M. on 6 October 2004, a few hours before the fire started, wearing dark
clothes and boots and had stayed until closing around 1:45 A.M. to 2:00 A.M..
Shawn further testified that he had changed all of the locks on the building in
September 2004 without Morrison’s knowledge, and there were only four keys to
the new locks, one for himself, one for his wife, and one for each of the two
bartenders. Shantazio stated that he had locked all of the doors to the building on
the night of the fire.
Alicia testified that she personally sold and served Jack Daniel’s bourbon,
Dewar’s scotch whiskey, and Aristocrat vodka to patrons of Mobile’s Pub. Amy
Gilbert, a manager with the Alabama Beverage Control (“ABC”) Board,
corroborated Alicia’s testimony by stating that, according to ABC receipts, Bronco
Bill’s had purchased Jack Daniel’s bourbon manufactured in Lynchburg,
Tennessee, on 26 August 2004; Dewar’s scotch whiskey manufactured in Perth,
Scotland on 6 August 2004; and Aristocrat vodka manufactured in Bardstown,
Kentucky, on 10 September 2004.
To establish opportunity, the government presented the testimony of Emily
7
Kaye Davis, an employee at a BP gas station in Loxley, Alabama, who testified
that Morrison purchased two gallons of gasoline from her between 7:00 P.M. and
7:30 P.M. on 5 October 2004, the night before the fire. Davis admitted that many
people were filling gasoline containers at that time, because Hurricane Ivan had
recently struck that area on 16 September 2004. Nevertheless, she remember this
purchase as unique because Morrison, who was dressed in all black at the time,
parked his car on the north side of the building, out of view of the surveillance
camera, and walked over to the pumps to fill his gasoline container.
The government also presented the testimony of Robert Cumbie, a social
acquaintance of Morrison, who sometimes helped out at the club. Cumbie testified
that Morrison had discussed the problems he was having in making the monthly
mortgage payment on the Bronco Bill’s property, and with the foreclosures of
other properties he had owned before he leased Bronco Bill’s to the Shantazios.
Cumbie also testified that he noticed that Morrison was having problems with his
eyes during the spring of 2004. When Cumbie asked about the eye problem,
Morrison initially provided one explanation, but later gave a different explanation,
specifically, stating that he had hurt his eyes while attempting to burn down the
building with gas. This portion of Cumbie’s testimony was corroborated by
another government witness, Bobby McLemore, who testified that he checked
8
patrons’ identifications at the door at Morrison’s bar on one particular Thursday
and Friday night because, as he later learned from Morrison, Morrison’s eyes had
been injured while attempting to burn down the building with gas.
The government also called as a witness Terry Fredriksen, who testified that
Morrison had requested that she provide him with an alibi, since he had been alone
at home on the night of the fire. Based on this request, Fredriksen testified that she
initially told ATF agents that Morrison arrived at her house around 1:00 A.M. on
the night of the fire, that she went to bed around 3:00 A.M., and that he was not
there when she woke up later that morning. Approximately one month later,
however, Fredriksen recanted and told the ATF agents that Morrison had not
stayed at her house on the night of the fire. The ATF agents requested that
Fredriksen secretly record conversations with Morrison to see if he would admit
that he burned down Bronco Bill’s or that he was not at her home on the night of
fire.
The government then played two taped conversations between Fredriksen
and Morrison. Morrison never admitted to burning down the building, declaring
that he “didn’t burn no fucking building,”2 Doc. 73 at 672, during one
2
In the same conversation, Morrison commented that the agents had not bothered him with
further questions because they needed proof “beyond a shadow of a doubt” and that there was “no
proof like that. Because it ain’t happened.” Doc. 73 at 688.
9
conversation, and “I ain’t burned down no fucking building,” id. at 683, in another.
Morrison also never admitted that he was not at Fredriksen’s house on the night of
fire and stated during one of the conversations that he had not “had no nobody lie
for [him]. I was there at your house and that was that. . . . I come by your house
and fell asleep on your couch. And I ain’t going to tell it no other way, ever. But
that event happened. That’s what happened.” Id. at 671. He emphasized that
“there ain’t never going to come a day in life that I’m going to say that I went
anywhere other than your house, ‘cause that’s where I went.” Id. at 675. He
explained that he did not “even know when [Fredriksen] went to sleep. But
[Morrison] fell asleep sitting on the couch.” Id. at 676.
In the second conversation, Morrison again maintained that he had not done
anything wrong. When Fredriksen explained that she was being pressured by the
agents, Morrison responded that he did not understand what his visit to her house
had “to do with any of it. You can’t verify what I did or didn’t do while you went
to bed.” Id. at 699. He emphasized that he had “stopped by your house and that’s
as simple as that. I mean, that’s the way it is.”3 Id. at 700. He stated that he
“didn’t burn the place down to start with and they ain’t got no evidence I did. And
I didn’t do it, to begin with . . . they ain’t going to prove I did do it, because I
3
When Fredriksen asked Morrison “where were you that night?,” Morrison responded that
he was “[h]ome. After I went by your house.” Doc. 73 at 707.
10
didn’t do it.”4 Id. at 699.
The transcript of the conversation indicated, and the government contended,
that Morrison stated that he would “have been a whole lot better off if I had lied in
another direction. . . . I’d have been better off if I hadn’t told some fucking lies.” 5
Id. at 662-64, 684. Defense counsel maintained that Morrison actually stated, “I’d
have been better of if I had told some of those lies,” but Fredriksen disagreed,
stating, “That is not the way I took it at all.” Doc. 74 at 743.
After the government rested, Morrison moved for an acquittal, arguing that
the government did not prove (a) a prima facie case of arson, (b) that he was
involved in the fire, or (c) that the building had a substantial impact on interstate
commerce.6 The district court denied the motion.
Morrison’s first witness was Dwight Reed, his initial defense attorney, who
testified that he had explained to Morrison sometime before the fire that he would
4
Morrison also said “I didn’t fucking do it.” Doc. 73 at 701. He explained to Fredriksen
that the agents were “looking for . . . somebody I told I fucking did it to. And they ain’t going to
find that, because I ain’t fucking done it to start with.” Id. at 705. Later in the same conversation,
Morrison stated that he “ain’t had nothing to do with that fucking fire.” Id. at 707.
5
It is apparent that, based on the arguments made by the government and Morrison’s
attorney, the transcript of the recordings indicated Morrison used the word “hadn’t” rather than
“had,” see Doc. 73 at 662-64; Doc. 74 at 743, even though the record indicated that he used the word
“had” and not “hadn’t.” See Doc. 73 at 684.
6
Morrison did not, however, argue that § 844(i) was unconstitutional, that the district court
lacked subject matter jurisdiction under the Commerce Clause, or that the district court should
consider the Supreme Court’s decision in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624,
(1995), in dealing with constitutional claims under § 844(i).
11
have a statutory right of redemption in which he could redeem the foreclosed
property within one year of the foreclosure. Morrison also called Charles Butler, a
retired fire investigator for the Mobile Police Department, as a witness. Butler
testified that the “burn patterns [were] absolutely useless,” because distortions to
the patterns would have occurred when items were falling to the ground during the
fire. Doc. 75 at 952. Butler opined that, based on the fire’s origin, which he
contended was around the patron area where booths were located, approximately
five to six feet away from the dance floor area, a smoldering cigarette dropped
from one of the booths, not arson, caused the fire. Butler further testified that it
was “not conceivable” that someone could drill a hole in the roof and drop an
ignitor to start a fire and, moreover, he found nothing to support such a theory
during his investigation. Id. at 987. Butler admitted that the negative test results
did not prove that no accelerant was present, and that, even if a cigarette had
burned down the building, he could not discount the possibility that Morrison was
the person who dropped the cigarette onto the floor. Butler also admitted that only
four of the one thousand fires he had investigated previously were definitely
caused by a cigarette. Morrison then moved for a renewed judgment of acquittal
on the same grounds as before, and the district court again denied the motion.
Morrison was subsequently found guilty by the jury as charged.
12
Morrison’s counsel also filed a motion for a new trial based on newly
discovered evidence. Counsel recounted that his request to use Fredriksen’s prior
convictions for impeachment was denied. He stated that, within two weeks of
filing the motion, he had learned that, at the time of her testimony as a “key
prosecution witness,” Fredriksen “was under investigation by the Drug
Enforcement Administration and the United States Attorney Office for the
Southern District of Alabama for major drug crimes,” including the distribution of
“large amounts of methamphetamine, ‘ice,’ MDMA or ecstacy, and marijuana.”
Doc. 49 at 1, 2. Counsel also alleged that the United States Attorney’s Office
possessed documents relating to Fredriksen’s criminal activities in relation to six
named defendants. The district court denied the motion because Morrison failed to
establish that he exercised diligence in discovering the evidence, since the motion
was silent as to precisely when he learned of the investigation against Fredriksen;
the evidence, at best, would have been used for impeachment purposes; and the
evidence would not have resulted in an acquittal, since it was inadmissible under
Fed. R. Evid. 608, and, thus, not material. Morrison’s motion for reconsideration
and for production of documents, which argued that the information could be used
to impeach Fredriksen’s credibility under Fed. R. Evid. 608, was also denied.
The probation officer assigned Morrison a base offense level of 24, and
13
recommended a two-level enhancement for obstruction of justice for threatening,
intimidating, or otherwise unlawfully influencing a witness because Morrison had
contacted and threatened a government witness who had discredited Morrison’s
alibi on the night of the fire. With an adjusted offense level at 26 and a criminal
history category of I, Morrison faced a Guidelines sentencing range of 63-78
months in prison. Morrison filed written objections to the presentence
investigation and argued, in part, that an obstruction of justice enhancement
recommendation was not warranted.
At the sentencing hearing, Morrison renewed his written objections, arguing
that the obstruction of justice enhancement was inapplicable because he could not
have had the specific intent to obstruct justice when he allegedly contacted the
government witness as the trial had already concluded and the witness had already
testified. In response to this objection, the government presented the testimony of
Cumbie who testified, in part, that Morrison telephoned him on the night after the
verdict was rendered and “threatened [his] life a couple of times” because Cumbie
“didn’t have to say what I said” and, in Morrison’s words, “friends don’t do friends
that way.” Doc. 1049-50, 1083-85, 1087-88.
The government also argued that the obstruction of justice enhancement was
justified because Cumbie could have been called as a sentencing witness with
14
respect to other outstanding issues. The government also argued that the
enhancement was warranted based on Fredriksen’s testimony that Morrison asked
her to provide him with a false alibi on the night of the fire. Morrison responded
by presenting the testimony of his ex-wife, Melissa Morrison, who stated that she
overheard the conversation at issue, and that Morrison never threatened Cumbie.7
The district court concluded that the obstruction of justice enhancement was
warranted because Morrison’s telephonic threat was in retaliation of Cumbie
testifying against him, a violation of 18 U.S.C. § 1513 and a proper reason under §
3C1.1 for applying the enhancement. The district court stated that it had
“considered the statutory purposes of sentencing and . . . the sentencing
guidelines,” found that the guidelines provide for an appropriate sentence under
the circumstances, and that the sentence that he intended to impose was “otherwise
reasonable under the statutory provisions of sentencing.” Id. at 1107. Morrison
was then sentenced to a term of 78 months in prison based on an adjusted offense
level of 26 and a criminal history category of I.8
On appeal, Morrison raises four issues: (1) whether the evidence at trial
7
Morrison was at his ex-wife’s home at the time of this telephone call, attending what he had
hoped would be a “victory party,” and had the telephone conversation on a speaker phone with a
number of people in the same room. Doc. 76 at 1097-1100.
8
Morrison was remanded into custody and reported to the Federal Correctional Institution
in Oakdale, Louisiana on 8 May 2006.
15
proved beyond a reasonable doubt that he maliciously destroyed a building by fire;
(2) whether the trial evidence sufficiently showed that the burned building had an
effect on interstate commerce; (3) whether the district court abused its discretion
by denying his motion for a new trial based on newly discovered evidence without
holding an evidentiary hearing; and (4) whether the district court clearly erred at
sentencing by enhancing his base offense level for an obstruction of justice.
II. DISCUSSION
A. Proof of Morrison’s malicious destruction of a building by means of a fire
Morrison argues that there was insufficient evidence to prove his guilt
beyond a reasonable doubt for violating § 844(i). He contends that the government
did not proffer any direct evidence of his guilt, and its circumstantial evidence–that
a foreclosure sale was set for the day after the fire; that he purchased gas the day
before the fire; and that Fredriksen testified that she provided him with a false
alibi--was inadequate to convict him for this substantive crime, especially
considering that, because the Shantazios had changed all of the locks to the
building, he was unable to enter the building at the time of the fire. He notes that
he repeatedly told Fredriksen during the taped conversations that he did not set the
fire; that, although he purchased gasoline on the day before the fire, Hurricane Ivan
recently had struck; that his attorney had informed him before the fire that he had a
16
right of redemption for one year after the foreclosure; and that the government was
unable to find ignitable liquids on the building samples taken after the fire.
A defendant’s motion for a judgment of acquittal following the
government’s case and renewal of this motion at the close of all of the evidence
will properly preserve the challenge to the sufficiency of the evidence on appeal.
Clark v. United States, 293 F.2d 445, 448 (5th Cir. 1961). We review a properly
preserved sufficiency of the evidence claim de novo. United States v. McDowell,
250 F.3d 1354, 1361 (11th Cir. 2001).
In determining whether the evidence is sufficient to support a conviction, we
view the evidence in the light most favorable to the government and decides
whether a reasonable juror could have reached a conclusion of guilt beyond a
reasonable doubt. United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir.1997).
We resolve all reasonable inferences and credibility evaluations in favor of the
jury’s verdict, United States v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995),
whether the evidence is direct or circumstantial. United States v. Awan, 966 F.2d
1415, 1434 (11th Cir. 1992).
To support a conviction under 18 U.S.C. § 844(i), the government must
establish, among other elements, that a defendant (1) maliciously damaged or
destroyed; (2) by means of a fire or an explosive; (3) a building, vehicle, or other
17
real or personal property.9 Although § 844(i) does not define the term
“maliciously,” several circuits have specifically held that, based on common law
and the legislative history of the statute, the term includes acts done “intentionally
or with willful disregard of the likelihood that damage or injury would result.” See
United States v. Wiktor, 146 F.3d 815, 818 (10th Cir. 1998) (per curiam) (citing
supporting decisions from several sister circuits; citations and quotation marks
omitted).
The government presented sufficient evidence at trial to support the
conclusion that Morrison maliciously destroyed Bronco Bill’s by means of a fire.
The government proffered four independent experts, Stephens, Cranford, Herbert,
and Deese, all of whom opined that, based on the particular burn patterns, the fire
was intentionally set. Although the government did not produce any direct
evidence tying Morrison to the arson, it produced sufficient circumstantial
evidence for a reasonable juror to find guilt beyond a reasonable doubt on the
substantive count. Calderon, 127 F.3d at 1324. Specifically, the government
established a possible motive for the arson. Morrison, whose financial difficulties
had culminated in the foreclosure of certain properties and a foreclosure sale on
9
The government must also establish a fourth element, namely that the building, vehicle, or
other real or personal property was used in interstate or foreign commerce or in an activity affecting
interstate or foreign commerce. 18 U.S.C. § 844(i). This element is separately discussed.
18
Bronco Bill’s set for the day after the fire, had been mistakenly informed by
attorney Pete Vallas sometime before the fire that the building was fully covered
by insurance, of which Morrison would have been entitled to a share of the
proceeds. The government also proved that, once the insurance company satisfied
Rachel Vallas’s vendor’s lien, Morrison became the fee simple owner of the
property as a result of the fire.
Additionally, the government showed that Morrison had the opportunity to
commit the crime. The government presented the testimony of Davis, the BP
employee, who testified that Morrison purchased two gallons of gasoline, an
ignitable liquid, on the night before the fire and, in doing so, parked his automobile
away from the gasoline pumps and out of view of the surveillance camera. The
government introduced the Shantazios’s testimony that Morrison was at Bronco
Bill’s in the early morning hours on the day of the fire. Even though Morrison did
not have a key to the building, the government introduced two expert witnesses,
Herbert and Deese, who respectively testified that it was possible that the burn
pattern was consistent with an ignitable liquid being poured from a height, and that
it was possible for an arsonist to introduce an accelerant into the building from the
outside. Their testimony corroborated the government’s theory in the case, based
on Detective Henderson’s findings at the fire scene, that Morrison introduced an
19
accelerant from the outside through one of the holes in the wall of the south side of
the building, directly above the dance floor area where two of the government’s
expert witnesses opined that the fire began. Although Henderson could not
definitively conclude that the holes existed before the fire, a reasonable juror could
have believed that they did, and that Morrison set the fire by pouring a flammable
liquid into the building through these holes. The government also established
through two witnesses, Cumbie and McLemore, that Morrison had attempted to
burn down the building at least once before. Finally, the government established
that Morrison attempted to conceal the crime through Fredriksen’s testimony that,
based on Morrison’s request to do so, she initially provided a false alibi for him for
the night of the fire since he had been alone at home on that night.
Based on all of this evidence, a reasonable juror could have concluded
beyond a reasonable doubt that Morrison maliciously destroyed by means of a fire
Bronco Bill’s. Because the government presented sufficient evidence that the
burned down building had an effect on interstate commerce, as discussed in the
following issue, the government established a violation of § 844(i). Sufficient
evidence supports Morrison’s conviction on this substantive count.
B. Sufficient evidence of an effect on interstate commerce
Morrison argues that the government did not present sufficient evidence that
20
Bronco Bill’s had a substantial effect on interstate commerce, as required by §
844(i), especially in light of United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624
(1995),10 and United States v. Denalli, 73 F.3d 328 (11th Cir.) (per curiam),
modified on other grounds, 90 F.3d 444 (11th Cir. 1996) (per curiam). Morrison
contends that Lopez limited Congress’s commerce powers and that Denalli
required the nexus of a substantial impact to support a conviction under this
statute. Morrison argues that the government’s evidence to prove this
element–testimony from an ABC employee that Bronco Bill’s had purchased
premium liquors manufactured out of state–was insufficient to establish the
requisite interstate commerce nexus.
As an initial matter, Morrison frames his issue as one of sufficiency of the
evidence, and he does not squarely raise a constitutional issue with respect to 18
U.S.C. § 844(i). Therefore, he only asserts a statutory claim with respect to this
statute.11
10
Morrison’s reliance on Lopez is misplaced. Lopez involved a constitutional and not a
statutory claim and construed a statute other than § 844(i).
11
To the extent that Morrison raises both constitutional and statutory claims with respect to
§ 844(i), see United States v. Dascenzo, 152 F.3d 1300, 1301 n.3 (11th Cir. 1998), the constitutional
claim is subject to plain error review since it was not raised below, see United States v. Taylor, 417
F.3d 1176, 1183 (11th Cir.) (per curiam), cert. denied, U.S. , 126 S. Ct. 768 (2005), and fails
as we have rejected facial challenges to § 844(i). See United States v. Grimes, 142 F.3d 1342, 1346
(11th Cir. 1998). The statute is constitutional as applied to Morrison because the government
proved that the interstate commerce nexus was satisfied under the standards established in Russell
v. United States, 471 U.S. 858, 105 S.Ct. 2455 (1985), and other cases construing § 844(i). See
21
We review de novo a district court’s denial of a motion for judgment of
acquittal based on sufficiency of the evidence. United States v. Williams, 144 F.3d
1397, 1401 (11th Cir. 1998). Section § 844(i) makes it illegal to burn “any . . .
property used in interstate . . . commerce or in any activity affecting interstate . . .
commerce.” The act was promulgated to protect “[n]early all type of property”
that is “used in or affects interstate commerce.” United States v. Miller, 24 F.3d
1357, 1360-61 (11th Cir. 1994).
The Supreme Court initially construed the present version of this statute in
Russell v. United States, 471 U.S. 858, 105 S. Ct. 2455 (1985). In Russell, the
Court held that a two-unit apartment building that was used as rental property fell
within the ambit of § 844(i) and that the statute’s legislative history “suggest[ed]
that Congress at least intended to protect all business property, as well as some
additional property that might not fit that description, but perhaps not every private
home.” Id. at 862, 105 S. Ct. at 2457. The Court also wrote that:
By its terms, however, [§ 844(i)] only applies to property that is
‘used’ in an ‘activity’ that affects commerce. The rental of real estate
is unquestionably such an activity. . . . [T]he local rental . . . is merely
an element of a much broader commercial market in rental properties.
The congressional power to regulate the class of activities that
constitute that rental market for real estate includes the power to
regulate individual activity within that class.
Grimes, 142 F.3d at 1346-47.
22
Id. (footnotes omitted).
Following Russell, we used various standards in analyzing the interstate
commerce nexus of § 844(i)–some of which were more stringent than others–and,
in fact, once specifically held that a “case-by-case inquiry” was necessary because
“[p]recise formulations of the requisite interstate commerce nexus are not
possible.” United States v. Chowdhury, 118 F.3d 742, 745-46 (11th Cir. 1997)
(per curiam); see e.g., United States v. Chisholm, 105 F.3d 1357, 1358 (11th Cir.
1997) (per curiam) (recognizing various tests articulated by this court); Belflower
v. United States, 129 F.3d 1459, 1462, n.4 (11th Cir. 1997) (per curiam)
(acknowledging that “some degree of tension may exist” if Denalli was interpreted
to require “the government to prove in each case a substantial effect on interstate
commerce”).
In Denalli, we recognized a “substantial nexus” test, 73 F.3d at 329-30,
while in United States v. Utter, 97 F.3d 509, 516 (11th Cir. 1996), we determined
that the building had an “apparent” effect on interstate commerce. See also
Chowdhury, 118 F.3d 745-46 (utilizing the “apparent” effect standard and noting
that a later pronouncement by the Supreme Court did not call into question the
conclusion in Russell “that the federal arson statute invariably protects business
property,” and therefore Russell remained “authoritative precedent”).
23
In another case, we opined that § 844(i) may only require a minimal nexus to
interstate commerce. See United States v. Viscome, 144 F.3d 1365, n.9 (11th Cir.
1998) (“If this court were not bound by Denalli, the government makes a strong
argument that the second prong of § 844(i) requires no more than its language
indicates: namely, that the property at issue be used in ‘any activity affecting
interstate or foreign commerce.’ Even a minimal effect on interstate commerce,
therefore, would be sufficient”); cf. United States v. McAllister, 77 F.3d 387, 389-
90 (11th Cir. 1996) (concluding that a defendant could be convicted under 18
U.S.C. § 922(g)(1)–a statute that prohibited felons from possessing “in or affecting
commerce, any firearm or ammunition”–if the government proved that the weapon
in question had a “minimal nexus” to interstate commerce, rather than a
“substantial nexus,” since § 922(g)(1) contained a jurisdictional element, like
§ 844(i)).
We also have articulated an “aggregate” approach. See Chowdhury, 118
F.3d at 745 (discussing that in “a case concerning the destruction of business
property, when considered in the aggregate, would have a substantial effect on
interstate commerce because business property will almost invariably be an
element of a much broader commercial market”); Viscome, 144 F.3d at 1368
(“[S]ubsequent to the Denalli decision involving a private residence, . . . if business
24
property is involved, then the property need only have been used in an activity that
in the aggregate has a substantial effect on interstate commerce.”); Dascenzo, 152
F.3d at 1303 (“Aggregation of the effects on commerce of a given activity (such as,
the renting of property) to determine whether a substantial effect on commerce
exists is an approach to Commerce Clause legislation recognized by the Supreme
Court.”); cf. Belflower, 129 F.3d at 1459, 1462 (holding that, in the context of a
§ 2255 motion, the government satisfied the nexus requirement by showing that
activities, in the aggregate, affected interstate commerce).
Following our interpretations, the Supreme Court issued two decisions that
impacted the analysis of the interstate commerce nexus under § 844(i). First, in
Jones v. United States, 529 U.S. 848, 855, 120 S. Ct. 1904, 1910 (2000), the
Supreme Court held that the government was required to prove that the burned
down building had been actively–as opposed to passively–employed in interstate
commerce in order to establish a violation of § 844(i). Second, in United States v.
Morrison, 529 U.S. 598, 613, 617, 120 S. Ct. 1740, 1751, 1754 (2000), the
Supreme Court struck down as unconstitutional 42 U.S.C. § 13981, a provision of
the Violence Against Women’s Act that provided a federal civil remedy for victims
of gender-motivated violence, and “reject[ed] the argument that Congress may
regulate noneconomic, violent criminal conduct based solely on that conduct’s
25
aggregate effect on interstate commerce.”
Following the Jones and Morrison decisions, courts began reevaluating
decisions construing § 844(i), and some of them concluded that these two Supreme
Court decisions undermined, if not implicitly abrogated, certain decisions. In
United States v. Odom, 252 F.3d 1289, 1297 (11th Cir. 2001) (citation omitted),
we noted that the Morrison opinion called into doubt our suggestion in Dascenzo
that “only a ‘minimal effect on interstate commerce’ was required under § 844 so
long as the effect of arson on the particular type of property had an aggregate effect
on interstate commerce.” See also United States v. Tush, 151 F. Supp. 2d 1246,
1248-49 (D. Kan. 2001) (concluding that the Utter decision was abrogated by
Jones, since it relied on a passive connection, rather than an active connection, to
interstate commerce).
As a result, in Odom, we utilized the substantial nexus standard and
commented that the government needed to prove more than a “nominal”
connection to interstate commerce, or else the distinction between national and
local authority would be “completely obliterate[d]” as though “no jurisdictional
requirement existed at all.” 252 F.3d at 1296 (citation omitted). Citing Jones, we
identified three factors to consider in determining whether damage or destruction
of a building is properly prosecutable under § 844(i), specifically: (1) the function
26
of the building; (2) whether that function is involved in commerce; and (3) whether
the commerce in which the building is involved sufficiently affects interstate
commerce. Id. at 1294.
With respect to the parameters of the requisite interstate commerce nexus
under § 844(i), we have affirmed a conviction under § 844(i) on a showing that the
burned down public restaurant in question catered to interstate travelers and served
alcohol and used natural gas, both of which originated out of state, see Utter, 97
F.3d at 516; determined that the nexus was satisfied where the burned down
building was a commercial building in which the defendant rented his restaurant
space, where he purchased products from out-of-state manufacturers, and where
the restaurant, had it opened, would have been a public restaurant available to
interstate travelers, see Chowdhury, 118 F.3d at 745-46; and affirmed a
defendant’s conviction under § 844(i) after concluding that the government
satisfied the interstate commerce nexus requirement through its proof that the truck
in question was “the subject of an interstate lease” at the time of its attempted
bombing and, thus, was “a tangible component of interstate commerce,” see
Viscome, 144 F.3d at 1369.
We have also, however, that the § 844(i) interstate commerce nexus is not
satisfied where the government’s only evidence to establish the requisite interstate
27
commerce nexus was that the owner of the burned down house occasionally
produced memoranda on his home computer, which he then printed off and hand-
delivered to his co-workers at his place of employment, a corporation that engaged
in international business, see Denalli, 73 F.3d at 329-31, and to show that the
church at issue “was used in or affected interstate commerce” was evidence that the
church received donations from a few out-of-state donors; utilized some Bibles and
prayer books that had been purchased from an out-of-state distributor; obtained
natural gas from an out-of-state vendor; and indirectly contributed to an out-of-
state church organization through its membership in the in-state church
organization, see Odom, 252 F.3d at 1296-97, 1299.
In this case, the government submitted sufficient evidence to prove that
Bronco Bill’s had an effect on interstate commerce, as required by § 844(i),
regardless of which standard is applied. The function of Bronco Bill’s or Mobile’s
Pub at the time of the fire was a commercial restaurant and bar business, which
was located on property that was being rented by owners of the restaurant from
Morrison, the actual owner of the property. See Odom, 252 F.3d at 1294.
While the government’s evidence that the restaurant purchased various
alcohols from out-of-state distributors and possibly catered to out-of-state patrons
may have been sufficient standing alone to establish the interstate commerce
28
nexus, the fact that the property was rental real estate “unquestionably”
demonstrated that the building was actively employed in, and had a substantial
effect on an activity involving interstate commerce, and, thus, was covered by
§ 844(i). Russell, 471 U.S. at 862, 105 S. Ct. at 2457. The government proffered
sufficient evidence to establish the requisite interstate commerce nexus under
§ 844(i), and proved Morrison’s guilt beyond a reasonable doubt as to all of the
other elements of this statute.
C. Denial of Morrison’s motion for a new trial without an evidentiary hearing
Morrison argues that the district court abused its discretion by denying his
motion for a new trial based on newly discovered evidence, information that
Fredriksen was under investigation for major drug crimes, without holding an
evidentiary hearing on the matter. Morrison contends that Fredriksen was the
government’s strongest witness and that other witness testimony regarding her
drug dealing would have significantly impacted the outcome of the trial and could
have produced an acquittal. Morrison also argues that it was disingenuous to assert
that he possessed the information at the time of trial, since he noted in his motion
for a new trial that he had recently learned of it. He also maintains that the
information was relevant and that the district court should have at least considered
an in camera review of the documents because the government did not deny their
29
existence.
We review the district court’s denial of a motion for a new trial based on
newly discovered evidence for abuse of discretion. United States v. Noriega, 117
F.3d 1206, 1217 (11th Cir. 1997). Further, “[t]he decision of the trial court not to
hold [an evidentiary] hearing is within the trial court’s sound discretion, subject to
review only for an abuse of that discretion.” United States v. Schlei, 122 F.3d 944,
990 (11th Cir. 1997) (citation omitted).
Federal Rule of Criminal Procedure 33 permits a defendant to file for a new
trial based on newly discovered evidence, and “the court may vacate any judgment
and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a),
(b)(1). We have stated that a motion for a new trial on newly discovered evidence
is “highly disfavored” and “should be granted only with great caution.” United
States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc).
A new trial based on newly discovered evidence is warranted only if: “‘(1)
the evidence was in fact discovered after trial; (2) the defendant exercised due care
to discover the evidence; (3) the evidence was not merely cumulative or
impeaching; (4) the evidence was material; and (5) the evidence was of such a
nature that a new trial would probably produce a different result.’” United States
v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005) (citation omitted). “‘The
30
failure to satisfy any one of these elements is fatal to a motion for a new trial.’” Id.
(citation omitted).
Undisclosed exculpatory “evidence is material ‘if there is a reasonable
probability that, had the evidence been disclosed to the defense, the proceeding
would have been different.’” Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct.
1936, 1948 (1999) (citation omitted). Although inadmissable evidence is generally
not material, it may be material if it leads to admissible evidence that would have
resulted in a different outcome at trial. See generally Wright v. Hopper, 169 F.3d
695, 703-04 n.1 (11th Cir. 1999).
According to Fed. R. Evid. 608(b):
Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’ character for truthfulness, other
than conviction of crime[,] . . . may not be proved by extrinsic
evidence. They may, however, in the discretion of the court, if
probative of truthfulness or untruthfulness, be inquired into on cross-
examination of the witness (1) concerning the witness’ character for
truthfulness or untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to which character
the witness being cross-examined has testified.
Fed. R. Evid. 608(b).
The district court did not abuse its discretion in denying Morrison’s motion
for a new trial or by not holding an evidentiary hearing on it. First, while Morrison
argues on appeal that he discovered the evidence shortly after trial, he does not
31
contest the district court’s finding that there was insufficient evidence that he
exercised due care and diligence in obtaining the information. Thus, he has
arguably waived this issue on appeal. See Greenbriar, Ltd. v. City of Alabaster,
881 F.2d 1570, 1573 n.6 (11th Cir.1989) (deeming issues not argued on appeal
waived, and noting that a passing reference on appeal to the issue was insufficient
to properly raise it). Moreover, the newly discovered evidence–information that
Fredriksen was under investigation for major drug crimes–is inadmissible under
Rule 608(b) and would have led to no admissible evidence. It was, thus, not
material.
Finally, although Morrison argued on reconsideration that the evidence
could have been used to impeach Fredriksen’s credibility, impeachment is not a
proper justification for granting a new trial based on newly discovered evidence.
See Thompson, 422 F.3d at 1294 (noting that a new trial based on newly
discovered evidence is not warranted if the evidence was merely “impeaching”).
D. Enhancement of Morrison’s base offense level for obstruction of justice
Morrison argues that the district court clearly erred by enhancing his base
offense level for obstruction of justice on a finding that he threatened a witness
after the conclusion of the trial. He maintains that the government did not show,
and could not have shown, that he had the specific intent to obstruct justice, since
32
the jury had already returned its verdict when the alleged threat was made.
We review the district court’s factual findings, including the determination
of whether to apply an obstruction of enhancement under the guidelines, for clear
error and its application of the sentencing guidelines to the facts de novo. United
States v. Rubio, 317 F.3d 1240, 1244 (11th Cir. 2003).
United States Sentencing Guidelines § 3C1.1 provides for a two-level
sentence enhancement:
[i]f (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of
the investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense . . . .
According to this provision’s commentary, the enhancement applies if the
defendant’s obstructive conduct, which can include the threatening of a witness,
“occurred during the course of . . . sentencing of the defendant’s instant offense of
conviction.” USSG § 3C1.1, comment. (n.1(A) & 4(a)). The enhancement applies
if the defendant’s conduct is prohibited by the obstruction of justice provisions of
Title 18. Id. at comment. (n.4(i)). Title 18 § 1513(b) prohibits a person from
threatening to inflict bodily injury on a witness with the intent to retaliate against
that witness. When a defendant challenges a factual base for his sentence, “[t]he
[g]overnment has the burden of proving the applicability of a guideline section
33
which would enhance a defendant’s offense level . . . by a preponderance of the
evidence . . . with ‘reliable and specific evidence.’ ” United States v. Cataldo, 171
F.3d 1316, 1321 (11th Cir. 1999) (citation omitted).
The probation officer recommended the obstruction of justice enhancement
on the basis that Morrison violated § 3C1.1 by threatening, intimidating, or
otherwise unlawfully influencing a witness. In support of that recommendation,
the government adduced at the sentencing hearing from Robert Cumbie, a
government witness during Morrison’s trial, that Morrison contacted him by
telephone shortly after the verdict was rendered and threatened to kill him because,
according to Morrison, “friends don’t do friends that way.” Doc. 76 at 1084-85.
The district court did not clearly err in enhancing Morrison’s base offense
level for obstruction of justice on a determination that the telephonic threat against
Cumbie was in retaliation of him testifying against Morrison at trial that was a
proper justification for applying the obstruction of justice enhancement. Cf.
Rubio, 317 F.3d at 1242, 1244-45 (affirming the district court’s application of the
obstruction of justice enhancement where the defendant retaliated against a witness
after trial, in violation of 18 U.S.C. § 1513(b)).
III. CONCLUSION
Morrison challenges his conviction and sentence for one count of
34
maliciously destroying by means of a fire a building that was used in an activity
affecting interstate commerce. Because the government proved his guilt on this
count and the building’s nexus to interstate commerce beyond a reasonable doubt,
we AFFIRM his conviction. We AFFIRM the district court’s denial of
Morrison’s motion for a new trial based on newly discovered evidence or without
holding an evidentiary hearing because the evidence was not admissible or
material. We also AFFIRM his sentence. The district court properly calculated
his adjusted offense level, including an enhancement for obstruction of justice,
because Morrison retaliated against a government witness by threatening him
during a post-trial telephone conversation.
AFFIRMED.
35 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3038425/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1776
___________
Sally Spaulding, formerly known as *
Sally Tobelmann, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Department of Health and Human *
Services, * [UNPUBLISHED]
*
Defendant, *
*
Social Security Administration, *
*
Appellee. *
___________
Submitted: August 4, 2005
Filed: August 9, 2005
___________
Before COLLOTON, HANSEN, and BENTON, Circuit Judges.
___________
PER CURIAM.
Sally Spaulding appeals the district court’s1 adverse grant of summary
judgment, and its adverse grant of a Federal Rule of Civil Procedure 12(b)(6) motion,
1
The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
in her action brought under the Rehabilitation Act of 1973 (Rehab Act). Having
conducted de novo review, see Peebles v. Potter, 354 F.3d 761, 765 (8th Cir. 2004)
(summary judgment standard of review); Ferris, Baker Watts, Inc. v. Ernst & Young,
LLP, 395 F.3d 851, 853 (8th Cir. 2005) (Rule 12(b)(6) dismissal standard of review),
we agree with the district court that Spaulding’s retaliation claims were not
administratively exhausted, see Wallin v. Minn. Dep’t of Corr., 153 F.3d 681, 688
(8th Cir. 1998), cert. denied, 526 U.S. 1004 (1999); and that the Social Security
Administration met its duty under the Rehab Act by restructuring Spaulding’s job,
see Peebles, 354 F.3d at 767. Spaulding cannot seek reversal by asserting ineffective
assistance of counsel. See Glick v. Henderson, 855 F.2d 536, 541 (8th Cir. 1988)
(defendant has no constitutional or statutory right to effective assistance of counsel
in civil case).
Accordingly, we affirm. See 8th Cir. R. 47B.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2751247/ | Dismissed and Memorandum Opinion filed November 13, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00549-CR
GLENN LLOYD KINGHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Court No. 3
Galveston County, Texas
Trial Court Cause No. MD-0338715
MEMORANDUM OPINION
This appeal is from a judgment signed May 29, 2014. No clerk’s record or
reporter’s record has been filed in this case. The clerk and court reporter informed
this court that appellant had not made arrangements for payment for the clerk’s
record or reporter’s record. See Tex. R. App. P. 35.3(c). On August 12, 2014, we
abated this appeal for a hearing in the trial court to determine if appellant is entitled
to proceed without the payment of costs. See Tex. R. App. P. 37.3(b), (c)(2)(B).
A hearing was held August 22, 2014, and a record of that hearing has been
filed in this court. The record reflects the trial court found appellant is not entitled
to proceed without payment of costs. Rule 37.3(b) of the Rules of Appellate
Procedure provides:
If No Clerk's Record Filed Due to Appellant's Fault. If the trial court
clerk failed to file the clerk’s record because the appellant failed to
pay or make arrangements to pay the clerk's fee for preparing the
clerk's record, the appellate court may--on a party’s motion or its own
initiative--dismiss the appeal for want of prosecution unless the
appellant was entitled to proceed without payment of costs. The court
must give the appellant a reasonable opportunity to cure before
dismissal.
On September 25, 2014, appellant was ordered to provide this court with
proof of payment for the clerk’s record on or before October 27, 2014, or the
appeal would be dismissed for want of prosecution. See Tex. R. App. P. 37.3(b).
Appellant has not provided this court with proof of payment for the record.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Justices McCally, Brown and Wise.
2 | 01-03-2023 | 11-13-2014 |
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