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https://www.courtlistener.com/api/rest/v3/opinions/1920502/ | 107 B.R. 124 (1989)
In re Gregory Walter SCHNURR, Debtor.
John HUMPHRIES, Jr., Plaintiff,
v.
Gregory Walter SCHNURR, Defendant.
Bankruptcy No. 88-12399FM, Adv. No. 88-1321FM.
United States Bankruptcy Court, W.D. Texas, Austin Division.
October 31, 1989.
*125 John W. Alvis, Alvis, Carssow, von Kreisler & Gotcher, Austin, Tex., for debtor.
William R. Allensworth, Haynes and Boone, Austin, Tex., for plaintiff.
Marsha G. Kocurek, Austin, Tex., Trustee.
MEMORANDUM OPINION
FRANK R. MONROE, Bankruptcy Judge.
This adversary proceeding involves allegations that the Debtor violated 11 U.S.C. §§ 727(a)(2)(A), (a)(3), and (a)(4)(A), and accordingly, should not receive a discharge in his bankruptcy case.
This Court has jurisdiction of this case pursuant to 28 U.S.C. § 157(b) and 28 U.S.C. § 1334, as well as the standing Order of Reference existing in this District. Additionally, this adversary proceeding is a core proceeding since it involves claims made under 11 U.S.C. § 727.
I. FACTS
A. The Transfer
Gregory Walter Schnurr was a painting contractor. He had been so for twelve to thirteen years prior to the transfer about which the plaintiff, John Humphries, Jr., a creditor of the debtor, complains. The debtor had operated his business as a sole proprietorship known as Schnurr & Associates. Mr. Schnurr failed to make appropriate payments of trust fund monies to the Internal Revenue Service which had been withheld from employees' wages, and as of early 1987, owed the Internal Revenue Service approximately $246,000.00 by reason of such failure. An agreement was struck, and the debtor paid to the Internal Revenue Service four monthly installments of $7,000.00 each. The debtor, however, defaulted and did not make the installment due on September 1, 1987. The IRS acted swiftly upon being notified by the debtor that such payment would not be made and levied upon on the debtor's bank account trapping approximately $19,000.00.
This levy caused certain checks of Schnurr & Associates not to be honored at the bank. These checks were in payment of employee wages and various materialmen on ongoing painting jobs upon which Schnurr & Associates was the painting subcontractor. It is evident that such levy contributed heavily to the debtor deciding to allow Schnurr & Associates to go out of business.
The debtor, however, was not deterred. Having some nine months earlier talked with counsel concerning the potential of incorporation of his painting business, he again contacted counsel and caused the incorporation of a Texas corporation by the name of Schnurr & Associates, Inc. (the "First Corporation") on September 14, 1987. The First Corporation commenced business on October 1, 1987, after having received a transfer from Schnurr & Associates of all its ongoing painting contracts. These contracts had current accounts receivable to Schnurr & Associates in the amount of $199,506.80 which were also transferred. Payables of Schnurr & Associates, on the contracts transferred in the amount of $135,540.11 were assumed by the First Corporation. The apparent net benefit to the First Corporation by reason of this transfer and assumption was $63,966.69.
No documentation of this transfer and assumption exists as the debtor chose not to document it. The only evidence of the transfer and assumption other than the testimony of the debtor is a journal entry in the amount of $63,966.69 made in the books and records of the First Corporation which set up a payable account (called "Note Payable") to Gregory Walter Schnurr, the debtor. Such entry states by way of explanation the following: "S & A, *126 Inc. acquired from S & A its accounts receivable and payable. The difference is payable to Greg Schnurr, as sole proprietor of S & A". Other than the testimony of the debtor, Gregory Schnurr, which is conflict on (1) whether he intended the transfer to create the resulting indebtedness to him as the books of the First Corporation show, or (2) whether he intended it to create equity in the new First Corporation, this book entry is the only evidence of the character of the consideration passing to the debtor by reason of his transfer to the First Corporation. This Court finds it is also the best evidence of what transpired. Accordingly, this Court finds that the consideration from the First Corporation to the debtor by reason of his transfer was the creation of an indebtedness to Gregory Schnurr of $69,966.69.
Subsequent to October 1, 1987, Schnurr & Associates ceased business. Clearly this is because it had no business left to conduct after the transfer. Certain assets and liabilities of Schnurr & Associates remained as personal assets and liabilities of the debtor since only the viable assets of Schnurr & Associates had been transferred to the First Corporation and only the liabilities directly attributable to the viable assets had been assumed by the First Corporation. The evidence shows that no receivables on the books of Schnurr & Associates from jobs already completed were transferred nor were liabilities associated with those jobs transferred (the evidence is silent as to the amount of both these receivables and payables). The evidence further reflects that the indebtedness to the Internal Revenue Service in excess of $200,000.00 was not assumed by the First Corporation, nor were any of the other personal liabilities of the debtor such as that owed to the Plaintiff.
So, the First Corporation, with the debtor as its sole shareholder, officer and director, began operation by taking over the viable assets of Schnurr & Associates.
Gregory Schnurr ultimately filed a Chapter 7 Petition in Bankruptcy on August 18, 1988, or within one year of his transfer of assets to the First Corporation as outlined above. Between October 1, 1987 and August 18, 1988, the First Corporation's books reflect that payments were made to Gregory Schnurr in the approximate amount of $13,000.00. These payments were booked by the First Corporation as credits against its note payable account to Gregory Schnurr.
Unfortunately, not having gained any benefit from the prior experience of its President, the First Corporation additionally neglected to pay the Internal Revenue Service certain trust funds which it had withheld from its employees in the total sum of approximately $130,000.00. Because of this, the First Corporation ceased conducting business sometime in the fourth quarter of 1988, subsequent to Gregory Schnurr filing his Chapter 7 Bankruptcy.
In December 1988, the Matson Trust was established with a $100 contribution from Schnurr's father. Subsequent thereto, the debtor contributed $4,500.00 to the Matson Trust. Beneficiaries of the Matson Trust are Gregory Schnurr's two sons, Matthew and Jason. The Matson trust caused the incorporation of Schnurr, Inc. (the "Second Corporation"). Such corporation is a painting contractor, as was the First Corporation and Schnurr & Associates. Gregory Schnurr is the president of the Second Corporation, and he and his accountant are the only directors of the Second Corporation, which was incorporated in February, 1989. Schnurr, Inc. is presently conducting business as a painting contractor.
B. The Failure To Disclose
In both the initial Schedule of Assets and Liabilities and Statements of Financial Affairs filed by the debtor on September 16, 1988, and the Amended Schedule of Assets and Liabilities and Statement of Financial Affairs filed by the debtor on September 20, 1988, there is no mention or disclosure of the transfer made by the debtor to the First Corporation. Both the Original and the Amended Statements of Affairs are marked "N/A" in answer to question 14 ("transfers of property"), question 15 ("assignment of accounts and other receivables"), and question 19 (with regard to withdrawals from either an individual proprietorship, *127 or any partnership or corporation). Accordingly, they are silent not only with regard to the transfer which occurred in September 1987, but also with regard to the money the debtor had withdrawn from the First Corporation in the previous year which had been booked by the First Corporation as payment on the debtor's "note payable" account. Further, both the Original and Amended Schedules at Schedule B-2(p) ("Other Liquidated Debts Owing the Debtor"), are answered "N/A". The debtor failed to schedule the debt owed to him by the First Corporation. However, in his answer to the question on Schedule B-2(t) the debtor reflects that he owns stock in Schnurr & Associates, Inc. with a value of $100.00, although he offers no explanation of the extent of his role with Schnurr & Associates, Inc., the nature of the business of Schnurr & Associates, Inc., or its history of transactions with the debtor.
The debtor has chosen not to disclose either the transfer of assets to the First Corporation, the existence of an indebtedness from the First Corporation to him by reason of the transfer, or the existence of payments on that debt to him during the twelve month period prior to filing this case even though that transfer was the vehicle he chose to use in order to continue his paint contracting business after the IRS levy.
C. Failure to Document
As noted above, the debtor chose not to document the transfer transaction. Sufficient records do, however, exist to reflect the substance of the transaction.
II. Conclusions
A. Failure to Document
Although the Court does find the debtor's choice not to document the transfer of assets not only significant but convenient (in that now virtually all that we are left with, other than the circumstances surrounding the transaction at the time it occurred, is the debtor's recollection of what he intended to occur), that fact alone is not sufficient to bar the debtor's discharge under 11 U.S.C. § 727(a)(3), as sufficient records exist to reflect the substance of the transaction and no evidence was presented which would indicate a general failure on the part of the debtor to keep books and records of his business operations. The Court, therefore, rules in favor of the Defendant on this issue.
B. Failure to Disclose
11 U.S.C. § 727(a)(4)(A) provides in relevant part that "(a) The Court shall grant the debtor a discharge, unless the debtor knowingly and fraudulently, in or connection with the case (A) made a false oath or account;".
The purpose of this code section is to insure that the debtor willingly discloses all assets which he may own which may have some value, that is, to provide the trustee and creditors with reliable information concerning the debtor's assets, liabilities, and statement of financial affairs. Interfirst Bank Greenville v. Morris (In re Morris), 58 B.R. 422 (Bankr.N.D.Tex.1986); Giel v. Brooks (In re Brooks), 58 B.R. 462 (Bankr. W.D.Pa.1986); Rosenbaum v. Kilson (In re Kilson), 83 B.R. 198 (Bankr.D.Conn. 1988); Bologna v. Cutignola (In re Cutignola), 87 B.R. 702 (Bankr.M.D.Fla.1988); Allard v. Hussan (In re Hussan), 56 B.R. 288 (Bankr.E.D.Mich.1985). Although the cases vary in degree, generally the failure by a debtor to disclose insignificant, trivial, or essentially worthless assets is not something which, in and of itself, will require a discharge to be barred as such non-disclosure is not deemed to be material. Pierson v. Sowell (In re Sowell), 92 B.R. 944 (Bankr.M.D.Fla.1988); Crews v. Topping (In re Topping), 84 B.R. 840 (Bankr.M.D. Fla.1988). Conversely, failure by a debtor to disclose information which bears a relationship to the debtor's business relations or estate, or concerns discovery of assets, business dealings or existence or disposition of his property is clearly material. Poolquip v. Hubbard (In re Hubbard), 96 B.R. 739 (Bankr.W.D.Tex.1989); WTHW Investment Builders v. Dias (In re Dias), 95 B.R. 419 (Bankr.N.D.Tex.1988); Chalik v. Morefield, Jr. (In re Chalik), 748 F.2d 616 (11th Cir.1984); Boroff v. Tully (In re Tully), 818 F.2d 106 (1st Cir.1987); Williamson v. Fireman's Fund Ins. Co. (In re *128 Williamson), 828 F.2d 249 (4th Cir.1987); Farmer's Cooperative v. Strunk (In re Strunk), 671 F.2d 391 (10th Cir.1982); In re Mascolo, 505 F.2d 274 (1st Cir.1974); American State Bank v. Montgomery (In re Montgomery), 86 B.R. 948 (Bankr.N.D. Ind.1988).
The evidence shows that the trustee participated in certain discovery in December of 1988 and at that time learned of the totality of the transactions which had occurred and of the fact of the existence of the indebtedness from the First Corporation to the debtor. However, by that time, the First Corporation was defunct. It was not, however, out of business as of August 18, 1988, the date of the institution of Mr. Schnurr's bankruptcy proceeding. Had the existence of the indebtedness from the First Corporation to Mr. Schnurr been properly scheduled, the Trustee would have at least had a chance to take some action in order to obtain a recovery from that asset which was then in the approximate amount of $50,000.00. The point is that we will never know because Mr. Schnurr failed to properly schedule the existence of either the indebtedness from the First Corporation or the transfer of assets to it. The evidence did not show conclusively that the creditors of Mr. Schnurr would have been able to recover any money or other assets had the transfer and the resulting indebtedness been properly scheduled. That, however, is not fatal to plaintiff's case. Clearly Mr. Schnurr's failure to disclose the existence of the significant transfer of assets that occurred during the previous year and the indebtedness owed to him resulting therefrom bore a relationship to his business relations and estate and directly concerned discovery of assets, business dealings and the existence or disposition of his property. Therefore, such failure is both significant and material. Further, it is clearly the law that the concealed information does not have to lead to available assets to creditors. Chalik, supra; LaVangie v. Mazzola (In re Mazzola), 4 B.R. 179 (Bankr.D.Mass.1980), remanded 23 B.R. 263; In re Gugliada, 20 B.R. 524 (Bankr.S.D.N.Y.1982).
Having determined that the omissions from Mr. Schnurr's Schedules and Statements of Affairs, both original and as amended, were material, the Court must now determine whether such was a knowing and fraudulent act. This means that there must have been an intentional untruth with relation to a matter material to the bankruptcy. Federal Land Bank v. Ellingson (In re Ellingson), 63 B.R. 271 (Bankr.N.D.Iowa 1986).
The debtor claims in his testimony that he did not understand that the questions on the Statements of Affairs required the disclosure of the transfer. This Court finds such statement not credible. Mr. Schnurr came within three (3) hours of getting a business degree in accounting. He is certainly not naive, nor is he inexperienced in matters of business. Further, questions 14 (transfers of properties) and 15 (assignment of accounts or other receivables) on the Statements and Schedules, which were answered by the debtor as "N/A", are very clear and unambiguous, easily interpreted by someone of Mr. Schnurr's educational and business background. Likewise, Schedule B(2)-P requiring disclosure of "Other Liquidated Debts Owing to the Debtor" could not be clearer.
There simply does not exist any plausible explanation for why the transfer and the resulting indebtedness to the debtor were not reflected anywhere on the Schedules or Statements of Affairs other than that the debtor intentionally chose not to disclose their existence.
It is clear that the debtor's intent can be inferred from the facts and circumstances surrounding the debtor's actions. Pigott v. Cline (In re Cline), 48 B.R. 581 (Bankr.E. D.Tenn.1985). 4 Collier on Bankruptcy paragraph 727.04[1] (15th ed. 1985). Here the debtor was in total and singular control of all the pertinent events. For example, he could have had documents drawn at the time of the transfer to reflect what was being transferred and what the consideration of that transfer was. He chose not to do so. He could have timely disclosed their existence to his creditors, but he chose not to do so.
*129 The facts and circumstances surrounding failure of the debtor to schedule such a material and significant asset and the transfer which created it leads this Court to the inescapable conclusion that such failure was a deliberate act performed by the debtor with the intent of keeping the existence of the transfer and the resulting debt from being known. He was successful in his efforts, in that the evidence showed the Trustee did not learn of these matters until after Schnurr & Associates was defunct.
The totality of the debtor's actions reflect heavily upon his true intentions throughout this time period. After all it was the debtor, being in total control, who chose not to document the transaction, not to disclose the transaction to his creditors, and not to pay the IRS. Further, it was the debtor who decided to make the transfer so he would not have his income stream interrupted any more by the IRS, who decided what to transfer and what not to transfer, who decided that neither Schnurr & Associates nor the First Corporation would pay its taxes, who decided to allow both Schnurr & Associates and the First Corporation to die, who decided the timing of all of these events, and who undoubtedly was the moving force behind the creation of the Matson Trust and the Second Corporation which appear to be just one more vehicle through which the debtor can maintain an income stream free from his creditors. The pattern of this debtor's behavior speaks volumes more than he was able to from the witness stand as he was not able to advance any plausible reason to explain why he failed to disclose the existence of either the transfer or the resulting indebtedness. This is especially true since the transfer had to have been the single most significant event to the debtor in the previous year. After all, it was that transfer that allowed him to avoid the clutches of the IRS, to continue his business operations as usual, and to draw a $45,000.00 salary for the next year.
The failure to disclose under the circumstances of this case constitutes the knowingly and fraudulently making of a false oath in connection with the case. Accordingly, the debtor's discharge must be barred pursuant to 11 U.S.C. § 727(a)(4)(A).
C. The Transfer
The final ground alleged by Plaintiff for denying this debtor his discharge is that the transfer itself violates of 11 U.S.C. § 727(a)(2)(A). Specifically, the statute states in relevant part that, "(a) The Court shall grant the debtor a discharge, unless (2) the debtor with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this Title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed (A) property of the debtor, within one year before the date of the filing of the petition;".
Again, the debtor's testimony was self-serving and not credible under the circumstances in which the transfer took place. The Court finds the primary purpose of the transfer was to allow the business of Schnurr & Associates to continue to operate sheltered by a new entity, Schnurr & Associates, Inc., free from the non-viable assets and oppressive liabilities of the old, and with only the viable ongoing assets and the lesser amount of liabilities that accompanied them. Mr. Schnurr's clear purpose of staying in business was to insulate the income stream generated from the viable assets from the creditors of Schnurr & Associates and, specifically, the Internal Revenue Service, not to protect trust funds for suppliers and materialmen as contended by the debtor. If the debtor was truly concerned about trust funds going to their proper beneficiary, he would have done more to see that the Internal Revenue Service was paid their trust funds, both from Schnurr & Associates and the First Corporation. Also, if he was truly concerned about his suppliers, they could have been protected in a number of ways short of incorporation of a new business entity and transfer of all of the viable assets to it. For example, the general contractors of the Schnurr & Associates job could have been requested to make payments into a trust fund set up specifically for the materialmen in order to keep the jobs lien-free. The profit from these jobs then could have been used to pay the other creditors of Schnurr & Associates. Instead, the profit *130 was used to fund the operations of Schnurr & Associates, Inc., which in turn paid Mr. Schnurr his $45,000.00 annual salary.
It was the debtor who chose to take the dramatic step he took, and it is he who must bear the consequences. He wanted to insulate the anticipated present and future income stream of his paint contracting business from creditors and at the same time create a salary for himself from that entity so he could be assured of a steady living. He accomplished his goals by changing (through the transfer) his ownership of certain income producing assets to 100% ownership of a corporation with nominal book value, by creating an obligation from that Corporation back to himself in consideration for the transfer (which obligation by design was not represented by a promissory note, had no terms of payment, had no rate of interest to be charged, and was solely dependent upon the discretion of the debtor himself as to when and if payments on the indebtedness would be made), and by establishing a salary for himself out of what would have otherwise been "profits" in the discarded sole proprietorship, Schnurr & Associates. Additionally, no records of the transaction such as would normally exist, i.e., bills of sale, promissory notes, etc., were created. The intention of the debtor in these types of cases must generally be determined by an analysis of the facts and circumstances surrounding the transfer, almost no debtor who has acted with a fraudulent intent will admit to it on the witness stand. J-W Operating Co. v. Rothrock (In re Rothrock), 96 B.R. 666 (Bankr.N.D.Tex.1988); First Commercial Bank v. Locke (In re Locke), 50 B.R. 443 (Bankr.E.D.Ark.1985); Devers v. Bank of Sheridan, Montana (In re Devers), 759 F.2d 751 (9th Cir.1985); Farmers Co-Operative Asso. v. Strunk (In re Strunk), 671 F.2d 391 (10th Cir.1982).
Taking all of the circumstances surrounding the transfer into consideration, this Court concludes that the defendant's intent was clearly to put these assets beyond the reach of creditors; and by doing so, he clearly hindered and delayed his creditors existing at that time, the most notable one being the Internal Revenue Service. 11 U.S.C. § 727(a)(2)(A) is written in the disjunctive. That means all the plaintiff has to prove is that the debtor hindered his creditors, he delayed his creditors, or he defrauded his creditors. Federal Deposit Insurance Corporation v. Morris (In re Morris), 51 B.R. 462 (Bankr.E.D. Tenn.1985); First Beverly Bank v. Adeeb (In re Adeeb), 787 F.2d 1339 (9th Cir.1986). See the following cases for a discussion of 11 U.S.C. § 727(a)(2)(A): Hubbard, supra; Dias, supra; Devers, supra; Adeeb, supra; Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574 (2nd Cir.1983); Redmond v. Tuttle (In re Tuttle), 15 B.R. 14 (Bankr.D. Kan.1981).
Although not necessary to the Court's ruling with regard to the necessity to bar the debtor's discharge because he has clearly hindered and delayed his creditors by reason of the transfer complained of, this Court also concludes that the debtor defrauded his creditors then existing. This is clear from the surrounding facts and circumstances which, as analyzed above, reflect the true intent of the debtor.
Accordingly, the debtor's discharge must be barred pursuant to 11 U.S.C. § 727(a)(2)(A).
This Memorandum Opinion constitutes Findings of Fact and Conclusions of Law pursuant to Bankruptcy Rule 7052 and an Order will be entered pursuant hereto. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/56048/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 5, 2007
No. 06-13384 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-60010-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ROBINSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 5, 2007)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
John Basil Robinson appeals his conviction and sentence for conspiracy to
possess counterfeit securities, in violation of 18 U.S.C. §§ 371 and 513(a).
Robinson argues that the district court, at the hearing on his counsel’s motion to
withdraw, violated his Sixth Amendment right to counsel of his choosing by
denying his counsel’s motion to withdraw and his motion for a continuance of the
impending sentencing to seek substitute counsel. Second, he argues that the
district court at sentencing abused its discretion by denying his motion for a
continuance to develop additional character evidence. Third, the district court
erred by relying on the pre-sentence investigation report’s (“PSI”) criminal history
calculation, where the report did not describe the underlying circumstances of the
prior convictions. Fourth, his sentence was unreasonable because the district court
failed to consider the 18 U.S.C. § 3553(a) sentencing factors. Finally, he argues
that his counsel was ineffective. For the reasons set forth more fully below, we
affirm.
After Robinson pled guilty to the conspiracy charge, but before sentencing,
his counsel moved to withdraw from representation, citing in essence
communication and trust problems. The court denied the motion at a hearing that
took place one week before sentencing, telling Robinson that he could hire any
attorney he wanted, but that current counsel would not be released until new
2
counsel was obtained. Robinson then orally moved for a continuance after telling
the court he was in the process of retaining a new attorney. The court, noting that
Robinson’s counsel’s motion to withdraw had been pending for three weeks and he
could have found a new attorney during that time, denied the motion for a
continuance as well.
At the sentencing hearing, Robinson’s counsel moved for a 60-day
continuance, explaining only that his client wanted time to prepare character
witnesses and because a potential mental health issue existed. The court
summarily denied the oral motion. Thereafter, the court sentenced Robinson at the
bottom of the guideline range to 51 months’ imprisonment, 3 years’ supervised
release, a fine of $10,000, and $342,165 in restitution.
I.
We review for abuse of discretion the district court’s decision denying
counsel’s motion to withdraw. See United States v. Dinitz, 538 F.2d 1214, 1219
n.7 (5th Cir. 1976). Similarly, we review a motion to continue sentencing for
abuse of discretion. United States v. Edouard, 485 F.3d 1324, 1350 (11th Cir.
2007).
“The Sixth Amendment provides that [i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
3
[defense]. [The Supreme Court has] previously held that an element of this right is
the right of a defendant who does not require appointed counsel to choose who will
represent him.” United States v. Gonzalez-Lopez, 548 U.S. ___, 126 S. Ct. 2557,
2561, 165 L. Ed. 2d 409 (2006) (quotation marks omitted). That said, “the right to
counsel of choice is not as absolute as the right to the assistance of counsel.”
United States v. Baker, 432 F.3d 1189, 1248 (11th Cir. 2005), cert. denied, 547
U.S. 1085 (2006); see also United States v. Campbell, No. 006-13548, slip op.
at 2833 (11th Cir. July 13, 2007) (same). “There are no mechanical tests for
deciding when a denial of a continuance is so arbitrary as to violate due process.
The answer must be found in the circumstances present in every case, particularly
in the reasons presented to the trial judge at the time the request is denied.” Ungar
v. Sarafite, 376 U.S. 575, 589-90, 84 S. Ct. 841, 850, 11 L. Ed. 2d 921 (1964).
Notably, we have held that:
When deciding whether a denial of a continuance impinged on the
defendant’s fair and reasonable opportunity to choose counsel,
reviewing courts should consider a number of factors, including:
(1) the length of the delay; (2) whether the counsel who becomes
unavailable for trial has associates prepared to try the case;
(3) whether other continuances have been requested and granted;
(4) the inconvenience to all involved in the trial; (5) whether the
requested continuance is for a legitimate reason; and (6) any unique
factors.
Baker, 432 F.3d at 1248.
4
As an initial matter, unlike in the cases Robinson cites on appeal, there was
no independent violation of his right to choose counsel here. Rather, the court
properly informed Robinson that he could retain any new attorney that he wanted.
While Robinson argues that he was bound by local rule to wait for the court’s leave
to acquire new counsel, that rule only requires leave of court to withdraw.
S.D.Fla.Local R. 11.1.D.3. The rule did not prevent Robinson from finding and
retaining new counsel – something he never did.
As to whether the district court violated Robinson’s right to choose counsel
by denying the written motion to withdraw and his first oral motion to continue,
weighing in Robinson’s favor is the fact that: (1) the length of the delay he was
seeking was not obviously unreasonable; (2) he had not requested any
continuances previously; and (3) his counsel appeared to believe they were having
problems communicating. Baker, 432 F.3d at 1248.
On the other hand, in the motion to withdraw, counsel did not allege that he
was not being paid, that an actual conflict had arisen, or that he had been fired.
Rather, he only represented that there were communication and trust problems, and
told the court that he wanted to avoid going through litigation on collateral review.
He also stated that he was prepared for sentencing.
Thus, neither Robinson nor his attorney presented a compelling explanation
5
for the withdrawal. This is especially relevant, given that Robinson had not
arranged for a new attorney, something that the court correctly observed he could
do at anytime and specifically could have done during the 20 days between the
filing of the motion to withdraw and the hearing on that motion. For all these
reasons, the court did not abuse its discretion by denying the motion to withdraw or
the motion for a continuance, and consequently did not violate Robinson’s right to
choose counsel.
II.
As already noted, we review a motion to continue sentencing for abuse of
discretion. Edouard, 485 F.3d at 1350. Where no constitutional considerations are
implicated, the defendant “has the burden to demonstrate that the denial [of the
continuance] produced specific substantial prejudice,” and we will analyze the
district court’s decision “in light of the circumstances presented, focusing upon the
reasons for the continuance offered to the trial court when the request was denied.”
Id.
Counsel based his request for the 60-day continuance on the need to prepare
character witnesses and investigate Robinson’s mental health. However, he did not
explain why this preparation could not have been completed before the hearing,
which had been scheduled for almost 30 days, and did not explain why such a long
6
continuance would be necessary. Accordingly, the court did not abuse its
discretion by denying this motion.
Further, even if the court’s denial was error, it is not clear that it resulted in
substantial harm. Specifically, there was extensive character evidence in the PSI,
and the guideline calculation was simple and did not expressly involve character
issues. As to his claim of a mental disorder, the PSI noted that Robinson himself
had stated that he was treating the disorder with exercise and that he did not need
treatment. Further, there had never been a claim that he was not competent.
III.
We review the district court’s interpretation of the sentencing guidelines de
novo and its factual findings under the guidelines for clear error. United States
v. Pope, 461 F.3d 1331, 1333 (11th Cir. 2006).
According to the rules in U.S.S.G. § 4A1.1, a defendant’s criminal history
score, and therefore his criminal history category, is determined by, among other
things: (1) adding 3 points for “each prior sentence of imprisonment exceeding one
year and one month”; (2) adding 2 points for “each prior sentence of
imprisonment exceeding at least sixty days” not already counted; and (3) adding
one point – but not more than 4 points total – for any prior sentences not already
counted. U.S.S.G. § 4A1.1(a)-(c). This section adds further points: (1) if the
7
offense of conviction was committed while on probation or parole, etc., or less than
two years after release from imprisonment; or (2) for prior convictions of crimes of
violence related to crimes already scored. Id. § 4A1.1(d)-(f).
The guidelines define a “prior sentence” as “any sentence previously
imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo
contendere, for conduct not part of the instant offense.” Id. § 4A1.2(a)(1). The
background commentary to this section states, in relevant part:
Prior convictions may represent convictions in the federal system,
fifty state systems, the District of Columbia, territories, and foreign,
tribal, and military courts. There are jurisdictional variations in
offense definitions, sentencing structures, and manner of sentence
pronouncement. To minimize problems with imperfect measures of
past crime seriousness, criminal history categories are based on the
maximum term imposed in previous sentences rather than on other
measures, such as whether the conviction was designated a felony or
misdemeanor.
Id. § 4A1.1, comment. (backg’d.) (emphasis added). In contrast, the application of
criminal history enhancements for career offenders and armed career criminals,
among others, depend on information regarding the elements or nature of the
offense, including whether drugs or violence was involved. See U.S.S.G.
§§ 4B1.1, 4B1.2, 4B1.4.
Here, Robinson was not scored as either a career offender or an armed career
criminal. Therefore, as the government notes, and the commentary to the
8
guidelines suggests, the only facts necessary in the calculation of his criminal
history here was the existence and date of the conviction and the length of the
sentence. Moreover, although Robinson argued that the PSI’s lack of description
and the sources the probation officer relied upon did not provide enough
information to prove his criminal history score, he did not argue that any of the
information provided was incorrect. Thus, the court had no reason to think that it
could not rely on the PSI to establish the fact and date of the convictions and the
sentences imposed, and therefore his criminal history score. See United States
v. Jones, 289 F.3d 1260, 1266 (11th Cir. 2002) (holding that the district court
properly relied on the unchallenged PSI findings regarding defendant’s financial
status).
Finally, Robinson on appeal still does not attack the facts contained in the
PSI about his prior convictions, but only alleges that more information regarding
the circumstances of those convictions was necessary. In support of his argument,
Robinson cites Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d
205 (2005), and Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109
L. Ed. 2d 607 (1990). However, those cases concern sentencing calculations that
required a determination regarding the nature of the prior convictions. See
Shepard, 544 U.S. at 15, 125 S.Ct. at 1257 (reviewing 15-year mandatory
9
enhancement under Armed Career Criminal Act, 18 U.S.C. § 924(e), which allows
enhancement for a “violent felony,” and clarifying which documents court can
review to ascertain the character of a prior burglary); Taylor, 495 U.S. at 578-81,
110 S.Ct. at 2147-50 (reviewing whether prior burglary conviction justified a 15-
year minimum enhancement for committing a “violent felony” under 18 U.S.C.
§ 924(e)). In Robinson’s case, no such determination was necessary to calculate
his sentence. Accordingly, the district court did not err in this regard.
IV.
Following Booker,1 we review the district court’s sentence for
reasonableness. United States v. Talley, 431 F.3d 784, 785 (11th Cir.2005). Such
review is deferential, requiring us to “evaluate whether the sentence imposed by
the district court fails to achieve the purposes of sentencing as stated in [18 U.S.C.]
section 3553(a).” Id. at 788.
The § 3553(a) factors include: (1) “the nature and circumstances of the
offense and the history and characteristics of the defendant”; (2) whether the
sentence is “sufficient, but not greater than necessary, to comply with . . . the need
for the sentence imposed– (A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (B) to afford
1
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
10
adequate deterrence to criminal conduct; (C) to protect the public from further
crimes of the defendant; and (D) to provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment.” 18 U.S.C.
§ 3553(a)(1)-(2).
We have several times held that “nothing in Booker or elsewhere requires
the district court to state on the record that it has explicitly considered each of the
[§ 3553(a)] factors or to discuss each of the [§ 3553(a)] factors.” United States
v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005); see also United States v. Dorman,
488 F.3d 936, 944 (11th Cir. 2007) (holding that although the district court had not
explicitly stated that it had considered the § 3553(a) factors, it was clear from the
court’s consideration of objections to the PSI and a motion for a downward
departure that it had indeed considered those factors). This rule, especially in the
case of a sentence within the guidelines, was recently supported by the Supreme
Court. See Rita v. United States, 551 U.S. ___, 127 S. Ct. 2456, 2468-69, 168
L. Ed. 2d 203 (2007). Specifically, Rita held that the sentencing judge is only
required to “set forth enough to satisfy the appellate court that he ha[d] considered
the parties’ arguments and ha[d] a reasoned basis for exercising his own legal
decisionmaking authority.” Id. at ___, 127 S.Ct. at 2468.
Finally, “a sentence may be reviewed for procedural or substantive
11
unreasonableness.” United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.
2006). A sentence is procedurally unreasonable “if it is the product of a procedure
that does not follow Booker’s requirements, regardless of the actual sentence.” Id.
In this case, Robinson essentially only challenges the procedure the court
used in imposing sentence, but does not challenge “the actual sentence.” Id.
Specifically, he argues that the sentence was by its nature unreasonable because the
court failed to consider the § 3553(a) sentencing factors, generally, and his bipolar
disorder particularly. Thus, he has not raised a challenge to the substantive
reasonableness of his sentence, and that issue is therefore abandoned. United
States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) (“issues and contentions not
timely raised in the briefs are deemed abandoned”).
The court here expressly stated that it had considered the statements of the
parties and the PSI, including the advisory guidelines, and “the statutory factors.”
Further, during the hearing the court discussed the length of the conspiracy, the
amount stolen, Robinson’s explanation of the offense, and his criminal record. See
18 U.S.C. § 3553(a)(1)-(2). Both parties then asked the court to sentence Robinson
within the guidelines. Accordingly, the district court did not err by failing to
provide further analysis of the sentencing factors, as it is clear from the substance
of the hearing – and from the court’s own statement – that it did indeed consider
12
them. Dorman, 488 F.3d at 944. As to the suggestion that Robinson had a mental
health issue, Robinson’s counsel only noted this as a “potential mitigating factor,”
and did not press the issue any further. In addition, the issue was addressed in the
PSI, which the court stated it had read. There, Robinson reported that he did not
believe he needed treatment. Thus, nothing about this specific issue suggests that
the district court failed to consider the sentencing factors.
Thus, the court did not err, and Robinson’s sentence was procedurally
reasonable.
V.
It is well established that we generally will not consider ineffective
assistance of counsel claims on direct appeal unless there is sufficient evidence on
the record. See United States v. Andrews, 953 F.2d 1312, 1327 (11th Cir. 1992);
see also Massaro v. United States, 538 U.S. 500, 504-05, 123 S. Ct. 1690, 1694,
155 L. Ed. 2d 714 (2003). Specifically, “[t]o obtain a reversal of a conviction
because of constitutionally ineffective assistance of counsel, a defendant must
show that counsel’s performance was deficient, and that the deficient performance
prejudiced the defense. Counsel is held to a standard of ‘reasonably effective
assistance[.]’” Andrews, 953 F.2d at 1327.
Although clearly Robinson and his sentencing counsel had problems in their
13
relationship, the record does not contain sufficient evidence regarding counsel’s
performance for us to review it. Massaro, 538 U.S. at 504-05, 123 S.Ct. at 1694.
Furthermore, there is no need to raise the issue here in order to preserve it for
collateral review. Id. at 504, 123 S.Ct. at 1694 (“We hold that an ineffective-
assistance-of-counsel claim may be brought in a collateral proceeding under
§ 2255, whether or not the petitioner could have raised the claim on direct
appeal”).
In light of the foregoing, Robinson’s sentence is
AFFIRMED.
14 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1620742/ | 294 S.W.2d 11 (1956)
Ethel F. HAMILTON, Appellant,
v.
LACLEDE ELECTRIC COOPERATIVE, a Corporation, Respondent.
No. 45226.
Supreme Court of Missouri. Division No. 2.
September 10, 1956.
Rehearing Denied October 8, 1956.
*12 Edgar Mayfield, Lebanon, for appellant.
Allen, Woolsey & Fisher, Clarence O. Woolsey, Russell G. Clark, Springfield, for respondent.
BOHLING, Commissioner.
Ethel F. Hamilton, plaintiff, sued the Laclede Electric Cooperative, a corporation, defendant, for $10,000 damages for injuries received as the alleged result of negligence in the construction and maintenance of a high voltage uninsulated electric wire in use to supply electric power to plaintiff's farm home. The court sustained defendant's motion for a directed verdict at the close of plaintiff's case on the ground plaintiff's evidence established her contributory negligence as a matter of law.
Plaintiff and her husband were engaged in removing a pipe and pump from a drilled well when the pump came in contact with one of defendant's wires and plaintiff was severely shocked and burned. Her petition charged defendant was negligent in locating a high tension uninsulated wire directly over the well; in failing to insulate said wire and keep the same insulated; and in failing to warn plaintiff of the danger. She contends in her brief defendant should have "located said line in a different place, at a greater distance as well as height from the well" or should have "insulated said line"; and that plaintiff was not contributorily negligent as a matter of law.
Mr. and Mrs. Hamilton, as husband and wife, had purchased a 120 acre farm in Dallas county, Missouri, and took possession on March 10, 1954. They knew the farm had electric service. Plaintiff stated she would not want it without electric service. The Hamilton house is east of a north-south gravel road, facing it. They had a big yard south of the house, with the drive on the south side of the yard. A "drilled well," with a "pitcher pump," was in a well house 12 to 15 feet south of the east side of the house. The well house was about 3½ feet wide, 10 or 12 feet long and 7 or 9 feet high, with the well in the southwest corner. The door was on the north side of the well house, and about over the well was a hole in the roof, about 6 or 8 inches wide and extending 12 to 18 inches down the roof.
Defendant's high tension line was on the west side of the road. The transformer pole for service to the Hamilton farm was *13 south and east of the well house and 65 steps of approximately a yard each from defendant's main line. Three insulated wires ran northeast from the transformer pole to other poles. The meter measuring the service and a yard light were on a pole or on different poles in the yard. The two wires from the road to the transformer pole are here involved, particularly the top wire. They were uninsulated and carried 7,200 volts. Mr. Hamilton testified these wires were "four big steps" south of the well. This was the testimony of Otis Richardson, plaintiff's other witness on the issue, who testified that the pump and pipe had to lean in a southerly direction about 12 feet before it would hook onto the wire involved.
The water from the well became muddy, unfit for drinking, cooking or washing. Mr. Hamilton had pulled pumps before, and plaintiff had helped pull pumps at least a couple of times. She testified that she and her husband owned the farm and the pump and pipe together and that they were pulling the pipe for their joint benefit, as did Mr. Hamilton. Neither knew the depth of the well nor the length of the pipe in the well. They decided to pull the pump about 3 p. m., March 25, 1954. Mr. Hamilton went to the well house, took some "rotten" boards out of the floor and handles and things off of the pump. The dirt floor was damp. He called for plaintiff to help. Mr. Hamilton would lift the pump and pipe about 3 feet, plaintiff would hold it while he secured another grip, and this procedure would be repeated. No wires were over the well house. Plaintiff testified: "If you had kept them over there [the hole in the well house roof], we would have seen them"; but neither she nor her husband looked up through this hole.
Mr. and Mrs. Hamilton were facing north, toward the door, and just as the pipe cleared the well casing there was an "explosion" and Mr. and Mrs. Hamilton were "knocked" out of the door and severely injured. Plaintiff and her husband were taken to a hospital in Lebanon, where they remained overnight. They returned home the following day. Plaintiff re-entered the hospital on April 15th and remained there until May 10, 1954.
The pipe and pump assembly had contacted the top wire to the transformer pole, and the pump spout had caught on it. Mr. Hamilton testified the pipe was in joints, "two or three"; but they did not unjoint it, because they had no wrenches to take it apart. He thought the joints were short, probably 12 feet. The pipe and pump were measured later and were 31 feet and 2 inches in length, the pump being 12 to 18 inches long. The whole weighed about 100 pounds. When plaintiff was injured, 24 or 25 feet of pipe was above the hole in the roof, which was between 7 and 8 feet above the ground.
On March 25, 1954, plaintiff was 49 and Mr. Hamilton was 43 years old. He had worked for a utility company in "high lines," had known from the time he was 17 or 18 that electricity was dangerous, and had quit such employment because of his fear of electricity. Plaintiff worked for "Sears Roebuck in Kansas City" from 1925 to 1946. She then worked for four years as a driver of a taxicab in Kansas City. She and Mr. Hamilton were married in 1946. After her marriage she drove a taxicab in Oklahoma. Her husband was in the United States Army and was ordered overseas. She went to New York and worked in the "Sears telegraph office" for five months. She then joined her husband overseas. They purchased the farm soon after his discharge from the Army.
The Hamiltons had no telephone, only electric service. They knew electric service was furnished by means of wires strung on poles. When they purchased the farm, plaintiff secured the meter reading from defendant and checked the meter to see if the reading was correct. The lights and electric appliances in the house were operating properly. All of plaintiff's witnesses testified there was nothing obstructing the view of the wires and poles serving plaintiff's premises. Plaintiff testified with reference *14 to the wires: "Q. If you had looked up there, you could have seen them? A. Yes, they were in plain sight." However, the testimony of plaintiff and her husband is to the effect that while they knew wires furnishing electric service were dangerous, each "paid no attention" to the wires until after they were injured. Mr. Hamilton stated he had probably seen the wires, but when he got ready to pull the pump, that didn't enter his mind, "didn't think about it at all"; that "Q. If you had seen the wire there you would have known it was dangerous? A. If I had seen the wire I would have known it was an electric wire and dangerous. Q. You didn't look to see? A. No." If he had unjointed the pipe, it would not have come in contact with the wire. Asked if he took any precaution at all to keep the pipe from coming in contact with the electric wires, he answered: "I said I didn't even know those electric wires were up there." After the occurrence, Mr. Hamilton looked at the wire in qeustion and could easily tell it was not insulated; but plaintiff could not tell whether the wires were insulated. Plaintiff's witness Otis Richardson, a neighbor, testified he had no trouble knowing which wires were insulated and which were not while standing on the ground; and that the distance from defendant's line to his yard pole, the location of which was not shown, was 60 steps and the wire was insulated.
Plaintiff, asked if she would have intentionally pulled the pump and pipe into the wires, answered: "Absolutely not. Q. Why? A. Who wants to get hurt? Q. You knew it would be dangerous to do that? A. Why, sure." She also testified: "But I didn't realize there was a wire within a mile of that pump house because I hadn't paid any attention to it." And: "If I had an idea he [her husband] was going to put a pump into a live wire, I would have stopped him and so would anybody"; she would have warned him.
Plaintiff cites cases on the duty of an electric utility to exercise the highest degree of care to prevent injury to persons who lawfully might come in close proximity to its wires, Gladden v. Missouri Pub. Serv. Co., Mo., 277 S.W.2d 510, 515; Lebow v. Missouri Pub. Serv. Co., Mo., 270 S.W.2d 713, 715 [2], and that the duty includes the insulation of the wires at places where workmen are likely to be injured from contact with them. Geismann v. Missouri-Edison El. Co., 173 Mo. 654, 678, 73 S.W. 654, 661; Ratliff v. Mexico Power Co., Mo.App., 203 S.W. 232, 234 [1-3]; Williams v. City of Fulton, 177 Mo.App. 177, 164 S.W. 247.
It is stated in Atchison, T. & S. F. R. Co. v. Calhoun, 213 U.S. 1, 9, 29 S. Ct. 321, 323, 53 L. Ed. 671: "But, even where the highest degree of care is demanded, still the one from whom it is due is bound to guard only against those occurrences which can reasonably be anticipated by the utmost foresight. It has been well said that, `if men went about to guard themselves against every risk to themselves or others which might, by ingenious conjecture, be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things.' Pollock, Torts, 8th ed. 41."
There is no direct testimony on the height of the wire in question. From the length of the base and approximate length of the hypotenuse of the right angled triangle involved (the distance from the well to the defendant's line and the total length of the pipe or its length above the roof of the well house) some reasonable estimate of the height may be calculated. This would bear on defendant's actionable negligence. We recognize contributory negligence postulates negligence; but the evidence on behalf of plaintiff appears to so clearly establish her negligence as a matter of law directly contributing to her injuries that we rule this review on the ground *15 stated by the trial court and earnestly controverted by plaintiff. In so proceeding we do not rule the issue of actionable negligence.
An electric utility is not an insurer of the safety of persons. Its liability rests upon the rules of negligence. State ex rel. Kansas City L. & P. Co. v. Trimble, 315 Mo. 32, 285 S.W. 455, 458, 49 A.L.R. 1047; Howard v. St. Joseph Transmission Co., 316 Mo. 317, 289 S.W. 597, 601 [3, 4], 49 A.L.R. 1034; Brubaker v. Kansas City El. L. Co., 130 Mo.App. 439, 449, 110 S.W. 12, 15. Contributory negligence of a plaintiff defeats a recovery; and where the evidence on behalf of plaintiff establishes plaintiff's contributory negligence, it is the duty of the court to instruct the jury plaintiff cannot recover. Cases supra, and see Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185, 187.
Plaintiff cites many cases on contributory negligence.
Davis v. Missouri El. P. Co., Mo.App., 88 S.W.2d 217, 218, 221, and Laudwig v. Central Mo. P. & L. Co., 324 Mo. 676, 24 S.W.2d 625, 628(e), involved injuries sustained while moving buildings along public highways. In the Davis case deceased, on the top of the building, had raised wires with a stick to let the building pass underneath, and, at the scene, as the building moved he placed one hand on the comb of the roof and raised his right foot over the service wire when there was a flash killing him. High tension wires carrying 22,000 volts were between 3 or 4 feet above the service wires. One of the men had warned deceased he was in a dangerous place. The court considered this oral evidence of deceased's knowledge of the danger a question for the jury. The evidence did not establish that deceased knew about the high tension wires or that deceased came in actual contact with any wires. The certiorari proceeding in the Davis case, Missouri E. P. Co., State ex rel., v. Allen, 340 Mo. 44, 100 S.W.2d 868, did not review the court of appeals' ruling on the issue of contributory negligence. In the Laudwig case three judges concurred, three concurred in the result only, and one dissented.[1] Laudwig was injured when, according to the testimony, the electric current jumped 5 to 10 feet. Defendant contended plaintiff knew the wires were high voltage wires and was contributorily negligent in coming so close to them. Plaintiff had evidence that defendant knew electric current would jump and he testified that he was unaware of that fact.
In Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960, 968 [4], plaintiff was repairing the roof of a building in a city and defendant's wires, loose and sagging and suspended from a leaning pole, extended over the roof 18 to 30 inches and 2 or 3 feet above it. He was avoiding the wires while working, but just as he turned and faced away a sudden heavy gust of wind blew the sagging wires against his body.
In Privette v. City of West Plains, Mo. App., 93 S.W.2d 251, 253, 254 [3, 4], the evidence did not show how deceased came in contact with the electric wire and the presumption was he exercised due care.
In Lebow v. Missouri Pub. Serv. Co., Mo., 270 S.W.2d 713, 716 [4], 718, one of the judges dissenting, an apple picker was working in an orchard in which was a 6,900 volt electric wire, slightly higher than the 18-foot apple tree involved, extending to a transformer for usual farm service. His aluminum ladder had become entangled in the branches, and the picker, who had been warned of the electric wire, jerked on the ladder 3 or 4 times and it came loose and unexpectedly flew over his head and into the wires, killing him.
In Gladden v. Missouri Pub. Serv. Co., Mo., 277 S.W.2d 510, 515, an adult climbed a tree in full leaf in an attempt to catch a *16 tame parakeet, and was injured when his thumb accidentally came in contact with one of defendant's bare wires carrying electric energy along a much traveled public highway through a populous unincorporated area. The tree had not been trimmed for 2½ years. Plaintiff did not know that the wires in the tree were electric wires. The court observed: "As to contributory negligence of plaintiff, if he knew these wires were electric wires we would have to hold that he was guilty of contributory negligence as a matter of law in getting so close to them."
The above cases are representative of plaintiff's citations. They involved instances where the injured person came in bodily contact with electric wires in populous areas and at public places or at places and under circumstances where defendant knew, or in the exercise of proper care should have known, that persons rightfully transacting business thereat were likely to come in bodily contact with the wires. In some the current jumped or arced and caused the injury. They differ from the factual situation in the instant case, where there is no indication of reccord that defendant's wires were, or were likely to be, touched by the body of a person on the farm. Thompson v. City of Lamar, supra, 17 S.W.2d loc. cit. 972, quoting with approval Ratliff v. Mexico Power Co., supra.
We find no Missouri cases directly in point. The following cases from other jurisdictions involved somewhat similar facts.
Dresser v. Southern Calif. Ed. Co., 28 Cal. App. 2d 510, 82 P.2d 965, 968. A high tension wire was 5 feet south of a well and 19 to 23 feet above the ground. Plaintiff was removing a rod from the well, and, after unjointing a 22-foot section, it came in contact with the wire The court considered one should make reasonable use of his faculties to avoid injury from acts others are lawfully entitled to perform; and said: "Plaintiff was in no danger at all until he raised the rod to the height of the wires. He knew the wires were somewhere above him. He did not ascertain their exact location. He did not know if the wires were insulated. He could have determined this fact by simply looking at them. He did not look at what was in plain sight."
In May v. Illinois P. Co., 342 Ill.App. 370, 96 N.E.2d 631, 633, men were lifting a pump and pipe, 35 to 40 feet long, from a well on a farm. The wires were 7 feet 2 inches south of the pump and 20 to 25 feet high. The court said: "The fact that the pipe swung in the direction of the wires and exposed the men to electric shock must necessarily have resulted from contributory negligence on part of plaintiff's intestate."
In Hale v. Montana-Dakota Util. Co., 8 Cir., 192 F.2d 274, 278, a surveyor's rodman was using a 15-foot rod that was collapsible to lengths of 5 or 6 feet in a prairie field on a rise in the surface of the ground when he brought the rod in contact with a high voltage electric wire to his injury. We quote: "Knowing the presence of these lines and the danger arising from contact with them, ordinary care required either that he shorten the rod to five or six feet or place it to one side of the lines."
Consult also Gladden v. Missouri Pub. Serv. Co., supra; Morris v. Kansas City L. & P. Co., 302 Mo. 475, 258 S.W. 431, 432; Frauenthal v. Laclede Gaslight Co., 67 Mo. App. 1, 6; Gray v. Union El. L. & P. Co., Mo.App., 282 S.W. 490, 493.
"One may not disregard the laws of prudence and exact of others a primary obligation to protect him against his lack of caution. If he exercises due care for his own safety, then, absent information to the contrary, he may rely upon the presumption that others will obey the law." Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621, 626 [13-15]; Floyd v. Thompson, 356 Mo. 250, 201 S.W.2d 390, 393 [11]; Morris v. Kansas City L. & P. Co., supra, 258 S.W. loc. cit. 432 [4].
*17 We said, citing authority, in Branscum v. Glaser, Mo., 234 S.W.2d 626, 627: "`Where one is charged with the duty to look and to look is to see, he must be held to have seen what looking would have revealed.' * * * `The law is further well settled that "a failure on the part of a plaintiff, where a duty to look exists, to see what is plainly visible when he looks, constiutes contributory negligence as a matter of law."' " See also Kobusch v. Ruberoid Co., 355 Mo. 48, 194 S.W.2d 911, 914; Empire Dist. El. Co. v. Rupert, 8 Cir., 199 F.2d 941, 946 [6, 7]. Bryan v. Sweeney, 363 Mo. 1024, 256 S.W.2d 769, 773 [5], involving an injury from an electric shock under the Illinois law, states: "a person in the exercise of ordinary care is charged with the duty of looking and seeing that which is obviously visible, and the law does not countenance the anomaly of a person professing to look and not seeing that which is clearly visible".
Court en banc has observed that a bright, intelligent boy, doing well in school, past 14 years of age and living in the city, should understand and appreciate it would be dangerous to come in contact with an electric wire. State ex rel. Kansas City L. & P. Co. v. Trimble, 315 Mo. 32, 285 S.W. 455, 457, 458, 49 A.L.R. 1047. See Frauenthal v. Laclede Gaslight Co., supra. Persons of ordinary intelligence are presumed to know the dangers attending contact with wires electrically charged. 29 C.J.S., Electricity, § 66 c, p. 629. Many cases mention that the legal standard for judging the actions of adults is that of ordinarily prudent person.
In the instant case plaintiff and her husband had no telephone. Their electric appliances had been functioning properly. They had seen the poles in the yard, had to walk under the wires, and knew that electricity was brought to the house by means of wires and poles. No wires were over the well house. The wire involved was 12 feet south of the well. The record indicates no injury would have resulted had the pipe slanted in some other direction. There were no obstructions to their view of the poles and wires, which plaintiff stated were in "plain sight." Plaintiff and her husband knew that wires carrying electricity were dangerous. They say they did not see the wires; that they did not look. They in effect paid no attention to the wires. The evidence on behalf of plaintiff is that they took no precaution whatsoever. Nothing had occurred to distract plaintiff's mind from the situation at hand, and in the circumstances of record, lack of attention or even forgetfulness does not excuse. Clark v. Missouri Nat. Gas Co., Mo., 251 S.W.2d 27, 31 [3]; Sloan v. American Press, 327 Mo. 470, 37 S.W.2d 884, 888 [2, 3]; Bryan v. Sweeney, supra [6]; 38 Am.Jur. 863, § 187. "When the negligent act of the plaintiff is necessary to make a dangerous situation negligently created by the defendant effective in harm, the plaintiff's negligence is always a contributory factor in producing his harm and as such prevents him from recovery against the negligent defendant." 2 Restatement, Torts, 1251, 1252, § 478.
Other issues are advanced in defendant's brief. They need not be developed.
The judgment is affirmed.
BARRETT and STOCKARD, CC., not sitting.
PER CURIAM.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.
NOTES
[1] Consult Coleman v. Haworth, 320 Mo. 852, 8 S.W.2d 931, 934 [10]; Viquesney v. Kansas City, 305 Mo. 488, 266 S.W. 700, 702 [6]; State ex rel. Columbia National Bank of Kansas City v. Davis, 314 Mo. 373, 284 S.W. 464, 467 [1]. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/98298/ | 235 U.S. 308 (1914)
GARRETT, ADMINISTRATOR OF LEWIS
v.
LOUISVILLE & NASHVILLE RAILROAD COMPANY.
No. 81.
Supreme Court of United States.
Submitted November 12, 1914.
Decided November 30, 1914.
ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.
*309 Mr. John A. Pitts and Mr. H.N. Leech for plaintiff in error.
Mr. John B. Keeble for defendant in error.
*310 MR. JUSTICE McREYNOLDS delivered the opinion of the court.
This action for damages under the Employers' Liability Act, approved April 22, 1908, c. 149, 35 Stat. 65, was originally brought in the state court March 31, 1910. It was removed to the Circuit Court of the United States, Middle District of Tennessee, and tried there in May, 1911. The declaration contains three counts, each of which *311 alleges that plaintiff is the administrator of T.W. Lewis, Jr., by appointment of the County Court, Stewart County, Tennessee; defendant is a Kentucky railroad corporation engaged in interstate commerce; in September, 1909, the deceased was employed as a brakeman on one of its freight trains moving in such commerce; through negligence of its operatives and servants a collision occurred; in an effort to save his life he was caught under the engine and held there for six hours or more, suffering intense agony and pain, followed shortly by death; he was twenty-four years of age, strong, vigorous, with fine business qualifications and earning capacity. The first and second counts allege that the deceased left surviving T.W. Lewis, his father, and Mrs. T.W. Lewis, his mother, and that "plaintiff, as administrator of the said intestate, sues the defendant, for the benefit of his parents, in the sum of fifty thousand dollars damages." The third count alleges the survival of not only father and mother but also brothers and sisters (the names of the latter not being given), and that "plaintiff, as administrator of the said decedent, sues the defendant in the sum of fifty thousand dollars damages."
The trial judge, having definitely offered the plaintiff an opportunity to amend his declaration, which was declined, excluded all evidence relating to the mental and physical suffering of the deceased and also all tending to show pecuniary loss sustained by the parents; and then peremptorily instructed the jury to return a verdict for defendant. The United States Circuit Court of Appeals tendered a further opportunity to amend and when this was rejected affirmed the judgment of the trial court (197 Fed. Rep. 715). The cause is here upon writ of error.
The questions presented are: First, whether, under the Employers' Liability Act of 1908 (before amendment of April 5, 1910), the administrator of one who died of painful injuries suffered while employed in interstate commerce *312 by a railroad engaging therein can recover damages for the benefit of the estate (third count); and, Second, whether, if such administrator sue for the benefit of the employe's parents there being no surviving widow or husband or child, it is necessary to allege facts or circumstances tending to show that as a result of the death they suffered pecuniary loss (first and second counts).
The nature of the rights and responsibilities arising out of this Act have been discussed and determined in four opinions announced by this court since the instant cause was decided by the Circuit Court of Appeals. Michigan Central Railroad v. Vreeland, 227 U.S. 59; American Railroad of Porto Rico v. Didricksen, 227 U.S. 145; Gulf, Colorado &c. Ry. v. McGinnis, 228 U.S. 173; North Carolina Railroad v. Zachary, 232 U.S. 248. It is now definitely settled that the act declared two distinct and independent liabilities resting upon the common foundation of a wrongful injury: (1) liability to the injured employe for which he alone can recover; and (2), in case of death, liability to his personal representative "for the benefit of the surviving widow or husband and children," and if none then of the parents, which extends only to the pecuniary loss and damage resulting to them by reason of the death.
The third count of the declaration under consideration states no cause of action. The employe's right to recover for injuries did not survive him.
Where any fact is necessary to be proved in order to sustain the plaintiff's right of recovery the declaration must contain an averment substantially of such fact in order to let in the proof. Every issue must be founded upon some certain point so that the parties may come prepared with their evidence and not be taken by surprise and the jury may not be misled by the introduction of various matters. Bank of the United States v. Smith, 11 Wheat. 171, 174; Minor v. Mechanics' Bank, 1 Pet. 46, 67; De *313 Luca v. Hughes, 96 Fed. Rep. 923, 925; Rose v. Perry, 8 Yerg. 156; Citizens' St. R.R. v. Burke, 98 Tennessee, 650; 1 Chitty on Pleading, *270. Although the same precision of statement is not required as in pleadings at law, nevertheless it is held to be absolutely necessary that in bills of equity such a convenient degree of certainty should be adopted as may serve to give the defendant full information of the case which he is called upon to answer. Every bill must contain in itself sufficient matters of fact, per se, to maintain the plaintiff's case; and if the proofs go to matters not set up therein, the court cannot judicially act upon them as a ground for decision, for the pleadings do not put them in contestation. Harrison v. Nixon, 9 Pet. 483, 503; Daniell's Ch. Pl. & Pr. *368.
The plaintiff's declaration contains no positive averment of pecuniary loss to the parents for whose benefit the suit was instituted. Nor does it set out facts or circumstances adequate to apprise the defendant with reasonable particularity that such loss in fact was suffered. Common experience teaches that financial damage to a parent by no means follows as a necessary consequence upon the death of an adult son. The plaintiff expressly declined in both courts below so to amend his declaration as to allege pecuniary loss to the parents; and judgment properly went against him.
The request is now made that in view of all the circumstances especially the former undetermined meaning of the statute, this court remand the cause for a new trial upon the declaration being so amended as to include the essential allegation. But we do not think such action would be proper. The courts below committed no error of which just complaint can be made here; and the rights of the defendant must be given effect, notwithstanding the unusual difficulties and uncertainties with which counsel for the plaintiff found himself confronted.
Judgment affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1436299/ | 65 N.J. 574 (1974)
STATE OF NEW JERSEY
v.
JESSE HARPER.
The Supreme Court of New Jersey.
July 22, 1974.
Petition for certification denied. (See 12 N.J. Super. 270) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/100514/ | 266 U.S. 298 (1924)
STATE OF OKLAHOMA
v.
STATE OF TEXAS. UNITED STATES, INTERVENER.
No. 13, Original.
Supreme Court of United States.
Argued November 17, 1924.
Decided November 18, 1924.
IN EQUITY.
*299 Mr. Thomas Watt Gregory and Mr. W.A. Keeling, Attorney General of the State of Texas, with whom Mr. G. Carroll Todd was on the brief, for Texas.
Mr. John Spalding Flannery for Frederic A. Delano, receiver.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
At the last term the State of Texas presented a petition for an order requiring the receiver to pay, out of the proceeds *300 from receivership wells found to be south of the interstate boundary, the gross-production tax which the state law exacts of those who engage in producing crude oil from wells within the State. On consideration of the petition the Court issued to the receiver the instructions which are set forth in paragraph 4 of the order of June 9, last, 265 U.S. 513. The receiver collected the requisite data and otherwise prepared to make payments of the tax computed on so much of the oil produced from each well as was represented by the proceeds actually impounded in his hands. But the State questioned that mode of computation and insisted that the total production be taken as the basis of the computation; so the receiver withheld payment until the question could be brought to the attention of the Court.
In other paragraphs of the order of June 9 the receiver was instructed to make necessary preparations for closing up the receivership, to have his books and accounts examined and audited by designated public acountants, to surrender the oil wells to the rightful claimants, and to pay the net proceeds remaining in his hands to the owners, lessees, etc., entitled to them. There were pressing reasons why this work should go ahead and not be deferred until the tax question was settled. The receiver accordingly set aside from the impounded proceeds from each well, in so far as they were sufficient, the amount which would be required to pay the tax in respect of that well in the event the computation should be based on the full production; and he then proceeded with the work. That work is now far advanced, some of it being completed. The receiver's books and accounts have been audited; statements of the receipts and expenses pertaining to each well, certified by the public acountants, have been transmitted to the several owners, lessees, etc.; the time allotted for presenting objections has expired, and the checks for the balances shown to be awaiting disbursement, *301 after deducting the amount set aside for the gross-production tax and a further sum to cover remaining receivership expenses, have been drawn and are ready for transmission, save in exceptional instances where conflicting claims need to be adjusted or determined.
The State now presents a supplemental petition asking that the instructions given on the original petition be so modified as to require that payments of the gross-production tax be computed on the full production, and also to require payment of another tax not mentioned before.
The gross-production tax is prescribed by Article 7383 of the Revised Civil Statutes of Texas and an amendment adopted in 1923, c. 45, 2d Called Sess. It is denominated an "occupation tax" and is laid on all who engage in producing crude oil from wells within the State. Up to April 1, 1923, the tax was one and one-half per cent. of the market value of the oil and since that date it has been two per cent. The other tax is prescribed by § 11 of an act passed in 1917 to regulate common-carrier pipe lines engaged in transporting crude oil, c. 30, Laws 1917. It is laid on the same persons and in the same manner as the gross-production tax and is to be used in paying salaries and expenses incident to the enforcement of the pipe-line regulations. The tax is one-twentieth of one per cent. of the market value of the oil produced.
This is an interstate-boundary suit and has been entertained in virtue of the original jurisdiction which the Constitution confers on this Court in respect of controversies between States. The appointment of the receiver and the conduct of the receivership, like the other proceedings, have been in virtue of that jurisdiction. In all that the receiver has done he has been the Court's agent and representative. In operating the oil wells in the area in dispute he was not engaged in a business or pursuing an occupation in the ordinary acceptation of those terms, but as an officer of the Court was conserving the property within *302 that area for the benefit of those to whom it ultimately might prove to belong. The State recognizes that all this is true, and so does not seek to subject the receiver to the taxes described but only to have them paid out of the proceeds of the oil production which are in his hands and ready to be paid over to those for whose ultimate benefit the wells have been operated. In other words, the State seeks, through the equitable aid of the Court, to have the taxes paid out of these proceeds before they are turned over to the beneficiaries on whom the taxes otherwise would fall. This aid is invoked on the ground that during the receivership many of the beneficiaries have become insolvent or left the State, so that the collection of the taxes by other means would be attended with embarrassment, and in some instances be impossible.
As to the gross-production tax, we think the State is equitably entitled to the relief sought, and that the amounts to be paid should be computed on the full production. Sufficient money has been set aside, and the payments can be made without material inconvenience or appreciable interruption of other work. In a few instances the tax already has been paid by parties in interest; and of course it should not be paid again. There are also instances where a part only of the proceeds was impounded and the net balance in the receiver's hands is not sufficient to pay the full tax. In such cases the payment necessarily will be limited to the net balance in hand. Because of the difference in ownership each well should be treated as a separate unit in computing the tax and making the payments. As between owners and lessees the amounts paid should be charged against the lessees, on whom as between the two the tax would fall.
As to the other tax, we think the State's request should be denied. It comes so late that the weight of equitable considerations is against its allowance. To grant it would require a readjustment of many of the receiver's accounts; *303 would delay the distribution of the proceeds, which in the aggregate reach large figures, and would be distinctly prejudicial to many claimants. Other objections to it have been suggested, but they need not be considered.
An order will be entered in accordance with this opinion. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/100530/ | 266 U.S. 435 (1925)
FULLERTON-KRUEGER LUMBER COMPANY
v.
NORTHERN PACIFIC RAILWAY COMPANY ET AL.
Nos. 152 and 179.
Supreme Court of United States.
Argued December 12, 1924.
Decided January 5, 1925.
ERROR AND CERTIORARI TO THE SUPREME COURT OF THE STATE OF MINNESOTA.
*436 Mr. P.L. Solether, with whom Mr. John Junell was on the brief, for plaintiff in error and petitioner.
Mr. Charles W. Bunn appeared for defendants in error and respondents.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
After suing out the writ of error, No. 152, the Lumber Company obtained a certiorari, No. 179, to review the same judgment. The record plainly discloses that a right under an act of Congress was claimed below and denied. The cause is properly here by certiorari and upon it the issue can be decided. That adequate ground for the writ of error was specially set up below is not clear. It will be dismissed.
On January 24, 1921, the original action was brought in the District Court, Hennepin County, to recover excess freight charges demanded by respondents between November 25, 1912, and September 16, 1913, in violation of § 4347, Minnesota General Statutes, 1913. Admitting original liability, the Railway Company relied upon the local statute of limitation, fixing six years as the time within which such actions must be begun. To this the *437 reply was that the prescribed period of limitation had been extended by paragraph (f), § 206, Federal Transportation Act 1920, 41 Stat. 456, 462, which provides, "The period of Federal control shall not be computed as a part of the periods of limitation in actions against carriers or in claims for reparation to the Commission for causes of action arising prior to Federal control." And upon the sole point of law thus raised the cause is before us.
The petitioner maintains that Congress intended to revive actions against carriers when the period designated by the state statute for bringing them had expired during federal control and asserts that the mischief to be remedied indicates such purpose and the ordinary meaning of the words employed discloses it. The respondent insists that a statute should never be given retroactive effect where another construction is fairly permissible, as here; that if in the circumstances the act of Congress be so construed it would create new causes of action and thus permit the taking of property without due process of law.
The Supreme Court of Minnesota held, rightly, we think, that the Transportation Act was not intended to revive or restore rights of action barred before it became effective.
"It is a rule of construction, that all statutes are to be considered prospective, unless the language is express to the contrary, or there is a necessary implication to that effect." Harvey v. Tyler, 2 Wall. 328, 347; Sohn v. Waterson, 17 Wall. 596, 599; Twenty Per Cent. Cases, 20 Wall. 179, 187; Chew Heong v. United States, 112 U.S. 536, 559; Shwab v. Doyle, 258 U.S. 529, 534. And see Hopkins v. Lincoln Trust Co., 233 N.Y. 213.
Applying this rule, we find no circumstances existing when the statute in question was enacted, nor any language therein, which shows that it should be applied to causes barred by limitation before its passage.
The judgment below is
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2347219/ | 116 N.H. 99 (1976)
ANNA L. TARR, ADMINISTRATRIX OF THE ESTATE OF JAMES TARR
v.
REPUBLIC CORPORATION & a.
No. 7238.
Supreme Court of New Hampshire.
February 27, 1976.
*100 Stanley M. Brown and Michael P. Hall (Mr. Brown orally) for the plaintiff.
John F. Cullity and E. Paul Kelly (Mr. Kelly orally) for defendant Manchester Insurance Corporation.
The other defendants filed no briefs.
LAMPRON, J.
Upon motion of the plaintiff and on its own motion, the United States District Court (Bownes, J.) on an agreed statement of facts certified to this court under our rule 20 (RSA 490 App. R. 20 (Supp. 1975)) the following questions of law:
"A. Whether following a settlement in an action brought by the fiduciary of the estate of the deceased employee pursuant to N.H. RSA 281:14 for wrongful death resulting from injuries received while at work, the compensation carrier has a continuing obligation to pay compensation benefits to the surviving dependents of the deceased employee pursuant to N.H. RSA 281:22.
"B. If the answer to the above question is in the affirmative, does the compensation carrier have a lien on the net proceeds of the death action settlement against which it may set off any future payments until such time as the weekly dependency benefits which would otherwise be payable exceed the amount of the net death action settlement?"
Plaintiff's decedent James Tarr was killed at work in Manchester on November 2, 1971, in an industrial accident in a fiberglass boatbuilding operation which resulted in a fire and an explosion. His accidental death was chargeable under the Workmen's Compensation *101 Law (RSA ch. 281) to his employer Hiliner Marine Corporation whose compensation carrier was the defendant Manchester Insurance Corporation. The deceased was survived by his dependent widow, plaintiff Anna, who was 40 years of age, and three dependent minor children then aged 16, 14, and 3.
An authorization for compensation for death was issued by the labor commissioner on November 30, 1971, and is still in effect. Thereunder Manchester Insurance is obligated to pay $92 each week to the dependents, $32 of which goes to the widow and the balance of $60 is given equally to each of the three dependent children. As of May 21, 1975, the amounts "already paid" pursuant thereto totaled $17,836. Defendant has calculated its total "indemnity reserve" required by the authorization at $81,700 over an eighteen-year period.
Plaintiff instituted third-party actions under RSA 281:14 in the State superior court and in the federal district court for the district of New Hampshire. On May 23, 1975, negotiated settlements on covenants of the six actions in the district court were effected for a total recovery from these third-party defendants of $92,187. The action in the superior court is still pending.
As to certified question "A" the plaintiff takes the unequivocal position that there is a continuing obligation on the compensation carrier to pay benefits to the surviving dependents of the deceased employee pursuant to RSA 281:22 (Supp. 1975) subject to the conditions for termination therein stated. Defendant's position is more complex. It admits in its brief that "on a reading of Section 22 alone, the carrier would have to concede that it does have a continuing obligation." However, it maintains that the carrier's obligations under RSA 281:22 (Supp. 1975) should be weighed against the liens provided by RSA 281:14 II on a recovery of damages from third-party tort-feasors.
RSA 281:22 (Supp. 1975) provides that weekly compensation is to be paid to a deceased employees' dependents including his widow and dependent children. In case of remarriage of the widow with dependent children, the unpaid compensation which would otherwise become her due is to be paid to third persons for the use and benefit of the dependent children. RSA 281:22 III (Supp. 1975). Compensation for a dependent child shall cease when the child becomes 21 (unless physically or mentally ill), or earlier if the child is self-supporting, or upon the marriage or legal adoption of such child. RSA 281:22 VI (Supp. 1975). These benefits are designed to provide the widow and her children a limited amount of *102 support for which they would have looked to the earning power of the deceased employee. They do not compensate them for the total loss resulting from the death of a husband and father. Archie v. Hampton, 112 N.H. 13, 16, 287 A.2d 622, 624 (1972).
As in the case of third-party actions by the employee or on his behalf, the rationale of such actions is that the ultimate loss should fall on the wrongdoer and that the employee, or his estate should be given an opportunity to obtain fair compensation for the loss sustained. Bilodeau v. Oliver Stores, 116 N.H. 83, 352 A.2d 741 (1976), argued and considered with this case and decided this day. There is no indication in these statutes creating a lien in favor of the compensation carrier on the recovery from the third party of an intent to affect in any way the amount of compensation benefits or damages recoverable by the employee or his estate. The purpose of the lien is to prevent a double recovery by providing reimbursement to the carrier. Smith v. Am. Employers' Ins. Co., 102 N.H. 530, 534, 163 A.2d 564, 567 (1960).
Accordingly, the answer to certified question "A" is "Yes", the compensation carrier has a continuing obligation to pay compensation benefits to the surviving dependents of the deceased employee pursuant to RSA 281:22 (Supp. 1975).
The parties differ as to the answer to certified question "B" regarding the extent of the compensation carrier's lien on the death action settlement. There was no such lien prior to its creation by Laws 1957, 187:6, now RSA 281:14 II. Gagne v. Greenhouses, 99 N.H. 292, 109 A.2d 840 (1954); Dowd v. Moore, 99 N.H. 313, 109 A.2d 838 (1954). Consequently, the pertinent terms of the statute are determinative of the issue. It provides that, as to the damages recovered from the third party, "the employer, or the employer's insurance carrier, shall have a lien on the amount of damages recovered which remain after deduction of such of the expenses itemized in RSA 556:14 [Distribution of Damages for Wrongful Death] as are not paid by the employer, or the employer's insurance carrier, and after deduction of the distributive share of any person to whom nothing is payable under section 22 of this chapter [Compensation for Death], to the extent of compensation, medical, hospital or other remedial care and funeral expenses already paid, or agreed or awarded to be paid by the employer or the employer's insurance carrier, under this chapter." RSA 281:14 II.
Plaintiff states in her brief that she is willing to have the lien apply to compensation already paid which amounted as of May 21, 1975, to $17,836. She maintains that the lien should not apply to *103 future compensation because allowing full reimbursement to the carrier is contrary to the basic purpose of the workmen's compensation act and is grossly unfair. This argument is premised on the alleged fact that deceased's estate has suffered a $298,000 loss and that because of a statutory limit of $120,000 imposed on recovery, the estate would recover less than 50% of its loss. Furthermore, she maintains that the recovery allowed in the third-party action would be reduced by an allegation that the employer Hiliner's negligence contributed to cause the death of her husband.
We have held in No. 7188, Bilodeau v. Oliver Stores, 116 N.H. 83, 352 A.2d 741 (1976) (decided this day) that the sole issue in the employee's or administrator's action is whether the third-party's negligence was a cause of the injury or death. The employer cannot be joined or sued by the third party as a tort-feasor and his negligence is not an issue in the employee's or administrator's action against the third party. What will prevent the administrator from receiving full damages is the statutory limit on recovery for wrongful death. We find nothing in the language of RSA 281:14 II which indicates an intent on the part of the legislature that the net recovery in such a case is to be treated differently than the recovery under RSA 281:14 I when an employee is injured but not killed. We held in the Bilodeau case that the lien is intended to extend to future payments to be made by the carrier under the requirements of RSA 281:23 (Supp. 1975). We hold that to be true in this case as to the compensation to be paid in the future under RSA 281:22 (Supp. 1975). We reach this conclusion for the reasons we expressed in the Bilodeau case, regardless of the language in Hackman v. American Mutual Liability Insurance Company, 110 N.H. 87, 92, 93, 261 A.2d 433, 437 (1970), relied on by plaintiff in urging a different result.
The damages for wrongful death recovered under RSA 556:12-14 are for the injury to the person and estate of the deceased and are to be distributed to certain specified beneficiaries who may, or may not, be the same persons receiving compensation under RSA 281:22 (Supp. 1975). Archie v. Hampton, 112 N.H. 13, 17, 287 A.2d 622, 625 (1972). The lien statute (RSA 281:14 II) recognizes that fact when it provides that the compensation carrier's lien applies to the wrongful death recovery from the third party "after deduction of the distributive share of any person to whom nothing is payable under section 22 of this chapter" which provided compensation for death.
*104 This court in a prior consideration of the nature of these liens for reimbursement made the following statement: "Some cogent indication of purpose should appear, before the Legislature is held to have intended to impose a lien upon damages recovered by one class of persons to reimburse an employer for compensation payments made to another class." Gagne v. Greenhouses, 99 N.H. 292, 296, 109 A.2d 840, 843 (1954). Applying this valid principle to determine the extent of the lien for reimbursement created by RSA 281:14 II, it can be paraphrased as follows: Some cogent indication of purpose should appear, before the legislature is held to have intended to impose a lien upon a share of a distributee of damages for wrongful death to reimburse the carrier for compensation paid to others. We find no such indication in the statute. The provision of RSA 281:14 II providing that the carrier's lien shall attach, after deducting from the damages for wrongful death "the distributive share of any person to whom nothing is payable under section 22," expresses a definite contrary intent.
We hold that the amount of the carrier's lien for compensation payments for death asserted against the share of any distributee of the damages recovered for wrongful death cannot exceed the compensation payments made or to be made to such distributee to meet the requirements of RSA 281:22 (Supp. 1975). See Buzynski v. Knox County, 159 Me. 52, 188 A.2d 270 (1963); Enghusen v. H. Christiansen & Sons, Inc., 259 Minn. 442, 107 N.W.2d 843 (1961). Consequently, if the widow's share of the wrongful death recovery is $50,000 and due to remarriage or other reasons her compensation payments will amount to $5,000, the carrier's lien on the widow's recovery would be for the latter amount only. If a child's share of the wrongful death recovery is $3,000 and because of termination of the compensation payments for reasons stated in the statute, the carrier will have paid him $2,000 the lien would be for the latter amount. Thus the carrier cannot acquire lien rights in excess of its liability under the workmen's compensation act in regard to each individual involved. Such an interpretation rationally reconciles the provisions of RSA 281:14 II and those of RSA 556:12-14.
Lastly, we consider plaintiff's argument that the carrier's lien for workmen's compensation cannot be asserted against the damages recovered in the wrongful death action other than those for loss of earning capacity, for which workmen's compensation is paid. RSA 281:14 II provides that the carrier "shall have a lien on the amount of damages recovered which remain" after certain specified deductions. *105 That part of the recovery for wrongful death based on pain and suffering and other elements of damages besides loss of earning capacity is not within these specified deductions. We hold that such damages are not to be deducted from the recovery on which the carrier's lien is to take effect. See Hendry v. Industrial Comm'n, 112 Ariz. 108, 538 P.2d 382 (1975); Pelkey v. Elsea Realty & Inv. Co., 394 Mich. 485, 232 N.W.2d 154 (1975); 2 A. Larson, Workmen's Compensation Law § 74.35 (1975).
The answer to certified question "B" is "Yes", the compensation carrier has a lien on the proceeds of the death action to the extent specified in this opinion against which it may set off any future payments. The manner in which this is to be accomplished, whether by suspension of payments of compensation or otherwise, is not provided for in our statute as it is in that of many other States. See 2 A. Larson, supra §§ 74.30 (1975) et seq. The parties have not briefed or argued how the net recovery or settlement should be allocated in order to effectuate the carrier's lien and insure that any excess recovery will be paid to the plaintiff administratrix as expeditiously as practicable for distribution in accordance with RSA 556:14. We are confident, however, that with the cooperation of the parties, the trial court can devise an equitable means of carrying out the provisions of RSA 281:14 as interpreted in this opinion.
Remanded.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3038624/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-4140
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Southern
v. * District of Iowa.
*
Kenny Clyde Homer Bevard, II, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: September 13, 2005
Filed: September 20, 2005
___________
Before RILEY, FAGG, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Kenny Clyde Homer Bevard, II pleaded guilty to being a felon in possession
of a firearm. After Bevard’s conviction became final, the Supreme Court decided
Blakely v. Washington, 124 S. Ct. 2531 (2004). Bevard later filed a 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence, asserting his sentence violates
Blakely. The district court* denied Bevard’s motion holding Blakely does not apply
on collateral review. Bevard appeals asserting Blakely and United States v. Booker,
125 S. Ct. 738 (2005), should apply retroactively for three reasons. First, Bevard
*
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
contends Blakely and Booker did not create new procedural rules because their
holdings were dictated by existing precedent. Second, Bevard argues that even if
Blakely and Booker created a new procedural rule, it is a watershed rule implicating
the fundamental fairness and accuracy of criminal proceedings. Third, Bevard argues
Blakely and Booker created a substantive change in the law by changing the
punishment available for the crime. Bevard’s arguments are foreclosed by our recent
decision in Never Misses a Shot v. United States, 413 F.3d 781 (8th Cir. 2005). Like
all other circuits that have considered the issue, we held “the ‘new rule’ announced
in Booker does not apply to criminal convictions that became final before the rule
was announced, and thus does not benefit movants in collateral proceedings.” Id. at
___.
We thus affirm the district court’s denial of Bevard’s motion.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1920322/ | 26 Md. App. 213 (1975)
337 A.2d 455
RICHARD E. HARRIS ET UX.
v.
THE STEFANOWICZ CORPORATION.
No. 858, September Term, 1974.
Court of Special Appeals of Maryland.
Decided May 8, 1975.
The cause was argued before ORTH, C.J., and GILBERT and LOWE, JJ.
Wilson K. Barnes, with whom was Marvin H. Schein on the brief, for appellants.
*214 James J. Dawson, with whom were Morton A. Sacks and Cable, McDaniel, Bowie & Bond on the brief, for appellee.
LOWE, J., delivered the opinion of the Court.
Our knowledge of the facts is limited, as was the chancellor's, to what we learn from the pleadings in this case.
Mr. and Mrs. Richard Harris, appellants, (Harris) contracted with the Stefanowicz Corporation, appellee (Corporation) to purchase a certain lot to be improved by a designated dwelling. Settlement was to take place within 10 days after completion of the improvements and was "expected to be on or before June 30, 1972," less than 5 months after the contract date. Harris deposited $3,000.00 with the Corporation.
The contract contained a cancellation or default clause which the chancellor depicted as "being the type of clause that no prudent buyer should allow to be in a contract...." Its very presence caused the chancellor to "confess a certain feeling of sympathy toward the buyer in this case." The clause read:
"(8) Should Buyers cancel or default hereunder for any reason all monies paid by Buyers including the cost of all change orders, will remain the property of the Seller and Seller shall be entitled to recover from Buyers all damages sustained as a consequence of such cancellation or default in excess of said monies. Should Seller cancel or default hereunder for any reason all monies paid by Buyers shall be returned by Seller, with no further liability on the part of one to the other."
Because appellee had made no effort even to commence construction well beyond the settlement date, and indeed had removed the top soil to be used elsewhere, appellants attempted first, to negotiate, then, being met with silence, to cancel the contract because of appellee's breach. The cancellation was in the form of a letter dated May 16, 1972. *215 Receiving no reply, appellants sued for specific performance and other relief on September 11, 1972. Their Bill elicited an Answer (although belatedly filed). Apparently, it also persuaded appellee to begin communicating.
On November 9, 1972 the Corporation's counsel wrote Harris, ignoring the prior cancellation letter, and informed Harris that the "Stefanowicz Corporation has decided to cancel...." It enclosed a check for $3,000.00, pointed out its escape clause in paragraph 8, and offered an additional $1,000.00 conditioned upon dismissal of the pending suit. Presumably too little and too late (suit having been filed), the check was returned and the offer declined. Sometime in December, 1973, appellee commenced construction, a year and a half after the "expected settlement date." The Corporation then sought and received leave to amend its Answer. It also supplemented its Interrogatories. To its original answer it added a paragraph:
"15. That further answering said Complaint, Defendant avers that
(a) Plaintiffs breached the contract between the parties when, on July 7, 1972, they communicated with Defendant through their authorized agent and attorney a demand for refund of their $3,000.00 deposit, which demand was not authorized by either the contract or by law. A copy of said demand letter is attached hereto and made a part hereof as Answer Exhibit No. 1;
(b) Plaintiffs cancelled the subject contract by letter dated July 7, 1972, copy of which is attached hereto and made a part hereof as Answer Exhibit No. 2; and
(c) Notwithstanding said breach and cancellation, Defendant is presently constructing on the subject premises a Queen Anne dwelling house in substantial accordance with the provisions of the Contract of Sale between the parties on February 3, 1972 and Defendant stands ready, willing and able to convey said premises, upon *216 completion, (approximately April 1, 1974) to the Plaintiffs at and for the contract price, with such adjustments therefrom as may be appropriate for minor variations from contract specifications."
Thereafter on two separate occasion the case was set for trial, subpoenas issued and served but no trial held for what reasons the record does not reflect. Indeed the record reflects nothing more than what is recited here, other than discovery procedures including interrogatories, demands for admissions, etc.
Finally, trial was set for October the 3rd and 4th, 1974. Subpoenas were again issued and served, and on October 3, 1974 all parties and witnesses were present.
The record then leapfrogs to an Order dismissing the Bill of Complaint followed by a transcribed oral opinion which sheds some light on the chancellor's decision to dismiss and the vehicle he chose to reach that result. At no time was testimony taken or evidence introduced. The opinion reads, in part:
"THE COURT: As I have said, there has been no motion for a summary judgment or decree filed in this case so that the matter can not be disposed of under the summary judgment rules because that requires ten days' notice of a hearing, but the summary judgment rule provides that the judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavit, if any, show there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law.
Now, Maryland Rule 502 says that,
`At any stage of the action, the court may, on application of any party or of its own motion if it shall appear that there is a question of law which it would be convenient to have decided before going further, direct such question to be *217 raised for the court's decision in such manner as the court may deem expedient. All such further proceedings as may be rendered unnecessary by the decision of such question shall upon the decision be stayed. Such proceedings as show the questions so decided and the decision thereon shall form a part of the record and be reviewable upon appeal after final judgment.'
Now, the complainant here is ready to prove damages as a result of the position he is now in, which damages would encompass a great deal of disputed testimony and I believe, therefore, that it is convenient to have the question of responsibility or liability determined before going further. As the Rule specifically permits, the Court does that here today of its own motion.
I have heard arguments of counsel on this question of liability and it seems to me that we are in the exact position as if the defendants had filed a motion for summary decree. The Court's use of Section 502 merely eliminates the requirement of ten days' notice before hearing on motion for summary judgment or summary decree and it seems clear to the Court that the pleading, the admission and, all of the exhibits filed and admissions lead to an inevitable and inescapable conclusion that the complainants, Mr. and Mrs. Harris, can not recover, and this Court doesn't believe there's any dispute as to any material fact, to wit, facts that deal with the issue of liability. There are areas of dispute as to just what transpired between these parties, but, it is the opinion of the Court that they are not material."
The ende good, doeth not by and by make the meanes good
The Chancellor used Rule 502 to bypass the procedure required in Rule 610, summary judgment, saying that "The *218 Court's use of Section 502 merely eliminates the requirement of ten days' notice before hearing on motion for summary judgment or summary decree...." Notwithstanding the hybrid development of Rule 502, it is as different from summary judgment in purpose and effect as is an apple from an orange. It is inconceivable that the Court of Appeals intended to permit a chancellor, on his own motion, to dispose of a case without hearing evidence, when the decision required him to draw factual conclusions from allegations in pleadings, some of which were not even under oath. In the absence of affidavits, the conclusion effected by the chancellor here was more reminiscent of the old Hearing on Bill and Answer, than Summary Judgment which replaced it. However, neither of those procedures ever contemplated proceedings by a court's peremptory action initiated sua sponte. A Summary Judgment is initiated by motion of a party, Md. Rule 610 a; while the initiator of a final hearing on bill and answer had to be by the plaintiff, Somerville v. Marbury, 7 G & J 275, 281; Miller, Equity Procedure, §§ 255, 256.
The purpose of the Summary Judgment procedure is to dispose of cases where there is no genuine factual controversy. The dispute here involved: first, appellants' claim that appellee breached; and second, appellee's claim that appellants breached and/or cancelled the contract, while it continued ready, willing and able to perform. Although each issue raised involved factual questions and could have required application of a different remedy, the chancellor decided in essence, that paragraph 8 of the contract limited appellants to what he regarded as an adequate remedy at law, an issue ordinarily raised and decided on demurrer.[1]
*219 When there is no demurrer or motion for summary decree, but there is an issue the court considers convenient to decide before going further, it may choose to invoke Rule 502. The authority given is limited, however. The rule states that "the court may ... direct such question to be raised for the court's decision in such manner as the court may deem expedient."[2] [Emphasis added].
In addition to court directive, the rule's operation may be triggered by application of a party or stipulation of the parties "in advance of a determination of the main issue." Cf. Cambridge v. Eastern Shore Public Service Co., 192 Md. 333, 341, (giving as an example "by special case stated or otherwise.").
Md. Rule 502 is a patchwork of "lifted language" amalgamated from two nineteenth century statutes and given impetus by a third unrelated act.[3] It was meant to fuse an equity procedure with a legal one which had been originally designed to clear away preliminary or extraneous issues before trial. Although the editor's notes indicate no substantive change was intended by the rewriting of Art. 75, § 134 and Art. 16, § 237 as one rule, certain language which had been in the equity act (originally Acts of 1886, Ch. 334) was omitted to facilitate the revision. The omitted language included a phrase more clearly conveying the procedural safeguard to be followed when it appeared to the chancellor that there was a question of law that it would be convenient to decide. "... the Court may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court."
*220 Properly invoked, the rule unquestionably enables a chancellor to decide a purely legal issue as a preliminary matter. In the usual case, application of the rule will result in a bifurcated proceeding, where resolution of certain legal questions precedes resolution of issues which must be tried. On the other hand, there are circumstances where invocation of Rule 502 will, upon resolution of the legal issue, conclude the case, e.g., Irvine v. Montgomery County, 239 Md. 113, where grant of a Motion Raising Preliminary Objection on the basis of governmental immunity foreclosed further proceedings.[4] Significantly, however, in none of the cases relied upon by appellee was the decision rendered without some warning and opportunity to prepare whether it be in the form of an anticipatory question by either a party or parties, preliminary court directive, or acquiescence or stipulation at or during trial. The isolated instances when Rule 502 was utilized and that was not the case are unusual if not extraordinary. In Scheihing v. B. & O.R.R. Co., 180 Md. 168, the 502 procedure was followed by the court because, after twice being called to trial and found unprepared, the plaintiff on the third occasion was "not able to make a satisfactory offer of proof...." The Court of Appeals said, that under the circumstances "[she] can hardly be heard to complain that she has not had her day in court." In discussing the procedure which was then found in Md. Code 1939, Art. 16, § 226, the Court said:
"Such a proceeding is not a demurrer but is intended to be rid of irrelevant questions which have no part in a controversy, so as to leave the decision to the point of the case." Scheihing, 180 Md. at 172.
*221 Notwithstanding its diverse origins and the recent inclusion of "language ... lifted" from Article 26, § 16, Rule 502 was never meant to be a device for summarily dismissing cases. We now make explicit what was implicit in Scheihing, viz., Rule 502 may not be used as a judicial demurrer nor as a chancellor's motion for a summary judgment.
In light of this result, we need not reach other questions raised.[5]
Decree dismissing bill of complaint reversed; case remanded for trial.
Costs to be paid by appellee.
NOTES
[1] The chancellor, whose hypothesis was not unreasonable, said:
"No matter from whose point of view you look at this case the result comes out the same as far as the claim that is asserted in this bill of complaint is concerned because you either have a cancellation of the contract by the buyer under the letter of July the 7th and, having canceled, the buyer would not be entitled to sue for breach or, if it's the seller who has canceled or breached he has legally and effectively limited his liability to the return of the deposit. Having tendered the same he has discharged his liability."
[2] If the court below complied with this portion of the rule, such compliance is indicated neither by record nor by the parties. The reference by the chancellor to "arguments of counsel on this question of liability" indicates counsel may have had some advance notice of the opinion that followed; however, the record otherwise gives us no indication that the opinion rendered came as anything but a complete surprise to both parties.
[3] Subsection (b) of Md. Rule 502 contains language which permits the court to draw "all inferences of fact or law that the court or jury could have drawn from the facts agreed or shown as if the same had been offered in evidence upon a trial before the court or before the court and a jury." The editor's note to the Rule tells us that this "language was lifted from Article 26, § 16, 1951 Code, dealing with agreed statements of fact, special cases stated and special verdicts."
[4] Although the question of law was decided from the pleadings, the use of Rule 502 was justified by the Court of Appeals in Irvine on the principle that governmental immunity must be raised by motion before any pleading. Md. Rule 323 b. The Court said "The purpose of Rule 323 is to have a legal question, such as this, decided before trial of the action on its merits.... Compliance with procedural regulations is essential to the fair and efficient administration of justice, but it is the substance of compliance and the fair treatment of the parties, which are determinative." Irvine, 239 Md. at 117.
[5] While it is unnecessary to reach the issue as raised, we cannot help but wonder why the chancellor felt he did not have "jurisdiction" to order the return of the down payment in light of his finding:
"Now, it's quite obvious that the Court's ruling establishes the right as between these parties to the return of the deposit, but, I don't believe that the Court has any jurisdiction in this case to enter a judgment against Stefanowicz for the $3000, that would have to be a suit at law, but, it seems to me that the right to recover, that would be automatic upon the filing of suit. A motion for summary decree or summary judgment for the $3000 could be supported by assertion of a res judicata principle, but, I'll leave that for another day." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3949270/ | Not being in accord with the holdings of the majority affecting rendition, I dissent therefrom under the individual conclusion that the signers of the original petition to the city council for the sewer, or at the least such of them as paid the assessments subsequently made against them pursuant thereto, were necessary parties to the suit, and that in consequence of their not having been brought in the cause should have been remanded for a trial de novo as to who owned the fund involved with them also before the court. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1920310/ | 447 N.W.2d 30 (1989)
233 Neb. 595
STATE of Nebraska, Appellee,
v.
David L. BROADSTONE, Appellant.
No. 88-915.
Supreme Court of Nebraska.
October 20, 1989.
*32 Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays, Lincoln, for appellant.
Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for appellee.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
BOSLAUGH, Justice.
After trial to a jury the defendant, David L. Broadstone, was convicted of disturbing the peace and was sentenced to probation for 18 months. Upon appeal to the district court, the judgment was affirmed. The defendant has now appealed to this court.
The defendant's assignments of error allege that the evidence was not sufficient to support the verdict and that the trial court erred in allowing the complaining witness to testify about the defendant's disturbing the peace and quiet of someone other than the person alleged in the complaint, in overruling the defendant's motion in limine, and in prohibiting the defendant from being around children under 14 years of age or going within a block of places normally frequented by children.
Neb.Rev.Stat. § 28-1322(1) (Reissue 1985) describes the offense of disturbing the peace as intentionally disturbing the peace and quiet of any person, family, or neighborhood. The complaint in this case alleged that the defendant had intentionally disturbed the peace and quiet of a person, family, or neighborhood, "to-wit: Jerry L. Gulizia...."
The record shows that on March 31, 1988, Jerry Gulizia and Randall Keefe were waiting in Gulizia's front yard for their children to get out of Merle Beattie elementary school in Lincoln, Nebraska. Gulizia's daughter attended school at Merle Beattie, which was located just across the street from his house. While Gulizia and Keefe were waiting for their children, their attention was drawn to the defendant and a child, who were across the street. The defendant was using foul language and had a stick in his hand which he was hitting against a telephone pole. Children were coming out of the school at the time, and Gulizia saw 15 or 20 children walk by during that time. Gulizia testified that the defendant was using foul language when the children were near him.
Gulizia testified he heard the defendant say words like "motherfucker," and the child with the defendant would then repeat what the defendant had said. When the language continued, and their children started to cross the street, Gulizia and Keefe decided to cross the street and talk to the defendant because some of the children appeared to be frightened. Gulizia said that he was not shocked by what he heard, but he was upset that the children were exposed to it.
After Gulizia and Keefe had crossed the street, Gulizia asked the defendant if he was waiting for some children. The defendant replied it was none of his "fucking business." Gulizia then asked the defendant if he would leave. The defendant became violent and began shaking the stick, striking Gulizia on the arm and yelling obscenities such as "cocksucker" and "motherfucker." Gulizia then pushed the defendant against the fence and tried to settle him down.
*33 After Gulizia released the defendant, the defendant ran down the sidewalk and said, "Your wife is a whore. Your daughter is a whore. Your whole family's a whore. I fucked her last night." At that time there were 15 or 20 children scattering to get away from the defendant.
When asked how the defendant's comments made him feel, Gulizia stated, "It didn't make me feel too good," and he was upset by the defendant's behavior.
Gulizia further testified that he was upset by the defendant's swearing in front of the children. He was not bothered by the defendant's swearing at him, but it was the fact the defendant was swearing in front of the children that bothered him. Gulizia asked his wife to call the police.
Keefe's testimony generally corroborated the testimony of Gulizia.
Officer Michael Martin, who responded to the call, testified that in response to his questions, the defendant said that he was standing on the sidewalk in front of the school with his nephew, who was slightly retarded, and that the nephew had been yelling obscenities at the children. The defendant said he was trying to get the nephew to be quiet when two men came over and pushed him against the fence.
The defendant testified that while he and his nephew were taking a walk, his nephew started mumbling something when the children started coming out of school. The defendant was not swearing at the children, but the nephew was because one of the children had kicked him. The defendant then told his nephew to "quit saying those fucking words," which was when Gulizia and Keefe came across the street. According to the defendant, Gulizia pushed him against the fence and threatened to kill him. When Gulizia released the defendant, the defendant said, Gulizia made an obscene remark to the defendant. The defendant responded by saying, "Well, I screwed your wife last night, and I thought she was a whore." The defendant admitted using profanity toward Gulizia, but not toward the children.
The jury returned a verdict of guilty, and the defendant was sentenced to probation for 18 months. Upon appeal to the district court, the judgment was affirmed.
In determining whether the evidence is sufficient to sustain a conviction in a jury trial, this court does not resolve conflicts in the evidence, pass on the witnesses' credibility, determine the plausibility of explanations, or reweigh the evidence. These matters are for the finder of fact, and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Culver, ante p. 228, 444 N.W.2d 662 (1989).
The evidence of the State which has been summarized was sufficient, if believed, to permit the jury to find the defendant guilty beyond a reasonable doubt.
In State v. Coomes, 170 Neb. 298, 301-02, 102 N.W.2d 454, 457 (1960), we said:
A breach of the peace is a violation of public order. It is the same as disturbing the peace. The definition of breach of the peace is broad enough to include the offense of disturbing the peace; it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community. [Citations omitted.]
Breach of the peace is a common law offense. The term "breach of the peace" is generic and includes all violations of public peace, order, decorum, or acts tending to the disturbance thereof.
In State v. Sukovaty, 178 Neb. 779, 135 N.W.2d 467 (1965), the defendant was charged with disturbing the peace by publicly cursing, swearing, and using profane, obscene, indecent, abusive, and offensive language against the complaining witness. The evidence showed that the defendant failed to leave after being requested to do so and used profane and abusive language against the complaining witness and disturbed his peace and quiet by disorderly conduct. In affirming the conviction, we approved a definition of disorderly conduct as any act which tends to breach the peace or disturb those who see or hear it, and a *34 definition of peace, as used in this phrase, as the tranquility enjoyed by members of a community where good order reigns.
The defendant argues that his language was protected speech under his right to freedom of speech under the 1st and 14th amendments to the U.S. Constitution. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), defines language that tends to incite assault or other immediate breach of the peace as "fighting" words, which are not constitutionally protected forms of speech. In the Chaplinsky case the Court said at 571-72, 62 S. Ct. at 768-69:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." Cantwell v. Connecticut, 310 U.S. 296, 309-310 [60 S. Ct. 900, 905-06, 84 L. Ed. 1213 (1940)].
In Cantwell v. Connecticut, 310 U.S. 296, 308-10, 60 S. Ct. 900, 84 L. Ed. 1213 (1940), the Court said:
The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others....
. . . .
... One may, however, be guilty of the offense if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended. Decisions to this effect are many, but examination discloses that, in practically all, the provocative language which was held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.
This court has held words such as those used by the defendant are fighting words. See State v. Groves, 219 Neb. 382, 363 N.W.2d 507 (1985).
The defendant's motion in limine sought to prevent the State from arguing the evidence because the evidence related to the defendant's disturbing the peace and quiet of someone other than the person named in the complaint. The evidence established that, in addition to the defendant's statements directed at Gulizia personally, the defendant's use of profanity in the presence of the children disturbed Gulizia.
In The State v. Burns, 35 Kan. 387, 11 P. 161 (1886), the defendant's conviction for disturbing the peace was affirmed, although the objectionable words and acts of the defendant were directed toward her former husband and not the complaining witness. The Kansas Supreme Court approved an instruction which stated in part: "Although the words and acts of the defendant may have been primarily directed against some person other than [the complaining witness] or his family, yet if the defendant's words and acts were wrongful and willful, and the natural and necessary consequences of them were the disturbance of [the complaining witness] and his family, the defendant is equally guilty as though she had no other intention than the disturbance of [the complaining witness] and his family...."
Id. at 390, 11 P. at 162. The assignment of error is without merit.
*35 The trial court included the following conditions in the order of probation:
10. Shall have no contact with children 14 years of age or younger, except in the presence of any such child's parent or guardian. This term includes Mr. Broadstone's immediate family. For purposes of this term, "no contact" means that Mr. Broadstone shall not affirmatively remain in the physical presence of children. Further, he shall not telephone, write or converse directly or indirectly with children.
11. To physically stay away from every public or private schoolground, public or private playground, recreational center, athletic field, swimming pool and any other place, public or private, where children habitually congregate. For the purposes of this term "stay away" means that Mr. Broadstone shall not be found within one city block of any of the above places.
Although the defendant assigned error as to these conditions, the matter was not argued in the defendant's brief. This court does not consider assignments of error not discussed in the brief. State v. Bonczynski, 227 Neb. 203, 416 N.W.2d 508 (1987).
Similar conditions were included in the defendant's bonds. Generally, an objection to a bond cannot be made by appeal. See, State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974); State v. Watkins, 190 Neb. 450, 209 N.W.2d 184 (1973).
The judgment is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920326/ | 337 A.2d 215 (1975)
Tyrone HURT, Appellant,
v.
UNITED STATES, Appellee.
No. 7035.
District of Columbia Court of Appeals.
Argued June 27, 1974.
Decided April 29, 1975.
John A. Keats, Washington, D. C., appointed by this court, for appellant.
E. Lawrence Barcella, Jr., Asst. U. S. Atty., with whom Earl J. Silbert, U. S. *216 Atty., John A. Terry and John T. Kotelly, Asst. U. S. Attys., were on the brief for appellee.
Before KERN, NEBEKER and HARRIS, Associate Judges.
PER CURIAM:
This is an appeal from a conviction of first degree murder (D.C.Code 1973, § 22-2401) and carrying a concealed weapon (D.C.Code 1973, § 22-3204) after a jury trial. Several errors are assigned by appellant which will be discussed, infra. Based on our consideration of the record in light of the applicable case law, we affirm.
The evidence shows that appellant, Cornelius Parker (the deceased), James Johnson, Joe Murphy, William Russell and several others were gambling in a row house in the early morning hours of September 27, 1971. Appellant "shot" the dice while Murphy "backed" the game. Murphy and appellant were winning at the expense of Russell, Parker, and Johnson. After the game broke up at approximately 6 a. m., the group went outside to wait for Russell's girl friend to return with his car so he could go home for money to cover his losses. Appellant and Parker got into a heated argument about appellant's refusal to give or lend Parker $20. Parker hit appellant in the mouth and kicked him in the stomach before Johnson and Russell finally separated them. The group momentarily dispersed when a police cruiser passed by, but Parker and appellant soon resumed fighting. Johnson intervened again on Parker's behalf and argued with appellant. Johnson thereupon went to his car and opened the trunk, as if to look for a weapon, but was stopped by Russell. Both Johnson and Parker apparently threatened appellant; Parker, in particular, telling appellant he was going to take his money and kill him or have him killed. Appellant then ran from the scene saying he would return.
Approximately 45 minutes later those still remaining at the scene drove in Johnson's car a few blocks away and returned in 10 or 15 minutes. Meanwhile, appellant had retrieved a pistol he had hidden earlier and had gone back to the scene where he waited approximately a half hour for the others to return ostensibly for Murphy to give him his share of the winnings. Appellant testified he needed the pistol to protect himself because Johnson was much bigger and Parker much stronger than he. Appellant also testified that he was aware of Parker's reputation for violence.
Johnson drove up, with Parker as a passenger. As he did, Johnson saw appellant sitting on the steps of a house with his hands in his pockets. Johnson warned Parker that appellant might have a gun, but Parker insisted that Johnson stop in front of appellant. Parker and Johnson then started to alight from the car and appellant asked Parker if he was still mad at him about the money or still thought he was going to do something to him. When Parker replied affirmatively, appellant drew his pistol and fired six shots, killing Parker.
Johnson testified that appellant was approximately six feet from Parker when the shooting began. He also stated that appellant fired at least two of the first four shots at him (Johnson), walked to the front of the car towards Johnson and then returned to his original position where he fired two or three more times.[1] This homicidal episode lasted approximately a minute to a minute and a half. Parker did not threaten appellant either verbally or physically just before the actual shooting itself, and appellant did not warn Parker not to come towards him. The police, who arrived at approximately 8:15 a. m., found no weapons on or around Parker's body.
*217 At trial appellant claimed self-defense and now assigns error in the trial court's striking the testimony of his witness, Edward Brown. Brown was the fourth in a series of witnesses presented by appellant to establish Parker's reputation for violence. After Brown had testified about an altercation he had with Parker in the early 1960's, he began to recount an incident in which he had allegedly almost been hit by a shot fired by Parker. Brown's testimony was quite vague he could not even remember the season or the year in which this event took place, stating only that it had occurred sometime in the 1970's. The trial court then interrupted, excused the jury, conducted an interrogation of the witness out of the presence of the jury, and finally declared a recess in an effort to give the defense an opportunity to refresh Brown's memory. Ultimately, the court struck his testimony and appellant's counsel below did not object.
Although evidence at trial of the deceased's violent character is admissible where a claim of self-defense is raised, see United States v. Burks, 152 U.S.App.D.C. 284, 470 F.2d 432 (1972); Evans v. United States, 107 U.S.App.D.C. 324, 277 F.2d 354 (1960), the number of such witnesses permitted to testify can be controlled in the trial court's discretion so as to limit cumulative testimony. 1 J. Wigmore, Evidence § 198 at 676-77 (3d ed. 1940). This is such a case. Additionally, the admission of Brown's testimony here vague and uncertain as it was about a supposedly recent event would have denied the government an opportunity for meaningful cross-examination. Under the circumstances, we find no error.
Appellant's second assignment of error is the trial court's alleged departure from its neutral judicial role and assumption of the direction of the prosecution's case, thereby denying appellant his right to a fair trial.
Initially, we note that appellant raises this issue for the first time on appeal. He must thus prove clear prejudice to his defense in order to justify reversal of his conviction. Springs v. United States, D.C.App., 311 A.2d 499, 500 (1973); United States v. Green, 139 U.S. App.D.C. 75, 429 F.2d 754 (1970); United States v. Doran, 483 F.2d 369 (1st Cir. 1973).
Without discussing seriatim each instance cited by appellant as an example of unwarranted and prejudicial interference by the trial court, suffice it to say that we conclude the trial court's questions and directions in the complete context in which they were asked or given were "neither hostile nor were they coupled with critical remarks that would undoubtedly tend to prejudice a jury." Springs v. United States, supra at 500. Moreover, even if the trial court did err in some of its rulings and interventions, we must "guard against the magnification on appeal of instances which were of little importance in their setting." Glasser v. United States, 315 U.S. 60, 83, 62 S. Ct. 457, 471, 86 L. Ed. 680 (1942); accord, Jackson v. United States, 117 U.S.App.D.C. 325, 329 F.2d 893 (1964).
Appellant also assigns error in the trial court's refusal to charge the jury with regard to self-defense as a defense to carrying a pistol without a license (No. 4.81(d), Criminal Jury Instructions for the District of Columbia (1972 ed.)). The United States Court of Appeals for the District of Columbia Circuit observed in Cooke v. United States, 107 U.S.App.D.C. 223, 224, 275 F.2d 887, 888 (1960), that this instruction is inapplicable where one anticipating harm carries a pistol in public for a period of time before the actual danger arises as opposed to when one actually uses it in self-defense. See also, Dandridge v. United States, 105 U.S.App.D.C. 157, 265 F.2d 349 (1959); Wilson v. United States, 91 U.S.App.D.C. 135, 198 F.2d 299 (1952). We believe Cooke, Dandridge and Wilson are dispositive of this issue and find no error in the trial court's failure to give the instruction requested by appellant.
*218 Appellant's final assignment of error is that the trial court's instructions to the jury on malice[2] and lack of instruction on provocation and manslaughter, to which he made objections, were erroneous. Appellant argues that the trial court's definition of malice as "a state of mind showing a heart regardless of social duty" rather than as "a state of mind showing a heart regardless of the life and safety of others," as suggested by United States v. Bush, 135 U.S.App.D.C. 67, 416 F.2d 823 (1969) and as contained in Nos. 4.21 and 4.23 of the Criminal Jury Instructions for the District of Columbia (1972 ed.), was reversible error. We must consider the circumstances of the offense and the court's instructions in context, however, to determine whether appellant is entitled to reversal here.[3] We conclude he is not. The trial court's instructions, though contrary to the suggestion in Bush, clearly informed the jury that it must find appellant acted with a man-endangering state of mind[4] before it could find that he acted with malice. On the particular facts of this case, we are persuaded that the trial court's language had no influence on the verdict or superseded or detracted from its other definitions of malice. Otherwise, this court would have to conclude as a matter of law that the jury could reasonably have found that shooting another person six times at close range during a period of a minute to a minute and a half was an act not done with a mind "regardless of the life or safety of another" but only an act done with a mind "regardless of social duty." The jury's finding of first degree murder belies this proposition.
Appellant's claim that the trial court erred in not instructing the jury on provocation and manslaughter is not supported by the evidence. Appellant's requested instruction, Standard Instruction No. 4.23, even undermines his argument. There, adequate provocation is defined as such as
might naturally induce a reasonable person in the passion of the moment to lose self-control and commit the act on impulse and without reflection. A blow or other personal violence . . . may constitute adequate provocation. But a trivial or slight provocation, entirely disproportionate to the violence of the retaliation, is not adequate provocation. Mere words standing alone, no matter how insulting, offensive, or abusive, are not adequate provocation. . . . [No. 4.23, Criminal Jury Instructions for the District of Columbia (1972 ed.).]
In this case the only activity that could possibly have constituted adequate provocation for a manslaughter instruction occurred approximately 45 minutes prior to the homicide. Appellant, by his own admission, retrieved a pistol after his fight with Parker, and returned to the scene where he waited for approximately 30 minutes and then shot Parker. The reason appellant gave for shooting him was his own fear and he "wasn't going to take no chance at that particular time." Certainly this was inadequate provocation for the shooting.
In addition, the jury's verdict dissolves appellant's argument. By its finding of first degree murder, the jury implicitly acknowledged the existence of premeditation *219 and deliberation which cannot coexist with adequate provocation. As the United States Court of Appeals for the District of Columbia Circuit said in Belton where it rejected a claim of error in the denial of a requested manslaughter instruction:
Here there was no testimony "fairly tending" to bear on manslaughter. . . . It is rather a case where the charge requested was objectionable as based on speculation without foundation in the evidence. . . .
* * * * * *
In reaching our conclusion that there was no reversible error, we again emphasize that the jury's verdict went beyond second degree murder; this weakens any sense of prejudice from failure to charge manslaughter. [Belton v. United States, 127 U.S.App.D.C. 201, 207-08, 382 F.2d 150, 156-57 (1967).]
We also find that appellant never specifically requested a manslaughter instruction at trial and thus did not preserve this issue for appeal. Even if he had, we would not hold the failure to give such an instruction reversible error in the circumstances of this case.
Affirmed.
NOTES
[1] Although Johnson testified that appellant aimed the first few shots at him, an autopsy revealed six entry, two re-entry, and five exit wounds in Parker's body. The police also found bullet holes in the tire of Johnson's car and in the passenger side headrest.
[2] The first-degree murder count in the indictment charged appellant "purposely and with deliberate and premeditated malice, shot Cornelius Parker." (Emphasis added.)
[3] United States v. Martin, 154 U.S.App.D.C. 359, 475 F.2d 943 (1973); United States v. McCall, 148 U.S.App.D.C. 444, 460 F.2d 952 (1972); United States v. Johnson, 140 U.S. App.D.C. 54, 58 n. 27, 433 F.2d 1160, 1164 n. 27 (1970); United States v. Porter, 139 U.S.App.D.C. 19, 429 F.2d 203 (1970); Bynum v. United States, 133 U.S.App.D.C. 4, 408 F.2d 1207 (1968), cert. denied, 394 U.S. 935, 89 S. Ct. 1211, 22 L. Ed. 2d 466 (1969).
[4] Carter v. United States, 141 U.S.App.D.C. 259, 264 n. 26, 437 F.2d 692, 697 n. 26 (1970), cert. denied, 402 U.S. 912, 91 S. Ct. 1393, 28 L. Ed. 2d 655 (1971), wherein the court pointed out that its purpose in changing the malice instruction in Bush was to convey precisely this standard to the jury. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920347/ | 447 N.W.2d 541 (1989)
William E. SWANSON, Sr., Appellant,
v.
Robin McGRAW and Phillip Reynolds, Appellees.
No. 88-859.
Supreme Court of Iowa.
October 18, 1989.
Thomas H. Preacher, Davenport, for appellant.
Richard M. McMahon and Vicki L. Seeck of Betty, Neuman & McMahon, Davenport, for appellees.
Considered en banc.
LAVORATO, Justice.
The plaintiff, William E. Swanson, Sr., sued two fellow employees, alleging gross negligence under Iowa Code section 85.20(2) (1983). After the close of Swanson's evidence, the district court directed a jury verdict in favor of the two defendants. We reverse and remand.
Swanson was an employee of the Oscar Mayer Foods Corporation in Davenport. On the night of January 7, 1985, Swanson suffered a work-related injury when caustic soap he was using to clean some machinery leaked through a hole in his protective rain suit. As a result of the leak, Swanson received a third-degree chemical burn on his right leg.
At the time, Swanson worked in the sanitation department, a position he had held for thirteen years. His shift was from 8 p.m. to 4 a.m. On this night Swanson's job was to clean the "CWP (continuous wiener processing) Smoke Zone," a room through which wieners are mechanically conveyed for cooking and smoking. Swanson had been responsible for cleaning this room for about four months. At the time of his transfer to this job, Swanson received about three days' training.
Swanson's duties included spraying the equipment, walls, and cabinets in the room with a soap solution that contained highly caustic chemicals such as lye. Swanson applied this solution with a power spray machine called a "saniseptor" and then rinsed the soap off with water.
The soap came in a powder form which had to be mixed just prior to its application. The barrels containing the soap powder had labels warning that the soap was caustic. It was common knowledge among all employees working in the sanitation department that the soap contained chemicals that could cause severe chemical burns. In fact several employees had been burned while cleaning the CWP room.
To protect employees working with this soap, the company required them to wear rubber boots, rubber gloves, a rubber apron, protective goggles, and "poly sheets" (sheets of long plastic) over the *542 arms and legs. The employees secured the poly sheets to their bodies with either masking tape or rubber bands.
As an added precaution, the employees wore rain suits. The company furnished, at its expense, all of this gear except the rubber apron.
On the night of his injury Swanson was wearing a T-shirt, cotton pants, rubber boots, poly sheets on his arms and legs, and his rain suit. He wore two pairs of gloves: a cotton set with a rubber set underneath. To protect his face and head, Swanson wore a shield similar to a welder's mask.
Swanson used masking tape instead of rubber bands to secure the poly sheets on his legs because the rubber bands cut off the circulation. The poly sheets covering his legs often fell down because of the intense heat and the movement required to reach all the equipment. Other employees had the same experience with the poly sheets; so this was common knowledge among them.
Swanson did not wear the rubber apron while he was applying the soap because the apron restricted his movement and might cause him to trip and fall. During this part of the cleaning operation Swanson was at times on a ladder and at other times climbing the equipment to clean it. Swanson did use the apron while rinsing the soap off the equipment.
On January 2, several days before his accident, Swanson told his immediate supervisor, Robin McGraw, that there was a hole in his rain suit. McGraw told Swanson there were no other rain suits available and that he would order some. McGraw also told Swanson to protect himself "the best he could."
On the night of his injury just before his shift began, Swanson reminded McGraw of the hole and asked if the new rain suits had arrived. McGraw told Swanson that the rain suits were on order and that he would get one to Swanson as soon as they arrived. This conversation took place in the presence of Phillip Reynolds, the night plant manager. Both McGraw and Reynolds then told Swanson to take care of himself. Swanson never refused to continue working because he was afraid of being suspended.
Although Swanson did not know the exact spot of the hole, he knew it existed because his pants had gotten wet before he was injured. This was the same spot where Swanson suffered his injury.
On the night of his injury, Swanson had completed soaping the CWP room and was preparing to rinse the room when he felt a warmth on his leg. He left the room immediately and told McGraw of the burn. After seeing the burn, McGraw sent Swanson to the hospital.
As a result of the burn, Swanson underwent several skin graft operations. He remained home for approximately two months and received workers' compensation benefits.
Later Swanson filed an action with the industrial commissioner, seeking permanent partial disability. He also filed a products liability action in federal court against the soap manufacturer, and this action against McGraw and Reynolds. The industrial commissioner has already determined that Swanson is not entitled to permanent partial disability. The products liability action was ongoing when the action here was tried.
In this action against McGraw and Reynolds, Swanson alleged that their failure to provide him with a new rain suit amounted to gross negligence as that term is defined in Iowa Code section 85.20(2). The case was tried to a jury. At the close of Swanson's evidence, the district court sustained the defendants' motion for a directed verdict. In granting the motion, the court found that there was no substantial evidence that the defendants knew the injury was probable or that they consciously failed to avoid the peril. Swanson appealed, contending the district court erred when it sustained the motion for directed verdict.
In ruling on a motion for directed verdict the district court must first determine whether the plaintiff has presented substantial evidence on each element of the *543 claim. Kurth v. Van Horn, 380 N.W.2d 693, 695 (Iowa 1986). Evidence is substantial if a jury could reasonably infer from it these elements. Schumacher v. McDonald, 320 N.W.2d 640, 642 (Iowa App. 1982). If the evidence is not substantial, a directed verdict is appropriate. Kurth, 380 N.W.2d at 695.
Under the substantial evidence standard, if reasonable minds could differ on an issue in light of the evidence presented, the court must submit the issue to the jury. Id. In addition, even when the facts are not in dispute or contradicted, if reasonable minds might draw different inferences from them a jury question is engendered. Iowa R.App.P. 14(f)(17). When considering a motion for directed verdict, we consider the evidence in the light most favorable to the party against whom the motion is directed. Kurth, 380 N.W.2d at 695.
Iowa Code section 85.20(2) permits employees to recover against coemployees for "gross negligence amounting to such lack of care as to amount to wanton neglect for the safety of another." Iowa Code § 85.20(2). We approved the following definition of wanton conduct in Thompson v. Bohlken:
"[W]anton" conduct lies somewhere between the mere unreasonable risk of harm in ordinary negligence and intent to harm....
"The usual meaning assigned to `willful,' `wanton' or `reckless,' according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow."
312 N.W.2d 501, 504-05 (Iowa 1981) (quoting W. Prosser, Handbook of the Law of Torts § 34, at 183-84). We then said these elements are necessary to establish gross negligence under section 85.20(2):
1. Knowledge of the peril to be apprehended;
2. Knowledge that injury is a probable, as opposed to a possible, result of the danger; and
3. A conscious failure to avoid the peril.
Thompson, 312 N.W.2d at 505.
The question whether there was substantial evidence of gross negligence under section 85.20(2) has been considered in six cases: Eister v. Hahn, 420 N.W.2d 443 (Iowa 1988); Woodruff Constr. Co. v. Mains, 406 N.W.2d 787 (Iowa 1987); Justus v. Anderson, 400 N.W.2d 66 (Iowa App.1986); Taylor v. Peck, 382 N.W.2d 123 (Iowa 1986); Larson v. Massey-Ferguson, Inc., 328 N.W.2d 343 (Iowa App.1982); Thompson, 312 N.W.2d 501 (Iowa 1981). In only oneLarson v. Massey-Ferguson, Inc.was the decision favorable to the plaintiff. This underscores how difficult it is to prove a case of gross negligence under section 85.20(2) as we have interpreted it. Yet, for reasons that follow, we think this is one of those cases in which the plaintiff did produce substantial evidence on all three elements.
Those cases in which the appellate decision was against the plaintiff, the focus of each opinion was on the second element knowledge that the injury was probable. In Eister, the plaintiff was injured when his left leg was caught in a combine. Just before the accident, the coemployee-defendant had disengaged the clutch between the combine and the cornhead but had not shut off the combine engine. When the plaintiff attempted to clean some cornstalks from the cornhead, the clutch was somehow reengaged and the plaintiff's leg became entangled in the machine. We found there was no evidence the defendant was aware that an accident was likely to occur. We likewise found that the plaintiff moved into the danger zone without being requested to do so. Eister, 420 N.W.2d at 446.
In Woodruff the plaintiff-employee, a roofer, fell through a hole in a roof that his crew was responsible for repairing. The crew was warned of the hole before the plaintiff fell. The defendant-coemployee ordered the plaintiff to come to him. As he was responding to this order, the plaintiff fell through the hole. The plaintiff took a direct route to the defendant that led him *544 to the hole. There was about ten to fifteen feet between the hole and the edge of the roof. We found this distance made it less than probable that the plaintiff would in fact fall through the hole. Woodruff, 406 N.W.2d at 790.
In Taylor the plaintiff severely injured her right hand while operating a punch press. The press was set up with a die to punch out metal forms. The press had a set of two palm buttons; the operator had to depress both before the press would run. In addition to holding down the two palm buttons, the operator had to watch the metal parts coming out of the press to make sure they were being ejected properly. At the time of the plaintiff's injury, the left palm button was weighted down with a block of steel to keep it continuously depressed. This permitted the press to begin operating when only the right palm button was depressed. A die pin in the press had been periodically working loose. When the plaintiff reached up into the die to check the die pin, the right palm button was somehow activated. This caused the press to start up and injure the plaintiff.
Several facts in Taylor led us to conclude there was not substantial evidence that this injury was probable as opposed to possible. There had been no previous accidents on this particular press. There were no safety inspections that would have alerted the defendant about any malfunction in the press. There was no evidence that the defendant knew the left palm button was weighted down. And the defendant did not instruct the plaintiff to put her hand into the die. Taylor, 382 N.W.2d at 127-28.
Taylor was similar in facts to our first case on gross negligence under section 85.20(2)Thompson v. Bohlken. In Thompson the plaintiff was also operating a press. While doing so he lost the fingers of his left hand. Although several employees had been injured while working with other presses, none had been injured under similar circumstances, or on this press. And no safety inspections had put the defendant on notice of any defect in the press. So we found that the defendant-coemployeethe plant managerwas not aware by observation or experience that the plaintiff's injury would probably result from the questionable practices that the plaintiff claimed constituted gross negligence. Thompson, 312 N.W.2d at 505-06.
The other two appellate cases on the substantial evidence issueJustus v. Anderson and Larson v. Massey-Ferguson, Inc.were decided by the court of appeals. In Justus the plaintiff was injured when boxes of paper products fell on him. The defendant-coemployee had redesigned the warehouse in which the plaintiff was injured. Under the defendant's plan, paper products were stacked four pallets high. During the period of redesign the defendant saw stacks leaning and tilting and knew that a four-high stack of paper products was more likely to tilt than a three-high stack. He also knew that if a stack leaned far enough without something supporting it, the stack would fall and possibly injure employees in the immediate area. In concluding the evidence was not substantial on the probability issue, the court relied heavily on several factors we found significant in Taylor and Thompson. For example, no other accidents had occurred under similar circumstances, and the defendant had not been placed on notice by safety inspections that injury was probable. Justus, 400 N.W.2d at 68.
In Larson, the court of appeals did conclude there was substantial evidence on all three elements of gross negligence. The plaintiff was part of a crew installing a fence with a posthole digger. The digger was essentially a vertical auger, operated by mechanical power transferred through a rotating power take-off (PTO) shaft on the rear of a tractor. The defendantthe plaintiff's immediate supervisorinstructed the crew to "put weight" on the auger so that it would penetrate the hard ground. The plaintiff was injured when he put his weight on the front part of the auger. His jacket became caught in the PTO shaft. The spinning motion of the shaft pulled him into the turning auger.
On the issue whether there was substantial evidence that injury was probable, the court of appeals found several facts significant. *545 First, the evidence was uncontroverted that the defendant knew the unshielded PTO shaft was dangerous. Second, he knew that his order required the plaintiff to work in close proximity to the unshielded PTO shaft and that injury was probable whenever one worked near unshielded moving parts. Last, the defendant warned the crew to stay clear of the moving parts of the PTO shaft, a fact that established he knew the injury was probable. Larson, 328 N.W.2d at 346.
After carefully considering the factual scenarios in these six cases, we are convinced the facts here are more in line with Larson than with the other five cases. Swanson was working with a soap that contained highly caustic chemicals such as lye. These chemicals could cause severe chemical burns. The containers for the soap had labels warning that the soap was caustic. Other employees in the past had been burned. The company recognized the dangerous qualities of the soap because they furnished protective gear to employees who used it. So it was obvious to the defendants that the soap was dangerous.
The defendants also knew injury was probable to Swanson. Several facts bear this out. First, Swanson told the defendants, not once, but twice of the tear. They acknowledged the probability of injury when they told him to protect himself the best way he could. Such an acknowledgment also served, in effect, as an order to continue working.
Second, the poly sheets did not adequately protect the area of the body where Swanson was burned. More often than not the sheets would slide down to the ankles. This was common knowledge among personnel doing cleanup work. Viewing the evidence in the light most favorable to Swanson, we think the jury could reasonably infer that the defendants with their experience would know this.
Last, the probability that an injury would occur increased each day Swanson was required to work in this dangerous condition. This truly was an accident waiting to happen. Swanson said he knew he had a leak in his rain suit because his pants had gotten wet. The jury could reasonably infer the defendants knew this too. It seems reasonable to us then that it was only a matter of time before the soap would reach his skin. Observation, experience, and common sense should have told these defendants that the longer the dangerous situation persisted, the chance of injury passed from the realm of possibility to the realm of probability. We think the jury should have been allowed to determine whether the realm of probability had been reached.
In spite of this obviously dangerous situation, the defendants told Swanson to continue working with the defective rain suit until the new ones arrived. They simply put their minds to the existence of a danger to Swanson and failed to take precautions to avoid that danger other than to tell him to protect himself the best he could. So in our view there was substantial evidence that the defendants consciously disregarded the obvious peril in expecting Swanson to continue working under these conditions.
We conclude the district court erred when it directed a verdict in favor of the defendants because there was substantial evidence on all three elements of gross negligence. We therefore reverse and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
All Justices concur except SCHULTZ, J., joined by McGIVERIN, C.J., and LARSON, J., who dissent.
NEUMAN, J., takes no part.
SCHULTZ, Justice (dissenting).
I do not believe there is sufficient information in the record to make a factual issue that defendants had knowledge that an injury to plaintiff was probable. Although plaintiff twice complained of a hole in his rain suit, he did not tell defendants that the liquid had penetrated the next line of protection, his poly sheets, and made his pants wet. The majority conclusion that the jury could reasonably infer that defendants *546 knew plaintiff's pants had gotten wet is unwarranted. There is nothing in the record that could provide that inference. Such a finding could only come from speculation.
I would affirm the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1502970/ | 254 S.W.2d 802 (1952)
RESERVE PETROLEUM CO. et al.
v.
HUTCHESON.
No. 6233.
Court of Civil Appeals of Texas, Amarillo.
June 23, 1952.
Rehearing Denied September 2, 1952.
*803 Savage, Gibson, Benefield & Hart, Oklahoma City, Okl., McCarthy, Snodgrass & Haynes, Amarillo, for appellants.
*804 Hamilton & Deaver, Memphis, for appellee.
PITTS, Chief Justice.
This is an action in trespass to try title filed by appellee, Leroy H. Hutcheson, against appellants, The Reserve Petroleum Company and Gulf Coast Western Oil Company, private corporations, to recover two tracts of land aggregating 180 acres situated in Hall County, Texas. Appellants answered with a plea of not guilty and asserted title in themselves to an undivided one half interest in the minerals under the said tracts of land in proportions therein alleged as between themselves. The case was tried to the court without a jury and judgment was rendered in favor of appellee from which appellants perfected an appeal. Findings of fact and conclusions of law were filed by the trial court.
One B. J. Boyd, a single man, is the common source of title under whom all parties claim. On July 16, 1929, Boyd conveyed the land in question to R. Canada and the deed was recorded on July 17, 1929. Appellee deraigns title to the said land under L. May Parks, who on July 16, 1929, received a deed of trust from R. Canada and wife conveying the land in question to secure a debt in the sum of $7,800, payable in installments, which debt was for money advanced by L. May Parks to R. Canada for the purchase price of the said land. The said deed of trust was filed for record on July 18, 1929. None of the said indebtedness having been liquidated, L. May Parks was a record lien creditor by reason of the debt and deed of trust continuously until R. Canada and wife on October 21, 1932, conveyed the whole of the land by a general warranty deed to L. May Parks for a consideration of the surrender and cancellation of the vendor's lien note in the sum of $7,800 secured by the deed of trust, thus cancelling the debt and the recorded deed of trust lien on the said land. The said warranty deed was filed for record on October 21, 1932, the same day it was executed.
Appellants base their claims upon two mineral deeds with warranty clauses executed on September 16, 1931, by R. Canada and wife for an undivided 3/8 mineral interest under the said land to Farmers Royalty Holding Company and an undivided one-eighth mineral interest under the said land to G. T. Blankenship but such mineral deeds were not filed for record until June 7, 1935. These mineral interests were later transferred, respectively, to appellants.
Appellee contends that unrecorded conveyances of real property, such as appellants are claiming under, are void as to creditors of the grantor, secured by a prior recorded lien on the said real property such as L. May Parks had. He further contends that the rights of L. May Parks, as a prior lien creditor accrued to her under the provisions of Article 6627, Vernon's Texas Annotated Civil Statutes, which reads as follows:
"All bargains, sales and other conveyances whatever, of any land, tenements and hereditaments, whether they may be made for passing any estate of freehold of inheritance or for a term of years; and deeds of settlement upon marriage, whether land, money or other personal thing; and all deeds of trust and mortgages shall be void as to all creditors (emphasis ours) and subsequent purchasers for a valuable consideration without notice, unless they shall be acknowledged or proved and filed with the clerk, to be recorded as required by law; but the same as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof or without valuable consideration, shall be valid and binding."
The provisions of the foregoing Article protect a record lien creditor as well as all subsequent purchasers for a valuable consideration without notice. The Article applies to creditors who have acquired some character of lien upon or interest in the land. Certainly appellees' predecessor, L. May Parks, was a creditor who held a deed of trust upon the land prior to any claims of appellants or their predecessors. Appellee claims under the rights of L. May Parks, as a record lien creditor of R. Canada, by reason of the debt of $7,800 secured by the deed of trust executed and recorded in July of 1929 more than a *805 year before the mineral deeds in question were executed on September 16, 1931, and approximately 6 years before such mineral deeds were recorded on June 7, 1935.
In a similar case, to wit, McKeen v. Sultenfuss, 61 Tex. 325, where a deed was executed conveying land but the deed was not recorded prior to the execution and recording of a deed of trust on the same land subsequently executed to secure a debt, the court held that a creditor who takes a deed of trust to secure a pre-existing debt upon property with no notice, actual or constructive, of the existence of a former deed made by the debtor, may subject the property to the payment of his debt, and such former deed, which has not been duly acknowledged or proved up and lodged with the clerk of the proper county for record, prior to the execution of the trust deed, is void as to such creditor. If a former deed previously executed by a debtor is void as to a subsequent record lien creditor without notice, certainly a mineral deed executed subsequently to a record lien creditor's right of claim must be void. Since L. May Parks was a record lien creditor of R. Canada and wife long before they executed the mineral deeds in question, the mineral deeds must be void as to her, and, in that event, the issues of notice or good faith as to the said creditor did not arise.
Under the provisions of Article 6627 the subsequently executed mineral deeds, under which appellants claim, were void as to record lien creditors of which L. May Parks was one. Jackson v. Berliner, Tex. Civ.App., 127 S.W. 1160, writ refused. 36 Tex.Jur. 580, Sec. 96, says, in effect, that inasmuch as such instruments (mineral deeds) were void as to creditors, they cannot be effective as to a creditor for any purpose and the creditors' rights are the same as they would be if the subsequently executed mineral deeds did not exist. Inasmuch as the mineral deeds in question were void as to L. May Parks, the warranty deed executed by R. Canada and wife to L. May Parks of date October 21, 1932, and recorded the same day vested in the grantee the whole of the legal title to the said land, free from any claims by anybody under the said mineral deeds.
Appellants' brief is devoted largely to the question of a subsequent purchaser for a valuable consideration without notice, contending that L. May Parks had actual notice of appellants' claims of their mineral interests on October 21, 1932, when R. Canada and wife deeded her the land in question, that she purchased the same in bad faith, without paying a valuable consideration therefor and failed therefore to prove herself an innocent purchaser of the said land. They further complain about some of the trial court's findings concerning notice to L. May Parks and about the admission or refusal to admit certain testimony affecting her rights in the premises. All of such complaints and assignments apply only to appellee's right to recover under the terms of the warranty deed executed to his predecessor, L. May Parks, by R. Canada and wife on October 21, 1932, and recorded the same day.
By virtue of the foregoing cited registration statute (now Article 6627 but one time Article 4640) a purchaser of land for value and without notice acquires the title as against a person claiming under a deed that had not been filed for record to be recorded as required by law. LaPice v. Caddenhead, 21 Tex. Civ. App. 363, 53 S.W. 66, writ refused. That being true, an unrecorded conveyance of real property is void as to a subsequent purchaser who, without notice of the said unrecorded conveyance, takes the said land by warranty deed in cancellation of a prior recorded debt and lien on the said land. Article 6627 makes unrecorded conveyances void (1) as to all creditors and (2) as to subsequent purchasers for a valuable consideration who are without notice. On July 16, 1929, L. May Parks furnished the purchase price money in the sum of $7,800 to R. Canada and wife to purchase the land in question. Canada and wife on the same day executed a vendor's lien note for the said sum secured by a deed of trust to L. May Parks and the deed of trust was recorded on July 18, 1929. Without the knowledge of L. May Parks, Canada and wife thereafter on September 16, 1931, executed the mineral deeds in question to appellants' predecessors but the said deeds were not recorded until June 7, *806 1935. On October 21, 1932, Canada and wife executed a warranty deed to L. May Parks for the whole of the said land, without advising her of the existence of the said mineral deeds, for a consideration of the cancellation and surrender of the note for $7,800 which likewise cancelled the deed of trust lien. As a consideration in the transaction L. May Parks therefore cancelled both the note and her prior recorded deed of trust lien on the land in question. In doing so she gave up something more than her pre-existing debt when she likewise gave up her prior recorded lien to secure the debt. L. May Parks parted with a valuable consideration when she advanced the $7,800 to Canada for the purchase of the land and took security therefor. A cancellation and surrender of her rights along with the cancellation of the debt constituted a valuable consideration and made her a purchaser for value under the deed from Canada. It is a well-recognized rule of law that the cancellation of a debt secured by a valid lien constitutes a valuable consideration. Wallace & Co. v. Campbell, 54 Tex. 87; Barrett v. Eastham Bros., Tex.Civ.App., 86 S.W. 1057; Coleman v. Looney, Tex.Civ. App., 83 S.W.2d 1061. The said rule of law is recognized by the court in the case of Red River Nat. Bank in Clarksville, Tex., v. Latimer, Tex.Civ.App., 110 S.W.2d 232, page 237, Syl. 10, which case is cited by both parties. It is our opinion that the trial court properly found that L. May Parks paid a valuable consideration for the land deeded to her by warranty deed of date October 21, 1932, by R. Canada and wife.
The trial court likewise found, in effect, based upon what we deem to be sufficient evidence, that L. May Parks had no actual notice of appellants' claims to an undivided one-half interest in the minerals under the land in question on October 21, 1932, when R. Canada and wife executed and delivered the general warranty deed to her. At the time the said deed was executed L. May Parks lived in the State of New Mexico. The deed conveyed the whole of the land without any reservations. Canada did not give L. May Parks an abstract of title or tell her anything about the mineral deeds. Such deeds had not been filed for record. There was nothing of record in the chain of title to put her on notice. L. May Parks died on November 2, 1941, and there was no way to obtain her testimony at the trial of this case on January 30, 1952. Some hearsay testimony was offered in an effort to establish notice but the same was properly excluded by the trial court. Appellants also sought to establish by a recorded affidavit showing the existence of the mineral deeds in question but the affidavit was not acknowledged and therefore not subject to record and did not constitute constructive notice. Farmers Mutual Royalty Syndicate v. Isaacks, Tex.Civ.App., 138 S.W.2d 228, and other authorities there cited. The said unacknowledged affidavit was executed by G. T. Blankenship and filed by him for record. But, not having been executed by L. May Parks' grantor, Canada, it was not a part of the chain of title. The affidavit was executed on December 30, 1931, and recorded on January 2, 1932. It could have been indexed only under the name of "Blankenship" and was not a part of the chain of title affecting the land. "Chain of title" has been defined to be "The successive conveyances, commencing with the patent from the government, each being a perfect conveyance of the title down to and including the conveyance to the present holder." Havis v. Thorne Inv. Co., Tex.Civ.App., 46 S.W.2d 329, 332, and 36 Tex.Jur. 478, Sec. 50. Blankenship's mineral deed was not filed for record until June 7, 1935, then there was of record a complete break between R. Canada in whom the title was vested and G. T. Blankenship who made the affidavit. If L. May Parks had searched the records, she would not have found a record of the affidavit in Canada's chain of title and it would have been a mere accident if she had searched beyond his chain of title and found it. There is nothing to show L. May Parks had notice of the Blankenship affidavit or had notice of facts sufficient to put her upon inquiry about the affidavit and its contents. There was no constructive notice and it is our opinion that the facts and circumstances *807 support the trial court's finding that L. May Parks did not have actual notice.
We have concluded that no reversible errors are reflected by the record. It is also our opinion that the mineral deeds (under which appellants are claiming) were void as to L. May Parks (under whom appellee claims) as a record lien creditor of Canada and his wife. It is likewise our opinion that L. May Parks was a subsequent purchaser of the whole of the land for a valuable consideration and without notice of appellants' claims. Appellants' points to the contrary are all overruled and the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920282/ | 180 Mich. App. 595 (1989)
447 N.W.2d 817
SELECTIVE GROUP, INC
v.
CITY OF FARMINGTON HILLS
Docket No. 106855.
Michigan Court of Appeals.
Decided October 16, 1989.
Schlussel, Lifton, Simon, Rands, Galvin & Jackier (by Joseph F. Galvin), for plaintiff.
Larson, Harms, Wright & Bibeau, P.C. (by Paul H. Bibeau), for defendant.
Before: DANHOF, C.J., and BEASLEY and GRIBBS, JJ.
BEASLEY, J.
Plaintiff-appellant, Selective Group, Inc., appeals from a judgment in favor of defendant-appellee, City of Farmington Hills, denying plaintiff an attempted rezoning of a five-acre parcel at the northeast corner of Twelve Mile and Drake Roads from single family residential to local business. We affirm.
On appeal, plaintiff raises two issues, first claiming that the trial court's decision was against the great weight of the evidence and, second, claiming that the trial court failed to specify precisely the facts upon which its conclusions rested.
The within case was filed in July, 1985, tried in August and September, 1987, and decided in October, 1987. These dates are significant because the subject real property is in a rapidly changing, developing area. For purposes of trial and appeal, we must look to the proofs offered at trial and not speculate as to subsequent events.
Appellate review of a zoning decision is de novo, the standard being whether review of the record convinces the court that it would have reached a different result had it sat as a trial court or a *598 board of zoning appeals.[1] In Kirk v Tyrone Twp,[2] the Supreme Court stated that the appropriate standard for determining the constitutional validity of municipal zoning determinations is as follows:
The principles and tests to use to determine whether the present zoning of plaintiffs' property is valid was detailed in Kropf [v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974)].
The important principles require that for an ordinance to be successfully challenged plaintiffs prove:
"[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself ... or
"[S]econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question." 391 Mich 139, 158.
The four rules for applying these principles were also outlined in Kropf. They are:
1. "`[T]he ordinance comes to us clothed with every presumption of validity.'" 391 Mich 139, 162, quoting from Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957).
2. "`[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner's use of his property.... It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.'" 391 Mich 139, 162, quoting Brae Burn, Inc.
3. "Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved *599 property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted." 391 Mich 139, 162-163.
4. "`This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases.'" 391 Mich 139, 163, quoting Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962).[[3]]
A plaintiff who attacks a municipal zoning ordinance on the alternate constitutional grounds of reasonableness or confiscation is entitled to relief if he shows either that the classification is unreasonable or that the classification amounts to a confiscation of plaintiff's property. The plaintiff is not required to succeed on both arguments in order to prevail.[4]
On appeal, a zoning ordinance enjoys every presumption of validity. As stated in Kropf, supra:
[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner's use of his property.... It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.[[5]]
In the within case, there was substantial testimony and documentary evidence to support the proposition that the RA-1 (single family residential) classification of plaintiff's parcel was in conformity *600 with a comprehensive plan both as developed and as implemented by the City of Farmington Hills. Plaintiff's claim that the nonresidential use of adjacent properties of the intersection evidences both the unreasonableness of the current zoning and the reasonableness of plaintiff's proposed commercial enterprise is without merit. The adjacent uses are not "commercial" as defined within the zoning ordinance. Rather, they are "office" uses, which are characteristically less intensive than a commercial use and often are utilized as a buffer between residential districts and commercial districts. This buffer function for light office developments was contemplated by the Farmington Hills zoning ordinance and the Farmington Hills Commercial Areas Plan. Plaintiff's characterization of the entire length of Twelve Mile Road as a "commercial corridor" is unfounded. The proofs seem to indicate that, for at least one mile in either direction, the north side of Twelve Mile Road has been largely zoned and developed residentially, while the south side has been developed for office use.
Each zoning case is determined on its own facts and circumstances.[6] Plaintiff attempts to analogize the facts of the within case to the facts of Frendo v Southfield Twp,[7]White v Southfield Twp,[8] and Troy Campus v Troy,[9] all of which are cited for the proposition that a residential zoning classification is characteristically unreasonable for land adjacent to major thoroughfares and nonresidential uses. While there are some similarities, each of the three cases is readily distinguishable from the *601 within case and, consequently, do not control the result here.
Troy Campus, supra, involved a residentially zoned lot isolated within a long stretch of land on a major thoroughfare zoned and developed for high- and low-rise offices, for which rezoning to an office classification was sought. Here, plaintiff seeks to rezone to "commercial" within a long stretch zoned and developed "residential" and "office." Further, the office buildings in the present case are much smaller than the thirteen-story high-rise office buildings of Troy Campus, high-rise buildings being less conducive to development of adjacent single-family homes.
Plaintiffs in White, supra, sought to rezone to commercial a two hundred-foot wide strip of a large residentially zoned lot fronting on Telegraph Road within a rapidly developing residential and commercial area experiencing such heavy traffic conditions that witnesses testified that "when the heavy trucks came by, the shaking and vibration I can feel in the kitchen ... so I can hear the windows shake."[10] No such testimony was presented in this case.
In Frendo, supra, unlike the present case, the plaintiffs sought to defeat a residential classification of a lot fronting on a major thoroughfare where ninety-two percent of the lots fronting on that road were zoned or developed for either industrial or commercial use. The Frendo Court noted that the subject lots had not been purchased in the expectation of having the land rezoned. In the within case, plaintiff is not the present landowner, but a party to a preliminary purchase agreement for the subject parcel, expressly contingent upon rezoning. Further, defendant correctly notes that, *602 in Frendo, the plaintiff's claim of unreasonableness of the zoning classification was uncontradicted, as the defendant township presented no evidence whatsoever.
The disparity in value between land developed as zoned and developed for other uses is a permissible factor in determinations of reasonableness of a zoning classification. Here, plaintiff claims, through expert testimony, that the subject parcel is worth in excess of $600,000 if developed commercially and is worthless if developed residentially. Plaintiff's assessments are based upon calculations of development profitability to a developer, rather than land value and possible profit to the landowner and, while potential for developers' profits may be relevant to economic feasibility, potential developers' profits are not central to determinations of the reasonableness of a zoning classification where a landowner may profit under that classification.
In this connection, we do not believe that plaintiff has met its burden of proving that the RA-1 zoning classification is unreasonable as applied to this particular parcel.
Plaintiff further claims that the RA-1 zoning of the Selective Group property is confiscatory. To sustain such an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.[11] Plaintiff, however, is not required to positively show that the land could not be reasonably adapted to each and every permitted use.[12]
Property zoned RA-1, single family residential, *603 may be used as of right only for single family detached dwellings built on site, agricultural uses and public uses such as elementary schools, libraries, parks, recreational buildings and municipal buildings. RA-1 property may also be used for condominiums and townhouses (cluster option), golf courses, secondary schools, single family manufactured housing, and several other uses with planning commission approval upon special condition.
Plaintiff's evidence here addressed only the possibility of development for single family detached dwellings and cluster development. While this is not a fatal flaw, Troy Campus, supra, appears to be relevant. Plaintiff's calculations are based upon the purchase of the subject property for $400,000 pursuant to the purchase contract which is conditioned upon obtaining the rezoning which is the subject of this suit. Were the calculations based upon the $23,000 originally paid by the current owners of the property, the calculations of plaintiff's experts would show substantial profits for RA-1 development. Further, plaintiff's determination of profitability is based upon profit to the developer, plaintiff, rather than to the landowner. Although the courts have acknowledged that one who purchases with knowledge of a zoning restriction may nonetheless be heard to challenge the restriction's constitutionality,[13] we do not believe that the numerical manipulation afforded a plaintiff through a preliminary sales agreement such as this was contemplated by the Legislature or the courts.
We do not look with favor upon the practice of permitting a plaintiff to possess standing to contest the validity of a zoning ordinance as applied to *604 real property in which a plaintiff's sole interest is a preliminary sales agreement conditioned upon rezoning. In the within case, however, we need not rest our result upon that proposition because we believe the trial court's decision on the merits should be affirmed. If value gained or lost is to be determined by a prospective sale price, rather than a price actually paid by an owner, confiscation could nearly always be proved by reference to the proposed purchase price, whether it be economically legitimate or artificially inflated.
Expert testimony on defendant's behalf established that the land had a value of $73,000, if developed as zoned a $50,000 increase over the $23,000 paid originally by the present owners. Defendant relies upon Robyns v Dearborn,[14] for the proposition that a zoning ordinance which substantially destroys the value of a parcel of property is void. In White Lake Twp v Amos,[15] the Court stated:
Mere diminution of value is not confiscation. There will always exist a disparity in values between residential and commercial uses.
We believe that the trial court correctly determined that confiscation was not proved by plaintiff. The diminution of value, however, while not reaching the threshold of confiscation, is a factor to be considered when determining whether a zoning classification is reasonable.
Plaintiff further claims that the RA-1 zoning of the property is not in accordance with a plan. We do not agree. A zoning ordinance must be in accordance with a comprehensive zoning plan in *605 order to be valid.[16] The plan must be comprehensive and consistent within the districts it establishes, both as adopted and as implemented.[17] We believe that the exhibits and testimony established the existence and consistent implementation of a comprehensive plan in accordance with MCL 125.581; MSA 5.2931.
Last, plaintiff argues that the trial court failed to specify with sufficient precision the subsidiary facts on which its ultimate conclusion was based. We do not agree. We do not have difficulty in understanding the basis for the trial court's decision.
In closing, we would point out that the trial court's decision was based upon the factual situation that existed in 1987 and before. The real property in question is located in a rapidly changing and constantly developing area. It is possible that future events will support possible reevaluation of this zoning.
Affirmed.
NOTES
[1] Talcott v Midland, 150 Mich App 143, 146; 387 NW2d 845 (1985), lv den 425 Mich 876 (1986).
[2] 398 Mich 429, 439-440; 247 NW2d 848 (1976).
[3] See also Robinson Twp v Knoll, 410 Mich 293; 302 NW2d 146 (1981); Oshtemo Twp v Central Advertising Co, 125 Mich App 538, 545-546; 336 NW2d 823 (1983), lv den 419 Mich 882 (1984).
[4] Troy Campus v Troy, 132 Mich App 441, 449-450; 349 NW2d 177 (1984).
[5] Kirk, supra, 391 Mich 162, quoting Brae Burn, Inc, supra, 350 Mich 432.
[6] Senefsky v Huntington Woods, 307 Mich 728, 734; 12 NW2d 387 (1943).
[7] 349 Mich 693; 85 NW2d 130 (1957).
[8] 347 Mich 548; 79 NW2d 863 (1956).
[9] Supra.
[10] White, supra at 551.
[11] Kropf, supra at 162-163.
[12] Troy Campus, supra at 451.
[13] Kropf, supra at 152.
[14] 341 Mich 495; 67 NW2d 718 (1954).
[15] 371 Mich 693, 698; 124 NW2d 803 (1963).
[16] MCL 125.581(2); MSA 5.2931(2).
[17] See, e.g., Schaefer v East Detroit, 360 Mich 536; 104 NW2d 390 (1960), and Kremers v Alpine Twp, 355 Mich 563, 569; 94 NW2d 840 (1959). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621012/ | 13 So. 3d 481 (2009)
REDDING
v.
STATE.
No. 3D09-1235.
District Court of Appeal of Florida, Third District.
July 8, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3040769/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1735
___________
Sharron Rose Crews, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Jo Anne B. Barnhart, Commissioner, * Eastern District of Arkansas.
Social Security Administration, *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: May 30, 2006
Filed: June 5, 2006
___________
Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Sharron Crews appeals the district court’s1 order affirming the Social Security
Commissioner’s decision to deny her application for supplemental security income at
step two of the sequential evaluation process. Following careful review, we conclude
substantial evidence in the record as a whole supports the administrative law judge’s
(ALJ’s) conclusion, based in part on credibility findings, that Crews did not suffer
1
The Honorable John F. Forster, Jr., United States Magistrate Judge for the
Eastern District of Arkansas, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
from a severe physical or mental impairment or combination of impairments within
the meaning of the Social Security Act. See Goff v. Barnhart, 421 F.3d 785, 792 (8th
Cir. 2005) (this court will not disturb decision of ALJ who considers, but for good
cause expressly discredits, claimant’s subjective complaints); Dixon v. Barnhart, 353
F.3d 602, 604 (8th Cir. 2003) (substantial evidence is evidence that reasonable person
would find adequate to support decision); Nguyen v. Chater, 75 F.3d 429, 430-31 (8th
Cir. 1996) (sequential evaluation process may be terminated at step two only when
impairment or combination of impairments would have no more than minimal effect
on claimant’s ability to work; claimant bears burden of establishing she has severe
impairment that significantly limits her physical or mental ability to do basic work
activities).
Accordingly, the judgment of the district court is affirmed. See 8th Cir. R. 47B.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1620813/ | 916 So. 2d 314 (2005)
STATE of Louisiana
v.
Darwin GAUTHIER.
No. 2004-1608.
Court of Appeal of Louisiana, Third Circuit.
November 2, 2005.
*315 R. Richard Bryant, Jr., District Attorney, 14th Judicial District Court, Lake Charles, LA, for Plaintiff/Appellee, State of Louisiana.
Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, Edward Kelly Bauman, Louisiana Appellate Project, *316 Lake Charles, LA, for Defendant/Appellant, Darwin Gauthier.
Darwin Gauthier, Kinder, LA, pro se.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
THIBODEAUX, Chief Judge.
Defendant, Darwin Gauthier, appeals his jury conviction for second degree kidnapping, a violation of La.R.S. 14:44.1, and aggravated second degree battery, a violation of La.R.S. 14:34.7. The trial court imposed a sentence of thirty-five years at hard labor for second degree kidnapping, with the first two years to be served without the benefit of parole, probation, or suspension of sentence. Defendant was sentenced to fifteen years at hard labor on the aggravated second degree battery charge. The sentences were concurrent. Defendant also appeals as excessive the sentence imposed for second degree kidnapping.
For the following reasons, we affirm the convictions and sentences.
ISSUES
We shall consider whether:
(1) the trial court erred in allowing prejudicial "other crimes" evidence to be admitted;
(2) trial counsel was ineffective for failing to object to the Allen charge given to the jury and in failing to request a special jury instruction;
(3) the evidence was insufficient to sustain a guilty verdict on second degree kidnapping;
(4) the sentence imposed for second degree kidnapping was cruel, unusual, or excessive punishment; and,
(5) the trial court erred in denying Defendant's motion for continuance.
FACTS
The victim, Tory Perrodin,[1] married Defendant on September 6, 2002. They resided together at a home on Taylor Street in Lake Charles. On October 21, 2002, the couple had an argument because Defendant accused the victim of flirting with other men and being unfaithful. Apparently the argument lasted through the evening; sometime after midnight, Defendant advised the victim that they needed to see a priest immediately. The victim saw that he was armed with a nine-millimeter pistol, so she became frightened and complied with his demands that she leave the house with him.
Defendant drove the victim to an abandoned house on Rose Street that belonged to a friend of his. Defendant continued to vigorously question the victim's marital fidelity. He did not accept her denials of wrongdoing and poked the top of her left hand with a screwdriver. Defendant began looking for something in the house, but apparently did not find whatever he was looking for. He then escorted the victim out of the house at gunpoint, threatening to shoot her if she ran.
Defendant then drove the victim to a house on Greenwich Boulevard. On the way, he continued to harangue her, and also punched her in the face. When they arrived at the house, they saw one or two cars parked there. Defendant told the victim he was going to send the occupants to the store, because he was going to kill her.
*317 Defendant then walked the victim into the house and told her to go into the back bedroom. He bound her wrists to a television bracket affixed to the wall above her head. Defendant then pistol-whipped the victim with a pellet gun and kicked her. One of the kicks was so forceful that it knocked her into a wall, damaging it.
Defendant then plugged in a clothing iron. He pulled up the victim's shirt and tucked it into her bra, exposing her midriff. Once the iron was hot, he began questioning her again and burning her when he thought she was lying. He also renewed his earlier threats to kill her. One of the other men in the house spoke to Defendant in an adjacent hallway, asking if everything was alright. Defendant replied that all was well, and sent the other man to the store for beer and cigarettes.
Defendant began receiving calls on his cell phone from his sister, who wanted him to come pick up his children. These calls apparently had a calming effect on Defendant. Eventually, he freed the victim and the couple left to go pick up his children.
The next evening, the couple went to the home of the victim's parents. Her father noticed that her face was injured, and Defendant admitted he had hit her. He agreed to take her to the hospital, but did not do so until two or three o'clock the next morning. The hospital's triage nurse contacted the Calcasieu Parish Sheriff's Office, and the ensuing investigation led to the Defendant's convictions.
Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence. Since a ruling that the evidence was insufficient would necessitate an acquittal, we will address this assignment first, pursuant to State v. Hearold, 603 So. 2d 731 (La.1992).
Defendant challenges the conviction for second degree kidnapping, but not his conviction for aggravated second degree battery. The test for sufficiency reviews is well-settled. This court has explained:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, rehearing denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979); State ex rel. Graffagnino v. King, 436 So. 2d 559 (La. 1983); State v. Duncan, 420 So. 2d 1105 (La.1982); State v. Moody, 393 So. 2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So. 2d 559 citing State v. Richardson, 425 So. 2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So. 2d 1367, 1371.
The elements of second degree kidnapping are found in La.R.S. 14:44.1 which states, in pertinent part:
A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
. . . .
(5) Imprisoned or kidnapped when the offender is armed with a dangerous *318 weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
. . . .
(2) The enticing or persuading of any person to go from one place to another; or
. . . .
The trial evidence demonstrated that Defendant, while armed with a gun, persuaded the victim, Tory Perrodin, to leave their Taylor Street residence and go to a house on Rose Street. Later, when they left the Rose Street location, Defendant had his gun pointed at the victim, and he threatened to shoot her if she ran. During the course of the evening, Defendant drove the rental car they were using, with the gun in his lap. Thus, the evidence adduced by the State demonstrated the elements of second degree kidnapping.
Defendant's arguments on appeal do not address the elements directly; rather, they amount to an attack on the victim's credibility. However, as noted in Kennerson, credibility determinations are within the province of the fact-finder and are not to be second-guessed on review. As another circuit has explained:
The testimony of the victim alone is sufficient to prove the elements of the offense. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Johnson, 529 So. 2d 466, 473 (La.App. 1st Cir.1988), writ denied, 536 So. 2d 1233 (La.1989).
State v. Pizzalato, 93-1415, p. 17 (La.App. 1 Cir. 10/7/94), 644 So. 2d 712, 721, writ denied, 94-2755 (La.3/10/95), 650 So. 2d 1174.
Counsel follows these arguments with a paragraph of attacks upon the victim's general credibility. He asserts in his brief:
Kevin Victorian, a former roommate of Darwin, testified that on the night in question, he passed Darwin on the way to his home on Greenwich Blvd. and did not see two people in the car. Gary Allison, a former roommate of Kevin Victorian, testified that on the night of October 21, 2002, he was at the Greenwich Blvd. residence when Darwin walked in with Torre and introduced them. He further testified that he never heard any argument and that they were gone when he woke up and went to work. It is possible these two men would stay in a residence and allow a screaming woman to be tortured in a back bed? It is more possible that Torre accompanied Darwin to the house on Greenwich Blvd. voluntarily, an argument ensued, and Darwin beat her.
The foregoing paragraph, as a whole, fails to even address the kidnapping conviction. Kevin Victorian's testimony suggests the victim was not even with Defendant at a key time and place in the events surrounding the kidnapping conviction. However, the force of this point is immediately sapped by the rest of the paragraph, in which counsel acknowledges evidence the victim and Defendant were together at the Greenwich Boulevard house.
Although the victim was the State's sole eyewitness, the testimony of the victim alone can be sufficient to support a conviction. Id. Further, Ms. Perrodin's overall account of events surrounding the kidnapping and battery was corroborated in part by the evidence regarding her physical *319 injuries, including significant burns on her torso, a rib fracture, and a nasal fracture. Further, when police searched the back bedroom at the Greenwich Boulevard location, they found a hole in the sheetrock, which the victim testified was where Defendant threw her against the wall. The room also had a bracket mounted in the wall, which she described as the one to which she was tied. She admitted she could not account for a second hole found in the wall. During the investigation, the victim supplied investigators with the wire and shoelaces with which she was tied. She testified she had left them on the floor of the rental car. In searching the crime scene, police also found part of a pellet gun, or BB gun, the victim said Defendant used to hit her in the nose. Police found an ironing board at the scene, but not the iron. Kevin Victorian was at the scene during the search; he affirmed the iron had been there earlier in the day, but claimed it was broken. Apparently, it was never located. The ironing board had what appeared to be bloodstains on it. Also, police found live nine-millimeter ammunition in the victim's car. The ammunition in the victim's car corroborated the presence of a nine-millimeter gun in the household. Most of this evidence had a more direct bearing upon the second-degree battery charge, but is corroborative of the victim's account of the events surrounding the kidnapping. Defendant's rather amorphous attack upon the victim's general credibility lacks any persuasive force.
In his pro se brief, Defendant alleges a discrepancy in the counsel-filed brief:
At page 17 of the original brief filed by counsel the facts are misstated, and when there is a discrepancy the transcript prevails.
Gary Allison, a former roommate of Kevin Victorian, testified that on the night of October 21, 2002, he was at the Greenwich Blvd. residence when Darwin walked in with Torre and introduced them.
This statement is belied by the testimony of the same witness at trial as he testified at page 01485 of Volume VII as follows:
Q. And you're saying you're telling me that you saw Darwin?
A. Uh-huh (yes). Yea. Yes, I did, I seen him.
Q. Darwin came in the house while you were there?
A. Yea, when I was waking up he came in the house and that was it. We said, what's up, hello, you know, and that was it and I was busy getting dressed. Five minutes later his wife come in and introduced me to her, Gary this is my wife. Okay, how you doing? There it is and I had to get out and go to work.
Defendant respectfully moves this Honorable Court to cause the record herein to reflect this change from he and Torre walked into Kevin's house together to the fact that Torre entered the house five minutes after Darwin.
However, he does not allege that the discrepancy should have any effect on the argument made by counsel. The jury heard the testimony. If it had believed Allison, it would have called the kidnapping charge into question, as his testimony indicated the victim moved independently of Defendant. However, the jury apparently gave more credence to the victim's testimony, which was within its discretion.
Defendant's attack on the sufficiency of the evidence lacks merit. Consequently, we shall proceed to consider the remaining issues.
*320 Introduction of "Other Crimes" Evidence
Defendant argues the trial court erred in allowing evidence of other crimes to be admitted at trial. As the State observes, this court has previously addressed Defendant's argument in a pre-trial writ bearing docket number 03-1680.
As the State correctly notes, the court's prior review of the issue does not automatically preclude its review on appeal. The supreme court has explained:
When this court considers questions of admissibility of evidence in advance of trial by granting a pretrial application for supervisory writs (rather than deferring judgment until an appeal in the event of conviction), the determination of admissibility does not absolutely preclude a different decision on appeal, at which time the issues may have been more clearly framed by the evidence adduced at trial. Nevertheless, judicial efficiency demands that this court accord great deference to its pretrial decisions on admissibility, unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result.
State v. Humphrey, 412 So. 2d 507, 523 (La.1981).
Since Defendant's counsel-filed brief makes no mention of the previous writ ruling, it also lacks any argument that said ruling was patently erroneous or unjust. Similarly, the brief contains no attempt to show how the evidence adduced at trial might have "more clearly framed" the issues addressed in the previous writ. Thus, we decline to revisit this issue on appeal.
Ineffective Assistance of Counsel
Defendant argues his trial counsel was ineffective for failing to object to "the Allen charge" the court submitted to the jury. In his pro se brief, he also argues counsel was ineffective for failing to strike a juror who knew the State's victim-assistance coordinator and knew the victim's mother. Further, Defendant argues in his pro se brief that counsel was ineffective for failing to impeach the victim's testimony with prior inconsistent statements she made while testifying at his bond hearing.
The analysis for ineffective assistance of counsel claims is well-settled, and has been explained by this court as follows:
A defendant is entitled to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. This right is fundamental to our system of justice and a cornerstone in assuring that defendants receive a fair trial not unduly prejudiced by their counsel's ineffective assistance. "Effective counsel" has been defined to mean "not errorless counsel", and not counsel judged ineffective by hindsight, but counsel likely to render reasonably effective assistance. State v. Ratcliff, 416 So. 2d 528, 531 (La. 1982) (quoting United States v. Fruge, 495 F.2d 557, 558 (5 Cir.1974)). The claim is assessed by the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Id. To prevail, the defendant must not only show that counsel's performance was deficient, but also that a reasonable probability existed that he was prejudiced by the deficiency. [State v.] Brooks, [94-2438 (La.10/16/95),] 661 So. 2d 1333. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
State v. Antoine, 00-564, p. 6 (La.App. 3 Cir. 12/6/00), 774 So. 2d 353, 357.
*321 While most ineffective assistance claims are more properly addressed in the post-conviction relief process, Defendant is correct in asserting that the current record is sufficient to assess the assignment.
This court has discussed Allen charges as follows:
In [State v.] Nicholson, 315 So. 2d 639 [(La.1975)], the supreme court set limits to the instructions that a trial judge can give to a jury after the jury announces it cannot reach a verdict. In Nicholson, the court held when a trial court gives a deadlocked jury an instruction that rises to the level of being an "Allen charge" or any "coercive modification" of an Allen charge, the trial court has committed reversible error. The Allen charge originated in Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896), where the United States Supreme Court approved a charge designed to break a jury deadlock and accomplish jury unanimity. One characteristic of an Allen charge is an admonition to the jurors in the minority to reconsider their opinion in favor of the majority in order to reach a decision. State v. Schamburge, 344 So. 2d 997 (La.1977); State v. Washington, 93-2221 (La.App. 1 Cir. 11/10/94); 646 So. 2d 448; State v. Caston, 561 So. 2d 941 (La.App. 2 Cir.1990); State v. Campbell, 606 So. 2d 38 (La.App. 4 Cir. 1992). A second characteristic is the trial court implying to the jury that it must reach a decision because the trial court will not accept a mistrial. Id.
The Louisiana Supreme Court has banned the use of Allen charges and "modified" Allen charges to ensure that juror verdicts are not the product of coercion. Schamburge, 344 So. 2d 997; Nicholson, 315 So. 2d 639. "When the duty to reach a verdict is coupled with the trial court's admonition that those in the minority should reconsider their position, there exists an almost overwhelming pressure to conform to the majority's view." Washington, 646 So.2d at 454-455.
State v. James, 96-472, pp. 3-4 (La.App. 3 Cir. 12/11/96), 687 So. 2d 485, 487, writ denied, 97-0069 (La.5/16/97), 693 So. 2d 796.
In the present case, the following colloquy is at issue:
THE COURT:
All right, Ladies and Gentlemen, as you are aware there's been another note that we have received. The question says, "our options?" Is there a hung jury (or mistrial) or not guilty? Because there's no space for hung jury. Is it the same? Signed Richard A. Hilton.
Anything from the State? I think if he's asking if I had to read it I think he's asking indicating that they may be at some type of impasse to be quite candid. But then there's a question as to is there something on the form that they should fill out if that's the situation.
. . . .
THE COURT:
Ladies and Gentlemen, I've reviewed the note that's been presented to the Court. At this time I would like to make an additional instruction just as an attempt to see if we can get the matter resolved. I want you I have this additional instruction for you to consider and to act on. I want you to realize that this is an important case and I am going to send you back into the deliberation room for another 30 minutes. I am going to try and urge you to come to some kind of agreement.
Do not, however, surrender your individual opinions just to reach a verdict. But do consider the other jurors views whether you're in the minority or in the *322 majority with regard to the issue that you're considering. Please consider each other's views and weigh it against your own conclusions. And I am going to ask that you go back for 30 more minutes and attempt to deliberate to see if we can reach an reach this impasse. All right. If you'll go back with the Bailiff.
[JURY EXITS COURTROOM]
THE COURT:
The Jury has been instructed at this time to attempt to reach a decision with regard to whatever it is that they seem to have not been able to reach a decision on. Do I have anything from the State for the record?
MS. WILSON:
Nothing.
THE COURT:
Anything from the Defense?
MR. ST. DIZIER:
No, Your Honor.
As the State notes in its brief, the scenario in James was similar to the one in the present case. The James court noted:
[T]he jury announced it was not able to reach a verdict after three hours of deliberation. When the trial court asked the jury foreman if he thought the jury would be able to reach a verdict with additional deliberation, the foreman answered, "At this time, no, your Honor." The trial court then ordered the jury taken out and recessed court for fifteen minutes to research case law concerning instructions a trial judge can give to a jury when the jury announces it cannot reach a verdict. After the recess, the trial court gave the following instruction to the jury:
All right. I have this additional instruction for you to consider and act on. This is an important case, and I'm going to return you to deliberate for thirty more minutes and urge you to come to an agreement. Do not, however, surrender your individual opinions just to reach a verdict, but do consider the other juror's views whether you're in the minority or in the majority, consider the other's views and weigh it against your own conclusions, and I'll have the jury return to further deliberate for thirty minutes.
In giving this instruction, the trial court did not imply to the jurors that it would not accept a mistrial, nor did it attempt to coerce the jury members holding the minority viewpoint to accept the majority position. The trial court's instruction does not contain the restrictive elements that characterize an Allen charge or a modified version of an Allen charge. It was also within the discretion of the trial court to "urge [the jurors] to come to an agreement." In [State v.] Governor, 331 So.2d [443] at 453 [(La.1976)], the Louisiana Supreme Court stated:
It is safe to state as a settled proposition that when the Court is informed by a jury that they cannot agree, it is not error for the court to impress upon them the importance of the case, urge them to come to an agreement, and send them back for further deliberation...
(Emphasis added.)
The charge given by the trial court does not rise to the level of an Allen charge or a modified Allen charge, and therefore, the trial court did not abuse its discretion by giving this instruction to the jury. This assignment of error lacks merit.
Id. at 487-88.
The charge at issue in the present case was not an Allen charge. Therefore, Defense *323 counsel's failure to object to the charge did not constitute deficient performance, pursuant to the first prong of the two-part Strickland test. Defendant fails to show that trial counsel was ineffective regarding the jury charge.
In his pro se brief, Defendant argues counsel was ineffective for failing to strike juror Marie Holmes, as she knew the State's victim-assistance coordinator and the victim's mother.
The relevant colloquy is as follows:
MS. WILSON:
We're not getting names, but I know who is sitting there. And our victim's coordinator is sitting there, the parents of the victim just came in and the victim came in.
THE COURT:
Let me ask you this. The gist of the thing is the individuals that you've seen or the relationships, would it be would it in any way influence you if one or more of those individuals were going to testify?
MS. HOLMES:
Oh, no, no, no, huh-uh, it wouldn't. I mean, I will be as honest as, you know, as I know I am.
THE COURT:
And even if they weren't witnesses but because one of them may be employed by the District Attorney's Office, the Ms. Nettie that you identified, because of her relationship, would that cause you to lean one way or the other?
MS. HOLMES:
No, huh-uh. No way.
THE COURT:
Mr. St. Dizier I'll ask
MS. HOLMES:
I just want to be honest. Oh, no way.
MR. ST. DIZIER:
That's probably why we both chose you for the jury. But we would like to know a little bit more detail about your relationship with Ms. Nettie. You say it's a former relationship or is it a present relationship?
MS. HOLMES:
No. Ms. the young lady?
MS. WILSON:
He's talking about the lady that you described as dark.
MS. HOLMES:
See, I don't know her name. Everybody in my school is my baby, and they call me Mama Holmes. You know, that's just a tease, `cause I fed them. You know, I fed her a lot. But I don't know anything personal about her. I just know her face and that's it, and she graduated from LCB.
And then, you know, and when they come through that line, all the children is my babies.
MR. ST. DIZIER:
And what was your position at LCB?
MS. HOLMES:
Cafeteria, cook.
MR. ST. DIZIER:
I ate in that cafeteria for four years. And the so-called other lady, the social security representative?
MS. HOLMES:
Yeah, she was my social security representative.
MR. ST. DIZIER:
Was?
MS. HOLMES:
Uh-huh, for my disability. My case is over with.
MR. ST. DIZIER:
So that's over with, and you were satisfied with her
MS. HOLMES:
*324 Oh, yes.
MR. ST. DIZIER:
performance. So it wouldn't affect either
MS. HOLMES:
And we mainly talk on the phone. I only met her one time. And that was when we faced the judge. And then after that that was it. Everything was in my favor.
MR. ST. DIZIER:
I'm satisfied. I have no objection to anything.
THE COURT:
And we do appreciate you being
MS. HOLMES:
I'm sorry. I didn't know that I had to go through all this routine. I just know
THE COURT:
It's just to make certain that everybody's rights are protected, the whole thing, and they have opportunity to ask you questions and hear the same information I do. We do thank you.
Defendant's pro se brief cites the following analysis for whether a juror should be excused due to a relationship with the victim or a witness in a case:
A trial judge is granted great discretion in determining whether to seat or reject a juror for cause, and such rulings will not be disturbed without a showing of an abuse of that discretion. State v. Jones, 474 So. 2d 919 (La.1985). Disclosure during the trial that a juror knows or is related to a witness or the victim is not sufficient to disqualify a juror unless it is shown that the relationship is sufficient to preclude the juror from arriving at a fair verdict. State v. Peterson, 446 So. 2d 815 (La.App. 2d Cir.1984). The connection must be such that one must reasonably conclude that it would influence the juror in arriving at a verdict. State v. Hodgeson, 305 So. 2d 421 (La.1974).
State v. Holland, 544 So. 2d 461, 465 (La. App. 2 Cir.1989), writ denied, 567 So. 2d 93 (La.1990).
Under the foregoing standard, the record does not reveal a connection between the juror and either the victim or the victim assistance coordinator that would have influenced the verdict. Further, the juror affirmed that she could be fair and impartial. Defendant argues the juror's affirmation that she could be honest was insufficient; however, the colloquy clearly shows the juror affirmed that she could be impartial.
A charge of juror bias may be removed if the prospective juror is rehabilitated, that is, if the court is satisfied that the juror can render an impartial verdict according to the evidence and instructions given by the court. State v. Gibson, 505 So. 2d 237, 240 (La.App. 3rd Cir.), writ denied, 508 So. 2d 66 (La. 1987). A trial judge is afforded broad discretion and his ruling should not be disturbed absent an abuse of discretion. State v. Monroe, 366 So. 2d 1345, 1347 (La.1978).
State v. Anthony, 98-0406, p. 24 (La.4/11/00), 776 So. 2d 376, 392, cert. denied, 531 U.S. 934, 121 S. Ct. 320, 148 L. Ed. 2d 258 (2000).
In view of the standards discussed, counsel's decision not to oppose the seating of the juror did not amount to deficient performance, and thus did not constitute ineffective assistance of counsel.
Defendant also contends trial counsel failed to make use of prior inconsistent statements the victim made at his bond hearing to impeach her at trial. The testimony at issue focuses on the victim's failure to transport her children to school and *325 Defendant's request to have the victim shoot him on the day following the offenses for which he was convicted. We have examined the victim's testimony at the bond hearing and her testimony at trial. Contrary to Defendant's assertion, that testimony is generally consistent. Further, the victim's testimony during cross-examination at the bond hearing shows an even closer consistency with her trial testimony regarding Defendant's behavior the day after the offense. At the least, the two sets of testimony were sufficiently consistent that trial counsel's performance was not deficient for failing to use the allegedly inconsistent statements to attack the victim's credibility. Therefore, pursuant to Strickland, we are unable to conclude that trial counsel was ineffective.
For the reasons discussed, this assignment lacks merit.
Excessiveness of the Sentence
As with his earlier sufficiency argument, it appears that Defendant is challenging only the sentence for the second degree kidnapping charge, not the sentence for aggravated second degree battery. This court has explained:
In determining whether a sentence is unconstitutionally excessive, we apply the following standard:
La. Const. art. I, § 20 ensures that "[n]o law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment." A punishment is considered constitutionally excessive if it "(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more tha[n] the purposeful and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime." State v. Wilson, 96-1392, p. 3 (La.12/13/96); 685 So. 2d 1063, 1065 citing Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
State v. Blackmon, 99-391, p. 5 (La.App. 3 Cir. 11/3/99); 748 So. 2d 50, 53, writ denied, 99-3328 (La.4/28/00); 760 So. 2d 1174.
In State v. Cook, 95-2784, p. 3 (La.5/31/96); 674 So. 2d 957, 959, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996), the Louisiana Supreme Court held:
The only relevant question on review, however, was "whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate." State v. Humphrey, 445 So. 2d 1155, 1165 (La.1984) (citing State v. Williams, 412 So. 2d 1327 (La.1982)).
State v. Hymes, 01-0089, p. 2 (La.App. 3 Cir. 6/6/01), 787 So. 2d 604, 605-06.
The relevant sentencing provision is found at La.R.S. 14:44.1(C): "Whoever commits the crime of second degree kidnapping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence."
Thus, the current sentence is within the statutory limits. At sentencing, the court followed the guidelines set forth in La. Code Crim.P. art. 894.1 and gave detailed reasons to support the sentence. As examples, the trial court noted:
the Defendant's conviction of a prior felony; the "heinous" nature of his actions; the Defendant's treatment of the victim as extreme "degradation;" the "calculated and premeditated" violence used by the Defendant; the Defendant's use of a weapon in the commission of the offense; and, the fact that the offense resulted in "a significant permanent injury" and "permanent scarring, both physically and mentally, that Ms. Perrodin *326 will have to carry with her for the rest of her life."
The thirty-five year sentence does not shock the conscience and is not disproportionate to the crime committed. This assignment also lacks merit.
Denial of the Motion to Continue
Defendant argues the trial court erred by denying trial counsel Charles St. Dizier's motion for a continuance of the trial date. We disagree.
As the State suggests in its supplemental brief, a summary of this case's pre-trial history may be helpful to the analysis of this assignment. Defendant's initial counsel was David Ritchie, who is now a district judge. The court appointed James Burks as counsel in June 2003. However, Burks had concerns regarding a possible conflict of interest, so the court appointed St. Dizier as new counsel on December 10, 2003. On December 12, St. Dizier moved for a continuance in open court, citing his caseload, date conflicts with other possible trials, and a lack of time to prepare for Defendant's trial. The court initially denied the motion, noting that counsel had approximately forty days until the then-scheduled trial date and had failed to allege specific difficulties he might have in preparing Defendant's case.
However, the State observed that St. Dizier had another capital case scheduled for the same date as Defendant's then-scheduled trial date of January 20, 2004. Due to that conflict, the State asked the court to appoint new counsel. The court then relieved St. Dizier and appointed Michelle Breaux as Defendant's counsel. Breaux immediately moved for a continuance, citing reasons similar to those argued earlier by St. Dizier. The trial court denied the motion.
On January 20, 2004, more pre-trial matters were addressed, and the trial date was re-set. On February 13, in open court, Breaux indicated she had a conflict of interest and asked to be relieved; she also asked that the trial date be continued. She also filed a written motion to withdraw. Over the State's objection, the court allowed Breaux to withdraw and continued the trial date.
On February 18, the court reappointed St. Dizier as trial counsel. On March 5, the court re-fixed the trial date for May 3, 2004, and ordered that notice be sent to St. Dizier. On May 3, St. Dizier appeared and moved for a continuance.
Imploring the trial court to continue the trial, St. Dizier noted his lack of preparation and disclosed that he had not received an appointment letter for Defendant's case. An appointment letter, he explained triggers certain procedures in his office. We observe, however, that St. Dizier moved for a continuance in this same case on December 12, 2003, two days after his court appointment and approximately five months before the trial which was ultimately begun on May 3, 2004. He also acknowledged his office's receipt of a trial notice on March 3, 2004 and admitted that the trial judge personally called and advised him that he would be appointed to Defendant's case. St. Dizier further admitted that Michelle Breaux, Defendant's previous counsel, called him to discuss this case, but he "blew it off at the time, figuring [he'd] get a letter." The fact of the matter is that Defendant's counsel knew of his appointment approximately five months before trial but "blew off" preparing for it because of his fidelity to his office procedures.
The trial court denied the motion, and jury selection began the next day. In regard to continuances, the supreme court instructs:
The denial of a motion for continuance on grounds of counsel's lack of preparedness *327 does not warrant reversal unless counsel demonstrates specific prejudice resulting from the denial. State v. Haarala, 398 So. 2d 1093, 1099 (La.1981). This specific prejudice requirement has been disregarded by this court in cases where the preparation time was so minimal as to call into question the basic fairness of the proceeding. State v. Jones, 395 So. 2d 751 (La.1981); State v. Durio, 371 So. 2d 1158 (La.1979). This court has also held that when preparation time is unreasonably short, counsel has been diligent, and there is a general allegation of prejudice, denial of a motion for a continuance is an abuse of discretion which constitutes reversible error. Durio, 371 So.2d at 1161; State v. Winston, 327 So. 2d 380 (La.1976) (conviction for distribution of heroin reversed when defense counsel was given only three days in which to prepare for trial); State v. Simpson, 403 So. 2d 1214 (La.1981) (trial court constructively denied defendant right to counsel by appointing new attorney on the day of trial who presented no defense, but only cross-examined the State's witnesses).
State v. Snyder, 98-1078, p. 33 (La.4/14/99), 750 So. 2d 832, 856.
In a fairly analogous case, the Louisiana Supreme Court explained:
In the instant case, Mr. Calmes was not aware that he was representing defendant until the morning of trial. Although the Office of Public Defender was counsel of record and had previously received notice of its appointment, the office was totally unaware that a trial date had been set. This is evidenced by its motion for a speedy trial filed six days earlier in which it stated that no trial date had been set. It is also apparent that there had been no contact between the Office of Public Defender and defendant prior to the morning of trial. Although only jury selection took place on the first day of trial, defense counsel had no time to prepare for trial. Moreover, defense counsel was free from fault as the Office of Public Defender never received notice of the trial date; therefore, it had a reasonable explanation for not being prepared for trial. Additionally, defendant's failure to communicate the trial date to his appointed counsel, whom he most probably did not even know represented him, is not a valid reason to require him to go to trial with counsel who has had no time to prepare a defense.
In our view, defendant's right to a fair trial was substantially affected by being forced to go to trial with counsel who had no time to prepare a defense through no fault of his own. Accordingly, we find that the trial judge abused his discretion in denying defendant's motion for continuance. We must reverse. See State v. Benson, 368 So. 2d 716 (La.1979); State v. Winston, 327 So. 2d 380 (La.1976).
State v. Simpson, 403 So. 2d 1214, 1216 (La.1981). The present case is similar to Simpson in that both cases appear to involve difficulties with counsel not timely receiving notices that were mailed to their offices. However, at some point prior to trial, the trial judge in this case had informed St. Dizier, by telephone, that he would be appointed to represent Defendant. In contemplation of this appointment, St. Dizier had a phone conversation with one of the previous counsel. Also, he acknowledged that his office had received notice of the trial date, although it apparently did not come to counsel's personal attention in a timely manner. Moreover, St. Dizier personally filed a motion to continue on December 12, 2003. This set of facts, indicating that counsel had some advance notice, both actual and constructive, *328 of trial distinguishes the present case from Simpson.
We are cognizant of the discussion in a more recent supreme court case:
A judge may not respond to an unexpected disruption of the court's trial schedule, caused by a conflict in defense counsel's own trial schedule which results in counsel's absence on the morning of trial, by denying a motion for a continuance and forcing the defendant to trial without an attorney. State v. Wisenbaker, 428 So. 2d 790 (La.1983); City of Baton Rouge v. Dees, 363 So. 2d 530 (La.1978). We observed in Wisenbaker, 428 So.2d at 793, that "[i]f counsel, and not defendant, was at fault for counsel's failure to appear or to give timely notice to the trial court of a conflict in schedule, then sanctions must be taken against counsel, not the defendant." (footnote omitted); see also Dees, 363 So.2d at 532 ("Whatever may have been the court's right to discipline counsel if the present motion for continuance was untimely or ill-founded, the client cannot be penalized, by the loss of his constitutional right to legal representation at his trial, for his lawyer's lapse arising out of a conflict in the lawyer's trial schedule."). Similarly, a trial judge may not constructively deny the defendant his right to counsel by forcing him to trial represented by an attorney who refuses to participate in any manner in the proceedings because he believes he has not had time to prepare an adequate defense, State v. Brooks, 452 So. 2d 149, 155-56 (La.1984)(on reh'g), or by an attorney who participates in the proceedings but is completely unprepared to try the case because the court has appointed him as substitute counsel on the morning of trial. State v. Knight, 611 So. 2d 1381 (1993). We again emphasized in Knight that while the trial judge "may have been righteously irritated by the failure of the attorney assigned the case... to appear on the date fixed for trial or to make other adequate arrangements.... [t]he failings (if any) may warrant attorney sanctions, but ... cannot be imputed to the accused who is constitutionally guaranteed the right to have an attorney at trial who has at least some opportunity to prepare a defense." Id., 611 So.2d at 1383 (Lemmon, J., concurring).
In the present case, unlike Wisenbaker, Dees, and Knight, counsel appeared in court on the day of trial, claiming that he was fresh from trial in another parish and that as the result of a scheduling conflict, he had been unable to prepare relator's case for trial, although the court had continued the first setting of trial for one month the day after appointing counsel to represent relator. Counsel was therefore physically available to try the case and, unlike the defense attorney in Brown [Brooks], he did not stand mute after the trial court denied his motion for a continuance but cross-examined the state's witnesses and argued the case to jurors at the close of evidence.
Nevertheless, we granted relator's application for supervisory review because the record proceedings below not only corroborates counsel's assertion he had not prepared relator's case but also reveals that the trial court had to intervene to keep counsel from pursuing matters which appeared directly adverse to relator's interests, notably, cross-examination of a police witness which threatened to reveal relator's arrest on other serious charges, and which prompted an incendiary confrontation between counsel and relator in open court. The incident clouds confidence that the judicial process functioned properly in this case and was one we could not have anticipated *329 when we denied relator's pre-trial application to review the denial of his motion to continue with the comment that "[d]efendant may reraise on appeal in the event of conviction." State v. Laugand, 97-0516 (La.2/27/97), 689 So. 2d 1368 (Lemmon, J., concurring). It further appears that counsel embarked upon trial by issuing an instanter subpoena for a missing alibi witness who ultimately could not be located because he had moved, but did not bring the problem to the court's attention until after the state rested its case. This omission prompted the court to express for the record its own frustration that "[a]t no time did Counsel ask any assistance of this Court to get this witness in," and to observe that counsel had, in any event, failed to file the notice of alibi defense required by La.C.Cr.P. art. 727.
Counsel thereby failed to lay the legal groundwork for presenting an alibi defense; subpoenaed a witness under circumstances which suggested not an informed professional assessment that an alibi defense was a viable one but a desperate attempt to cobble together any defense at the last moment; failed even to provide the court with all of the information necessary to make a fully informed decision on the continuance motion; and, once trial began, pursued questioning of the state's witnesses at trial which revealed lack of even a rudimentary knowledge of the circumstances surrounding the investigation of the crime and the arrests of relator and his co-defendant. Given these circumstances, we agree with Judge Plotkin, who dissented from the panel opinion which affirmed relator's conviction and sentence for second degree murder, that while "[i]t is frustrating to continue a trial where one side is prepared to go forward ... forcing an attorney to trial who is unprepared does not punish the attorney for his/her lack of readiness, it merely punishes the defendant who is unable to present an adequate defense." State v. Laugand, 97-1554, p. 3 (La.App. 4th Cir.4/7/99), 738 So. 2d 209 (unpub'd) (Plotkin, J., dissenting).
State v. Laugand, 99-1124, 99-1327, pp. 1-3 (La.3/17/00), 759 So. 2d 34, 35-36.
This case is distinguishable from Laugand, as a survey of the trial record shows that trial counsel mounted a vigorous defense, which included jury selection, cross-examination of State witnesses, the calling of a Defense witness, and a lengthy closing argument.
Although counsel did not realize the trial date until four days (counting the weekend) before it occurred, counsel had some prior actual notice of the trial date. Further, the record does not indicate Defendant was prejudiced by the denial of the continuance, as counsel was apparently able to mount a competent defense.
This assignment lacks merit.
CONCLUSION
For the foregoing reasons, the convictions and sentences of Defendant, Darwin Gauthier, are affirmed.
AFFIRMED.
NOTES
[1] "Tory" is the spelling from the trial record; the indictment and both parties' briefs spell the victim's first name "Torre." At the time of the trial, the victim and Defendant were divorced. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1463760/ | 49 S.W.3d 403 (2000)
Khosrow SADEGHIAN, Appellant,
v.
CITY OF DENTON, County of Denton, Denton ISD, and Denton County Education District, Appellees.
No. 2-00-063-CV.
Court of Appeals of Texas, Fort Worth.
December 7, 2000.
*404 Law Office of Michael R. Boling and Rodney L. Hubbard, Dallas, for Appellant.
Linebarger, Heard, Goggan, Blair, et al., Edward Lopez, Jr., Dallas, McCreary, Veselka, Bragg, & Allen, P.C., Kirk Swinney, Austin, Sawko & Burroughs, L.L.P., Mark A. Burroughs, Denton, for Appellee.
Panel A: CAYCE, C.J.; RICHARDS and HOLMAN, JJ.
OPINION
RICHARDS, Justice.
Introduction
Appellant purchased real property subject to a tax lien for the years 1990 through 1995. He sued the City of Denton, the County of Denton, the Denton ISD, and the Denton County Education District (collectively "appellees") after his request for a refund for taxes he paid under protest was denied or ignored. Appellant also filed an application for a declaratory judgment asking for a ruling that no lien ever attached to the real property he purchased, thereby entitling appellant to a refund of money paid under protest for delinquent taxes, penalties, interest, and legal fees. The trial court denied appellant's motion for summary judgment, but granted appellees' motions for summary judgment. Appellant argues in one issue that the trial court erred in denying his motion for summary judgment and granting appellees' motions.[1] We will affirm.
*405 Statement of Facts
On October 30, 1985, Colonial Savings and Loan Association of Western Kansas ("Colonial Savings") loaned $775,000 to Oakhill Joint Venture ("Oakhill"), a Texas joint venture, and received a mortgage lien on approximately eighty acres of land in Denton County, Texas. Oakhill executed a Renewal and Modification of Deed of Trust Lien in favor of Colonial Savings on October 31, 1986 and again on October 31, 1987.
Colonial Savings was declared insolvent on September 21, 1989. The Resolution Trust Corporation ("RTC") was appointed receiver of Colonial Savings and thereby became a lienholder of the property. On September 27, 1995, RTC, acting in its capacity as receiver, executed an Assignment of Deed of Trust from Colonial Savings to RTC Land Assets Trust 1995 NP2B ("RTC Trust"). RTC Trust foreclosed on the land and sold it to NP2 South, L.P. for $51,153 on April 2, 1996. NP2 South then sold the land to appellant on April 12, 1996 for $38,000.
After appellant bought the land, appellees threatened to foreclose on the property if the delinquent taxes for the tax years 1990 through 1995 were not paid. Appellant paid a total of $115,302 .64 in delinquent taxes under protest. After appellant's repeated requests for a refund were ignored or denied, he filed suit on January 2, 1998. Appellant's motion for summary judgment was denied and Denton County's motion for summary judgment was granted on July 16, 1999. Denton Independent School District and Denton County Educational District were granted summary judgment on August 16, 1999. City of Denton's unopposed motion for summary judgment was granted on January 14, 2000.
Standard of Review
The standards for reviewing a motion for summary judgment are well established. The movant has the burden of showing that there is no genuine material fact issue and that it is entitled to judgment as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiff's cause of action cannot be established. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997).
Application of Section 1825(b) to RTC
The RTC is governed by 12 U.S.C. § 1441a. See 12 U.S.C.A. § 1441a (West Supp.2000). Under section 1441a(b)(4)(A), the RTC has "the same powers and rights to carry out its duties ... as the Federal Deposit Insurance Corporation has under... [12 U.S.C.A. §§ 1821, 1822, and 1823]." 12 U.S.C.A. § 1441a(b)(4)(A) (West Supp.2000). "With respect to any asset acquired or liability assumed pursuant to this section, the [FDIC] shall have all of the rights, powers, privileges, and authorities... under sections 1821 and 1825(b)." 12 U.S.C.A. § 1823(d)(3)(A) (West 1989). Therefore, section 1825(b) applies to the RTC. See RTC Commercial Assets Trust 1995-NP3-1 v. Phoenix Bond & Indem. Co., 169 F.3d 448, 456 (7th Cir.1999).
Application of Section 1825(b) to Mortgage Liens
"No property of the Corporation shall be subject to levy, attachment, garnishment, *406 foreclosure, or sale without the consent of the Corporation, nor shall any involuntary lien attach to the property of the Corporation." 12 U.S.C.A. § 1825(b)(2) (West 1989). This language is clear that an involuntary lien cannot attach to property that is owned by the RTC when it is acting as a receiver. Irving ISD v. Packard Prop., 970 F.2d 58, 61 (5th Cir.1992). The effect of section 1825(b)(2) is that liens may not attach to property while it is owned by the RTC. Id.
In this case, the RTC held only a mortgage lien on the property. Appellant is correct that a lien interest is property within the context of section 1825(b)(2). It is settled federal law that "property" includes both lien and fee interests. Matagorda County v. Russell Law, 19 F.3d 215, 221 (5th Cir.1994); State v. Bankerd, 838 S.W.2d 639, 641 (Tex.App.-San Antonio 1992, writ denied).
However, while a lien may be a property interest, it is treated differently from a fee interest. A lienholder does not own legal title to the property on which he holds a lien, and thus, a lienholder is not a property owner. First Nat'l Bank of Bellaire v. Huffman ISD, 770 S.W.2d 571, 573 (Tex.App.-Houston [14th Dist.] 1989, writ denied), cert. denied, 494 U.S. 1091, 110 S. Ct. 1838, 108 L. Ed. 2d 967, (1990). Property taxes are assessed against the fee interest and not against the lien interest. See TEX.TAX CODE ANN. § 25.06(a) (Vernon Supp.2001); Dallas Cent. Appraisal Dist. v. Jagee Corp., 812 S.W.2d 49, 51 (Tex. App.-Dallas 1991, writ denied) (holding that owner of land, not lessee, is responsible for payment of ad valorem taxes). Therefore, because the RTC held only a lien interest and did not acquire an ownership interest in the property during the tax years in question, "1825(b)(2) does not act as a bar to attachment of a tax lien on the underlying real property during the period that the mortgage[ was] held in receivership by the RTC." Casino Reinvestment Dev. Auth. v. Cohen, 321 N.J.Super. 297, 728 A.2d 868, 870 (1998); see Matagorda County, 19 F.3d at 219. Thus, appellees' tax liens were properly attached, and summary judgment was proper. Appellant's sole issue is overruled.
Conclusion
Having overruled appellant's issue, we affirm the trial court's judgment.
NOTES
[1] Appellant did not oppose City of Denton's motion for summary judgment. Because he is not allowed to complain about it for the first time on appeal, his issue is waived with respect to City of Denton. See Romero v. State, 927 S.W.2d 632, 634 n. 2 (Tex.1996). We will, however, address the merits of his issue with respect to the other appellees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1620874/ | 725 N.W.2d 944 (2006)
2006 WI App 224
The BANK OF NEW GLARUS a Wisconsin Banking Corporation, Plaintiff-Respondent,
v.
Clarence Allen SWARTWOOD, Kathy Swartwood and John Doe and Jane Doe, Defendants,
Ameriquest Mortgage Company, Defendant-Appellant.
No. 2005AP647.
Court of Appeals of Wisconsin.
Submitted on Briefs September 15, 2005.
Opinion Filed October 26, 2006.
*947 On behalf of the defendants-appellant, the cause was submitted on the briefs of David E. McFarlane and Sheila M. Sullivan of Bell, Gierhart & Moore, S.C., Madison, and Gary B. Bodelson, Minneapolis, MN.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Todd W. Schluesche of Kittelsen, Barry, Wellington, Thompson and Schluesche, Monroe.
Before DYKMAN, VERGERONT and HIGGINBOTHAM, JJ.
¶ 1 DYKMAN, J.
The dispute in this case is between Ameriquest and Bank of New Glarus, both of which claim a primary secured interest in real estate owned by Clarence and Kathy Swartwood. Ameriquest appeals from a summary judgment order determining that a real estate security agreement (RESA) held by Bank of New Glarus encumbering the Swartwood property had priority over a mortgage held by Ameriquest. Ameriquest also appeals from the circuit court's *948 determination that the Swartwoods owed Bank of New Glarus $149,267.17.[1]
¶ 2 We conclude: (1) Ameriquest's mortgage is subordinate to Bank of New Glarus's RESA; (2) Ameriquest has not waived its defenses of fraud and failure of consideration; (3) Ameriquest's fraud defense is precluded by the D'Oench doctrine,[2] but its failure of consideration defense is not; and (4) the issue of whether the bank is a holder in due course cannot be resolved on summary judgment. Accordingly, we affirm the summary judgment order insofar as it concludes that Bank of New Glarus's RESA has priority over Ameriquest's mortgage. We reverse that portion of the default judgment determining the amount owed to Bank of New Glarus, and remand for further proceedings.[3]
BACKGROUND
¶ 3 The following facts are taken from the pleadings and the parties' summary judgment submissions. In October 2002, Clarence and Kathy Swartwood obtained a loan from Ameriquest Mortgage Corporation in the amount of $78,750, secured by a mortgage encumbering their property in Blanchardville, Wisconsin. Part of the Village of Blanchardville is situated in Iowa County, while another part is in Lafayette County. The Swartwood property is on the Iowa County side of the village, but Ameriquest mistakenly recorded its mortgage in Lafayette County. Ameriquest recorded its mortgage in Iowa County on December 9, 2003.
¶ 4 Bank of New Glarus's complaint states that on March 24, 2003, the First National Bank of Blanchardville (First National) loaned the Swartwoods a total of $113,111.80, evidenced by three promissory notes in the amounts of $51,120.76, $43,211.84 and $18,779.20. These notes were secured by a RESA in favor of First National encumbering the same property described in Ameriquest's mortgage. First National properly recorded the RESA in the Iowa County Register of Deeds.
¶ 5 An affidavit of Clarence Swartwood contradicts Bank of New Glarus's account of the Swartwoods' loans from First National. Swartwood states that in early 2003 he and his wife met with First National President Mark Hardyman to discuss taking out a small business loan. He avers that Hardyman asked whether there were liens on the Swartwoods' property. Swartwood informed Hardyman that Ameriquest held a $75,000 mortgage on the property. He states that he and his wife agreed with Hardyman that the new loan would be secured by a second mortgage on the property, but that "it was understood and agreed" that this mortgage was subordinate to the Ameriquest mortgage. Swartwood states that he and his wife signed forms that Hardyman said were *949 related to the loan, but that these forms were blank when they signed them.[4] The documents, submitted as exhibits, contain the following notice in bold above the Swartwoods' signatures: "Notice to Customer (a) Do not sign this before you read the writing on the reverse side, even if otherwise advised. (b) Do not sign this if it contains any blank spaces."
¶ 6 Swartwood states that as a result of the 2003 meeting with Hardyman, approximately $18,000 was deposited in the Swartwoods' business checking account. Ameriquest observes that this amount approximates the $18,779.20 amount referenced in one of the three promissory notes.
¶ 7 First National was placed in receivership by the Federal Deposit Insurance Corporation (FDIC) in mid-2003. The Swartwoods' account was closed. Clarence Swartwood states that checks written on the account were returned unpaid, and that only approximately $10,000 of the $18,000 loan was expended. He avers that he and his wife never agreed to pay the amounts indicated in two of the three promissory notes.
¶ 8 FDIC was appointed as the receiver of First National, although the record contains no documentation from the Iowa County Register of Deeds showing its appointment. An affidavit of Warren Laube, president of Bank of New Glarus, states that on July 23, 2003, his bank purchased from FDIC a package of 109 loans issued by the failed First National. The loans to the Swartwoods were a part of this package. Laube states that his bank received an assignment of mortgage dated October 8, 2003, that was recorded in the Iowa County Register of Deeds on October 10, 2003. In the assignment, Bank of New Glarus received First National's interest in the RESA and the three promissory notes. Affidavits of Laube and James Schaller, a vice president of Bank of New Glarus, state that neither they nor any other employee of Bank of New Glarus had actual or constructive notice of Ameriquest's mortgage prior to their bank receiving and recording its assignment of mortgage.
¶ 9 In March 2004, Bank of New Glarus brought this foreclosure action against the Swartwoods for non-payment of its notes. The Swartwoods filed a petition in bankruptcy in October 2004. Bank of New Glarus obtained an order lifting the stay that resulted from the bankruptcy filing. It moved for summary judgment against Ameriquest on the issue of mortgage priority, and for default judgment against the Swartwoods.
¶ 10 The circuit court granted summary judgment in favor of Bank of New Glarus on the issue of mortgage priority, and granted Bank of New Glarus's motion for default judgment on its claim against the Swartwoods. As a result, it determined that the Swartwoods must pay $149,267.17 to redeem their property from the Bank of New Glarus foreclosure.
¶ 11 The court issued findings of fact and conclusions of law, a judgment of foreclosure and replevin, and a decision on the motions for summary judgment and default judgment.[5] It found that the *950 Swartwoods agreed to pay the three promissory notes in the amounts indicated on the notes. The court further noted that "Ameriquest ha[d] alleged that the Swartwoods gave First National Bank of Blanchardville oral notice of the existence of a mortgage to Ameriquest at the time of First National Bank of Blanchardville's RESA" but that "there [wa]s no credible basis to support Ameriquest's claim in this regard."[6] The court concluded that Bank of New Glarus was a good-faith purchaser within the meaning of the recording statutes because at the time of purchase it could not have discovered that Ameriquest's mortgage was filed by mistake in Lafayette County by searching the Iowa County Register of Deeds. Noting the "newsworthy significance" of First National's failure in the bank's southwestern Wisconsin service area, the court "t[ook] judicial notice of [First National's] failure, and the intervention of FDIC, if it be necessary to take such judicial notice."[7] The court further concluded that Bank of New Glarus was a holder in due course of the Swartwood loan documents.
¶ 12 Ameriquest appeals from the circuit court's order of summary judgment in favor of Bank of New Glarus on the issue of mortgage priority, and the amount of the judgment against the Swartwoods.
DISCUSSION
¶ 13 We review a grant or denial of summary judgment independently, applying the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2). This case involves the interpretation of statutes and their application to a set of facts, both questions of law that we review de novo. Bill's Distributing, Ltd. v. Cormican, 2002 WI App 156, ¶ 6, 256 Wis. 2d 142, 647 N.W.2d 908.
I. Interpretation of WIS. STAT. §§ 706.08 and 706.09
¶ 14 Ameriquest does not dispute that its failure to record its mortgage in the proper county until December 2003 after First National recorded the RESA now held by Bank of New Glarus prevents it from asserting priority based on being the first to acquire an interest in the property. Rather, Ameriquest contends that it is entitled to summary judgment on the issue of priority because Bank of New Glarus's chain of title in the Iowa County Register of Deeds contains a "gap"; the record does not show FDIC's appointment as receiver of the First National loans purchased by Bank of New Glarus. It asserts that, as a result, FDIC was a stranger to the record chain of title, and, consequently, Bank of New Glarus cannot claim the protection of the recording statutes.
¶ 15 WISCONSIN STAT. § 706.08(1)(a) protects purchasers of real estate against prior adverse claims that are not properly recorded as provided by law.[8]See Associates Fin. Servs. Co. of *951 Wisconsin, Inc. v. Brown, 2002 WI App 300, ¶ 9, 258 Wis. 2d 915, 656 N.W.2d 56. It provides that "every conveyance that is not recorded as provided by law shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate or any portion of the same real estate whose conveyance is recorded first." Section 706.08(1)(a). As we have explained, "[a] purchaser or mortgagee in good faith is one without notice of existing rights in land." Grosskopf Oil, Inc. v. Winter, 156 Wis. 2d 575, 584, 457 N.W.2d 514 (Ct.App. 1990) (citation omitted).
¶ 16 A related section, WIS. STAT. § 706.09(1), addresses under what circumstances a conveyance will have priority over a prior adverse claim.[9] Section 706.09(1)(b) provides that an adverse claim based on a conveyance outside of the chain of title not identified by definite reference will not have priority over a valid subsequent interest.
¶ 17 Ameriquest cites Zimmer v. Sundell, 237 Wis. 270, 296 N.W. 589 (1941), for the proposition that no purchaser or mortgagee can claim protection under WIS. STAT. § 706.08 unless the prior recording upon which the claimed protection is based is in the record chain of title. There, the original owner conveyed the same property twice, once in 1928 and again in 1933. Zimmer, 237 Wis. at 272, 296 N.W. 589. Neither purchaser recorded their interest in the property at the time of the sale, and both purchasers subsequently sold their respective interests to new owners. Id. The interest first conveyed in 1928 was sold to Sundell, et. al., in 1932, and the interest conveyed in 1933 was sold later in *952 1933 to the Zimmers. Id. Sundell's interest was finally recorded in January 1936, while the Zimmers' was recorded in April 1936. Id. The Zimmers brought a quiet title action against Sundell in 1937 "when they went to pay the taxes and discovered that [Sundell] had paid them." Id.
¶ 18 Construing WIS. STAT. § 235.49 (1939), since renumbered WIS. STAT. § 706.08, the Zimmer court determined that, while the Zimmers were purchasers in good faith because they had no notice from the record of Sundell's claim to the property, they were not entitled to the protection of the statute because the Zimmers' "recorded deed had no apparent connection with or derivation from the [original seller's] title in other words, it was a mere fugitive deed, and plaintiffs were strangers to the title so far as the record disclosed." See Zimmer, 237 Wis. at 273, 296 N.W. 589. The court concluded:
[P]ersons situated as are the plaintiffs are not entitled to the protection of the statute because their chain of title back to the common grantor was not first recorded. . . . If one who has no title under the laws governing conveyances is to have a superior one under the recording acts, it should be because he has relied upon the record, and when he purchases from one who is a stranger to the record title he has no grounds for such reliance.
Id. at 275-76, 296 N.W. 589. Ameriquest argues that, like the plaintiff in Zimmer, Bank of New Glarus purchased its interest from a party who was "a stranger to the record title," and thus cannot rely on the recording statutes to assert the priority of its claim. Ameriquest reasons that Bank of New Glarus is a stranger to the record title because nothing of record shows that FDIC was appointed as First National's receiver.
¶ 19 Bank of New Glarus contends that Zimmer has been abrogated by WIS. STAT. § 706.08(2).[10] This subsection provides that
[w]here a public tract index or abstract of title index is maintained, an instrument properly indexed therein and recorded at length . . . shall be deemed to be duly recorded for purposes of this section, despite any error or omission in the process of including the instrument, or prior instruments in the same chain of title, in other records.
Section 706.08(2). Bank of New Glarus cites the following comment to § 706.08(2): "New provision. To reverse, where notice is assured by tract index, the `chain of title' rule adopted in Zimmer v. Sundell, 237 Wis. 270, 296 N.W. 589." Laws of 1969, c. 285 § 23.
¶ 20 Bank of New Glarus concedes that its summary judgment submissions do not show that Iowa County maintains a public tract index. It requests that we take judicial notice that such an index exists, or accept an affidavit from the Iowa County Register of Deeds attesting to the existence of the tract index. Ameriquest notes that while Bank of New Glarus argues that the index exists, Bank of New Glarus does not assert that this tract includes "an instrument properly indexed therein and recorded at length at the place there shown." We decline Bank of New Glarus's invitation *953 to go beyond the record. We will discuss the reach of Zimmer later.
¶ 21 Next, citing WIS. STAT. § 706.09, Ameriquest also contends that Bank of New Glarus's claim of priority must fail because it is dependent on an "event not appearing of record in the chain of title," FDIC's appointment as First National's receiver. See § 706.09(1)(b). Bank of New Glarus responds that by its plain language, § 706.09 applies only at the time a purchaser's or mortgagee's interest arises. In Bank of New Glarus's view, the statute would not apply because Ameriquest acquired its mortgage in October 2002, over a year before First National acquired its RESA.
¶ 22 Ameriquest's various arguments require that we construe portions of WIS. STAT. §§ 706.08 and 706.09. When interpreting a statute, we look first to the text of the statute to ascertain its meaning. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. If the text of the statute yields one clear meaning, we ordinarily end the inquiry and apply that meaning. Id. Scope, context, and purpose of the statute are relevant to this analysis insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶¶ 46-48.
¶ 23 We have explained that a purpose of both WIS. STAT. § 706.08 and § 706.09 is to protect purchasers or mortgagees from adverse claims by requiring the recording of interests. See Turner v. Taylor, 2003 WI App 256, ¶ 8, 268 Wis. 2d 628, 673 N.W.2d 716 ("[Section 706.09] extinguishes interests or claims that are adverse to or inconsistent with merchantable title when [specified] circumstances are present."); Brown, 258 Wis. 2d 915, ¶ 9, 656 N.W.2d 56 ("The purpose of [§ 706.08(1)(a)] is to render record title authoritative to protect a purchaser who relies on the record and is a purchaser in good faith. . . .") (citation omitted). "Recording statutes forbid those who do not record their interest from asserting title against persons who innocently purchase land from the record owner." State v. Barkdoll, 99 Wis. 2d 163, 167 n. 3, 298 N.W.2d 539 (1980).
¶ 24 Whether purchasers and mortgagees are entitled to protection from an adverse claim by WIS. STAT. § 706.08 and/or § 706.09 depends upon whether they have notice of the adverse interest. Section 706.09(1) provides that "[a] purchaser for a valuable consideration, without notice as defined in sub. (2) . . . shall take" priority over an adverse claim. "To be entitled to the benefits of [§ 706.09], a purchaser must not have notice of the adverse claim. . . ." Schapiro v. Security Savings and Loan Assoc., 149 Wis. 2d 176, 186, 441 N.W.2d 241 (Ct.App.1989). Though § 706.08 does not use the word "notice," the requirement that a bona fide purchaser lack notice of an adverse claim to extinguish that claim has long been understood to be a part of the statute. "A purchaser or mortgagee takes its interest in good faith [under § 706.08] if it is `without notice, constructive or actual, of a prior conveyance.'" Brown, 258 Wis. 2d 915, ¶ 11, 656 N.W.2d 56 (quoting Kordecki v. Rizzo, 106 Wis. 2d 713, 719-720, 317 N.W.2d 479 (1982)).
¶ 25 In Ameriquest's view, notice under WIS. STAT. §§ 706.08 and 706.09 is not tied to the time of purchase; the purchaser is entitled to the protection of the statutes even if the purchase preceded in time the purchase upon which the adverse claim is based. It argues:
[I]t is undisputed that the Ameriquest mortgage was obtained for value many months before the claimed appointment of the FDIC as a receiver. Accordingly, *954 Ameriquest could not possibly have had notice of the claimed appointment of the receiver prior to obtaining its mortgage interest because the alleged appointment had not yet occurred.
¶ 26 Ameriquest's view turns the statutes upside down. A purpose of WIS. STAT. §§ 706.08 and 706.09 is not to establish additional recording requirements that may be used to defeat a subsequent party's interest in property irrespective of when the adverse claim came into existence or when the prospective buyer's interest arises. The texts of both statutes evidence an intent to protect a purchaser or mortgagee only from adverse claims that arose prior to the time when the purchaser's interest arises. Section 706.09(2), which defines notice as used in § 706.09(1), could not be more plain: "A purchaser has notice of a prior outstanding claim or interest . . . at the time such purchaser's interest arises in law or equity. . . ."
¶ 27 Similarly, WIS. STAT. § 706.08(1) provides that conveyances not recorded as provided by law are void not against any purchaser irrespective of time of purchase, but "as against any subsequent purchaser." (Emphasis added.) Section 706.08(1) disfavors holders of interests who "mislead" others by failing to record their interest, and gives priority to those who "rely on the record and purchase in good faith." Kordecki, 106 Wis.2d at 718, 317 N.W.2d 479. Implicit is the understanding that the subsequent purchaser is deserving of priority because it checked the record and was misled at that moment in time by the prior interest holder's failure to properly record its interest. "The theory is that if the fact of ownership is concealed the person concealing ownership cannot assert ownership to the detriment of one who acts in reliance upon silence." Barkdoll, 99 Wis.2d at 167 n. 3, 298 N.W.2d 539 (citation omitted).
¶ 28 We acknowledge that certain language in Zimmer could be read to support Ameriquest's position.[11] However, Zimmer is readily distinguishable, and may have been overruled by statute, if the facts asserted by Bank of New Glarus prove to be correct. Bank of New Glarus is not situated as the plaintiffs were in Zimmer. There, Zimmer's "recorded deed had no apparent connection with or derivation from the [original owner's] title in other words, it was a mere fugitive deed." Zimmer, 237 Wis. at 273, 296 N.W. 589. In this case, Bank of New Glarus's assignment of mortgage has a direct connection to the parties' common grantor, the Swartwoods. The document states that it "assigns to the Bank of New Glarus a Mortgage executed by Allen Swartweood [sic] and Kathy Swartwood to Lender and recorded in the office of the Register of Deeds of Iowa County, Wisconsin, as Document No. 261024 in Vol. 662 Page 477." The document also states: "This assignment is made . . . by the F.D.I.C. in its corporate capacity or as receiver. Reference power of attorney recorded in the Iowa County Register of Deeds on September 4, 2003, as document # 266818."
¶ 29 Moreover, while the Zimmers did not discover the existence of an adverse claim until they found that Sundell had paid the taxes on the property, Ameriquest *955 has not contended (nor could it) that FDIC was never appointed as a receiver, only that its appointment was not recorded in the register of deeds.
¶ 30 Because Ameriquest's argument that its claim is superior to that of Bank of New Glarus is based on a misreading of WIS. STAT. §§ 706.08 and 706.09, we conclude that it is not entitled to summary judgment on the issue of priority.
II. Notice of Ameriquest's Mortgage
¶ 31 Ameriquest contends that, even if it is not entitled to priority based on the recording statutes, it is entitled to summary judgment on the issue of priority because First National had notice of the Ameriquest mortgage before the RESA was executed in March 2003. Ameriquest points to the affidavit of Clarence Swartwood averring that he told First National President Mark Hardyman about the existence of the Ameriquest mortgage before signing the RESA, and that "it was understood and agreed that [the RESA] would be subordinate to the Ameriquest mortgage."[12] Ameriquest does not assert that Bank of New Glarus had actual knowledge of the Ameriquest mortgage; rather, it asks us to adopt a new rule that an assignee is bound by the knowledge of an assignor concerning prior encumbrances. Ameriquest thus argues that, because First National's knowledge of the prior mortgage should be imputed to Bank of New Glarus, the bank was not a purchaser in good faith under WIS. STAT. § 706.08(1)(a) and cannot claim priority.
¶ 32 Ameriquest cites one case for its proposed rule, Moore v. Lium, 80 N.W.2d 657 (N.D.1957). We conclude Moore is distinguishable on its facts, and, moreover, is incompatible with Wisconsin statutes.
¶ 33 In Moore, the plaintiffs made a loan to the Liums secured by a chattel mortgage on highway construction equipment owned by the Liums. Id. at 658. When the Liums ran into financial troubles and defaulted on a construction contract, local authorities took the encumbered highway equipment and sold it at an execution sale to Northwestern Equipment Company of Minot (Minot Company). Id. at 658-59. Coincidentally, Minot Company possessed its own claims against the Liums, an open account and a promissory note which it acquired from Northwestern Equipment of Fargo (Fargo Company). Id. at 660-61.
¶ 34 The Moore court noted that the rule of caveat emptor[13] applies to execution sales, then held that "it follows that the title acquired by [Minot Company] could not cut off prior valid claims or other encumbrances in force at the time of the execution sale." Id. at 660. It then rejected Minot Company's claim that it was a *956 purchaser in good faith because it lacked knowledge of the Liums' indebtedness and mortgages against them. Id. at 661-64. The court deferred to the finding of the trial court that Fargo Equipment had actual knowledge of the Liums' mortgages before it extended them credit, and concluded, without discussion or citation to authority, that "[i]t must follow also that the Northwestern Equipment Company of Minot as assignee of the Fargo Company acquired only the rights of its assignor." Id. at 664.
¶ 35 Unlike the present case, Moore arose in the context of an execution sale, and thus the party asserting good-faith purchaser status was subject to the doctrine of caveat emptor. Moreover, Moore did not concern an assignment of mortgage but an unsecured promissory note and an unsecured open account, neither of which is required to be recorded in the public records.
¶ 36 More importantly, Ameriquest's proposed rule is contrary to what constitutes notice of a prior claim under Wisconsin statutes and common law. No Wisconsin authority provides that notice of a prior claim is imputed to an assignee when the assignee lacks actual knowledge of the claim. WISCONSIN STAT. §§ 706.08 and 706.09, discussed earlier, establish under what conditions a purchaser or mortgagee has notice of a prior claim.
¶ 37 WISCONSIN STAT. § 706.09(2)(a) addresses situations when a purchaser is deemed to have notice of a prior claim "apart from the record." It provides that such notice may be "actual or constructive," then states that constructive notice may arise from use or occupancy of real estate. No other types of constructive notice are detailed. We described the policy behind § 706.09 "as a compromise between complete merchantability and the stringent protection of hidden land interests. Clearly, a stringent protection of hidden interests is unduly restrictive of land transfers, yet the complete removal of protection of legitimate interests would be intolerable." Badger State Agri-Credit & Realty, Inc. v. Lubahn, 122 Wis. 2d 718, 728-29, 365 N.W.2d 616 (Ct.App.1985) (citation omitted).
¶ 38 Ameriquest does not dispute that the record of title did not provide Bank of New Glarus notice of its mortgage; it cannot because it did not record its mortgage in the proper county until several months after Bank of New Glarus acquired the RESA and notes from First National. Nor has it alleged on appeal that Bank of New Glarus had actual notice of the Ameriquest mortgage. Therefore, Ameriquest has no basis on which to assert that Bank of New Glarus was not a good-faith purchaser because it had notice of the Ameriquest mortgage. Accordingly, we conclude that the circuit court properly granted summary judgment in favor of Bank of New Glarus insofar as the circuit court concluded that Bank of New Glarus's RESA had priority over the Ameriquest mortgage.
III. Fraud and Lack of Consideration Defenses
¶ 39 Ameriquest next contends that the submissions provide factual bases for claims that would defeat or lessen the amount of Bank of New Glarus's promissory notes and mortgage. First, Ameriquest asserts that whether First National fraudulently obtained two of the promissory notes held by Bank of New Glarus is an issue of fact. Second, Ameriquest contends that an issue of fact exists regarding the amount owed to Bank of New Glarus.[14]
*957 A. Ameriquest Did Not Waive Defenses of Fraud and Failure of Consideration
¶ 40 Bank of New Glarus contends that Ameriquest's claims of fraud and failure of consideration are affirmative defenses that were waived because Ameriquest failed to raise them in its answer, citing WIS. STAT. § 802.02(3).[15] Ameriquest responds that if to raise these defenses it needed to request that its answer be amended, it did so in its second brief to the trial court on the motions for summary judgment. Ameriquest there asserted:
[I]t should be stated that Ameriquest did not have any opportunity to know of the circumstances surrounding the Real Estate Security Agreement and promissory notes in question until after an Answer was served. If the court feels it is necessary to have the Answer formally amended in regard to [these arguments], it would be requested that the Defendant Ameriquest be allowed to make such an amendment. Section 802.09 Wis. Stats., states that amendments should be liberally granted. . . . In this case no trial has been scheduled and no request is being made for summary judgment based on [these arguments]. Those arguments are being presented simply to create a fact issue in response to the Plaintiff's Motion for Summary Judgment and Default Judgment. The Plaintiff is thereby not harmed by an amendment.
(Citation omitted.) Ameriquest argues that the trial court implicitly granted this request to amend its answer by making rulings concerning the defenses of fraud and lack of consideration. It also asserts that Bank of New Glarus would not suffer any prejudice by Ameriquest being allowed to raise these defenses.
¶ 41 We agree with Bank of New Glarus that the claims asserted by Ameriquest must be pleaded as affirmative defenses. It is true that Ameriquest failed to make a motion to the trial court asking to amend its answer. However, we conclude that the request to amend that was included as a part of Ameriquest's summary judgment brief is sufficient to entitle Ameriquest to a decision on its request to amend its answer. Therefore, the trial court will consider this motion on remand. If the trial court grants Ameriquest's motion, it will necessarily have to consider Ameriquest's two defenses. While we express no opinion as to whether Ameriquest's motion should be granted, for reasons of judicial efficiency, we will address those defenses. Both involve only questions of law.
*958 B. Ameriquest's Defense of Fraud is Estopped by the D'Oench Doctrine
¶ 42 Subsection (e) of 12 U.S.C. § 1823 (2000) "provides . . . that unwritten agreements between a federally insured financial institution and its borrowers or other obligors are not enforceable against the federal banking authorities when as receivers or otherwise they step into the financial institution's shoes."[16]Resolution Trust Corp. v. Ehrenhaus, 34 F.3d 441, 442 (7th Cir.1994).[17] This statute codifies D'Oench, Duhme and Co., Inc. v. FDIC, 315 U.S. 447, 62 S. Ct. 676, 86 L. Ed. 956 (1942) (the D'Oench doctrine), which estops borrowers from asserting defenses against FDIC and other federal banking authorities based on agreements that are not contained in a bank's records. See FDIC v. McClanahan, 795 F.2d 512, 515 (5th Cir.1986). One purpose of the doctrine is to ensure the reliability of a bank's records for FDIC and other banking authorities to determine the worth of a bank's assets. Langley v. FDIC, 484 U.S. 86, 91, 108 S. Ct. 396, 98 L. Ed. 2d 340 (1987) (FDIC is often called on to make quick evaluations, such as whether to finance purchase of assets of a failed bank by another bank, and such evaluations would be unreliable "if bank records contained seemingly unqualified notes that are in fact subject to undisclosed conditions"). Id. at 91-92, 108 S. Ct. 396. Another is to prevent fraud against federal banking authorities. D'Oench, 315 U.S. at 460, 62 S. Ct. 676 (doctrine bars defense against FDIC when borrower "len[ds] himself to a scheme or arrangement whereby the banking authority on which respondent relied in insuring the bank was or was likely to be misled").
¶ 43 In Langley, the U.S. Supreme Court determined that the D'Oench doctrine does not preclude defenses against such institutions that are based on "fraud in the factum," i.e., "the sort of fraud that procures a party's signature to an instrument without knowledge of its true nature or contents." Langley, 484 U.S. at 93-94, 108 S. Ct. 396. In establishing this exception, the Langley court relied in part on the U.C.C. section concerning the rights of a holder in due course. Id. (citing U.C.C. § 3-305(2)(c), Comment 7, 2 U.L.A. 241 (1977)). The court explained that the rationale for the fraud in the factum exception is that such fraud "render[s] the instrument entirely void, thus leaving no right, title or interest that could be diminished or defeated." Id. (citations omitted).
¶ 44 Ameriquest contends that its submissions support a defense against Bank of New Glarus's promissory notes that is based on the fraud in the factum exception to the D'Oench doctrine. Ameriquest asserts that the Swartwood affidavit shows that First National President Hardyman procured the Swartwoods' signatures to the promissory notes without the Swartwoods' knowledge of the notes' contents when Hardyman gave the Swartwoods the promissory notes to sign with the loan amounts left blank. The Swartwood affidavit states that as a result of signing these documents approximately $18,000 was deposited in their account; that neither he nor his wife signed any document stating that they agreed to pay the *959 amounts of $43,211.84 and $51,120.76; nor did they receive any portion of these amounts.
¶ 45 Bank of New Glarus responds that the facts asserted in the Swartwood affidavit do not meet the fraud in the factum exception to the D'Oench doctrine. Our review of cases applying D'Oench to facts similar to those of the present case (i.e., those in which a borrower asserted a defense based on the signing of blank loan documents against a federal banking authority acting as a receiver) shows that such a circumstance does not constitute fraud in the factum. See, e.g., FDIC v. Caporale, 931 F.2d 1, 2 (1st Cir.1991); McClanahan, 795 F.2d at 516-17; FDIC v. Investors Assoc. X, Ltd., 775 F.2d 152, 155-56 (6th Cir.1985); FDIC v. Wright, 942 F.2d 1089, 1098 (7th Cir.1991).
¶ 46 In McClanahan, the defendant was convinced by the owner of a bank to sign a blank note with the understanding that the exact terms would be filled in later. McClanahan, 795 F.2d at 513-14. The bank owner then told McClanahan that his loan application had been turned down, and filled out the blank note for $62,500, taking the money for himself. Id. at 514. When the bank became insolvent, FDIC sued McClanahan to recover on the $62,500 note. Id. McClanahan raised the defense of fraud against FDIC, alleging that the bank owner had fraudulently induced him to sign the blank note. Id. The Fifth Circuit held that this defense was estopped by D'Oench because, by signing a blank note, "McClanahan lent himself to a scheme or arrangement whereby the appropriate banking authority was or was likely to be misled" and that he could "not now escape the obligations that appear on the face of the note that he signed." Id. at 517 (citation omitted).
¶ 47 Likewise, in Caporale the defendants contended they signed blank promissory notes that the bank later filled in without their authorization. Caporale, 931 F.2d at 2. When the bank later failed, FDIC as receiver sought to recover from the defendants. Id. The Caporale court estopped the defendants from asserting that the bank procured the notes by fraud. Id. The court concluded that "under D'Oench, [the defendants] may not rely on a condition that was not reflected in the bank's official records, even if their reliance was in good faith and there was no intent to defraud." Id.
¶ 48 Here, it is undisputed that the Swartwoods signed loan documents on which the amount was left blank. Under McClanahan and Caporale, this action is sufficient to estop a defense of fraud. In this case, the loan documents also included a warning printed in bold placed just below the signature line: "Do not sign this if it contains any blank spaces." We conclude that Ameriquest's defense of fraud against Bank of New Glarus is precluded by the D'Oench doctrine.
C. Ameriquest's Failure of Consideration Defense Is Not Barred by D'Oench
¶ 49 Ameriquest contends that an issue of fact exists concerning the amount of debt allegedly owed to Bank of New Glarus on the notes secured by the RESA. Ameriquest notes that the Swartwood affidavit avers that the Swartwoods received no money referenced by two of the promissory notes, and had used only $10,000 of the $18,000 placed in their checking account on the third note before First National was closed.
¶ 50 Bank of New Glarus contends that whether the amounts indicated on the notes were disbursed is immaterial because Ameriquest's failure of consideration defense is barred by D'Oench. It notes that non-disbursement has not been *960 adopted by the U.S. Supreme Court or the Seventh Circuit Court of Appeals as an exception to the D'Oench doctrine. However, it does not cite any case that has expressly rejected a non-disbursement exception to D'Oench.
¶ 51 Ameriquest contends that a non-disbursement defense is not subject to the limitations imposed by 12 U.S.C. § 1823(e) or D'Oench, citing FDIC v. O'Flahaven, 857 F. Supp. 154 (D.N.H.1994). There, the court examined § 1823(e), concluding that it "bar[red] only use of `agreements' to deflect liability for an asset," and thus a non-disbursement defense was not statutorily barred. O'Flahaven, 857 F.Supp. at 162. The O'Flahaven court then considered the purposes of the D'Oench doctrine and held as follows:
Remembering that the focus of D'Oench, Duhme is on the ability of banking regulators to determine the value of assets and liabilities, it should be clear that a "failure of consideration" defense of the type presented here would not be barred by either D'Oench, Duhme or § 1823(e). In this case, whether the loan was in fact disbursed should be contained in the records of the bank. If the loan was disbursed, the failure of consideration defense is without merit. If the loan was not disbursed, there is no obligation under the loan contract for the FDIC to sue upon.
Id. It continued:
Discharge of the loan's obligations to repay based on the absence of any disbursal does not require proof of a separate or secret "side agreement." Rather, the non-disbursement of the loan proceeds requires proof of nothing more than an historical fact one that should be plainly evident in the bank's official records.
. . . .
Further, to read D'Oench, Duhme as precluding proof that the loan was in fact paid or that funds were never in fact disbursed would unjustly enrich the FDIC and the failed bank's assets. Indeed, the FDIC makes no attempt to explain how its interpretation of D'Oench, Duhme would not preclude the FDIC from seeking to enforce a note perennially, each time asserting that D'Oench, Duhme precluded evidence of all prior payments. D'Oench, Duhme was intended to protect the FDIC and allow it to collect debts owed to failed lending institutions. If the loan was in fact paid or the funds never disbursed, no debt remains owing to the failed bank and thus, there is nothing for the FDIC to collect. This defense is not barred by either D'Oench, Duhme or § 1823(e).
Id. at 162-63.
¶ 52 The O'Flahaven court's analysis of the D'Oench doctrine is persuasive. We adopt its conclusion that neither D'Oench nor 12 U.S.C. § 1823(e) bars a failure of consideration defense based on non-disbursement of funds. Further, we agree with Ameriquest that the Swartwood affidavit raises an issue of fact as to whether the amounts referenced in the three promissory notes were disbursed.[18]*961 We therefore conclude that the trial court improperly decided on summary judgment the amount owed to Bank of New Glarus. We remand for a trial to determine the amount properly owed to Bank of New Glarus, unless the evidence at trial shows that Bank of New Glarus is entitled to holder-in-due-course status, the issue to which we now turn.
IV. Holder in Due Course
¶ 53 Finally, Bank of New Glarus contends it is a holder in due course under WIS. STAT. § 403.302.[19] As a holder in due course of the Swartwood loan documents, Bank of New Glarus would be insulated from nearly all claims that would defeat the terms of the documents, see United Catholic Parish Schs. of Beaver Dam Educ. Ass'n v. Card Servs. Ctr., 2001 WI App 229, ¶ 9, 248 Wis. 2d 463, 636 N.W.2d 206, including Ameriquest's failure of consideration defense.
¶ 54 A holder-in-due-course defense is usually asserted to defeat the claim of an otherwise innocent party. Id., ¶ 11. Thus, WIS. STAT. § 403.302 establishes strict requirements to determine holder-in-due-course status: The holder "must take the instrument (1) for value; (2) in good faith; and (3) without notice that it is overdue or has been dishonored or that there is any defense or claim to it on the part of any person." Id. (citation omitted).
¶ 55 Ameriquest contends that Bank of New Glarus cannot meet the third factor of this test because it is undisputed that the Swartwoods' promissory notes were overdue on July 23, 2003, the date Bank of New Glarus acquired the notes from FDIC. An affidavit of Bank of New Glarus Vice President James Schaller states:
Swartwoods have failed to comply with the terms and conditions of the First Note, the Second Note, the Third Note, the RESA, and the Chattel Security Agreements by failing and neglecting to make any monthly payments thereon since the March 24, 2003 date of the First Note, Second Note, and Third Note.
Bank of New Glarus asserts that there is nothing in the record to suggest that it had notice that the notes were overdue when it purchased them with the 106 other loans it purchased on that day.
¶ 56 Ameriquest replies that Bank of New Glarus, not Ameriquest, has raised the defense of holder-in-due-course status and thus Bank of New Glarus has the burden to prove facts showing that it is *962 entitled to that designation. Ameriquest asserts that Bank of New Glarus needed to prove that it was without notice of the overdue status at that time to claim that it was a holder in due course. Ameriquest argues that because Bank of New Glarus's submissions fail to offer such proof, the only reasonable inference that can be made from Schaller's affidavit is that the information about the overdue notes was available to Bank of New Glarus at the time of the purchase.
¶ 57 We agree with Ameriquest that Bank of New Glarus bears the burden of proving that it is entitled to holder-in-due-course status. However, in Kane v. Kroll, 196 Wis. 2d 389, 395, 538 N.W.2d 605 (Ct.App.1995), we said this burden was "slight" because "the requirement that a holder show that it did not have knowledge of a defense or claim to the instrument involves proof of a negative fact." That said, our review of Bank of New Glarus's affidavits and other materials shows that it has failed to meet this de minimis burden. Neither Schaller's affidavit nor the affidavit of Bank of New Glarus President Warren Laube states that the bank lacked notice that the Swartwood notes were overdue.
¶ 58 However, the result is not as Ameriquest asserts. All that the parties' submissions show is that we cannot determine on summary judgment whether Bank of New Glarus is or is not a holder in due course. A conclusion on that issue necessarily requires a trial. See WIS. STAT. § 802.08(2). There, the trial court can find the facts necessary to determine whether Bank of New Glarus is entitled to holder-in-due-course status.
Judgments affirmed in part; reversed in part and cause remanded with directions.
NOTES
[1] By agreement between the parties, Ameriquest took title to the Swartwood property in July 2005. In January 2006, Bank of New Glarus and Ameriquest informed us that they had reached an agreement that the property had been sold, and the proceeds paid into an account that will be disbursed in a manner consistent with the adjudication of the disputed issues in this case. Ameriquest has withdrawn its request to set aside the foreclosure proceeding and subsequent conveyance.
[2] D'Oench, Duhme & Co., Inc. v. FDIC, 315 U.S. 447, 62 S. Ct. 676, 86 L. Ed. 956 (1942). Some cases refer to the doctrine as the D'Oench, Duhme doctrine.
[3] In August 2004, the Swartwoods filed a petition in bankruptcy. Thus, if they received a discharge, and their obligations were not contested in the bankruptcy court, the question as to the amount of their notes is moot as to them, but not as to Ameriquest and Bank of New Glarus.
[4] The Swartwood affidavit states that in June 2001, the Swartwoods had agreed to borrow money from Hardyman for another purpose, and that Hardyman gave them blank loan forms to sign at that time as well.
[5] Findings of fact in a summary judgment order are always worrisome because summary judgment may only be granted where there are no disputed issues of material fact. See WIS. STAT. § 802.08(2). Nonetheless, because we review summary judgments de novo, Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987), the potential for a reversal is diminished. Still, we discourage this practice because it increases the possibility of a finding as to a disputed fact, leading to an erroneous conclusion.
[6] See ¶ 11 n. 5, supra.
[7] See ¶ 11 n. 5, supra.
[8] WISCONSIN STAT. § 706.08 provides in part:
Non-recording, effect. (1)(a) . . . [E]very conveyance that is not recorded as provided by law shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate or any portion of the same real estate whose conveyance is recorded first.
. . . .
(2) Where a public tract index or abstract of title index is maintained, an instrument properly indexed therein and recorded at length at the place there shown shall be deemed to be duly recorded for purposes of this section, despite any error or omission in the process of including the instrument, or prior instruments in the same chain of title, in other records.
This section and WIS. STAT. § 706.09(1), see ¶ 16 n. 9, infra, refer to "purchasers" of real estate, but have been consistently applied to other interest holders as well, such as mortgagees. See, e.g., Associates Fin. Servs. Co. of Wisconsin, Inc. v. Brown, 2002 WI App 300, ¶ 11, 258 Wis. 2d 915, 656 N.W.2d 56 ("A purchaser or mortgagee takes its interest in good faith if it is without notice, constructive or actual, of a prior conveyance.") (citation omitted). For the sake of convenience, we will refer to "purchasers" when discussing these statutes, even though neither Ameriquest nor Bank of New Glarus was a "purchaser" of real estate here.
[9] WISCONSIN STAT. § 706.09 provides in part:
(1) WHEN CONVEYANCE IS FREE OF PRIOR ADVERSE CLAIM. A purchaser for a valuable consideration, without notice as defined in sub. (2), and the purchaser's successors in interest, shall take and hold the estate or interest purported to be conveyed to such purchaser free of any claim adverse to or inconsistent with such estate or interest, if such adverse claim is dependent for its validity or priority upon:
. . . .
(b) Conveyance outside chain of title not identified by definite reference. Any conveyance, transaction or event not appearing of record in the chain of title to the real estate affected, unless such conveyance, transaction or event is identified by definite reference in an instrument of record in such chain. No reference shall be definite which fails to specify, by direct reference to a particular place in the public land record, or, by positive statement, the nature and scope of the prior outstanding interest created or affected by such conveyance, transaction or event, the identity of the original or subsequent owner or holder of such interest, the real estate affected, and the approximate date of such conveyance, transaction or event.
. . . .
(2) NOTICE OF PRIOR CLAIM. A purchaser has notice of a prior outstanding claim or interest, within the meaning of this section . . . at the time such purchaser's interest arises in law or equity[.]
[10] Ameriquest did not cite Zimmer v. Sundell, 237 Wis. 270, 296 N.W. 589 (1941), to the circuit court. Ordinarily, we would not respond to an issue not raised in the circuit court. But Ameriquest argued the issues raised in Zimmer to the circuit court. Bank of New Glarus responded to Ameriquest's arguments, but it, too, did not cite Zimmer. Because both parties argued the issues of Zimmer below, it would be unfair to prevent them from arguing from Zimmer now.
[11] At least one authority has challenged the rationale behind Zimmer. Citing the Wisconsin case, the commentator notes that
some cases hold that one whose grantor's deed is unrecorded cannot be a [bona fide purchaser]. These decisions are not strictly logical, and it is very hard to justify them in terms of constructive or inquiry notice, for the facts mentioned give no clue as to whom an inquiry should be made.
3 BAXTER DUNAWAY, LAW OF DISTRESSED REAL ESTATE § 40:14 (2006).
[12] The trial court improperly made a credibility determination on the motion for summary judgment regarding this statement in the Swartwood affidavit, stating: "Ameriquest has alleged that Swartwoods gave First National Bank of Blanchardville oral notice of the existence of a mortgage to Ameriquest at the time of First National Bank of Blanchardville's RESA; but the Court finds that there is no credible basis to support Ameriquest's claim in this regard." Whether the averments contained in Swartwood's affidavit were "credible" was not for the trial court to decide on a motion for summary judgment. See Nelson v. Albrechtson, 93 Wis. 2d 552, 556, 287 N.W.2d 811 (1980) ("The summary-judgment procedure is not a trial on affidavits.") (citation omitted). However, the trial court's error has no bearing on the outcome here because we have concluded that any knowledge First National may have had of the prior mortgage cannot be imputed to Bank of New Glarus and thus would not jeopardize Bank of New Glarus's good-faith purchaser status.
[13] "Caveat emptor" translates to "let the buyer beware," and as a doctrine holds that "purchasers buy at their own risk." BLACK'S LAW DICTIONARY 236 (8th ed. 2004).
[14] Bank of New Glarus contends that, because Ameriquest was not a party to the Swartwood First National transactions, it lacks standing to assert defenses arising from these transactions. We disagree. A party has standing when it has a "legally protectible interest" in a controversy. See City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 228, 332 N.W.2d 782 (1983). "[A] mortgage-foreclosure action is a quasi proceeding in rem. [which] affect[s] not only the title to the res, but likewise, rights in and to it possessed by individuals." Syver v. Hahn, 6 Wis. 2d 154, 160, 94 N.W.2d 161 (1959). Here, Ameriquest is not contesting Bank of New Glarus's default judgment on behalf of the Swartwoods. However, its interest in the Swartwood property is obviously affected by Bank of New Glarus's motion for default judgment; whatever Bank of New Glarus may recover on its notes secured by its RESA lessens the amount Ameriquest may recover on its note. Because Bank of New Glarus's foreclosure action against the Swartwoods is adverse to Ameriquest's interest in the Swartwood property, we conclude that it has standing to assert defenses related to the Swartwood First National transactions.
[15] WISCONSIN STAT. § 802.02(3) provides that "[i]n pleading to a preceding pleading, a party shall set forth affirmatively any matter constituting an avoidance or affirmative defense including but not limited to the following: . . . failure or want of consideration, . . . fraud, illegality. . . ."
[16] 12 U.S.C. § 1823(e) (2000) provides in part:
No agreement which tends to diminish or defeat the interest of the Corporation in any asset acquired by it under this section or section 1821 of this title, either as security for a loan or by purchase or as receiver of any insured depository institution, shall be valid against the Corporation unless such agreement
(A) is in writing. . . .
[17] The statute in effect in 1994 was identical to the current version.
[18] Regarding the $18,779.20 referenced in the third promissory note, which Swartwood states was placed in their account, the issue of fact raised by the Swartwood affidavit is how much of these funds were used by the Swartwoods. The Swartwood affidavit asserts that "[o]nly approximately $10,000 of the $18,000 loan was expended. When the bank closed, the checking account in which the loan had been deposited by the bank was also closed. Checks which were written off the account were returned unpaid." The parties' submissions lack necessary facts for us to conclude whether this assertion is correct or relevant, or to whom the $8,000 should be credited, if it should be. Accordingly, we conclude that the Bank of New Glarus has not prevailed on this issue on summary judgment and a trial is necessary to provide the facts from which the trial court can make its determinations as to the amount the Swartwoods owe the Bank. A trial is also necessary to determine whether the other two notes were without consideration.
[19] WISCONSIN STAT. § 403.302 provides, as relevant:
(1) . . . "holder in due course" means the holder of an instrument if all of the following apply:
(a) The instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity.
(b) The holder took the instrument:
1. For value;
2. In good faith;
3. Without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series;
4. Without notice that the instrument contains an unauthorized signature or has been altered;
5. Without notice of any claim to the instrument described in s. 403.306; and
6. Without notice that any party has a defense or claim in recoupment described in s. 403.305(1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920294/ | 447 N.W.2d 397 (1989)
William E. GRAHAM and Velda Irene Graham, Appellees,
v.
John BAKER, Betty Brown, Iowa Farmer/Creditor Mediation Service, Inc., Defendants,
Allen E. Henry and Cindy J. Henry, Appellants, and
Thomas J. Miller, Attorney General of Iowa, Intervenor.
No. 88-1087.
Supreme Court of Iowa.
October 18, 1989.
*398 Jerrold Wanek of Garten & Wanek, Des Moines, for appellants.
Jeffrey G. Flagg, Des Moines, for appellees.
Considered by McGIVERIN, C.J., and HARRIS, SCHULTZ, NEUMAN, and SNELL, JJ.
SNELL, Justice.
In 1979, the Henrys purchased a parcel of agricultural land from the Grahams under a real estate contract requiring annual payments. During the course of the next several years, as commodity prices fell and the farm economy worsened, it became increasingly more difficult for the Henrys to make those annual payments. As a result, the parties agreed to some minor adjustments to the contract that allowed the Henrys to maintain their end of the bargain until December 1, 1987, when they were unable to make their annual payment.
The Grahams enlisted the services of attorney George Flagg, granting him a power of attorney in relation to the contract. On December 29, 1987 Flagg served the Henrys with notice of forfeiture. Iowa Code section 654A.6 (1987) requires a creditor to request mediation and obtain a mediation release before undertaking forfeiture proceedings. For this reason the notice of forfeiture was withdrawn and a mediation session eventually was held on February 19, 1988.
At that session, Flagg refused to cooperate with the mediator, denying the Henrys any opportunity to put forward their proposals for resolving the situation, and demanding that he be given a mediation release. It was clear that Flagg was hostile to the Henrys, the mediator, and the mediation process. He issued an ultimatum that the Henrys either sell the land within thirty days and remit the balance due on the contract to the Grahams or acquiesce in its forfeiture. As the meeting went on, Flagg became increasingly more agitated and belligerent, seizing upon statements made by the Henrys' attorney to accuse them of bad faith in failing to pay and continuing to demand that his client be given a mediation release.
Basing its decision on Flagg's behavior, the mediation service refused to issue the Grahams a release, granting instead an extra thirty days to attempt mediation. In spite of the fact that no release had been issued, Flagg filed and served a second notice of forfeiture on the Grahams' behalf shortly after the February 19 mediation session. The Henrys brought suit to enjoin the Grahams from continuing forfeiture proceedings, based upon the Grahams' failure to obtain a mediation release. The district court granted the Henrys an injunction, and the Grahams went to court seeking what they characterized as a writ of mandamus to force the mediation service to issue the release. After a hearing, the court ordered that a release be granted and the Henrys appealed.
The district court based its decision to grant the Grahams' request for a mediation release on two distinctly different procedural theories. In the first, the court relied upon our decision in Salsbury Laboratories v. Iowa Department of Environmental Quality, 276 N.W.2d 830, 835 (Iowa 1979), to recharacterize the Grahams' petition as an appeal for review of agency action pursuant to Iowa Code chapter 17A (1987). As an alternative theory for its decision, the court adopted the Grahams' characterization of their action as an application for writ of mandamus.
Which of these characterizations is correct is important because jurisdictional questions will have an impact upon our scope of review, and upon which provisions of the Code apply to the facts of the case. If this action is in fact a petition for judicial review of an agency decision, our review will be at law. See e.g., Iowa Bankers Ass'n v. Iowa Credit Union, 335 N.W.2d 439, 448 (Iowa 1983); Iowa Ind. Comm'r v. Davis, 286 N.W.2d 658, 660 (Iowa 1979); *399 Community Action Research Group v. Iowa State Commerce Comm'n, 275 N.W.2d 217, 218-19 (Iowa 1979). If the Grahams' suit was correctly filed as an application for writ of mandamus, invoking the original jurisdiction of the trial court, our review will be de novo. Osborn v. City of Cedar Rapids, 324 N.W.2d 471, 474 (Iowa 1982).
Chapter 654A of the Code sets up the "farm mediation service." It initially names the attorney general or the attorney general's designee to serve as a "farm crisis program coordinator." Iowa Code § 654A.2 (1987). It requires that the farm crisis program coordinator contract with a private nonprofit organization to provide the actual mediation services between farmer and creditor. Iowa Code § 654A.3 (1987). The question before us, then, is whether the private organization with which the attorney general contracted to provide this service properly may be characterized as a state agency for purposes of applying the judicial review provisions of Iowa Code section 17A.19 to its decisions.
The term "agency" is defined in the Iowa Administrative Procedures Act as:
[E]ach board, commission, department, officer or other administrative office or unit of the state. "Agency" does not mean the general assembly, the judicial department or any of its components, the office of consumer advocate, the governor or a political subdivision of the state or its offices and units.
Iowa Code § 17A.2(1) (1987).
It is clear that the attorney general or the attorney general's designee, when acting in his or her capacity as farm crisis coordinator, is a state agency for purposes of chapter 17A. The legislature made this explicit in mandating that the coordinator adopt rules for mediation in accordance with chapter 17A. Iowa Code § 654A.14 (1987). It is also a basic tenet of the Iowa Administrative Procedure Act that an agency that acts under the auspices of another agency is subject to chapter 17A. It would be incorrect, however, to assume that all private contractors who perform services authorized by statute under contract with a state agency are themselves state agencies. Thus, even though the private nonprofit organization that is contracted to perform the actual mediation is partially a "creature of the state," it does not necessarily follow that the mediation service is a state agency. In determining whether the service is an "administrative office or unit of the state," we must apply a functional test. See Benson v. Fort Dodge Police Pension Bd., 312 N.W.2d 548, 550 (Iowa 1981).
In Benson, we held that a local pension board was not a state agency, even though it was established by state law. 312 N.W.2d at 550. In making this determination, we considered several factors, including the scope of the putative agency's authority, how it was administered and controlled, the source of its funds, the derivation of its rules, and the selection of its members. Id. at 550. We must balance the fact that state law authorizes a state agency to contract with a private organization for farm debt mediation against these other factors in order to make our determination. Our application of the functional test outlined in Benson leads to the conclusion that the farm mediation service is not a state agency.
The scope of authority granted to the mediation service is minimal. The requirements placed upon creditors by chapter 654A are procedural, adding an additional step in the process required for forfeiture, and do not affect substantive rights. First Nat'l Bank in Lenox v. Heimke, 407 N.W.2d 344, 346 (Iowa 1987). The procedural requirements imposed by the statute mandate only that a creditor request mediation and participate therein. Iowa Code § 654A.6 (1987). The statute grants no coercive authority to the mediation service to impose a solution on the parties. It mandates, instead, that a release not be granted until the creditor has participated in at least one mediation meeting. Iowa Code § 654A.11(3) (1987).
Chapter 654A prescribes no particular type of administrative controls to be placed upon the mediation service. Its status as a private corporation, rather than chapter *400 17A, governs its administration. In fact, the corporate body that functions as the "farm mediation service" is created pursuant to Iowa Code chapter 504A, rather than chapter 654A. The mediation service derives its funds through a contract with the state, calling for an hourly rate for services performed, rather than via a direct legislative appropriation. Rulemaking authority is granted to the attorney general or the attorney general's designee, not to the mediation service. Iowa Code § 654A.14 (1987). Likewise, employees of the mediation service are not public employees, as the statute itself makes clear. Iowa Code § 654A.3 (1987).
Our next task is to determine whether an action for mandamus properly can be filed against the farm mediation service, a private corporation. Generally, mandamus may issue to compel a person, board, corporation, officer, or inferior court to perform a duty that arises by operation of law. 55 C.J.S. Mandamus § 1 (1948). Our mandamus statute provides that the writ may issue to compel an inferior tribunal, board, corporation, or person to act or not to act. Iowa Code § 661.1 (1987). In this case, the farm mediation service performs a duty which arises as a result of the operation of Iowa Code chapter 654A. We have held that where a duty is imposed by law upon a private corporation, a party seeking to enforce that duty may proceed by an action for mandamus. Middle States Utilities Co. v. City of Osceola, 231 Iowa 462, 1 N.W.2d 643, 645 (1942). In addition, the mediation service's duties, imposed by statute, are affected with a public interest. Where such a public interest is implicated by a corporation's failure to perform its statutorily mandated duty, a mandamus proceeding is proper. Johnson v. Interstate Power Co., 187 F. Supp. 36, 40-41 (D.S.D.1960). Hence, there is no procedural bar to the Graham's action for mandamus in this case.
The core of the Henrys' appeal presents us with the question of whether Flagg's behavior at the mediation proceeding constitutes "participation" as that term is intended by the statute. Iowa Code § 654A.11(3). Our review is de novo. Osborn, 324 N.W.2d at 474. Section 654A.11 provides for three types of mediation release. If the parties agree to a resolution of their difficulties short of forfeiture or foreclosure, they sign an agreement drafted by the mediator which becomes a binding contract and is characterized as a mediation release. Iowa Code § 654A.11(1)(2). If the borrower waives mediation or an agreement is not reached, the parties may sign a statement prepared by the mediator stating that there is no agreement. Iowa Code § 654A.11(3) (1987). If one of the parties refuses to sign the statement, the statute requires the mediator to sign it. The statement is characterized as a mediation release. The single requirement is that the creditor "participate" in one mediation session. Iowa Code § 654A.11(3) (1987).
The word "participate" means "to take part in something (as an enterprise or activity) usu[ally] in common with others." Webster's Third International Dictionary. Participation "means to take part in, to receive or have a part in an activity." Burrell v. Ford Motor Co., 386 Mich. 486, 192 N.W.2d 207, 211 (1971).
The word `participating' has no clear and unmistakable meaning. In its primary sense, it means simply a sharing or taking part with others but when it is applied to a particular situation, it takes on secondary implications that render it ambiguous. Under some circumstances it may denote a mere passive sharing while under other circumstances an implication of active engagement may accompany its use.
Fireman's Fund Indem. Co. v. Hudson Associates, Inc., 91 A.2d 454, 455, 97 N.H. 434 (1952). Given Flagg's attitude during the session, the mediator urged his supervisors not to issue a release, basing his recommendation upon standards for gauging participation formulated by the mediation service itself. His supervisors concurred and no release was issued. By so doing, however, the mediation service arrogated to itself a discretionary function not granted by the statute. In the first instance, the service's standards are in fact rules of *401 good conduct for the participants in mediation sessions. Nowhere in chapter 654A is the mediation service authorized to formulate or adopt such guidelines. Flagg attended the mediation session as required, and participated to the extent of stating that his position was not negotiable.
The statute does not give the mediation service the power to compel either creditor or debtor to negotiate. It merely attempts to set up conditions in which the parties might find a solution to their problems short of forfeiture or foreclosure. In this regard, the mediator's duties are to listen to both creditor and borrower, attempt to mediate the situation, advise the parties as to the existence of assistance programs, encourage adjustment or refinancing of the debt, and to advise, counsel, and assist the parties in agreeing as to future financial relations. Iowa Code § 654A.9 (1987). The choice of such words is a clear indication that the role of the mediation service is advisory only. In this case, the mediator did all that is contemplated by section 654A.9.
Flagg's behavior which ranged between acrimony and truculency precluded any beneficial result to the parties from the mediation process. It has cost his clients considerable time and expense. Nevertheless, his inappropriate behavior is not determinative. We find that Flagg's presence at the mediation meeting satisfied the minimal participation required by the statute.
The statute commands that the mediator shall sign the release if one of the parties refuses to attach his or her signature to it. Iowa Code § 654A.11(3) (1987). Given Flagg's participation, it was incumbent upon the mediator promptly to draw up the required document, to secure Flagg's signature, and to sign the document himself. In short, the mediator's duty in this instance was ministerialto sign and issue the releaseand allowed him no discretion to refuse. Thus, mandamus should be issued to compel the mediator to prepare the proper statement, affix his signature if the Henrys or the Grahams refuse to sign, and issue the release.
The Henrys' second ground for appeal is based upon Iowa Rule of Civil Procedure 29, which requires the compulsory joinder of certain counterclaims. The Henrys contend that Rule 29 required that the Grahams file their petition to compel the mediation service to issue a release as a counterclaim in the Henrys' action to enjoin forfeiture proceedings. This contention confuses counterclaim with third-party practice. A counterclaim, as contemplated by the Iowa Rules of Civil Procedure, is a claim which one of the parties in a suit may assert against an opposing party in the same suit. In the action the Henrys filed against the Grahams to enjoin the forfeiture proceeding, the Iowa Farmer/Creditor Mediation Service was not an "opposing party." The mediation service was not even a party to the Henrys' suit. The Grahams were under no obligation to file their claim against the mediation service in that suit. Iowa R.Civ.P. 29; see Heinz Plastic Mold Co. v. Continental Tool Corp., 114 Wis. 2d 54, 337 N.W.2d 189, 193 (Wis.App.1983) (interpreting Federal Rule of Civil Procedure 13(a), which is analogous to Iowa Rule of Civil Procedure 29).
Finally, the Henrys claim that circumstances surrounding issuance of the writ constitute a deprivation of property without due process under both the Iowa and United States Constitutions. They base their appeal on the following set of facts. On March 30, 1988, the Grahams filed their petition asking that the court grant them a writ of mandamus. Six days later, on April 5, the court entered an order setting hearing on the Grahams' petition for April 11, 1988, and additionally ordered that copies of its order, the original notice, and the Grahams' petition be served on the defendants at least five days before hearing.
The essence of the Henrys' argument is that the court erred in scheduling the hearing so quickly after filing of the Grahams' petition. The Henrys claim that the timelines established by the Iowa Rules of Civil Procedure with regard to filing and discovery should have been followed. This contention is based upon a reading of the Iowa Code, section 661.3 (1987), which provides that an action for mandamus be tried *402 as an equitable action. Section 611.13 further provides that the provisions of the Code with regard to prosecution of a civil action apply to equitable proceedings, "unless the contrary appears."
The Henrys argue that no specific provisions of chapter 661 exempt actions for mandamus from application of section 611.13. An action for mandamus is a summary and extraordinary proceeding. Reed v. Gaylord, 216 N.W.2d 327, 332 (Iowa 1974). A summary proceeding is one in which the established course of legal proceedings may be disregarded. Chapter 661 recognizes this principle. Section 661.10 requires that "as nearly as may be," proceedings in an action for mandamus shall be the same as those in an ordinary action. The words "as nearly as may be" indicate a clear understanding of the differences between mandamus and other actions. Mandamus is an action to compel one who, by law, owes a duty to perform that obligation. Mandamus proceedings can be used only to compel the performance of a ministerial act which must be performed on a given state of facts. Arrow Exp. Forwarding Co. v. Iowa State Commerce Comm'n, 256 Iowa 1088, 1091, 130 N.W.2d 451, 452 (1965).
The ministerial act here of signing the mediation release was due following the creditor's participation. The record shows that the Henrys do not dispute these facts. The Henrys were not prejudiced by the fact that they were not allowed time for discovery, since Flagg's behavior was irrelevant to the legal issue before the court in the mandamus action. The trial court did not err by not adhering rigidly to the Rules of Civil Procedure.
In this case, the Henrys were granted both notice and an opportunity to be heard. Roth v. Reagen, 422 N.W.2d 464, 466 (Iowa 1988). The district court had jurisdiction over the matter and the hearing granted the Henrys was held at a meaningful time and in a meaningful manner. The Henrys' rights to due process were not violated by the district court's handling of the matter.
The judgment of the district court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920300/ | 369 A.2d 1371 (1977)
STATE of Vermont
v.
Daniel MOQUIN.
No. 178-75.
Supreme Court of Vermont.
February 1, 1977.
Francis X. Murray, Chittenden County State's Atty., and Michael Goldsmith, Deputy State's Atty., Burlington, for plaintiff.
James L. Morse, Defender General, and Charles S. Martin, Appellate Defender, Montpelier, for defendant.
*1372 Before BARNEY, C. J., DALEY, LARROW and BILLINGS, JJ., and SMITH, J. (Ret.), Specially Assigned.
PER CURIAM.
This is a case like that discussed in State v. Kozikowski, 369 A.2d 1369, and State v. Lawrence, 369 A.2d 1368, also decided at this term of Court. It involves the failure to provide a transcript for a year and a half after the timely filing of a notice of appeal and a request for a transcript. The defendant has moved to vacate the conviction.
This defendant was convicted of attempted rape on June 2, 1975, and sentenced to three to ten years. This sentence was to run concurrently with a zero to three-year sentence imposed on December 21, 1973, for breaking and entering and with a ninety-day to one-year sentence for simple assault effective February 2, 1975. The sentences on these previous convictions have now been served, leaving only the attempted rape sentence on a conviction not yet given appellate review. The transcript has now been filed.
On December 21, 1976, the defendant filed a motion to be released on bail pending the hearing of his appeal, which was heard on December 23, 1976, and denied. The prospect of a renewed application for bail remains deliberately available.
Although the defendant is in execution and not entitled to bail as a constitutional right, State v. Woodmansee, 132 Vt. 558, 326 A.2d 172 (1974); State v. Lawrence, 133 Vt. 330, 331, 340 A.2d 67 (1975), valid concern for his right to appellate review requires that such review not be inordinately delayed. In the event of eventual discharge, all time served entirely under the improper conviction is an unsupported penalty, and, perhaps more to the point, delay of appellate review beyond the minimum appropriate incarceration, including "good time," is an additional penalty. When such a situation seems imminent, freedom under bond may appear to be the most appropriate device to prevent an unfair penalty, if the appeal cannot be sufficiently expedited. Concern must be had, of course, to assure that the defendant had no responsibility for the delay.
As was noted in the cases of State v. Lawrence, supra, 369 A.2d 1368 and State v. Kozikowski, supra, 369 A.2d 1369, there is a responsibility on this Court to see to the provision of the required transcript. The provision of transcripts is a function of the appellate process. To insure its proper operation, it will be necessary to require that requests for transcribed testimony be put in an order of priority. The rights of an imprisoned person, not free on bail, whose care has had no review, call for early transcription.
The system has been extraordinarily burdened in the last few years for many reasons. The number of cases tried and appealed, civil and criminal, has increased dramatically. The use of court reporters in arraignments, inquests, depositions and other non-trial areas has expanded. The requests for transcripts of full trial proceedings has been permitted without challenge to the necessity for such complete transcriptions. Necessarily, narrowing the right to a transcript can only be undertaken in the presence of the broadest recognition of the defendant's challenges on appeal.
Nevertheless, much can be accomplished, and must be accomplished in order to prevent jeopardy to innocent defendants. V. R.A.P. 10(b), (c), and (d) provide for alternatives to a full or transcribed record. This Court will look carefully at the issues raised and their relation to the transcript. If there is no issue as to, for example, the voir dire, so much of the transcript as pertains to that is a waste and a burden to the system.
The function of appellate or post conviction review is not one of searching a record to find grounds to argue to this *1373 Court. It is to review the proceedings in the light of claims of error made at the trial in some form. Even those instances of so-called "clear error" generally are identifiable without requiring the reproduction of an entire trial record.
The fact that a different attorney conducts the appeal, and is not familiar with the original proceedings, as contended by the Office of Public Defender in representing this defendant, is an administrative choice of the defending office or agency, and cannot be used to enlarge the right to a full transcript. Admittedly, such a procedure may improve appellate representation, but it cannot justify handicapping the appellate function.
Prejudice is the concern here. Discharge from imprisonment is neither the only nor the preferred alternative. Unless the alternatives do not satisfy the requirement of no prejudice, they must be resorted to by this Court first.
The motion to vacate the conviction is dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920320/ | 447 N.W.2d 454 (1989)
In the Matter of SENTRY INSURANCE PAYBACK PROGRAM FILING.
No. C4-89-837.
Court of Appeals of Minnesota.
November 7, 1989.
*455 Carl E. Norberg, St. Paul, for appellant Sentry Ins. Co.
Hubert H. Humphrey, III, Atty. Gen., Karyn M. (Kim) Greene, Sp. Asst. Atty. Gen., St. Paul, for respondent Minnesota Dept. of Commerce.
Heard, considered and decided by LANSING, P.J., and FOLEY and IRVINE[*], JJ.
OPINION
LANSING, Judge.
Sentry Insurance appeals the Commerce Commissioner's order disapproving its Payback endorsement after a hearing under the Administrative Procedure Act, Minn. Stat. § 14.01 et seq. Sentry contends the Commissioner's action is not supported by substantial evidence and is arbitrary and capricious. We conclude that the record as a whole contains substantial evidence that the endorsement is misleading and violates public policy and affirm the Commissioner's order.
FACTS
Sentry Insurance, a Wisconsin mutual company licensed in Minnesota, applied to the Department of Commerce for permission to offer a Payback endorsement to its standard automobile insurance policy. The endorsement has two independent features which are packaged together. They are not offered separately.
The first feature provides that if Sentry makes no payments on any claims filed by the insured for a period of five years, then at the end of five years, the insured will receive a payback payment equaling one-half of the first year's premium. In the following year, if there are still no claims, one-half of the second year's premium will be refunded. This rebate continues on an annual basis unless the insured files a claim on which Sentry makes any payment. If this occurs, the insured cannot receive a payback payment for five years. In addition, the insured cannot receive a payback payment if Sentry has established a reserve for a claim until the claim is resolved without payment.
The second feature provides that the insured will be excluded from collision coverage, except for lienholder's claims, if the insured's car is involved in an accident and the driver is "legally intoxicated." The exclusion is not limited to accidents in which the named insured is driving.
The Payback endorsement consists of one page and is reproduced below:
Sentry's Payback Program
The Payback Policy is for people who drive carefully and don't drive if they've had too much to drink. We ask you to sign this Endorsement so that we're certain you are aware of the consequences if you have an accident while legally intoxicated.
This Endorsement states that your collision coverage is excluded if the driver of your car is legally intoxicated.
Collision coverage pays for damages to the vehicle and its equipment when it hits or is hit by another car, another object or it rolls over.
Please note the collision coverage is excluded only if the driver is legally intoxicated.
All other coverages remain in effect. For cars that are financed or leased, the policy will always cover the lending institution's or lessor's interest in the car, even if the driver is intoxicated.
Payback Agreement
Because you have agreed not to drive while legally intoxicated, Sentry agrees to pay you at the end of each consecutive five-year period during which no claim or losses have been incurred under your Payback Policy one-half of the premium paid for the first year of each such five-year period.
Sentry will renew your policy under this program as long as you continue to:
*456 Reside in a state in which this program is approved.
Remain claim and violation free.
Exclusionary Endorsement
Your collision insurance is excluded if the operator of the car we insure is legally intoxicated at the time of a car accident.
This exclusion does not apply to the interests of the lessor or lienholder designated on the declarations page.
The following definition is added to the policy: Legally intoxicated means a blood alcohol content of .10% or more. An operator who refuses to take a test for blood alcohol shall be conclusively presumed to be legally intoxicated.
(Emphasis in original.)
The Payback program is part of the preferred auto insurance market which offers discounts to drivers with clean records. This market typically offers preferred rates 15-20% off a company's standard rate. Sentry proposed to offer a discount of 17% off its standard rate.
After unsuccessfully seeking approval for the Payback endorsement from the Commerce Department, Sentry requested a hearing under the administrative procedure act. At the hearing the department presented evidence of four separate bases for disapproving the endorsement as misleading and violative of public policy under Minn.Stat. § 70A.06, subd. 2 (1988):
(1) The Payback Endorsement when tied to a DWI policy is misleading and violative of public policy in that, among other things, it creates the false impression that good driving and/or sober driving will lead to a rebate equaling one-half of the first year's premium when this is not necessarily the case.
(2) The Payback Endorsement is misleading and violative of public policy in that it may discourage insureds from filing small claims and it creates confusion regarding eligibility for the "payback" in the event of not-at-fault claims, claims due to natural causes, and personal injury claims arising in vehicles owned by someone other than the insured.
(3) The waiver of collision coverage for any "driver of your car" who is involved in an accident while legally intoxicated is misleading and violative of public policy because the term "driver of your car" is not limited to the named insured but includes minor children of the insured and all other individuals who drive the insured's car.
(4) The waiver of collision coverage is violative of public policy because a potential insured's lack of interest in this DWI policy could be used by insurance companies and agents to discriminate against the potential insured with respect to other forms of coverage.
The administrative law judge concluded that the Payback endorsement was not misleading and that the collision exclusion feature did not violate public policy. On the final issue of whether the payback feature violated public policy, the ALJ concluded that Sentry had not met its burden to show that it did not. In an accompanying memorandum the ALJ recommended that the Commissioner approve the endorsement because the opportunity to reduce insurance premiums by safe and sober driving works in favor of the public.
The Department filed exceptions to the ALJ's findings and in the final decision the Commissioner concluded that the form was misleading and violative of public policy. The Commissioner adopted his own findings to support these conclusions and prepared a memorandum explaining his reasons for rejecting various findings and conclusions of the ALJ. Sentry appeals.[1]
ISSUES
1. Is the Commissioner's decision that the Payback endorsement is misleading supported by substantial evidence?
2. Is the Commissioner's decision that the Payback endorsement is violative of *457 public policy supported by substantial evidence?
3. Is the Commissioner's decision arbitrary and capricious?
ANALYSIS
I
The Commissioner's conclusion that the Payback endorsement form is misleading is based on two central findings:
(1) the endorsement is misleading because it creates the false impression that the insured will be rewarded if he continues to drive safely and soberly when in fact, a safe sober driver may be penalized under the program if he unknowingly lends his car to a drunk driver; and (2) it is inherently misleading to package the collision exclusion and the Payback agreement in one endorsement.
In determining whether these findings are supported by substantial evidence, we rely on the Minnesota interpretation of substantial evidence found in Taylor v. Beltrami Electric Cooperative, Inc., 319 N.W.2d 52, 56 (Minn.1982):
We view that by the "substantial evidence" test is meant (1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, (2) more than a scintilla of evidence, (3) more than "some evidence," (4) more than "any evidence," and (5) evidence considered in its entirety.
Id. (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn.1977)).
Neither this court nor the Minnesota Supreme Court has interpreted the meaning of "misleading" as used in Minn.Stat. § 70A.06, subd. 2 (1988). The dictionary definition adopted by the ALJ is "to lead into a wrong direction or into a mistaken action or belief." Webster's Third New International Dictionary, 1444 (1971). Other jurisdictions have defined "misleading" in a regulatory context. Statements are misleading if they "tend to lead astray or into error, without any specific intent to deceive." People v. Wahl, 39 Cal. App. Supp. 2d 771, 773, 100 P.2d 550, 551 (1940) (false advertising statute). The determination of whether a statement is misleading is based on the overall impression created by the statement. See American Home Products Corp. v. Johnson & Johnson, 654 F. Supp. 568, 590 (S.D.N.Y.1987). The total impact may be deceptive or misleading even though the statement is technically not false. U.S. v. One Device, More or Less, Ellis Micro-Dynameter, 224 F. Supp. 265, 268 (E.D.Pa.1963).
To support its contention that the endorsement is misleading, the department presented witnesses who testified that the language of the form was misleading and that the form gives the impression that the Payback endorsement relates to safe, sober driving and not to the claims record. However, it is the claims record that determines whether a payback occurs. An insured who was a safe, sober driver would lose the payback if the insurer received a claim for a towing charge, damages to the vehicle from an act of God, injuries to the insured's child sustained in a school bus accident, or damages to a windshield from vandalism. The testimony indicated that this confusion is compounded by the dominance of references to drinking and driving and safe driving and the minimal reference to claims.
The Commissioner found that when the collision exclusion feature is read in conjunction with the payback feature of the Payback endorsement, the insured would erroneously form the impression that the loss of collision coverage occurs only when the insured is legally intoxicated. For instance, the first section says: "We ask you to sign this Endorsement so that we're certain you are aware of the consequences if you have an accident while legally intoxicated." However, the collision exclusion operates when any permitted driver is legally intoxicated. The collision exclusion states that collision insurance is excluded if the "operator of the car we insure" is legally intoxicated. The Commissioner concluded that this language could cause an insured to believe that "operator" does not include drivers other than the insured when in fact it does.
*458 The Commissioner also concluded it was inherently misleading to package the payback feature and the collision exclusion feature in one endorsement. A Sentry witness testified that these two items were packaged together to target people who act, drive and drink responsibly. Three witnesses from the Department testified that it was confusing or misleading to package the collision exclusion feature, which relates to sober driving, and the payback feature, which relates to claims history, together. The Department also pointed out that the marketing materials tie the sober driving and payback features together. This problem is magnified when the insured does not purchase collision insurance, which is the only feature that relates to driving while intoxicated. Without that coverage, the Payback endorsement is not related to driving while intoxicated.
In evaluating whether there is substantial evidence to support the Commissioner's findings, we recognize that this standard has its genesis in the historical deference accorded to administrative agencies in their area of expertise. Hennepin County Court Employees Group v. Public Employment Relations Board, 274 N.W.2d 492, 494 (Minn.1979); see also Cable Communications Board v. Nor-West Cable Communications Partnership, 356 N.W.2d 658, 668 (Minn.1984). We also recognize the Commissioner's and the Department's experience in handling consumer inquiries and complaints and evaluating forms relating to automobile insurance. Taking into account the entire record, the agency's expertise, and the language of the form on its face, we conclude that there is substantial evidence supporting the Commissioner's conclusion that the endorsement and the packaging of the endorsement are misleading as to the circumstances under which the insured is entitled to a payback and the extent of the collision exclusion coverage.
II
The second issue is whether the Commissioner's determination that the Payback endorsement violates public policy is supported by substantial evidence. This court has previously stated that Minn.Stat. § 70A.06 gives the Commissioner "the power and duty to review and approve all policy forms issued in Minnesota" and that this statutory authority "need not be given a cramped reading." In the Matter of State Farm Mutual Automobile Insurance Co., 392 N.W.2d 558, 565 (Minn.Ct.App.1986). This authority is based on a recognition of the Commissioner's responsibility to protect consumers. See Farmer's & Merchants State Bank of Pierz v. Bosshart, 400 N.W.2d 739, 744 (Minn.1987).
Courts in other states have accorded insurance commissioners and departments broad authority to decide whether insurance forms comply with state public policy. See Hawes v. Kansas Farm Bureau, 238 Kan. 404, 710 P.2d 1312, 1320 (1985); Kirk v. Financial Security Life Insurance Company, 75 Ill. 2d 367, 27 Ill. Dec. 332, 335, 389 N.E.2d 144, 147 (1978); Survivors Benefit Insurance Co. v. Farmer, 514 S.W.2d 565, 576 (Mo.1974); Workman v. Great Plains Insurance Company, 189 Neb. 22, 200 N.W.2d 8, 11 (1972); Progressive Mutual Insurance Company v. Taylor, 35 Mich.App. 633, 193 N.W.2d 54, 58 (1971).
The Commissioner found that the payback feature violates public policy because the insured's cost is increased based on claims for which the insured is not at fault. The Department argues that the entire regulatory framework for automobile insurance is premised on insureds not losing benefits, facing increased premiums, or otherwise encountering penalties because of events that are not the insured's fault. Sentry characterizes the loss of a payback as a contingent benefit, analogous to a rebate or dividend, because it is an additional payment to the insured. See Minn. Stat. § 72A.08 (1988).
Minnesota's automobile insurance statutes limit the reasons a policy may not be renewed. Minn.Stat. § 65B.17, subd. 2 (1988), and Minn.R. 2770.7500-.8500 (1989). Nonrenewal may not be based on claims paid when the insured is not at fault or *459 claims paid without determining fault. See Minn.R. 2770.7800 (1989).
The Department contends the Payback endorsement operates as a surcharge. A surcharge is "any increase in premium for a policy, including the removal of an accident-free or claim-free discount, based upon an accident or traffic violation." Minn.Stat. § 65B.133, subd. 1(e) (1988). The Department does not approve policy provisions that surcharge based on events not the insured's fault. This practice is based on the same public policy expressed in the nonrenewal statutes and rules.
Although there may be support for alternative characterizations of the Payback endorsement, there is substantial evidence in the record to support the Commissioner's interpretation that it is a surcharge or penalty. The existence of more than one opinion on a matter will not invalidate an agency's decision. See Village of Goodview v. Winona Area Industrial Development Association, 289 Minn. 378, 381, 184 N.W.2d 662, 664 (1971) (citations omitted). Accepting this interpretation, the record supports the determination that it is a violation of public policy for an insured to lose eligibility for the payback based upon claims not the insured's fault.
The Commissioner also found:
It is unfair and misleading, and therefore violative of public policy, to sell insureds towing coverage and low deductibles expecting that they will not use the coverage. It is also unfair and misleading, and therefore violative of public policy, to include such a provision when another provision requires that the insured report all claims.
A Sentry witness acknowledged that most insureds receive a better value if they select higher deductibles and no towing coverage, and testified Sentry trains its agents accordingly. Some insureds, who are presumably risk-adverse, prefer to be reimbursed for smaller losses if they occur, despite possible forfeiture of the Payback program. These insureds still receive the benefit of a 17% premium discount. This, Sentry contends, is an economic decision which rests with the insured.
The Department contends that the 17% premium discount is not the attraction of the endorsement. It asserts that it is unfair and misleading to spark a consumer's interest in a program by promising a payback, and then design the program so that if the consumer files a small claim, the payback will be lost, particularly when the effect is not clearly stated. Additionally, circumstances compel reporting. The insurance policy provides that when an accident occurs, "you or someone on your behalf must notify us as soon as possible." There is no dollar limitation on this requirement. Under Minnesota law, there are circumstances in which failure to report an accident involving a small claim could result in cancellation of the policy. Minn. Stat. § 65B.15, subd. 1(6).
The Department also offered testimony that in most other policies, there are no negative consequences to filing claims below $300 or $500; it is only when claims above this amount are filed that the insured's premium will be increased ("surcharged"). Under the Payback endorsement, there is always the disincentive of filing a small claim because every time such a claim is received, the insured is ineligible for the payback for five years. Sentry recognizes that its policy encourages insureds to self-insure for small claims. However, Sentry asserts that the policy is not misleading and the insured is capable of calculating the costs and benefits of submitting or not submitting a claim.
Sentry argues that there are four reasons why this policy does not violate public policy: (1) Minn.Stat. § 65B.15, subd. 1(6) applies to required written notices of loss and Sentry, "as a practical matter," does not require written notice of small losses; (2) the Department admits other previously approved policies tend to discourage reporting small claims; (3) nothing in Minnesota law prohibits insureds from self-insuring; and (4) the reduction in small claims filing is reflected in Sentry's 17 percent premium discount granted to payback policyholders.
Although Sentry's arguments have probative weight, they do not disprove the *460 substantial evidence which supports the Commissioner's determination that these provisions violate public policy.
Finally, the Commissioner concluded that the Sentry Insurance Payback Endorsement is against public policy because it could be used as an underwriting device to force safe drivers who do not elect the coverage to take risk coverage. The Commissioner asserts that there is a concern that safe, sober drivers who qualify for the Payback endorsement but choose not to purchase it may discover Sentry will not sell them any insurance. If Sentry is allowed to exclude collision coverage for traffic violations, the Commissioner believes other insurance companies will follow suit and create other collision coverage exclusions based on traffic violations. The Commissioner concludes that it is unfair to exclude collision coverage based on irresponsible driving conduct of someone other than the insured.
Sentry asserts that this is speculative. Although we agree that it relates only to possible future events, it is not unreasonable for the Commissioner to theorize that it would be violative of public policy to allow insurance provisions which could erode collision coverage as it currently exists in Minnesota.
We view the record in light of the Commissioner's particular responsibilities to apply public policy considerations. The public policy considerations expressed by the Commissioner are not unreasonable and are supported by substantial evidence in the record.
III.
Sentry argues that the conclusion of the Commissioner that the Endorsement is misleading and against public policy is arbitrary and capricious because the Commissioner rejected the conclusions and recommendations of the ALJ on those issues which were the subject of the hearing and added his own conclusions on issues that were not the subject of the hearing. An appellate court will not interfere unless an agency has acted arbitrarily or capriciously so that its determination represents its will and not its judgment. Bryan v. Community State Bank of Bloomington, 285 Minn. 226, 234, 172 N.W.2d 771, 776 (1969).
An administrative law judge's report and recommendations should not be rejected summarily without reasons, and failure to give reasons has been viewed as evidencing the agency's desire to exercise its will and not its judgment. Beaty v. Minnesota Board of Teaching, 354 N.W.2d 466, 472 (Minn.Ct.App.1984). However, the Commissioner attached a memorandum to his findings, conclusions and order, in which he recognized that his findings differed from those of the ALJ, and explained how they were supported by the record. The Commissioner also discussed and commented on various findings and conclusions of the ALJ, and made it clear why he made the decision he did, rather than adopting the ALJ's recommendations. There is no showing the Commissioner was arbitrary and capricious in rejecting the ALJ's conclusions and recommendations.
DECISION
The order of the Commissioner disapproving Sentry's Payback Program insurance form on the grounds that it was misleading and violative of public policy is affirmed.
Affirmed.
NOTES
[*] Acting as judge of the Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 2.
[1] The Department moved to strike a portion of Sentry's reply brief and appendix containing facts not part of the record below. Because the material is not part of the record, we grant the motion. McKee v. Cub Foods, Inc., 380 N.W.2d 233, 235 (Minn.Ct.App.1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920325/ | 447 N.W.2d 418 (1989)
Martin D. DEEVER, Petitioner-Appellant,
v.
HAWKEYE WINDOW CLEANING, INC., and Employment Appeal Board, Respondents-Appellees.
No. 88-1479.
Court of Appeals of Iowa.
August 23, 1989.
As Corrected September 6, 1989.
*419 Carolyn F. Coleman and David M. Keenan of Legal Aid Society of Polk County, Des Moines, for petitioner-appellant.
Blair H. Dewey and William C. Whitten, Des Moines, for respondent-appellee Employment Appeal Bd.
Michael M. Sellers of Dreher, Wilson, Simpson, Jensen, Sellers, Butters, Adams & Kaiser, P.C., Des Moines, for respondent-appellee Hawkeye.
Heard by DONIELSON, P.J., and HAYDEN and SACKETT, JJ., but considered en banc.
DONIELSON, Presiding Judge.
Petitioner Martin D. Deever was employed as a window washer by Hawkeye Window Cleaning, Inc., in March 1987. On November 11, 1987, he asked to leave early to get a part for his car. Deever's foreman, Howard, gave him permission to leave. However, after Howard checked with the supervisor, Jim, this permission was denied. Howard informed Deever that Jim felt the employees were getting too pushy. Deever then stated that if Jim wanted to push they could go outside, "and we'll see if he wants his other fucking foot broke." Howard then told Jim about this statement. Later that day Jim asked Deever if he was going to break his other leg. Deever replied, "I guess so." Jim then told Deever he was fired.
Deever filed a claim for unemployment compensation. This was initially denied on the ground that he had been discharged for insubordination. Deever appealed this decision. After holding a hearing, the hearing officer found that Deever had been discharged for misconduct. The hearing officer found that Deever's response of "I guess so" to Jim's inquiry about Deever's earlier statement amounted to a repeated threat and vulgar language. The vulgar language was seen as a form of insubordination. Deever filed a petition for judicial review. The district court agreed with the agency and affirmed the decision. Deever now appeals the decision of the district court.
Our scope of review in cases arising out of the Iowa Administrative Procedure Act is limited under Iowa Code section 17A.20 to the correction of errors at law. Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 165 (Iowa 1982). The review function of the district court under section 17A.19 is to correct errors of law which are specified in section 17A.19(8). When we review decisions of the district court which were rendered in its capacity as an appellate body under section 17A.19, the issue for our determination is whether the district court correctly applied the law. Budding v. Iowa Department of Job Service, 337 N.W.2d 219, 221 (Iowa App.1983). In order to make that determination, we apply the standards of section 17A.19(8) to the agency action to determine whether this court's conclusions are the same as those of the district court. Jackson County Public Hospital v. Public Employment Relations Board, 280 N.W.2d 426, 429-30 (Iowa 1979).
Iowa Code section 96.5(2) provides that a claimant is disqualified from unemployment benefits "[i]f the department finds that the individual has been discharged for misconduct in connection with the individual's employment." The sole issue before us is whether the department erred in holding that petitioner's conduct constituted misconduct as that term is contemplated under section 96.5(2). We note at the outset that we do not question the employer's right to terminate petitioner's employment. The issue we address relates solely to whether or not petitioner is entitled to unemployment compensation.
Misconduct is defined by 345 Iowa Administrative Code 4.32(1) 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 *420 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 a 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.
As the definition suggests, in order to support a disqualification from unemployment benefits, the misconduct must be substantial. Misconduct serious enough to warrant the discharge of an employee is not necessarily serious enough to warrant a denial of benefits. Budding, 337 N.W.2d at 222.
This court has previously addressed the role of profanity in making misconduct determinations. In Budding, 337 N.W.2d at 222, this court held that where the use of vulgar language is an isolated incident in an environment where decorous language is not required, and it is not occasioned by a deliberate refusal to obey a reasonable directive, it is viewed as only a minor peccadillo and not as misconduct. Vulgar language in front of customers, however, can constitute misconduct, Zeches v. Iowa Dept. of Job Service, 333 N.W.2d 735, 736 (Iowa App.1983), as well as vulgarities accompanied with a refusal to obey supervisors. Warrell v. Iowa Dept. of Job Service, 356 N.W.2d 587, 589 (Iowa App.1984). Repetition of vulgarities can elevate a minor peccadillo to an act of willful misconduct. Carpenter v. Iowa Dept. of Job Service, 401 N.W.2d 242, 245-46 (Iowa App.1986).
At issue in this case are two statements made by Deever. Earlier in the workday Deever was informed by his foreman, Howard, that permission for him to leave early was withdrawn. Howard told Deever that the permission was withdrawn because Jim, the supervisor, felt the employees were getting too pushy. Deever then stated that if Jim, his supervisor, "wants to get that physical pushing we can go outside, and we'll see if he wants his other fucking foot broke." Later in the day, Deever returned from the worksite and was confronted by his supervisor. Jim asked Deever what work had been completed at the site and then said "so what's this about you're going to break my other leg?" Deever replied, "I guess so" and was then fired.
The decisions of the agency and of the district court seem to focus on the statement made by Deever at the end of the workday. The agency and the district court concluded that this latter statement would bring this case outside the parameters of Budding. Deever had been informed by Howard at the job site that his statement would be repeated to Jim, the supervisor. When Jim later confronted Deever, he said "so what's this about you're going to break my other leg." Jim was simply asking Deever to confirm whether he had made his earlier statement. Deever's response, "I guess so" was merely an affirmation of Jim's inquiry. Nothing in the record supports the view that this later statement of Deever's was a repeated threat or vulgarity or that it represented "an intentional act and that it would not be considered a minor peccadillo" as the agency and the trial court concluded. The agency and court erred in relying on this later statement to distinguish this case from Budding.
However, when the reason given by a district court for its adjudication is erroneous, the adjudication will nevertheless be sustained if a separate basis for doing so exists. Deever's statement at the job site amounts to more than a mere vulgarity. It encompassed the implicit threat to break his supervisor's foot. This threatening *421 nature distinguishes this case from Budding and the general principle that an isolated incident of vulgar language does not constitute misconduct. A threat constitutes a sufficient willful or wanton disregard of an employer's interest and of the standards of behavior which an employer has the right to expect of employees. Threatening one's employer constitutes misconduct and warrants a disqualification from unemployment benefits. Furthermore, Deever's vulgar and threatening statement was not merely made in the presence of his foreman, but was overheard by his two co-workers, Troy Jones and Bud Meyer. An isolated incident of vulgarity can constitute misconduct if it serves to undermine a superior's authority. Carpenter, 401 N.W.2d at 246; Budding, 337 N.W.2d at 223. Deever's language in this case would have had such an effect.
The decision denying Deever unemployment benefits based on his misconduct is affirmed.
AFFIRMED.
All Judges concur, except OXBERGER, C.J., and SCHLEGEL, J., who dissent.
SCHLEGEL, Judge (dissenting).
I respectfully dissent.
The majority has concluded that a separate basis exists to sustain the district court in that the language was intended as a threat. An isolated incident of vulgar language does not constitute misconduct. The majority's conclusion that the statement in question was a threat is not supported by the evidence. Employees are often angered by the actions of their superiors and will express this anger through vulgar language or threatening statements. When Deever spoke to the supervisor whom he had allegedly threatened, he offered no repeated threats or even angry words. Deever's statement was merely letting off steam and meant nothing more. The ruling of the trial court should be reversed.
OXBERGER, C.J., joins this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920335/ | 152 Wis. 2d 68 (1989)
447 N.W.2d 90
STATE of Wisconsin, Plaintiff-Respondent,
v.
Ricky L. ADAMS, Defendant-Appellant.[]
STATE of Wisconsin, Plaintiff-Respondent,
v.
Terry L. ADAMS, Defendant-Appellant.[]
Nos. 89-0235-CR, 89-0336-CR.
Court of Appeals of Wisconsin.
Submitted on briefs July 7, 1989.
Decided August 22, 1989.
*71 For defendants-appellants there were briefs submitted by Ted N. Frank of Dodgeville.
For plaintiff-respondent there was a brief submitted by Donald J. Hanaway, attorney general, and William L. Gansner, assistant attorney general of the Wisconsin Department of Justice of Madison.
Before Cane, P.J., LaRocque and Myse, JJ.
CANE, P.J.
Ricky and Terry Adams appeal their convictions for escape under sec. 946.42(2)(a), Stats. (1985-86),[1] alleging that the complaint was insufficient to support those charges. Alternatively, they argue that the trial court erred by holding that their escape sentences must run consecutively to their sentences for the other convictions. Because we find the complaint facially sufficient to support the escape charges, and because the statute's language mandates that the escape sentences run consecutively to the other sentences, we affirm the trial court in all respects.
The facts set forth in the complaint are as follows. On June 11, 1988, at approximately 1:55 a.m., Village of Dickeyville police officer Ron Burbach stopped a vehicle that was speeding and weaving. Burbach administered field sobriety tests to the driver, Ricky Adams, and his passenger, Terry Adams, Ricky's brother. He informed both men that they were incapable of driving. While *72 Burbach was running a license check in his squad car, Terry attempted to flee on foot, but was chased down by Burbach. After bringing Terry back to the vehicle, Burbach informed Ricky that he was under arrest for operating a motor vehicle while under the influence of intoxicants. Ricky then struck Burbach twice, and Terry grabbed the officer's neck. Burbach told the Adamses that they were under arrest for assaulting a police officer. Ricky continued to strike Burbach.
According to the complaint, Burbach "then got ahold of each of the defendants, one in each arm, holding them down but then they got free...." Once free from his grasp, Terry choked Burbach until he was nearly unconscious while both brothers hit, kicked, and threatened him. They then handcuffed the officer and began to drag him down the highway by the handcuffs, hitting and shoving him along the way. After one unsuccessful attempt, Burbach, still handcuffed, was able to hail a passing car and get away. He suffered cuts, bruises and a fractured wrist. Several days after the incident, Ricky and Terry surrendered to the local police.
A complaint was issued against the Adamses charging them with battery to a peace office, false imprisonment, and escape. The Adamses contended that the information in the complaint was insufficient to support the escape charges. The trial court rejected their motion to dismiss. The brothers eventually were convicted on all three counts following a jury trial. Each brother was given a concurrent sentence for the battery and false imprisonment convictions and a consecutive sentence for the escape conviction.
On appeal, the Adamses renew their argument that the facts in the complaint, as set forth above, are not sufficient to support a charge of escape under sec. *73 946.42(2)(a). Specifically, they contend that they were never "in custody" within the meaning of the statute.
[1]
The state argues that even if the complaint was insufficient, the opportunity to present evidence and arguments at trial eliminated any resulting prejudice. We disagree. A challenge to the complaint has not been rendered moot or immaterial, and it is appropriate to contest the sufficiency of the complaint on postconviction review by an appellate court if the issue has been preserved for appeal. See, e.g., State v. Gaudesi, 112 Wis. 2d 213, 219-21, 332 N.W.2d 302, 305-06 (1983); State v. Stoehr, 134 Wis. 2d 66, 74, 396 N.W.2d 177, 179 (1986).
[2-6]
Section 968.01, Stats., requires a criminal complaint to meet probable cause requirements to confer personal jurisdiction on the circuit court. State v. White, 97 Wis. 2d 193, 197, 295 N.W.2d 346, 347 (1980). A criminal complaint is a self-contained charge that must set forth facts within its four corners that are sufficient, in themselves or together with reasonable inferences to which they give rise, to allow a reasonable person to conclude that a crime was probably committed and the defendant is probably culpable. State v. Haugen, 52 Wis. 2d 791, 793, 191 N.W.2d 12, 13 (1971); State v. Hoffman, 106 Wis. 2d 185, 197, 316 N.W.2d 143, 151 (Ct. App. 1982). To be sufficient, a complaint must only be minimally adequate. This is to be evaluated in a common sense rather than a hypertechnical manner, in setting forth the essential facts establishing probable cause. Gaudesi, 112 Wis. 2d at 219, 332 N.W.2d at 305. A complaint is sufficient under this standard if it answers the following five questions: "(1) Who is charged?; (2) What is the person charged with?; (3) When and where did the alleged offense take place?; (4) Why is this particular person *74 being charged?; and (5) Who says so? or How reliable is the informant?" White, 97 Wis. 2d at 203, 295 N.W.2d at 350. The sufficiency of a complaint is a matter of law and is addressed de novo by the reviewing court. See, e.g., Gaudesi, 112 Wis. 2d at 219-21, 332 N.W.2d at 305-06.
There is no dispute that the complaint satisfactorily addresses the first, second, third, and fifth questions. The only issue is whether the complaint adequately establishes the reason the Adamses were charged with escape. Specifically, the question is whether the facts in the complaint support a finding that Ricky and Terry were "in custody" at the time of the alleged escape, an element of that crime. The portion of the complaint in dispute states only that Burbach told the Adamses that they were under arrest, grabbed them and held them down, but that they got free.
[7]
Section 946.42(2) states: "Any person in custody under any of the following circumstances who intentionally escapes from custody is guilty of a Class E felony: (a) Pursuant to a legal arrest for a felony." The same statute states: "`Custody' includes without limitation actual custody of ... a peace officer." Sec. 946.42(5)(a), Stats. Actual custody has been defined to mean actual imprisonment or physical detention. State v. Schaller, 70 Wis. 2d 107, 111, 233 N.W.2d 416, 418 (1975).
[8]
The Adamses urge us to hold that physical detention is equivalent to physical control, and because the complaint did not allege that Burbach was in control of Ricky and Terry, the escape charges are insufficiently supported. We do not accept this characterization of custody in part because if one were truly under the control of another individual, escape would be impossible.
*75 Rather, we conclude that the men were "in custody" for the purposes of this statute once their ability or freedom of movement had been restricted. This definition has the additional virtue of being consistent with the level of restraint required to constitute an arrest.[2] The statute defines escape as "to leave in any manner without lawful permission or authority." Sec. 946.42(5)(b), Stats. We interpret the statute to mean that once a person has been lawfully arrested, he or she may not leave without permission. The fact that an officer's back was turned or that one has pummeled him into submission is of no consequence.[3]
In addition, we agree with the trial court that a contrary reading of the statute would not differentiate *76 between resisting arrest successfully and resisting unsuccessfully. Were there not to be a difference, there would be little incentive to stop resisting. The sentence would be the same whether one eventually freed oneself or not.[4] We do not believe this is in accord with the statutory scheme or good public policy.
[9]
The complaint states that the officer had a grasp of both men and held them down, but that they got free. This meets the "minimally adequate" test for the sufficiency of a complaint as it would allow a reasonable person to conclude that the Adamses had probably committed the crime of escape. Even accepting the brothers' contention that physical control was required, the complaint is still sufficient. The complaint alleges that Burbach told the Adamses they were under arrest, "got ahold" of them, and then they got away. From this language, a reasonable person could draw an inference that the Adamses were under Burbach's control at some point. The facts as brought out at trial may have shown differently, but that is not what the Adamses are contesting on appeal. They argue only that the complaint was insufficient. However, a proceeding of this nature is not the preferred place to decide heavily fact-laden questions.[5] Whether Burbach's conduct consisted of merely touching Ricky and Terry, grasping them, or holding *77 them down for thirty seconds, and whether this was sufficient to qualify as "physical detention" are primarily questions of fact. The facts alleged in the complaint, however, are sufficient to support the charges of escape.
[10]
The Adamses also contend that their escape sentences should not be mandatorily consecutive to their battery and false imprisonment sentences. The trial court found that consecutive sentences were required by the clear language of sec. 946.42(4). We agree. The statute states: "Sentences imposed under this section shall be consecutive to any sentence previously imposed or which may be imposed for any crime or offense for which the person was in custody when he escaped." The Adamses ask us to read into the statute the requirement that "custody" be limited to mean institutional custody. We decline to do so. The Adamses had been arrested for assaulting a police officer, they escaped, and therefore their escape sentences must run consecutively to their battery sentences.
By the Court.Judgments affirmed.
NOTES
[] Petition to review denied.
[1] Although the crime occurred in 1988, the attorneys and the trial court inadvertently proceeded under the escape statute in effect prior to May 2, 1986. Because none of the parties feels aggrieved by this error, and because the two statutes are substantially the same with most of the changes involving renumbering, this court will also proceed under the 1985-86 statute.
[2] There are three elements required for an arrest in Wisconsin: The suspect's ability or freedom of movement is restricted; the arresting officer intends, at that time, to restrain the person; and the person under arrest believes or understands that he is in custody. State v. Washington, 134 Wis. 2d 108, 124-25, 396 N.W.2d 156, 163 (1986); see also Peloquin v. Hibner, 231 Wis. 77, 84, 285 N.W. 380, 384 (1939). "An arrest is the taking, seizing or detaining of the person of another either by touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest." Peloquin (quoting 4 Am. Jur. sec. 2 at 5 (1936)). Neither of the Adamses attacks the finding that he was under arrest at the time of the alleged escape, and the complaint and the record each independently supports the fact that Burbach had arrested them.
[3] The Adamses also request us to find the complaint insufficient to support a charge of escape because Burbach, not Ricky and Terry, left the scene of the arrest. This argument is not supported by the statute, and as the state correctly points out, there is a major difference between voluntarily abandoning the scene and being driven away by a criminal or suspect's violent conduct. The latter is clearly still an escape.
[4] Both sections 946.41 (resisting arrest) and 940.20(2) (battery to a law enforcement officer) fail to differentiate between violations resulting in a successful flight from the law and those where the officer is eventually able to restrain the individual.
[5] "The complaint is the first of many steps in a criminal prosecution. Its essential function is informative, not adjudicative. `It is enough that a fair-minded magistrate could conclude that the facts and circumstances alleged justify further criminal proceedings and that the charges are not merely capricious.'" Hoffman, 106 Wis. 2d at 200, 316 N.W.2d at 152-53 (quoting State v. Olson, 75 Wis. 2d 575, 583, 250 N.W.2d 12, 17 (1977)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920345/ | 279 Md. 605 (1977)
369 A.2d 1059
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
LeROY A. COOPER
[Misc. Docket (Subtitle BV) No. 10, September Term, 1976.]
Court of Appeals of Maryland.
Decided March 4, 1977.
*606 The cause was argued before MURPHY, C.J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.
John Addison Howard, Assistant Bar Counsel, for petitioner.
James W. McAllister for respondent.
ORDER
The three judge panel having found respondent guilty of violating the Code of Professional Responsibility as set forth in the panel's opinion, herewith attached, for which Maryland Rule BV11 a 1 requires a recommendation of either disbarment, suspension or reprimand; and
The panel having further found that respondent's misconduct resulted from his inability to render adequate legal service "by reason of mental or physical illness or infirmity, or addiction to or dependence upon an intoxicant or drug"; and
The panel having stated that respondent's "incompetency continues at this time" and it having recommended that respondent be placed on inactive status as provided for in Maryland Rule BV11 a 2; and
The Court having carefully considered the opinion of the panel and its recommendation, together with the reasons assigned at oral argument as a result of the Court's order that respondent show cause why he should not be disbarred or suspended; it is this 4th day of March, 1977.
ORDERED, by the Court of Appeals of Maryland, that LeRoy A. Cooper be, and he is hereby, suspended from the practice of law for an indefinite period; and it is further
ORDERED that the clerk of this Court shall strike the name of LeRoy A. Cooper from the register of attorneys in this Court and certify that fact to the Trustees of the *607 Clients' Security Trust Fund and the clerks of all judicial tribunals in the State in accordance with Rule BV 13.
/s/ Robert C. Murphy
/s/ Frederick J. Singley, Jr.
/s/ Marvin H. Smith
/s/ J. Dudley Digges
Filed: March 4, 1977
/s/ Irving A. Levine
/s/ James C. Norris, Jr.
Clerk /s/ John C. Eldridge
Court of Appeals of Maryland /s/ Charles E. Orth, Jr.
MEMORANDUM AND RECOMMENDATION
Pursuant to Maryland Rule BV9, the Court of Appeals of Maryland designated the undersigned judges as a panel for the hearing of charges of professional misconduct brought against the Respondent by the Attorney Grievance Commission of Maryland. Hearings were held before the panel on November 3, 1976 and December 1, 1976.
Findings of Fact
LeRoy A. Cooper, who was admitted to the Bar of this State in 1950, conducted two real estate settlements for Mr. and Mrs. Paul Brown of Baltimore, Maryland on September 29, 1973 and October 22, 1973 respectively. The Browns had been referred to the Respondent by Isaac Bristow, a real estate broker, who was instrumental in effecting the sales of the properties being settled. Both settlements took place at Bristow's office at 2025 West North Avenue.
On September 29, 1973, the sale of 1019 North Caroline Street was settled. The Respondent prepared the settlement sheet for this transaction and prepared the deed effecting the transfer which he recorded for Paul Brown on November 9, 1973. The settlement sheet does not accurately reflect the money exchanged at settlement in that it indicates the sum of $207.70 was due the seller, when in fact the seller received from the purchaser the sum of $299.00 in monetary benefits, *608 as reflected in a receipt therefor executed by the seller which was prepared at settlement by the Respondent. Also, $51.00 was charged the parties by the Respondent for the cost of recording, documentary stamps, and transfer taxes, although the actual cost of these items, paid by the Respondent at the time of recording the deed, was only $17.40. In numerous other respects the settlement sheet was incompetently prepared. The buyer at settlement paid $200.00 in cash to the Respondent, of which $87.80 was to be applied by the Respondent to the payment of an accrued water bill for the property as reflected on the settlement sheet. Respondent failed to pay the water bill and the buyer was required to pay this bill to the City of Baltimore in February, 1974, when he and his family were confronted with the delinquent account which they had assumed was satisfied from the settlement proceeds. Respondent testified that none of the monies received by him at the settlement was ever deposited in his own checking account or in any escrow account maintained by him.
The deed for 1019 North Caroline Street was not recorded by the Respondent until 41 days after its execution and was never delivered to the buyer by the Respondent despite the buyer's repeated requests for the same.
On October 22, 1973, settlement for the sale of 1019 Valley Street by Mr. and Mrs. Paul Brown to Mr. and Mrs. Donald Lawson was conducted by the Respondent. The Lawsons had agreed to purchase the property for $4,500.00, $3,984.00 of which was to be secured by a purchase money mortgage in favor of the Browns. At settlement Respondent received a $500.00 check on behalf of the sellers. The Respondent disbursed no funds at settlement but rather gave one of the sellers, Paul Brown, a receipt for $363.00 with a notation that $337.00 was due seven days from that date. This $337.00 apparently represented the net amount to the seller after deduction of their settlement allowances and expenses, and the delayed payment contemplated clearance by the drawee bank of the check proffered by the buyers at settlement. Respondent never paid the sellers any part of the $337.00 due them. We reject as incredible the Respondent's *609 suggestion that the $337.00 represented an amount due the buyers or Respondent from the sellers over and above the $500.00 which was delivered by the buyer at settlement. The Respondent has failed to produce any written record of this settlement notwithstanding the summons issued to him requiring the production of all his files in connection with this transaction at the hearing. Respondent's excuse for the non-production, that his records are in the possession of the broker, Bristow, did not relieve him, in our opinion, of his responsibility to retrieve these files for production to this panel or at least to substantiate their whereabouts by testimony from Bristow or others.
None of the money received by the Respondent at settlement was ever deposited in his checking account or in any escrow account maintained by him. The deed and the purchase money mortgage which Respondent prepared to consummate the settlement were not recorded until November 9, 1973, and the mortgage was never delivered to Mr. and Mrs. Brown by Respondent despite their repeated requests for the same.
The balance of the charges preferred against the Respondent grow out of his handling of the estate of Addie T. Young, late of Baltimore, Maryland. When this testatrix died on March 6, 1972, she was seized of a one-third undivided interest in the leasehold property at 1646 Moreland Avenue as a tenant in common with her daughter, Audra Hawkins, who then possessed a two-thirds undivided interest therein. (The property was originally acquired in 1963 by Mrs. Young, Mrs. Hawkins and Beatrice Banks, sister of Mrs. Hawkins, as tenants in common; on December 3, 1971, Mrs. Banks conveyed her undivided one-third interest to Mrs. Hawkins.) Under the will of Mrs. Young, her one-third undivided interest was bequeathed to Mrs. Banks and Mrs. Hawkins, "share and share alike". In July of 1973, Audra Hawkins retained the Respondent to effect the transfer to her of the one-sixth interest in the above mentioned leasehold property that had been bequeathed to her sister, Mrs. Banks, and to perfect the bequest of the other one-sixth interest therein to her under Mrs. Young's *610 will. The Respondent was nominated as the executor in this will but took no steps to probate the will until he was retained by Mrs. Hawkins some one year and four months after the death of Mrs. Young.
Apparently because the typed will gave the appearance of a signed carbon copy rather than a ribbon copy, administrative probate was rejected by the Register of Wills of Baltimore City, and the Respondent filed his Petition for Judicial Probate on September 21, 1973. Code, Courts Article, § 5-402. After a hearing on October 24, 1973, the Orphans Court concluded that the Will offered for probate was an original, not a copy, and was in fact the Last Will and Testament of Mrs. Young. The Court appointed the Respondent as personal representative and set the amount of his bond at $2,000.00. The Respondent filed his bond on the same day but never has taken any further steps to complete the administration.
On July 13, 1973, Mrs. Hawkins, in Respondent's presence, paid Mrs. Banks $650.00 for her one-sixth interest in 1646 Moreland Avenue. Respondent evidenced this transfer of cash by executing a receipt for the $650.00 in favor of Mrs. Hawkins. At that time Respondent demanded and received either $40.00 or $60.00 from Mrs. Banks as a "finder's fee" or "commission". On July 31, 1973, Mrs. Hawkins paid the Respondent $20.00 and on August 13, 1973 paid him $10.00 on account of expenses in connection with the administration of the Young estate and the perfection of her legal title to a 100% interest in 1646 Moreland Avenue. These funds were never paid into any special account for the estate or in fact into any bank account the funds are unaccounted for in any way by the Respondent.
In November, 1974, the Respondent began the preparation of a deed from himself as personal representative of the estate of Addie T. Young to Mrs. Hawkins but this document was never completed, nor as noted above was the work in administering the estate required as a condition to its valid execution ever completed.
*611 Conclusions of Law
From these findings of fact, we conclude:
1. That the Respondent violated the Code of Professional Responsibility D.R. 1-102A (3), (4), (5) and (6) in misappropriating the difference between the amounts he charged for recording, documentary stamps, and transfer taxes, and the amounts which he paid for these items and in failing to pay the water bill with the funds entrusted to him in connection with his settlement of 1019 N. Caroline Street; and in misappropriating $337.00 due the buyers of 1019 Valley Street, which funds were entrusted to him as the attorney who conducted the settlement thereof; and in misappropriating $30.00 entrusted to him by Audra Hawkins on account of the expenses of administering the estate of Addie T. Young, deceased, and in perfecting legal title to Mrs. Hawkins as to a 100% interest in the leasehold property known as 1646 Moreland Avenue.
2. That the Respondent violated the Code of Professional Responsibility D.R. 6-101 (A) (2) and (3) in incompetently preparing the settlement sheet to evidence his transfer of 1019 N. Caroline Street and in failing to deliver the deed to that property to the buyer after recording; and in failing to deliver the mortgage which he prepared for the seller of 1019 Valley Street following the settlement which he conducted for the sale of that property; and in failing to complete the administration of the estate of Addie T. Young, deceased, after having been appointed personal representative thereof by the Orphans Court of Baltimore City.
3. That the Respondent violated the Code of Professional Responsibility D.R. 9-102 (A) and (B) (3) and (4) in failing to deposit funds received at settlement of 1019 N. Caroline Street and 1019 Valley Street in identifiable bank accounts maintained by him as the attorney conducting those sales; and in failing to maintain complete records of the settlements which he conducted for the sales of 1019 N. Caroline Street and 1019 Valley Street.
*612 Recommendation
In recommending a sanction in this case we have considered the condition of the respondent's health during the period of the misconduct of which we have found him culpable, which period extended from July, 1973 up until the present time.
Cf. Bar Ass'n of Balto. City v. Siegel, 275 Md. 521 (1975); Maryland St. Bar Ass'n v. Callanan, 271 Md. 554 (1974).
We have no doubt that the physical infirmities which are described in the medical records of his admissions to Lutheran Hospital of Maryland, Bon Secours Hospital, and the Veterans Hospital in Baltimore, Maryland, have been materially contributed to by his chronic alcoholism which substantially pre-dates the misconduct in question. As those medical records disclose, he has been repeatedly hospitalized since July, 1972 with abuse of alcohol always present as one of the contributing causes to the illness which required his inpatient treatment. His appearance and demeanor as a witness before us confirms the disintegration of his mind and body which has followed this alcohol abuse.
Because we believe his misconduct was principally the result of his inability to render, "... adequate legal service by reason of mental or physical illness or infirmity, or addiction to or dependence upon an intoxicant or drug", and because we are convinced that this incompetency continues at this time we recommend this 8th day of December, 1976, that the respondent be placed on an inactive status as provided for in Maryland Rule BV11 a 2.
/s/ Joseph C. Howard
/s/ Robert L. Karwacki
/s/ Martin B. Greenfeld | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/98311/ | 235 U.S. 417 (1914)
ADKINS
v.
ARNOLD.
No. 52.
Supreme Court of United States.
Submitted November 5, 1914.
Decided December 14, 1914.
ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA.
*418 Mr. Lewis C. Lawson for plaintiff in error.
No appearance or brief filed for defendants in error.
*419 MR. JUSTICE VAN DEVANTER delivered the opinion of the court.
This is a suit to foreclose a mortgage upon real property, 80 acres of which was part of a Creek allotment. The allotment was made on behalf of Otheola Adkins after her death, which occurred in her infancy. Her mother was a Creek woman, duly enrolled as such, but her father was not a Creek citizen. The date of the allotment is not given, but it is conceded that the allotment passed a life estate or more to the mother and nothing to the father. After the allotment was completed and the usual tribal deed issued, the father and mother joined in executing and delivering a deed for the 80 acres to one Arnold, who in turn mortgaged it to the plaintiff. The mother was made a defendant to the suit and by her answer set up two defenses requiring notice here. One was to the effect that the deed to Arnold was made in violation of restrictions imposed by Congress upon the right to alienate the land, and therefore was void; and the other was to the effect that the deed did not satisfy the requirements of a law of Arkansas put in force in the Indian Territory by Congress, and therefore did not affect or pass her title. Upon a demurrer to the answer, which set forth the deed and the certificate of its acknowledgment, *420 these defenses were held not well taken and there was a judgment for the plaintiff. The judgment was affirmed by the Supreme Court of the State. 32 Oklahoma, 167.
Other rulings than those just mentioned were made in the cause, but they need not be noticed, for no Federal question was involved in them.
The claim that the deed to Arnold was made in violation of existing restrictions rests upon the assumption that § 16 of the act of June 30, 1902, c. 1323, 32 Stat. 500, imposed restrictions upon the alienation of all Creek allotments. That this is an erroneous assumption is shown in Skelton v. Dill, ante, p. 206. Only allotments to living members in their own right were subjected to restrictions. Allotments on behalf of deceased members were left unrestricted. Thus the mother was at liberty to make a sale of her interest to Arnold if she chose.
A right appreciation of the claim respecting the insufficiency of the deed involves a consideration of the acts of Congress adopting and extending over the Indian Territory certain statutes of Arkansas. The act of May 2, 1890, c. 182, 26 Stat. 81, § 31, put in force, until Congress should otherwise provide, several general laws of Arkansas appearing in Mansfield's Digest of 1884, among them being chapter 104 concerning the rights of married women. Section 4621 of this chapter reads as follows:
"The real and personal property of any femme covert in this State, acquired either before or after marriage, whether by gift, grant, inheritance, devise or otherwise, shall, so long as she may choose, be and remain her separate estate and property, and may be devised, bequeathed or conveyed by her the same as if she were a femme sole; and the same shall not be subject to the debts of her husband."
The act of February 19, 1903, c. 707, 32 Stat. 841, put in force chapter 27 of Mansfield's Digest of 1884 concerning *421 conveyances of real estate, in so far as it was applicable and not inconsistent with any law of Congress. Section 648 of this chapter declares:
"A married woman may convey her real estate or any part thereof by deed of conveyance, executed by herself and her husband, and acknowledged and certified in the manner hereinafter prescribed."
The deed to Arnold, if tested by § 4621 and the applicable decisions of the Supreme Court of Arkansas, was sufficient to pass the mother's title, but if tested by § 648, it probably was insufficient, because not acknowledged and certified in the manner contemplated by that section.
It is insisted that § 648 is inconsistent with § 4621 and should be treated as controlling because its adoption by Congress was the later in time. Assuming that the two sections are inconsistent as claimed, we think § 4621 is controlling. While both were embodied in the Arkansas compilation known as Mansfield's Digest of 1884, § 4621 was a later enactment than § 648 and superseded the latter in so far as they were in conflict. This was settled by the Supreme Court of the State before either section was put in force in the Indian Territory (Bryan v. Winburn, 43 Arkansas, 28; Stone v. Stone, Id. 160; Criscoe v. Hambrick, 47 Arkansas, 235), and we think Congress intended they should have the same force and meaning there that they had in Arkansas. See Robinson v. Belt, 187 U.S. 41, 47-48. Although put in force in the Indian Territory by different acts, they were not adopted as if they were unrelated but as parts of a single system of laws whose relative operation, as determined by the Supreme Court of Arkansas, had become an integral part of them. Pennock v. Dialogue, 2 Pet. 1, 18; Cathcart v. Robinson, 5 Pet. 264, 280. It was upon this theory that the Supreme Court of Oklahoma held the mother's deed sufficient.
Judgment affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/98316/ | 235 U.S. 451 (1915)
MARYLAND STEEL COMPANY OF BALTIMORE COUNTY
v.
UNITED STATES.
No. 104.
Supreme Court of United States.
Argued December 8, 1914.
Decided January 5, 1915.
APPEAL FROM THE COURT OF CLAIMS.
*452 Mr. Walter D. Davidge, with whom Mr. Alexander Preston was on the brief, for appellant.
Mr. Assistant Attorney General Thompson for the United States.
*453 MR. JUSTICE McKENNA delivered the opinion of the court.
Petition in the Court of Claims for judgment for the sum of $4,750.00, balance due upon a contract entered into between petitioner in such court, appellant here, and the United States for the construction of a steel hull twinscrew suction dredge and for installing therein the propelling and other machinery.
There was and is no controversy as to the performance *454 of the contract or as to the amount due upon it. The Government set up as an offset an amount alleged to have been illegally paid on a prior contract between appellant and the Government, which contract, according to the findings of the Court of Claims, (all the facts which we state being the findings of the Court of Claims) was entered into between appellant and the Government on June 24, 1903, for the construction and equipment of a single screw steamer for harbor service of the Quartermaster's Department and submarine cable service, according to certain specifications which were made part of the contract, for a consideration of $88,000.00, to be paid in various amounts as the work progressed, less 10% to be withheld to make good any defects, the vessel to be completed within one hundred and forty days, exclusive of Sundays and legal holidays, or by December 9, 1903.
It was provided that if appellant should "fail to complete and deliver the steamer within the stipulated time it should pay to the United States the sum of $50.00 per day as liquidated damages for each and every day so delayed, exclusive of Sundays and legal holidays, which amount, it was provided, might be withheld from any money due" appellant under the contract.[1]
*455 On December 1, 1903, before the time stipulated for completion had expired, at the request of appellant, owing to unavoidable delays in procuring the necessary material, the Quartermaster General of the Army, within his discretion under the contract, orally waived the time limit in the contract, and subsequently, on April 2, 1904, confirmed the waiver by letter.
On April 1, 1904, or ninety-five days, exclusive of Sundays and holidays, after the time fixed in the contract, the Quartermaster General directed the depot quartermaster at New York to make final payment for the steamer, retaining, however, the 10% to make good any defects there might be in the material and workmanship. On July 13, 1904, the entire sum stipulated to be paid by the Government was paid without any deduction whatever.
It does not appear that appellant unreasonably delayed the work after the waiver of the time limit, or that the Government suffered any actual pecuniary loss or damage by reason of the delay in the completion and delivery of the steamer.
The court found the facts as to the other contract as set out in the petition of appellant and that appellant was paid the stipulated price therefor, less the sum of $4,750, "which [we quote from the findings, 48 Ct. Cls., p. 53] the defendants (the United States) claim was the amount arising as liquidated damages for the ninety-five days' delay of the claimant (appellant here) in the completion of the steamer under the first contract hereinbefore referred to and which amount the defendants further claim was inadvertently and under mistake of fact paid to the claimant company" (appellant). And the court recites *456 that the Government set up by way of counterclaim the amount so paid and that the Government claimed such sum was due as liquidated damages for the ninety-five days' delay of the claimant (appellant) in the execution of the first contract and claimed further that such sum was "inadvertently, improperly and illegally paid by the officers of the Government." The record shows that the counterclaim was filed February 15, 1912.
From the findings of fact the court decided "as a conclusion of law that the petition be dismissed." And this as a consequence of sustaining the counterclaim of the Government, the court deciding that a waiver of the time limit "did not embrace and release from the payment of the agreed damages, which were assessable upon its (appellant's) default." The court said (48 Ct. Cls., p. 60), "Under such circumstances an officer, in the absence of some provision of law or contract therefor, would have no authority to release a contractor from the provision for liquidated damages so arising." This appeal was then taken.
Appellant attacks the conclusion of the court and contends that "the waiver of the time limit in the first contract necessarily tolled the provision in that contract for liquidated damages." The Government, on the other hand, maintains "that the waiver of the time limit simply estopped the Government from annulling the contract, but that this in no way affected the other terms of the contract." It is the effect of the contention of the Government, curious certainly at first impression if we consider the intention of the parties, that the time limit was waived but its sanction was retained, and what seemed to be concession to a delay which was without fault (so found by the Court of Claims) carried with it the full rigor of the bond.
It may be that the Government would have had the right to annul the contract upon the default of appellant *457 and avail itself of resultant remedies. It did not do so, but preferred to retain the contract and extend the time of its execution; and, we may assume, upon a consideration of the circumstances as much in view of the Government's interest as appellant's interest, the Government suffering no damage by the delay, but getting the instrumentality for which it had contracted in time for its purpose, sooner, indeed, it may be, than if it had annulled the contract with appellant and re-let the work to another. These were considerations which the Quartermaster General, in the Government's interest, might well entertain. And it may have seemed to that officer that it would have been as harsh as it would have been useless to sacrifice what had been already done, and faithfully done, by annulling the contract or by refusing to excuse the delay in final performance which was without fault. The case should be judged by that consideration and conduct. But the Government insists that these seemingly natural suppositions cannot be indulged and urges against them the principle of building contracts that if the builder has failed to complete the whole or any specific part of the building or structure within the time limited by his covenant, the other party has the option of abandoning the contract for such failure or of permitting the party in default to go on. If he chooses the latter course he so far waives absolute performance as to be liable on his covenant for the contract price of the work when completed. For the injury done him through the broken covenant he may sue, or, if he waits to be sued, he may recoup the damages thus sustained in reduction of the sum due upon the contract for the completed work. Phillips v. Seymour, 91 U.S. 646, and United States v. Bethlehem Steel Company, 205 U.S. 105, are cited. Cases are also cited which declare the same principle in regard to contracts for the sale and delivery of goods where time is of the essence of the contract. The latter cases were cases of actual damages, and so also was *458 Phillips v. Seymour, where, there being no legal evidence of actual damage, it was decided none could be recovered.
It may be said that a provision for liquidated damages is a declaration by the parties of the fact of damage from delay in the performance of the work contracted for and the measure of its amount, it not being susceptible of exact ascertainment. United States v. Bethlehem Steel Company, supra, is adduced for the application of the proposition to the case at bar. The contract in that case was entered into when war was imminent with Spain and was for the delivery of gun carriages. It contained a clause for a deduction, in the discretion of the Chief of Ordnance, of $35.00 per day from the price to be paid for each day of delay in the delivery of each carriage. The clause was held, considering the circumstances, to be not a penalty but a provision for liquidated damages and that it was competent for the parties to the contract to provide the latter, and, having so provided, recovery might be had "for the amount stated as liquidated damages upon the violation of the contract and without proof of the damages actually sustained." It will be observed, therefore, that a condition of recovery was proof of violation of the contract. The condition does not exist in the case at bar. The contract was not violated. The time for its performance was extended and, we may observe, before any default had occurred. In that case there was no waiver of the time limit; in the case at bar there was an express waiver. That case, therefore, fails in its asserted analogy. Undoubtedly parties may agree that time shall be of the essence of their contract and, the proper legal conditions existing, may stipulate for damages and the measure of them, but they may subsequently change their views and requirements and consider that performance within the stipulated time is unimportant.
Flynn v. Des Moines Ry., 63 Iowa, 490, is directly in point. The plaintiff in the case entered into a contract *459 with the railroad to construct part of its line. Payments for the work were to be made monthly upon the certificate of the engineer of the company, and it was covenanted that 10% from the value of the work as an agreed compensation for damages should be retained by the company in case of failure by Flynn to complete the whole amount of the work according to the stipulations of the agreement. It was contended by the railway company that it was entitled to retain the 10% as liquidated damages. The court found that the stipulation as to time was waived and by being waived was eliminated from the contract and the railway company was not entitled to any sum as liquidated damages.
In the present case, as we have seen from the findings, there was no thought by the officers of the Government of a culpable delinquency on the part of the appellant or of detriment to the Government. The steamer was delivered, tested, approved and paid for.
It was held, however, by the Court of Claims that the Quartermaster General had no power to waive the provision for liquidated damages. It is not clear that counsel contends for so broad a proposition. His contention is that "the Government is not bound by the acts of its officers in making unauthorized payments through mistake of fact or of law." There was no mistake of fact, and by mistake of law counsel may mean, the action of the Quartermaster General was outside of the scope of the official authority given him by law. If that officer so acted the Government is not bound by his acts. Wisconsin Central R.R. v. United States, 164 U.S. 190, 212, and Logan v. United States, 169 U.S. 255, 259.
The cited cases (they are those upon which the Government relies) involved the construction of statutory law, in other words, of a specific law which was the source of the officer's authority. The case at bar is a case of contract, authorized by law, necessarily entered into and *460 conducted by the officers of the Government and as necessarily they must have had the powers to make it effective in its beginning and progress. The Court of Claims recognized this and found that (48 Ct. Cls., p. 52) "the Quartermaster General, United States Army, within his discretion under the contract, orally waived the time limit in said contract," a very essential discretion which might have been embarrassed or defeated if it had not extended to what depended upon the time limit of the contract. We think the case, therefore, falls under the ruling of Salomon v. United States, 19 Wall. 17, 19-20, where it is said that "The Act of 1862 (12 Stat. 411), requiring contracts for military supplies to be in writing, is not infringed by the proper officer having charge of such matter, accepting delivery of such supplies after the day stipulated, nor is a verbal agreement to extend the time of performance invalid." See also District of Columbia v. Camden Iron Works, 181 U.S. 453.
Judgment reversed and cause remanded with direction to dismiss the counter petition of the Government and to enter judgment for appellant in the amount claimed by it.
MR. JUSTICE McREYNOLDS took no part in the consideration and decision of the case.
NOTES
[1] "That the Maryland Steel Company shall complete the construction and equipment of the said steamer and deliver same to the party of the first part in New York Harbor, or as directed by him, in one hundred and forty (140) days, exclusive of Sundays and legal holidays, from the date of this contract. And it is hereby agreed that in case the party of the second part fails to complete in all respects and deliver the said steamer within the time herein specified, the loss resulting to the United States from such failure is hereby fixed at the rate of fifty ($50) dollars per day for each and every day, exclusive of Sundays and legal holidays, completion and delivery of the vessel is delayed beyond the period hereinbefore specified, and it is hereby stipulated that the party of the first part may withhold such amount as liquidated damages from any money due and payable to the party of the second part by the United States for work done under this contract. In the event of the act of God, war, fire, or strikes and lockouts of workmen affecting the working of this contract, the date of completion of the steamer may be extended for such period as may be deemed just and reasonable by the party of the first part, to cover the time lost from any of the above mentioned causes." | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1920283/ | 279 Md. 225 (1977)
369 A.2d 61
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
HERBERT LEONARD POLLACK
[Misc. Docket (Subtitle BV) No. 4, September Term, 1976.]
Court of Appeals of Maryland.
Decided January 24, 1977.
The cause was submitted to MURPHY, C.J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.
ORDER
This Court having considered the recommendation of the Supreme Bench of Baltimore City and the record filed in the above entitled matter and no exceptions having been filed to the recommendation, it is this 24th day of January, 1977
ORDERED, by the Court of Appeals of Maryland, that the recommendation be adopted and that Herbert Leonard Pollack be, and he is hereby, suspended from the further practice of law in the State of Maryland for a period of six months, beginning February 22, 1977; and it is further
ORDERED that the clerk of this Court shall strike the name of Herbert Leonard Pollack from the register of attorneys in this Court and certify that fact to the Trustees *226 of the Clients' Security Trust Fund and the clerks of all judicial tribunals in the State in accordance with Rule BV13.
/s/ Robert C. Murphy
/s/ Frederick J. Singley, Jr.
/s/ Marvin H. Smith
/s/ J. Dudley Digges
/s/ Irving A. Levine
/s/ John C. Eldridge
/s/ Charles E. Orth, Jr.
Filed: January 24, 1977
/s/ James H. Norris, Jr.
Clerk
Court of Appeals of Maryland
MEMORANDUM OPINION OF THE PANEL
WATTS, KARWACKI, and SULLIVAN, JJ.
On June 21, 1976, The Bar Counsel of Baltimore City (The Bar Association) filed in this Court a petition instituting disciplinary proceedings against Herbert L. Pollack, a member of the Maryland Bar since 1958. On July 6, 1976, The Court of Appeals of Maryland entered an Order pursuant to `Maryland Rule BV 9, et seq. referring the matter for hearing and determination to a three-judge panel of the Eighth Judicial Circuit.
The Attorney Grievance Commission of Maryland has charged that Herbert L. Pollack, a member of the Maryland Bar since 1958, did violate DR 6-101 (A) (3) and DR 7-101 (A) (2), Code of Professional Responsibility, Rule 1230, Appendix F, Maryland Rules of Procedure, through his neglect of legal matters entrusted to his professional care. There are three allegations of professional misconduct.
(i)
Failure to secure a divorce and child support for Mrs. *227 Evelyn E. Hicks after receiving a retainer fee of Three Hundred Fifty Dollars ($350.00) in advance.
(ii)
Failure to secure a divorce for Mr. Fred Matheson after receiving a retainer fee of Five Hundred Dollars ($500.00).
(iii)
Failure to represent Mrs. Bonnie L. Rouiller as administratrix of her late husband's estate. Pollack failed to transfer stock certificates, change an automobile title, and to process a small insurance policy.
A hearing on these charges was held on September 24, 1976 and October 1, 1976. The finding of facts of the three judge panel follows:
HICKS
(Mrs. Evelyn Hicks died in the fall of 1975. Counsel stipulated to the following facts:)
In September, 1973, Pollack was retained by Mrs. Evelyn Hicks (Hicks) to handle a domestic case for her. He was paid three hundred fifty dollars ($350.00) in advance, and was also to be paid for any cost incurred. On October 23, 1973, he filed on her behalf a Bill of Complaint and a Show Cause Order for permanent alimony. He also appeared at two hearings, outside of the equity courts, with regard to support and arrearages owed Mrs. Hicks by her husband. (T., p. 63).
A complaint was filed by Hicks with the Bar Association in June, 1974. This complaint formed part of the subject matter of the hearing of February 12, 1975. Subsequent to this hearing her case was transferred, with her permission to Mr. Crawford by Mr. Pollack. Before her death in the fall of 1975 Pollack returned one hundred seventy-five dollars ($175.00) to her. (T., p. 100). At the time of the panel hearing in October, 1975, she advised the Bar Association that she no longer wanted to pursue the matter. (T., p. 63).
*228 MATHESON
In January of 1974, Mr. Fred Matheson (Matheson) consulted Pollack for the purpose of obtaining a divorce from his wife, Willie Matheson. (T., p. 108). During their preliminary negotiations, Matheson explained to Pollack that his wife had a long history of alcoholism, had been institutionalized several times, and that her last known address was Spring Grove State Hospital. The couple had been separated for approximately eight (8) years. (T., pp. 30-32). The contract entered into between Matheson and Pollack provided for a five hundred dollar ($500.00) fee to be paid in advance; one hundred fifty dollars ($150.00) was paid after the initial meeting, and in March, 1974, Matheson gave Pollack a check for the balance of three hundred fifty dollars ($350.00). (T., p. 33).
About two or three months after the initial contact with Pollack, Matheson experienced difficulty in contacting him at either his office or his home for a period of several months. (T., p. 7). Matheson subsequently wrote to the Bar Association of Baltimore City (Bar Association) and requested their assistance in ascertaining what action, if any had been taken on his behalf. (P. X 1). In response to his letter, Matheson received a telephone call from the Bar Association and a letter which confirmed the telephone conversation. (T., p. 8). Counsel for the Bar Association advised Matheson to telegram Pollack, which he did, but the telegram could not be delivered. (T., p. 10). Matheson subsequently had several phone conversations with an attorney for the Bar Association and received notice of a preliminary hearing to be held on the subject matter of his complaint. (T., p. 12).
A hearing was set for February 12, 1975, which Matheson did not attend. (T., p. 13). Subsequent to that hearing Matheson was directed by the Bar Association to contact Mr. James E. Crawford, Esq. (Crawford) and was told that he was to handle the divorce proceeding for Mr. Pollack. (T., p. 15). Matheson spoke with Crawford who thereupon contacted Mr. Pollack. Pollack telephoned Matheson about *229 two weeks later. (T., p. 12). Pollack indicated to Matheson that a hearing would be held on his divorce on or before April 15, 1975. (T., pp. 19-20).
Matheson had not heard from Pollack by April 15, 1975, and wrote a second letter to the Bar Association. (P. X 2). Subsequent to this letter he was notified that there would be a hearing on his complaint. (T., p. 21). Mr. Pollack contacted Matheson and asked him if he knew that a hearing had been scheduled. He excused the delay through illness, domestic strife, and difficulties in serving Mrs. Matheson. (T., p. 22). A hearing scheduled by the Bar Association on October 15, 1975, was continued at Matheson's request because he was satisfied with Pollack's explanations. (T., p. 23). However the hearing was subsequently scheduled on October 28, 1975, which was postponed because Matheson's witness could not appear. A second hearing was set for February 6, 1976, from which the divorce decree issued. On March 5, 1976, the Matheson divorce became final. (T., p. 28).
At his appearance before the three judge panel on September 24, 1976, Pollack described a long history of marital difficulties as mitigation. An already poor marital situation grew progressively worse from 1972 - 1974. The summer of 1974 was a period of rapid deterioration. As a result of a violent argument in July of 1974, the couple separated. In December of 1974, Mrs. Pollack took an overdose of sleeping pills and called Mr. Pollack. That evening Mr. Pollack drove to Atlantic City and brought her back to Baltimore. Both he and Mrs. Pollack's daughter convinced her to consult a psychiatrist because of her depressed state of mind. At this hearing, the following exchange took place. (T., p. 96).
"THE CHAIRMAN: That is your mental state and condition and relationship with your wife was to the extent that you couldn't function completely and that is the reason for all three? (three separate complaints)
MR. POLLACK: I would say that was a contributing factor. If you are talking in regards to *230 the Matheson case, we had trouble getting service. I had trouble resolving to myself that I could go on publication with a history like Willie Matheson, that is Fred Matheson's wife, having been in and out of institutions for alcoholism, I was hesitant. I had contacted, yes, I guess it did affect me because it was after one of the hearings, I think, after that I sent registered letters to, registered and regular mail, to three different addresses hoping that some place she would get a letter and it did work out that way because the supervisor from Spring Grove forwarded it to her and she contacted me and I told her she has to get an attorney to file an answer. She wrote a direct letter to the court and the matter was heard before Master Kenney, and resolved." (T., p. 97).
Later, during his testimony at the hearing, Pollack was asked: (T., p. 106).
MR. HOWARD: With regard to the Matheson matter, when did you send the three letters, one of which ultimately reached her through the director of Spring Grove?
POLLACK: October 25, 1975.
JUDGE KARWACKI: That was the first of the letters?
POLLACK: That was when I sent the letters to Spring Grove. It was after that that I had knowledge she was at Spring Grove. That was after the panel hearing, if that is what you are referring to.
JUDGE KARWACKI: My original question is what did you do between the summer of 1975 and the panel hearing?
POLLACK: The summer of 1975 and the panel hearing, I tried to contact, I made phone calls, to her brother, I had tried to call the hospital, the hospital wouldn't give you any information and it was after that I finally sent these letters out.
*231 It is apparent that Pollack did little in furtherance of his client's interests between the summer of 1975, and the Bar Association's hearing on October 15, 1975. Moreover, the Bar Association had contacted James E. Crawford, Esq., and arranged for him to handle the matter for Pollack. Mr. Pollack failed to act before the hearing was held before the Grievance Committee. As a result, Mr. Matheson's divorce was delayed for a period of two years.
ROUILLER
In December of 1972, Mrs. Bonnie Rouiller (Rouiller) retained Pollack for the purpose of settling the estate of her husband, Richard E. Rouiller, who had died in November of 1972. (T., pp. 39-40). Prior to that time the estate was opened, bond was obtained, notice to creditors was published, and Mrs. Rouiller was appointed the administratrix of the estate. (P. X 4). Rouiller explained to Pollack that the matter involved changing the name of several stock certificates from her husband's to her own and her daughter's names, transferring a car title to her, and settling a small insurance policy. (T., p. 40).
Between December, 1972, and February, 1974, Rouiller had several phone conversations with Pollack on these matters. In March of 1974 Rouiller informed Pollack that her oldest daughter would be marrying and asked him if that would involve another name change on the stock certificates. (T., p. 40).
Rouiller believed that, at the time of her husband's death, his car was titled in the name of his company, W.K. Ports & Co. (T., pp. 53-54). Because she did not hear from Pollack on this matter, Rouiller obtained a copy of the registration from the Department of Motor Vehicles (T., p. 48); this title was in her husband's and her own name. (T., p. 54). When she sold the car, sometime in 1974, she presented this duplicate and a copy of her husband's death certificate to the purchaser. (T., p. 48).
In October, 1974 Pollack visited Rouiller at her place of employment and asked her to sign several papers. He *232 indicated that they concerned the estate, but she did not understand their legal significance. Pollack told Rouiller that the whole matter would be settled within two weeks. Pollack also visited Rouiller at her home on October 28th. He brought her some papers to sign and told her that the estate was about to be closed. (T., p. 58).
Because she had not heard from Pollack, Rouiller filed a grievance with the Bar Association in May of 1975. (P. X 3). On September 3, 1975, she met with Crawford who was acting as Pollack's attorney at the request of the Bar Association. (T., p. 43). He told her that he had been unable to contact Pollack by phone and that he had sent a registered letter to him.
Rouiller was unable to determine what legal action had been taken on her behalf and decided to consult another attorney, Claude L. Callegary (Callegary). Callegary made several inquiries and informed Rouiller that the estate had been closed since October, 1974. In September of 1975, Pollack turned the stock certificates over to Callegary who has held them since that time. (T., p. 44).
During his appearance before the three judge panel, Pollack was asked to explain his handling of this matter. Mr. Pollack had no explanation for his inaction except his state of mind. (T., p. 94):
"POLLACK: For me, to, well, I can't offer an excuse for my being dilatory. I can say that my favorite expression, hindsight, I can look back and give reasons why I acted a certain way and the reasons I acted that way is because my mind, I was going through a traumatic period and my mind was not functioning properly. Or, I wasn't in a mental state where I, where I would carry through or complete something that I had started. This didn't happen everyday and this didn't happen every matter, but, this situation with Mrs. Rouiller and the stocks, the court has before it the file from West Baltimore County that will reflect there were three cases that I ordered letters, twelve copies of *233 letters of administration which had to accompany the stock certificates for transfer. I, forms filled out which were turned over to Mr. Callegary. I went to a point, and I don't know why, I can't offer an explanation."
Later, during the same hearing, the following exchange took place: (T., p. 114).
JUDGE SULLIVAN: There was some testimony about Mrs. Rouiller, ..., there was a car title and insurance policy left with her in addition to the stock certificates?
POLLACK: Yes.
JUDGE SULLIVAN: Do you know where the title to that automobile is?
POLLACK: I have the title to that automobile. Now, the, I have to clarify that. I have a title to that automobile in the W. Port Company, and I have, no, nothing to indicate that the title is, that, it is a little confusing. I don't think the title to that automobile was in W. Port Company as it was given to me and I believe was testified that before, correct me if I am wrong, before his death, Mr. Rouiller, and W. Port Company had put that car in their names. (T., p. 115).
JUDGE WATTS: Well, two parties?
POLLACK: And not Mr. and Mrs. Rouiller which is not the title was given to me.
JUDGE KARWACKI: In other words, you think you had an old obsolete title?
POLLACK: Yes.
JUDGE SULLIVAN: How about the insurance policy?
POLLACK: The letter and the policy was written and sent to the insurance company. And the letter stipulated, stated in there that the proceeds would be sent directly to Mrs. Rouiller and the reason was *234 that there was no banking account opened up or on the estate and sent directly to her.... .
JUDGE SULLIVAN: Was the receipt of the policy acknowledged and the death claim acknowledged?
POLLACK: I don't have any knowledge.
JUDGE SULLIVAN: Do you know it?
POLLACK: No, but I sent
JUDGE SULLIVAN: In the form of an acknowledgement? You sent the insurance and the form claim that his policy (T., p. 116).
POLLACK: Yes, there was testimony in it.
MR. CRAWFORD: Your honor, we will offer this as Respondent's Exhibit No. 1. (R X 1).
PROFESSIONAL MISCONDUCT
On September 24, 1976, Pollack testified before the three judge panel that prior to the first letter of complaint sent to the Bar Association on these cases, no charges had ever been placed against him. The following exchange took place: (T., p. 84).
POLLACK: No, no charges were ever placed against me. There was one time I received a phone call from a Mr. Baker who was on the Grievance Committee of Baltimore City, it was a frivolous thing, resolved.
MR. CRAWFORD: How long ago was that?
POLLACK: It would have been back in 1960's.
POLLACK: I don't remember the exact (date).
Later at the same hearing, on cross examination: (T., p. 116).
MR. HOWARD: Mr. Pollack, you indicated that a complaint or some allegation against your professional conduct was lodged in the mid 60's? Would that complaint have been filed sometime, or *235 be as a result of representation of a client prior to June of 1966?
POLLACK: I don't recall.
MR. HOWARD: Would you recall if the name of the client involved or the complainant was Louis Maloff? (T., p. 117).
POLLACK: I recognize the name, Louis Maloff.
MR. HOWARD: Did you represent Louis Maloff?
POLLACK: I represented him, yes. I said I recognized the name.
MR. HOWARD: And you indicate to this panel that the matter was closed with no official action?
POLLACK: That is my recollection of it.
MR. HOWARD: If I advised you you were reprimanded by the Executive Committee of the Bar Association of Baltimore City (T., p. 117).
POLLACK: I recognize the name, but I do not remember or recall the outcome of it.... I thought the complaint had been dismissed.
(The hearing was continued in order to allow the counsel for the Bar Association to obtain the minutes of the Executive Committee of the Bar Association of June 1966.)
When the hearing resumed on October 1, 1976, counsel entered into a stipulation of facts based on the official minutes of the Executive Committee of the Maryland State Bar Association of June 1966. A reprimand was issued by the Executive Committee in June of 1966, for the reason that Pollack had been dilatory with regard to a real estate transaction; specifically, with regard to filing the documents related to that transaction. (#2T., p. 2).
During his explanation of the circumstances surrounding that transaction, the following exchange took place: (#2T., pp. 3-5).
POLLACK: This situation took place about eleven years ago and until ... things were brought to my attention I didn't have too much memory or *236 recall on it. However, Mr. Maloff had a Texaco Gas Station at one time on what would be the east side of Reisterstown Road...
Now I had frequented Mr. Maloff's Texaco Station as well as his motor repair place. I had done work in representations for him. He did work on my car and I, as a practice, paid cash for work on the car. The work wasn't satisfactory.
I then represented him in a real estate matter. Now, I don't recall whether it was a ground rent redemption or purchase. There is a difference as far as monetary matters are involved. If it had been a purchase, a mortgage would have been involved, papers would have been I would have been rushed to put them on to protect the lending institution or the mortgagee. In this particular case I held the papers and did not put them on record. I was angry, disturbed, mad, trying to get my money back for work that Maloff did on my car that I felt he hadn't done properly. The next thing that I recall with the aid of these papers is that I put the papers on record. Maloff had gone to see another attorney and I didn't know who the attorney was or when the attorney contacted me. But I recorded the papers after being contacted and that's it.
MR. CRAWFORD: And you had testified prior that you did not recall a formal reprimand for these circumstances. Do you now recall the reprimand?
POLLACK: I have been shown a letter and I recall or I received the letter at the time I was working for the City and according to the address it was delivered to me in the right of way division of the City office.
CONCLUSIONS OF LAW
Maryland Rule 1230 (added October 13, 1970), which adopted the Code of Professional Responsibility of the American Bar Association as set forth in Appendix F of the *237 Maryland Rules, deals with, in Canon 6, a lawyer's competent representation of a client as follows:
DISCIPLINARY RULES
DR 6-101 Failing to act competently
(A) A lawyer shall not:
(1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.
(2) Handle a legal matter without preparation adequate in the circumstances.
(3) Neglect a legal matter entrusted to him.
It is the well-settled law of this State that the purpose of a disciplinary action is not to punish the offending attorney, but "is to protect the public from one who has demonstrated his unworthiness to continue the practice of law." The purpose of such proceeding has been characterized: "as a catharsis for the profession and a prophylactic for the public." See Maryland State Bar Association v. Agnew, 271 Md. 543-549 (1974). When it has been demonstrated that a lawyer was inattentive to his client's interest or lacks competence in dealing with legal matters, he has violated the Canons and should be disciplined. The Bar Association and the Supreme Bench must be vigilant in protecting the public against individuals who represent themselves to be competent and skillful and who neglect matters entrusted to them. As Judge O'Donnell stated in Maryland State Bar Association v. Phoebus, 276 Md. 353, 361 (1975):
"Because of the vital role an attorney, licensed to practice plays in the legal process, he must act with competence and proper care in representing his clients. His admission to the Bar attests to the public that he has met the standards for admission *238 and is competent to discharge his duties toward his clients with strictest fidelity. Once retained he must carefully safeguard the interest of his clients, must be diligent in his representation of the client's interest, must give appropriate attention to his legal work, and must observe the utmost good faith in his professional relationship. See Canon 6, EC 6-1 et seq. His right to continue to practice may be brought into question in a disciplinary proceeding, based upon conduct showing him to be unfit to continue to exercise the duties and responsibilities of an attorney."
The panel is aware that attorneys must deal with many disgruntled and difficult clients. However, in this case the complaints were justified and were not the result of anger, revenge, or recrimination. The witnesses against Mr. Pollack were understanding and forgiving.
The testimony has clearly demonstrated to this panel that Mr. Pollack acted incompetently, carelessly and negligently with respect to all three matters entrusted to him. At one point, he was candid with the panel and testified that "I have no excuse for being dilatory." This judicial admission of guilt strengthens the case against him.
The severity of the sanction to be imposed is dependent on the facts and circumstances of each case. The Court may consider facts of mitigation as well as an attorney's prior misconduct and any previous disciplinary sanctions which may have been imposed. See Maryland State Bar Association v. Phoebus (supra), and Bar Association of Baltimore City v. Dearing, 274 Md. 66 (1975) where neglect was found to be grounds for a two year suspension.
In the Pollack situation, if it were only one instance of negligence a reprimand might be sufficient. However, we have three separate cases of neglect and incompetence.
The cases supporting suspension in similar circumstances are numerous. In Spindell v. State Bar, 530 P.2d 168 (1975), the California Court held that the delay of an attorney in obtaining a dissolution of a divorce for his client's marriage *239 as well as a failure to communicate with her, despite her persistent efforts to speak with him, justified a finding of willful dereliction in the discharge of professional duties, even though there was no deliberate intent to ignore client's needs. In In re Albert, 212 N.W.2d 17 (1973) the Michigan Court held that an attorney's inattention to the duties of his client, even if unaccompanied by moral delinquency, may call for censure and suspension.
There is no indication of deceit, fraud or dishonesty on the part of Mr. Pollack. The panel is also aware that Mr. Pollack did not profit or unjustly enrich himself by his acts. However, Courts have also generally held that returning all or part of fees does not excuse attorney's breach of professional conduct. See Ferris v. Oneida County Bar Association, 297 N.Y.S.2d 280 (1969).
The panel is aware that mitigating circumstances may be considered in determining the punishment to be imposed. Marsh v. State Bar, 2 Cal.2d 75 (1934).
Respondent urges that the Court not impose sanctions and cites Respondent's mental and emotional state as its reasons therefore. He produced several members of the Bar who testified in support of his depressed and unstable mental condition which was caused by the break-up of his marriage. He claimed he was experiencing a period of stress and trauma and was unable to complete work he began. It was also agreed by all parties that he was very contrite about his neglect of his client's matters. The panel did find that he was going through a very stressful domestic period and gave that fact some weight in mitigation. However, the panel believes this situation does not excuse his dilatoriness because he was not completely disabled by his emotional turmoil. These matters did not require hours of concentrated work; it would have required very little effort to complete them. Therefore, there was no excuse for the prolonged failure to attend to clients' business.
Finally, in its determination of the disciplinary sanction the panel was concerned by Respondent's lack of candor in testimony about prior involvement with the Bar Association. Initially he testified that he had a minor *240 problem which was resolved on the telephone with an attorney representing the Association. It was only after the minutes of the Executive Committee of the Maryland State Bar Association were produced, indicating that in June, 1966, he was reprimanded by the Grievance Committee that his recollection became more clear. In that matter he admitted that he delayed in recording a Ground Rent Deed in order to obtain money which he felt the client owed him as a result of unsatisfactory work done by the client on his car. In other words, he allowed his personal business to interfere with his law business and failed to act with diligence.
The Respondent's lack of candor with the Court, and the failure of that reprimand to impress upon him the seriousness of his duties as an attorney were considered by the panel.
RECOMMENDATION
The three judge panel unanimously agree that negligent and unprofessional conduct merits disciplinary action. It is also the unanimous opinion of the panel that the petitioner should not be disbarred. After giving serious consideration to all of the factors of mitigation and extenuating circumstances the panel unanimously recommends that Herbert Leonard Pollack be suspended from the practice of law for Six (6) months.
/s/ Robert B. Watts
/s/ Robert L. Karwacki
/s/ Robert L. Sullivan, Jr.
Dated: November 30, 1976 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920363/ | 447 N.W.2d 192 (1989)
In the Matter of Marvin Darrold JASMER.
No. C3-89-344.
Supreme Court of Minnesota.
November 3, 1989.
*193 Thomas Price and Thomas C. McNinch, Sherburne County Attys. Office, Elk River, for appellant.
Robert Adams, Buffalo, for respondent.
Considered and decided by the court en banc without oral argument.
*194 COYNE, Justice.
We granted the petition of Sherburne County for review of the 2-1 decision of the court of appeals affirming the determination that Marvin Jasmer is mentally ill but reversing a determination that he is dangerous. We reverse that part of the court of appeals' decision holding that the state failed to prove that Mr. Jasmer is dangerous and we reinstate the judgment of the district court.
Mr. Jasmer is a 61-year-old man with a long history of mental illness. From 1961 to 1964 he was committed to the Anoka Hospital. It appears that he had frequently assaulted his wife and that on one occasion he had used a flashlight to beat her into unconsciousness. In November of 1963 he escaped from the hospital. When a deputy sheriff came to pick him up at the place where he was found to be living in February of 1964, he pulled a loaded gun on the deputy.
Mr. Jasmer has refused to sign a waiver allowing access to his VA records, so we do not know whether those records might reveal something about his life and mental health in the period between the mid-1960's and the present. We do know that he was divorced in 1966 and that he has lived in Texas and Florida at varying times. He apparently has a Florida arrest record for vagrancy, aggravated assault and resisting arrest. In 1984 he was charged as a result of his conduct following a stop by a police officer, but apparently nothing came of that arrest. Neighbors have complained about him to the police on a number of occasions. On one occasion he grabbed a neighbor in the neighbor's garden and then kicked him in the back. He is suspected of shooting neighbors' animals and of shooting several years ago at a neighbor woman named Rolfe.
The incident that led to the current hospitalization of Mr. Jasmer occurred on the afternoon of April 14, 1988, and involved Mrs. Rolfe's son. Fifteen-year-old Shad Rolfe was in his own driveway, shooting baskets at a basketball hoop attached to the family garage. Jasmer came out with a .410 shotgun loaded with 7½ shot and yelled something unintelligible in Shad's direction. Shad saw the gun and began running toward the house as Jasmer fired the gun in the boy's direction from a distance of 65 to 80 feet. The shot hit the garage, spraying into an area of the garage three to four feet in diameter. The shot apparently missed Shad by three to four feet.
Mr. Jasmer was charged with attempted second degree murder and with assault with a dangerous weapon. The trial court, Honorable Robert B. Danforth, Judge, acting as ultimate fact finder in a case tried without a jury, acquitted Jasmer of the charge of attempted murder but found him guilty of the charge of assault with a dangerous weapon. The court decided that the state (a) did not prove beyond a reasonable doubt that Jasmer intentionally attempted to kill the boy, but (b) did prove beyond a reasonable doubt that he aimed the gun in the direction of the boy and fired it without caring whether or not it hit the boy.
Subsequently, Mr. Jasmer was determined not competent to participate in his sentencing. Accordingly, the imposition of sentence was stayed indefinitely and the state brought this petition to have Jasmer committed as mentally ill and dangerous. The parties agreed that the trial court, Honorable Dale E. Mossey, Judge, could consider the transcript of the criminal trial and Judge Danforth's findings, which were on file in the district court, but that he was not bound to accept Judge Danforth's findings or conclusions. The only witness at the commitment hearing was Dr. Farnsworth, a consulting psychiatrist at the State Security Hospital. He testified that Jasmer is suffering from schizophrenia and that he is paranoid and believes that he is constantly being bombarded by his neighbors and others with radiowaves and microwaves. The doctor testified that, based on his examination of the records (Jasmer refused to talk with him), it was his opinion that Jasmer is mentally ill and dangerous. Specifically, he said that he felt that intentionally shooting at someone is a dangerous act satisfying the overt act requirement of the statute and that there is a *195 substantial likelihood that Jasmer will again engage in acts capable of inflicting serious physical harm on another person. He further stated that he felt there were no lesser alternatives available to Jasmer's being committed as mentally ill and dangerous.
Judge Mossey agreed, finding among other things that, based on the evidence that Jasmer intentionally shot at the boy and based on other evidence, Jasmer had engaged in an overt act causing or attempting to cause serious physical harm to another and that there was a substantial likelihood that he will again engage in acts capable of inflicting serious physical harm on another person.
The majority opinion of the court of appeals stated that the trial court relied solely on the shooting of the boy as the overt act and that the shooting did not constitute an "attempt," within the meaning of the commitment statute, to cause serious physical harm. In re Jasmer, 441 N.W.2d 842, 844 (Minn.App.1989). One judge dissented. Id. at 844-45.
The commitment statute, Minn.Stat. § 253B.02, subd. 17 (1988), defines a person who is "mentally ill and dangerous" as:
[A] person (a) who is mentally ill; and (b) who as a result of that mental illness presents a clear danger to the safety of others as demonstrated by the facts that (i) the person has engaged in an overt act causing or attempting to cause serious physical harm to another and (ii) there is a substantial likelihood that the person will engage in acts capable of inflicting serious physical harm on another.
We have interpreted this statute strictly. See our recent decision in In re Kottke, 433 N.W.2d 881, 884 (Minn.1988), reversing a "mentally ill and dangerous" (MID) commitment because the state's evidence indicated that Kottke, in assaulting two persons by swinging at them, neither inflicted nor intended to inflict "serious physical harm."
The statutory definition of mentally ill and dangerous to the public and procedures for such persons are designed both to protect mentally ill persons from MID commitment solely on the basis of predictions of future dangerousness and to protect the public from the actions of persons found to be dangerous to the public. The prediction that "there is a substantial likelihood that the person will [in the future] engage in acts capable of inflicting serious physical harm on another" must be accompanied by evidence that on at least one occasion in the past the person has engaged in an overt dangerous act that is, an act "causing or attempting to cause serious physical harm to another."
Conviction of a crime is not a prerequisite to commitment as mentally ill and dangerous to the public. Because criminal liability can be imposed only on proof beyond a reasonable doubt, acquittal in a criminal proceeding does not foreclose later commitment as mentally ill and dangerous to the public, which need be demonstrated only by clear and convincing evidence. Minn.Stat. § 253B.18, subd. 1 (1988); cf. In re Estate of Congdon, 309 N.W.2d 261, 269-70 (Minn.1981) (homicide acquittal did not preclude a subsequent civil proceeding to determine entitlement to inherit under will and trusts). Furthermore, section 253B.02, subd. 17, does not require that an overt act "attempting to cause serious physical harm to another" constitutes an "attempt" within the meaning of Minn.Stat. § 609.17, subd. 1 (1988). If a mentally ill person deliberately aims and fires a .410 shotgun at another person or drives an automobile at a speed of 100 m.p.h. into a crowd of people on a residential street, that person has "engaged in an overt act causing or attempting to cause serious physical harm to another" regardless of intent or the outcome of the action. The action is equally dangerous to the public whether the actor had an intention to cause harm and whether the actor had the capacity to form an intention to cause harm or even to recognize its potential for causing serious harm. If the state proves that as a result of mental illness a person presents a clear danger to others as demonstrated by clear and convincing evidence (1) that the person has engaged in an overt dangerous act capable of causing serious *196 physical harm to another, and (2) that there is a substantial likelihood that the person will do so again, the requirements of the statute have been met.
The record in this case reveals that Jasmer has a long history of using loaded guns to scare people, that he once knocked his wife senseless, and that he deliberately and without justification aimed and fired a shotgun directly at a young neighbor without caring whether or not he hit the boy. We are satisfied that the trial court was justified in finding not only that Jasmer is mentally ill and that there is a substantial likelihood that in the future he will engage in dangerous acts but also that he has engaged in an overt dangerous act an act attempting to cause serious physical harm to another. Accordingly, we reverse that part of the court of appeals' decision reversing the determination that Jasmer is dangerous, and we reinstate the decision of the trial court.
Reversed in part and judgment of the district court reinstated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920367/ | 152 Wis. 2d 1 (1989)
447 N.W.2d 64
Cindy PARKER, n/k/a Cindy Krueger, Petitioner-Respondent,
v.
Wayne R. PARKER, Appellant.[]
No. 88-2267.
Court of Appeals of Wisconsin.
Submitted on briefs May 8, 1989.
Decided July 18, 1989.
*2 For appellant there was a brief by Jack Longert and Paul LaZotte and Legal Assistance to Institutionalized Persons Program, Madison.
Before Cane, P.J., LaRocque and Myse, JJ.
LaROCQUE, J.
Wayne Parker appeals an order denying his request that his child support obligations be temporarily eliminated while he is imprisoned. The issue is whether the trial court abused its discretion by finding that Parker's incarceration for felony theft was not a *3 substantial change in circumstances warranting a modification of the child support order. We conclude that the trial court's refusal to modify the order was not an abuse of discretion and affirm.
Wayne and Cindy Parker were divorced in 1974. Cindy was awarded custody of the Parkers' two children, and Wayne was ordered to pay $40 per week for child support. Twelve years after the divorce, Wayne was convicted of theft and a five-year prison sentence was stayed. He was placed on probation for five years. During the probation period, Parker, while self-employed in the wholesale meat business, was found in contempt for his failure to pay child support. He had accumulated an arrearage of $22,018.64. Then, approximately a year after his conviction, Parker's probation was revoked and he was sent to prison. Parker is not employed while in prison because of an unavailability of positions and receives only a stipend of eight cents per hour for forty hours per week. Fifteen percent of this income must be placed in his release account, which now contains approximately $89 but is not available to him until he is released from prison. See Wis. Admin. Code sec. HSS 309.466(1) and (2) (1987). Parker has no other assets.
After serving approximately ten months of his prison sentence, Parker petitioned for suspension of his support obligation during the period of incarceration. After a hearing, the trial court denied the petition on grounds that Parker's voluntary and intentional acts caused his plight. Parker appeals the order denying relief.
[1, 2]
A trial court's decision whether to modify a support order will be upheld if the court rationally exercised its discretion. Tozer v. Tozer, 121 Wis. 2d 187, 189, 358 N.W.2d 537, 539 (Ct. App. 1984). Child support orders *4 may be modified only "where there has been a substantial or material change in the circumstances of the parties or children." Anderson v. Anderson, 72 Wis. 2d 631, 649, 242 N.W.2d 165, 174 (1976). The burden of demonstrating such a change in circumstances to justify a modification is on the party seeking the modification. See Roellig v. Roellig, 146 Wis. 2d 652, 659, 431 N.W.2d 759, 762 (Ct. App. 1988).
The failure of the current child support payment system is well documented.[1] Census data from 1986 indicates that in Wisconsin only 65% of single custodial parents even had a child support award.[2] Of those, slightly more than one-half actually received the full amount ordered.[3] Given this lax enforcement of existing child support awards, the legislature has established a stringent standard for modification.
Whether incarceration is a "change in circumstances" warranting modification of a child support obligation has not been addressed by a Wisconsin court. Other state courts are divided over whether imprisonment should result in a reduction in the noncustodial parent's child support obligation. See Clemans v. Collins, 679 P.2d 1041 (Alaska 1984); Pierce v. Pierce, 412 N.W.2d 291 (Mich. App. 1987); Foster v. Foster, 99 A.D. 284, 471 N.Y.S.2d 867 (N.Y. 1984); Edmonds v. Edmonds, 633 P.2d 4 (Ore. App. 1981); Leasure v. Leasure, 549 A.2d 225 (Pa. Super. Ct. 1988) (granting modification). But, c.f., Noddin v. Noddin, 455 A.2d *5 1051 (N.H. 1983); Vetternack v. Vetternack, 334 N.W.2d 761 (Iowa 1983); Ohler v. Ohler, 369 N.W.2d 615 (Neb. 1985) (denying modification).
We have considered whether child support should be reduced because the noncustodial parent's earning capacity has diminished for reasons other than incarceration. See, e.g., Tozer, 121 Wis. 2d at 189, 358 N.W.2d at 539 (father failed to prove change in circumstances warranting reduction in child support where he quit his job before securing future employment); Erath v. Erath, 141 Wis. 2d 948, 417 N.W.2d 407 (Ct. App. 1987) (father's inability to obtain loan to pay maintenance as anticipated at trial was not a substantial change in circumstances mandating child support modification); Abel v. Johnson, 135 Wis. 2d 219, 233-34, 400 N.W.2d 22, 28 (Ct. App. 1986) (change in physical custody of child was obvious change in circumstances warranting modification of child support order).
We emphasize that the issue is not whether Parker can be punished for failing to pay support. The issue is whether he is entitled to eliminate the accumulation of support obligation while he is incarcerated.
[3]
We agree with the trial court that Parker need not be excused of his child support obligation because of a willful act that resulted in his imprisonment. "Although unemployment or diminution of earnings is a common ground for modification, a petition for modification will be denied if the change in financial condition is due to fault or voluntary wastage or dissipation of one's talents and assets." Noddin, 455 A.2d at 1053.
Parker certainly could have anticipated that his unlawful activity and subsequent probation violation might result in imprisonment. Unlike the requirement *6 for imposition of contempt proceedings, Parker need not have acted willfully to avoid his child support duty.
[4, 5]
We do not agree that this decision imposes an additional penalty on Parker for his criminal conviction. Rather, we hold that child support need not automatically terminate during incarceration. Whether to terminate a support order calls for the exercise of discretion. The court may consider the intentional nature of the crime involved, the likelihood of future income, and other relevant evidence. Parker's children's needs do not diminish upon his entry into prison. We recognize that as long as Parker does not obtain a compensable work position in prison, his child support arrearages will accrue. However, upon release from prison, and after becoming gainfully employed, Parker may fairly be required to pay arrears within the boundaries of his available income and assets at that time.
By the Court.Order affirmed.
NOTES
[] Petition to review denied.
[1] See, e.g., General Accounting Office, Child Support: Need to Improve Efforts to Identify Fathers and Obtain Support Orders 23 (1987); Bergman, Fresh Start on Welfare Reform, Challenge 44 (Nov.-Dec. 1987).
[2] U.S. Bureau of the Census, Child Support & Alimony: 1985, Current Population Reports (Aug. 1987) (Series P-23, No. 152).
[3] Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920254/ | 180 Mich. App. 488 (1989)
447 N.W.2d 793
GORDIN
v.
WILLIAM BEAUMONT HOSPITAL
Docket No. 104440.
Michigan Court of Appeals.
Decided July 21, 1989.
Kepes & Wine, P.C. (by Carol A. McNeilage), for plaintiff.
Kerr, Russell & Weber (by Sally E. Durfee), for Dr. R. Howard.
Before: DOCTOROFF, P.J., and MAHER and MARILYN KELLY, JJ.
PER CURIAM.
Plaintiff, as personal representative of the estate of Rozalia Gordin, appeals as of right from the October 19, 1987, order of the Oakland Circuit Court granting summary disposition to defendant Dr. R. Howard on the ground that there was no genuine issue of material fact that the doctor was immune from liability under the "Good Samaritan" statute, MCL 691.1502; MSA 14.563(12). Plaintiff also appeals from the circuit court's denial of his motion to amend the *490 complaint to allege gross negligence and wilful and wanton misconduct on the part of Dr. Howard. We affirm.
On June 22, 1985, at approximately 11:05 A.M., Rozalia Gordin was admitted to the emergency center at defendant William Beaumont Hospital after sustaining injuries in an automobile accident. The emergency room staff physician, defendant Dr. William Anderson, examined Gordin and determined that the situation required the services of a surgeon. He thereafter directed the unit secretary to contact the surgeon who was "on call" that day.
According to hospital records, Dr. Mario Villalba was the on-call surgeon. Dr. Villalba was apparently unavailable, however, as he was attending a wedding that morning (although the doctor testified at his deposition that he was carrying a beeper and was available, but that he was never summoned). Upon being informed that Dr. Villalba was not available, Dr. Anderson told the unit secretary to contact Dr. Howard. At the time Dr. Howard was called, he was preparing for a family activity. It is undisputed that Dr. Howard was not officially on call. He agreed to come to the hospital, though, after being told that the on-call surgeon was unavailable.
When Dr. Howard arrived at the hospital at 11:40 A.M., Gordin was being taken from the emergency room to have a CAT scan performed. He immediately conducted a complete examination. While Gordin was in the CAT scan room, the decision was made to operate. When she was brought into the operating room at 1:57 P.M. her condition was very bad. She lost cardiac function, and attempts to resuscitate her heart were unsuccessful. At 2:40 P.M., she was pronounced dead.
Plaintiff thereafter commenced this suit in the Oakland Circuit Court, naming the hospital, Drs. *491 Howard and Anderson, and William Beaumont Emergency Physicians, P.C., as defendants. The instant appeal concerns only plaintiff's claim of medical malpractice against Dr. Howard.
After substantial discovery was completed, including the taking of over twenty depositions, Dr. Howard filed a motion for summary disposition, asserting that he was immune from a negligence suit pursuant to the Good Samaritan statute, MCL 691.1502; MSA 14.563(12). Plaintiff subsequently moved to amend his complaint to add allegations of gross negligence and wilful and wanton misconduct (which, if proven, would avoid the Good Samaritan statute's cloak of immunity).
Both motions were heard on October 14, 1987. The circuit court granted summary disposition to Dr. Howard, finding that the Good Samaritan statute operated to give him immunity, and denied plaintiff's motion to amend the complaint. An order to that effect was entered on October 19, 1987. The court certified that its grant of summary disposition to Dr. Howard constituted a final judgment for appeal purposes. This appeal as of right followed.
Plaintiff first argues that the trial court erred in granting Dr. Howard's motion for summary disposition pursuant to the Good Samaritan statute. We find no error.
The pertinent section of the Good Samaritan statute provides:
In instances where the actual hospital duty of that person did not require a response to that emergency situation, a physician, dentist, podiatrist, intern, resident, registered nurse, licensed practical nurse, registered physical therapist, clinical laboratory technologist, inhalation therapist, certified registered nurse anesthetist, x-ray technician, or paramedical person, who in good faith *492 responds to a life threatening emergency or responds to a request for emergency assistance in a life threatening emergency within a hospital or other licensed medical care facility, shall not be liable for any civil damages as a result of an act or omission in the rendering of emergency care, except an act or omission amounting to gross negligence or wilful and wanton misconduct. [MCL 691.1502(1); MSA 14.563(12)(1).]
Plaintiff claims that the trial court read the statute too broadly and that it should only be applied in the "biblical" or "classic" Good Samaritan situation, i.e., where the person renders care outside their job description or training. Plaintiff asserts that the statute should not be applied "when a trained professional, such as a surgeon, is summoned to the hospital to perform the duties for which he has been trained and for which he will be paid."
Two cases from this Court, involving factual situations almost identical to that presented in the case at bar, have construed the Good Samaritan statute in a manner adverse to plaintiff's position. In Matts v Homsi, 106 Mich. App. 563; 308 NW2d 284 (1981), a staff physician, who was not on call and had no direct responsibility to respond to requests for assistance, was summoned to treat a young man with internal injuries sustained during an automobile accident. The trial court directed a verdict in favor of the physician as to the plaintiff's medical malpractice claim on the basis of the Good Samaritan statute. This Court affirmed, ruling that the statute "was intended to afford partial immunity in instances where the situs of the emergency was actually within a hospital or other medical care facility." Id., p 568. It was also held that the statute "only seeks to delineate the partial immunity afforded in terms to indicate that *493 immunity does not exist for persons whose actual function is to respond to emergency situations." Id.
In Higgins v Detroit Osteopathic Hosp Corp, 154 Mich. App. 752; 398 NW2d 520 (1986), lv den 428 Mich. 911 (1987), a pediatrician was called at his home when a newborn infant began having difficulty breathing. The pediatrician rushed to the hospital where he conducted a series of tests on the infant and then had her transferred to a different hospital which specialized in neonatal care. The child suffered injuries prior to or during this time, however. Consequently, a medical malpractice action was brought against the pediatrician and others. This Court affirmed the directed verdict in favor of the pediatrician on the basis of the Good Samaritan statute. Id., pp 760-761.
Plaintiff essentially concedes in his appellate brief that the holdings in Matts and Higgins would entitle Dr. Howard to partial immunity. However, he claims those cases applied the Good Samaritan statute in a manner beyond that intended by the Legislature.
As to this claim, we find revealing this Court's discussion in Hamburger v Henry Ford Hosp, 91 Mich. App. 580; 284 NW2d 155 (1979), lv den 407 Mich. 942 (1979). In that case, we noted that Michigan, like many other states, enacted a Good Samaritan statute because many doctors were reluctant to render voluntary emergency care out of fear of malpractice suits. It was hoped that the Good Samaritan statute would encourage prompt treatment by excusing civil liability for ordinary negligence to those who render medical care in emergency situations. As originally enacted, the statute applied only to the rendering of care at the scene of emergency, i.e., outside the hospital setting. However, in 1975 the Legislature amended the statute to extend protection to certain enumerated *494 professionals in a hospital setting who were not under a duty to respond. Id., pp 585-586.
In accordance with the legislative intent expressed in Hamburger, we believe that off-duty physicians, who are not on-call and have no duty to respond, are entitled to partial immunity under the Good Samaritan statute. A contrary ruling would only discourage off-duty physicians from responding to emergency calls, thus defeating the entire purpose of the statute. Under the facts of this case, Dr. Howard fell within the protection of the statute and, therefore, was properly granted summary disposition.
In a related argument, plaintiff claims that Dr. Howard was required to allege facts in his summary disposition motion establishing the absence of gross negligence and wilful and wanton misconduct in order to qualify for immunity under the Good Samaritan statute. A review of the record reveals that plaintiff did not challenge the summary disposition motion on this ground and, therefore, the claim has not been preserved for appeal. Marietta v Cliffs Ridge, Inc, 385 Mich. 364, 374; 189 NW2d 208 (1971); Schanz v New Hampshire Ins Co, 165 Mich. App. 395, 408; 418 NW2d 478 (1988).
Finally, plaintiff claims the trial court abused its discretion in not allowing him to amend the complaint to allege gross negligence and wilful and wanton misconduct. We disagree. Considering that the case was on the standby list for trial and that extensive discovery had been completed (much of which would probably have to be redone if the complaint was amended), we cannot say the trial court abused its discretion in denying plaintiff's motion to amend the complaint. Burse v Wayne Co Medical Examiner, 151 Mich. App. 761, 767; 391 NW2d 479 (1986).
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920259/ | 447 N.W.2d 562 (1989)
STATE of Iowa ex rel. Catherine Hansen EVERS, Appellee,
v.
Kim Carl BERRIDGE, Appellant.
No. 88-853.
Court of Appeals of Iowa.
August 23, 1989.
Clemens Erdahl, Iowa City, for appellant.
Thomas J. Miller, Atty. Gen., and J. Livingston Dunkle, Asst. Atty. Gen., for appellee.
Considered by OXBERGER, C.J., and HAYDEN and SACKETT, JJ.
OXBERGER, Chief Judge.
Kim Carl Berridge appeals from the district court order reinstating his $200 per month child support obligation even though he executed his consent to the adoption of his child and relinquished his parental rights in writing. The child was never adopted. Berridge contends the possible nonoccurrence of the adoption was within the contemplation of the parties and the court in 1983 and was therefore not a change of circumstance warranting a modification of the 1983 stipulated order. He also contends that because the State participated in the 1983 agreement through counsel it is therefore estopped from seeking to modify the resulting 1983 stipulated order. *563 Finally, he contends that under the circumstances of this case, the reinstatement of his child support obligation denied him due process and equal protection. Our scope of review is de novo. Affirmed.
Berridge fathered a child born in March 1980 to Catherine Hansen. They were never married. In 1981 Catherine married Richard Evers. Evers expressed the intent to adopt the child, but never did. Evers assumed a father role. The Hansen-Evers marriage dissolved in 1985. The State sought support under Chapter 252A of The Code from the natural father of the child when Catherine Hansen Evers began to receive AFDC benefits in 1983. The State entered into a court-approved agreement whereby Berridge acknowledged paternity and agreed to pay support until such time as he executed a relinquishment of parental rights and a consent to the child's adoption. The stipulated agreement was incorporated by reference in the paternity decree and support order issued by the court. Berridge executed the relinquishment and consent, and ceased support payments. In December 1986 the State filed a petition to modify the above paternity order, asking to reinstate the support obligation on Berridge because it was apparent that Mr. Evers never would adopt the child. The district court concluded that failure of the contemplated adoption was a substantial change of circumstances warranting a modification of the 1983 stipulated order.
A substantial change of circumstances not within the contemplation of the trial court and the parties when the original decree was entered enables modification of a 252A decree. Dep't of Social Services, ex rel. Brecht v. Brecht, 255 N.W.2d 342, 346 (Iowa 1977).
The decree at issue is a 252A court order of support and judgment for reimbursement on a finding of paternity. A stipulation regarding the execution of relinquishment of parental rights and consent to adoption was incorporated in the order by reference. Berridge has a statutory obligation to support this child. "[C]hildren are not responsible for their existence, and are necessarily dependent upon their father for support." Morrison v. Morrison, 208 Iowa 1384, 1388, 227 N.W. 330, 332 (1929). A father cannot be relieved from his duty to support a child by agreement of the mother. State of Iowa, ex rel. Iowa Dep't of Social Services v. Blakeman, 337 N.W.2d 199, 203 (Iowa 1983). Parental agreements which have the effect of making a child a public charge cannot be countenanced. Anthony v. Anthony, 204 N.W.2d 829, 833 (Iowa 1973). A parent cannot seek to terminate parental rights in regard to a child solely to relieve himself or herself of the child support obligation. In the Interest of D.W.K., 365 N.W.2d 32, 35 (Iowa 1985).
The agreement was essentially between Berridge and the State. The State was bargaining for recovery of AFDC payments from the natural father and imposition of support liability on someone other than the State, hopefully the acting father, soon to be adoptive parent. In exchange for complying with the State's solicitation of the clear path for adoption, Berridge bargained for release from further support obligation for his biological child. It could be argued that Berridge substantially performed when he signed his consent and release. The agreement did not specify that the agreement was conditioned on the prospective adoptive parent completing the adoption process. We hold that an agreement that fails to provide financial support for a child is void as against the public policy. See Anthony v. Anthony, 204 N.W.2d at 834 (waiver of decretory child support in exchange for surrender of visitation rights void as against public policy). When a parent contracts away his statutory duty to support his child, there must be another person who assumes the duty to support the child. Agreements that leave the financial obligation to support the child on the state are void as contrary to public policy.
Berridge does not contest paternity of the child. Paternity was further substantiated by the result of blood tests prior to the 1983 agreement. Iowa Code section 675.1 states in relevant part: "The parents of a child born out of wedlock ... owe the child *564 necessary maintenance, education, and support."
The State Department of Social Services has a cause of action through Iowa Code section 675.4 which states in relevant part: "The obligation of the father ... creates also a cause of action ... on behalf of third persons furnishing support ... where paternity has been judicially established ... or where paternity has been acknowledged by the father in writing ..." Paternity was judicially determined in 1983 and Berridge signed a writing admitting paternity.
Iowa Code section 675.5 provides that "[t]he obligation of the father other than that under the law providing for the support of poor relatives is discharged by complying with a judicial decree for support or with the terms of a judicially approved settlement. The legal adoption of a child into another family discharges the obligation for the period subsequent to the adoption."
Berridge complied with the stipulated paternity and support agreement incorporated in the court order of May 26, 1983, to the extent of executing his consent and relinquishment statement. However, it was understood by all parties that this formality was a condition precedent to the adoption of the child. The adoption seemed imminent at the time of the execution. But only the actual adoption could release Berridge from his obligation. Any other interpretation contravenes public policy.
The adoption never occurred. Therefore, the relinquishment of parental rights and release for adoption was never finalized by a court of law. Berridge's obligation to support his child continues. Berridge is still the legal father of this child and responsibilities flow from that status.
Berridge may petition the court for visitation rights under Iowa Code § 675.40. However, he cannot deny his support obligation simply by failing to exercise his parental rights.
Berridge's contention that he was deprived of due process and equal protection by judicial reinstatement of the support order is without merit. Berridge argues that he "was adjudicated the natural father by agreement, with the understanding he would not act as the father and would not pay as the father." He further contends that the fact that he was the father was never litigated.
Berridge admitted he is the father of the child in stipulation. The trial court decreed that Berridge was the father and incorporated the stipulations into the support order on May 26, 1983. The record includes an affidavit stating that Berridge is the father filed by the doctor who interpreted the results of the blood test given to Berridge to establish paternity. A trial on the issue of paternity culminated in the judgment of paternity and order of support.
Berridge had sufficient notice of the impending obligation that attends to fatherhood. He had the opportunity to be heard and was in no way enticed to sacrifice his parental rights in exchange for abatement of his duty to support his child. He was notified of the fact that his child was not adopted and was heard at the instant trial. He is not being substantially deprived of a fundamental right or interest in property by the trial court ruling. The record includes his financial statement as evidence of his ability to support his child. He is simply being held to the obligation to support his child.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588379/ | 146 P.3d 631 (2006)
STATE
v.
PLICHTA.
No. 27294.
Intermediate Court of Appeals of Hawai`i.
November 30, 2006
Summary dispositional order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920427/ | 180 Mich. App. 681 (1989)
447 N.W.2d 771
RICE
v.
ZIMMER MANUFACTURING COMPANY
Docket No. 99729.
Michigan Court of Appeals.
Decided June 21, 1989.
John R. Urso & Associates, P.C. (by Mary Roy Kelly and John R. Urso), for plaintiff.
Siemion, Huckabay, Bodary, Padilla & Morganti, P.C. (by Raymond W. Morganti), for defendant Corbett.
Before: WAHLS, P.J., and REILLY and G.S. ALLEN,[*] JJ.
PER CURIAM.
Defendant John V. Corbett, M.D., appeals by leave granted from a March 12, 1987, order of the Macomb Circuit Court denying his motion for summary disposition filed under MCR 2.116(C)(7) on the ground that this lawsuit is barred by the two-year period of limitation applicable in medical malpractice cases. We reverse.
The record reveals that plaintiff, Cynthia Rice, was involved in a collision between an automobile and a motorcycle on August 1, 1982, from which she sustained a fractured right femur and other injuries. She was taken to defendant St. Joseph Hospital, West, for treatment, where Dr. Corbett performed an open reduction of the right femur and inserted an "intermedullary Schneider rod" which had been manufactured and sold by defendant Zimmer Manufacturing Company. Thereafter, plaintiff remained under the postsurgical care of Dr. Corbett, receiving treatment as necessary until August 8, 1983, on which date she made her last office visit. In Dr. Corbett's records for plaintiff's August 8, 1983, office visit, he wrote: "In view of the patient's decrease in symptoms I am going *683 to recommend six months of additional treatment with the EBI unit and I'd like to see the patient three months from now for a clinical exam."
On September 2, 1983, plaintiff consulted with Edward Nebel, M.D., an orthopedic surgeon on the staff of Mercy Hospital in Port Huron. Plaintiff testified at her deposition that she consulted with Dr. Nebel for the purpose of obtaining a second opinion and that as of that date she had not yet decided to stop seeing Dr. Corbett and start seeing Dr. Nebel with regard to future treatment of her leg. On September 26, 1983, while plaintiff was shopping at Lakeside Mall, the rod which Dr. Corbett had inserted broke. Plaintiff telephoned Dr. Nebel's office from the mall and was advised to go to Mercy Hospital in Port Huron. At the hospital, Dr. Nebel removed the broken rod and inserted a new one. Thereafter, plaintiff treated with Dr. Nebel. She testified at her deposition that it was not until the rod broke on September 23, 1983, that she decided to stop treating with Dr. Corbett and start treating with Dr. Nebel.
Plaintiff filed the present malpractice lawsuit on September 13, 1985, alleging negligence on the part of Dr. Corbett, negligence and breach of warranty on the part of Zimmer Manufacturing Company, and liability on the part of St. Joseph Hospital, West, based on its negligence in providing a defective rod and based on Dr. Corbett's negligence as a staff physician. Dr. Corbett moved for summary disposition under MCR 2.116(C)(7), asserting that the suit was filed outside the applicable two-year period of limitation. The trial court denied Dr. Corbett's motion, finding that a question of fact existed regarding plaintiff's last day of treatment with Dr. Corbett, and this Court granted Dr. Corbett's application for leave to appeal. On appeal, Dr. Corbett argues that the trial court erred *684 in failing to find that plaintiff's action is barred by the two-year period of limitation. We agree.
In Stapleton v City of Wyandotte, 177 Mich. App. 339, 342-344; 441 NW2d 90 (1989), a case not dissimilar from the instant action, this Court stated:
The period of limitation for a malpractice action is set forth in MCL 600.5805; MSA 27A.5805:
"(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the period of time prescribed by this section.
* * *
"(4) Except as otherwise provided in this chapter, the period of limitations is 2 years for an action charging malpractice."
The accrual of plaintiff's claim in this case is determined under MCL 600.5838(1); MSA 27A.5838(1), as it appeared prior to its amendment in 1986:[3]
"A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession ... accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim. [Emphasis added.]"
What constitutes "treating or otherwise serving" under § 38(1) is a matter of statutory construction and is a question of law for the courts. Coddington v Robertson, 160 Mich. App. 406, 410; 407 NW2d 666 (1987). The essence of that phrase implies that the cessation of an ongoing physician-patient relationship marks the point at which the period of limitation begins to run. Pendell v Jarka, 156 Mich. 405, 409-410; 402 NW2d 23 (1986), lv den 428 Mich. 880 (1987).
*685 Regarding the purpose of periods of limitations and decisions whether to grant motions for summary disposition on the basis of the expiration of an applicable period of limitation, this Court has stated:
"The underlying purposes behind statutes of limitation are to require that complaints be filed within a reasonable time so that the opposing parties have a fair opportunity to defend, to relieve the court system from dealing with stale claims, and to protect potential defendants from protracted fear of litigation. Bigelow v Walraven, 392 Mich. 566, 576; 221 NW2d 328 (1974). In considering a motion for accelerated judgment based on a statute of limitations, the trial court is to consider the pleadings, affidavits, depositions, admissions and documentary evidence submitted by the parties. MCR 2.116(G)(5). The motion may not be granted if there exist material fact issues in dispute regarding discovery of the asserted malpractice. Kelleher v Mills, 70 Mich. App. 360, 365; 245 NW2d 749 (1976). But if the facts are not in dispute, the issue whether the claim is statutorily barred becomes one of law for the court. Smith v Sinai Hosp, 152 Mich. App. 716, 724-725; 394 NW2d 82 (1986). See also Schalm v Mt Clemens Gen Hospital, 82 Mich. App. 669, 672; 267 NW2d 479 (1978). [Coddington, supra, pp 409-410.]"
[3] MCL 600.5838(1); MSA 27A.5838(1), as amended by 1986 PA 178, provides, in pertinent part:
"[A] claim based on the malpractice of a person who is, or holds himself or herself out to be, a member of a state licensed profession accrues at the time that person discontinues serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim."
Plaintiff in this case asserts that the two-year period of limitation does not bar her action, filed on September 13, 1985, against Dr. Corbett because "there was no cessation of the [physician-patient] relationship before September 26, 1983," *686 the day on which the rod in plaintiff's bone broke and, according to plaintiff's appellate brief, the day on which "a conscious, affirmative, decision was made to change treating physicians." Dr. Corbett, on the other hand, asserts that the two-year period of limitation bars plaintiff's action because the last day he treated or otherwise served plaintiff was August 8, 1983, and because his suggestions that plaintiff return in three months for a clinical examination "is of no significance to the statute of limitations, where it is clear that [plaintiff] in fact did not ever return or in any way seek ... medical assistance after August 8, 1983."
This is not a case in which the plaintiff actually made an appointment for treatment with a doctor and then failed to appear at the appointed time because she received emergency medical care for her problem at a hospital the day before the appointment. Thomas v Golden, 51 Mich. App. 253; 214 NW2d 907 (1974), modified 51 Mich. App. 693; 214 NW2d 907 (1974), aff'd without adopting reasoning 392 Mich. 779; 220 NW2d 677 (1974). Nor is this a case in which neither the physician nor the plaintiff intended a long-standing physician-patient relationship to end at the time the plaintiff's son, on the plaintiff's behalf, telephoned the plaintiff's physician approximately one month after the plaintiff's last office visit and discussed the plaintiff's condition. Shane v Mouw, 116 Mich. App. 737; 323 NW2d 537 (1982). Instead, this is a case in which the plaintiff, at the time she was last treated by the defendant doctor, was advised to make an appointment for a checkup in three months, and in which the plaintiff claims that she did not subjectively decide to treat with a new doctor until approximately six weeks after the date she was treated by the defendant doctor. Apparently, plaintiff would have us hold that, for *687 purposes of the two-year period of limitation in medical malpractice cases, the two-year period should not begin to run until either the date suggested by the physician for the patient's next office visit has passed or the patient subjectively decides to terminate the physician-patient relationship. The former position is untenable because the mere suggestion that a patient return for further care or treatment does not itself constitute treatment or professional service, see Stapleton, supra,[1] and the latter position is untenable because to allow a plaintiff to delay the application of the two-year period of limitation simply by claiming that he or she had not yet subjectively decided to discontinue treatment with the defendant doctor on a specified date would defeat the very purposes of periods of limitation, i.e., the purposes of requiring that complaints be filed within a reasonable time so that the opposing parties have a fair opportunity to defend, to relieve the court system from dealing with stale claims, and to protect potential defendants from the protracted fear of litigation. Coddington, supra, pp 409-410.
Accordingly, since there was no occurrence following August 8, 1983, the day Dr. Corbett last treated plaintiff, showing that Dr. Corbett treated or otherwise served plaintiff after that date, and since the applicable two-year period of limitation for medical malpractice actions begins to run at the time the defendant discontinues treating or otherwise serving the plaintiff and not when the *688 plaintiff subjectively decides to terminate the physician-patient relationship shared with the defendant, we find that the two-year period of limitations in this case began to run on August 8, 1983. As a result, plaintiff's suit, which was commenced on September 13, 1985, was untimely filed. The motion for summary disposition under MCR 2.116(C)(7) of Dr. Corbett based on the lapse of the applicable two-year period of limitation should have been granted by the trial court.
Reversed.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
[1] In Stapleton, supra, p 344, this Court noted that "[t]he advice given by ... [a] physician to plaintiff on the date of her discharge from the hospital to make an appointment for a checkup in two weeks did not alone serve to extend the physician-patient relationship shared by plaintiff" and the hospital staff physicians. Thus, in Stapleton, the two-year period of limitations was determined to have begun to run on the date of plaintiff's discharge from the hospital, the date of her last treatment, and not on the date two weeks after her discharge from the hospital. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2719096/ | Filed 8/19/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057059
v. (Super.Ct.No. FWV1200490)
JOSE CESAR SANCHEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Shahla Sabet,
Judge. Affirmed.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
and Peter Quon, Jr. and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and
Respondent.
1
I. INTRODUCTION
A jury convicted defendant and appellant Jose Cesar Sanchez of grand theft of
copper wire. (Pen. Code, § 487, subd. (a).) He was sentenced to three years in county
jail. On appeal, defendant contends that four statements made by the prosecutor during
closing argument deprived him of his constitutional rights to due process and a fair trial
in two respects. First, the prosecutor committed Griffin1 error by implicating defendant’s
failure to testify. Second, the prosecutor made inflammatory statements about defendant
and the jurors. We hold that one comment constituted Griffin error and another
amounted to prosecutorial misconduct. We conclude, however, that the errors,
individually and cumulatively, are harmless. We therefore affirm the judgment.
II. FACTUAL BACKGROUND
Around 3:00 a.m. on February 28, 2012, two Southern California Edison (SCE)
employees drove to an SCE service center. The center, or yard, is surrounded by a brick
wall topped with barbed wire; entry requires an electronic key card. As they pulled into
the yard, one of the employees saw a person underneath a truck. The employee called the
police.
Police officers arrived and found defendant in the wheel well of a truck. An
officer ordered defendant to come out. When defendant did not comply, the officer tased
him, pulled him out, and arrested him. Inside the wheel well there were rolls of tape and
a walkie-talkie.
1 Griffin v. California (1965) 380 U.S. 609 (Griffin).
2
The police officers found a large extension ladder propped up against the north
wall of the distribution yard. A backpack containing pliers and miscellaneous hand tools
was found near the truck. Spools of SCE’s wire were on the ground, along with wire
cutters; a milk crate holding drills and an impact wrench was found in the middle of the
yard. According to one of the SCE employees, the location of the ladder and the items
found on the ground was unusual and would violate SCE’s rules.
Police officers located a GMC Yukon at a restaurant parking lot about a block
away from the SCE yard. The vehicle had been last registered in defendant’s name in
2010. Jasmine Rodriguez was in the driver’s seat. Rodriguez consented to a search of
the vehicle. The search turned up a notebook with the word “Cash” written on it and
containing addresses of several SCE yards, including the yard in which defendant was
found. A walkie-talkie found in the vehicle connected directly to the walkie-talkie found
inside the SCE truck wheel well. Inside the Yukon there were also several tools, black
tape, a dolly, and a ceramic insulator of the kind used on power poles.
A surveillance videotape of the SCE distribution yard revealed two figures
climbing in and out of SCE trucks and taking items off the trucks during the two hours
preceding defendant’s apprehension. The videotape also showed a person walking
toward the south end of the yard—the same area in which defendant was found—at 3:03
a.m. Less than two minutes later, the two SCE employees who found defendant pulled
into the yard.
3
The copper wire found lying on the ground was about 3,125 feet long. The total
value of the wire was $4,185. If the wire was deemed scrap, it would be worth $1,366.
III. THE PROSECUTOR’S COMMENTS DURING CLOSING ARGUMENT
At trial, defendant did not testify and did not present any defense witnesses.
At the conclusion of rebuttal argument, the prosecutor stated: “Ladies and
gentlemen, ultimately the thing to remember is that defense attorneys don’t get up here
and say, ‘You know what, ladies and gentlemen, the evidence is just damning. My guy is
guilty. Find him guilty. Thank you, I’m done.’ [¶] They don’t do that. They get up
here and they work with what they have. And the reality is that this is not a good case for
the defense so they get up here and argue whatever they can. If the defense had a
plausible, reasonable explanation why the defendant was in the yard that morning, they
would have given it. They haven’t. [¶] [Defense counsel] is a talented attorney, skilled
attorney. And if she had a reasonable, plausible explanation for the defendant’s presence
in that yard at 3:00 in the morning she would have given it. She hasn’t because . . . .”
(Italics added.) At this point, defense counsel objected to these statements as Griffin
error. The court took the matter under submission.
The prosecutor continued: “I would submit to you ultimately the defense’s
argument is about hope. It’s about hope that one of you—and just one of you, that’s all
they need—just one of you, will be gullible enough to think that the defendant just
happened to be in that Edison yard at 3:00 in the morning . . . . Hope that one of you, just
one of you will be naïve enough to believe that this was some kind of inside job. Hope
4
that one of you, just one of you, will be hoodwinked by the idea that [the two SCE
employees] came in here and lied about how the yards are kept at Southern California
Edison. Hope that one of you, just one of you, will be gullible enough to be bought by
one of these ridiculous arguments. Hope that one of you will be naïve enough to think
that any of this amounts to reasonable doubt. [¶] Why? So that the defendant can go
home and have a good laugh at your expense.” (Italics added.)
Defense counsel objected to these statements as “[i]mproper.” In the presence of
the jury, the court instructed the prosecution “not [to] influence the jurors by calling them
names, basically, naïve or gullible if they did something you don’t like.”
The prosecutor concluded his argument by stating: “Ladies and gentlemen, as we
sit here today, the defendant is still in that wheel well in a very real sense, and this time
he’s hiding from all of you. . . . Pull him out of that wheel well one last time. Thank
you.” (Italics added) Defense counsel did not object to this statement. Despite the lack
of objection, the court addressed some of these statements outside the presence of the
jury.
Although the court had been “vigilantly listening,” it “did not see or hear any
Griffin error.” However, the court reminded the prosecutor that he is held to “high, high
ethical standards,” and told the prosecutor there were a couple of times when he “got very
close to the line.” In particular, the court pointed to the prosecutor’s statement that
defendant is: “[S]till hiding in this barrel [sic]. You repeated your theme . . . that he
never acknowledged his guilt so he’s still hiding, he doesn’t acknowledge his guilt.” The
5
prosecutor was reminded to “stay away from those arguments because it’s going to be
appealed. It’s going to be a huge issue.”
IV. STANDARD OF REVIEW
We evaluate claims of Griffin error by inquiring whether there is “a reasonable
likelihood that any of the [prosecutor’s] comments could have been understood, within its
context, to refer to defendant’s failure to testify.” (People v. Clair (1992) 2 Cal. 4th 629,
663.) The standard for evaluating claims of prosecutorial misconduct is well established
and summarized as follows: “A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial with such unfairness as to
make the conviction a denial of due process. Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct under
[California] law only if it involves the use of deceptive or reprehensible methods to
attempt to persuade either the trial court or the jury. Furthermore, . . . when the claim
focuses upon comments made by the prosecutor before the jury, the question is whether
there is a reasonable likelihood that the jury construed or applied any of the complained-
of remarks in an objectionable fashion.” (People v. Morales (2001) 25 Cal. 4th 34, 44,
italics added.)
V. DISCUSSION
A. Griffin Error
Defendant argues the prosecutor implicated defendant’s failure to testify by
arguing that if the defense had a plausible, reasonable explanation for defendant’s
6
presence in the SCE yard, it would have given one, and it had not. Defendant further
argues that the prosecutor compounded the Griffin error by telling the jurors that
defendant was “still in that wheel well in a very real sense, . . . hiding from all of you,”
and that the jury should “[p]ull him out of that wheel well one last time.”
1. Applicable Law
In Griffin, the United States Supreme Court held that “the Fifth Amendment . . .
forbids . . . comment by the prosecution on the accused’s silence . . . .” (Griffin, supra,
380 U.S. at p. 615, fn. omitted.) The Griffin rule has been extended to prohibit a
prosecutor from commenting, either directly or indirectly, on the defendant’s failure to
testify. (People v. Medina (1995) 11 Cal. 4th 694, 755; see U.S. v. Robinson (1988) 485
U.S. 25, 32 [Griffin prohibits “‘prosecutor from suggesting to the jury that it may treat the
defendant’s silence as substantive evidence of guilt.’”].) However, this rule does not
preclude a prosecutor’s comments on the state of the evidence, or on the failure of the
defense to introduce material evidence or to call logical witnesses. (People v. Hovey
(1988) 44 Cal. 3d 543, 572.)
As both parties acknowledge, a prosecutor may commit Griffin error if he or she
argues to the jury that certain testimony or evidence is uncontradicted when the
nontestifying defendant is the only person who can refute the evidence. (People v.
Johnson (1992) 3 Cal. 4th 1183, 1229.) “If, however, the evidence could have been
contradicted by witnesses other than the defendant, the prosecutor may without violating
7
defendant’s [Fifth Amendment right] describe the evidence as ‘unrefuted’ or
‘uncontradicted.’” (Ibid.)
2. Analysis
We first consider the prosecutor’s comment: “If the defense had a plausible,
reasonable explanation why the defendant was in that yard that morning, they would have
given it. They haven’t.” We conclude this statement did not constitute Griffin error.
Preliminarily, the People argue that defendant forfeited any claim regarding this
statement because he failed to object when it was made. It is true that “[w]hen a
defendant believes the prosecutor has made remarks constituting misconduct during
argument, he or she is obliged to call them to the court’s attention by a timely objection
. . . [to] preserve[] [the claim] for appeal.” (People v. Morales, supra, 25 Cal.4th at pp.
43-44.) However, it is also true that a reviewing court may, in its discretion, decide to
review a claim that has been or may be forfeited for failure to raise the issue below. (In
re Sheena K. (2007) 40 Cal. 4th 875, 887, fn. 7; see also Pen. Code, § 1259 [an “appellate
court may, without exception having been taken in the trial court, review any question of
law involved . . . at the trial . . . which affected the substantial rights of the defendant.”].)
Here, because a Fifth Amendment violation may affect defendant’s “substantial rights,”
we will exercise discretion in this case to address the merits of the claim.
The most recent California Supreme Court case reviewing similar Griffin error
claims is People v. Thomas (2012) 54 Cal. 4th 908. In Thomas, the defendant was
convicted of first degree murder, among other crimes. (Id. at p. 914.) During the
8
defendant’s penalty phase closing argument, the prosecutor commented that “‘[n]ot one
person came forward’ to say defendant ‘couldn’t have done it, he was with me.’” (Id. at
p. 945.) The court stated the rule that “‘a prosecutor may commit Griffin error if he or
she argues to the jury that certain testimony or evidence is uncontradicted, if such
contradiction or denial could be provided only by the defendant, who therefore would be
required to take the witness stand.’” (Ibid.) The court concluded that the prosecutor had
not violated this rule because the “comments were framed in terms of the failure to call
some person other than defendant who would testify that defendant ‘was with me.’”
(Ibid.)
Two other cases are also instructive: People v. Johnson, supra, 3 Cal. 4th 1183
and People v. Bradford (1997) 15 Cal. 4th 1229. In Johnson, the defendant was charged
with murder, attempted murder, robbery, and burglary. The defense was
misidentification. (People v. Johnson, supra, at p. 1209.) At trial, the defense challenged
the victim’s identification testimony, “implicitly contending that defendant was
elsewhere . . . on the night of the crime.” (Id. at p. 1229.) However, the defense
presented no alibi evidence to support this argument. (Ibid.) During closing argument,
the prosecutor argued that the fact the defendant was at the scene of the crime, killed one
victim, and shot another victim was “uncontradicted.” (Ibid.) The Supreme Court held
there was no Griffin error because the prosecutor’s comments merely reflected the state
of the evidence. (People v. Johnson, supra, at p. 1229.)
9
In Bradford, the defendant was found guilty of two counts of first degree murder.
(People v. Bradford, supra, 15 Cal.4th at pp. 1261-1262.) During closing argument, the
prosecution stated that “the defense had not called a single witness, nor produced a single
piece of evidence pointing to the defendant’s innocence.” (Id. at p. 1338.) The
prosecution also argued that the victims had been killed for pleasure and there was “‘no
evidence to the contrary.’” (Ibid.) The court held no Griffin error had been committed
because “[t]he prosecutor did not allude to the lack of refutation or denial by the sole
remaining witness, defendant, but rather to the lack of evidence, which might have been
presented in the form of physical evidence or testimony other than that of defendant.”
(People v. Bradford, supra, at p. 1340.)
In each of these cases, our state Supreme Court indicated, expressly or impliedly,
that the challenged comments would have constituted Griffin error if defendant was the
only witness who could have been called to refute alleged uncontradicted evidence. If,
however, other evidence could have been produced to refute the uncontradicted evidence,
no Griffin error is committed.
Here, defendant argues that he was the only plausible witness who could testify as
to why he was in the SCE yard that morning and the prosecutor, by commenting on his
failure to offer any such witnesses, improperly focused the jury on defendant’s failure to
testify. We disagree.
A “logical witness” for explaining defendant’s presence in the SCE yard was
Rodriguez—the woman in the Yukon. (See People v. Hovey, supra, 44 Cal.3d at p. 572.)
10
At the time of defendant’s apprehension, Rodriguez was sitting in the Yukon about a
block away from the SCE yard. The vehicle had been previously registered to defendant.
There were numerous items inside the Yukon indicating that Rodriguez’s presence in the
Yukon and defendant’s presence in the nearby SCE yard at 3:00 in the morning was not
mere coincidence or happenstance. There was a walkie-talkie in the Yukon that directly
connected to a walkie-talkie found inside the wheel well where defendant was found.
From all of this evidence, the jury could have reasonably concluded that both
defendant and Rodriguez had gone to the area near the SCE yard with a common goal
and that Rodriguez could explain defendant’s presence in the yard. The defense,
however, did not call Rodriguez to testify. Under these circumstances, the prosecution’s
statements reasonably allude, not to defendant’s failure to testify, but to the defense’s
failure to call Rodriguez or introduce any other evidence that could explain why
defendant was in the SCE yard at 3:00 in the morning. The prosecutor’s comment,
therefore, did not constitute Griffin error.
Defendant responds that his principal defense was not to excuse his presence in
the yard, but rather that the prosecution failed to prove that he either possessed or moved
the wire. Thus, he argues, Rodriguez could not have testified as to the “possession or
moved” requirement for larceny because she was not in the yard with defendant.
Defendant’s argument is misplaced. Regardless of defendant’s principal defense, the
challenged comment refers to the defense’s failure to offer evidence to explain
defendant’s presence in the SCE yard. The issue is whether it is reasonably likely that
11
the jurors understood the statement to refer to defendant’s failure to testify; as we have
explained, it is not. The fact that defendant’s principal defense was focused on a
different issue has no bearing on the question presented.
We now turn to the second comment—“the defendant is still in that wheel well in
a very real sense, and this time he’s hiding from all of you.” Initially, we observe that the
prosecutor, despite referring to “a very real sense,” was speaking metaphorically;
defendant was, after all, in the courtroom throughout the trial. The most reasonable
interpretation of the comment is that defendant was “hiding” from the jury in a figurative
sense by not testifying; he was hiding because he refused to get on the stand and tell the
jury why he was in the SCE yard the night of the incident. The Attorney General has not
offered an alternative interpretation of the comment.
Significantly, the prosecutor identified “the defendant” as the person who was
hiding. The focus on defendant in this case contrasts with the prosecutors’ comments in
Thomas, Johnson, and Bradford, which were centered on the defense’s case as a whole.
In Thomas, the prosecutor commented on how the defendant had not brought forward any
witnesses, alluding to a failure to present evidence from witnesses other than the
defendant. (People v. Thomas, supra, 54 Cal.4th at p. 945.) In Johnson, the prosecutor’s
comment that the evidence was “uncontradicted” alluded to a failure to present alibi
evidence to contradict prosecution evidence that the defendant was present at the scene of
the crime. (People v. Johnson, supra, 3 Cal.4th at p. 1229.) Finally, in Bradford, the
prosecutor commented on the lack of defense evidence generally, as well as more
12
particularized comments on certain issues, all of which alluded to evidence that could
have been presented from sources other than the defendant. (People v. Bradford, supra,
15 Cal.4th at pp. 1339-1340.) Here, the prosecution specifically referenced the
defendant, as opposed to defendant’s defense or case, by stating that the defendant was
“hiding from all of you.”2
Because the prosecutor explicitly referred to defendant’s actions, there is a
reasonable likelihood that a jury would construe or apply the prosecution’s statement to
mean that defendant refused to testify in front of the jury. The prosecution compounded
this effect by asking the jury to “[p]ull him out of that wheel well one last time.” The
statement, therefore, constituted Griffin error.
B. Prosecutorial Misconduct
Defendant next argues the prosecutor committed prosecutorial misconduct by
arguing that defendant hoped that at least one of the jurors would be “gullible,” “naïve,”
and “hoodwinked” into believing defendant’s arguments, and that defendant would then
have a good laugh at the jury’s expense. Defendant further argues that the prosecutor
compounded the misconduct by asking the jury to pull the defendant “out of that wheel
well.” We agree.
2 Here, the trial court correctly recognized a possibility of Griffin error by stating:
“Actually, the place it got closer to [a Griffin error] was your very closing when you said
he’s still hiding in this barrel [sic]. You repeated your theme . . . that he never
acknowledged his guilt so he’s still hiding, he doesn’t acknowledge his guilt. He has a
right to a trial.” The trial court reminded the prosecutor that “the jury can get confused.
It can be . . . misinterpreted. A [prosecutor] has such high, high ethical standards. You
should stay away from that.”
13
1. Applicable Law
“‘A prosecutor’s conduct violates a defendant’s constitutional rights when the
behavior comprises a pattern of conduct so egregious that it infects “‘the trial with
unfairness as to make the resulting conviction a denial of due process.’”’” (People v.
Hamilton (2009) 45 Cal. 4th 863, 920.) Even if the behavior does not reach that level of
egregiousness, it may still violate California law if it involves the “‘use of “deceptive or
reprehensible methods” when attempting to persuade either the trial court or the jury, and
it is reasonably probable that without such misconduct, an outcome more favorable to the
defendant would have resulted.’” (People v. Dykes (2009) 46 Cal. 4th 731, 760.) “The
focus of the inquiry is on the effect of the prosecutor’s action on the defendant, not on the
intent or bad faith of the prosecutor.” (People v. Hamilton, supra, at p. 920.)
Our state Supreme Court reminds us that “[i]t is the duty of every member of the
bar to ‘maintain the respect due to the courts’ and to ‘abstain from all offensive
personality.’” (People v. Espinoza (1992) 3 Cal. 4th 806, 819-820, quoting Bus. & Prof.
Code, § 6068, subds. (b), (f).) However, prosecutors “are held to an elevated standard of
conduct.” (People v. Hill (1998) 17 Cal. 4th 800, 819, overruled on other grounds in
Price v. Superior Court (2001) 25 Cal. 4th 1046, 1069, fn. 13.) Prosecutors are held to a
standard higher than that imposed on other attorneys because of the unique function they
perform in representing the interests, and in exercising the sovereign power, of the state.
In Berger v. United States (1935) 295 U.S. 78, the Supreme Court described the
role of a prosecutor: “The United States Attorney is the representative not of an ordinary
14
party to a controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done. . . . He may
prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike
hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.” (Id. at p. 88.)
Thus, when prosecutors engage in jury intimidation instead of relying on the
evidence presented, they strike a “foul blow” and take advantage of their unique function
by “greatly demean[ing] the office they hold and the People in whose name they serve.”
(People v. Espinoza, supra, 3 Cal.4th at p. 820.)
Within the scope of permissible prosecutorial argument, a prosecutor is given wide
latitude during argument “‘“‘as long as it amounts to fair comment on the evidence,
which can include reasonable inferences, or deductions to be drawn therefrom. . . .’”’”
(People v. Stanley (2006) 39 Cal. 4th 913, 951.) However, it is prosecutorial misconduct
to “‘make arguments to the jury that give [the jury] the impression that “emotion may
reign over reason,” and to present “. . . inflammatory rhetoric that diverts the jury’s
attention from its proper role, or invites an irrational, purely subjective response.”
[Citation.]’” (People v. Redd (2010) 48 Cal. 4th 691, 742; see also People v. Fuiava
(2012) 53 Cal. 4th 622, 693.)
15
2. Analysis
Defendant contends the prosecutor committed misconduct when he argued that
defendant hopes that “one of you” will be “gullible enough,” “naïve enough,” and
“hoodwinked” by the defense arguments so that he “can go home and have a good laugh
at your expense.” The trial judge recognized the misconduct and reminded the prosecutor
to “not influence the jurors by calling them names, basically, naïve or gullible if they did
something you don’t like.” We agree with defendant. The prosecutor’s comments fell
outside the bounds of the “wide latitude” given to prosecutors during argument because
the comments were designed to offend and intimidate the potential holdout juror who
doubted defendant’s guilt.
In People v. Gainer (1977) 19 Cal. 3d 835 (Gainer), disapproved on another point
in People v. Valdez (2012) 55 Cal. 4th 82, 163, the defendant was tried for murder. On
the third day of deliberation, and after the jury requested to have testimony reread several
times, the jury foreman indicated they were having difficulty reaching a verdict. (Gainer,
supra, at p. 840.) The trial judge inquired as to the numerical count of the panel and the
foreman replied, “‘Eleven to one.’” (Ibid.) At this point, the trial judge instructed the
jury: “‘Although the verdict to which a juror agrees must, of course, be his own verdict
. . . you must examine the questions submitted to you with candor and with a proper
regard and deference to the opinions of each other. You should consider that the case
must at some time be decided . . . . [¶] [I]f in any part of [the case] you are left in doubt,
the defendant is entitled to the benefit of the doubt and must be acquitted. But in
16
conferring together, you ought to pay proper respect to each other’s opinions and listen
with a disposition to be convinced to each other’s argument.’” (Id. at p. 841).
The trial judge then gave the jurors two scenarios: “‘[I]f much the larger of your
panel are for a conviction, a dissenting juror should consider whether a doubt in his or her
own mind is a reasonable one . . . . [¶] And, on the other hand, if a majority are for
acquittal, the minority ought seriously to ask themselves whether they may not
reasonably and ought not to doubt the correctness of a judgment . . . .’” (Gainer, supra,
19 Cal.3d at 841.) After further deliberations, the jury returned a verdict of guilty. (Id. at
p. 842.)
On appeal, our state Supreme Court held that the trial judge’s instruction was
improper because it instructed the jury to consider extraneous and improper factors,
inaccurately stated the law, and carried a potentially coercive impact. (Gainer, supra, 19
Cal.3d at pp. 842-843.) The court stated that the charge to the minority or dissenting
jurors implicated two important principles. The first is that “‘“the conclusions to be
reached in a case will be induced only by evidence and argument in open court . . . .”’
[Citations.]” (Id. at pp. 847-848.) The second “relates to the right of both the People and
the defendant to the individual judgment of each juror on the issue of guilt.” (Id. at p.
848.)
The court then explained that “in instructing that ‘a dissenting juror should
consider whether a doubt in his or her own mind is a reasonable one, which makes no
impression on the minds of so many men or women equally honest, equally intelligent
17
with himself or herself,’ the trial judge pointedly directs the jurors to include an
extraneous factor in their deliberations, i.e., the position of the majority of jurors at the
moment. The one or more ‘holdout’ jurors are told that in reaching their independent
conclusions as to whether or not a reasonable doubt of the defendant’s guilt exists, they
are to weigh not only the arguments and evidence but also their own status as
dissenters—a consideration both rationally and legally irrelevant to the issue of guilt.
They are thus deflected from their proper role as triers of fact, as effectively as if they had
been instructed to consider their doubts as to guilt in light of their own prejudices or
desire to go home.” (Gainer, supra, 19 Cal.3d at p. 848, fn. omitted.)
The Gainer court stated further that the “instruction interferes with the jury’s task
in a way which threatens the defendant’s right under the California Constitution to have
his guilt or innocence determined by the unanimous verdict of a jury of 12 persons.
[Citations.] ‘Unanimity obviously requires that each juror must vote for and acquiesce in
the verdict. Acquiescence simply because the verdict has been reached by the majority is
not an independent judgment, and if permitted, would undermine the right to a
unanimous verdict.’ [Citation.] The open encouragement given by the charge to such
acquiescence [in the majority’s decision] is manifestly incompatible with the requirement
of independently achieved jury unanimity.” (Gainer, supra, 19 Cal.3d at pp. 848-849.)
In Gainer, the improper comments in those cases were made by a trial judge, not
the prosecutor, as in this case. However, the principles and concerns expressed in Gainer
18
are applicable here.3 Significantly, the prosecutor repeatedly stated that defendant hopes
that “one of you”—a phrase uttered 10 times in five sentences—would be gullible, naïve,
and hoodwinked. By focusing on “one of you,” the prosecutor’s comments were directed
at any juror who might consider being a lone holdout for acquittal. The prosecutor
planted the idea that anyone who accepted the defense attorney’s “ridiculous arguments”
would be a sucker who could be easily manipulated, or “hoodwinked.” If the
prosecutor’s comments had the desired effect, they created a risk that a juror would
decide the case not based on the evidence or the law, but rather find defendant guilty to
avoid being viewed as gullible, naïve, or hoodwinked.
We can easily imagine the jury room in which 11 jurors favor guilt and one is
undecided, as was the case in Gainer. In addition to the evidence and the court’s
instructions, the 11 would be verbally armed with the prosecutor’s weighty accusations of
gullibility and naiveté to pressure the holdout. The lone doubter might easily give in to
such pressure despite harboring reasonable doubt of defendant’s guilt. The result is a
juror not participating in the legal system as an independent fact finder in order to avoid
appearing gullible and naïve. Such extraneous considerations are, like the instruction
disapproved in Gainer, “rationally and legally irrelevant to the issue of guilt.” (Gainer,
supra, 19 Cal.3d at p. 848, fn. omitted.) By encouraging a holdout’s acquiescence in the
majority’s view based on such considerations, the statements also undermine the
3 Although the improper comments in Gainer were made by a trial judge, not the
prosecutor, the court has indicated that the same principles apply to prosecutors. (See
People v. Boyette (2002) 29 Cal. 4th 381, 436.)
19
defendant’s right to the individual judgment of each juror and unanimous verdict. (See
id. at pp. 848-849.)
Additionally, we find the prosecutor’s statement that “defendant can go home and
have a good laugh at your expense” independently inappropriate. (Italics added.) The
comment suggests that if one of the jurors votes not guilty, defendant will go free, or “go
home.” The guilty-or-go-home choice presented to the jurors, however, is inaccurate. A
trial may result in a hung jury. That is, if there are 11 jurors who believe defendant is
guilty and the twelfth juror votes not guilty, defendant may remain incarcerated at least
until the case is retried. Thus, there are three possible outcomes for defendant: defendant
is found not guilty and gets to go home, defendant is found guilty and presumably does
not go home, or the jury is hung and, depending upon subsequent events, defendant might
go home. It was improper to suggest or imply that if “just one” of the jurors believed
defendant not guilty, that defendant would necessarily go free. The comment that
defendant would also have a good laugh at the juror’s expense compounds that error by
intimidating any juror who does not want to be viewed as a fool.
The statement that defendant is going to go home and laugh at the jurors at their
expense is also unsupported by facts in evidence. In People v. Edelbacher (1989) 47
Cal. 3d 983, the prosecutor “attacked [the defendant’s] character by referring to him as a
‘contract killer,’ a ‘snake in the jungle,’ ‘slick,’ ‘tricky,’ a ‘pathological liar,’ and ‘one of
the greatest liars in the history of Fresno County.’” (Id. at p. 1030.) The court held that
this comment amounted to fair argument because “[r]eferring to the testimony and out-of-
20
court statements of a defendant as ‘lies’ is an acceptable practice so long as the
prosecutor argues inferences based on evidence rather than the prosecutor’s personal
belief resulting from personal experience or from evidence outside the record.” (Ibid.) In
that case, “[t]he prosecutor’s comments were based on the evidence . . . .” (Ibid.)
Unlike the comment in Edelbacher, the prosecutor’s comment here does not refer
to facts in evidence, but is based on speculation or the prosecutor’s personal belief about
defendant’s character. By stating that defendant is going to “go home and laugh at your
expense,” the prosecutor is implying that defendant is a person who would hoodwink the
jurors into believing he is innocent and then laugh at them for doing so. There was,
however, no evidence as to defendant’s character.
If defendant indicated by some behavior in court that he was the kind of person
who would go home and laugh at the jurors, it would have been misconduct to refer to
such behavior in his argument. “Consideration of the defendant’s behavior or demeanor
while off the stand violates the rule that criminal conduct cannot be inferred from bad
character.” (People v. Heishman (1988) 45 Cal. 3d 147, 197; see also People v. Garcia
(1984) 160 Cal. App. 3d 82, 92 [“[T]he nontestimonial behavior of a defendant while in
the courtroom cannot be [used] as evidence of his guilt.”].) The misconduct is even
clearer if the prosecutor’s comment was based solely on speculation as to how defendant
would behave if he was acquitted. Finally, we note that the prosecutor’s improper
comments were made at the conclusion of his rebuttal argument. As such, defense
counsel had no opportunity to respond, and the words were the last the jurors heard
21
before deliberating. Therefore, we hold that this statement independently constitutes
prosecutorial misconduct.
The Attorney General contends that when viewed in context, the prosecutor’s
rebuttal argument simply focused the jury’s attention on the testimony and evidence in
the case. We disagree.
The statement of “that’s all they need—just one of you, will be gullible enough to
think that the defendant just happened to be in that Edison yard” cannot be interpreted to
be a fair comment on the evidence presented. (Italics added.) The statement that “ just
one of you, will be hoodwinked by the idea that [two of the prosecution’s witnesses]
came in here and lied” cannot be interpreted to be a fair comment on the evidence
presented. (Italics added.) Further, the statement that “one of you will be naïve enough
to think that any of this amounts to reasonable doubt” cannot be interpreted to be a fair
comment on the evidence presented. (Italics added.) Neither can the comment that
“defendant [will] go home and have a good laugh at your expense” be interpreted to be a
fair comment on the evidence presented. (Italics added.) None of these statements
focused the jurors’ attention on the testimony or evidence in the case. Rather, they were
made to intimidate any juror who believed defendant’s defense and did not want to be
viewed as gullible, naïve, hoodwinked, or laughed at. The statements could have had a
chilling effect on the jury’s deliberative process.
The People argue that the prosecutor’s comments resemble the comments
permitted by the court in People v. Cunningham (2001) 25 Cal. 4th 926. We reject this
22
argument. In Cunningham, the prosecutor was permitted to tell the jury that defense
counsel’s “‘job is to create straw men. Their job is to put up smoke, red herrings . . .
[a]nd [the prosecutor’s] job is to straighten that out and show [the jury] where the truth
lies.’” (Id. at pp. 1002-1003.)
Similarly here, the prosecutor stated: “[T]he thing to remember is that defense
attorneys don’t get up here and say, ‘You know what, ladies and gentlemen, the evidence
is just damning. . . .’ [¶] They don’t do that. They get up here and they work with what
they have. And the reality is that this is not a good case for the defense so they get up
here and argue whatever they can.” However, the prosecutor in this case took this
approach one significant step further by arguing that the jurors would be hoodwinked,
naïve, or gullible if they believed the defense arguments. Unlike the comments in
Cunningham, the comments in this case raised the far more serious risk of jury
intimidation. Cunningham is thus easily distinguished.
In our view, the comments addressed herein were not oratorical slips or the
product of over-exuberance in the heat of battle. Phrases such as “defendant is still in
that wheel well . . . hiding from all of you” and “[p]ull him out of that wheel well one last
time” are not the stuff of excited improvisation. Indeed, the comments are well put
together and, based on their content and placement near the end of the prosecutor’s
rebuttal, appear to have been carefully crafted and planned.
To summarize, we find two areas of misconduct: (1) Griffin error based on the
prosecutor’s statement that defendant was hiding from the jury and (2) prosecutorial
23
misconduct based on the prosecutor’s statement that the jury would need to be gullible,
naïve, and hoodwinked to believe defendant, who would then go home and laugh at their
expense. We reject all other claims of error.
C. Harmless Error
Next, we must determine the effect of the Griffin error and the prosecutorial
misconduct. Errors that rise to the level of federal constitutional error are prejudicial
unless the state “prove[s] beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” (Chapman v. California (1967) 386 U.S. 18, 24.)
Errors under California law are prejudicial when “it is reasonably probably that a result
more favorable to the appealing party would have been reached in the absence of the
error.” (People v. Watson (1956) 46 Cal. 2d 818, 836.) It is clear that “‘a “probability” in
this context does not mean more likely than not, but merely a reasonable chance, more
than an abstract possibility.’” Further, the courts’ interpretation of a “‘result more
favorable’” has “no significant distinction” from “the phrase[] ‘a different result,’” as
“[b]oth standards anticipate that the party seeking relief will be in a different, and
necessarily a better, position if relief is granted.” (People v. Soojian (2010) 190
Cal. App. 4th 491, 519-520.) Thus, “[i]t appears that under the Watson standard a hung
jury is considered a more favorable result than a guilty verdict.” (Id. at p. 520.)
Our state Supreme Court has repeatedly found the harmless error standards met
when the evidence of guilt is so strong that the jury would have reached the same verdict
regardless of the error. (See People v. Houston (2012) 54 Cal. 4th 1186, 1222 [holding
24
errors harmless under either Chapman or Watson “[g]iven the overwhelming evidence of
defendant’s guilt”]; People v. Booker (2011) 51 Cal. 4th 141, 186 [holding that when
“[v]iewing the prosecutor’s statements in the context of his entire argument, the jury was
properly informed about the prosecutor’s burden, and the evidence of defendant’s guilt
(notably, his own confession) was overwhelming”]; People v. Fields (1983) 35 Cal. 3d
329, 363 [holding that the misconduct of the prosecutor and even the erroneous ruling of
the trial judge did not prejudice the defendant because “[t]he evidence of defendant’s
guilt of first degree murder was overwhelming”].)
Defendant relies on People v. Mendoza (1974) 37 Cal. App. 3d 717. In that case,
the defendant was convicted of lewd acts upon a minor. (Id. at p. 721.) In reversing the
judgment, the Court of Appeal pointed to four errors by the prosecution. Not only did the
prosecutor violate “the spirit of Griffin . . . with a thinly veiled comment on [the
defendant’s] failure to testify,”4 she also drew unjustifiable inferences from the
defendant’s conduct, dwelt on suppositions not reflected in evidence, misstated the law,
and improperly asked the jury “‘to take [the defendant] off the streets.’” (Id. at pp. 726-
727.) The court also compounded the Griffin error by giving a jury instruction that
“indirectly implied that the jury could consider [the defendant’s] failure to testify as
evidence to prove an essential element of the offense.” (People v. Mendoza, supra, at p.
4 The offensive comment included the statements: “‘Since olden days, I guess it
is from the time when the defendant was not capable of taking the stand, you know, he
couldn’t be a witness in those days, there is a cautionary instruction that says to you,
“The charge is easily made; hard to defend against.””” (People v. Mendoza, supra, 37
Cal.App.3d at p. 726.)
25
726.) The Court of Appeal concluded that the prosecutor’s “strong[] appeal to passion
and prejudice,” “misstatements[,] and irrelevancies may have erroneously prejudiced the
jury against the defendant.” (Id. at p. 727.) As a result, the court was “not persuaded
beyond a reasonable doubt that the cumulative impact of these errors had no effect in
bringing about the guilty verdict.” (Ibid.)
Here, the prosecution committed two errors: Griffin error by referring to the
defendant still hiding in the wheel well, and prosecutorial misconduct by his comments
directing jurors not to be gullible, naïve, or hoodwinked. The errors, while egregious,
were isolated and not accompanied by misstatements of law or the strong appeals to
passion and prejudice that were present in Mendoza. Moreover, the evidence of guilt in
the present case is extremely strong.
We have viewed the surveillance videotape shown to the jury. The videotape
shows movement within the SCE yard by two individuals between 1:00 and 3:00 in the
morning; one individual is wearing a dark shirt, the other a light-colored shirt. The
movement continues for some time in which it appears the two individuals were moving
items on and off several trucks and pushing a large cart or dolly back and forth. One of
the SCE employees testified at trial that many of the areas where the two individuals
were seen moving contained stocked wire wheels. About an hour later, the individual
with the light-colored shirt no longer appeared in the camera’s view, but the individual in
the dark shirt appeared to be climbing in and out of the bucket trucks. Eventually, a
26
person is seen walking towards the south end of the distribution yard in the same area
where the two SCE employees found defendant in a truck’s wheel well.
Defendant argues the videotape was unclear and blurry, and the figures moving
were too small to positively identify either one as defendant. However, the videotape
clearly showed two individuals who were not supposed to be in the yard at 1:00 in the
morning, and that these individuals were moving items back and forth in the yard and on
and off trucks, and that one of them was last seen in the south end of the yard where
defendant was found minutes later. The videotape, combined with the testimony of the
SCE employees who found defendant, is extremely strong evidence establishing that
defendant was one of the individuals seen moving items in the yard.
Additionally, valuable copper wire was found near the area where defendant was
arrested, along with miscellaneous tools, including wire cutters. Defendant was found
with rolls of tape and a walkie-talkie inside the wheel well. Further, a truck registered in
2010 in defendant’s name was found only a block from the SCE yard with a walkie-talkie
connected to the one in the wheel well, and a notebook listing several SCE addresses,
including the SCE yard where defendant was arrested. Therefore, in light of the strong
evidence against defendant, we are convinced beyond a reasonable doubt that the jury
would not have reached a different verdict absent the Griffin error.
Finally, we note that the trial judge ameliorated the effect of the error by
admonishing the prosecutor, in front of the jury, to refrain from calling the jurors names.
27
Although the court did not ask the jury to disregard the prosecutor’s statements, the
admonishment lessened the prejudicial effect.
After reviewing the entire record, we are convinced that the errors committed by
the prosecutor are harmless under either the Chapman or Watson standards.
While we hold both errors were harmless, we note the language in People v.
Lambert (1975) 52 Cal. App. 3d 905, which applies with equal force here: “Despite our
conclusion that the misconduct here was nonprejudicial, we feel compelled to forewarn
prosecutors that we have too often of late been faced with the task of determining
whether unnecessarily zealous prosecutors have committed misconduct, and if so,
determining whether, on the basis of the whole record, that misconduct was prejudicial.
Frequently, it seems that deputy district attorneys see their sole function as winning cases
even at the expense of a fair trial for the defendant and the proper administration of
justice in the courts. . . . [¶] . . . [W]hile we are not inclined to find such conduct
prejudicial if the record does not warrant such a conclusion, we feel compelled to warn
prosecutors that they cannot continue with impunity to engage in such conduct thinking
that appellate courts will save them by applying the harmless error rule. . . .” (Id. at pp.
911-912.)
28
VI. DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
KING
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
29 | 01-03-2023 | 08-19-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2588416/ | 146 P.3d 709 (2006)
DUKE
v.
STATE.
No. 95180.
Court of Appeals of Kansas.
November 22, 2006.
Decision Without Published Opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3965741/ | This was an information in the nature of a quo warranto to remove appellant from the office of county superintendent of public instruction of Bexar County.
It appears from the petition, that the appellant had been duly elected to the office for a term which has not yet expired, and that the only ground of complaint was that the County Commissioners Court of Bexar County had abolished the office in pursuance of an act of the Legislature of this State approved April 6, 1889, one section of which reads as follows: "That the County Commissioners Court of any county in this State shall have the power and authority, when in their judgment such court may deem it advisable, to abolish the office of county superintendent of public instruction in their county by an order entered on the minutes of their court at a regular term thereof. Whenever such office is abolished the county judge of such county shall, from the date of said order, perform the duties of such office; and the county superintendent shall immediately turn over to such county judge all the books, papers, records, and other school property in his possession."
It is contended that this law is unconstitutional, because the Legislature can not delegate its legislative functions to any other body or authority.
The office of county superintendent of public instruction was created by an Act of the Legislature approved April 2, 1887, reading: * * * "The office of county superintendent of public instruction is hereby created, and the County Commissioners Court of any county in this State may, when in their judgment it may be advisable, provide for the election at each general election of some person, * * * who shall hold his office for the term of two years," etc. The act provides, that such county superintendent of public instruction shall perform all the duties in regard to the public free schools of his county imposed by law upon the county judges of such counties as have no county superintendents of public instruction; and that he shall have and may exercise all powers and authority vested by law in such county judges in respect to matters appertaining to the public free schools; and that in addition thereto he shall take the scholastic census of his county.
It will be seen that the act for the creation of the office was made to depend in each county upon the action of its County Commissioners Court as to its taking effect there, and we are not able to see any material distinction in regard to their constitutionality between the act that authorized the County Commissioners Court to bring the office into existence and the one that authorizes it to abolish it. *Page 321
It has been said by this court in a general way that laws can only be made by the votes of the representatives of the people in their legislative capacity. The State v. Swisher, 17 Tex. 448
[17 Tex. 448].
There seems to be a well recognized distinction in respect to the question under consideration between laws affecting only the municipal subdivisions of the State and such as affect the State at large; and whatever differences of opinion there may be about the application of the rule to the general laws that affect alike the whole State, it seems to be well established that the maxim that the legislative power is not to be delegated is not trenched upon when the legislation merely bestows upon the municipal organizations of the State certain powers of local regulation. Cool. Const. Lim., sec. 143; Werner v. City of Galveston, 72 Tex. 22.
Our Constitution and statutes each provide for the adoption of laws in particular localities according to and dependent upon the expressed will of the people to be affected, and such statutes have not in every instance been expressly directed by the Constitution. It would be tedious and would serve no useful purpose to undertake here to enumerate all instances of such legislation.
A city containing 1000 inhabitants or over may by a vote of its council accept or reject the general incorporation law of this State for cities and towns. The inhabitants of a town or village may by vote accept or reject the incorporation act provided for them (Rev. Stats., chap. 11, title 17), and having once incorporated, such towns and villages may by their own vote abolish the corporation, including the offices. We can see no more in the two acts in question than a delegation of authority to the County Commissioners Courts to employ an agent when his services may be useful to the public, and to discharge him when they cease to be such.
The office not being founded in the Constitution, and its creation depending originally upon the will of the County Commissioners Court, no good reason why it may not be dispensed with in the same manner is apparent to us. It is not the case of depriving the lawful incumbent of an office that continues to exist and conferring it upon another. When the extended area of this State is considered, as well as the diversity of the pursuits of its inhabitants, and the great differences in population and resources of the different counties, it would be unfortunate if the Legislature did not have the power to enable the different counties to adopt or decline some of the agencies of government according to the exigencies of their situation. And such acts must be very clearly in contravention of the fundamental law before we shall feel ourselves warranted in so declaring them.
It was the Legislature, and not the County Commissioners Court, that made the law giving to the court the power to abolish the office. The court abolished the office in pursuance of a law of the Legislature, *Page 322
but it can not be said that because it exercised that power under the law it made the law itself.
The objection that the county judge was interested, and therefore disqualified to act, can not be treated as good. It was not a "case" in the meaning of the Constitution, and there is nothing to indicate that his vote was necessary to the decision.
The acts in question are both general laws in the sense that each of them relate to the State at large, and the one last enacted is not subject to the objection urged against it that it is a local or special law.
We find no error in the proceedings, and the judgment is affirmed.
Affirmed.
Delivered February 12, 1892. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/609238/ | 996 F.2d 83
UNITED STATES of America, Plaintiff-Appellee,v.Keith Allen FORD, Defendant-Appellant.
No. 92-8396.
United States Court of Appeals,Fifth Circuit.
July 12, 1993.
J. Marlin Blackledge, Waco, TX (Court-appointed), for defendant-appellant.
Diane Kirstein, Asst. U.S. Atty., Richard L. Durbin, Jr., John A. Phinizy, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before REAVLEY, KING and GARWOOD, Circuit Judges.
REAVLEY, Circuit Judge:
1
This is another appeal of the application of the sentencing guidelines.
2
Keith Allen Ford fatally shot Joe Coffman when the latter showed up at a mutual friend's house with a gun, "looking for" Ford. Ford, who had previously been convicted of four controlled substances offenses, pled guilty to one count of possession of a firearm by a convicted felon. 18 U.S.C. § 924(e). Ford was sentenced to 400 months imprisonment and five years supervised release, based in part on the district court's characterization of his possession of a firearm as a "crime of violence" for purposes of U.S.S.G. § 4B1.1.
3
On prior appeal, this court held that the district court erred by characterizing Ford's possession of a firearm as a "crime of violence" for purposes of computing his base offense level, and vacated and remanded the case for resentencing. On remand, the district court determined that Ford's base offense level was 34 (not 37, as it had previously determined). U.S.S.G. § 4B1.4(b)(3)(A). Combined with his criminal history category VI, this yielded a guideline imprisonment range of 262 to 327 months. After upwardly departing on the grounds that (1) Coffman was killed by the firearm in Ford's possession, and (2) Ford's criminal history category underrepresented his actual criminal behavior and recidivism,1 the district court sentenced Ford to 360 months imprisonment, plus five years supervised release. Ford appeals the district court's sentencing on remand. We affirm.I. DISCUSSION
4
Ford's sentence must be upheld unless it was imposed in violation of the law, resulted from an incorrect application of the sentencing guidelines, or is unreasonable and outside the range of the applicable guidelines. 18 U.S.C. § 3742(f); United States v. Garcia, 962 F.2d 479, 480-81 (5th Cir.), cert. denied, --- U.S. ----, 113 S. Ct. 293, 121 L. Ed. 2d 217 (1992). Interpretation of the guidelines is a question of law, subject to de novo review. Garcia, 962 F.2d at 481. Factual findings made in the course of applying the guidelines are subject to review only for "clear error." 18 U.S.C. § 3742(e); Garcia, 962 F.2d at 481.
5
A. FORD'S BASE OFFENSE LEVEL.
Section 4B1.4(b)(3) provides that:
6
The offense level for an armed career criminal is the greate[r] of:
7
....
8
(A) 34, if the defendant used or possessed the firearm or ammunition in connection with a crime of violence or controlled substance offense, as defined in § 4B1.2(1), or if the firearm possessed by the defendant was of a type described in 26 U.S.C. § 5845(a); or
9
(B) 33, otherwise.
10
On remand, the district court determined that Ford's base offense level, under § 4B1.4(b)(3)(A), was 34 because he had possessed the firearm "in connection with a crime of violence." Id. This determination was in accord with dicta in our prior panel's opinion.
11
Ford challenges this determination, based upon U.S.S.G. § 4B1.2 (Definitions of Terms Used in Section 4B1.1) Application Note 2, which reads, in part:
12
The term "crime of violence" does not include the offense of unlawful possession of a firearm by a felon. Where the instant offense is the unlawful possession of a firearm by a felon ... and ... the defendant is sentenced under the provisions of 18 U.S.C. § 924(e), § 4B1.4 (Armed Career Criminal) will apply.
13
Ford argues that our prior holding that his charged conduct did not constitute a "crime of violence," coupled the fact that there were no controlled substances nor § 5845(a) firearms involved, requires a finding that his base offense level is 33, as provided by § 4B1.4(b)(3)(B).
14
We disagree. While § 4B1.1 explicitly calculates the base offense level based on "the instant offense of conviction," § 4B1.4(b)(3) does not. The language used in the latter section is "if the defendant used ... the firearm ... in connection with a crime of violence ..." (emphasis added). Here, while Ford's "instant offense of conviction"--possession of a firearm by a felon--did not constitute a "crime of violence" for purposes of § 4B1.1, his possession of the Mossberg shotgun was certainly "in connection with a crime of violence"--to wit, the fatal shooting of Joe Coffman. Therefore, we hold that the district court properly applied U.S.S.G. § 4B1.4(b)(3)(A) and correctly calculated Ford's base offense level at 34.
15
B. FORD'S CRIMINAL HISTORY SCORE.
16
This court will review de novo the district court's finding that Ford's prior convictions were unrelated. See Garcia, 962 F.2d at 481; see also United States v. Lopez, 961 F.2d 384, 385 (2d Cir.1992); United States v. Houser, 929 F.2d 1369, 1373 (9th Cir.1990).
17
The PSR and the district court both determined that Ford had a criminal history score of 20, placing him well above the minimum score for Category VI, the highest possible category. Twelve of the 20 points thus assessed were a result of the district court treating four prior state-court methamphetamine delivery convictions as "[p]rior sentences imposed in unrelated cases" for purposes of § 4A1.1(a).
18
Section 4A1.2(a)(2) provides: "Prior sentences imposed in unrelated cases are to be counted separately. Prior sentences imposed in related cases are to be treated as one sentence for purposes of § 4A1.1(a), (b), and (c)." The official commentary to § 4A1.2 states:
19
Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they resulted from offenses that (1) occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing.
20
U.S.S.G. § 4A1.2 app. note 3.
21
Ford argues that his four prior state-court methamphetamine delivery convictions should be considered "related" for purposes of §§ 1B1.3 and 4A1.2(a) & n. 3. Based upon Garcia, supra, we disagree.
22
In Garcia, this court considered the "relatedness" of two prior state-court convictions. There, both convictions were for separate instances of heroin delivery over a nine-day period "in the same vicinity." In addition, the two indictments had consecutive numbers and were filed on the same day, the same attorney represented Garcia in both causes, the causes were heard in the same court at the same time, the plea agreements for each cause referred to the other, and the ten-year sentences for each conviction were concurrent. This court found little merit to Garcia's argument that the transactions were part of a "common scheme or plan":
23
Although the facts surrounding the cases may be similar, similar crimes are not necessarily related crimes....
24
Garcia executed two distinct, separate deliveries of heroin. Although the crimes may have been temporally and geographically alike, they were not part of a common scheme or plan....
25
962 F.2d at 482 (citations omitted). As for Garcia's arguments that the two convictions were "related" because they were "consolidated for trial and sentencing," this court concluded:
26
This court has already rejected the proposition that cases must be considered consolidated simply because two convictions have concurrent sentences. Likewise, we also rejected the notion that sentencing on two distinct cases on the same day necessitates a finding that they are consolidated....
27
Although the concurrent sentences and sentencing on the same day are factors to consider when evaluating whether cases are consolidated, we see little reason automatically to consider cases to be consolidated where state law is to the contrary. Instead, a district court must determine for itself whether the crimes in fact were related.... [T]he evidence does not establish that the state cases were consolidated for trial or sentencing. The state did not move to consolidate the cases; and the state court treated the two convictions separately, entering separate sentences, judgments and plea agreements.
28
Id. at 482-83 (citations and footnote omitted).
29
Garcia disposes of most of Ford's complaints. And, to the extent that Ford's situation in distinguishable from that in Garcia, that distinction is not significant enough to find that the prior convictions were "related." While all four of Ford's charges arose from sales to the same undercover officer during a six-day period, whereas Garcia made two sales to two different officers over a nine-day period, and two of Ford's four sales occurred on the same date and at the same motel, whereas Garcia's sales occurred in distinct locations, these are distinctions without a difference. Each sale was a separate transaction, separated by hours, if not days. The fact that the buyer was the same did not make the sales "related" any more than if Ford made four separate trips to the same H.E.B. in one week to buy groceries--there was no common scheme or plan, simply convenience and experience.
30
C. PROPRIETY OF THE DISTRICT COURT'S UPWARD DEPARTURE.
31
The sentencing court may impose sentences outside the range established by the sentencing guidelines in cases presenting "aggravating or mitigating circumstance[s] of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553; U.S.S.G. § 5K2.0; United States v. Fitzhugh, 984 F.2d 143, 147 (5th Cir.1993). The district court must state on the record its reasons for departure from the guideline range. Fitzhugh, 984 F.2d at 147 (citing 18 U.S.C. § 3553(c)). And any such departure must be reasonable. Id.
32
The district court departed upward from the guideline range of 262-327 months to impose a sentence of 360 months, based upon the facts that (1) Coffman's death "resulted from [Ford's] involvement in the offense," and (2) Ford's "Criminal History Category VI under-represents his criminal behavior and recidivism to criminal involvement."
33
1. Upward Departure Based Upon Resulting Death.
34
Section 5K2.1 provides that "[i]f death resulted, the court may increase the sentence above the authorized guideline range" (emphasis added). We find no abuse of discretion in the district court's decision to do so.
35
2. Upward Departure Based Upon Prior Criminal History.
36
Section 4A1.3 provides, in part, that the sentencing court may consider an upward departure:
37
[i]f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes.... [or].... that the defendant's criminal history was significantly more serious than that of most defendants in the same criminal history category....
Section 5K2.0 further counsels:
38
.... [T]he court may depart from the guidelines, even though the reason for departure is taken into consideration in the guidelines (e.g., as a specific offense characteristic or other adjustment), if the court determines that ... the guideline level attached to that factor is inadequate.
39
(emphasis added).
40
The district court determined that Ford's Criminal History Category VI underrepresented his criminal history and propensity for future violations. Ford's criminal history score of 20 is higher than the minimum score of 13 for Category VI, though it is by no means exaggerated. Compare Fitzhugh, 984 F.2d at 147 (criminal history score of 57).
41
The base offense level for unlawful firearm possession is 12. U.S.S.G. § 2K2.1(a)(7). The base offense level for a convicted felon in (unlawful) possession of a firearm is 20. Id. § 2K2.1(a)(4). The minimum base offense level for an "armed career criminal" is 33. Id. § 4B1.4(b)(3)(B). Clearly, the guidelines incorporate Ford's criminal history into the calculation of the base offense level. Ford's criminal history is again incorporated when his sentencing range is calculated using Criminal History Category VI, rather than some lower category.
42
For the district court to find that the guideline range of 262 to 327 months does not adequately reflect Ford's criminal history and propensity to future criminal activity requires justification. The Guidelines' treatment of Ford as an "armed career criminal" with a Criminal History Category VI (as opposed to a person in illegal possession with no criminal history) increases his guideline sentencing range from 10-16 months to 235-293 months--a significant increase based solely on Ford's prior criminal record.
43
The Government cites United States v. Carpenter, 963 F.2d 736 (5th Cir.1992), in support of the reasonableness of the district court's upward departure based upon criminal history. There, Carpenter's guideline range for the underlying offense was 33-41 months, but he was subject to a statutory minimum sentence of 180 months as an "armed career criminal." Id. at 742. The district court then departed upward, adding 50 months based upon Carpenter's extensive criminal history. Id. This court found the district court's departure to be "reasonable." Id. at 744. By comparison, the Government argues, Ford's sentence was only increased by 33 months.
44
The Government's argument prevails, despite this court's admonition in Carpenter that it was "simply decid[ing] the case before it today [and that] [n]othing in this opinion should be read to intimate that a 50 month upward departure from a 180 month guideline sentence is reasonable per se." Id. at 746 n. 7. Like Carpenter, Ford had prior offenses which were not included in the criminal history calculation. In Carpenter's case, because they were stale, in Ford's, because of his age. Ford has also exhibited continued criminal propensity, even after his four-count conviction in Bell County and subsequent imprisonment, to the point of repeated parole violations.
45
In sum, we think that the district court was well within the discretion afforded it by the Guidelines to enhance Ford's sentence based upon both Coffman's death and Ford's criminal history.
II. CONCLUSION
46
Ford is an armed career criminal in every sense of the word, and does not dispute the applicability of 18 U.S.C. § 924(e) or U.S.S.G. § 4B1.4. As we read § 4B1.4(b)(3)(A), the district court, on remand, correctly determined Ford's base offense level. We likewise find no fault in the district court's calculation of Ford's criminal history category, nor in the district court's upward departure.
47
AFFIRMED.
1
The district court determined that Ford's criminal history score was 20. Criminal History Category VI includes all criminal history scores of 13 or above. U.S.S.G. ch. 5, table A | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/32439/ | United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 21, 2003
Charles R. Fulbruge III
No. 03-30034 Clerk
Summary Calendar
JAMES H. TRICHE; TERRY R. TRICHE,
Plaintiffs-Appellants,
versus
CF INDUSTRIES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
(01-CV-301-D-M3)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
At issue is a summary judgment awarded CF Industries,
dismissing tort claims for James Triche’s claimed gradual hearing
loss. Such judgment is reviewed de novo, “examining the evidence
in the light most favorable to ... the nonmovant[s]”. Duckett v.
City of Cedar Park, Tex., 950 F.2d 272, 276 (5th Cir. 1992). The
judgment is proper when, viewing the evidence in this light, “there
is no genuine issue as to any material fact and ... the moving
party is entitled to judgment as a matter of law”. Amburgey v.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Corhart Refractories Corp. Inc., 936 F.2d 805, 809 (5th Cir. 1991)
(quoting Fed. R. Civ. P. 56(c)).
Pursuant to our review of the briefs and record, summary
judgment, based on prescription, was proper. Contrary to
appellants’ contention, the continuing tort doctrine does not save
their claim. Their contention that James Triche continued to be
exposed to excessive noise after his transfer to a warehouse
position in 1996 (this action was not filed until 2001) is
supported only by conclusory statements in Triche’s own affidavit.
See, e.g., Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.),
cert. denied, 506 U.S. 825 (1992) (conclusory allegations not
sufficient to defeat claim for summary judgment).
Because summary judgment, based on prescription, was proper,
we need not reach CF Industries’ alternate basis for summary
judgment (claims barred by exclusivity provisions of Louisiana
Workers’ Compensation Act).
AFFIRMED
2 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2720073/ | Opinion issued August 21, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00467-CR
———————————
TONY A. HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case No. 1341841
MEMORANDUM OPINION
Tony A. Hernandez was charged with aggravated assault with a deadly
weapon,1 enhanced with two prior felony convictions for aggravated assault with a
1
A person commits the offense of aggravated assault with a deadly weapon if the
person intentionally or knowingly causes bodily injury to another and uses or
deadly weapon and felon in possession of a firearm. The jury found appellant
guilty and assessed his punishment at thirty years’ confinement in the Texas
Department of Criminal Justice (TDCJ), Institutional Division. In a single issue,
appellant argues that the trial court erred by admitting evidence of five of his prior
convictions when he testified on his own behalf. We affirm.
Background
The complainant, Gabriel Benitez, and his girlfriend boarded a Metro bus
late one night with appellant and a mutual acquaintance named Manny. Several
minutes into the bus ride, and while Benitez was cuddling with his girlfriend,
appellant jumped up and stabbed Benitez in the shoulder once and then several
more times in Benitez’s back. The whole encounter was captured on the bus’s
video surveillance camera. Appellant was arrested on the bus without incident.
When questioned about the assault, appellant told an officer, “I felt disrespected
and I did stab the gentleman and I felt a burning sensation in my side and anal
area.”
Appellant, the only defense witness to take the stand, testified on direct
examination that he, Benitez, and Manny all knew each other from their time at a
local homeless shelter and that he and the other two men were planning to steal a
car that evening. Appellant also testified that he was anxious about the group’s
exhibits a deadly weapon during the commission of the assault. See TEX. PENAL
CODE ANN. §§ 22.01(a)(1), 22.02(a)(2) (West 2011 & Supp. 2013).
2
plan to steal a car because he had just been released from the Texas Department of
Corrections five days earlier after serving a five-year sentence for an undisclosed
offense. According to appellant, Benitez gave him some “synthetic weed” before
they got on the bus to help calm his nerves, but the drug apparently had the
opposite effect. Although he acknowledged that he stabbed Benitez with a knife,
as depicted on the bus’s surveillance video, he testified that the weed apparently
caused him to black out because he did not remember stabbing Benitez.
Admission of Prior Felony Convictions
Appellant contends that the trial court erred by allowing the State to impeach
him on cross-examination with the following five prior convictions: (1) aggravated
assault with a deadly weapon (November 6, 1997); (2) unauthorized use of a motor
vehicle (November 6, 1997); (3) felon in possession of firearm (January 10, 2000);
(4) aggravated assault with a deadly weapon (October 25, 2000); and (5) felon in
possession of firearm (April 10, 2007).
Assuming, without deciding, that the admission of these prior convictions
was error, we must now determine whether the error was harmful. An appellate
court may not reverse based on the erroneous admission of evidence if the court,
after examining the record as a whole, has fair assurance that the error did not have
a substantial and injurious effect or influence in determining the jury’s verdict. See
TEX. R. APP. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
3
1998) (stating erroneous admission of evidence subject to non-constitutional error
analysis as set forth in Texas Rule of Appellate Procedure 44.2(b)).
Here, appellant admitted that he stabbed Benitez with a knife, as shown on
the surveillance video, and that video was admitted into evidence and published to
the jury. Appellant’s sole defense was that he lacked the requisite mental state
(i.e., he did not stab Benitez knowingly or intentionally) because the synthetic
weed he smoked prior to getting on the bus caused him to black out immediately
prior to and during the stabbing. See TEX. PENAL CODE ANN. §§ 22.01(a)(1),
22.02(a)(2) (West 2011 & Supp. 2013) (providing person commits offense of
aggravated assault with a deadly weapon if person intentionally or knowingly
causes bodily injury to another and uses or exhibits a deadly weapon during
commission of assault). Appellant, however, admitted that he smoked the
synthetic weed of his own volition, and voluntary intoxication is not a defense to
the commission of a crime. TEX. PENAL CODE ANN. § 8.04(a) (West 2011). We
further note that, in addition to the overwhelming evidence of guilt in this case,
appellant also testified on direct examination about his prior criminal history (i.e.,
that he had been released from TDCJ after serving a five-year sentence for an
undisclosed criminal offense only five days before he stabbed Benitez).
In light of these factors, and after examining the record as a whole, we have
fair assurance that any error in admitting appellant’s prior convictions for
4
impeachment purposes did not have a substantial and injurious effect or influence
in determining the jury’s verdict of guilt in this case.
We overrule appellant’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
5 | 01-03-2023 | 08-22-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3205082/ | Hines v New York City Tr. Auth. (2016 NY Slip Op 03963)
Hines v New York City Tr. Auth.
2016 NY Slip Op 03963
Decided on May 19, 2016
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 19, 2016
Sweeny, J.P., Renwick, Andrias, Kapnick, Kahn, JJ.
1187 159194/12
[*1]Steven Hines, Plaintiff,
vNew York City Transit Authority, et al., Defendants-Respondents, Academy Express LLC, etc., et al., Defendants-Appellants.
Mintzer Sarowitz Zeris Ledva & Meyers, LLP, New York (Kevin L. Kelly of counsel), for appellants.
Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for respondents.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered on or about October 20, 2015, which, insofar as appealed from as limited by the briefs, denied the motion of defendants Academy Express LLC (Academy) and Damon Bassano for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff, while a passenger on a bus owned by defendant Transit Authority, was injured when that bus collided with another bus owned by Academy, and driven by Bassano. The rear right side of the Transit Authority bus collided with the front driver's corner of the Academy bus when the Transit Authority bus changed lanes from the left to the right lane, in which the Academy bus was proceeding.
Bassano testified, without contradiction, that there was approximately one second, from when he first saw the Transit Authority bus passing him, until impact. Under such circumstances, he had no time to anticipate the Transit Authority bus cutting him off, and his actions were not negligent as a matter of law, under such emergency conditions (see Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991]; Ward v Cox, 38 AD3d 313 [1st Dept 2007]). [*2]"[C]ourts have repeatedly rejected, as a basis for imposing liability, speculation concerning the possible accident-avoidance measures of a defendant faced with an emergency" (Caban v Vega, 226 AD2d 109, 111 [1st Dept 1996]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 19, 2016
CLERK | 01-03-2023 | 05-19-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/317825/ | 493 F.2d 1111
UNITED STATES of America, Appellee,v.Salvatore CIOFFI, Appellant.
No. 696, Docket 73-2612.
United States Court of Appeals, Second Circuit.
Argued Jan. 25, 1974.Decided March 14, 1974.
John Timbers, Asst. U.S. Atty., New York City (Paul J. Curran, U.S. Atty. S.D.N.Y., Elliot G. Sagor and S. Andrew Schaffer, Asst. U.S. Attys., New York City, on the brief), for appellee.
Irving Anolik, New York City, for appellant.
Before MEDINA, MOORE and OAKES, Circuit Judges.
MEDINA, Circuit Judge:
The jury, after a trial presided over by Judge Motley, found Salvatore Cioffi guilty on both counts of an indictment charging him with conspiracy to obstruct justice and with the obstruction of justice by endeavoring to influence Perry Scheer, described as 'a witness in the United States District Court for the Southern District of New York, having been duly subpoenaed to appear before a Grand Jury duly empaneled and sworn in that Court,' and he appeals from the judgment of conviction. He was sentenced to concurrent terms of eighteen months imprisonment on each count and is enlarged on bail pending the determination of this appeal.
A thorough examination of the entire transcript, the exhibits and the sealed envelopes containing a quantity of alleged 3500 material that was withheld from counsel for Cioffi has convinced us that there is no merit in any of the claims of error, and that there was ample proof sufficient to sustain the verdict. We affirm the judgment appealed from.
The simplicity of the basic issue will, we think, be brought into focus if we first describe the background leading to the alleged conspiracy and then follow chronologically the acts and conversations of Cioffi that were found by the jury to have constituted the commission of the substantive crime of violating the Obstruction of Justice Act, 18 U.S.C., Section 1503.1
1
* Background
2
As so often in the past we are again in this case dealing with a so-called brokerage house operating on the New York Over-the-Counter Exchange. This firm of Kelly, Andrews & Bradley when the market was 'hot' made a specialty of floating numerous underwritings of new issues of stocks of little or no value and by various deceptive and illegal practices mulcting investors. There is testimony that there was no Kelly, no Andrews and no Bradley. In any event the three persons in charge of operations at first were Stuart Schiffman, known as Stuie, Fred Miller and Perry Scheer, who turned out to be the principal witness against Cioffi. These three were all 'registered representatives,' which meant that they were licensed to buy and sell securities.
3
The activities of the firm evidently attracted the attention of Joseph Marando who decided to muscle in and who knew just how to do this. So, in October 1970 we find Marando making a loan of $25,000 to Schiffman, Miller and Scheer. This, however, was no ordinary loan but was a clear violation of the New York Criminal Law, New York General Obligations Law, Section 5-501, because it was agreed that interest at the rate of 104% per annum should be paid in weekly amounts of $500 or 2% each, in cash. The language of the professional criminal element in New York City was well known to all these people and cash was called 'green' and the extortionate interest was called vigorish or 'vig.' This is reminiscent of what we read in the testimony in United States v. Corallo, 413 F.2d 1306 (2d Cir.), cert. denied, 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 422 (1969) and United States v. Callahan, 439 F.2d 852 (2d Cir. 1971). In his testimony Scheer, in his colorful way, always referred to this as a 'shylock' loan. In any event, it is right in the center of the case against Cioffi. From the cases we have had before us in the past we think it is pretty clear that such extortionate loans are often made to those making quick profits from criminal enterprises of one kind or another, and, when the 'vig' is not promptly paid something is apt to happen.
4
The following is Scheer's description of what happened when the 'vig' on this $25,000 loan was not forthcoming:
5
Q What happened after October 1970 with respect to payments on that loan?
6
A The firm paid the weekly interest rate and when the first had difficulties, as many brokerage firms did, Mr. Marando became very violent and very upset that the interest always had to be met no matter what happened and he voiced threats of physical harm and violence and he always sat in Mr. Schiffman's seat and he threw everything off the desk, the blotters, the notes, the telephone, the telephone book, the coffee, whatever was there violently, saying that if we were ever late, which we were from time to time, he would send collectors to our home to take our wives or our furniture, whatever he could get. The money had to be paid on time.
7
Q By the way, had you discussed your wife's medical condition with Marando?
8
A Yes, he was very aware of it.
9
We shall hear further references to the health of Scheer's wife, who had cancer health of Scheer's wife, who had cancer and was 'totally disabled.'
10
In August or September of 1971 Marando took over the day to day operations of Kelly, Andrews & Bradley and he had to find buyers for the stocks. One of these was a Mr. Simon who did not pay for the stock he bought. Scheer testified to a telephone conversation he heard in the office when Marando asked for the money that was due. Marando asked Simon on what floor he was located. When told it was the 27th or 30th floor Marando said that is how far you will bounce unless you come over immediately and pay for the stock you bought. Scheer says then Simon came over as requested. Judge Motley permitted the testimony as to these events, which preceded the first overt act of March 30, 1972 as alleged in the conspiracy count of the indictment. Judge Motley ruled that such testimony was allowed as background information so that the jury could understand the charges against the defendant.
11
As things went from bad to worse and it was necessary to give some support to the capital structure of the firm, Marando the capital structure of the firm, Marando sent over 90,000 shares of Brooklyn Poly Industries stock to be subordinated and kept intact for the protection of the firm's creditors. These shares were in street names so Schiffman promptly siphoned off part of the value by using the stock as collateral for a loan from a Boston bank to satisfy a personal debt and Scheer made off with about $25,000 more by representing to the Bank of North America that the stock belonged to him and pledging it with the bank for a loan in this amount which Scheer put in his pocket. This was plain, ordinary stealing.
12
It should come as no surprise that the brokerage firm became bankrupt and it ceased doing business in October 1971. It had probably been insolvent as early as the time of the $25,000 Marando 'shylock' loan in October 1970. The collapse of Kelly, Andrews & Bradley was immediately followed by investigations by the SEC and by the United States Attorney in the Southern District of New York.
13
In early November 1971 the SEC got in touch with Scheer and so did a representative of the prosecutor's office in the Southern District of New York. At about this time Marando visited the brokerage firm's mid-town office at 747 Third Avenue and told Scheer, in the presence of Miller, that an investigation was under way. He asked Scheer if he had been subpoenaed, and when he said 'no,' Marando told him 'please don't hurt me, I am sick, please don't hurt me.' This was the beginning of the conspiracy. As we shall see, Cioffi joined the conspiracy in March, 1972. There was another conversation at the office in early January 1972, at which Marando in the presence of Miller said to Scheer, that he had been subpoenaed and had already appeared in the federal courthouse. On this occasion he again said to Scheer 'Please don't hurt me, I am sick.' Scheer testified before the Grand Jury on January 25, 1972.
14
Judge Motley permitted Scheer to testify to these conversations with Marando even though they occurred before the date of the conspiracy alleged in the indictment. Since Marando was named in the bill of particulars as a coconspirator, evidence of these events preceding the conspiracy was admissible to prove the intent, purpose and aim of the parties to the conspiracy. United States v. Cohen, 489 F.2d 945 (2d Cir., 1973).
Judge Motley instructed the jury:
15
While you have heard testimony about conversations between Marando and Scheer * * * that testimony is not proof that Defendant Cioffi committed the crimes that are charged in this indictment. We are here concerned only with a charge, as I have said, that Cioffi conspired to violate the obstruction of justice statute and the charge that Cioffi violated the obstruction of justice statute.
16
The testimony about the conversations between Marando and Scheer was offered for the limited purpose of showing the motive and intent of Marando during the course of the conspiracy, if you find there was a conspiracy.
17
The triple-headed investigation, by the SEC, the federal prosecutor and the FBI, at first related generally to the affairs of the brokerage firm and particularly to the manipulation of an issue of stock of All-State Metal Stamping Co., but it soon proliferated. Information about the $25,000 'shylock' loan by Marando must have trickled in slowly. But Marando had been alerted to the danger. This brings us to the activities of Cioffi and his involvement in the conspiracy to tamper with Perry Scheer, who Marando expected would be called to testify before the Grand Jury as a witness. Marando, of course, knew that Scheer would be a key witness as the loan was made to him and his two associates Schiffman and Miller, he had signed the demand note and he had repeatedly seen the 'vig' paid in 'green' to Marando. Scheer had personal knowledge of just about everything there was to know about the $25,000 loan.
II
What Cioffi Said and Did
18
Perry Scheer had an uncle named Alex Goldstein who had for many years been an officer of one of the Locals of the Teamsters Union. Goldstein got a phone call from another member of the union named Pinter who wanted to see him. At the appointed hour, outside the Coliseum where Goldstein worked, there turned up not Pinter but two men whom Goldstein had never seen before, one of whom turned out to be Cioffi, a total stranger. While the other unidentified man stood nearby, Cioffi asked Goldstein if he could talk to him about his nephew Perry Scheer who 'had a problem.' They went to a restaurant across the street for coffee. Cioffi opened up an attache case and started taking out a lot of papers but Goldstein said he wasn't interested in any papers. The upshot was that Goldstein, who promptly started to call Cioffi by his first name, 'Sal,' arranged over the phone for a meeting at the Coliseum at 5:30 P.M. on March 30, 1972 to be attended by Sal and Perry. This was confirmed by Goldstein's diary, which was received in evidence. The meeting took place as scheduled, and the unidentified man came, too. At Cioffi's request another meeting was set up and it took place a week later.
19
It would be tedious to describe the details of what Cioffi said at these meetings, as a number of subsequent conversations in person and over the telephone were recorded and played for the jurors. It is sufficient to say that there were repeated references to Scheer's wife and assurances that he would not be held responsible for the repayment of the $25,000 loan or the 'vig.' Cioffi tried to get Scheer to read what purported to be notes of what had occurred before the Grand Jury but Scheer held off. The main thrust was to get Scheer to go to Brooklyn to see Marando and be 'fortified.' There was also the suggestion that Scheer should testify that Bassani had made the loan. But Scheer was 'scared' and he decided the last place in the world he wanted to go was to Brooklyn to confer with Marando. Bassani was another one of the registered representatives in the office of Kelly, Andrews & Bradley.
20
At this point Scheer was cooperating with the FBI and, in anticipation of another meeting with Cioffi on May 18, 1972, Scheer was equipped with recording equipment. By this time Marando and his supporters had become suspicious of Scheer. When he met with Cioffi on May 18 he was patted down but not in the place where the recorder was attached to Scheer's person. A certain amount of putting his hand in front of his mouth also was of little avail to Cioffi as most of the recording was clear enough to be understood by the jurors.
21
At the trial the tapes were played again and again, when they were received in evidence, during the prosecutor's summation and, at the request of the jurors, during their deliberations. The jurors were furnished with transcripts for their convenience. While the words and phrases used by Cioffi were not in Aesopian language, they were probably used at least partially to conceal the real purport of the messages conveyed by Cioffi from Marando to Scheer, in case anyone else heard the conversations, and Scheer was permitted to state what these words and phrases used by Cioffi meant to him. While defense counsel objected to this in the most emphatic manner, we think the authorities support Judge Motley's ruling on the point. Wiley v. United States, 257 F.2d 900 (8th Cir. 1958); Parente v. United States, 249 F.2d 752 (9th Cir. 1957); and Batsell v. United States, 217 F.2d 257 (8th Cir. 1954). Moreover, we rather suspect that the jurors knew what these words and phrases were understood by Scheer to mean, anyway. At least we understand them without difficulty. The sum and substance of the May 18, 1972 recording, which destroyed every vestige of Cioffi's defense, was that Scheer should agree with all the others to 'take the Fifth' and say nothing or that he should come to Brooklyn to see Marando, let Marando get a lawyer for him, and then tell the lawyer what Marando told him to say. Marando was represented as 'on top of' the whole affair. It is not surprising that Scheer was 'scared' and was afraid to go to Brooklyn to see Marando.
22
Other conversations were also recorded but they do little more than repeat in one form or another what had been said before by Cioffi.
23
On May 18, 1972 the Grand Jury in the Southern District of New York handed down an indictment charging Marando with making a $25,000 extortionate loan to Schiffman, Scheer and Miller and specifying the following dates on which 'express and implicit threats of violence' were alleged to have been made in connection with the collection of the loan: February 10, 1971; February 17, 1971; February 23, 1971; March 9, 1971; March 23, 1971 and September 28, 1971. This indictment was sealed and it was ordered unsealed on June 21, 1972. On July 3, 1972 a lawyer representing Marando appeared and entered a plea of not guilty. Marando was not in court at the time.
24
Goldstein testified that on July 7, 1972 he received a message from Cioffi and set up a meeting with Cioffi for July 10. This meeting led to a further meeting with Cioffi late in July or early August. At this meeting Cioffi produced two long sheets attached to each other. Cioffi wanted Goldstein to read this document and get Scheer to write out a statement 'that he was never threatened or intimidated in any way.' Thinking the best way to get the dates was to cut off the bottom part of the second sheet containing the dates, and the words '(Title 18, United States Code, Sections 891, 894 and 2),' followed by the signatures of the foreman of the Grand Jury and Whitney North Seymour, Jr., the United States Attorney, and a seal. It is clear to us that what Cioffi brought with him and handed to Goldstein was a copy of the two-page indictment against Marando, handed down on may 18. The upshot was that Goldstein tore off the bottom part of page 2 with the dates, the notation, the signatures and the seal and he gave the balance of the document back to Cioffi after having photostated the part he had torn off. Indeed, Goldstein recognized the document as having been the same as the one handed to him by Cioffi, and the piece that had been photostated fitted the rest of the page perfectly. We do not think it was error to receive this document in evidence. It was not offered to prove the truth of the contents but rather to clarify the meaning of the conversation between Goldstein and Cioffi, for its bearing on the purpose and intent of Cioffi.
III
25
The 'Defense'
26
As Cioffi did not testify and no witnesses were called on his behalf it seems anomalous to refer to his 'defense.' But his counsel was resourceful and there were two lines of so-called 'defense.'
27
The tapes showed that a considerable part of the conversations between Cioffi and Scheer had to do with the endeavor by Marando to get Scheer to permit him to pay off the balance due on Scheer's loan from the Bank of North America secured by the Brooklyn Poly Industries stock and get this stock back to Marando, the true owner. There was nothing illegal or conspiratorial about Marando's efforts to get this stock back. The picture of Marando sending an emissary to induce Scheer to cooperate in restoring to Marando the stock Scheer had stolen from him may seem incongruous, but such is life. The claim of defense counsel was that the conversations between Cioffi and Scheer, including those recorded on the tapes, related exclusively to the Brooklyn Poly Industries stock and had nothing to do with any prospective testimony by Scheer concerning the $25,000 'shylock' loan and the 'vig.' This 'defense' blew up by itself as the record, including the tapes, make it perfectly clear that a good part of what was said by Cioffi was designed to induce Scheer either to 'take the Fifth' and help get the other participants in the transaction to do the same or to go to Brooklyn and let Marando explain what his story was to be and get a lawyer for him. The second part of the defense strategy was to enter upon such a prolonged cross-examination of Scheer with respect to his many criminal acts as to turn the case into a trial of Scheer for his wrongdoings instead of a trial of the issues relating to Cioffi's attempt to obstruct justice by inducing Scheer to remain silent or to deny that Marando made the extortionate loan and collected the $500 a week in 'green.' One of Cioffi's principal claims of error is that Judge Motley refused to permit counsel to do this. The record is replete with evidence of the commission of criminal acts by Scheer, although it seems that he had never been convicted. We have already referred to some of the more serious of these criminal acts. By his own admission on the witness stand he was guilty of criminal violations of the securities laws in connection with underwritings and sales of the stock of Lady Goldie Bracelets, N.A.P. Industries, Cadgie Taylor, All-State Metal Stamping Co., Bel-Aire Financial and Fashion Week. Scheer admitted those acts of serious misconduct, the prosecution stipulated on the subject and it was also stipulated that in the Spring of 1973 he was told that he would not be prosecuted and was given immunity. All this material affecting Scheer's credibility was referred to again and again in defense counsel's summation. We hold that there was no abuse of discretion in limiting the cross-examination of Scheer under the circumstances of this case and we shall make no further reference to the subject in this opinion.
IV
28
The Obstruction of Justice Act, 18 U.S.C., Section 1503 was Properly Interpreted and Applied by Judge Motley
29
In Cioffi's brief we are told again and again that there was no proof of threats or intimidation by him and that no conviction for violation of that statute can be sustained unless the jury was instructed to acquit Cioffi in the absence of proof of such threats or intimidation. We hold that there was proof of threats or intimidation and we also hold that Judge Motley properly instructed the jury that a verdict of guilty might be based on intimidation by threats or by corruptly endeavoring to influence the witness Scheer to give false testimony or by corruptly influencing him to invoke the Fifth Amendment.2
30
The statute is plainly in the disjunctive, 'or.' Moreover, there is no requirement that there be proof of direct threats or the actual use of force. The continual references to Scheer's wife, against the background of Marando's earlier statement of what he would do if the 'vig' was not paid, were enough. She was Scheer's Achilles' heel. It is not surprising that he was 'scared' and winced at every mention of her in his conversations with Cioffi. The whole tenor of the various phases of the messages from Marando, as delivered by Cioffi, was that he had better do what he was told, or else. And so the jury would have been justified in believing Scheer's testimony that he was physically afraid to go to Brooklyn to be 'fortified.'
31
As Judge Motley so aptly said, the key words in the statute are 'corruptly' and 'endeavors.' The endeavor, whether successful or not, is the gist of the offense. United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553 (1921). Knowing that the loan had in fact been made and the extortionate interest paid, all to the personal knowledge of Scheer, an endeavor to induce Scheer to deny the making of the loan, or to pass it off on Bassani, or to plead the Fifth Amendment for the purpose of protecting Marando, was obviously corrupt. Judge Motley defined endeavor as 'any effort or any act, however contrived, to obstruct, impede or interfere with a witness,' and she told the jurors that any such endeavor is corrupt. There is no requirement that any sort of money or other consideration be received before the endeavor can be considered corrupt. United States v. Polakoff, 121 F.2d 333 (2d Cir.), cert. denied, 314 U.S. 626, 62 S.Ct. 107, 86 L.Ed. 503 (1941); Bosselman v. United States, 239 F. 82 (2d Cir. 1917); Broadbent v. United States, 149 F.2d 580 (10th Cir. 1945).
32
Cioffi insists that the mere giving of advice to a witness to plead his constitutional privilege against self-in-crimination cannot be made a crime. But here we have something more than 'mere' advice. The correct view as charged by Judge Motley, and as held by the Ninth Circuit in Cole v. United States, 329 F.2d 437 (9th Cir.), cert. denied, 377 U.S. 954, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964), is:
33
I charge you that while a witness violates no law by claiming the Fifth Amendment privilege against self-incrimination in a grand jury, one who bribes, threatens, coerces a witness to claim it or advises with corrupt motive a witness to take it, can and does obstruct or influence the administration of justice.
34
The focus is on the intent or motive of the party charge as an inducer. The lawful behavior of the person invoking the Amendment cannot be used to protect the criminal behavior of the inducer. There is ample evidence that the inducer Cioffi endeavored to influence the witness Scheer.
35
An essential ingredient of the statute is that there must be a 'witness' subject to being influenced. We hold that Scheer was such a witness.
V
Miscellanea
36
There are many other claims of error. We have given careful consideration to each of these and we find no merit in any of them. There is no evidence that the photographs of Marando were mug shots. And, even if that were so, it would be difficult to find any prejudice to Cioffi in view of what this record reveals of Marando's conduct. To describe Special Agent Parks' brief description of an extortionate loan as a lecture on the law and a usurpation of the judicial function of the trial judge is hardly worthy or comment. When Parks said in response to a question that he was attached to the Organized Crime Division of the FBI, no objection was made nor any request for an instruction to the the jury that this was not evidence against Cioffi. Had such a request been made we have no doubt the statement would have been stricken and the jury would have been told to disregard it. The failure on the part of Judge Motley to give such an instruction was clearly not 'plain error.' Nor was it error to admit Scheer's testimony of some conversations with Goldstein that had not been covered in the prosecution's direct examination of Goldstein. When Goldstein reported to Scheer what Cioffi had told him to tell Scheer, these conversations were all in furtherance of the conspiracy and hence admissible. United States v. Montgomery, 440 F.2d 694 (9th Cir.), cert. denied, 404 U.S. 884, 92 S.Ct. 221, 30 L.Ed.2d 166 (1971). The objection that Marando was not named in the indictment as a co-conspirator but was named as such only in the bill of particulars is frivolous.
37
Affirmed.
1
18 U.S.C., Section 1503. Influencing or injuring officer, juror or witness generally
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States commissioner or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
2
'The obstruction of justice statute may be violated in various ways. First, the statute may be violated if the witness is intimidated by a threatening communication. As you know, intimidation includes frightening a person, inspiring or affecting him by fear or deterring him as by threats
Second, the statute may also be violated if a witness is corruptly influenced to give false testimony before a grand jury, and third, the statute may also be violated if a defendant endeavors to corruptly influence a witness to invoke the Fifth Amendment privilege to remain silent before a grand jury.' | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1621086/ | 736 S.W.2d 629 (1987)
LEECO GAS & OIL COMPANY
v.
COUNTY OF NUECES.
No. C-5950.
Supreme Court of Texas.
July 8, 1987.
Rehearing Denied October 7, 1987.
*630 Francis I. Gandy, Jr. and John Pichinson, Corpus Christi, for petitioner.
Carlos Valdez, Co. Atty., & assistants Carol McCollister, Paula A. Wyatt, and James Rosenkild (Co. Atty.'s Office), Corpus Christi, for respondent.
OPINION
GONZALEZ, Justice.
This is a condemnation suit. The issue is whether Nueces County, as grantee in a deed, may condemn a possibility of reverter on land given to the County and pay mere nominal damages to the owner of the reversionary interest. The trial court answered this issue in the affirmative and the court of appeals affirmed the judgment of the trial court. 716 S.W.2d 615. We reverse and remand.
In 1960, Leeco gift deeded fifty acres of land on Padre Island to Nueces County for use as a park. Leeco retained a reversionary interest in the deed whereby the County would keep the property "so long as a public park is constructed and actively maintained" by the County on the property. The County dedicated and maintained a park on the property. However, in 1983, the County began condemnation proceedings against Leeco's interest. The commissioners awarded Leeco $10,000 for its reversionary interest. Leeco appealed to the county court at law where the trial judge granted a partial summary judgment against Leeco resolving all issues except damages. In a separate trial to determine compensation for Leeco, experts testified that the land was worth between $3,000,000 and $5,000,000. The trial court awarded Leeco $10 in nominal damages.
Leeco brings several points of error claiming that the County is estopped from condemning the property by its acceptance of a deed with knowledge of the reversionary interest. Leeco also challenges the measure of damages. We first address the estoppel argument.
The Texas Constitution provides that "[n]o person's property shall be taken... for ... public use without adequate compensation being made, unless by the consent of such person. . . ." Tex. Const. art. I, § 17. Acquiring an interest in land to establish and maintain public parks involves a governmental function. See generally Schooler v. State, 175 S.W.2d 664, 669 (Tex.Civ.App.El Paso 1943, writ ref'd w.o.m.) (acquisition of park land is a public use). When a governmental unit is exercising governmental powers it is not subject to estoppel. City of Hutchins v. Prasifka, 450 S.W.2d 829, 835 (Tex.1970). Therefore, we hold the County was not estopped from condemning the reversionary interest. We next consider whether the award of nominal damages by the trial court was proper.
Generally, under the Restatement of Property, a mere possibility of reverter *631 has no ascertainable value when the event upon which the possessory estate in fee simple defeasible is to end is not probable within a reasonably short period of time. See generally Restatement of Property § 53 comment b (1936). In affirming the $10 award of nominal damages, the court of appeals relied on City of Houston v. McCarthy, 464 S.W.2d 381 (Tex.Civ.App. Houston [1st Dist.] 1971, writ ref'd n.r.e.). In McCarthy, the court found that when at the time of condemnation the property was being used as permitted under the deed and there was no evidence that the restrictive covenant would ever be broken, the value of the possibility of reverter was so speculative as to be nominal only. McCarthy, 464 S.W.2d at 384. The court of appeals pointed out that the McCarthy court cited Sabine River Auth. v. Willis, 369 S.W.2d 348 (Tex.1963) and Hamman v. City of Houston, 362 S.W.2d 402 (Tex.Civ.App. Fort Worth 1962, writ ref'd n.r.e.) as authority to support its holding. The court of appeals then held that there was no evidence in this case that the County intended to violate the deed restrictions so long as Leeco retained the possibility of reverter and no evidence that the conditions were breached. This evidence is not determinative of the issue.
Here, one county official testified that there were "various ideas and proposals and schemes" about putting income producing activities on the land. The same official further stated that "it would be in the County's best interest" to own the park outright so that it "may in the future consider plans that are inconsistent with the present deed restrictions." Furthermore, in the County's Original Statement in Condemnation, the County pleaded that its plans for future development of the Park included "uses which could be construed to cause Plaintiff's determinable fee estate, to terminate and cease." The County further alleged that the "present use and operation of the Park" placed an "undue burden upon Plaintiff in its future development of the Park." Thus, this is not a case of condemning a "remote" possibility of reverter, but rather an attempt by the County to remove the "burden" of the reversionary interest by condemning the interest and paying nominal damages.
Also, in the McCarthy, Sabine and Hamman decisions, a governmental entity, which did not previously own the future interest or the possessory defeasible estate, was condemning the entire fee to the property. Although in McCarthy and Hamman the owner of the possessory defeasible estate was also a governmental entity, a different and "paramount" governmental entity was the condemnor. Hamman, 362 S.W.2d at 406. In each case, the condemning governmental entity paid actual damages for the taking. The issue was who would receive the damagesthe owner of the possessory estate or the future interest. There were no prior indications that the restrictive covenants would ever be broken by the owners of the possessory defeasible estate. Therefore, the value of the possibility of reverter was so speculative as to be nominal only and damages were rightfully awarded to the owner of the possessory estate. In this case the County, as owner of the defeasible estate, indicated that it "may in the future" break the restrictions and condemned the possibility of reverter for nominal damages only.
There is a constitutional requirement that if the County is to condemn land, it must adequately compensate the landowner for the property interest taken. McCarthy, 464 S.W.2d at 387. Ten dollars in compensation for a multi-million dollar piece of property is not adequate as a matter of law. To allow a governmental entity, as grantee in a gift deed, to condemn the grantor's reversionary interest by paying only nominal damages would have a negative impact on gifts of real property to charities and governmental entities. It would discourage these types of gifts in the future. This is not in the best interests of the citizens of this State.
We hold that when a governmental entity is the grantee in a gift deed in which the grantor retains a reversionary interest, if that same governmental entity condemns the reversionary interest, it must pay as compensation the amount by which the value *632 of the unrestricted fee exceeds the value of the restricted fee. See, e.g., Ink v. City of Canton, 4 Ohio St. 2d 51, 212 N.E.2d 574, 579 (1965).
We reverse the judgment of the court of appeals and remand this cause to the trial court to determine the amount by which the value of the unrestricted fee exceeds the value of the restricted fee.
CAMPBELL, J., concurs in an opinion joined by ROBERTSON and KILGARLIN, JJ.
CAMPBELL, Justice, concurring.
I concur in the result in this proceeding because there is some precedent for the court's holding. In future cases, however, I would hold that if a political subdivision has accepted a gift by deed that grants a fee simple determinable interest, initiation of condemnation proceedings by the grantee on the reversionary interest is a renunciation of the gift. Condemnation is an act inconsistent with the granted, authorized use and will cause the granted estate to terminate and revert to the grantor in fee simple absolute.
ROBERTSON and KILGARLIN, JJ., join in this concurring opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621131/ | 13 So. 3d 456 (2007)
A.Z. HOWELL
v.
DUNBARTON CORP.
No. 2060424.
Court of Civil Appeals of Alabama.
September 7, 2007.
Decision of the Alabama Court of Civil Appeals without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920426/ | 245 Pa. Super. 402 (1976)
369 A.2d 465
COMMONWEALTH of Pennsylvania
v.
Daniel J. McCUSKER, Appellant.
Superior Court of Pennsylvania.
Submitted June 28, 1976.
Decided November 22, 1976.
Joseph W. Mullin, Public Defender, Huntingdon, for appellant.
Stewart L. Kurtz, II, Huntingdon, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
*403 HOFFMAN, Judge:
Appellant seeks to challenge for the first time on appeal the adequacy of the colloquy prior to his plea of nolo contendere to the charges of aggravated assault[1] and resisting arrest.[2]
On August 30, 1975, at approximately 1:30 a.m., appellant entered the Huntingdon Borough police station to report the theft of his automobile. Subsequent investigation by the police revealed that appellant's vehicle had been involved in a hit-and-run accident. The officer on duty informed appellant that he would probably be arrested and charged with failure to stop at the scene of an accident.[3] A scuffle ensued, and appellant injured two officers before he was subdued. The testimony of the officers during appellant's plea colloquy on December 10, 1975, indicated that appellant might have been intoxicated on the night in question. Nevertheless, the court below accepted appellant's plea of nolo contendere; and, on February 5, 1976, it sentenced appellant to serve 2 to 4 years' imprisonment. Appellant did not petition the lower court for permission to withdraw his plea, but rather, appealed directly to this Court.
Appellant has made the common mistake of attacking the validity of his plea on direct appeal without first filing a petition to withdraw the plea with the lower court to which the plea was made. See Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975); Commonwealth v. Roberts, 237 Pa.Super. 336, 352 A.2d 140 (1975). In Commonwealth v. Roberts, supra, this Court mandated strict compliance with the requirement that the appellant file a petition to withdraw. For appeals filed prior to the filing date of Roberts, December 1, 1975, this Court *404 has generally remanded cases involving challenges to guilty pleas to permit appellants an opportunity to file a petition to withdraw.
This appeal was filed on March 5, 1976. Because appellant has not filed a petition to withdraw with the lower court and because this appeal was filed well beyond the effective date of the rule announced in Roberts, we must hold that appellant has waived his right to raise issues in this Court which have not been presented to the court below. Cf. Commonwealth v. Reid, 458 Pa. 357, 358, 326 A.2d 267 (1974).
Judgment of sentence affirmed.
SPAETH, J., files a dissenting opinion in which WATKINS, President Judge, joins.
SPAETH, Judge, dissenting:
It is undeniable that appellant has failed to comply with our rule, announced one year ago in Commonwealth v. Roberts, 237 Pa.Super. 336, 352 A.2d 140 (1975), that any challenge to the validity of a guilty plea must begin with a petition to withdraw the plea in the court below.[1] I do not agree, however, with the majority's conclusion that in consequence appellant has waived his right to pursue his claim of an inadequate colloquy.
The rule we announced in Roberts was based on the Supreme Court's statement that "in cases . . . where the only challenge to the proceedings in the trial court is directed to the validity of a guilty plea itself, the proper procedure is first to file with that court a petition to withdraw the plea." Commonwealth v. Lee, 460 Pa. *405 324, 327 n., 333 A.2d 749, 750 n. (1975). We said: "Due to the overwhelming frequency with which the Superior Court is confronted with this issue, we deem it necessary to now require strict compliance with this procedure." Commonwealth v. Roberts, supra, 237 Pa.Super. at 338 n. 1, 352 A.2d at 141 n. 1.
However, neither we nor the Supreme Court has stated what consequence an appellant will suffer for failure to comply with the rule thus announced. In Lee the Supreme Court allowed the appellant to pursue his appeal:
Because of the uncertainty which has prevailed as to the appropriate method by which to attack a guilty plea, as well as the absence of a definitive procedural rule on the subject, we will consider the merits of appellant's claim.
460 Pa. at 327 n., 333 A.2d at 750 n.
Two, alternative, consequences may be supposed: (1) all claims that could have been raised in the petition to withdraw the guilty plea will be deemed waived; or (2) the appellate court will never address the merits of a claim that a guilty plea was invalid but will instead automatically remand to allow the appellant to file a petition to withdraw the plea. In practice, as the majority notes, we have generally remanded.[2] That does not help here, however, for those cases were appeals filed before the filing date of Roberts. Here we have the first case filed after the filing date of Roberts.
In my opinion, we should do better to hold that a case will be automatically remanded when there has been a failure to file a petition to withdraw a plea. Thereby we should in many cases save ourselves, and the parties, a *406 great deal of time, for on remand a petition to withdraw would be filed and the lower court could correct its error, which would end the case. More important, perhaps, we should also avoid numerous, quite unnecessary, complications, which the majority does not appear to have anticipated.
It is easy to construe the cases, as the majority does, as indicating that the consequence of failing to file a petition to withdraw should be waiver rather than automatic remand. For example, in Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975), the Supreme Court buttressed its reasoning as to the "proper practice" by drawing an analogy to Pa.R.Crim.P. 1123, which made mandatory the filing of post-verdict motions. Id. at 531 n. 1, 333 A.2d at 900 n. 1. That analogy implies that the consequence suffered for failure to petition to withdraw a guilty plea will be the same as that suffered for failure to file post-verdict motions, viz. that all claims an appellant could have raised are waived. Similarly, we stated in Roberts that
[t]he purpose behind this procedure can best be illustrated by looking to the area of post-verdict motions. See Pa.R.Crim.P., Rule 1123 and comments thereto. Pennsylvania appellate courts have recently taken the uncompromising position that when an issue is not raised in post-verdict motions it will not be considered on appeal. [Citations omitted.] The reason for this position is that "[t]he swift and orderly administration of criminal justice requires that lower courts be given the opportunity to rectify their errors before they are considered on appeal." Commonwealth v. Reid, 458 Pa. 357, 358, 326 A.2d 267, 267 [sic] (1974).
The same principles which mandate that issues not raised in post-verdict motions will not be considered on direct appeal mandate that an attack on a guilty plea on direct appeal must be preceded by the filing of a petition to withdraw such plea with the court below.
*407 The enforcement of this procedure will give the court which accepted the plea the opportunity to allow the withdrawal of the plea if it was in fact not voluntarily and understandingly made. If the defendant remains unsatisfied with the lower court's disposition of his petition to withdraw his guilty plea, then at that point the issue would be properly preserved and ripe for appellate review. Strict adherence to this procedure could, indeed, preclude an otherwise costly, time consuming, and unnecessary appeal to this court.
237 Pa.Super. at 338-39, 352 A.2d at 141.
In addition, we have in three dicta said by negative implication that waiver would be the consequence of failing to follow the correct procedure. Commonwealth v. Harrsch, 245 Pa.Super. 411, 369 A.2d 470 (1977); Commonwealth v. Riley, 239 Pa.Super. 488, 361 A.2d 423 (1976); Commonwealth v. Velasquez, 238 Pa.Super. 368, 357 A.2d 155 (1976).
For the purposes of discussion only,[3] I am willing to assume that both the majority's construction of the cases and our dicta are correct. Even so, the majority's own reasoning shows that we cannot find that appellant here has waived his right to challenge the validity of his plea of nolo.
When a defendant fails to file post-verdict motions, "for such a waiver to be effective, the record must affirmatively demonstrate that the appellant was aware of his right to file post trial motions and that he knowingly and intelligently decided not to do so." Commonwealth v. Schroth, 458 Pa. 233, 235, 328 A.2d 168, 169 (1974). "Because [post-verdict] motions are a critical step in the post-conviction review process, we will scrutinize closely *408 any waiver of the right to file them in order to ensure that the defendant has acted voluntarily and with a full understanding of his rights." Commonwealth v. Coleman, 458 Pa. 324, 325-26, 327 A.2d 77, 78 (1974). In general, we have taken such statements to mean that at a minimum, the record must show compliance with the requirements of Pa.R.Crim.P. 1123 (b) and (c).[4]See Commonwealth v. Miller, 232 Pa.Super. 171, 335 A.2d 528 (1975).[5]
Since the majority relies on the analogy between the failure to petition to withdraw a guilty plea and the failure to file post-verdict motions, it should by parity of reasoning insist on the same safeguards in each case. Therefore: before an appellate court may find that a defendant has waived his right to challenge the validity of a guilty plea, it must find on the record that he knowingly and intelligently waived his right to petition to withdraw *409 the plea. As with post-verdict motions, at a minimum the appellate court must see on the record that the lower court has advised the defendant of his right to petition to withdraw his plea of guilty, of his right to the assistance of counsel in filing such a petition, and of the consequence of not filing such a petition.[6]
It may be objected that this would burden the trial bench with yet another question that must be asked a defendant at a guilty-plea colloquy. I grant that that would be so, but it would be so because of the majority's decision, not mine. Furthermore, it cannot be otherwise at least, it cannot be if the majority insists upon the consequence of waiver. As with the application of the waiver doctrine to post-verdict motions: if the appellate courts choose to impose upon defendants the requirement that they either take a certain procedural step below or suffer the consequence that they will have waived important rights on appeal, then the appellate courts must also impose upon the trial bench the duty of ensuring that those rights are foregone only by informed defendants.
In the present case, although the lower court's colloquy with appellant was extensive, at no point did it advise appellant of his right to file a petition to withdraw a guilty plea, and of the consequences of not filing such a petition.[7] Indeed, the court's comments (which were quite correct according to the practice prior to Lee and Roberts) implied that there was no rule that appellant *410 must first petition to withdraw his plea or suffer waiver.[8] It follows that the majority cannot determine from the record whether appellant knowingly and intelligently waived his right to petition to withdraw his plea. The remedy should therefore be the same as that applied in cases involving failure to file post-verdict motions: the judgment of sentence should be vacated and the record remanded for a determination, following an evidentiary hearing if necessary, of whether appellant's waiver of his right to petition to withdraw his plea of nolo contendere was voluntary and intelligent. If there was no such waiver, appellant should be granted an opportunity to petition to withdraw his plea. If such a waiver is found, the judgment of sentence should be reinstated. Following disposition by the trial court, either side would be entitled to file a new appeal. See Commonwealth v. Tate, 464 Pa. 25, 346 A.2d 1 (1975).[9]
*411 To me, as I have indicated at the outset of this opinion, all of this seems complicated and unnecessary. I should simply remand with leave to appellant to file a petition to withdraw his plea.
WATKINS, President Judge, joins in this opinion.
NOTES
[1] The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S. § 2702.
[2] The Crimes Code, supra; 18 Pa.C.S. § 5104.
[3] The Motor Vehicle Code, Act of April 29, 1959, P.L. 58; § 1027; 75 P.S. § 1027.
[1] Appellant pleaded nolo contendere rather than guilty; but because "a plea of `nolo contendere' is to be treated the same as a guilty plea," Commonwealth v. Hayes, 245 Pa.Super., 521, 523, 369 A.2d 750, 754 (1976), the rule of Roberts controls this case. See my dissent in Hayes, supra. For convenience (since most of the cases I shall discuss involved "guilty pleas"), I shall refer throughout to "guilty pleas" with the intention that that term be understood to include pleas of nolo contendere.
[2] By "generally" the majority and I do not mean that we have sometimes held claims waived. Rather, some of my colleagues have said that when the claim is adequately presented on the record we should address its merits, as the Court did in Lee. See, e.g., Commonwealth v. Harrsch, 245 Pa.Super. 411, 369 A.2d 470 (1977) (dissenting opinion by Judge Van der Voort).
[3] As stated ante at 406, 369 A.2d at 467, I would hold that we should remand rather than find waiver. In any event, the analogy between a post-verdict motion and a petition to withdraw a guilty plea is possibly misleading, for a trial (attacked by the one) and a guilty plea hearing (attacked by the other) are quite different proceedings.
[4] (b) . . . The defendant may . . . within the seven (7)-day period on the record voluntarily and understandingly waive the filing of post-verdict motions. Prior to the acceptance of such waiver the trial judge shall, pursuant to paragraph (c) of this Rule, advise the defendant on the record that his waiving of post-verdict motions shall preclude his raising on appeal any issues which might have been raised in such motion.
(c) Upon the finding of guilt, the trial judge shall advise the defendant on the record: (1) of his right to file post-verdict motions and of his right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein; (2) of the time within which he must do so as set forth in paragraph (a); and (3) that only the grounds contained in such motions may be raised on appeal. Pa.R.Crim.P. 1123(b) & (c).
[5] This minimum has been held to have equivalents. For example, my colleagues held in Commonwealth v. Duncan, 235 Pa.Super. 15, 340 A.2d 555 (1975), that an appellant "cannot claim that there was not a knowing and intelligent waiver of his right to file post-verdict motions when such motions were in fact filed and then withdrawn." Id. at 18, 340 A.2d at 556. In a subsequent case, however, we refused so to hold where the record did not affirmatively demonstrate that the appellant's decision to withdraw his post-verdict motions was knowingly and intelligently made. Commonwealth v. Holman, 237 Pa.Super. 291, 352 A.2d 159 (1975). In the latter decision we relied heavily on the judge's failure to give the cautionary instructions required by Pa.R.Crim. P. 1123(c).
[6] I do not suggest that we must have a Rule of Criminal Procedure that spells out these requirements. Our decisional law may do that, as was done in the case involving post-verdict motions. See, e.g., Commonwealth v. Coleman, supra, and Commonwealth v. Schroth, supra, in both of which the waiver of the filing of post-verdict motions preceded the effective date of Rule 1123(c). However, a Rule would probably be desirable.
[7] In no way does this omission reflect on the performance of the lower court. To the contrary, just as I would not expect appellant's counsel to have deduced precise procedural consequences from our imprecise dictum in Roberts, so I would not fault the lower court for failing to realize that an additional question would now be required in colloquies.
[8] The court asked appellant: "And do you understand that, if the plea is accepted and you are later sentenced, then the only questions that you could raise on appeal are these three: One, whether or not your plea of nolo contendere was legal in that it was understandingly and intelligently made by you . . .." (Record of Proceedings at 8.)
[9] Still another complication may be noted. It may be anticipated that, under the majority's view, the issue of the voluntariness of an appellant's waiver of his right to file a petition to withdraw his plea will have to be raised "at the earliest opportunity on appeal; otherwise that question itself is waived." Commonwealth v. Carter, 463 Pa. 310, 313 n. 4, 344 A.2d 846, 848 n. 4 (1975), citing Commonwealth v. Jones, 460 Pa. 223, 334 A.2d 601 (1975).
It would be most unfair to enforce that rule here, however, because this is the first case that has squarely presented the question of what consequence an appellant will suffer for failure to petition to withdraw a guilty plea. Especially is this so because we have ourselves never clearly said what that consequence would be. We should not penalize appellant here for his counsel's failure to realize, from the implications of Lee and Roberts and from our dicta in Harrsch, Riley and Velasquez, that he must on appeal raise the issue of the voluntariness of appellant's waiver of his right to petition to withdraw his plea. The cases on post-verdict motions are again instructive: in both Coleman and Schroth the Supreme Court discussed the issue of the voluntariness of the waiver, even though (as far as can be deduced from the opinions) the issue was not raised on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588394/ | 146 P.3d 884 (2006)
341 Or. 579
Friberg-Green
v.
Hatfield-Willoughby
(S54031).
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/98453/ | 237 U.S. 427 (1915)
ERIE RAILROAD COMPANY
v.
SOLOMON.
No. 559.
Supreme Court of United States.
Argued February 24, 1915.
Decided May 10, 1915.
ERROR TO THE SUPREME COURT OF THE STATE OF OHIO.
Mr. Leroy Manchester, with whom Mr. C.D. Hine was on the brief, for plaintiff in error.
Mr. Emil J. Anderson for defendant in error.
*429 MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
Solomon, the defendant in error, sued to recover for personal injuries suffered by him while he was working as a brakeman on a switch engine in the yard of the defendant company at Youngstown, Ohio. The negligence charged was that the tender of the engine had a defective coupler in that the knuckle and pin on the same could not be worked without going between the cars and that the draw-bar had so much side play that it would not meet the couplers of other cars and therefore would not *430 automatically couple by impact. The first defect may be put out of view as the jury found it did not exist. As to the second, the respective contentions at the trial were, on the part of the plaintiff, that the play of the draw-bar was so great as to cause the coupler to be defective, and on the part of the defendant, that while the draw-bar may have had some side play it only existed to the degree which was essential in such an appliance and therefore there was no defect. The trial court submitted the case to the jury on the theory that the coupler was defective if it had an unusual side play and conversely that it was not if it did not have such a degree of side play. From the pleadings and the course of the trial there is no room for dispute that the case was tried upon the theory that the right to recover was based on the Safety Appliance Law of Ohio, substantially identical in its terms with the Safety Appliance Law of the United States. The judgment on the verdict of the jury in favor of the plaintiff was affirmed without opinion by the Circuit Court and again affirmed without opinion by the Supreme Court of Ohio to which judgment the writ of error now before us was prosecuted.
Confining the case to the statement just made it is beyond dispute that there is no jurisdiction to review, but it is insisted that the case is not so confined because after affirmance the court below entered an order which it directed should be made part of the record certifying that in deciding the case it became necessary for it to consider whether the United States Safety Appliance Law was applicable and whether as construed by the trial court the state law if applicable was not repugnant to the due process clause of the Fourteenth Amendment. But assuming that the recited Federal questions are in the record and require consideration, they are so without merit and frivolous as not to give basis for jurisdiction: First, because such plainly is the result of the contention that error to *431 the prejudice of the defendant company concerning the United States Safety Appliance Law, if that law applied, was committed by instructing that it exacted a usual, that is, ordinary degree of care in the appliances to which that act related. And second, because a like view inevitably is necessary concerning the contention that the State Safety Appliance Law, if it applied, would be repugnant to the Fourteenth Amendment if it exacted a usual and ordinary degree of care. But this is not adequate to dispose of the case since the argument is that error as to the recited Federal question directly arose from the refusal of the court to instruct a verdict for the Railroad Company on the ground that there was no proof tending to show an unusual or any defect in the coupler, thereby permitting the jury to find a liability under the law of the United States where none existed, and under the theory of the application of the state law, causing such law to impose a liability for an appliance which was not defective, and hence to take property without due process of law. But while the proposition changes the form of the contention, it does not change the substance of things since we are of the opinion after an examination of the record that the contention that the case should have been taken from the jury on the ground stated is so wholly devoid of merit and wanting in substance as to afford no basis for jurisdiction. As a proposition which is unsubstantial and frivolous cannot be made substantial by asserting another proposition of the same character, it results that there is no ground for the exercise of jurisdiction and the writ of error is therefore
Dismissed for want of jurisdiction. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/100725/ | 269 U.S. 118 (1925)
HICKS, ALIEN PROPERTY CUSTODIAN,
v.
POE ET AL.
No. 34.
Supreme Court of United States.
Argued October 12, 13, 1925.
Decided November 16, 1925.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.
Messrs. Daniel O. Hastings and Hartwell Cabell, for appellant.
*119 Messrs. Stuart S. Janney and J. Kemp Bartlett, with whom Mr. Joseph C. France was on the brief, for appellees.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
This suit for an accounting was begun in the federal district court for Maryland on June 12, 1920, by the receivers of the United Surety Company, a corporation of that State, against the Munich Re-Insurance Company, a Bavarian corporation. The controversy arose out of a written agreement entered into by the companies in 1906. There had been active litigation in the Maryland courts where much became res judicata. See Munich Re-Insurance Co. v. United Surety Co., 113 Md. 200; 121 Md. 479; Poe v. Munich Re-Insurance Co., 126 Md. 520. This suit was then begun under § 9 of the Trading with the Enemy Act, October 6, 1917, c. 106, 40 Stat. 411, 419 as amended, because the receivers sought to reach funds of the Munich Company in the possession of the Alien Property Custodian. The District Court after careful opinions entered a decree for the receivers for $189,517.16 with interest. 276 Fed. 949; 293 Fed. 764. The Court of Appeals affirmed it without opinion. 293 Fed. 766. The appeal to this court, allowed January 7, 1924, was taken as of right under § 241 of the Judicial Code. We find no reversible error. Two matters only require mention. Neither presents a question federal in its nature.
The United engaged in the business known as surety, fidelity and burglary insurance. The Munich, by what is called a participation contract, agreed with it to assume one-third of the liability on every such risk written during a period five years. The management of the business was to be left to the United without restriction. Upon an annual accounting the Munich was to receive one-third of any profits or pay one-third of any losses. A *120 decree entered against the Munich in the state court for losses incurred during the five-year period had been satisfied. This suit is for losses incurred after its expiration on insurance of the United then still outstanding. The company had been unsuccessful. The state court after the expiration of the five-year period appointed receivers who proceeded to wind up the business. They sought in vain to re-insure all outstanding risks. Then, with the approval of the court, they secured, so far as possible, cancellation of the outstanding insurance by returning unearned premiums. The losses on account of which this suit was brought were on risks entered into during the existence of the participation contract and remaining unexpired upon its termination and which the receivers did not succeed in getting cancelled. The Munich argues that by the course pursued the assets were wasted through returning the unearned premiums on good risks, and that thus the poor risks were left unprotected;c insists that it was entitled to have all the insurance carried to its expiry; and contends that the receivers, by securing the cancellation of much of it for the purpose of winding up the business, committed a breach of the participation contract which released it from further liability. The contention is unfounded. The participation contract did not restrict the discretion to be exercised by the United, and its receivers, in the conduct of the business or in winding it up after the termination of the agreement. The case of Central Trust Co. v. Chicago Auditorium Assn., 240 U.S. 581, upon which appellants rely, is without application.
There is a further contention that, because the United has not paid to its creditors any part of the amounts due on its contracts, and is likely to pay only twenty-five cents on the dollar, the Munich is under no liability to pay to it anything on account of losses incurred thereunder or, in any event, more than a pro rata share of the payments actually made by the United. The Munich became a reinsurer. *121 The liability of a re-insurer is not affected by the insolvency of the re-insured company or the inability of the latter to fulfill its own contracts with the original insured. Allemania Fire Insurance Co. v. Firemen's Insurance Co., 209 U.S. 326. The participation contract differs from customary re-insurance in this: The Munich instead of receiving premiums and paying its share of losses was to participate in profits and losses. The difference is not one which affected the scope or character of the Munich's obligation.
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/462796/ | 780 F.2d 1016
Olliev.Hunt
85-3154
United States Court of Appeals,Third Circuit.
11/29/85
1
W.D.Pa.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/625289/ | 675 F.3d 412 (2012)
Harold E. HUFFMAN, Plaintiff-Appellee,
v.
UNION PACIFIC RAILROAD, Defendant-Appellant.
No. 09-40736.
United States Court of Appeals, Fifth Circuit.
March 13, 2012.
*414 J. Kirkland Sammons (argued), John Gus Zgourides, Sr. Trial Atty., Sammons & Berry, P.C., Houston, TX, for Plaintiff-Appellee.
Harry Alston Johnson, III (argued), Phelps Dunbar, L.L.P., Baton Rouge, LA, William David George, Mainess Gibson, Connelly, Baker, Wotring, L.L.P., Houston, TX, for Defendant-Appellant.
Before DENNIS, OWEN and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
For nearly 40 years, Harold Huffman worked for the Union Pacific Railroad. He claims that injuries to his knee, diagnosed after his retirement, were partly the result of the railroad's negligence. A jury found such a connection and awarded damages. We conclude that no evidence was introduced to connect the worker's specific condition to the work that he performed. We therefore REVERSE and REMAND for entry of judgment.
FACTS
This suit was filed under the Federal Employers Liability Act (FELA, or "the *415 Act"). 45 U.S.C. § 51 et seq. Huffman filed the suit on February 21, 2007. The claims at trial were that the Union Pacific was negligent in failing to: (1) provide a reasonably safe work environment, (2) give adequate warnings and training to its employees regarding the risks and harms associated with their work, (3) perform ergonomic screening or appropriate job analysis of the jobs performed by Huffman, and (4) implement a comprehensive plan to reduce the avoidable physical stresses in employees' job duties.
Huffman was first employed in 1965 and retired in 2004. He claims that the repetitive physical demands of his work resulted in the cumulative trauma injury[1] of knee osteoarthritis. Evidence supported that a frequent walker along a railroad roadbed, who must occasionally leap off moving trains, and who otherwise does what those who work on the railroad have long done, is subject to musculoskeletal disorders. The principal issue on appeal is whether jurors could infer that Huffman's osteoarthritis, an injury that can be caused by everyday activities, was caused by the railroad's failure to train him on how to perform his tasks in an ergonomically optimal way.
Huffman started his career as a brakeman. From 1970 until his retirement, he worked as a conductor. That position placed him in charge of the train and the work of others. Huffman testified that even as a conductor, as late as 1993, he still performed job functions of a trainman.
In 1965, there were separate positions for an engineer, conductor, fireman, head brakeman, rear brakeman, and switchman. Now, the brakeman, switchman, and conductor functions are performed by a "trainman." The Union Pacific's description of the physical requirements of the trainman position is this:
Must be able to exert musculoskeletal strengthor muscular strength sufficient to push, pull, and lift/carry weights of up to 25 pounds frequently, and 50 pounds occasionally, and to assist in the infrequent movement of weights up to 83 pounds. Strength, coordination, and balance sufficient to step on and off moving equipment at speeds of three miles per hour or less. Walk frequently on ballast across uneven terrain for short distances and infrequently for distances up to one mile. Remain seated or standing for over a half work shift with the opportunity to change position for comfort. Climb stairs and ladders occasionally. Perform activities that infrequently require bending or stooping. Hold on to a ladder while occasionally riding a slowly moving train.
Often the only employees working on a train were the engineer and trainman/conductor. Huffman jumped off trains going faster than three miles per hour on a few occasions. He also walked on the loose and uneven ballast (the rocks helping secure the tracks) for over a mile at a time, causing him to slip and slide. The mainline ballast, i.e., the rocks on the miles of mainline tracks, were larger than the ballast in railroad yards. Huffman frequently had to lift and move more than 50 pounds of equipment, bend over to grab switch levers, and lift switches.
There was evidence that the Union Pacific developed a training program to reduce injuries resulting from the cumulative trauma common to railroad workers. Huffman testified that he never received the benefits of this program. He was not *416 trained on the proper way to walk on ballast or on the safe method of getting on or off moving equipment. At trial, several video clips developed by another railroad were played for jurors that showed the proper way for trainmen to minimize stress to muscles, bones, discs, and joints.[2] Huffman's counsel argued that these videos demonstrated that the Union Pacific knew the ailments from which Huffman suffered could result from improper work habits. Huffman testified that he had never seen those or similar videos. None of those videos or other evidence stated that osteoarthritis could result.
After Huffman's retirement, he was diagnosed with osteoarthritis in his knees. This was the only continuing injury for which evidence was presented to the jury and therefore the only injury at issue. At the time of trial, he was not taking prescription medicine and had neither received nor scheduled knee surgery. His knee pain had limited his ability to hunt, dance, walk, and care for his lawn. He enjoys hunting and fishing, which he can still do, but his endurance during these activities is diminished due to his knee pain. His hunting has been curtailed because of the difficulty of extensive walking.
At trial, the Union Pacific emphasized other explanations for Huffman's knee problems. He was 65-years old, weighed about 300 pounds, and was 5'9" tall. There was no evidence that his weight was different before his retirement. There was evidence that someone Huffman's size was 15 times more likely to develop his particular knee problems than someone who is not overweight.
After Huffman rested his case, the Union Pacific moved for a directed verdict on the grounds that Huffman had failed to present competent evidence on causation linking the Union Pacific's alleged negligent conduct to Huffman's knee injury. In arguing that there was sufficient evidence even without expert testimony, Huffman cited Gutierrez v. Excel Corp., 106 F.3d 683 (5th Cir.1997). We will discuss the precedent below. The district court denied the motion.
The jury returned a verdict in Huffman's favor upon finding that the Union Pacific's negligence was one of the causes of Huffman's osteoarthritis. Huffman was awarded $606,000 in damages. The Union Pacific moved for a judgment as a matter of law, arguing there was insufficient evidence on causation. Once again, Huffman argued that plaintiffs bringing negligence claims for cumulative trauma disorders were not required to "present medical or expert testimony specifically stating that there is a direct causal link between a defendant's actions and a plaintiff's injury." The Union Pacific also moved for a new trial, arguing the damages were excessive or for a remittitur. The district court denied both motions. This appeal timely followed.
DISCUSSION
Under FELA, an injured railroad employee may recover damages for "injury or death resulting in whole or in part from the negligence" of the railroad. 45 U.S.C. § 51. FELA provides the exclusive remedy for a railroad employee engaged in interstate commerce whose injury resulted from the negligence of the railroad. Rivera v. Union Pac. R.R. Co., 378 F.3d 502, 507 (5th Cir.2004). Any trial necessary to resolve the claims is before a jury. Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 360, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962).
*417 FELA eliminated a variety of traditional defenses, such as the fellow servant rule, the assumption of the risk defense, and the doctrine of contributory negligence. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542-43, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994); 45 U.S.C. §§ 51, 53-55. A railroad is charged with providing a reasonably safe work environment for its employees. See Urie v. Thompson, 337 U.S. 163, 179 n. 16, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). Negligence within the meaning of FELA exists if the defendant railroad "knew, or by the exercise of due care should have known" that its conduct was "inadequate to protect [the plaintiff] and similarly situated employees." Id. at 178, 69 S.Ct. 1018.
On appeal, no issue is made of the validity of the jury's determination that the Union Pacific was negligent. The jury was given evidence that the railroad was negligent by, along with other possibilities, failing to educate Huffman on less physically harmful methods of performing his everyday duties. Therefore, the workplace was not as safe as it reasonably could have been.
What is questioned is whether there was legally sufficient evidence to support that the railroad's negligence, as the jury instructions put it, "contributed in any way to any injury or damage suffered by the plaintiff." The Union Pacific earlier questioned whether that is the correct standard. The question was answered after oral argument in this case by the Supreme Court. Under FELA, a "defendant railroad `caused or contributed to' a railroad worker's injury `if [the railroad's] negligence played a partno matter how smallin bringing about the injury.'" CSX Transp., Inc. v. McBride, ___ U.S. ___, 131 S.Ct. 2630, 2644, 180 L.Ed.2d 637 (2011) (alteration in original). Our previously stated standard is similar: liability arises if a railroad's "negligence played any parthowever smallin the development of his condition." Rivera, 378 F.3d at 510 (quotation marks and citation omitted).
The Union Pacific organizes its appellate arguments into three issues: (1) a judgment as a matter of law should have been granted because of the absence of evidence of causation; (2) the district court erred in its instruction to the jury as to the necessary degree of causation; and (3) the damage award was excessive. In light of our conclusions, we need not address the last issue.
Before discussing the first issue, we review Huffman's argument that the railroad is judicially estopped from contesting the sufficiency of the evidence.
A. Judicial Estoppel
Huffman contends that the Union Pacific is judicially estopped from arguing the injuries are not work related. Estoppel allegedly arises because the railroad sought in the district court to have the suit dismissed on the basis that Huffman had known for years that his osteoarthritis was work related and had not brought suit until after the applicable statute of limitations had run. The Union Pacific was granted a jury instruction that the railroad would have no liability if Huffman knew for more than three years before bringing his claims that his knees were injured due to work-related causes.
Judicial estoppel protects the legal system, not the parties, and requires a party not take intentionally self-contradictory positions at different points in a case to obtain an unfair advantage. In re Coastal Plains, Inc., 179 F.3d 197, 205-06 (5th Cir.1999). Required is that a position taken at one time in a suit be clearly inconsistent from that taken at another, *418 and the party's earlier position must have been accepted by the court. Id. at 206.
The simple answer is that the Union Pacific convinced neither the district court nor the jury that its position was correct. The slightly more involved answer is that both in pleadings and in presentation of evidence, a party may make alternative submissions. See Fed.R.Civ.P. 8(d)(2). At trial, there may be a requirement to elect remedies or for other reasons choose one particular theory, but no such circumstance exists here. Cf. Guy James Constr. Co. v. Trinity Indus., Inc., 644 F.2d 525, 529-30 (5th Cir.1981). Further, the Union Pacific could be seen as arguing that Huffman took a factual position that constituted a judicial admission barring his claim regardless of whether the railroad agreed with the assertion. See Heritage Bank v. Redcom Labs., Inc., 250 F.3d 319, 329 (5th Cir.2001).
As a matter of appellate practice, we also determine the issue was waived because the railroad's allegedly inconsistent positions at trial were not challenged at that time. Nunez v. Allstate Ins. Co., 604 F.3d 840, 846 (5th Cir.2010). Only in an egregious case will we accept a judicial estoppel argument first raised on appeal that applies to a party allegedly taking inconsistent positions in the district court. Beall v. United States, 467 F.3d 864, 870 (5th Cir.2006). Far from being egregious, this example does not even clearly qualify as an inconsistency.
B. Proof of Causation Under FELA
1. General Principles
The Union Pacific moved for a judgment as a matter of law because of the alleged absence of evidence of causation. The motion was denied. That motion should be granted only when there is a "complete absence of probative facts to support the conclusion reached by the jury." Rivera, 378 F.3d at 505. This standard "recognizes that the FELA is protective of the plaintiff's right to a jury trial." Wooden v. Mo. Pac. R.R. Co., 862 F.2d 560, 561 (5th Cir.1989). On appeal, the railroad argues that denial of the motion was error.
We begin by summarizing some well-known concepts in order to focus on the point at which the parties join issue. The cause of action is one for negligence, which requires proof of breach of a standard of care, causation, and damages. Gottshall, 512 U.S. at 540, 114 S.Ct. 2396. The statute did not create a workers' compensation system. Id. at 543, 114 S.Ct. 2396. If an injury has multiple causes, it is sufficient if the railroad's "`negligence played a partno matter how smallin bringing about the injury.'" McBride, 131 S.Ct. at 2644. The burden of proof for the claim is on the employee. Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 163, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007). Contributory negligence can reduce recovery under FELA, see 45 U.S.C. § 53, but there has been no issue of that in this case. The standard of care for both the employer and employee under FELA is one of ordinary prudence under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338-39 (5th Cir.1997) (en banc).[3]
This appeal does not require the panel to wrestle with any of the preceding concepts. We must determine whether competent evidence was admitted of this minimal connection between railroad conduct and worker injury. There was no expert testimony to support a link between Huffman's performance of his work duties in *419 less than ergonomically optimal waysa result of the railroad's negligenceand the specific knee problem he suffers, which is osteoarthritis. Though there was no specific argument made in the district court that an expert witness was necessary, the issue was fully joined regarding whether there was sufficient evidence. Whether what is missing is expert testimony or some other form of evidence is not central to a sufficiency objection. In a pretrial order, the district court granted the Union Pacific's motion to exclude the testimony of Huffman's treating physician as an expert on causation. There is no challenge to that decision on appeal. Huffman therefore had no expert testimony as to causation at trial.
At oral argument before this court, the railroad's attorney categorized Huffman's claim as one based on a long-term, progressive, non-acute injury, with multiple potential causes. That characterization usefully focuses the issue of the kind of injury for which jurors had to find causation.
As part of our analysis of whether there was an evidentiary deficit, we begin with the observation that we have not specifically addressed when expert testimony is required in FELA cases. We reject Huffman's assertion that our opinion in Rivera said anything about whether expert testimony was needed. After describing each party's expert testimony, we concluded that there was some probative factual evidence to support the verdict for the plaintiff. Rivera, 378 F.3d at 510. The necessity of expert testimony was not before us in Rivera because both sides had provided it. Id. Here, neither party introduced expert testimony on causation. Both parties had a witness who would have given an opinion, but for different reasons, neither witness was allowed to present it.
Expert testimony is not needed in many if not most cases. As former Chief Judge Charles Clark noted, jurors are generally entitled to draw their own inferences from the evidence. Fontenot v. Teledyne Movible Offshore, Inc., 714 F.2d 17, 20 (5th Cir.1983). We rely on juror common sense to reduce the risk of exorbitant liability in FELA actions. McBride, 131 S.Ct. at 2643-44. "Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn." Fontenot, 714 F.2d at 20 (quoting Schulz v. Penn. R.R. Co., 350 U.S. 523, 527, 76 S.Ct. 608, 100 L.Ed. 668 (1956)). This general rule gives way, though, when conclusions as to the evidence cannot be reached based on the everyday experiences of jurors, making expert testimony necessary to evaluate the issue. Caboni v. Gen. Motors Corp., 398 F.3d 357, 361 (5th Cir.2005).
One of our sister circuits has held that expert testimony in FELA cases is not required if the connection between the negligence and the injury is fairly self-evident, such as that a broken leg would result from being struck by a motor vehicle. Moody v. Maine Cent. R.R. Co., 823 F.2d 693, 695-96 (1st Cir.1987). The causes of Huffman's osteoarthritis are not of that clarity. Our question, then, is whether the totality of evidence would allow jurors reasonably to infer, without expert testimony, that negligence of the railroad contributed at least in some small way to his specific injury. A component of that analysis is whether there is something about Huffman's claim of osteoarthritis in the knees that mandates the use of expert testimony.
2. Need for Expert Opinion on Causation
Expert testimony may be introduced even when not strictly necessary if it "will *420 help the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. Because the Union Pacific did not argue at trial that an expert was required, we will not decide whether an expert is necessary to show causation for this kind of physical condition. Instead, the perspective for our analysis is this: could jurors make a finding as to causation based on the evidence that they had?
In deciding whether this evidence was sufficient, Huffman urges us to consider a non-FELA case, in which we discussed proof of causation for a cumulative trauma injury in a common-law negligence action. Gutierrez v. Excel Corp., 106 F.3d 683, 686 n. 3 (5th Cir.1997) (noting that because the employer did not subscribe to the Texas workers' compensation system, the suit was brought as a negligence action). The basis of liability under FELA is not simply that an injury occur while an employee is at work but also that some negligence occurred. Gottshall, 512 U.S. at 543, 114 S.Ct. 2396. The Gutierrez court allowed a jury in a negligence action to infer causation for a cumulative trauma injury even without expert witnesses. Gutierrez, 106 F.3d at 687.
In Gutierrez, cumulative trauma injury was "characterized as `wear and tear' on the tissue surrounding joints, ligaments, and tendons. [It] refers not to one specific injury, but to numerous disorders caused by the performance of repetitive work over a long period of time." Id. at 686. The theory of negligence in that case was that an electric knife used by assembly line workers was known to cause cumulative trauma disorders ("CTDs"), and the defendants failed to adopt safety measures to reduce the trauma. Id.
The risk factors for CTDs were shown through guidelines published by the Occupational Safety and Health Administration (OSHA), a division of the United States Department of Labor. Id. The guidelines identified the risk factors to the upper extremities present in the meat packing industry. Id. OSHA had published guidelines offering suggestions on minimizing those risk factors. Id. There was evidence that such measures had not been implemented at this workplace. Id. at 687-88.
The Gutierrez court also examined whether the kind of injuries that the OSHA documents stated would arise from cumulative trauma matched the kind of injuries suffered by the plaintiffs:
Injuries that may be classified as CTDs include, but are not limited to, carpal tunnel syndrome in the wrist, rotator cuff tendinitis in the shoulder, and nerve compression. While CTDs are generally not caused by any one specific traumatic event, there are certain risk factors associated with cumulative trauma, including repetition, force, vibration, cold, and posture.
Id. at 686.
The Gutierrez court held that there was evidence "that the working situation at the Whizard table was rife with conditions known to cause, or at least to be associated with, [CTD]." Id. at 688. The plaintiff whose proven injuries were the kind recognized as CTDs was granted a new trial. Id. at 690. As to her, "medical records suggest that her injury was `probably caused' from repetitive work." Id. Two plaintiffs whose specific injuries were ones that were not categorized as CTDs were not entitled to recover. Id. at 689.
The court stated that it was not necessary for "all plaintiffs bringing negligence claims for [CTDs to] present medical or other expert testimony specifically stating that there is a direct causal link between a defendant's actions and a plaintiff's injury." *421 Id. First, plaintiffs could show they were negligently exposed to the "risk factors present in the work-environment that are known to be associated with [CTD]." Id. Second, plaintiffs could show through medical evidence that they suffered from the "particular injuries collectively referred to as [CTDs] that are caused by a combination of these risk factors." Id.
Not requiring expert testimony in Gutierrez was consistent with Chief Judge Clark's useful summary of the capabilities of jurors: a jury can draw inferences "on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn." Fontenot, 714 F.2d at 20 (quoting Schulz, 350 U.S. at 527, 76 S.Ct. 608). In Gutierrez, what substituted for expert testimony was proof that certain kinds of injuries result from certain kinds of workthat drew from expert analysis made by OSHAand proof that the plaintiff engaged in that kind of work and suffered that kind of injury.
Our sister circuits have dealt with related issues. In determining liability under FELA, one of the other circuits recognized that if general causation evidence is offered, "a jury question certainly can be created even without expert testimony going directly to the question of specific causation." Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 268 (6th Cir.2001). In that case, the court noted that evidence from the treating physician of the plaintiff's injury, the kinds of activities that result in that injury, the risk factors for the development of that injury, and evidence that those risk factors existed in the plaintiff's job was sufficient to create a jury question. Id. at 269.
A recent Seventh Circuit decision took a different approach. Myers v. Ill. Cent. R.R., 629 F.3d 639 (7th Cir.2010). There, the long-time railroad worker had job duties and cumulative trauma injuries similar to Huffman's. Id. at 640-41. The worker argued that he merely needed to have an expert establish that conditions of his employment could cause certain kinds of injuries, and have his physician testify that these were the injuries that he had developed. The district court granted summary judgment for the railroad because no expert testified that his injuries were caused by the railroad's negligence. Id. at 641-42. The Seventh Circuit affirmed, stating that "the nature of the trauma injuries that [the plaintiff] accumulated required expert testimony establishing specific causation." Id. at 645. The court noted the debate over how plaintiffs must establish causation under FELA, and acknowledged the Sixth Circuit's decision in Hardyman and cited this court's decision in Gutierrez. Id. at 642-43.
The Union Pacific presses upon us a ruling from still another circuit in which the claim was based on a chemical exposure. See Claar v. Burlington N. R.R. Co., 29 F.3d 499 (9th Cir.1994). In addition to evidence that certain chemicals the plaintiff was exposed to at work caused the kind of injuries he suffered, the court also required expert testimony to show that the chemicals in fact did cause the plaintiff's injuries. Id. at 504.
The Claar court noted two Supreme Court decisions that "arguably stand for the proposition that, in order to create an issue for the jury, a FELA plaintiff need show only the mere possibility that a defendant's actions caused his injuries." Id. at 503-04 (citing Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963); Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946)). One of the cited precedents involved a railroad worker who became seriously *422 ill after an insect bite. Gallick, 372 U.S. at 109-10, 83 S.Ct. 659. Evidence of the existence of a stagnant pond next to where the employee worked, which provided a breeding place for insects, was sufficient circumstantial evidence to create a jury question on causation. Id. at 114, 83 S.Ct. 659. In the other case, there was little evidence upon which jurors could rely to decide between the deceased having been killed along the tracks by a metal hook hanging from a negligently maintained rail car or having instead been murdered. Lavender, 327 U.S. at 648-51, 66 S.Ct. 740. The jury was nonetheless free to make the inference that supported FELA liability. Id. at 652, 66 S.Ct. 740. In both cases, there was evidence that the death could have been caused by the condition created by the railroad. The jurors were free to choose among the possibilities.[4]
The argument Huffman advances is that Gutierrez-style proof of causation should be applied to his FELA claim, and if it is, he proved enough. As a common law negligence case, Gutierrez required a plaintiff to prove that an employer's negligence was a substantial factor in bringing about the employee's injury. This level of causation is much higher than in FELA cases. We certainly do not hold Huffman to this higher standard.
We do not see Gutierrez as an evidentiary model that we must decide may or may not apply in FELA cases. Instead, our task is simply to decide whether there was sufficient evidence for a jury to infer based on their common sense and common understandingthat Huffman's negligently-directed work with the Union Pacific contributed in any way to his development of osteoarthritis. The evidence need not show a substantial contribution but it must allow an inference that some contribution occurred. We now examine the evidence.
C. Evidence on Causation
Both parties had an expert available to testify regarding causation, but the experts were not allowed to testify for different reasons.
Huffman offered the testimony of Dr. Alan Smith, his treating physician. In a pretrial order, though, the district court granted the Union Pacific's motion to exclude his testimony as an expert on causation. The district court held that Huffman's counsel had failed to justify admitting that opinion under Federal Rule of Evidence 702.
The Union Pacific planned to have George Page, Manager of Ergonomics for the Union Pacific, state conclusions on whether Huffman's osteoarthritis was likely the result of his work. As questions concerning his opinions began, though, the district court sustained an objection to his causation testimony on the grounds that he had not been designated as an expert.
On appeal, there is no challenge to these twin rulings.
We now examine the evidence that was admitted from which jurors drew their conclusions about causation and the railroad's liability.
*423 1. Evidence of the kind of work Huffman performed
Dr. Robert Andres, a consultant on ergonomics employed by Huffman for the trial, testified regarding Huffman's activities. Dr. Andres's knowledge was based on a 30 to 45 minute telephone conversation with Huffman and consideration of Huffman's deposition. Dr. Andres listed activities that Huffman completed as a trainman: he put on end-of-train devices, engaged in pin pulling, changed knuckles, and aligned drawbars. Dr. Andres also stated that these were the kinds of tasks he had observed completed by trainmen across the country. Huffman testified that he climbed on and off of moving equipment, set handbrakes, coupled air hoses, and walked the entire length of the train 8,000 feeton sloping ballast.
2. Evidence of the kind of injury Huffman suffered
It was uncontested that Huffman had osteoarthritis of the knees. Dr. Alan Smith, Huffman's treating physician, testified regarding Huffman's medical history. He had treated Huffman since 1992. In 1993, Huffman was diagnosed with patellar tendonitis, an inflammation of the tendon, and received two injections in his left knee. Dr. Smith testified that tendonitis is not the same as osteoarthritis. In September 1997, Huffman again saw Dr. Smith due to pain in his left knee. Dr. Smith believed the pain to be secondary to a "misuse injury" caused by Huffman's walking differently after an ankle injury.
Dr. Smith stated that he first connected Huffman's knee pain to osteoarthritis in December 2005, which was after Huffman's retirement. In August 2007, Huffman received an injection in both knees as treatment for osteoarthritis. The injection was to reduce inflammation and to cushion the knee by increasing the amount and viscosity of the joint fluid. A year later, Huffman returned to Dr. Smith and complained of knee pain. Because the injections commonly last for about a year to a year-and-a-half, Huffman began a second round of injections in November 2008. Dr. Smith testified that if Huffman returns with knee pain within six months from the time of his last injection, he will recommend knee replacement surgery.
During oral argument, this court was informed that Huffman will have a total knee replacement.
Based on the foregoing evidence, osteoarthritis is the only injury at issue in this case, because no evidence of any other injury was presented to the jury. Even though the jury instructions were broad and did not limit the injury to osteoarthritis, the jury could not consider an injury for which no evidence was produced. Further, the jury instructions with respect to the statute of limitations refer to the relevant injury as a knee-related injury.
3. Evidence of the kind of work trainmen perform
A document created by the Union Pacific identified the essential job functions of a trainman. The document listed coupling and uncoupling air hoses and electrical connections between cars, assisting with removal and replacement of broken knuckles, applying and releasing handbrakes, assisting in the alignment of drawbars, and getting on and off of stationary and moving equipment at less than three miles per hour. This is consistent with the testimony of Dr. Andres and Huffman on Huffman's duties as a trainman.
4. Evidence of the injuries that result from trainman work
Evidence was presented to demonstrate that the kind of work trainmen do can *424 cause injury if not completed in the ergonomically optimal way.
Page, Manager of Ergonomics for the Union Pacific, discussed his research on how railroad employees operate equipment and the role of ergonomics. Page described ergonomics as having a safety component that asks, "how much a human can do in the workplace before they become at an elevated risk for ... lower extremity injuries of the leg." He also discussed a video created to teach railroad employees the best method for lifting and how an inappropriate method of lifting can magnify stress on the lower back. Page stated that knee osteoarthritis and musculoskeletal disorders in trainmen were not on the Union Pacific's priority list of ergonomic concerns.
Dr. Andres testified regarding ergonomic risk factors present in trainman activities. Dr. Andres read from a detailed 34-page report he had composed detailing Huffman's exposure to ergonomic risk factors while working for the railroad and the effectiveness of the railroad's efforts to combat musculoskeletal disorders. The force created by an activity and the worker's posture at the time were said to be key to the possibility of injury. Dr. Andres identified squatting, kneeling, lifting, carrying, climbing or walking on uneven surfaces as ergonomic risk factors. He stated that these risk factors are present in trainman activities generally and specifically present in coupling air hoses and throwing switches.
Dr. Andres testified as to the desirability for a railroad to have a comprehensive ergonomics program to reduce injuries. His testimony tied the kind of work Huffman did to ergonomic risks to the lower limbs. He did not testify, though, that the risks included osteoarthritis in the knees.
There was evidence the Union Pacific gave some workers training about "ergonomics awareness." This training recognized that "many musculoskeletal symptoms have multiple causes and may be associated with work and non-work factors." The factors listed in the training include intense, long-duration exposures to combinations of force and repetition, doing tasks beyond physical capabilities, and exposure to vibration above maximum health guidelines. To reduce the factors associated with musculoskeletal symptoms, the training suggested using sound work practices like neutral body postures, keeping items within easy reach, getting help if a task requires overexertion, taking stretch breaks, and using safe lifting practices and good body mechanics. Huffman did not receive this training. None of this evidence established that failure to follow best ergonomic practices would lead to osteoarthritis in the knees.
Dr. Richard William Bunch, a licensed physical therapist, consulted with the Union Pacific on training programs for workers. Dr. Bunch defined musculoskeletal disorders as including "a whole array of problems that involve muscle, tendon, bone, ligaments, joints, even nerves and blood vessels." Specifically, Dr. Bunch identified all sprains and strains, damages to the ligaments and tendons or the muscles, carpal tunnel syndrome, bone spurs, and herniated disks in the neck and back as examples of musculoskeletal disorders. Dr. Bunch, however, did not identify osteoarthritis of the knees or an inflammation of the articular cartilage in a joint as musculoskeletal disorders.
William Eugene Roe, Chief Engineer of one of the Union Pacific regions, was in charge of the Bodies-in-Motion program for the Engineering Department. That program was designed to make the job more comfortable to the worker and counter effects of muscle tiredness. This training *425 was not provided to workers like Huffman in the Transportation Department.
Somewhat relevant here is the expert testimony Dr. Smith was allowed to give that explained arthritis as an "inflammation of the joint." Osteoarthritis "is inflammation of the articular cartilage at a joint," i.e., the cartilage that is "the contact surface between two bones at a joint." As to cause, there was testimony that osteoarthritis is "wear and tear" and is "caused by life."
With this as the evidence, we now turn to whether the evidence presented was enough for the jury to grant Huffman relief.
D. Analysis
The jury "may draw reasonable inferences from the evidence," and we may not substitute other inferences for the "jury's reasonable factual inferences." Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 182-83 (5th Cir.2005) (quotation marks and citation omitted). In deciding whether Huffman offered enough evidence for the jury to grant him relief, we remind ourselves that "very little evidence is sufficient to make an issue one for the jury." 9B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2526 (3d ed. 2008). We review this evidence in the light most favorable to the verdict. Rivera, 378 F.3d at 508-09. "Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear." Lavender, 327 U.S. at 653, 66 S.Ct. 740. As recently as in Rivera, we applied the "complete absence of probative facts" standard. Rivera, 378 F.3d at 505. We have also noted that "the Supreme Court used the term `slightest' to describe the reduced standard of causation between the employer's negligence and the employee's injury in FELA § 51 cases." Gautreaux, 107 F.3d at 335.
We emphasize, though, what this standard is not. Almost every jury will have been presented evidence. It is the complete absence of "probative" evidence on some element of the claim that will require us to deny recovery. Under this standard, there must be evidence to support that work the claimant performed led to the specific condition the claimant sufferednot a lot of evidence, not necessarily expert evidence, but something probative that supplies jurors with everything they need to which inferences can then be applied. It was necessary, then, for probative evidence to be introduced that work such as Huffman performed would play at least a small part in bringing about Huffman's osteoarthritis.
There is no viable challenge to the evidence as to Huffman's actual work and Huffman's actual medical condition. Between his own testimony and that of various other witnesses, jurors would have known what he did on the railroad and that he had osteoarthritis in his knees.
On the other hand, no evidence was presented that the osteoarthritis Huffman had was a kind of musculoskeletal disorder that could occur if a railroad negligently failed to inform its trainmen how to perform their tasks. As previously discussed, we are only concerned with osteoarthritis because this is the only medical condition addressed by the evidence.
At best, there was evidence that the kind of work trainmen did, if not performed properly, could increase the chances of musculoskeletal disorders. The term musculoskeletal disorders, however, encompasses "a whole array of problems that involve muscle, tendon, bone, ligaments, joints, even nerves and blood vessels." There was not any testimony listing *426 osteoarthritis in the knees as a musculoskeletal disorder that could result from performing trainmen activities. There were some extremely limited references to stresses on the lower extremities resulting from such work but no link to osteoarthritis of the knees was made. Dr. Andres presented ergonomic risk factors that could lead to disorders of the lower extremities, but never tied those risk factors to osteoarthritis in the knees, or arthritis of any sort. Musculoskeletal disorder is too broad a category, and the evidence introduced too general, for jurors to have a basis on which to infer even the minimal degree of causation required.
We wish to be clear about what is missing. Jurors have wide latitude in FELA cases, and the quantum of causation that is required is low. Jurors still may not simply guess. Evidence that work performed by trainmen increased the risk of musculoskeletal disorders if not performed properly never identified osteoarthritis in the knees as one of those disorders that could result. The path from worker injury to employer liability was too broken in this record to allow juror common sense to travel it. See Fontenot, 714 F.2d at 20.
We hold that the evidence was insufficient on causation. What form the additional necessary evidence should have taken is not before us. Huffman had planned on including expert testimony on causation. We are not reviewing the sufficiency of what Huffman planned to introduce, but what he actually did. It was not enough.
We REVERSE and REMAND for entry of judgment for the Union Pacific.
DENNIS, Circuit Judge, dissenting:
The majority, fixated on what it mistakenly sees as a fatal gap in the plaintiff's Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60 (2006), case, reverses the jury's verdict, disregarding the other evidence that well supports the jury's reasonable inference that the railroad's negligence played a part, at least slightly, in bringing about the plaintiff's injury, and issues an opinion that directly contradicts the FELA standard of causation prescribed by the Supreme Court, see CSX Transp., Inc. v. McBride, ___ U.S. ___, 131 S.Ct. 2630, 2636, 180 L.Ed.2d 637 (2011), and the FELA standard of appellate review prescribed by our circuit precedents, see Rivera v. Union Pac. R.R. Co., 378 F.3d 502, 505 (5th Cir. 2004). Therefore, I respectfully but emphatically dissent.
Harold E. Huffman instituted this action under FELA, seeking compensation for injuries that he sustained while working as a trainman for his employer, the Union Pacific Railroad ("Union Pacific"). A jury returned a verdict in Mr. Huffman's favor, awarding him $606,000, based on evidence that Union Pacific's negligence in failing to properly equip him, provide him a safe workplace, or train him to perform his work ergonomically, caused or contributed to his disabling osteoarthritis of the knees. The jury did not attribute any negligence to Mr. Huffman and accordingly did not reduce his recovery by any amount. The district court entered judgment on the jury's verdict, and denied Union Pacific's motion for a judgment as a matter of law. The railroad appealed.[1]
*427 The majority reverses and remands for entry of judgment for Union Pacific, holding that the evidence is insufficient to support the verdict. The majority's opinion is difficult to fathom because it agrees with me that the evidence is sufficient to support the following findings that necessarily underlie the jury's verdict, viz., that: (1) the railroad was negligent in failing to train its trainmen, including Huffman, in safer, ergonomic work methods and in failing to provide them with safe equipment and working conditions; (2) the railroad knew or should have known that this negligence would cause its trainmen to suffer work-related musculoskeletal disorders; (3) that a trainman's repetitive acts over a long period of time, such as walking on ballast and jumping onto and off of moving trains, makes him "subject to musculoskeletal disorders," Maj. Op. 415; see also Maj. Op. 425-26; (4) Huffman suffers from disabling osteoarthritis of the knees that arose during his 39 years of work as a trainman for Union Pacific; (5) osteoarthritis is a type of arthritis that is caused by external wear and tear stresses on a joint; (6) Huffman's work as a trainman increased his work stress and risk of developing musculoskeletal disorders; and (7) Huffman's work required his walking and running substantial distances on ballast, jumping off of and onto moving and standing engines and railcars, throwing heavy switches, applying and disengaging hand brakes, changing heavy knuckles without assistance, coupling and uncoupling the air hoses and electric wires between railcars, and other hard physical work.
Nevertheless, the majority reverses, and gives as its only reasons that: "[t]here was not any testimony listing osteoarthritis in the knees as a musculoskeletal disorder that could result from performing trainmen activities"; and the "[e]vidence that work performed by trainmen increased the risk of musculoskeletal disorders if not performed properly never identified osteoarthritis in the knees as one of those disorders that could result." Maj. Op. 426. This myopic reading of the record is clearly wrong in itself, and I will discuss that error in more detail later. But first, it is most important to note that the majority's holding adopts a standard of causation that is far more burdensome than the correct FELA standard, and is therefore unlawful. Under FELA, a plaintiff is required only to introduce relevant evidence from which a jury reasonably could infer that the railroad's negligence played a part, however slight, in bringing about the employee's injury. The majority opinion adds to this the requirement that the plaintiff must introduce at least one witness whose testimony or opinion evidence expressly states that there was a causal connection between the railroad's negligence and the trainman's injury; otherwise, under the majority's standard of causation, a jury will not be allowed to infer or find from all of the evidence collectively that the railroad's negligence played a partno matter how smallin bringing about the injury. In doing so, the majority's opinion flatly contradicts the Supreme Court's decision in McBride, 131 S.Ct. 2630, which reaffirms that, "`[u]nder [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.'" Id. at 2636 (second alteration in original) (quoting *428 Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957)).
Further, the majority opinion also, in effect, abrogates our circuit's FELA appellate review standard, which holds that "[i]n the FELA context, when a defendant challenges the sufficiency of the evidence to support a plaintiff's verdict, we must affirm the denial of the defendant's motion for judgment as a matter of law unless there is a complete absence of probative facts to support the conclusion reached by the jury." Rivera, 378 F.3d at 505 (citing Lavender v. Kurn, 327 U.S. 645, 654, 66 S.Ct. 740, 90 L.Ed. 916 (1946); Wooden v. Mo. Pac. R.R. Co., 862 F.2d 560, 561 (5th Cir.1989)). The majority reverses the jury verdict although its own opinion shows there is an abundance, rather than an absence, of probative evidence to support the jury's verdict.
I
FELA, 45 U.S.C. §§ 51-60, renders railroads liable for employees' injuries or deaths "resulting in whole or in part from [carrier] negligence." 45 U.S.C. § 51; McBride, 131 S.Ct. at 2634. The Court in McBride made clear that the standard of causation and the jury charge proper in FELA cases "simply track[] the language Congress employed, informing juries that a defendant railroad caused or contributed to a plaintiff employee's injury if the railroad's negligence played any part in bringing about the injury." McBride, 131 S.Ct. at 2634. In McBride, the Court stated that, "[g]iven the breadth of the phrase `resulting in whole or in part from the [railroad's] negligence,' and Congress' `humanitarian' and `remedial goal[s],' we have recognized that, in comparison to tort litigation at common law, `a relaxed standard of causation applies under FELA.'" Id. at 2636 (alterations in original) (quoting Consol. R. Co. v. Gottshall, 512 U.S. 532, 542-43, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994)). The Court recalled that in its 1957 decision in Rogers, it described that relaxed standard as follows: "`Under [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.'" Id. (quoting Rogers, 352 U.S. at 506, 77 S.Ct. 443). The Court in McBride reaffirmed this standard, and furthermore stated that it "regard[s] the phrase `negligence played a partno matter how small,' as synonymous with `negligence played any part, even the slightest,' and the phrase `in producing the injury' as synonymous with the phrase `in bringing about the injury.'" Id. at 2639 n. 3 (quoting Rogers, 352 U.S. at 506 & 508, 77 S.Ct. 443). Significantly, the McBride Court reaffirmed Rogers's announcement of the "any part" test, its reiteration of it several times, and its "repeated admonition that the `any part ... in producing the injury' test was the single test for causation under FELA." Id. at 2638 & n. 2 (quoting Rogers, 352 U.S. at 506, 77 S.Ct. 443).
Accordingly, just as a trial court in a FELA case cannot insert "common-law formulations of causation involving `probabilities,' and consequently ... `deprive litigants of their right to a jury determination,'" id. at 2638 (quoting Rogers, 352 U.S. at 507, 509-10, 77 S.Ct. 443), an appellate court may not add such complications and burdens to the FELA standard of causation set forth in McBride and Rogers. But that is exactly what the majority has done here by requiring not only relevant evidence from which a reasonable jury could find or infer that "`employer negligence played any part, even the slightest, in producing the injury ... for which damages are sought,'" McBride, 131 *429 S.Ct. at 2636 (quoting Rogers, 352 U.S. at 506, 77 S.Ct. 443), but also insisting that, in order to affirm the jury verdict, there must be testimony or opinion by at least one witness fully articulating that causal connection. Moreover, the Court in McBride painstakingly described many instances in which it rejected similar attempts to deprive FELA plaintiffs of jury determinations of their claims by adding more onerous formulations to the FELA standard of causation. For example, in McBride itself, the courts at every level rejected CSX's proposed key words "natural or probable" or "direct" to describe the required relationship between injury and alleged negligent conduct. Id. at 2637. In Rogers, the Supreme Court held that the Missouri court erred in holding that the railroad's negligence was not a "sufficient" cause unless it was the "probable" cause of the injury. Id. at 2638 (citing Rogers, 352 U.S. at 505, 77 S.Ct. 443). The Court explained: "FELA ... did not incorporate any traditional common-law formulation of `proximate causation[,] which [requires] the jury [to] find that the defendant's negligence was the sole, efficient, producing cause of injury.' Whether the railroad's negligent act was the `immediate reason' for the [injury], we added, was `an irrelevant consideration.'" Id. at 2638 (second, third, and fourth alterations in original) (quoting Rogers, 352 U.S. at 503, 506, 77 S.Ct. 443).
For these reasons, it is error in this FELA case for the majority to apply a standard of causation more rigid and onerous than that approved by the Supreme Court in McBride and Rogers. The correct inquiry was whether the jury could reasonably conclude that employer negligence played any part, even the slightest, in producing the injury. Had the majority made the correct inquiry here, it would have been compelled to conclude that the jury reasonably made that determination in this case and that this court must affirm the district court's judgment, in keeping with the Supreme Court's precedents.
II
Respectfully, I think the majority fails to recognize the authority that FELA vests in juries and jury verdicts; underestimates the collective acumen of a jury drawn from a cross-section of the community; ignores the well-established proposition that juries may make reasonable inferences to reach conclusions about the probative evidence before them; and understates the probativeness of the expert and lay testimony as well as the body of circumstantial evidence in this case.
Huffman presented several expert witnesses who testified with respect to their specialized knowledge concerning: ergonomics; railroad trainmen's work injuries; railroads' awareness of the need for comprehensive ergonomic programs; osteoarthritis, other forms of arthritis, and musculoskeletal disorders; and Huffman's osteoarthritis of his knees.[2] Dr. Alan Dwaine Smith, Huffman's treating physician, explained that Huffman had been diagnosed with having osteoarthritis, also called degenerative arthritis, in both of his knees. Dr. Smith told the jury that osteoarthritis is "inflammation of the articular *430 cartilage at a joint," caused by external "wear and tear" on the knee over time. He also explained that knee osteoarthritis is located "in the joint space between the femur and the top of the tibia." It is well known that a "knee" is "a joint in the middle part of the human leg that is the articulation between the femur, tibia, and patella." Merriam-Webster's Collegiate Dictionary 690 (11th ed. 2007) (emphasis added); see also 7 Oxford English Dictionary 485 (2d ed. 1989) ("The joint, or region about the joint, between the thigh and the lower leg."). Dr. Richard William Bunch, a licensed, board-certified physical therapist and medical Ph.D., testified that musculoskeletal disorders "mean[] ... a whole array of problems that involve muscle, tendon, bone, ligaments, joints, even nerves and blood vessels." He further testified that musculoskeletal disorders "are all mechanical-based type injuries, it means they're caused by mechanisms that result from either an interruption of blood flow to tissues causing secondary changes, overuse, high[] repetition of use, too much force, poor life style. ... It's when you are in one position too long or in one posture too long or doing repetitive work too long without allowing tissues time to recover is when we run into the problems. And that reaction to those stress factors varies among individuals." This expert testimony provides more than enough evidence from which a reasonable jury could infer that the knee is a joint; that osteoarthritis of the knee is a joint injury caused by "wear and tear"; that Union Pacific's negligent failure to train its trainmen in how to perform their duties ergonomically and its failure to provide a safe work environment unduly increased their risks of incurring musculoskeletal disorders; and that, accordingly, Union Pacific's negligent failure to train its trainmen in ergonomics or provide a safe work environment, played a part in causing or contributing to Huffman's osteoarthritis of the knees.
Dr. Smith also testified that osteoarthritis is distinguishable from other forms of arthritis. He testified that rheumatoid arthritis is caused by an autoimmune disorder, and that gouty arthritis is caused by a build up of uric acid in the synovial fluid of the joint. In contrast, he explained, osteoarthritis is a wear and tear injury. Dr. Smith testified that osteoarthritis is a "progressive problem" that is incurable and worsens over time.
Dr. Robert Owen Andres, an ergonomic expert and consultant, also testified on Huffman's behalf. He explained that Huffman's trainman activities exposed his lower limbs to ergonomic risk factors, including squatting, kneeling, lifting, carrying, climbing, and walking on uneven surfaces. These movements are required when trainmen carry out tasks, such as coupling air hoses and throwing switches. Moreover, Dr. Andres testified that trainmen are often taught to lift with their legs rather than with their back, which protects the lower back but shifts stress to the lower extremities. Indeed, Huffman testified that the only ergonomic training he received at Union Pacific was the Pro-Back training, which taught him to avoid lower back stress and to lift with his legs.
Huffman also testified about the rigorous work that he performed as a trainman for Union Pacific. He often had to walk the entire length of a train and back, covering as much as 16,000-18,000 feet, over 3 miles. At track intersections, he had to jump off of moving trains onto large, sloped ballast and run along that ballast to get ahead of the train and line the switch, which is the lever that switches the track and sends the train in the right direction. Pulling the poorly maintained switches into position put considerable stress on his lower extremities. Huffman also set the handbrakes on each car when the train *431 stopped by walking on sloped ballast along the length of the train, climbing onto each car, setting the brake, and jumping off to proceed to the next car. To connect or disconnect the train cars, he walked the length of the trains to couple and uncouple each car's air hoses and electric wires. Huffman also located and fixed or replaced broken knuckles, which held the train cars together. Most knuckles weighed 50 pounds and the engine knuckles weighed 83 pounds, and Huffman testified that he lifted and carried the knuckles without assistance.
The majority, in reversing the jury's verdict because Huffman presented an array of experts who together established that employer negligence played a part in producing his injury, rather than relying on a single witness to fully articulate the causal connection, not only adopts a standard of causation in conflict with the Supreme Court's holdings on the FELA causation standard in McBride and Rogers, but also improperly devalues the quality of Huffman experts' testimony. Moreover, the majority devalues the jury's proper role and ability to draw reasonable inferences from non-opinion expert testimony. Under Federal Rule of Evidence 702, experts are not required to testify only in the form of opinions. Experts are encouraged not merely to give opinions, but rather "may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts." Fed.R.Evid. 702 advisory committee's note. Thus, "opinions are not indispensable" and the Federal Rules of Evidence are designed "to encourage the use of expert testimony in non-opinion form when counsel believes the trier [of fact] can itself draw the requisite inference." Id. Accordingly, in the present case, the expert and lay testimony was sufficient to support a reasonable jury's finding that Union Pacific's negligence in failing to provide safe equipment and workplaces and its negligent failure to provide ergonomic training to its trainmen, at least partially or slightly played a part in producing Huffman's disabling osteoarthritis of his knees.[3] Under the FELA standard of causation, this is all the evidence that is required to support the jury's verdict. See McBride, 131 S.Ct. at 2636.
III
Finally, not only does the majority disregard the flexible FELA standard of causation *432 as explained by the Court in McBride and Rogers, but it also ignores our circuit's well-established standard of appellate review for sufficiency of evidence in FELA cases. "In the FELA context, when a defendant challenges the sufficiency of the evidence to support a plaintiff's verdict, [a court of appeals] must affirm the denial of the defendant's motion for judgment as a matter of law unless there is a complete absence of probative facts to support the conclusion reached by the jury." Rivera, 378 F.3d at 505 (citing Lavender v. Kurn, 327 U.S. 645, 654, 66 S.Ct. 740, 90 L.Ed. 916 (1946)).[4] We can reverse the denial of a motion for JMOL only when "`reasonable men could not arrive at a contrary verdict' to that urged by the [railroad]." Fontenot v. Teledyne Movible Offshore, Inc., 714 F.2d 17, 19 (5th Cir.1983).
In evaluating the evidence to determine whether there was "a complete absence of probative facts," Rivera, 378 F.3d at 505, we must "tak[e] the evidence in the light most favorable to the verdict." Id. at 508; see also Lane, 241 F.3d at 446 ("Needless to say, it is not our function to re-weigh the evidence or re-evaluate the credibility of witnesses; that is for the jury."); Rideau v. Parkem Indus. Servs., Inc., 917 F.2d 892, 897 (5th Cir.1990). As long as the jury's interpretation of the evidence is reasonable, then "`[w]e must not substitute for the jury's reasonable factual inferences other inferences that we may regard as more reasonable.'" Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 183 (5th Cir.2005) (quoting Rideau, 917 F.2d at 897).
Jury determinations are of paramount importance in FELA cases. The Supreme Court has explained that in FELA cases, "`[t]he very essence of [the jury's] function is to select from among conflicting inferences and conclusions that which it considers most reasonable.' Fact finding does not require mathematical certainty. Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn." Schulz v. Penn. R.R. Co., 350 U.S. 523, 526, 76 S.Ct. 608, 100 L.Ed. 668 (1956) (quoting Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944)); see also Fontenot, 714 F.2d at 20 ("Although the jury's finding is based in part on inference, that does not condemn its fact finding. ... Although the inference drawn by the jurors might differ from those that appellate judges would have drawn sitting as jury, as a matter of law we cannot find their fact finding to lack an evidentiary basis.").
Therefore, we may reverse the district court and overturn the jury verdict only if we conclude that there is no evidence whatsoever"a complete absence of proative *433 facts" or "an absolute absence of evidence," Rivera, 378 F.3d at 505, 506 that Union Pacific's negligence played any part, even slightly, to Huffman's osteoarthritic knee injuries. As discussed above, there certainly is sufficient evidence to show that Huffman's injuries were at least partially or slightly caused by Union Pacific's negligence. Even the majority conceded that there was not "a complete absence of probative facts," id. at 505; it acknowledged that "there was evidence that the kind of work trainmen did, if not performed properly, could increase the chances of musculoskeletal disorders." Maj. Op. 425. Furthermore, this concession is far too limited, given the strong evidence that Huffman presented. There was evidence that Huffman suffered from osteoarthritis in both his knees, that osteoarthritis is an injury of the joints, and that the term "musculoskeletal disorder" encompasses injuries to all joints. Huffman presented evidence about the kind of work that he performed, and the jury was told both that his injury was a "wear and tear" injury and that Huffman's trainman duties, performed as they were because of Union Pacific's failure to train Huffman in ergonomics or to provide a safe work environment, put Huffman at risk for developing musculoskeletal disorders. There was more than enough evidence for a reasonable jury to infer causationthat is, to infer that Union Pacific's negligence with regard to Huffman's job resulted in wear and tear on Huffman's knees that at least partially caused or contributed to his osteoarthritis of his knees. There manifestly was not such "a complete absence of probative facts," id., in support of the jury's causation finding and verdict that would authorize a court of appeals to invade the jury's province. Accordingly, the majority has plainly defaulted in its duty to affirm the jury's verdict.
CONCLUSION
For these reasons, the majority's decision reversing the jury's verdict and the district court's judgment on the ground that the evidence is insufficient is clearly wrong under the controlling Supreme Court and circuit precedents. The evidence in this case is manifestly sufficient to meet the test of a jury case under the FELA, which is simply whether employer negligence played any part, even the slightest, in producing the injury. McBride, 131 S.Ct. at 2636. Even more clearly, the majority departs from our circuit precedent which forbids us to reverse an FELA jury verdict unless there is a complete absence of probative evidence. Rivera, 378 F.3d at 505. I resolutely, although respectfully, dissent.
NOTES
[1] The term "cumulative trauma injuries" is used somewhat interchangeably in the record with the term "musculoskeletal disorders."
[2] For example, one video discussed the hazards of walking on ballast, particularly sloped ballast, and gave advice as to the least physically stressful way to do so.
[3] Gautreaux involved the Jones Act, but we noted that "seamen are afforded rights parallel to those of railway employees under" FELA. 107 F.3d at 335.
[4] We were, post-argument, urged to consider Brooks v. Union Pac. R.R. Co., 620 F.3d 896 (8th Cir.2010). Brooks had been diagnosed with degenerative disc disease but claimed FELA liability due to an acute injury that occurred one day at work. Id. at 897-98. He had no evidence of the kind of work he usually performed and of the kinds of injuries such activities generally caused. Id. at 899. The court held, citing Claar, that because Brooks' injury "had no obvious origin," expert testimony was required. Id. We do not find Brooks and our case to be similar.
[1] In appealing the district court's denial of Union Pacific's motion for judgment as a matter of law and motion for a new trial, Union Pacific argues: (1) that there was insufficient evidence to prove causation; (2) that this court should adopt a rule requiring expert testimony on causation for FELA cases involving musculoskeletal disorders; and (3) that the jury should have been given a proximate cause instruction. The Supreme Court's ruling in McBride foreclosed Union Pacific's proximate cause argument by rejecting a proximate cause requirement in FELA cases. McBride, 131 S.Ct. at 2634. In addition, Union Pacific failed to raise its argument to require expert witnesses in the district court, and therefore cannot raise it for the first time on appeal. Martco Ltd. P'ship v. Wellons, Inc., 588 F.3d 864, 877 (5th Cir.2009).
[2] Huffman also presented sufficient evidence of Union Pacific's negligence, and the railroad does not take issue with the jury's finding of negligence on this appeal. The jury unanimously found that Union Pacific's negligence was the legal cause of Huffman's knee injuries, and that Huffman was not guilty of any negligence in that respect. In this appeal, Union Pacific does not contest the jury's finding that it was negligent, but contends that the evidence was insufficient to support the jury's finding that its negligence was the legal cause of Huffman's injuries.
[3] The majority implies that there is no testimony identifying osteoarthritis as a musculoskeletal disorder that could partially or slightly result from the lack of ergonomic training for trainmen; this is clearly incorrect. Dr. Bunch clearly stated that the term "musculoskeletal disorder" encompasses injury to the joints, and Dr. Smith explicitly testified that osteoarthritis is an injury to the knee joint. The jury's subsequent determination that Huffman's osteoarthritis of the kneean injury in his knee jointis, in fact, a musculoskeletal disorder, was clearly reasonable. Moreover, the majority appears to conflate the foreseeability for negligence inquiry with the "`any part ... in producing the injury' test" for causation. McBride, 131 S.Ct. at 2639 (quoting Rogers, 352 U.S. at 506, 77 S.Ct. 443). "`[R]easonable foreseeability of harm'... is indeed `an essential ingredient of [FELA] negligence.'" Id. at 2643 (third alteration in original) (quoting Gallick v. Baltimore & O. R.R. Co., 372 U.S. 108, 118, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963)). But, in FELA cases, the plaintiff need not show that the railroad company could have foreseen the particular manner and extent of the injury suffered. "If negligence is proved . . . and is shown to have `played any part, even the slightest, in producing the injury,'" id. at 2643 (quoting Rogers, 352 U.S. at 506, 77 S.Ct. 443), then the railroad is liable "even if `the extent of the [injury] or the manner in which it occurred' was not `[p]robable' or `foreseeable.'" Id. (second alteration in original) (quoting Gallick, 372 U.S. at 120-21, 83 S.Ct. 659) (citing 4 F. Harper et al., Law of Torts § 20.5(6), at 203 (3d ed. 2007); and 5 L. Sand et al., Modern Federal Jury Instructions-Civil ¶ 89.10, at 89-21 (2010)).
[4] Union Pacific also argues that the district court erred in not granting its motion for a new trial. "[W]e review the denial of a motion for new trial brought on the ground that the verdict is against the great weight of the evidence for abuse of discretion, which we have held to mean that the denial will be affirmed unless there is a clear showing of an absolute absence of evidence to support the jury's verdict." Rivera, 378 F.3d at 506 (quoting Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 444 (5th Cir.2001)) (internal quotation marks omitted). "Our standard of review in this situation is `more deferential than our review of the denial of a motion for a judgment as a matter of law.'" DP Solutions, Inc. v. Rollins, Inc., 353 F.3d 421, 431 (5th Cir.2003) (quoting Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1049 (5th Cir. 1998)). Because the district court did not err in denying Union Pacific's motion for JMOL, it therefore also did not err in denying Union Pacific's motion for a new trial. | 01-03-2023 | 03-13-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/3344525/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: MOTION TO STRIKE (#110)
The plaintiff has moved to strike the defendant Angelo Silano's counterclaim alleging abuse of process. The defendant Angelo Silano alleges that a modification was entered into releasing him from liability under the note and mortgage; therefore, he alleges that he has wrongly been made a party to this foreclosure action.
The motion to strike is granted because the defendant Angelo Silano's counterclaim does not allege that the plaintiff has used "legal process against the [defendant Angelo Silano] in an improper manner or to accomplish a purpose for which it was not designed."Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 720 (1993). This claim may be implied in the counterclaim, but the defendant Angelo Silano must plead and prove it. See Practice Book § 108.
A claim for abuse of process, if properly pleaded, however, is proper because the specific claim in this case would address theenforcement of the note and mortgage against the defendant Angelo Silano. See Dime Savings Bank v. Albir, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 132582 (February 7, 1995, D'Andrea, J.); Federal National Mortgage v.Wang, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 045363 (January 23, 1995, Curran, S.T.R.). Although the court cannot determine the legal consequences of the alleged "modification" because the document is not before the court (was not appended to the counterclaim by using Practice Book § 141), the modification may alter the plaintiff's right to foreclose against the defendant Angelo Silano. In sum, the plaintiff may not be able to enforce the note and mortgage against Angelo Silano.
Notwithstanding, the plaintiff's motion to strike (#110) the defendant Angelo Silano's counterclaim is granted because it is legally insufficient as it stands.
Curran, J. CT Page 4010-KKKK | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1621165/ | 13 So. 3d 52 (2007)
EX PARTE SOUTHERN PIPE & SUPPLY CO.
No. 1060470 (2050434).
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/1622217/ | 942 S.W.2d 260 (1997)
57 Ark.App. 34
Alvie NELSON, Appellant,
v.
TIMBERLINE INTERNATIONAL, INC., Crum & Forster, Carrier, and Second Injury Fund, Appellees.
No. CA 96-380.
Court of Appeals of Arkansas, Division II.
April 2, 1997.
Judson C. Kidd, Little Rock, for Appellant.
Judy W. Rudd, Little Rock, for Appellee/Second Injury Fund.
*261 Tim A. Cheatham, Little Rock, for Appellees/Cross-Appellants/Timberline International Inc., Crum & Forester.
GRIFFEN, Judge.
In this workers' compensation appeal, appellant challenges the decision by the Workers' Compensation Commission that he sustained a 30% decrease to his earning capacity above the permanent physical impairment established by the medical evidence. Appellant argues that the Commission should have found that he is permanently and totally disabled, or that he is entitled to a larger award for the decrease in his wage-earning capacity than the Commission rendered. Appellees Timberline International, Inc. (the employer), and Crum & Forster (its workers' compensation insurance carrier), contend that the Commission's decision is supported by substantial evidence. However, they have cross-appealed that portion of the Commission's decision that held the Second Injury Fund not liable for the permanent disability benefits because appellant's present condition resulted from the cumulative effect of successive injuries in the same employment. See McCarver, Munro-Clear Lake Footwear v. Second Injury Fund, 289 Ark. 509, 715 S.W.2d 429 (1986), and Riceland Foods, Inc. v. Second Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986). As to the appeal, we find no error and hold that the Commission's wage-earning diminution decision is supported by substantial evidence. Because we do not believe ourselves able to overrule the decisions by the Arkansas Supreme Court in McCarver and Riceland Foods, we also affirm as to the cross-appeal. Nevertheless, we believe that the "same employer" defense that was judicially created to shield the Second Injury Fund from liability deserves reconsideration by the supreme court in light of serious policy factors that we raise in our opinion.
Appellant worked as a mechanic for eighteen years. In 1981 he began working for Timberline International as a diesel mechanic. Most of his work involved heavy manual labor. He received a compensable back injury in 1988 while torquing the head of an engine, and eventually underwent back surgery resulting in a permanent impairment rating of fifteen percent to the body as a whole. When he returned to work after surgery, the employer assigned him to lighter work as a mechanic for several months, and then placed him in its parts department where he worked for a year or so before returning to work as a diesel mechanic. On March 31, 1992, while torquing the head bolts on an engine, he suffered another back injury. That injury resulted in surgery by an orthopedist, Dr. Stuart McConkie, in June 1992, and additional surgery by a neurosurgeon, Dr. Thomas Fletcher, in September 1992. He has not returned to work or attempted to return to work since the March 31, 1992, back injury, and Dr. Jim Moore, another neurosurgeon, has assessed his permanent impairment from the 1992 injury to be an additional fifteen percent to the body as a whole.
Appellant argued before the Commission that he is permanently and totally disabled due to the March 31, 1992, injury; alternatively, appellant contended that the decrease to his wage-earning capacity greatly exceeded the fifteen percent impairment assigned to that injury. The Commission found that appellant had suffered a 30% decrease to his wage-earning capacity above the fifteen percent physical impairment, and rejected appellant's claim of permanent and total disability. Of course, our standard of review requires that we affirm the Commission's decision if it is supported by substantial evidence, meaning evidence that a reasonable person might accept as adequate to support a conclusion. Christian v. Arkansas Crane & Crawler, 55 Ark.App. 306, 935 S.W.2d 1 (1996). We do not reverse the Commission unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Id.
Appellant argues that the Commission should have found him permanently and totally disabled under the odd-lot doctrine. According to that doctrine, an employee who is injured to the extent that he can only perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist *262 may be classified as totally disabled. Moser v. Arkansas Lime Co., 40 Ark.App. 108, 842 S.W.2d 456 (1992), supp. op., 40 Ark.App. 108, 846 S.W.2d 188 (1993). However, an injured worker who relies upon that doctrine has the burden of making a prima facie showing of being in the "odd-lot" category based upon the factors of permanent impairment, age, mental capacity, education, and training. If the worker does so, the employer then has the burden of showing that some kind of suitable work is regularly and continuously available to him. Walker Logging v. Paschal, 36 Ark.App. 247, 821 S.W.2d 786 (1992).
Although appellant argues that he made a prima facie case of entitlement to permanent total disability benefits under the odd-lot doctrine set forth in Walker Logging v. Paschal, supra, based on the claim that he cannot work, his treating physicians opined that he can perform light-duty work, including work that involves lifting up to 25 pounds. None of the doctors who treated him for the 1992 injury believe that he is unable to work. Dr. McConkie, the orthopedic surgeon, expressed doubts concerning appellant's physical complaints, and both neurosurgeons (Drs. Fletcher and Moore) concluded that appellant can perform light duty work. The Commission also received evidence that the employer has attempted to return appellant to light-duty work answering telephones but appellant has not attempted the work. We believe that fair-minded persons presented with this evidence could have concluded, as the Commission did, that appellant was not totally disabled.
Appellant's reliance upon the odd-lot doctrine is misplaced. He did not make the prima facie showing of substantial inability to engage in regular and continuous employment that would have obligated the employer to produce evidence that some kind of suitable work is regularly and continuously available to him. As already mentioned, appellant's doctors believe that he can perform light-duty work, and they question the validity of his physical complaints. The employer has indicated that appellant could return to light-duty work, but appellant has made no attempt to do so. These facts constitute substantial evidence for the Commission's decision, even under the odd-lot analysis that appellant advocates. These facts also support the Commission's decision awarding permanent partial disability benefits above the extent of appellant's physical impairment equal to 30% to the body as a whole.
Appellees contend in their cross-appeal that the Commission erred when it refused to hold the Second Injury Fund liable for the permanent disability benefits awarded to appellant for decreased wage-earning capacity pursuant to the McCarver and Riceland Foods holdings previously mentioned, and urge us to reverse the Commission and overrule those decisions. McCarver and Riceland Foods stand for the proposition that the Second Injury Fund is not liable when an employee sustains a subsequent injury while still working for the same employer for whom he was employed when a previous permanent injury was suffered. In Riceland Foods, our court announced that if successive injuries in the same employment cause total and permanent disability, then the employer or its insurance carrier is responsible to the disabled employee for all permanent disability benefits; however, if the previous disability or impairment arose out of employment by a different employer, then the Second Injury Fund is liable. Riceland Foods, supra.; see also Death and Permanent Total Disability Trust Fund v. Whirlpool Corp., 39 Ark.App. 62, 837 S.W.2d 293 (1992). In McCarver and Riceland Foods the supreme court affirmed our court's interpretation of what was previously Ark. Stat. Ann. § 81-1313, now codified as Ark.Code Ann. § 11-9-525 (Repl.1996), and accepted our reasoning that the following language from the statute supported the conclusion that the Fund is not liable for successive injuries that are permanently disabling when the injuries occur in the same employment:
(a)(1) The Second Injury Trust Fund established in this chapter is a special fund designed to ensure that an employer employing a handicapped worker will not, in the event the worker suffers an injury on the job, be held liable for a greater disability *263 or impairment than actually occurred while the worker was in his employment.
(2) The employee is to be fully protected in that the fund pays the worker the difference between the employer's liability and the balance of his disability or impairment which results from all disabilities or impairments combined.
(Emphasis added).
Both our court and the supreme court reasoned that the italicized language from the opening provision of the statute justified the conclusion that where a worker suffers successive injuries that are permanently disabling while working for the same employer, then that employer should be held liable for the actual disability or impairment sustained by those injuries. The courts in McCarver and Riceland Foods also believed that employers would reap a windfall subsidy from the Fund if they are relieved of liability for the wage-earning consequences of successive permanent injuries that occur in the same employment. Finally, the courts reasoned that the Fund's solvency could be jeopardized to the possible detriment of permanently disabled workers who would, in the event of Fund insolvency, be unable to recover disability benefits from their employers because the statute specifically prohibited reverter of liability to employers in case of Fund insolvency.
Ten years have passed since the decisions in McCarver and Riceland Foods. The Arkansas General Assembly has enacted several major changes to the workers' compensation law during that period, but none of the changes have addressed the "same employer" defense now challenged by appellees in their cross-appeal. Indeed, the Second Injury Fund statute has not been revised since 1981. Given that the General Assembly has known about the "same employer" defense announced in McCarver and Riceland Foods, we are reluctant to conclude that the defense requires judicial abolition, despite the fact that it was judicially created and has not been legislatively adopted by specific language amending the statute. Our reluctance also is based upon deference to the supreme court, whose decisions we are now asked to overrule. Appellees have cited no authority for the proposition that our court can overrule supreme court decisions, and we know of none.
We are also persuaded that Ark.Code Ann. § 11-9-1001 (Repl.1996) discourages the type of judicial lawmaking that appellees urge us to perform by the following language:
When, and if, the workers' compensation statutes of this state need to be changed, the General Assembly acknowledges its responsibility to do so.... In the future, if such things as the statute of limitations, the standard of review by the Workers' Compensation Commission or courts, the extent to which any physical condition, injury, or disease should be excluded from or added to coverage by the law, or the scope of the workers' compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers' Compensation Commission, or the courts.
(Emphasis added).
Inasmuch as appellees are urging that the scope of the workers' compensation law be broadened so that the Second Injury Fund would become liable for the wage-loss disability benefits payable to disabled workers in the event of successive injuries during the same employment, it appears that the court of appeals can offer no assistance due to this language.
Our refusal to act pursuant to appellees' insistence that the "same employer" defense be judicially abolished does not indicate that we believe the defense to be justified by the Workers' Compensation Law. In fact, we perceive serious policy problems that the "same employer" defense presents in addition to our view that the statute does not preclude the Fund from being held liable. The concern that abolition of the "same employer" defense would allow employers to escape liability for disability or impairment that actually occurs while a worker is in its employ appears to arise from a misreading of the statute. Rather than reading Ark.Code Ann. § 11-9-525(a) to refer to employments *264 that produce successively disabling injuries, the statute should be read to address the successively disabling injuries. After all, successive injuries, not successive employments, is the subject addressed by the statute. If the statute did not intend to cover successive injuries occurring in the same employment as the Fund maintains, subsection (d)(1) makes no sense. It explicitly covers how weekly benefits for disability shall be paid where more than one injury occurs in the same employment to cause concurrent and consecutive permanent partial disability. If the statute indeed contemplated that the Fund would never be liable in cases of permanent disability resulting from successive injuries sustained in the same employment, one would think that subsection (d)(1) would be unnecessary.
The "same employer" defense also appears inconsistent with the apparent thrust of the Second Injury statute. The statute repeatedly refers to cases of permanent disability or impairment and provides at subsection (b)(1) that it covers all cases of permanent disability or impairment "where there has been previous disability or impairment." If a "same employer" is to be treated no differently in cases involving successive injuries than it would be treated had there been no successive injuries (the result that the "same employer" defense produces), the language extending the scope of the statute to "all cases of permanent disability or impairment where there has been previous disability or impairment" seems out of place.
We have found no other area of the workers' compensation law that excludes a party from liability based upon the unproven possibility of insolvency, yet this was a stated reason advanced for the "same employer" defense in McCarver and Riceland Foods. This appears to be the only area of the workers' compensation law where solvency is allowed to determine liability. We have found and been cited to no information that supports the idea that the Second Injury Fund is endangered by any species of claims. Indeed, the Fund is specifically created to only pay claims for permanent disability benefits, including permanent total disability benefits, the most expensive variety of permanent disability benefits.
These concerns persuade us that if the "same employer" defense that the appellate courts created ten years ago is subject to judicial revisiting, the time has come to do so. We encourage appellees to petition the supreme court for review.
Affirmed as to the appeal and the cross-appeal.
ROBBINS, C.J., and ROAF, J., agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920404/ | 921 So. 2d 777 (2006)
Joshua SADDLER, Appellant,
v.
STATE of Florida, Appellee.
No. 1D04-2602.
District Court of Appeal of Florida, First District.
February 23, 2006.
Nancy A. Daniels, Public Defender; and John R. Alfino, Assistant Public Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General; and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
BROWNING, J.
Joshua Saddler (Appellant), who worked as an assistant manager at Wal-Mart in *778 Gainesville, was charged with grand theft of more than $300.00 and less than $20,000.00 at Wal-Mart between April 16 and April 20, 2003 (Count One); on May 2, 2003 (Count Two); and on April 24, 2003 (Count Three), in violation of section 812.014(2)(c)1., Florida Statutes (2003) (defining "theft" as knowingly obtaining or using, or endeavoring to obtain or use, another's property with intent, temporarily or permanently, either to deprive another of that property or a benefit therefrom, or to appropriate the property to his or her own use or to the use of any other person not entitled to its use); and with one count of engaging in a scheme to defraud and organized fraud upon Wal-Mart by issuing fraudulent returns or refunds and obtaining property thereby between February 13 and May 17, 2003, in violation of section 817.034(4), Florida Statutes (2003) (defining organized fraud or "scheme to defraud" as "a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act") (Count Four). A jury found Appellant guilty in all four counts, as charged. The charged crimes of which Appellant was convicted are all third-degree felonies. See §§ 812.014(2)(c) & 817.034(4)(a)3., Fla. Stat. (2003).
Appellant contends that the trial court erred as a matter of law by denying his motion for judgment of acquittal (JOA) as to Count Four, on the ground that double jeopardy protections preclude Appellant from being convicted of both grand theft and scheme to defraud/organized fraud because Count Four includes all the events from February 13 through May 17, 2003, which are incorporated in the charges constituting Counts One through Three. In other words, Appellant asserts that the acts constituting Count Four arose out of the very same conduct as the acts constituting the first three counts and do not constitute a separate, distinct criminal episode. See Blockburger v. U.S., 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932) ("[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not."); State v. Florida, 894 So. 2d 941, 945 (Fla.2005). The Florida Legislature has codified the Blockburger test in section 775.021(4), Florida Statutes (2003). We have de novo review of issues of law. See Florida, 894 So.2d at 945.
Concluding 1) that Appellant's convictions for the three grand theft counts and for the one scheme to defraud/organized fraud count "are based on common allegations," and 2) that "[a]ll the elements of the crime of theft are included within the offense of organized fraud," effectively making the two crimes, for purposes of double jeopardy, the "same offense," Cherry v. State, 592 So. 2d 292, 293 (Fla. 2d DCA 1991), we REVERSE the conviction and sentence as to Count Four and REMAND for the trial court to grant a JOA on Count Four. See Pizzo v. State, 916 So. 2d 828 (Fla. 2d DCA 2005) (finding double jeopardy violation where grand theft and organized fraud counts were based on common allegations, and reversing and remanding for trial court to grant JOA on lesser of offenses); Louberti v. State, 895 So. 2d 479, 481 (Fla. 4th DCA 2005) (reversing conviction of organized scheme to defraud, even though defendant was acquitted of grand theft counts, where grand theft charges were based on same thefts that were elements of organized scheme to defraud); Sewall v. State, 783 So. 2d 1171 (Fla. 5th DCA 2001); Watson *779 v. State, 655 So. 2d 1250 (Fla. 1st DCA 1995) (reversing conviction for grand theft, which did not involve separate and distinct criminal episode from offense of filing false insurance claim or offense of burning with intent to defraud); Donovan v. State, 572 So. 2d 522, 525-26 (Fla. 5th DCA 1990) (holding that defendant could not be convicted of both organized fraud and theft for same act without double jeopardy violation, for elements of theft are all included in elements of organized fraud). The convictions and sentences on the remaining three counts are AFFIRMED.
BARFIELD and WOLF, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920462/ | 447 N.W.2d 35 (1989)
233 Neb. 603
Richard G. McMICHAEL, Appellee,
v.
LANCASTER COUNTY SCHOOL DISTRICT 001, also known as Lincoln Public Schools, Appellant.
No. 88-1019.
Supreme Court of Nebraska.
October 20, 1989.
*36 John M. Guthery and Maureen A. Lauren, of Perry, Guthery, Haase & Gessford, P.C., Lincoln, for appellant.
Hal W. Anderson, of Berry, Anderson, Creager & Wittstruck, P.C., Lincoln, for appellee.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
GRANT, Justice.
This is an appeal from an order of the Nebraska Workers' Compensation Court awarding the plaintiff employee, Richard G. McMichael, compensation for an injury he sustained while he was employed as an assistant building superintendent for Lancaster County School District 001.
Plaintiff states in his petition that he sustained an injury to his back while moving a file cabinet at a Lincoln public school on September 23, 1987. The school district does not contest the fact that the plaintiff suffered an injury which arose within the scope of his employment or that plaintiff gave timely notice of the injury.
The medical evidence was submitted on various hospital patient summaries, doctors' notes, and doctors' reports. Plaintiff sought medical treatment for pain in his leg and back on October 22, 1987. Plaintiff's physician diagnosed the injury as a herniated lumbar disk and referred plaintiff to a neurological surgeon, Dr. Benjamin Gelber. On November 13, 1987, Dr. Gelber performed a "[p]artial hemilaminectomy, fourth lumbar, left, with removal of protruded intervertebral disk, foraminotomy, 11-13-87." On December 28, 1987, Dr. Gelber prepared a written statement containing the following: "He [plaintiff] has made an excellent recovery. He can return to his previous employment without medical restriction as of 1-2-88." In a letter dated January 7, 1988, Dr. Gelber stated: "The protruded disc was most likely caused by the accident at work.... A protruded disc requiring laminectomy at a single level without neurologic deficit, in my opinion, should produce a permanent partial impairment of the whole man of 15%."
On August 9, 1988, a judge of the Workers' Compensation Court awarded plaintiff temporary disability benefits and ordered the school district to reimburse plaintiff for the medical expenses he incurred resulting from the injury. The court denied compensation for a permanent partial disability because plaintiff failed to prove a loss or reduction in his earning power.
The case was submitted for rehearing before a three-judge panel on the stipulated set of facts contained in a September 9, 1988, pretrial order. The stipulated facts show that sometime after plaintiff returned *37 to work, he was promoted to building superintendent and received an increase in pay and that plaintiff is able to perform all the job-related duties he was performing before the injury and all of the duties currently required of him as building superintendent. However, it was also stipulated that plaintiff, on occasion, suffers pain and discomfort in the area of the injury. The stipulation also contained the medical report, as quoted above, as to "permanent partial impairment."
Based upon these facts, the panel found that plaintiff sustained a loss of earning power insofar as his ability to procure employment generally had been impaired, and concluded that plaintiff suffered a permanent disability of 15 percent to the body as a whole. The panel modified the onejudge order and awarded plaintiff additional compensation for a permanent partial disability and awarded plaintiff attorney fees.
The school district timely appeals, assigning two errors. The school district contends (1) that there was insufficient evidence to support the Workers' Compensation Court's award of permanent partial disability and (2) that the Workers' Compensation Court erred in awarding plaintiff attorney fees. We reverse.
With regard to the first assignment of error, the school district does not contest the fact that plaintiff suffered a work-related injury and does not contest the payment of the medical expenses and temporary disability for the injury. The issue here only relates to whether the Workers' Compensation Court correctly found that plaintiff has proved his injury resulted in a compensable permanent partial disability.
Whether plaintiff suffers from such a disability is a factual question. The findings of fact made by the Workers' Compensation Court after rehearing have the same force and effect as a jury verdict in a civil case and will not be set aside unless clearly wrong. Alley v. Titterington, 233 Neb. 71, 443 N.W.2d 615 (1989).
The school district contends that there is insufficient evidence to sustain the panel's finding that plaintiff suffered a permanent partial disability, because plaintiff failed to adduce sufficient medical evidence showing that the injury resulted in such a disability. In testing the sufficiency of the evidence to support the findings of fact made by the Workers' Compensation Court, the evidence must be considered in the light most favorable to the successful party. Roesler v. Farmland Foods, 232 Neb. 842, 442 N.W.2d 398 (1989).
In considering the evidence required, we stated in Fees v. Rivett Lumber Co., 228 Neb. 617, 621, 423 N.W.2d 483, 486 (1988):
"Unless the character of an injury is objective, that is, an injury's nature and effect are plainly apparent, an injury is a subjective condition, requiring an opinion by an expert to establish the causal relationship between an incident and the injury as well as any claimed disability consequent to such injury."
Plaintiff urges that the panel's order is supported by Dr. Gelber's expert opinion as reflected in his January 7, 1988, letter showing the nature and extent of the disability. Dr. Gelber's letter stated: "A protruded disc requiring laminectomy at a single level without neurologic deficit, in my opinion, should produce a permanent partial impairment of the whole man of 15%." The school district contends that the use of the word "should" in the statement is merely speculative and does not support the finding that plaintiff's injury did result in a disability.
We need not decide whether the opinion of the doctor, as phrased, constitutes a sufficient opinion to support a finding that plaintiff did, in fact, suffer a 15-percent permanent partial disability. The opinion is a sort of syllogism. The doctor states that plaintiff suffered from a protruded disk and was operated on and that such a condition, after operation, should result in 15 percent disability. What is lacking, of course, is the conclusion that this plaintiff, therefore, has suffered a 15-percent disability. However, for the purposes of this opinion only, we shall treat the doctor's opinion as sufficient to support a 15-percent *38 disability finding, if the opinion is otherwise sufficient.
It is our conclusion that the opinion cannot be sufficient to support the 15-percent finding in this case. In the doctor's surgical notes and in the hospital summaries the operation performed by Dr. Gelber on plaintiff is described as a "partial hemilaminectomy." The letter opinion states that a "laminectomy at a single level" should result in a 15-percent permanent partial impairment. Whether a "partial hemilaminectomy" is identical with a "laminectomy," and whether the two operations result in the same disability, is certainly beyond the ken of a nonmedical fact finder, without further evidence.
In 2 J. Schmidt, Attorney's Dictionary of Medicine and Word Finder H-48 and H-49 (1987), hemilaminectomy is defined as follows:
The word "laminectomy," without the refix hemi-, denotes a surgical operation for the removal of the laminae (singular, lamina) of one or more vertebrae.... The prefix hemi- means half, and the word hemilaminectomy means the removal of one or more laminae on one side of the vertebral column....
(Emphasis in original.) See, also, to the same effect, R. Sloane, The Sloane-Dorland Annotated Medical-Legal Dictionary (1987).
Whether the additional word "partial" in the surgeon's notes is redundant or signifies a lesser removal is not known. Without explanation, the terms "laminectomy" and "partial hemilaminectomy" cannot be considered synonymous.
Dr. Gelber's letter is not sufficiently definite to provide the basis of an award for permanent disability to the plaintiff in this case. A workers' compensation award cannot be based on mere possibility or speculation, and if an inference favorable to the plaintiff can only be reached on the basis thereof, then he cannot recover. Erving v. Tri-Con Industries, 210 Neb. 339, 314 N.W.2d 253 (1982).
When the evidence in the record is insufficient to warrant the making of the award, or the factual findings made by the Workers' Compensation Court do not support the award, the Supreme Court must modify, reverse, or set aside that award. Neb.Rev. Stat. § 48-185 (Reissue 1988); Kingslan v. Jensen Tire Co., 227 Neb. 294, 417 N.W.2d 164 (1987). The Workers' Compensation Court erred as contended in the school district's first assignment of error.
The school district contends in its second assignment of error that the panel erred in awarding plaintiff attorney fees. In view of the result reached herein, the district is correct in that contention also. The judgment is reversed and the cause remanded to enter judgment in accordance with this opinion.
REVERSED.
WHITE, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920464/ | 447 N.W.2d 272 (1989)
STATE of North Dakota, Plaintiff and Appellee,
v.
Edward A. MORRISON, Defendant and Appellant.
Cr. No. 880310.
Supreme Court of North Dakota.
October 24, 1989.
*273 Rolf P. Sletten, Bismarck, for defendant and appellant.
Lewis C. Jorgenson, States Atty., Devils Lake, for plaintiff and appellee.
GIERKE, Justice.
This is an appeal by Edward A. Morrison from a district court judgment finding him guilty of the crime of robbery, a class A felony, in violation of Section 12.1-22-01 of the North Dakota Century Code. We reverse and remand.
In the early morning hours of August 20, 1987, a robbery was reported at the Artclare Motel in Devils Lake, North Dakota. The police, upon arriving at the scene, interviewed the night clerk who was on duty at the time of the robbery. The night clerk described the robber as a white male, of small-medium build, with blond hair and approximately 5 feet, 4 inches tall. The night clerk further stated that the robber wore a white mask partially covering his face and used a knife.
Upon further investigation at the scene, the police found what was identified by the night clerk as the mask worn by the robber. The mask contained several strands of blond hair. The officers also found shoe prints in the mud which they believed were made by tennis shoes with a wavy pattern on the sole. One of the officers at the scene indicated that earlier in the evening he had seen an individual named Morrison wearing tennis shoes with a wavy pattern similar to that found at the robbery scene.
The night clerk was subsequently shown a photographic line-up. The four photos that were shown to the night clerk had a portion of the faces covered as if a mask was worn. The night clerk determined that the picture of Morrison was the photograph which most closely described the person who had robbed him.
The officers obtained a search warrant based upon an affidavit by Officer Barnett for the house located at 108 14th Avenue in Devils Lake, the residence of Morrison's mother where he was currently residing. The officers conducted a search of the residence, seized certain items of personal *274 property and arrested Morrison for the robbery.
A preliminary hearing was held on November 3, 1987, and Morrison was bound over to district court. Counsel for Morrison filed motions to suppress the evidence obtained pursuant to the search warrant and to suppress the identification of Morrison. Morrison's motions to suppress were denied and a jury trial was held on August 22-23, 1988. The jury returned a verdict finding Morrison guilty of the offense of robbery. Judgment was entered by the district court on September 14, 1988, and Morrison was sentenced to serve a term of eight years in the State Penitentiary. This appeal followed.
Morrison raises three issues on appeal. Initially, Morrison contends that the trial court erred in failing to suppress the evidence obtained through the search warrant. Next, Morrison contends that the trial court erred in failing to suppress the out-of-court identification and trial court identification. Finally, Morrison contends that the trial court erred in finding that the mandatory minimum sentencing provisions under Section 12.1-32-02.1 of the North Dakota Century Code apply in this case.
Because it is dispositive of this appeal, our review focuses on whether or not the trial court erred in denying the motion to suppress the evidence obtained through the search warrant.
Morrison argues that the search warrant was issued as a result of false statements made in reckless disregard of the truth. Accordingly, Morrison claims that without the false material in the affidavit there was insufficient evidence to show probable cause to issue the search warrant and therefore the evidence obtained pursuant to the search warrant must be excluded.
In State v. Padgett, 393 N.W.2d 754, 756 (N.D.1986), this Court cited with approval the following guidelines set forth in Franks v. Delaware, 438 U.S. 154, 155-156, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978), regarding suppression of evidence obtained pursuant to a search warrant issued as a result of a false statement:
"`. . . [W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.'"
In applying the test enunciated in Franks v. Delaware, supra, a false affidavit statement is one which misleads the neutral and detached magistrate into believing that the stated facts exist, which facts in turn affect the magistrate's evaluation of whether or not there is probable cause. State v. Ennis, 334 N.W.2d 827, 831 (N.D.), cert. denied, 464 U.S. 992, 104 S. Ct. 484, 78 L. Ed. 2d 681 (1983).
In the instant case, a single affidavit by Officer Barnett was presented in the application for a search warrant. The affidavit of Officer Barnett provided as follows:
"John Barnett, being first duly sworn, deposes and says:
"That he is a member of the Devils Lake Police Department and at approximately 5:25 A.M., August 20, 1987 the police received a report of a robbery of the night clerk of the Artclare Motel. The night clerk reported that the robber wore a white mask partially covering his face, was approximately 5'4" tall, slight build, blond hair and used a knife, and after tying up the clerk took approximately $400 in cash. That upon investigation of the scene police officers found a white mask with numerous blondish hairs in the knot and several shoe prints which were similar to shoe prints seen at another breakin on this date. That further *275 earlier in the evening another officer had seen Eddy Morrison with similar type shoes.
"That the night clerk was shown photos of several individuals with partially covered faces and identified one Eddy Morrison in one of the pictures as closely describing the person that had robbed him.
"That affiant has personal knowledge of the said Eddy Morrison and knows that he is currently on probation for burglary and the instant case closely follows the said Morrison's M.O. That the said Eddy Morrison is currently residing with his mother at 108 14th Avenue, Devils Lake, North Dakota.
"That affiant has probable cause to believe that the said Eddy Morrison was involved in the aforesaid incident and prays the Court for a search warrant of the said residence at 108 14th Avenue, Devils Lake for mask material, knife, money, shoes, clothes and other fruits of the crime and an exemplar of the said Eddy Morrison's hair, and the warrant include any outbuildings and vehicles used by the said Eddy Morrison."
We note that the trial court properly held a hearing on the motions to suppress.[1] The trial court, in denying the motion to suppress all the evidence obtained pursuant to the search warrant, stated as follows:
"Since ... you raised the issue of whether there was a falsehood in the statements that were sent forth and placed in the affidavit which obtained the Search Warrant and this Court believes you may have raised that burden and that's why the inquiry was made of the officer that there was some sense of your allegation of false statements within that affidavit. However, based upon all the evidence as well as the evidence from the witness here in this court, this Court believes that you have not met the burden of showing that they were made falsely or with some intent to deceive or to misguide the magistrate or the county judge in issuing the Search Warrant. And this Court indicates that pursuant to State v. Padgett, 393 NW2d 754 that it is not enough to just show that there may be some innocent mistakes or negligent allegations, but must show that it was done with the intent of deceiving and obtaining a Search Warrant from that magistrate knowing that it was false.
"There has been no showing. You have failed to meet your burden. This court finds that under the totality of the circumstances that even if [Morrison's] identification . . . would have been suppressed, which it was not, that within the four corners of that affidavit that there is a basis for that issuing of the Search Warrant by the magistrate."
Thus, the trial court determined that Morrison failed to demonstrate recklessness or deliberate falsity by the affiant in the search warrant affidavit.
This Court has stated that the defendant has the burden to establish by a preponderance of the evidence deliberate falsity or reckless disregard. State v. Padgett, supra; Franks v. Delaware, supra. The defendant must prove that the challenged statements are in fact false, and that their inclusion in the affidavit amounted to perjury or reckless disregard for the truth. State v. Padgett, supra; see also W. LaFave, Search and Seizure, § 4.4(d) (1978). Whether or not the defendant has demonstrated recklessness or deliberate falsity is a finding of fact reviewed under the clearly erroneous standard. State v. Padgett, supra; see also United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985).
A finding of fact is clearly erroneous when, although there may be some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. State v. Saavedra, 406 N.W.2d 667 (N.D.1987).
*276 Upon review of the record in the instant case, we are left with a definite and firm conviction that a mistake was made and therefore we believe that the trial court was clearly erroneous in finding that Morrison did not establish by a preponderance of the evidence that certain statements in the warrant affidavit were in fact false and were made recklessly by Officer Barnett, the affiant of the warrant affidavit.
The affidavit in support of the application for the search warrant contained statements relating to (1) a description of the robber; (2) the shoe prints; (3) the photographic line-up; (4) the M.O.; and (5) the residence to be searched.
Morrison's motion to suppress was accompanied by an affidavit which was unrebutted by the State showing that statements in the search warrant affidavit regarding the shoe prints, photographic lineup and modus operandi of Morrison were not true.
Officer Barnett's affidavit stated that certain shoe prints were found at the scene of the crime and that earlier in the evening another unnamed officer had seen Morrison with similar type shoes. At the suppression hearing, Barnett testified that the shoe prints were from shoes with a wavy sole pattern. The unnamed officer, Sheriff Jeff Halvorson, stated to defense counsel that he could not recall if Morrison was wearing tennis shoes or hiking boots when he had seen him earlier that evening. At the suppression hearing, Morrison testified that he was wearing hiking boots on the evening of the Artclare burglary and that his hiking boots had soles with deep cleats for gripping. Finally, Barnett testified that he could not recall if Halvorson had informed him of the pattern on the bottom of the shoes or boots Morrison was wearing. It seems clear that Barnett had no basis for his affidavit statement concerning the shoe prints.
With regard to the photographic line-up, Barnett's affidavit stated that the night clerk at the Artclare Motel identified Morrison as closely describing the person that had robbed him. However, the night clerk never directly and positively identified Morrison as the robber.
Finally, and most blatantly untrue, Officer Barnett's affidavit stated that Morrison's modus operandi or M.O. closely followed the robbery at the Artclare Motel. However, police files indicated that Morrison had never been charged with any crime involving a weapon of any sort and had never committed a robbery.
It appears that Officer Barnett's affidavit statements concerning the shoe prints and Morrison's M.O. were made with reckless disregard for the truth. Further, his affidavit statement regarding the photographic line-up is, quite simply, stretching the bounds of truthfulness. The only relevant truthful statements contained in the affidavit concerned a description of the robber and the street address of Morrison's residence which Officer Barnett desired to search.
After eliminating the false information from the warrant affidavit, we believe that the remaining truthful statements are insufficient to establish probable cause.[2] Because the search warrant was not issued upon probable cause, the evidence seized during the search should have been suppressed pursuant to Morrison's motion.
After reviewing the entire record, we believe that the error was of considerable consequence to the relative strength of the case against Morrison and therefore was prejudicial to him. Accordingly, we conclude that the error affected substantial rights of Morrison and was not harmless error under Rule 52(a) of the North Dakota *277 Rules of Criminal Procedure.[3]
For the reasons stated in this opinion, the judgment of conviction is reversed and the case is remanded for a new trial.
ERICKSTAD, C.J., and VANDE WALLE and LEVINE, JJ., concur.
MESCHKE, J., concurs in the result.
NOTES
[1] We note that a hearing is required under the guidelines of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), if the defendant makes a substantial preliminary showing of recklessness or deliberate falsity in a statement included by the affiant in the warrant affidavit where the alleged false statement is necessary to find probable cause.
[2] Probable cause for issuance of a search warrant requires more than a mere suspicion of criminal activity. See State v. Metzner, 338 N.W.2d 799 (N.D.1983). Probable cause to issue a search warrant exists when the facts and circumstances presented to the neutral and detached magistrate are sufficient in themselves to justify the belief of a reasonably cautious person that an offense has been or is being committed on the premises to be searched or that evidence of a crime was being concealed there. State v. Metzner, supra.
[3] We note that the State argued that the error, if error at all, was harmless and may be disregarded under Rule 52(a), N.D.R.Crim.P., which provides as follows:
"RULE 52. HARMLESS ERROR AND OBVIOUS ERROR
"(a) Harmless error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920469/ | 180 Mich. App. 423 (1989)
447 N.W.2d 800
PEOPLE
v.
JOHNSON
Docket No. 114316.
Michigan Court of Appeals.
Decided October 2, 1989.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, First Assistant Prosecuting Attorney, for the people.
McCoy & McDaniel (by Timothy E. McDaniel), for defendant on appeal.
Before: HOOD, P.J., and MacKENZIE and HOLBROOK, JR., JJ.
ON REMAND
PER CURIAM.
This case is before us on remand from our Supreme Court. People v Johnson, 431 Mich. 683; 431 NW2d 825 (1988). Our original opinion reversed defendant's conviction on the basis that a search warrant could not be issued for the purpose of photographing a suspect and that, therefore, the resulting photographs of defendant and the subsequent identification from those photographs should have been suppressed. 161 Mich. App. 205; 409 NW2d 784 (1987). The Supreme Court remanded specifically for consideration by the Court of Appeals of whether the uncounseled photographic line-up was consistent with People v Franklin Anderson, 389 Mich. 155; 205 NW2d 461 (1973), and, if not, whether under People v Kachar, 400 Mich. 78; 252 NW2d 807 (1977), there was an independent basis for the complainant's in-court identification. See Johnson, 431 Mich. 695-696. Both parties have submitted briefs after remand.
Defendant was convicted by a jury of assault and battery. MCL 750.81; MSA 28.276. He was *425 sentenced to ninety days in the Washtenaw County Jail. The complainant, who was nine years old at the time of the trial, claimed that defendant touched her on the buttocks while in a Meijer Thrifty Acre Store. Following their initial investigation, the police obtained a search warrant which resulted in an officer's taking pictures of the defendant. One of those pictures was then used in a photographic line-up in which the complainant identified the defendant as the man who had touched her. Defendant was not informed of the photographic line-up and he was not represented by counsel at the line-up.
Defendant moved to suppress the identification testimony because no counsel was provided for the photographic line-up, and the trial court denied the motion.
It is clear that a suspect in custody has a right to counsel at a photographic line-up. Anderson, supra, p 187. In People v Lee, 391 Mich. 618, 625; 218 NW2d 655 (1974), the Court declined to extend Anderson to the "pre-custody, pre-questioning, mere suspicion phase" of an investigation. In Lee, the police had not focused on the defendant as a suspect, but had included his picture in one of three photo displays shown the complainant. At the time of the display, Lee had not been approached or questioned by the police, but was a "possible subject" based on the similarity of his clothing to that reportedly worn by the suspected robber. However, in Kachar, supra, pp 88-89, the Supreme Court indicated that the presence of counsel is required at a photographic identification where the defendant, although not in custody, is the focus of the investigation. Kachar, supra, p 89, noted Anderson's approval of a decision of this Court, People v Cotton, 38 Mich. App. 763, 769-770; 197 NW2d 90 (1972), in which we held that counsel *426 must be present at a photographic identification when "[i]ts purpopse [is] to build a case against the defendant by eliciting identification evidence, not to extinguish a case against an innocent bystander." Even though Kachar is not binding precedent because the controlling opinion was signed by only two justices, its "focus" consideration has been used by this Court. The general rule that has been applied is that the right to counsel attaches when the accused is in custody, readily available or the focus of investigation. See, e.g., People v McFadden, 159 Mich. App. 796, 798-799; 407 NW2d 78 (1987); People v Wyngaard, 151 Mich. App. 107, 112; 390 NW2d 694 (1986); People v Harrison, 138 Mich. App. 74, 76-78; 359 NW2d 256 (1984).
It is clear that at the time of the photographic line-up, the police investigation had focused on defendant and that the police were seeking to elicit identification evidence so as to build a case against defendant rather than to extinguish a case against an innocent bystander.
The evidence the police had gathered immediately after the incident pointed to a single suspect. The complainant saw the person who had touched her and was able to give a description to the police. She and her family had been able to follow the suspect at the shopping area, resulting in the store security personnel obtaining the license plate number of the car in which he drove away. The police traced that number and determined that the car belonged to a woman living in a mobile home park. At a pretrial Wade[1] hearing on the suppression of the identification, the investigating officer indicated that, before the police could follow up on this information, they received a call from someone *427 at the trailer park. On the basis of an article in a local paper, that person informed the police that a possible suspect resided at the park at the address given on the title registration. At the time of the line-up, the police had already made contact with the defendant and knew of his whereabouts. Since the record clearly shows that defendant had become the focus of the police investigation when the line-up was conducted, counsel for defendant should have been present at the photographic line-up and therefore evidence of the identification should have been suppressed. Harrison, supra; Cotton, supra.
The Supreme Court's determination as to probable cause further supports this finding. The Court found that prior to the warrant the police had probable cause to arrest or, in other words, probable cause to believe that defendant had committed a felony. Johnson, 431 Mich. 690-693. Certainly on these facts where the police had probable cause to arrest their only suspect, and had informed the suspect that he had to submit to either a corporeal or photographic line-up it would be disingenuous to say that he was not the focus of their investigation. Cf. People v Erwin Wilson, 95 Mich. App. 93, 96-99; 290 NW2d 89 (1980).
Having found that the photographic line-up was not consistent with Anderson, the remaining question is whether there was an independent basis for the complainant's in-court identification under Kachar.
Both parties have indicated that the record is not sufficient for this Court to consider this issue. In accord with their requests, we remand for a hearing on whether there is an independent basis for the complainant's identification.[2]
*428 The trial court's decision on the suppression of the testimony is reversed. This case is remanded for a hearing as indicated above. If the trial court determines that there was an independent basis for the identification, defendant's conviction will stand. If not, he will be entitled to a new trial.
NOTES
[1] United States v Wade, 388 U.S. 218; 87 S. Ct. 1926; 18 L. Ed. 2d 1149 (1967).
[2] In his brief, the prosecutor raises the possibility that the photographic line-up may also have tainted the in-court identifications made by the complainant's mother and brother. Both identified defendant as the man they saw at Meijer. Both were apparently on the premises when the photographic line-up was held. There is no indication that this issue was raised at any time in the lower court or on appeal to this Court or the Supreme Court. We decline to consider it here and limit the remand to the issue remanded by our Supreme Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/413456/ | 698 F.2d 964
1 Soc.Sec.Rep.Ser. 133
WASHINGTON STATE HEALTH FACILITIES ASSOCIATION, a Washingtoncorporation; Ulysses and Virginia Rowell, Jr., a maritalcommunity; Philip and Beverly Gayton, a marital community;Triple C Convalescent Centers, a partnership; and AndrewBranch, Plaintiffs-Appellees,v.STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTHSERVICES, and Gerald Thompson, Secretary,Washington State Department of HealthServices, Defendants-Appellants.
No. CA 81-3281.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted July 6, 1982.Decided Nov. 9, 1982.
Charles F. Murphy, Olympia, Wash., for defendants-appellants.
Stephen B. Johnson, Garvey, Schubert, Adams & Barer, Seattle, Wash., for plaintiffs-appellees.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT, TANG and CANBY, Circuit Judges.
PER CURIAM:
1
The Secretary of Washington State Department of Social and Health Services (DSHS) appeals from an order of the district court enjoining the Secretary from enforcing a state regulation that conflicts with the federally approved Washington State Medicaid Plan, until such time as HEW1 approves an amendment to the state plan. The state regulation at issue deviates from the official state plan by altering the method of reimbursing nursing care facilities that accept Medicaid patients. We affirm the order granting the injunction and remand the case to the district court for any necessary further proceedings.2
2
A state that chooses to participate in Medicaid under the joint federal-state program authorized by Title XIX of the Social Security Act, 42 U.S.C. Sec. 1396 et seq., must submit a plan to the Secretary of HEW setting forth in detail the manner in which it will fulfill the federal conditions established by the Act and the regulations issued under it. The statute requires the state to set forth in its plan the proposed method for reimbursing nursing care facilities. 42 U.S.C. Sec. 1396a(a)(13)(E).3 Moreover, the receipt of federal funds is expressly conditioned on HEW approval of the state plan. 42 U.S.C. Sec. 1396. We previously have held that proper HEW evaluation and approval is a prerequisite to enforcement of a state Medicaid plan. California Hospital Association v. Obledo, 602 F.2d 1357, 1361-63 (9th Cir.1979). In addition, federal regulations specify the procedures a state must follow if it wishes to amend provisions of its federally approved plan. 45 C.F.R. Sec. 201.3 et seq. Accordingly, we find without merit appellants' contention that DSHS may enforce changes in its method of reimbursing nursing care facilities without receiving federal approval.4 See Forbes Health Systems v. Harris, 661 F.2d 282, 286 (3d Cir.1981).
3
We also reject appellants' argument that res judicata or collateral estoppel precludes this action. The prior state court case, relied upon by appellants, concerned alleged substantive deficiencies in the state's Medicaid disbursement system. The case before us is based on an alleged federal procedure infirmity in the state's subsequent attempt to revise that system pursuant to the state court's judgment. The plaintiffs in the state court action could not have raised the federal defense at issue here.
4
We further find no Eleventh Amendment bar to the issuance of the injunction against the Secretary of DSHS. The order here is prospective in nature and any impact on the state treasury is a necessary condition of compliance with the decree. Edelman v. Jordan, 415 U.S. 651, 668, 94 S. Ct. 1347, 1358, 39 L. Ed. 2d 662 (1974). The judgment is affirmed and the matter is remanded to the district court for further proceedings.
1
Now, Department of Health and Human Services
2
Further proceedings may include the effect of HEW's subsequent approval of a state amendment incorporating the regulation at issue here. Appellants filed a letter with this court suggesting that federal approval of the state's amendment rendered the appeal moot. The state subsequently took the position that the case was not rendered moot by approval of the amendment. The nature of the amendment and its effect upon this litigation remain unclear, however. Because the parties have not had an opportunity to brief the issues involved or to develop facts sufficient for us to make a definitive ruling, we believe these questions may be more properly addressed by the district court
3
Now, 42 U.S.C. Sec. 1396a(a)(13)(A). Furthermore, a federal regulation in effect at the time DSHS promulgated the regulation at issue here provided that the state must pay amounts determined for long-term care facility services according to the methods and standards set forth in the state plan. 42 C.F.R. Sec. 447.311 (1979)
4
Although plaintiffs below did not plead a federal cause of action under 42 U.S.C. Sec. 1983, it is clear that they are properly in federal court under this provision. Maine v. Thiboutot, 448 U.S. 1, 6-8 & n. 6, 100 S. Ct. 2502, 2505-2506 & n. 6, 65 L. Ed. 2d 555 (1980); See Tongol v. Usery, 601 F.2d 1091, 1099-1100 (9th Cir.1979); Cf. Edgewater Nursing Center, Inc. v. Miller, 678 F.2d 716 (7th Cir.1982). Although neither the parties nor the district court specified the statutory predicate for this action, we are free to affirm a correct decision on any basis supported by the record. Safeco Ins. Co. v. Guyton, 692 F.2d 551, 557 (9th Cir.1982); United States v. Washington, 641 F.2d 1368, 1371 (9th Cir.), cert. denied, 454 U.S. 1143, 102 S. Ct. 1001, 71 L. Ed. 2d 294 (1982); see also Aguirre v. Automotive Teamsters, 633 F.2d 168, 174 (9th Cir.1980) (if facts giving court jurisdiction are set forth in complaint, provision conferring jurisdiction need not be specifically pleaded). The Supreme Court's recent ruling in Jackson Transit Authority v. Local Division 1285, AFL-CIO-CLC, --- U.S. ----, 102 S. Ct. 2202, 72 L. Ed. 2d 639 (1982) does not alter our result. Contrary to the statutory scheme in Jackson, the Social Security Act and its history evince no legislative intent that disputes over changes of reimbursement methods between Medicaid providers and states be governed solely by state law | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/58304/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13199 JAN 30 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
Agency No. A77-309-283
GUANG ZHENG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 30, 2008)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
On May 9, 2006, we upheld the decision of the Board of Immigration
Appeals (“BIA”) affirming an Immigration Judge’s decision denying petitioner’s
application for asylum, withholding of removal under the Immigration and
Nationality Act, and protection under the U.N. Convention Against Torture.
Zheng v. U.S. Att’y Gen., 176 Fed.Appx. 1001 (11th Cir. 2006). On January 12,
2007, petitioner filed with the BIA a motion to reopen the proceedings, contending
that circumstances had changed since the Board’s May 9, 2006 decision had issued
and that, in light of the Second Circuit’s decision in Guo v. Gonzalez, 463 F.3d
109 (2d Cir. 2006), his motion was timely. The motion represented that he was
married on August 24, 2004, and had a daughter and a son born respectively on
April 15, 2005, and March 18, 2006, in the United States, and that because of
having a “second child within months of the birth of his daughter,” he had a well-
founded fear of being persecuted if returned to China.
On June 13, 2007, the BIA denied petitioner’s motion to reopen, finding the
motion untimely. Petitioner now seeks review of that decision, contending that the
BIA erred in (1) finding that the birth of his children in the United States did not
amount to a change in circumstances in China, and (2) failing properly to consider
Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006), as effectively constituting a finding
that China had changed its previous policy and that it now treats foreign born
children as Chinese nationals for family planning purposes. According to
2
petitioner, prior to Guo, there was no evidence that China would consider children
born outside of China for family planning purposes.1
A motion to reopen “must be filed no later than 90 days after the date on
which the final administrative decision was rendered in the proceeding sought to be
reopened.” 8 C.F.R. § 1003.2(c)(2). The 90-day filing deadline does not apply to
an alien who files a motion to reopen predicated upon “changed circumstances
arising in the country of nationality or in the country to which deportation has been
ordered, if such evidence is material and was not available and could not have been
discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).2
Petitioner’s reliance on Guo is misplaced; that decision did not constitute a
finding that China had changed its policy as petitioner contends. In Guo, the court
of appeals considered only whether the claims in certain previously unavailable
documents were material to a well-founded fear of persecution, not whether the
documents established a well-founded fear of persecution or even had merit. Guo,
1
We review the BIA’s denial of a motion to reopen for abuse of discretion. Abdi v. U.S.
Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). The review is “limited to determining
whether there has been an exercise of administrative discretion and whether the matter of
exercise has been arbitrary or capricious.” Id. (internal quotation omitted).
2
A recent campaign of forced sterilization in the petitioner’s home village may satisfy
the changed circumstances exception. Li v. U.S. Att’y Gen., 488 F.3d 1371, 1375 (11th Cir.
2007).
3
463 F.3d at 115 (remanding the case to the BIA for further determination).3 In
short, petitioner’s reliance on Guo to have changed China’s policy is unfounded.
Finally, we are not persuaded that the BIA failed to consider the basis of
petitioner’s motion to reopen – his claim that he had a well-founded fear of
persecution based on the birth of his two children in the United States.
The BIA exercised its discretion in this matter and did so in a manner that
could not be considered arbitrary or capricious.
PETITION DENIED.
3
The documents referred to in Guo are distinct from the documents petitioner submitted
to the BIA in his motion to reopen.
4 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1331321/ | 650 S.E.2d 650 (2007)
STATE of North Carolina
v.
Lamont Darrell CARTER.
No. COA06-1645.
Court of Appeals of North Carolina.
October 2, 2007.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Dorothy Powers, for the State.
Crumpler, Freedman, Parker, & Witt, by Vincent F. Rabil, Winston-Salem, for defendant-appellant.
HUNTER, Judge.
Lamont Darrell Carter ("defendant") appeals from the trial court's entry of judgments based on jury verdicts of guilty of common law robbery and conspiracy to commit common law robbery. After careful review, we vacate the conviction for common law robbery and remand for resentencing on a charge of larceny from the person.
On 20 May 2004, Sean Rowlett ("Rowlett") and Marvin Cooks ("Cooks"), as Express Teller Services employees, went to Alamance Church Road in Greensboro to replenish an ATM. The ATM was located in an atrium just inside a Bi-Lo grocery store. Upon their arrival at the store, Rowlett exited the truck carrying a canvas bag inside which was a plastic bag containing $103,000.00 in cash, which he then placed in a grocery cart. He entered the store, approached the ATM, and began the replenishment process, placing the grocery cart with the cash to his left.
Rowlett was "about to insert [his] settlement card" into the ATM to balance the machine when he felt a spray hit the back of his head. Rowlett testified that he "thought it was like a little kid with a water gun[.]" When he touched the back of his head and looked at his hand, however, he discovered that the spray was orange, and the back of his head began to "burn"; he believed it might have been pepper spray or mace. Rowlett then turned to his left, toward where the shopping cart had been, and discovered that the bag containing the money was gone. He looked out the door and saw someone running away with the sack wearing what appeared to be the same uniform he and his partner were wearing. Rowlett had been instructed not to chase after anyone, and so he remained at the store and called the police. Defendant was later apprehended by Greensboro police and charged with both common law robbery and conspiracy to commit common law robbery, the latter based on evidence that defendant and Cooks, Rowlett's driver, acted in concert to commit the crime.
Cooks testified against defendant at trial. During his testimony, Cooks read to the jury three anonymous threatening letters that he stated he received in jail, testified that he had been threatened, and stated that he had passed a polygraph test regarding these events.
On 11 May 2006, defendant was convicted by a jury of common law robbery and conspiracy to commit common law robbery, then pled guilty to being an habitual felon. He was sentenced in the presumptive range to 90 to 117 months on the first count and 90 to 117 months on the second count, to run at the expiration of the first sentence. Defendant appeals his conviction for common law robbery.[1]
I.
"When ruling on a motion to dismiss, the trial court must determine whether the prosecution has presented `substantial evidence of each essential element of the crime.'" State v. Smith, 357 N.C. 604, 615, 588 S.E.2d 453, 461 (2003) (quoting State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998), cert. denied, 534 U.S. 1046, 122 S.Ct. 628, 151 L.Ed.2d 548 (2001)). "`Substantial evidence' is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion[.]" State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (internal citation omitted). "`The reviewing court considers all evidence in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence. Evidentiary "[c]ontradictions and *653 discrepancies are for the jury to resolve and do not warrant dismissal."'" State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005) (quoting Garcia, 358 N.C. at 412-13, 597 S.E.2d at 746) (alteration in original).
Common law robbery "is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear." State v. Stewart, 255 N.C. 571, 572, 122 S.E.2d 355, 356 (1961). "It is not necessary to prove both violence and putting in fear-proof of either is sufficient." State v. Moore, 279 N.C. 455, 458, 183 S.E.2d 546, 547 (1971).
The primary element in dispute here is the final one: Taking the property "by violence or putting [the victim] in fear." Stewart, 255 N.C. at 572, 122 S.E.2d at 356.
Generally the element of force in the offense of robbery may be actual or constructive. Although actual force implies personal violence, the degree of force used is immaterial, so long as it is sufficient to compel the victim to part with his property or property in his possession. On the other hand, under constructive force are included "all demonstrations of force, menaces, and other means by which the person robbed is put in fear sufficient to suspend the free exercise of his will or prevent resistance to the taking . . . [.] No matter how slight the cause creating the fear may be or by what other circumstances the taking may be accomplished, if the transaction is attended with such circumstances of terror, such [as] threatening by word or gesture, as in common experience are likely to create an apprehension of danger and induce a man to part with his property for the sake of his person, the victim is put in fear."
State v. Sawyer, 224 N.C. 61, 65, 29 S.E.2d 34, 37 (1944) (quoting 46 Am.Jur. 146) (emphasis added).
The key distinction here is that, while there clearly was a battery, it did not induce Rowlett to part with the money. The facts as evidenced from Rowlett's own testimony was that he was sprayed with an unidentifiable substance, felt the back of his head to see what it was, and then turned around to find defendant already running out the door with the money. Certainly, spraying someone with pepper spray, even on the back of the head, is a use of force, but in this instance that force did not instill the fear necessary such that defendant's obtaining the money could be considered common law robbery.
The State argues to this Court that the above-quoted language means that any time a person's "resistance to the taking" of property is "prevent[ed]," constructive forceand therefore a common law robberyhas occurred. This meaning only appears when the phrase is taken out of context. The full sentence states: "under constructive force are included `all demonstrations of force, menaces, and other means by which the person robbed is put in fear sufficient to [1] suspend the free exercise of his will or [2] prevent resistance to the taking[.]'" Id. (emphasis added). That is, the person must not only be prevented from resisting; that prevention must be accomplished by putting the person in fear. The State's argument that Rowlett's lack of resistance proves that he was put in fear is unconvincing, particularly considering Rowlett's own testimony that he was instructed not to give chase in the event of a robbery.
Although we must take the facts in the light most favorable to the State here, the record shows no evidence that the money was taken from Rowlett by the use of violence or putting him in fear. However, the remaining elements of common law robberythat defendant took money from the person of another, or in his presence, against his willtogether constitute the crime of larceny from the person.
As our Supreme Court has stated, "larceny from the person differs from robbery in that larceny from the person lacks the requirement that the victim be put in fear." State v. Buckom, 328 N.C. 313, 317, 401 S.E.2d 362, 365 (1991). Defendant also argues to this Court that, because the money involved was in a cart to Rowlett's side, it was not taken from his person or presence as required for a conviction of common law robbery. The requirement for the crime of larceny *654 from the person is slightly different, so we consider defendant's argument on this point here.
For the crime of larceny from the person, the property must be taken "`from one's presence and control[,]'" which our Supreme Court has stated means "the property stolen must be in the immediate presence of and under the protection or control of the victim at the time the property is taken." State v. Barnes, 345 N.C. 146, 149, 478 S.E.2d 188, 190 (1996) (emphasis omitted) (quoting Buckom, 328 N.C. at 317-18, 401 S.E.2d at 365). As this explanation suggests, our courts' holdings as to when larceny from the person has been committed have concentrated on the physical proximity of the victim to the property when it was taken. See Buckom, 328 N.C. at 318, 401 S.E.2d at 365 (defendant's taking money from cash register when cashier was standing in front of register making change constituted larceny from the person); State v. Wilson, 154 N.C.App. 686, 689-91, 573 S.E.2d 193, 195-97 (2002) (same); State v. Pickard, 143 N.C.App. 485, 491, 547 S.E.2d 102, 106-07 (2001) (finding evidence that defendant snatched victim's purse off her arm while standing behind her sufficient to support conviction for larceny from the person); Barnes, 345 N.C. at 148-50, 478 S.E.2d at 189-90 (where employee in charge of bank bag left it under cash register and was in kiosk twenty-five feet away, bag was no longer in his presence or control for purposes of larceny from the person); State v. Lee, 88 N.C.App. 478, 478-79, 363 S.E.2d 656, 656 (1988) (theft of purse not larceny from the person where purse was left in grocery cart and stolen while owner walked away for four or five minutes).
In the case at hand, Rowlett had the money close at hand and was in the middle of the replenishment transaction with the ATM when the money was removed from his possession. Further, although the money does not appear from the record to have been in Rowlett's line of sight, as we noted in Barnes, "if a man carrying a heavy suitcase sets it down for a moment to rest, and remains right there to guard it, the suitcase remains under the protection of his person." Barnes, 345 N.C. at 148, 478 S.E.2d at 190 (quoting Rollin M. Perkins & Ronald N. Boyce, Criminal Law 342-43 (3d ed.1982)).
Thus, we find substantial evidence was presented for all the elements of larceny from the person, and as such remand this case for sentencing on that basis.
II.
At trial, Cooks, defendant's alleged co-conspirator, was allowed to testify that defendant and another person had "sent [him] threats" and to read to the jury three threatening letters that he testified he had received while in prison. Defendant argues that both pieces of testimony were improperly admitted; specifically, that Cooks's testimony as to threats he received was unduly prejudicial, and that the letters were not properly authenticated before being read to the jury. Both of these arguments are without merit.
We first note that defendant has the burden to show not only that the evidence was admitted in error, but also that the error was prejudicial. That is, a defendant must show that, but for the error, a different result would likely have been reached. State v. Freeman, 313 N.C. 539, 548, 330 S.E.2d 465, 473 (1985).
Cooks's statement regarding the threats came in the context of his testimony about defendant and another person coming to his house to urge him to commit certain crimes with them. Cooks stated: "[H]ethey sent threats, and they said that I needed to help them or, you know, something was going to happen to me if I didn't." He also testified that he "didn't want to participate[,]" but the pair "kept pushing and urging." Defendant argues that this testimony exaggerated his propensity for violence, and thus "its probative value is substantially outweighed by the danger of unfair prejudice" and so should have been excluded. N.C. Gen.Stat. § 8C-1, Rule 403 (2005).
The letters Cooks was allowed to read to the jury urged him not to testify and explained at length how, if Cooks did not testify against his co-conspirators, he would not serve any further jail time. Only one of the three was signed; it stated it was from "Two *655 Guns," which Cooks stated he understood to mean defendant, having heard defendant refer to himself that way in the past. Defendant argues that, because the trial court allowed the letters to be read without authenticating their handwriting, they were hearsay and thus inadmissible.
Regardless of whether these pieces of evidence were in fact inadmissible, however, defendant cannot show that without them a different result would likely have been reached. As to the testimony regarding the threats, the statements specified in defendant's assignments of error (quoted above) are just two sentences of Cooks's testimony as to defendant's threatening behavior, the whole of which covers several pages of the record. The removal of these two sentences would have no discernable effect on the thrust of Cooks's testimony as to defendant's threats. As to the letters, defendant only argues that they are highly prejudicial because the handwriting was not authenticated, which is in fact an argument as to why they are hearsay, not why they are prejudicial.
Defendant cannot show why the exclusion of this evidence would have led to a different result at trial, and as such, this assignment of error is overruled.
III.
Finally, defendant argues that his counsel's failure to object to the mention of Cooks's having taking a polygraph test constituted ineffective assistance of counsel. This argument is without merit.
The fact that Cooks had taken a polygraph test came up three times during the trial: Twice during Cooks's own testimony, and once during the testimony of Detective Jackie Taylor of the Raleigh Police Department. Defense counsel did not object at any of these times. When Cooks read the above-mentioned letters to the jury, one letter contained the following statement: "I fully explained to him how the police threatened you with a murder charge if you didn't tell them what they wanted to hear, even though you passed a polygraph test." Next, during defense counsel's cross-examination of Cooks, she asked: "Did you tell the police officers that you had to go about four weeks ago and take a polygraph?" This was repeated twice after the State objected and the court overruled it before Cooks answered; he then answered "[y]es" and defense counsel moved on to what else Cooks had told the police. Finally, during Detective Taylor's testimony, defense counsel read aloud a portion of the detective's report summarizing what Cooks had told them: "I had to go about four weeks ago and take a polygraph at the police department."
Defense counsel's failure to object to these statements at trial means that this Court reviews defendant's arguments under a plain error standard. See State v. Mitchell, 328 N.C. 705, 711, 403 S.E.2d 287, 290 (1991). However, "[t]he fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985). Again, given the very slight nature of these pieces of evidence, defendant cannot show that without them a different result would have been reached. As such, this assignment of error is overruled.
IV.
We find no prejudicial error resulted from the admission of the letters, testimony of threats, or evidence of Cooks's polygraph test. However, because the State did not present evidence of all the elements of common law robbery but did present evidence of all the elements of larceny from the person, we vacate the verdict on common law robbery and remand to the trial court for resentencing based on a charge of larceny from the person.
Vacated and remanded.
Judges WYNN and BRYANT concur.
NOTES
[1] We note that, while defendant assigned error to various aspects of his conviction for conspiracy to commit common law robbery, he made no arguments as to that conviction to this Court, and as such we deem these assignments of error abandoned. See N.C.R.App. P. 28(a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/52736/ | United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT September 7, 2007
Charles R. Fulbruge III
Clerk
No. 07-30155
Summary Calendar
GULF MARINE EQUIPMENT, INC.,
Plaintiff-Appellant
versus
C & G BOAT WORKS INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(2:05-CV-6684)
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges
PER CURIAM:*
In this diversity action, Gulf Marine Equipment, Inc. contests
a summary judgment awarded C & G Boat Works, Inc., concerning their
12 August 2002 brokerage agreement. In it, C & G agreed to pay
Gulf Marine a brokerage fee upon C & G’s obtaining vessel-
construction contracts with five designated companies, including
Rigdon Marine.
Gulf Marine’s principal, Chalin O. Perez, Jr., requested
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Rigdon Marine place C & G on its bid list. Rigdon did so, and C &
G submitted a bid. That bid was rejected. Rigdon Marine solicited
bids for another boat package in April 2003. C & G again placed a
bid and was again rejected. Gulf Marine was not involved with the
second bid.
On 12 August 2003, C & G terminated its brokerage agreement
with Gulf Marine. On 27 June 2004, C & G began discussing with
Rigdon Marine the construction of a vessel; they entered into a
construction contract on 30 September 2004.
Gulf Marine maintains it was the procuring cause of C & G’s
contract with Rigdon and, therefore, is entitled to a commission
pursuant to the 12 August 2002 brokerage agreement. The district
court awarded summary judgment to C & G, concluding: the brokerage
contract had been terminated; and Gulf Marine was not the procuring
cause of - and therefore not entitled to commission for - the C &
G/Rigdon contract. Gulf Marine Equip., Inc. v. C & G Boat Works,
Inc., 471 F. Supp. 2d 679, 684 (E.D. La. 2007).
“We review a grant of summary judgment de novo, viewing all
evidence in the light most favorable to the nonmoving party and
drawing all reasonable inferences in that party’s favor.” Rothgery
v. Gillespie County, Tex., 491 F.3d 293, 296 (5th Cir. 2007).
Summary judgment shall be granted when “there is no genuine issue
as to any material fact and [] the moving party is entitled to a
2
judgment as a matter of law”. FED. R. CIV. P. 56(c).
Essentially for the reasons stated in the district court’s
opinion, summary judgment was proper. A broker is sometimes
entitled to commission even when a transaction occurs after the
termination of the brokerage relationship. Where, however,
contracting parties brought together by a broker “fail to make a
sale, part ways, and then come together again on their own
initiative after a lapse of time, the broker does not earn a
commission on the sale if he has no hand in the renewed dealings”.
Snyder v. Champion Realty Corp., 631 F.2d 1253, 1255 n.3 (5th Cir.
1980).
AFFIRMED
3 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/52644/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 18, 2007
No. 06-14030 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-10006-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELOY RIVERO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 18, 2007)
Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Eloy Rivero pleaded guilty to one count of assaulting, resisting and
impeding a Coast Guard officer, in violation of 18 U.S.C. § 111, and one count of
encouraging aliens to illegally enter the United States, in violation of 8 U.S.C. §
1324. The pre-sentence investigation report calculated his advisory guidelines
sentence range at 33 to 41 months of prison time. The district court, after
considering the 18 U.S.C. § 3553(a) factors, sentenced Rivero to 60 months
imprisonment on each of the two counts he pleaded guilty to, with the sentences to
run consecutively.
Rivero appeals his 120-month sentence on four grounds. He contends that:
(1) he was entitled to notice that the district court intended to sentence him above
the guidelines range; (2) the court improperly used in sentencing him information
that he proffered to the government about other smuggling attempts; (3) the court
double-counted some of his criminal conduct in sentencing him above the
guidelines range; and (4) his sentence is unreasonable under the section 3553(a)
factors.
Rivero’s first contention that Federal Rule of Criminal Procedure 32(h)
entitled him to notice of the district court’s intention to sentence him above the
guidelines range is foreclosed by our decision in United States v. Irizarry, 458 F.3d
1208 (11th Cir. 2006) (per curiam). In that case, we held “that the district court
was not required to give Defendant advance notice before imposing a sentence
above the advisory guidelines range based on the court’s determination that
2
sentences within the advisory guidelines range did not adequately address the
section 3553(a) sentencing factors.” Id. at 1212. Here, as in Irizarry, the court
varied Rivero’s sentence above the guidelines range based on its consideration of
the section 3553(a) factors and did not rely on the guidelines departure provisions.
“After Booker, parties are inherently on notice that the sentencing guidelines range
is advisory and that the district court must consider the factors expressly set out in
section 3553(a) when selecting a reasonable sentence between the statutory
minimum and maximum.” Id.
Rivero also contends that the court improperly considered information he
proffered to the government about two instances where he smuggled aliens into the
country (in addition to the two smuggling instances he admitted to as part of his
plea). He claims that the information was protected under U.S.S.G. § 1B1.8(a),
which provides:
Where a defendant agrees to cooperate with the government by
providing information concerning unlawful activities of others, and as
part of that cooperation agreement the government agrees that
self-incriminating information provided pursuant to the agreement
will not be used against the defendant, then such information shall not
be used in determining the applicable guideline range . . . .
U.S.S.G. § 1B1.8(a).
There are two problems with Rivero’s argument. First, the PSR expressly
stated, “While paragraphs 20 and 21 support the defendant’s pattern of criminal
3
behavior and past involvement in alien smuggling ventures, his prior trips in April
2005 and September 2005 were in now [sic] way used in calculating his total
offense level or guideline computations.” Thus, Rivero’s self-incriminating
information regarding his two prior smuggling trips “was not used in determining
the applicable guideline range.”
Second, we have held that a court may use section 1B1.8(a) information to
sentence the defendant without running afoul of the guidelines prohibition, “so
long as the information is obtained from independent sources” other than the
government. United States v. Pham, 463 F.3d 1239, 1244 (11th Cir. 2006) (per
curiam). Here, the independent source of the information was Rivero himself. As
part of his presentation to the district court, Rivero’s counsel told the court that the
two additional smuggling incidents were attempts to bring members of his family
still in Cuba to the United States. The court considered this information at
Rivero’s request; he should not be heard now to assert that it was error for the
court to consider information he highlighted to it.
Rivero next contends that the court impermissibly double-counted conduct
that was already part of the guidelines calculation in deciding to sentence him
above the advisory range. Rivero argues that U.S.S.G. § 5K2.0(a) authorizes the
court to upwardly depart from the guidelines range only where there are
4
aggravating circumstances “of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the guidelines.”
Rivero did not make a double-counting objection before the district court;
we therefore review the contention only for plain error. United States v. Naves,
252 F.3d 1166, 1168 (11th Cir. 2001). We conclude that there was no error at all.
Section 5K2.0 applies only to upward departures based on the guidelines, which is
not what the court did here. Instead, the court used its post-Booker authority to
vary from the guidelines sentence based on its consideration of the section 3553(a)
factors. Section 3553(a) requires the court to consider Rivero and his criminal
conduct as it relates to the nature and circumstances of his offense, the seriousness
of it, his criminal history, and the need to punish him, protect the public, and deter
others. 18 U.S.C. § 3553(a). Double-counting, other than that which is necessarily
a component of section 3553(a), did not occur.
Rivero’s final contention is that his sentence is unreasonable because the
court: (1) substituted its own opinion of the seriousness of his crime for the
Sentencing Commission’s opinion as reflected in the guidelines; (2) did not give
the guidelines range due consideration as 3553(a) requires; (3) did not consider
mitigating evidence of his characteristics and criminal history; and (4) imposed a
sentence that was too harsh for the crime. We disagree.
5
In United States v. Hunt, 459 F.3d 1180 (11th Cir. 2006), we said that
assessing the relative weight to give the guidelines range as opposed to any of the
other section 3553(a) factors was necessarily a case-by-case determination. Id. at
1184. “In some cases it may be appropriate to defer to the Guidelines; in others,
not. So long as the district court considers the Guidelines, we do not believe it is
appropriate to dictate a ‘strength’ of consideration applicable in every case.” Id. at
1184–85.
Here, the district court clearly stated that it considered the guidelines but that
other section 3553(a) factors, including the seriousness of Rivero’s crime, dictated
an upward variance from the advisory range to reach an adequate sentence. As we
held in Hunt, such weighing of the section 3553(a) factors is appropriate, and
indeed required, in the post-Booker sentencing regime.
As to consideration of the character and criminal history mitigating
evidence, the court explicitly stated that it “considered . . . the history and
characteristics of the defendant” and “considered the statements of all parties,”
including Rivero. However, the court explained that the other section 3553(a)
factors, especially the seriousness of the offense, warranted a sentence above the
guidelines range.
We cannot say that the 120-month sentence is unreasonable in light of the
6
section 3553(a) factors. As part of his plea agreement, Rivero admitted that he
twice attempted to smuggle aliens into the country. The first time, the United
States Coast Guard tried to pull his boat over but Rivero would not stop. Instead
he rammed the Coast Guard’s boat. When the Coast Guard officers were finally
able to board Rivero’s boat, he jumped overboard. After he was finally
apprehended, Rivero told the ten aliens he was trying to smuggle into the country,
“Sorry, guys, next time.”
The next time was only two months later. Rivero was caught again by the
Coast Guard, this time trying to smuggle twenty-two aliens into the United States.
We agree with the district court that Rivero’s crime was serious. He did not
have adequate safety provisions for the passengers aboard his boat, including
children, and he needlessly endangered the Coast Guard officers who were trying
to apprehend him by ramming their boat and then jumping overboard. Rivero
showed no respect for the law. When he was caught the first time, he clearly
indicated that there would be a “next time.” Not deterred by the first arrest, he was
caught again only two months later committing exactly the same crime, except this
time he was attempting to smuggle more than twice as many aliens into the
country. For these reasons, we do not find the sentence to be unreasonable.
AFFIRMED.
7 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1621722/ | 733 So.2d 556 (1999)
Timothy O'CONNELL, Appellant,
v.
STATE of Florida, Appellee.
No. 99-87.
District Court of Appeal of Florida, Fifth District.
April 23, 1999.
*557 Timothy O'Connell, Brooksville, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
W. SHARP, J.
O'Connell appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He alleges he was denied effective assistance of trial counsel. We affirm.
In 1996, O'Connell pled guilty to three counts of grand theft in three cases,[1] and was found guilty of burglary of a dwelling in a fourth case.[2] He was sentenced in the latter case to 62 months in prison, followed by nine years probation, with consecutive five-year terms of probation in the other three cases. Restitution was imposed in the 1994 grand theft case, and also as a special condition of the probation in the two 1996 grand theft cases. A direct appeal was taken and this court per curiam affirmed. See O'Connell v. State, 708 So.2d 284 (Fla. 5th DCA 1998).
O'Connell argues his trial counsel was ineffective because he failed to object to and preserve the following sentencing issues: 1) the trial court failed to orally announce the condition of probation (Condition 15) which requires him to attend an HIV/AIDS Awareness Program, as well as the condition (Condition 12), which requires him to pay for any urinalysis, breathalyzer or blood tests ordered by his probation officer; 2) the trial court erred in setting restitution at $18,058 because that amount was not established by the record or other evidence; and 3) the trial court erred in including the same restitution as a special condition of probation in the two 1996 grand theft cases because that amount was not related to the 1994 case.
As to the sentencing issues, they were in fact raised in O'Connell's pro se brief filed in his direct appeal. Thus, they cannot now be raised in a Rule 3.850 motion. See generally Maharaj v. State, 684 So.2d 726 (Fla.1996); Rose v. State, 675 So.2d 567 (Fla.1996). However, O'Connell correctly points out that since trial counsel did not object to the alleged sentencing errors, these issues could not have been addressed on appeal. Thus, logically, the failure to preserve sentencing errors should be allowed to establish a claim for ineffective assistance of counsel. See, e.g., Crumbley v. State, 661 So.2d 383 (Fla. 1st DCA 1995).
However, we agree with the state that O'Connell failed to establish the prejudice necessary to show ineffective assistance of counsel. Haliburton v. Singletary, 691 So.2d 466 (Fla.1997); Robinson v. State, 707 So.2d 688 (Fla.1998). As to Condition 15, section 948.03(n), Florida Statutes, amended effective October 1, 1996, allows such a condition to be a standard condition of probation and one that therefore need *558 not be orally pronounced. The record in the direct appeal indicates the sentences were rendered on March 26, 1997.
With regard to Condition 12, which requires O'Connell to pay for drug testing, this is a special condition which must be orally pronounced. See State v. Williams, 712 So.2d 762 (Fla.1998); Porchia v. State, 705 So.2d 1050 (Fla. 5th DCA), approved, 716 So.2d 766 (Fla.1998). However, we have found no case which holds that failure of trial counsel to object to not orally pronouncing this condition amounts to ineffective assistance of trial counsel. In order to rise to this level, trial counsel's performance must be shown to have been so deficient that counsel failed to provide the defendant with a fair trial within the meaning of the Sixth Amendment. See Rivera v. State, 717 So.2d 477 (Fla.1998); Van Poyck v. State, 694 So.2d 686 (Fla.1997). As explained in Waterhouse v. State, 522 So.2d 341 (Fla.1988), a defendant is not entitled to perfect counsel, only reasonably effective counsel. Further, had the objection below been made by trial counsel, there is no indication the outcome would have been different.
With regard to the restitution issue, O'Connell is primarily arguing the merits of the award rather than trial counsel's performance. This proceeding should not serve as a second appeal. See Cherry v. State, 659 So.2d 1069 (Fla.1995). However, if not procedurally barred, we find no merit to O'Connell's claim his trial counsel acted deficiently in this regard. Restitution may be ordered in an amount greater than the maximum dollar value of the defining offense. J.O.S. v. State, 689 So.2d 1061 (Fla.1997). And, although the original complaint filed by the victim in the grand theft case stated the amount of jewelry stolen was worth $3,650, O'Connell failed to establish that the information filed against him was limited to the jewelry or that no additional damages were incurred. Section 775.089 requires restitution for all direct and indirect damages. Further, O'Connell failed to allege specific facts detailing the victim's statements or the evidence presented; therefore his allegations to establish insufficient performance by trial counsel were conclusory and legally insufficient. See Kennedy v. State, 547 So.2d 912 (Fla.1989).
O'Connell also argues it was error for the trial court to impose the same restitution in the 1996 grand theft cases as in the 1994 case, since damages in the 1996 cases were not directly or indirectly caused by the grand theft in the 1994 case. Here O'Connell was sentenced at the same time for both the 1994 and 1996 cases. Section 775.089(1)(a)1 provides for restitution for damages or losses caused directly or indirectly by the defendant's offense. Restitution should not be imposed for damages relating to a different case entirely. See State v. Williams, 520 So.2d 276 (Fla.1988). However, there is nothing in this record to show that all of the grand thefts were not part of the same criminal episode, committed as part of a single crime spree, part of which were not charged until 1996.
Further, in his motion, O'Connell states that his counsel was "ineffective for pointing this issue out [to] the court." This may be a misstatement, but absent other allegations showing his counsel failed to object or that he was prejudiced, ineffectiveness was not sufficiently alleged on this ground.
AFFIRMED.
COBB and GOSHORN, JJ., concur.
NOTES
[1] Cases No. 94-35187, 96-32434, and 96-32569.
[2] Case No. 96-32732. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920501/ | 447 N.W.2d 347 (1989)
Reuben O. BEITELSPACHER and Ruth Beitelspacher, a/k/a Ruth Nelson Beitelspacher, Plaintiffs and Appellants,
v.
Elden L. WINTHER and Antoinette M. Winther, Defendants and Appellees.
Nos. 16388, 16389.
Supreme Court of South Dakota.
Argued May 23, 1989.
Decided October 18, 1989.
*348 Carlyle E. Richards, P.C., Aberdeen, for plaintiffs and appellants.
*349 Mark A. Moreno of Schmidt, Schroyer, Colwill and Barnett, P.C., Pierre, for defendant and appellee, Antoinette M. Winther.
Thomas M. Tobin of Tonner, Tobin and King, Aberdeen, for defendant and appellee, Elden L. Winther.
HENDERSON, Justice.
CASE SUMMARY
We affirm the trial court's decision on a contract for deed foreclosure, with the exception of a double counting of improvements made by the Buyers which wrongly skews the balancing of equities. Thus, we affirm in part and reverse and remand in part.
PROCEDURAL HISTORY/ISSUES
Plaintiffs/appellants Reuben O. Beitelspacher and Ruth Beitelspacher (Sellers) initiated an action to foreclose on a 1977 contract for deed in the circuit court for Brown County after defendants/appellees Elden L. Winther and Antoinette Winther (Buyers) failed to make a final $123,585 balloon payment. After a non-jury trial, judgment was entered foreclosing Buyers' rights under the contract for deed, subject to Sellers' payment of $35,126.84 to Elden Winther. This sum represented an adjustment of the equities between the parties under SDCL 21-50-2 and per this Court's unanimous decision in Dow v. Noble, 380 N.W.2d 359 (S.D.1986).
Sellers contend, in their Notice of Appeal No. 16388, that the trial court erred in four regards:
1. The equitable adjustment formula of Dow v. Noble is inconsistent with SDCL Ch. 21-50;
2. Dow v. Noble should not be given retrospective application;
3. If the Dow v. Noble formula applies, the trial court did not properly implement it (Sellers created six separate sub-issues on this point which are treated below); and,
4. A default judgment initially entered against Antoinette Winther should not have been set aside under SDCL 15-6-60(b) (this is essentially a red herring, but, having been raised, it is treated below).
Buyers assert, by Notice of Review, No. 16389, that the trial court erred in four aspects concerning adjustment of the equities between these parties:
1. A WEB easement penalty was improperly assessed as a detriment to the property;
2. Excessive attorney's fees were awarded to Sellers, as the trial court failed to determine what portion of Seller's claimed fees were reasonable;
3. Interest on the value of the payments made to Sellers should have been considered in balancing the equities; and,
4. Increases in "ASCS crop bases" should have been included in the equitable balancing process as they were a benefit to the property.
FACTS
On September 30, 1977, Sellers and Buyers signed a contract for deed on Sellers' farm, which comprised 433 acres of pasture, 177 acres of cropland, and a 16-acre building site. The contract called for, inter alia, a total purchase price of $294,400, with $8,000 to be paid up front, and $77,376 due by October 16, 1977. These payments were made by Buyers. The remaining unpaid principal balance ($209,024) plus interest was to be paid in annual installments of $10,451.20 plus interest. A final balloon payment of $123,585.44 was due on November 1, 1987. The Buyers did not make their balloon payment, as Elden Winther, one of the Buyers, tried to secure financing, but failed.
The Buyers, who were married to each other at the time they entered the contract for deed, became embroiled in a divorce action. In 1987, Antoinette Winther sought a divorce in the Circuit Court for Brown County, and was granted a judgment and decree of divorce dated February 2, 1988. Interestingly, the Buyers' trial in the divorce action was held on October 27, 1987, only five days before the final balloon *350 payment on the contract for deed was due. The divorce decree directed Antoinette to deed her interest in the real property, subject to the contract for deed, to Elden, who was to assume all indebtedness related to such property.
Meanwhile, on January 5, 1988, as Buyers had missed their balloon payment, the Sellers initiated this foreclosure action. Although Antoinette had signed the contract for deed, she was directed by the divorce decree to transfer her interest, via quit claim deed, to Elden. She was not served with a certificate of readiness for trial, which "must be served" under SDCL 15-6-40(b), although the statute also provides that "[a]ny or all of the requirements of this rule may be dispensed with in any given case by the judge assigned to it." Antoinette did not appear at the trial, and a default judgment was entered against her. Six days after she was served with notice of the default judgment, Antoinette filed a motion, with supporting affidavit, for relief from judgment under SDCL 15-6-60(b).[1] Her motion was granted by the trial court.
At the trial itself, evidence regarding the fair rental value of the property was contradictory. Although the Sellers, by their notice of appeal, allege that the trial court erred in finding that a fair rental value of the property was $20 per acre, Reuben Beitelspacher testified that such value, for cropland and pasture, was in a $20-$25 range.
The trial court determined that the total benefit to the Sellers was $308,764.16 and Seller's total detriment was $273,637.32. The trial court made an equitable adjustment for the difference in these figures, $35,126.84, which Sellers were to pay to Buyers.
Mathematically, the trial court's equitable adjustment breaks down as follows:
Sellers' Detriment
1. Rent: $ 99,162.11
2. Easement Payment to
Buyers: $ 300.00
3. Loss of Land Value: $147,044.00
4. Expense of Original
Sale: $ 5,838.00
5. Miscellaneous Expenses
in Land Recovery: $ 21,293.21
TOTAL DETRIMENT: $273,637.32
Sellers' Benefits
1.
Principal Paid:
$179,336.80
2.
Interest Paid:
$114,179.36
3.
Improvements Made by Buyers:
$ 15,248.00
TOTAL BENEFIT:
$308,764.16
Thus, the trial court's finding under the equity adjustment formula of Dow v. Noble was reached by subtracting $273,637.32 from $308,764.16, yielding $35,126.84.
DECISION
A. Seller's Notice of Appeal (No. 16388)
I. Applying Dow v. Noble and SDCL Ch. 21-50 to the facts.
Sellers first argue that rules of statutory construction render Dow v. Noble, 380 N.W.2d 359 (S.D.1986) inconsistent with provisions of SDCL Ch. 21-50. Two particular statutes, SDCL 21-50-2, 21-50-3 are relied upon in Sellers' argument. SDCL 21-50-2 provides, in pertinent part: "The court in such actions shall have the power to equitably adjust the rights of all the parties thereto ..." while SDCL 21-50-3 provides:
Upon the trial of an action under this chapter the court shall have power to and by its judgment shall fix the time within which the party of parties in default must comply with the terms of such contract on his or their part, which time shall be not less than ten days from the rendition of such judgment, and unless the parties against whom such judgment is rendered shall fully comply therewith within the time specified, such judgment shall be and become final without further *351 order of the court, and all rights asserted under the contract shall thereupon be forever barred and foreclosed.
Sellers argue that SDCL 21-50-2 is a general statute, whereas SDCL 21-50-3 is a specific statute which limits the court's authority under SDCL 21-50-2 to fixing the time in which a defaulting party may comply with the terms of the contract. We disagree. SDCL 21-50-2 refers to "rights" which may be adjusted. SDCL 21-50-3 has a narrower reach because it deals with, particularly, only one aspect of the parties' rightsthe time to cure default. The law must be so construed as to give effect to all of its provisions, if possible. State v. Heisinger, 252 N.W.2d 899 (S.D.1977); State ex rel. Kriebs v. Halladay, 52 S.D. 497, 501, 219 N.W. 125, 127 (S.D.1928). Sellers' interpretation would reduce SDCL 21-50-2 to a nullity.
Sellers' constricted interpretation of SDCL 21-50-2 is unsound, as reflected in Severson v. Eide, 52 S.D. 20, 25, 216 N.W. 581, 583 (1927), where this Court, interpreting R.C.1919, § 2915,[2] the predecessor of SDCL 21-50-2, wrote:
If the situation were reversed and the rents amounted to more than the interest and taxes, we think there can be no doubt that defendants could be relieved from an apparent default by an application of the rents in payment of such interest and taxes, or as the situation is if defendants desired to hold their contract that they could reduce the amount to be paid in redemption by compelling plaintiff to account for and apply such rents to a reduction of the amount due. We can see no reason why plaintiff may not have the same right of set-off in his favor.
It is apparent that, even in 1927, the trial court's authority to adjust equities under § 2915 extended beyond the narrow confines projected by Sellers. R.C.1919 § 2914, the predecessor of SDCL 21-50-3, was not perceived by the Severson court as the outer limit of equitable adjustment.
This Court, in Dow, Heikkila v. Carver, 378 N.W.2d 214 (S.D.1985), and Prentice v. Classen, 355 N.W.2d 352 (S.D.1984), recognized that foreclosure of land contracts can involve unjust enrichment through forfeiture. Earlier cases rejected such arguments by generally holding that there was no forfeiture because the Seller, in such a case, was merely enforcing the contract as agreed. Severson, 52 S.D., at 24, 216 N.W., at 583; Hickman v. Long, 34 S.D. 639, 150 N.W. 298 (1914). This rule was criticized as inequitable by Professor Corbin in 1931, see, Corbin, The Right of a Defaulting Buyer to the Restitution of Installments Paid, 40 Yale L.J. 1013 (1931), cited in Dobbs, Remedies § 1214, p. 864 (1972). Corbin's position, as set out in Dobbs, was adopted by the Connecticut Supreme Court in Vines v. Orchard Hills, Inc., 181 Conn. 501, 510-12, 435 A.2d 1022, 1028 (1980), (quoted approvingly in Heikkila, 378 N.W.2d, at 219). Numerous other courts have followed the same path:
[T]raditional analysis would suggest that forfeiture would follow. But along this dimension, too, the courts have been actively reforming the law. Increasingly they are holding that forfeiture may not be "free" and that the Seller must return the payments he has received insofar as they exceed his actual damages.
G. Nelson and D. Whitman, Real Estate Finance Law, § 3.29, p. 100 (2nd Ed.1985). The last sentence appears to be the rule in a nutshell. Cases cited in support of the above statement include Moran v. Holman, 501 P.2d 769 (Alaska 1972); Randall v. Riel, 123 N.H. 757, 465 A.2d 505 (1983); Morris v. Sykes, 624 P.2d 681 (Ut.1981); and Howard v. Bar Bell Land and Cattle Co., 81 Idaho 189, 340 P.2d 103 (1959). See also, Freedman v. Rector, Wardens and Vestrymen of St. Mathias Parish, 37 Cal.2d 16, 230 P.2d 629 (1951) (Denial of restitution violate public policies against forfeitures, penalties, and unjust enrichment). In Moran, the Alaska Supreme Court observed that "equity abhors a forfeiture", a principle observed in South Dakota at least since 1899: "Forfeitures have *352 always been considered as odious in the law, and courts of law, circumscribed as their jurisdiction is, struggle against them." Barnes v. Clement, 12 S.D. 270, 277, 81 N.W. 301 (1899). Because the legislature consciously invoked equity in the form of SDCL 21-50-2, we reject Sellers' position. We reaffirm Dow v. Noble.[3]
II. Retrospective Application of Dow v. Noble.
Sellers next argue that Dow v. Noble, 380 N.W.2d 359 (S.D.1986), should not be applied here because they relied, under their contract for deed, upon earlier South Dakota caselaw. However, the keystone emphasis in Sellers' argument is S.D. Constitution Article VI, Sec. 12, which provides that "[n]o ex post facto law, or law impairing the obligation of contracts or making any irrevocable grant or privilege, franchise or immunity, shall be passed." Thus, their argument is double-barrelled.
Authorities from this jurisdiction and elsewhere, establish that there is no "black letter" prohibition on applying Dow retroactively:[4]
The provision of the Federal Constitution is that no state "shall pass any ... law" impairing the obligation of contracts. (note omitted). This prohibition, according to the rule of the federal courts and most state courts, is directed only against impairment by legislation, and not by judgments of courts. There is no vested right in the decisions of a court, and a change of decisions of a state court does not constitute the passing of a law, although the effect of such change is to impair the validity of a contract made in reliance on prior decisions. (note omitted, emphasis supplied)
16A Am.Jur.2d, Constitutional Law § 703, at 712-13 (1979). Here, SDCL 21-50-2 and predecessors have been on the books since 1913. Therefore, the point at issue here is not really SDCL 21-50-2, but was Sellers' retention of payments a forfeiture? This is a matter of equity, the principles of which are ancient.
While this Court has, in the past, declined to give retrospective application to a new rule, as in Rollinger v. J.C. Penney Co., 86 S.D. 154, 192 N.W.2d 699 (1971), Baatz v. Arrow Bar, 426 N.W.2d 298 (S.D.1988), presents a situation where this Court did apply a new ruling (Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982)) retrospectively. Three criteria are used to determine whether a rule is to be given retrospective application:
1. The purpose to be served by the particular new rule;
2. The extent of reliance which has been placed upon the old rule; and,
3. The effect on the administration of justice of a retroactive application of the new rule.
Baatz, at 301. The purpose of allowing buyers to claim restitution is to prevent unjust enrichment on the part of sellers. Heikkila v. Carver, 378 N.W.2d 214, 219 (S.D.1985). As in Baatz, retroactive application is necessary to effectuate the intent and purposes of the rule. As to the degree of reliance Sellers may have placed upon earlier case law, Severson indicated that the language of R.C.1919, § 2915 (now codified in SDCL 21-50-2) could be given a broad reading, as shown in our treatment of Issue I, supra. Further, this Court, in Rollinger, 86 S.D., at 164 n. 6, 192 N.W.2d, at 704 n. 6, indicated that the defendant was engaged in a practice (revolving charge accounts) that had never been declared usurious by a court in any state. *353 Here, the rule urged by Sellers had been under attack since 1931. See Corbin, The Right of a Defaulting Buyer to the Restitution of Installments Paid, 40 Yale L.J. 1013 (1931). As shown in Issue I, numerous courts have ruled against sellers in this situation, including Howard v. Bar Bell Land and Cattle Co., 81 Idaho 189, 340 P.2d 103 (1959), which was handed down long before creation of this contract. Regarding an effect on the administration of justice from a standpoint of efficiency or volume, we visualize no great wave of heightened litigation.
We have weighed the inequity imposed by retroactive application, as mentioned in Fisher v. Sears, Roebuck and Co., 88 S.D. 1, 5, 214 N.W.2d 85, 87 (1974). In this case we find that greater inequity would result by giving Dow only prospective effect. The Constitution neither prohibits nor requires retrospective effect of judicial decisions. Vogt v. Billion, 405 N.W.2d 635 (S.D.1987). Retrospective application of Dow does not, in our view, present a risk of inequitable results because balancing of the equities between Sellers and Buyers is inherent in Dow and SDCL 21-50-2. The only loss to sellers is the possibility of reaping a windfall.
III. Balancing the Equities
Sellers' third argument entails six individual allegations of error:
1. The trial court's determination that $20 per acre fair rental value for cropland was incorrect;
2. Improvements made by Buyers were counted twice;
3. All costs of original sale were not allowed as detriment to Sellers;
4. Sellers' increased income tax liability from repossession should have been considered;
5. Income tax paid by Sellers on interest payments received from Buyers should have been considered; and,
6. Income tax savings of the Buyers should have been considered.
We reject Sellers' first assertion that the trial court's assessment of rental value was not based on the evidence. Seller Reuben Beitelsbacher testified at trial that cash rental of cropland or pasturage was in the $20 to $25 range. It is beyond cavil that a party can claim no better version of the facts to which he himself has testified.
Sellers' second allegation, that improvements were counted twice, is substantiated by the evidence. The improvements consisted of a well dug in 1983, reroofing a barn, carpeting, corral repair, and grain bins, totalling $15,248. These were apparently considered in the appraisals made of the property, and thus were counted already, before the trial court added them as benefits to Sellers. Appraiser Gerhanter made specific reference to the modernity and good repair of the house, the "good utility of the other buildings", the storage bins, and the new well (the old one had dried up). Daniel Chase's appraisal makes reference to the house carpeting, grain bins, and well. The trial court, in adding the value of the improvements to the benefits Sellers received, counted these assets twice.
We reject Sellers' claim that the trial court erred in apportioning the costs of the 1977 sale among the parties. Sellers, by the trial court's calculations, received 61 percent of the contract purchase price. In adjusting the equities under SDCL 21-50-2, we find no error in allowing Sellers only 39 percent of the sale expense as a credit.
The fourth, fifth and sixth allegations are difficult to analyze, as Sellers cite no authority beyond Dow v. Noble, 380 N.W.2d 359 (S.D.1986), which makes no mention of income taxes. As in Dow, at 361, where this Court denied a buyer interest on a down payment, we, therefore, hold that the trial court was not clearly erroneous in disregarding these three claims. A relatively detailed analysis of caselaw involving foreclosure restitution, see G. Nelson and D. Whitman, Real Estate Finance Law, § 3.29, p. 100-108 (2nd. Ed.1985), also does not refer to these tax aspects. Sellers' tax arguments would take the Court far afield. Federal income tax liabilities *354 are not what these parties were contracting for. Their contract dealt with land and payments.
Summarizing Sellers' six claims made under this issue, we find error on only the second, double counting of improvements. The remaining five claims are without merit.
IV. Default Judgment
There was no abuse of discretion in the trial court's decision to set aside the default judgment against Buyer Antoinette Winther. A motion to vacate a judgment under SDCL 15-6-60(b) is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Haggar v. Olfert, 387 N.W.2d 45 (S.D.1986); Strouse v. Olson, 397 N.W.2d 651 (S.D.1986). In this regard we note that no certificate of readiness for trial was served on Antoinette, in violation of SDCL 15-6-40(b). Although 15-6-40(b) provides that such requirements may be dispensed with by the trial judge, he need not do so. The statute is permissive in phraseology. In the circumstances of this case, we do not deem the trial court's decision on this issue to be an abuse of discretion. Further, this default judgment, as a practical matter, seems only to affect the trial court's distribution of attorney's fees, part of which were, initially, to be paid by Antoinette. Sellers attorney's fees are, by the trial court's later judgment, to be deducted from the Buyers' restitution, so this issue is an irrelevance.
B. Buyers' Notice of Review (No. 16389)
Buyers challenge the trial court's adjustment of equities on four grounds: 1) A WEB water easement penalty should not be counted as a detriment to the Sellers; 2) the trial court failed to determine what portion of the Sellers' attorney's fees were reasonable; 3) interest on the value of Buyers' payments should be considered as a benefit to Sellers; and 4) increases in "ASCS crop bases" should be considered as benefits to Sellers. We disagree.
The WEB penalty issue arose through Buyers' decision to deny WEB, a rural water supplier, an easement across the property, necessitating changes in WEB's construction. To hook up to the WEB water distribution system, owners of the property, as a result of Buyers' decision, must pay a penalty of $11,958. The evidence at trial indicates that one well had gone dry on the property, and the artesian water from the well dug by Buyers stained clothing. Further, the appraisals of Chase and Gerhanter included access to WEB water as part of their determination of the property's value, a factor which is offset, to a degree, by the WEB penalty. The trial court did not err on this question.
As to attorney's fees, these were awarded as part of the balancing of equities under SDCL 21-50-2. "We believe that the Sellers' detriment, including fees accrued in actions related to the property, also is properly part of the trial court's balancing process under SDCL 21-50-2." Dow v. Noble, 380 N.W.2d 359, 360 (S.D.1986). These fees are not awarded as costs. Dow, id. The trial court, thus, did not err in its award. Also, Elden Winther's proposed Finding of Fact No. 14 conceded that Sellers had incurred $7,903 in attorney's fees, as a detriment.
We likewise reject Buyers' argument that interest should have been calculated on the principal payments received by the Sellers. This appears to be a variant of an argument this Court rejected in Dow, where the Buyers argued, without citing authority, that interest should have been calculated on their down payment. Now, as then, no authority is cited. Lacking same, we dismiss the argument. Corbly v. Matheson, 335 N.W.2d 347 (S.D.1983). As in Dow, at 361, we hold that "the trial court was not clearly erroneous in not considering this item."
Finally, we deem Elden Winther's assertion that increased participation in ASCS crop programs should have been considered, to be waived. Again, no authority is cited which indicates error by the trial court. See Dow, at 361.
Affirm in part, reverse and remand in part.
*355 WUEST, C.J., and MORGAN, J., concur.
SABERS and MILLER, JJ., dissent.
SABERS, Justice (dissenting).
I dissent.
If courts are going to take on the responsibility under SDCL 21-50-2 and attempt to adjust the equities of the parties, they must be prepared to do the whole job, not just a part. The failure to balance all the equities of the parties is contrary to the letter and spirit of SDCL 21-50-2, Heikkila v. Carver, 378 N.W.2d 214 (S.D.1985), and Prentice v. Classen, 355 N.W.2d 352 (S.D.1984).
First, the court erred in not considering all the costs of the original sale. It is patently unfair to allow "Sellers only 39 percent of the sale expense as a credit[;]" Sellers incurred 100 percent. Since Sellers will necessarily incur additional expenses when the property is resold, all of the original expenses must be considered a detriment.
Second, the majority rejects, without any substantial analysis, Sellers' claims of error concerning failure to consider
Sellers' increased income tax liability from repossession;
Income tax paid by Sellers on interest payments received from Buyers; and
Income tax savings by Buyers.
The reasons given by the majority in rejecting Sellers' claims are wholly inadequate. Apparently, they are 1) Dow v. Noble, 380 N.W.2d 359 (S.D.1986), makes no mention of income taxes, 2) Dow denied a buyer interest on a down payment, 3) tax aspects are not referred to in a certain authority on foreclosure restitution, 4) tax considerations "would take the Court far afield" and 5) tax liabilities were "not what these parties were contracting for [as t]heir contract dealt with land and payments." In effect, the majority is saying: We have never considered these claims before, so we cannot consider them now.
The irony of these statements is obvious. The court is bold enough to change this contract for deed to a mere lease arrangement, but shies away from tax considerations because that is "not what these parties were contracting for." These parties were not contracting for a lease arrangement either, but that did not stop the majority. If the majority is going to attempt to equitably adjust the rights of the parties by focusing on the detriments and benefits to the Sellers, then the tax issues must be taken into consideration since the tax consequences of the transaction significantly impact Sellers' detriments and benefits. For example, if the Sellers' taxes will increase as a result of the repossession, that is as much a detriment to Sellers as any "Miscellaneous Expenses in Land Recovery." By the same token, the tax on the interest payments cannot be ignored. If the measuring criteria is the amount of benefit to Sellers, then it is illogical to use the amount of Buyers' expense in the analysis. While Buyers may have paid $114,179.36 in interest, Sellers did not benefit by that amount. Sellers' true benefit is the amount of interest retained after taxes, and that is the amount that should be used.
A Simpler Approach to Equitable Adjustment
The difficulty and complexity of including tax calculations in the court's analysis of benefits and detriments is readily apparent. In fact, it is probably impossible to equitably adjust all the rights of the parties by focusing upon the benefits and detriments to Sellers. Therefore, this court would be better served by an approach that attempts to enforce the agreement entered into by the parties, rather than an approach that attempts to convert a contract for deed into a lease agreement. As explained in Freyfogle, Vagueness and the Rule of Law: Reconsidering Installment Land Contract Forfeitures, 1988 Duke L.J. 609 (1988):
[A] vendor should have the right to obtain the benefit of her contract bargain.... Full compensation is the normal rule in contract breach settings; there is no particular reason to deviate from the rule here. In determining the amount of the vendor's recovery, courts should focus on the proper method of *356 damage calculation. The purchaser's payments, as well as the purchaser's equity, are irrelevant. What is relevant is simply the value of the property (at the date on which the vendor recovers it) and the unpaid contract amount.
Id. at 650. It cannot be said this approach is inequitable as there is nothing inequitable about giving the Sellers the benefit of their bargain.
Equitable adjustment of the rights of the parties is still easily achieved under the above described approach. As explained by Professor Freyfogle:
Courts can calculate the restitution amount simply: the purchaser is entitled to the excess of the property's value over the unpaid purchase price. A state, as a policy matter, might allow the vendor to retain some portion of the excess as extra compensation for her injuries.
Id. To equitably adjust the rights of the parties, the court simply subtracts the payment due Sellers from the property value and Buyers are entitled to a refund of the excess. However, Sellers should be allowed to offset their foreclosure expenses against the refund so they are not penalized for enforcing the contract. Here, Sellers were entitled under the contract to a balloon payment of $123,585.44 plus interest from the due date, November 1, 1987. In lieu of such a payment, the property, with a value adjudged to be $147,356.00, will be returned to Sellers. In this situation the equitable adjustment works out as follows:
property value: $147,356.00
LESS
balloon payment: $123,585.44
interest at 7.5% from 11-1-87
to 10-1-89: $ 18,374.85
___________
Refund: $ 5,395.71
LESS
foreclosure expense offset: $ 21,293.21
___________
Amount due Buyers: ($ 15,897.50)
Under this approach, Sellers do not receive a windfall. Instead, they incur a loss of almost $16,000 in unrecovered foreclosure expenses. In other words, Sellers still fall short of receiving the full benefit of their bargain. At the same time, the court's interference with the contract is minimal.
I have great empathy for this elderly, retired farm couple who sold their farm and moved to town in 1977 in hopes of a financially secure and peaceful retirement, but must now pay $19,878.84, plus interest, to regain possession of their farm. This area of the law, as interpreted and implemented by the majority, is a can of worms. It may well be the death of contract for deed sales of farms, homes, and businesses. For example, see the problems identified in Freyfogle, supra, and in my writing in Safari, Inc. v. Verdoorn, 446 N.W.2d 44, 47 (S.D.1989).
I am authorized to state that MILLER, J., joins in this special writing.
NOTES
[1] SDCL 15-6-60(b)(1) allows relief from final judgment on grounds of mistake, inadvertence, surprise or excusable neglect.
[2] R.C.1919, § 2915 provided, in pertinent part:"The court in such actions shall have the power to equitably adjust the rights of all the parties thereto."
[3] Balancing the equities between the parties is, indeed, a difficult job for a circuit court judge. However, although the minority writer characterizes this area of the law as "a can of worms," this law had been on our statute books since 1913. Throughout our state's history, circuit court judges have labored under many factual scenarios to balance the equities during times of the Great Depression, drouth, wars, prosperity and periods of high bankruptcy filings. The minority's phraseology that destruction of real estate contracts looms in South Dakota due, apparently, to a reliance on Dow and SDCL 21-50-2 is conjectural hyperbole.
[4] Dow is retroactive, here, in the sense that Dow (1986), and its predecessors, Heikkila v. Carver, 378 N.W.2d 214 (S.D.1985) and Prentice v. Classen, 355 N.W.2d 352 (S.D.1984) were all handed down well after this contract was signed in 1977. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1299443/ | 53 Wash. 2d 294 (1958)
333 P.2d 650
S.R. LETTERMAN, Respondent,
v.
THE CITY OF TACOMA et al., Appellants.[1]
No. 34568.
The Supreme Court of Washington, En Banc.
December 18, 1958.
Marshall McCormick, Robert R. Hamilton, and Allan R. Billett, for appellants.
Horace G. Geer, for respondent.
John Spiller, amicus curiae.
FINLEY, J.
This is an action against the city of Tacoma and the Firemen's Pension Board of that city. Plaintiff, an active fireman, seeks a judgment declaring his pension rights.
S.R. Letterman began working for the city of Tacoma as a fireman on January 17, 1929, and was steadily employed *296 thereafter for twenty-eight years. Effective on January 26, 1957, the board retired Mr. Letterman at his request. He was retired pursuant to Laws of 1929, chapter 86, p. 144. On February 4, 1957, however, the board decided that it had made a mistake, and determined that plaintiff Letterman should be retired pursuant to Laws of 1955, chapter 382, p. 1563. Plaintiff advised the board that he did not wish to retire if he came under the 1955 pension act. The board, therefore, at its regular meeting on February 18, 1957, rescinded its order retiring plaintiff under the 1929 pension act and reinstated him to all of his rights, privileges and responsibilities as an active fireman. Plaintiff has remained on active duty ever since.
It is plaintiff's position that he is entitled to have his pension rights determined under the pension act which was in force when he commenced his employment as a fireman. This would be the pension act created under Laws of 1919, chapter 196, p. 668. The board contends that plaintiff has elected to have his pension rights determined by Laws of 1955, supra, and that he is bound by such choice.
The facts in this action are stipulated as outlined above. The trial court entered judgment declaring plaintiff's pension rights shall be determined by the 1919 pension act when he files a proper application for retirement. In reaching this decision, the trial court held that §§ 16 and 17 of the 1955 act, as applied to plaintiff, are unconstitutional. The city of Tacoma and the board have appealed. For convenience, we will refer to the appellants as the Board throughout the remainder of this opinion.
The first firemen's relief and pension act was contained in Laws of 1909, chapter 50, p. 88. Between 1909 and 1955, the legislature passed five additional acts relating to firemen's relief and pensions: Laws of 1919, chapter 196, p. 668; Laws of 1929, chapter 86, p. 144; Laws of 1935, chapter 39, p. 100; Laws of 1947, chapter 91, p. 581; and Laws of 1955, chapter 382, p. 1563. The acts in 1919, 1929 and 1935 were in the nature of amendments to the original law as passed in 1909. Each of the amendments purported to modify and determine the pension and relief rights of all who were then *297 active firemen, and, also, to determine the rights of those firemen who subsequently would be employed. The 1947 act completely revised the law, but it does not apply to any fireman who was employed prior to January 1, 1947. The 1955 act is an amendment to the 1947 law. It provided that all firemen who commenced employment prior to the effective date of the 1955 act must file a written election with their respective boards if they desire to retain their pension rights under previous acts. Any fireman active on the effective date of the act had sixty days in which to file his written election; any fireman on disability retirement had sixty days after he returned to active duty within which to file his written election. Any fireman who, within the prescribed period, did not file his written election to retain his rights under previous acts automatically elected to come under the provisions of the 1955 act. The 1955 act became effective on June 8, 1955. Respondent was an active fireman at that time. He did not file a written election to retain his rights under prior acts within the sixty-day period, which expired on August 21, 1955.
[1] During the period of time in which respondent had to make his election, the board asserted and respondent believed that he had an election between the 1935 act and the 1955 act. It was not until several months later on April 19, 1956 that the decision of this court in Bakenhus v. Seattle (1956), 48 Wn. (2d) 695, 296 P. (2d) 536, cast doubt on the validity of the board's assertion. The Bakenhus case specifically dealt with the constitutionality of the 1937 police pension act as applied to Mr. Bakenhus; but the principle used in reaching that decision is general in nature. The principle is: An employee who accepts a job to which a pension and relief plan or system is applicable contracts for a pension and relief plan or system substantially in accord with the then existing legislation governing the same; modification of a pension and relief plan or system can be effected without the consent of an employee if the changes are equitable as to such employee.
Before we can intelligently discuss the proper application of the 1955 act, we must determine what pension rights *298 respondent had under prior acts in the light of the Bakenhus principle.
[2] Respondent's prior pension rights were determined by the latest act which could constitutionally be applied to him. Eisenbacher v. Tacoma (1958), ante p. 280, 333 P. (2d) 642. The 1919 act was in force when respondent commenced his employment. The 1947 act, by its own terms, was not intended to apply to a fireman such as respondent, employed prior to 1947. Thus, his pension rights prior to the 1955 act were determined by the 1919 act unless either the 1929 act or the 1935 act could constitutionally be applied to him.
Comparing the 1919 act with the 1929 act, we find the following benefits in the 1929 act: (a) pension benefits for a widow of a service pensioner or disability pensioner were increased from one half of the deceased fireman's pension to the full amount of the deceased fireman's pension; (b) children of a deceased fireman who are over eighteen years of age, and incompetent, were made eligible to receive a pension in certain instances; (c) pension benefits were provided during periods of sickness incurred in the line of duty; (d) firemen who retired after one year of service, but before fifteen years, because of disability not incurred in the line of duty, or those who died from causes other than injuries incurred in the line of duty, were entitled to receive back their contributions plus interest; and (e) the contributions from the fund to the funeral expenses of firemen were increased.
The following detriments were enacted into the 1929 law: (a) the language granting the pensions was changed to eliminate any possibility that it might be construed as granting a pension which would fluctuate in amount with variations in the salary of active firemen holding the same rank which a retired fireman held at the time of his retirement; the pensions were clearly to become fixed in amount at the time the fireman retired; (b) the term widow was defined so as to exclude a wife who married a fireman after he was drawing a pension; and (c) a procedure was enacted for raising the payroll percentage deductions from one and *299 one-half per cent to as high as four per cent for use in case a property tax should have to be levied to maintain the integrity of the fund.
[3, 4] The burden of establishing facts which demonstrate the unconstitutionality of a statute rests upon the one who asserts its unconstitutionality. Frach v. Schoettler (1955), 46 Wn. (2d) 281, 280 P. (2d) 1038; Casco Co. v. Public Utility District No. 1 (1951), 37 Wn. (2d) 777, 226 P. (2d) 235. The record in the case before us is devoid of any facts which would establish that respondent was not put in as good or better position relative to his pension and relief rights by the 1929 act as he was under the 1919 act. It follows that the 1929 act can validly be applied to respondent.
[5, 6] We must next determine whether the 1935 act can be validly applied to respondent without his consent. The one major change made by the 1935 act was to place a maximum limitation of one hundred twenty-five dollars per month on all pensions commencing thereafter. A pension is deferred compensation and a substitute for earning power. Bakenhus v. Seattle, supra. The effect of the maximum limitation imposed by the 1935 act was to fix firemen's pension rights at one figure, no matter what the changes in the economy might be during the remaining years of their active duty changes which would be reflected in their salary while they were still on active duty status. The benefits granted by the 1935 act are clearly not sufficient to counter-balance the loss of pension rights resulting from the imposition of the one hundred twenty-five dollars maximum pension limitation. See Bakenhus v. Seattle, supra; and Eisenbacher v. Tacoma, supra. The 1935 act could not constitutionally be applied to respondent as a limitation on his pension rights. It follows from the foregoing analysis that respondent's pension rights prior to the 1955 act were governed by the 1929 act.
We turn now to a consideration of the effect of the 1955 act on these pension rights of respondent.
Respondent contends that the 1955 act is unconstitutional *300 as applied to him, because it only gave him the option to elect between the 1935 act or the 1955 act. It is his position that his substantial rights are affected by this forced election, since the value of his pension rights are substantially reduced under either option.
Appellant, on the other hand, contends that the 1955 act does not in any way change or impair respondent's substantial rights. It is appellant's position that the 1955 act merely modifies or changes the remedy or procedure to be followed by respondent in obtaining the pension plan he desires; that it merely sets up an election procedure whereby he can choose to retain his former pension rights or to come under the new act.
We have serious doubts as to the validity of appellant's analysis of the effect of the 1955 act relative to substantive versus remedial rights. But assuming, arguendo and without deciding, that appellant is correct, it does not necessarily follow that respondent is now foreclosed from claiming his rights under the 1929 act.
[7-9] By its terms the 1935 act applied to respondent; by its terms the 1947 act reserved to respondent his rights under the 1935 act; by its terms the 1955 act gave respondent an election between his rights under the 1935 act, as reserved through the 1947 act, or the 1955 act without court action. Respondent could not know that the 1935 act was unconstitutional as applied to him; and, indeed, that fact was not established until this court determined it in this action. The language used in the 1955 act and in the 1947 act is broad enough to refer to pension rights obtained under acts prior to 1935, once the 1935 act has been determined to be unconstitutional as applied as a limitation on the pension rights of a particular fireman. Thus, the 1955 act is broad enough to give respondent a choice or election between the 1929 act and the 1955 act. But, at the time respondent had to make the election, both the board and respondent were under the impression that his prior rights were limited by the 1935 act both parties were mistaken as to the facts surrounding his election. It is well settled that an act done *301 through ignorance or mistake does not constitute an election of remedies unless the other party has so changed his position that he can set up an estoppel. Edwards v. Tremper (1957), 49 Wn. (2d) 677, 305 P. (2d) 1062; State v. The Praetorians (1945), 143 Tex. 565, 186 S.W. (2d) 973, 158 A.L.R. 596; 5 Corbin on Contracts 903, § 1220. No facts which would effect an estoppel appear in the record before us in this case.
[10] The 1955 act gives the respondent sixty days in which to file a written election to be bound by his pension rights under prior acts. Not until this decision is filed can respondent know what his prior rights are. It follows that respondent has sixty days after this decision is filed within which to file his written election to take under the 1929 act.
The judgment of the superior court should be modified accordingly. It is so ordered. Respondent will have his costs in this court.
MALLERY, DONWORTH, WEAVER, ROSELLINI, OTT, FOSTER, and HUNTER, JJ., concur.
HILL, C.J., concurs in the result.
March 2, 1959. Petition for rehearing denied.
NOTES
[1] Reported in 333 P. (2d) 650. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621738/ | 733 So. 2d 1261 (1999)
David O. HICKS, Sr., Plaintiff-Appellee,
v.
Teresa L. HICKS, Defendant-Appellant.
No. 98-1527.
Court of Appeal of Louisiana, Third Circuit.
May 19, 1999.
*1262 Bradley O. Hicks, Leesville, for David O. Hicks, Sr.
Daniel M. Landry, III, Lafayette, for Teresa L. Hicks.
BEFORE: DOUCET, C.J., THIBODEAUX, COOKS, WOODARD, and AMY, Judges.
WOODARD, Judge.
Ms. Teresa Hicks, defendant in this divorce suit, appeals a judgment awarding primary residency of all three of her minor children to her husband, Mr. David Hicks. Ms. Hicks testified that Mr. Hicks had a history of being physically violent with her during the marriage. Finding that the trial court made a legal error in failing to apply the Post-Separation Family Violence Relief Act, La.R.S. 9:364, we reverse the award of joint custody to both parents, assigning residency during the school year to Mr. Hicks and the summer months to Ms. Hicks. In compliance with the Post-Separation Family Violence Relief Act, we award custody of the three children to Ms. Hicks and order that all visitation by Mr. Hicks be supervised until such time that he has satisfied all requirements of said Act.
FACTS
Mr. and Ms. Hicks married in 1982. They separated in December of 1997, and Mr. Hicks filed for divorce on December 18, 1997. Pursuant to their mutual agreement, Mr. Hicks petitioned to have joint custody of the three children be awarded to both parents, the primary domicile of Nicole, almost fourteen, to be with Mr. Hicks, and the primary domiciles of David, Jr., age seven, and Kristin, age twentythree months, to be with Ms. Hicks.
Accordingly, Ms. Hicks accepted temporary lodging with a family friend and subsequently moved with David, Jr. and Kristin to Indiana, where she has relatives, and then to Canada, approximately two hours away. On January 6, 1998, Mr. Hicks filed a supplemental petition, seeking custody of all three children. He alleged that the two older children were enrolled in school in Vernon Parish; that Nicole had specifically requested that she be allowed to remain there, where she was involved in many school activities; that Ms. Hicks moved frequently; and that he could provide a more stable environment.
Ms. Hicks reconvened in March of 1998. She sought and was granted a restraining order against Mr. Hicks because of his alleged previous acts of violence. She also requested custody of all three children and possession of certain community property. At trial in May of 1998, Ms. Hicks testified that she had established herself and the two small children in a home in Canada with a family which had offered her assistance. Having been a seamstress and babysitter, she also became a housekeeper and grounds keeper and was allowed to live in the home rent free until her financial situation improved.
*1263 Nicole had remained with her father, who was a logger in Vernon Parish, as she was very active in school related activities, such as cheerleading and softball management. Ms. Hicks' March 1998 reconventional demand stated that she and Nicole had decided that it was in Nicole's best interest that she now live with her mother. However, at trial in May of 1998, Ms. Hicks testified that she wanted to do what was best for Nicole and wanted to consider Nicole's own wishes, as well, in light of her school activities and interests. She indicated that her ultimate concern was that the three children maintain visitation with each other. The trial judge took testimony from Nicole in chambers with attorneys for both parties present but did not record the testimony.
Ms. Hicks testified at trial that, during the marriage, Mr. Hicks had been violent with her in the following ways:
(1) More than once, he has hit her in the stomach while she was pregnant, causing her to have miscarriages.
(2) More than once, he has broken brooms over her.
(3) He has picked her up with a two by four under her neck and thrown her off the porch.
(4) He has forced her to have sex with him several times against her will.
(5) He has grabbed her hand and squeezed it so hard into a ring she was wearing that the ring was almost broken, causing an indentation in her finger.
(6) He has hit her in the face, giving her a black eye.
(7) He has thrown her into a chair which caused her to hit her head against their fish tank.
(8) He has hit her in the mouth, breaking her teeth.
There was conflicting testimony regarding acts (5) through (8) above. However, acts (1) through (4) were not rebutted by any testimony from Mr. Hicks or witnesses on his behalf.
In July of 1998, although the trial judge made a finding that Mr. Hicks had been abusive towards his wife, he awarded custody of all three children to Mr. and Ms. Hicks jointly, designating Mr. Hicks as their primary custodian during the school year and Ms. Hicks their primary custodian during the summer months. In his written reasons, the trial judge stressed the importance of keeping the children together in a stable environment. He did not apply the Post-Separation Family Violence Relief Act but went directly to the twelve factors of La.Civ.Code art. 134 and found that it was in the best interest of the children that they live in Vernon Parish with their father.
ASSIGNMENTS OF ERROR
Ms. Hicks alleges the following assignments of error:
1. The trial court erred in failing to apply the standards under La.R.S. 9:362 concerning child custody where there is a history of family violence.
2. The trial court erred in taking testimony of a minor child in chambers without a reporter to transcribe the testimony.
LAW
Custody in this case turns on whether the Post-Separation Family Violence Relief Act, La.R.S. 9:361-369, should have been applied. This Act's purpose and significance are better understood in the context of its historical landscape.
Domestic violence has been recognized as one of this nation's great problems. Congress noted that it is estimated that at least two million women each year are battered by an intimate partner and that crime data from the Federal Bureau of Investigation records reveals that about 1,500 women are murdered by husbands or *1264 boyfriends each year.[1] After Congressional hearings were held, recognizing these and other disturbing family violence occurrences, on October 27, 1992, President George Bush signed into law the Battered Women's Testimony Act of 1992, 42 U.S.C. § 10702. The Act authorized a study of the admissibility of expert testimony concerning battered women and mandated the development of training materials to assist courts with Battered Women's Syndrome expert testimony.[2] In 1994, Congress passed the Violence Against Women Act (codified, as amended, in scattered sections of 16, 18, 42 U.S.C.) This act established a new civil rights cause of action for women who have been the victims of gender-motivated violent crimes.[3] Further, purchase or ownership of a gun by anyone convicted of a misdemeanor of a domestic violence offense has been prohibited by the Domestic Violence Offenders Gun Ban Act of 1996, 18 U.S.C. § 922(g)(9).
Consistent with this national trend in the federal government and the state governments in 1992, the Louisiana legislature enacted the Post-Separation Family Violence Relief Act, La.R.S. 9:361-369.[4] The Act provides protection for the battered spouse and her children in several ways. Application of the Act is mandatory when there has been one serious injury, resulting from abuse, or simply more than one act of violence during the marriage. The court is not permitted to award custody or unsupervised visitation with the children to the perpetrator of violence until the perpetrator has completed a treatment program. If both parents have a history of spouse abuse, custody is to be awarded to the parent less likely to continue the domestic violence. Most importantly for our decision in the instant case, the Act creates a statutory presumption against awarding sole, or joint, custody to the perpetrator of domestic violence.
Because we find reversible legal error in the trial court's failure to apply the provisions of La.R.S. 9:361, et.seq., to the facts in this case, we will conduct a de novo review of the record and render judgment on the merits. Jenkins v. Rougeau, 97-257 (La.App. 3 Cir. 10/8/97); 702 So. 2d 841, writ denied, 97-2849 (La.1/30/98); 709 So. 2d 715; White v. State Farm Mut. Auto. Ins. Co., 97-1704 (La.App. 3 Cir. 4/29/98); 713 So. 2d 618, writ denied, 98-1429 (La.7/2/98); 724 So. 2d 741.
POST-SEPARATION FAMILY VIOLENCE RELIEF ACT
The uncontradicted facts in this case establish sufficient acts of violence, which Mr. Hicks committed against Ms. Hicks, to trigger application of the Post-Separation Family Violence Relief Act. It is well settled that the trier of fact must accept uncontradicted testimony as true, even if it comes from a party, unless circumstances in the record cast suspicion on the reliability of the testimony. Rideaux v. Franklin Nursing Home, 95-240 (La. App. 3 Cir. 11/22/95); 664 So. 2d 750, writ *1265 denied, 95-3093 (La.2/16/96); 667 So. 2d 1058. There is no evidence in the record which would cast suspicion that the following acts of violence were not committed by Mr. Hicks against his wife, namely: that he hit her while she was pregnant, causing her to have miscarriages; that he has broken several brooms over her; that he has picked her up with a two by four under her neck and thrown her off the porch; and that he has forced her to have sex with him several times against her wishes. We note that forced sex between a husband and a wife is considered rape, a battery. State v. Probst, 623 So. 2d 79 (La.App. 1 Cir.), writ denied, 629 So. 2d 1167 (La. 1993).
The relevant provisions of La.R.S. 9:364 state:
A. There is created a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children. The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence. The presumption shall be overcome only by a preponderance of the evidence that the perpetrating parent has successfully completed a treatment program as defined in R.S. 9:362, is not abusing alcohol and the illegal use of drugs scheduled in R.S. 40:964, and that the best interest of the child or children requires that parent's participation as a custodial parent because of the other parent's absence, mental illness, or substance abuse, or such other circumstances which affect the best interest of the child or children. The fact that the abused parent suffers from the effects of the abuse shall not be grounds for denying that parent custody.
. . . .
C. If the court finds that a parent has a history of perpetrating family violence, the court shall allow only supervised child visitation with that parent, conditioned upon that parent's participation in and completion of a treatment program. Unsupervised visitation shall be allowed only if it is shown by a preponderance of the evidence that the violent parent has completed a treatment program, is not abusing alcohol and psychoactive drugs, and poses no danger to the child, and that such visitation is in the child's best interest.
(Emphasis added.)
As this statute is clear and unambiguous, it is to be applied, to the facts in this case and in similar future cases, as written. La.Civ.Code art. 9. Only in this way, can the remedial purposes of the Act, which are to protect battered spouses and their children and insure counseling for those who commit acts of domestic violence, be achieved.
In Simmons v. Simmons, 26,414 (La. App. 2 Cir. 1/25/95); 649 So. 2d 799, 802, that court stated its view of some criteria by which to determine the application of the Act:
In deciding whether a parent has a "history of perpetrating family violence," the trial court should look at the entire chronicle of the family, remaining mindful that the paramount goal of the legislation is the children's best interest. Such factors as the number, frequency, and severity of incidents will be relevant, as well as whether the violence occurred in the presence of the children, and to what extent there existed provocation for any violent act. Stated differently, the determination must be based on a review of the total circumstances of the family, and necessarily involves a weighing of the evidence.
(Emphasis added.)
We note that the second circuit reads into the statute that a reviewing court, in the application of the Act, should consider "whether the violence occurred in the presence of the children" and "to what extent there existed provocation for any *1266 violent act." We expressly reject that language as being inconsistent with the mandate of the Act and its remedial purposes. It is also inconsistent with the requirements of La.Civ.Code art. 9 that the Act be applied as written.
Once this Act has been triggered, we do not look to the La.Civ.Code art. 134 factors relating to the best interest of the children until the perpetrator has satisfied all requirements delineated in the Act.
Turning to the facts of the case before us, for purposes of analyzing whether the trial judge erred in not applying the Act, we have discounted those acts of violence which Mr. Hicks contradicted, even though Mrs. Hicks provided corroborating evidence for some of them. The only acts we have considered in this review are those which Mr. Hicks did not refute, namely: that he caused the deaths of unborn children; he beat her with brooms; he picked her up with a two by four under her neck and threw her off the porch; he forced her to have sex against her will, on numerous occasions. When such testimony is unrefuted, Ms. Hicks did not have to bring forth corroborating evidence. See generally Chargois v. Guillory, 97-439 (La.App. 3 Cir. 10/29/97); 702 So. 2d 1068. Nevertheless, she did do so concerning the black eye, the bruises she sustained from time to time, and Mr. Hicks having beaten her with a broom stick on at least one occasion, causing her face to be swollen beyond recognition. For example, her mother testified that one night Ms. Hicks came to her, hysterical and unrecognizable.
[S]he came through the door and ... I just looked at her, I didn't even recognize her and I just went on with what I was doing and she said, mother, and, I turned around and looked at her, and I said, oh my goodness, I didn't use quite that word, but she was hysterical. Her eyes were swollen, she was just totally upset. I went up to her and I said, what's wrong and she showed me her back and her arm and I said, what happened and how did you do that? She told me that he had hit her with a broom stick....
Ms. Hicks' mother testified that, also, she had seen bruises on her daughter at other times.
Other corroborating evidence included the testimony of an elderly gentleman, a nonrelative, Mr. Minze, who testified that he saw Ms. Hicks right after Mr. Hicks gave her the black eye and that Mr. Hicks admitted to him that he had done it.
Without considering these corroborated acts of violence, Ms. Hicks has, nevertheless, satisfied her burden of proof under the Act. She has proved, by a preponderance of the evidence, that Mr. Hicks committed, at least, one act of violence against her, resulting in a serious injurythe beatings while she was pregnant which caused miscarriages, resulting in the deaths of unborn children. She also proved more than two acts of violence which were not refuted. The Act only requires one serious act of violence resulting in serious injury, or simply, more than one act of violence to establish a history of violence and to create a presumption that no parent, who has a history of perpetrating family violence, shall be awarded sole or joint custody of children. "The presumption shall be overcome only by a preponderance of the evidence that the perpetrating parent has successfully completed a treatment program...." La.R.S. 9:364(A). Mr. Hicks did not rebut this presumption.
The Post-Separation Family Violence Relief Act, La.R.S. 9:361-369 is clearly applicable in this case. The trial court's failure to apply it requires us to reverse its decision. We award custody of the three children to Ms. Hicks and order that all visitation by Mr. Hicks shall be under supervised conditions until he can prove to the trial court that he has satisfied all requirements of the Act.
THE FAILURE TO RECORD NICOLE HICKS' TESTIMONY IN CHAMBERS
Ms. Hicks contends that the trial court erred in taking testimony of the *1267 minor children in chambers without a record for review by the court. The trial record reflects that the first witness called was Nicole Hicks, age fourteen, and the court recessed to hear her testimony in chambers, out of the presence of her parents, and in the presence of both parties' attorneys. However, there is no transcript of her testimony in the record, and the record reflects that there was no recording of that testimony.
Because of our decision regarding the first assignment of error, it is unnecessary for us to render a decision concerning the second assignment of error. However, we note that the law in this circuit requires that an "in chambers" interview of a child in a child custody case "must be conducted with a reporter present and a record made of the questioning by the court and the answers of the witnesses." Dykes v. Dykes, 488 So. 2d 368, 371 (La.App. 3 Cir.), writ denied, 489 So. 2d 1278 (La.1986), (emphasis added.); see also Watermeier v. Watermeier, 462 So. 2d 1272 (La.App. 5 Cir.), writ denied, 464 So. 2d 301 (La.1985). It is not harmless error, as such action by a trial court makes impossible our ability to thoroughly and properly review the record of the trial between the parties.
CONCLUSION
The trial court erred in failing to apply the provisions of the Post-Separation Family Violence Relief Act, La.R.S. 9:361-369, to the facts in this case. Accordingly, we reverse its award of joint custody to the parents with Mr. Hicks being designated as the primary custodial parent during the school year and Ms. Hicks custodial parent during the summer. Ms. Hicks is awarded sole custody of the children. All visitation by Mr. Hicks shall be under supervised conditions until such time that he can prove to a court that he has successfully completed a treatment program and satisfied all other requirements of the Act. Mr. Hicks is cast with the costs of this appeal.
REVERSED AND RENDERED WITH INSTRUCTIONS.
DOUCET, C.J., dissents and assigns reasons.
AMY, J., dissents and joins in the reasons assigned by DOUCET, C.J.
DOUCET, Chief Judge, Dissenting.
I would affirm the judgment of the trial court. The decision in the case sub judice was based solely on the testimony of witnesses called by each side; no physical evidence was introduced. The witnesses gave conflicting testimony regarding the facts in the case.
It is well settled that, on appellate review of a factual determination, the reviewing court may not set aside the factfinder's findings of fact in the absence of error or unless they are clearly wrong. Also, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So. 2d 840 (La.1989); Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978); Canter v. Koehring, 283 So. 2d 716 (La.1973). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State, Through DOTD, 617 So. 2d 880 (La. 1993).
When findings are based on determinations regarding the credibility of witnesses, the manifest error clearly wrong standard demands great deference to the trier of fact's findings. For, only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Canter, supra at 724; Virgil v. American Guarantee & Liability Ins. Co., 507 So. 2d 825, 826 (La.1987); Boulos v. Morrison, 503 So. 2d 1, 3 (La.1987); Williams v. Keystone General Contractors, Inc., 488 *1268 So.2d 999, 1001 (La.1986); Johnson v. Insurance Co. of North America, 454 So. 2d 1113, 1117 (La.1984); Berry v. Livingston Roofing Co., 403 So. 2d 1247, 1249 (La.1981); Crump v. Hartford Accident & Indemnity Co., 367 So. 2d 300, 301 (La.1979).
Calais Square, LTD. v. LeDoux, 98-577, pp. 4-5 (La.App. 5 Cir. 1/19/99); 722 So. 2d 1214, 1216.
Further, in matters concerning the custody of children, the following is well settled:
The trial court's determination in child custody matters is entitled to "a great deal of discretion" because the trial judge has a "superior opportunity to observe the persons claiming custody and the witnesses who testified at the trial." State in the Interest of Two Minor Children, 499 So. 2d 697, 700 (La. App. 3 Cir.1986) (citations omitted). "The trial judge is in a better position to evaluate the best interest of a child ... and his decision will not be disturbed on review absent a clear showing of abuse." State in the Interest of Sylvester, 525 So. 2d 604, 608 (La.App. 3 Cir.1988) (citations omitted).
Fowler v. Fowler, 98-953, p. 4 (La.App. 3 Cir. 12/9/98); 722 So. 2d 125, 128.
Accordingly, I dissent and would affirm the judgment of the trial court.
NOTES
[1] Virginia Jackson Hopkins, Esq., Family Violence Impacts Children Also, 11 NOV W. Va. Law. 16 (1997) ("At least half of all battering husbands also batter their children. The more severe the abuse of the mother, the worse the child is abused.")
[2] Pamela Posch, The Negative Effects of Expert Testimony On the Battered Women's Syndrome, 6 Am. U.J. Gender & L. 485 (1998) ("Legal recognition of BWS has been an important advancement for abused women.")
[3] Marcellene Elizabeth Harn, A Thirteen Amendment Defense of the Violence Against Women Act, 146 U. Pa. L.Rev. 1097 (1998) ("The VAWA civil rights remedy represents the first time Congress has declared that violence against women is gender discrimination. The House Conference Report, for example, states that `Congress has found that crimes of violence motivated by gender constitute bias crimes in violation of the victim's right to be free from discrimination on the basis of gender.'")
[4] Lois Schwaeber, Esq., Domestic Violence: The Special Challenge in Custody and Visitation Dispute Resolution, 10 NO. 8 Divorce Litig. 141 (1998) ("However, in disputes where there are allegations of domestic violence, the central issue is the safety of the mother and the children.") | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920331/ | 921 So. 2d 760 (2006)
William F. NELSON, Jr., Appellant,
v.
CITY OF SNEADS, Florida, Appellee.
No. 1D05-2067.
District Court of Appeal of Florida, First District.
February 22, 2006.
*761 Richard D. Barlow and Bradley S. Odom, of Kievit, Odom & Barlow, Pensacola, for appellant.
Gwendolyn P. Adkins and Gerald Shane Ferenchik, of Coppins, Monroe, Adkins, Dincman & Spellman, P.A., Tallahassee, for appellee.
WOLF, J.
Appellant, the former Chief of Police of the City of Sneads (City), challenges a final summary judgment entered in favor of the City on grounds that appellant was barred by the doctrine of laches from bringing his action for reinstatement, back pay, and benefits following his termination, which he alleged occurred at an improperly noticed meeting of the City's town council. Because there were genuine issues of material fact which precluded entry of the summary judgment, we reverse.
In order for the City to prevail on the asserted affirmative defense of laches, it had to prove by clear and convincing evidence each of the following:
1) conduct on the City's part giving rise to the situation upon which the complaint was based;
2) failure of appellant, having had knowledge or notice of the City's conduct, to assert his rights by suit;
3) lack of knowledge on the part of the City that appellant would assert the right on which he based his suit; and
4) injury or prejudice to the City if relief was accorded to appellant.
See Van Meter v. Kelsey, 91 So. 2d 327, 330-32 (Fla.1956); see also McIlmoil v. McIlmoil, 784 So. 2d 557, 563-64 (Fla. 1st DCA 2001).
When the inferences that can be drawn in favor of the party against whom the defense of laches is asserted create material factual disputes as to one or more of the elements necessary to establish the defense, appellate courts have generally found summary judgment based on the doctrine of laches inappropriate. See, e.g., Barineau v. Barineau, 662 So. 2d 1008, 1009 (Fla. 1st DCA 1995) (reversing summary judgment where, among other things, knowledge of party against whom defense of laches was asserted raised factual questions "call[ing] into play various principles of equity affecting [her] right to the relief sought"); Budnick v. Silverman, 805 So. 2d 1112, 1114 (Fla. 4th DCA 2002) (reversing summary judgment where parties' presuit dealings "strongly suggest[ed]" that party asserting defense of laches "should have expected to be sued" and, therefore, did not demonstrate the absence of a factual dispute as to his lack of knowledge that the other party would assert the right upon which the lawsuit was based).
*762 We conclude that there were material factual questions with regard to two of the elements of the City's affirmative defense of laches: 1) the reasonableness of appellant's delay in asserting his rights by suit, and 2) the sufficiency of the City's knowledge that appellant would be asserting his rights by filing a lawsuit. We, therefore, reverse the summary judgment in favor of the City and remand for further proceedings.
BARFIELD and BROWNING, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920339/ | 921 So. 2d 740 (2006)
Rebecca S. STECKLER, Appellant,
v.
Marc E. STECKLER, Appellee.
No. 5D05-669.
District Court of Appeal of Florida, Fifth District.
February 17, 2006.
*741 Richard D'Amico, Daytona Beach, for Appellant.
No Appearance for Appellee.
ORFINGER, J.
The former wife, Rebecca S. Steckler, appeals the trial court's denial of her motion to stay enforcement proceedings and determine jurisdiction, and granting the former husband's motion for contempt and enforcement of final judgment. The former wife and the former husband had three children together. The parties separated in July 2003, at which time the former wife and the children moved to North Dakota. The parties' marriage was dissolved by final judgment in the circuit court of Volusia County, Florida in April 2004. The final judgment provided, in pertinent part, that the parties were to have shared parental responsibility, but that the former wife was to be the primary residential parent for the children, who reside with her in North Dakota. The final judgment also provided that the children spend four consecutive weeks during the summer and Christmas in even-numbered years with the former husband in Florida.
In August 2004, the former husband filed a motion for contempt and for enforcement of the final judgment. The former husband alleged that he had tried to contact the former wife about visitation during the summer of 2004, but she refused to accept his letters or return his phone calls. After due consideration, the trial court modified the custody order, allowing the former husband to have visitation with the children for their entire Christmas break in 2004 as compensation for his inability to have visitation during the summer, as required by the final judgment.
The former husband visited the children in North Dakota during Thanksgiving of 2004. Following the former husband's Thanksgiving visit, the former wife filed a petition for protection against the former *742 husband in North Dakota on behalf of herself and the children. In the petition, the former wife alleged that the former husband posed an immediate and present danger to her and her children. Specifically, the former wife claimed that the former husband abused her while he was in North Dakota for Thanksgiving. The North Dakota trial court granted a temporary domestic violence protection order and set a date for a hearing on the former wife's petition. The former husband appeared at the hearing via telephone without counsel. On December 27, 2004, the North Dakota trial court issued a two-year domestic violence protective order against the former husband. The order provided, in pertinent part:
[Former husband] may call the children once each week on Wednesday between the hours of 7:00 p.m. and 8:00 p.m. central standard time. The children may choose not to talk to their father if that is their wish.
. . . .
[Former husband] has waived his right to Christmas visitation for the year 2004. After Christmas 2004, visitation with the two younger children shall continue as previously ordered. The oldest child may choose not to visit if that is her desire.
In the interim, in compliance with the Florida modified visitation order, the former husband purchased airplane tickets for the children to visit him in Florida over the Christmas holidays. The former husband gave the former wife a copy of the children's itinerary, but she did not send them to visit the former husband, contending that the North Dakota court had determined that the former husband had "waived" his Christmas visit.
The former husband then filed a motion to enforce the visitation order and sought sanctions against the former wife. Because of the North Dakota protection order, the former wife filed a motion to stay the enforcement proceeding to consider the former husband's motion for contempt and enforcement of the final judgment, and to determine jurisdiction. In her motion, the former wife argued that two proceedings were pending in different states concerning the custodial rights of the parties; therefore, the trial court should communicate with the North Dakota court to determine jurisdiction under Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"),[1] and the trial court should afford the North Dakota protective order full faith and credit. After a hearing on the motions, the Florida court denied the former wife's motion to determine jurisdiction, reasoning that since the North Dakota judge did not contact him as required under the UCCJEA, the courts of Florida had not relinquished jurisdiction, and jurisdiction over child custody still remained in Florida. The trial judge determined that the former husband was entitled to make up visitation to compensate for the missed Christmas visit. This appeal followed.
The former wife contends that the trial court erred in failing to afford North Dakota's domestic violence protective order against the former husband full faith and credit under 18 U.S.C.A. § 2265 (2005). The former wife argues that the federal full faith and credit statute preempts any conflicting Florida statutes, including section 61.515, Florida Statutes (2005), which grants Florida courts exclusive, continuing jurisdiction over its child custody decisions.
*743 The United States Code Annotated provides, in pertinent part:
(a) Full faith and credit.Any protection order issued that is consistent with subsection (b) of this section by the court of one State or Indian tribe (the issuing State or Indian tribe) shall be accorded full faith and credit by the court of another State or Indian tribe (the enforcing State or Indian tribe) and enforced as if it were the order of the enforcing State or tribe.
(b) Protection order.A protection order issued by a State or tribal court is consistent with this subsection if
(1) such court has jurisdiction over the parties and matter under the law of such State or Indian tribe; and
(2) reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person's right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by State or tribal law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent's due process rights.
18 U.S.C.A. § 2265 (2005). According to the former wife's petition for protection, the most recent incident of abuse occurred in North Dakota. We find that since the alleged abuse occurred in North Dakota, the courts of that state had jurisdiction over the parties to issue an order for protection relating to the incident. The former husband appeared by telephone at the hearing on the former wife's motion for protective relief and was given a reasonable opportunity to be heard in compliance with 18 U.S.C.A. § 2265. Consequently, we conclude that the provisions of 18 U.S.C.A. § 2265 have been satisfied, and North Dakota's domestic violence protective order was entitled to full faith and credit.
However, since the protective order affected Florida's initial custody determination, the protective order is also governed, in part, by the UCCJEA. See § 61.503(4), Fla. Stat. (2005) (defining a "child custody proceeding" to include any proceeding involving protection from domestic violence, in which child custody is an issue). The former wife argues that the federal full faith and credit provisions should preempt section 61.515, Florida Statutes, which, as part of the UCCJEA, grants Florida courts exclusive, continuing jurisdiction over its child custody decisions. We see no conflict between the two statutes. While the UCCJEA generally gives the state that made the initial custody determination exclusive, continuing jurisdiction over those decisions, in emergency situations, the UCCJEA permits other states to obtain temporary emergency jurisdiction to protect a child. § 61.517, Fla. Stat. (2005); N.D. Cent.Code § 14-14.1-15. Since North Dakota modified Florida's initial custody determination in the form of a domestic violence protective order designed to protect both the former wife and the children, we conclude that the North Dakota court acted within the temporary emergency jurisdiction of the UCCJEA.
Next, the former wife claims that the trial court failed to comply with the UCCJEA. Specifically, the former wife argues that the trial court erred by (1) failing to conduct a hearing to determine jurisdiction under the terms of the UCCJEA and (2) failing to contact the North Dakota judge who issued the protective order to determine jurisdiction as *744 required by the UCCJEA.[2] The former wife contends that the trial court erred in refusing to conduct a hearing to determine jurisdiction under the inconvenient forum factors enumerated in section 61.520, Florida Statutes (2005). Under section 61.520, any party may raise the issue of inconvenient forum. Section 61.520(2) provides that "[b]efore determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, ...." Included among the factors a court should consider is whether domestic violence has occurred and is likely to continue in the future, which state could better protect the parties and the child, and the length of time the child has resided outside of the state. Id. In her motion, the former wife requested that the Florida trial court conduct a hearing with the North Dakota trial court to determine which court should exercise jurisdiction. She argued that since North Dakota is better situated to deal with domestic abuse that has occurred in the past and the children have lived in North Dakota since June 2003, North Dakota is the most convenient forum. The Florida trial court disagreed, stating it "shall retain exclusive jurisdiction of the parties, subject matter and parties' minor children, pursuant to [the UCCJEA]."
A trial court's ruling on whether a forum is inconvenient is discretionary. McDaniel v. Burton, 748 So. 2d 1072, 1075 (Fla. 4th DCA 1999). "Discretion ... is abused when the judicial action is arbitrary, fanciful, or unreasonable" or "where no reasonable man would take the view adopted by the trial court." Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). While it is unclear whether the trial court considered the relevant factors enumerated in section 61.520(2) since it did not issue any findings of fact on the issue, we nonetheless conclude that the trial judge acted within his discretion in retaining jurisdiction and declining to determine that Florida is no longer a convenient forum for child custody proceedings. Under section 61.515, Florida Statutes (2005), Florida retains exclusive, continuing jurisdiction over child custody issues. The Florida Supreme Court has held that "[a] custody proceeding properly begun in Florida remains under Florida's jurisdiction until Florida determines otherwise, unless virtually all contacts with the state clearly have been lost." Yurgel v. Yurgel, 572 So. 2d 1327, 1332 (Fla.1990); see also Miles v. Hyman, 836 So. 2d 1097, 1098-99 *745 (Fla. 5th DCA 2003). Neither scenario has occurred here as Florida declined to relinquish jurisdiction, and so long as the former husband is still a resident of Florida, sufficient contacts still remain in the state such that Florida may retain jurisdiction. See Pettinato v. Johnson, 674 So. 2d 148 (Fla. 2d DCA 1996); Lamon v. Rewis, 592 So. 2d 1223, 1225 (Fla. 1st DCA 1992) (holding that contact with the original state exists when the father continued to reside in that state). Thus, the trial court's decision was reasonable and did not constitute abuse of discretion.
Finally, the former wife argues that the trial court erred in failing to contact the North Dakota trial judge upon learning of North Dakota's protective order. We agree that the trial judge should have communicated with the judge in North Dakota under the terms of section 61.517, Florida Statutes (2005). As previously discussed, the UCCJEA provides the courts of each signatory state with temporary emergency jurisdiction over child custody when it is "necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse." § 61.517(1), Fla. Stat. (2005); N.D. Cent.Code § 14-14.1-15. Section 61.517(4) further provides, in pertinent part:
A court of this state which is exercising jurisdiction under §§ 61.514-61.516, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.
§ 61.517(4), Fla. Stat. (2005). Here, the Florida trial court had exclusive, continuing jurisdiction over issues of custody under section 61.515, as it issued the initial custody determination and had not otherwise relinquished jurisdiction. Therefore, in accordance with section 61.517(4), once the trial judge learned of North Dakota's domestic violence protective order, he should have contacted the issuing North Dakota judge to resolve any jurisdictional conflicts. At the hearing, the trial judge asserted that it was the North Dakota judge's responsibility to contact him, stating, "I wasn't under [any] compulsion to act. The judge in North Dakota was." While it is true that the North Dakota judge erred in failing to communicate with the Florida judge before issuing the protective order, this does not negate the requirement imposed on the Florida judge under section 61.517(4) to make contact with his North Dakota counterpart.
We affirm the order of the trial court as to its determination of jurisdiction. We remand with instructions that the trial judge contact the judge in North Dakota to resolve any conflicts that exist between the North Dakota protective order and the Florida child custody order under section 61.517, Florida Statutes (2005). After that, and depending on the current situation, the trial court may order make up visitation, if appropriate.
AFFIRMED IN PART; REMANDED.
GRIFFIN and THOMPSON, JJ., concur.
NOTES
[1] The UCCJEA was adopted by Florida in 2002 and by North Dakota in 1999. See §§ 61.501-.542, Fla. Stat. (2005); N.D. Cent. Code §§ 14-14.1-01 to -37 (2005). All provisions pertinent to this case are similarly, if not identically, worded.
[2] In her brief, the former wife also argues that North Dakota had jurisdiction to modify Florida's initial custody determination under the UCCJEA. See § 61.516, Fla. Stat. (2005); N.D. Cent.Code § 14-14.1-14. Although the North Dakota court did not have jurisdiction to modify the existing visitation arrangement outside of a temporary emergency situation, this was an error on the part of the North Dakota court and need not be considered here. See § 61.516, Fla. Stat. (2005); N.D. Cent.Code § 14-14.1-14 (stating that in order to modify an initial custody order, a court must have had jurisdiction to make an initial custody determination and: (1) the court where the initial custody determination was made determines that it no longer has exclusive, continuing jurisdiction, or that a court of another state would be a more convenient forum; or (2) a court determines that the child, the child's parents, and any person acting as a parent no longer reside in the state that issued the initial custody determination); § 61.514, Fla. Stat. (2005); N.D. Cent. Code § 14-14.1-12 (2005) (stating that in order to have initial jurisdiction, the child must live in the state or have lived in the state six months prior to the commencement of the proceeding; in this case, the proceeding commenced on February 27, 2002, when the divorce petition was filed, yet, the children did not move to North Dakota until June 2003). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920371/ | 921 So. 2d 1219 (2006)
SUCCESSION OF Samuel McKAY, Jr.
No. CA 05-603.
Court of Appeal of Louisiana, Third Circuit.
February 1, 2006.
*1220 Thomas Rockwell Willson, Attorney at Law, Alexandria, LA, for Intervenor/Appellee, Polly Dauzart.
Jerry Lytel Lavespere, Jr., Attorney at Law, Alexandria, LA, for Intervenor/Appellee, Lula Mae Shotlow.
Kelvin G. Sanders, Attorney at Law, Alexandria, LA, for Intervenor/Appellant, Caldwell J. Burgess.
William Alan Pesnell, The Pesnell Law Firm, Shreveport, LA, for Plaintiff/Appellee, Roosevelt Matthew Bellman.
Shannan L. Hicks, Jeansonne & Remondet, Shreveport, LA, for Intervenors/Appellees, Ronald Scott, Kassandra Scott Ward.
Christopher Michael Sylvia, Faircloth, Vilar & Elliott, L.L.C., Alexandria, LA, for Secondary Intervenor/Appellant, Samuel Pierre Cooper.
Samuel Pierre Cooper, In Proper Person, Alexandria, LA, Secondary Intervenor/Appellant.
Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
EZELL, Judge.
This is an appeal filed by both Caldwell J. Burgess and Samuel Pierre Cooper from a judgment granting exceptions of prescription, no cause of action, and no right of action filed against their petitions of intervention in the Succession of Samuel McKay, Jr. The trial court relied on La. Civ.Code art. 209 in granting the exceptions. However, while the appeals were pending, the Louisiana Legislature enacted Acts 2005, No. 192, § 1, which was effective June 29, 2005, and changed the law regarding the time period for bringing a paternity action.
*1221 FACTS
On June 6, 2002, Samuel McKay, Jr., died. Thereafter, on June 12, 2002, Roosevelt Bellman filed a petition to be appointed provisional administrator of McKay's succession. In that petition Bellman declared that McKay had only one child, Samuel Pierre Cooper. Attached to the petition was a notarized verification by Cooper that he is the only heir of McKay. Also attached to the petition was an affidavit of death and heirship executed by Caldwell J. Burgess stating that McKay had only one child, Cooper. W. Brian Maillian executed a similar affidavit.
On April 15, 2003, Burgess filed a petition for intervention alleging that he was the child of McKay. Bellman, as the succession representative, filed exceptions of prescription and no cause/no right of action.
On September 11, 2003, Cooper also filed a petition for intervention. Cooper's intervention was also opposed by Bellman and other interested parties with exceptions of prescription and no cause/no right of action. Cooper filed an amending petition alleging that La.Civ.Code art. 209 was unconstitutional. Burgess also filed an amending petition on the same grounds.
A hearing on the exceptions and constitutional claims was held on September 7, 2004. Finding La.Civ.Code art. 209 applicable, regarding proof of filiation, the court sustained the exceptions and dismissed the petitions of intervention of both Cooper and Burgess. Both Cooper and Burgess appealed the judgment.
LOUISIANA CIVIL CODE ARTICLE 209
It is not disputed that neither Cooper nor Burgess were legitimate children nor had they been formally acknowledged or filiated by McKay. Section C of Article 209 provided for the time limits for proving filiation by a child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment as follows:
The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child's birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.
At the time McKay filed his petition alleging to be an heir of McKay, he was fifty-four years old. Cooper was thirty-six years old when he filed his petition. Obviously, the two men were well beyond nineteen years old and their claims for filiation had long prescribed. Clearly their claims had prescribed under Article 209. Both Cooper and Burgess claim the trial court erred in finding that Article 209 is constitutional and granting the exceptions of prescription and no cause/no right of action.
The constitutionality of Article 209 was clearly resolved by the Louisiana Supreme Court in Succession of Grice, 462 So. 2d 131 (La.1985), appeal dismissed, 473 U.S. 901, 105 S. Ct. 3517, 87 L. Ed. 2d 646 (1985), which upheld the constitutionality of Article 209. Based on Grice, we agree with the trial court's ruling that Article 209 is constitutional and forecloses the constitutional attacks of Cooper and Burgess.
APPLICATION OF LOUISIANA CIVIL CODE ARTICLE 197
In his brief to this court, Bellman, as the provisional administrator of McKay's succession, *1222 has brought the enactment of new La.Civ.Code art. 197 by 2005 La.Acts No. 192 § 1 to this court's attention. Article 197 was enacted after the trial court rendered its judgment. Cooper argues that the passage of Article 197 rectifies the iniquities of Article 209 and applies in this case.
Article 197 now provides:
A child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence.
For purposes of succession only, this action is subject to a peremptive period of one year. This peremptive period commences to run from the day of the death of the alleged father.
The enactment of Article 197 obviously changes the law in that a paternity action no longer has to be instituted within nineteen years of the child's birth or within one year from the parent's death, whichever occurred first. There is a time limit of one year from the parent's death for succession purposes. Now, regardless of age, the child has one year from his father's death to institute the action. See comments (e) and (f) to Article 197. The effective date of Act 192 was June 29, 2005.
Where the law has changed during the pendency of a suit and retroactive application of the new law is permissible, the new law applies on appeal even though it requires reversal of a trial court judgment which was correct under the law in effect at the time it was rendered.
Segura v. Frank, 93-1271, p. 16 (La.1/14/94), 630 So. 2d 714, 725, cert. denied, 511 U.S. 1142, 114 S. Ct. 2165, 128 L. Ed. 2d 887 (1994).
Bellman argues that Article 197 is unconstitutional because it disturbs vested rights, especially in a case such as the present one where prescription has accrued. Bellman argues that this is especially so in the case of peremption where the rights are actually destroyed by passage of the peremptive period, and the rights have vested in other persons.
When the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition, exception, motion, or answer. Reeder v. North, 97-239 (La.10/21/97), 701 So. 2d 1291. The unconstitutionality of a statute cannot be raised in a memorandum, opposition, or brief, as those documents do not constitute pleadings. Id.; See also Unwired Telecom Corp. v. Parish of Calcasieu, 03-732 (La.1/19/05), 903 So. 2d 392. Therefore, we will not consider the issue of whether Article 197 is unconstitutional.
Since Cooper and Burgess's claims have already prescribed, the issue is whether the passage of Article 197 revived their prescribed claims. The supreme court addressed the issues of revival of prescribed claims by the legislature in Chance v. American Honda Motor Co., Inc., 93-2582 (La.4/11/94), 635 So. 2d 177. Explaining the issue the supreme court stated:
Although prescriptive statutes are generally procedural in nature, the revival of an already prescribed claim presents additional concerns. For while the defendant does not acquire anything during the running of the prescriptive period, once the time period has elapsed, the legislature grants the defendant the right to plead the exception of prescription in order to defeat the plaintiff's claim. La.Code Civ.P. arts. 927 & 934. Because the defendant acquires the right to plead the exception of prescription, a change in that right constitutes a substantive change in the law as applied to the defendant. See St. Paul Fire & *1223 Marine Ins. Co. v. Smith, 609 So. 2d 809, 817 (La.1992) ("Substantive laws either establish new rules, rights, and duties or change existing ones."); Thomassie v. Savoie, 581 So. 2d 1031, 1034 (La.App. 1st Cir.1991) ("[I]f a statute which is remedial or procedural also has the effect of making a change in the substantive law, it must be construed to operate prospectively only."). Thus, were we to interpret the amendment at issue to allow the revival of prescribed causes of action, the substantive rights of the defendant would be materially changed because he would be stripped of this acquired defense. Guided by the principles established in [La.Civ.Code] article 6[[1]], we require, at the very least, a clear and unequivocal expression of intent by the legislature for such an "extreme exercise of legislative power."
Id. at 178 (footnote omitted) (first alteration in original).
The issue of revival of a prescribed claim was once again addressed by the supreme court in Cameron Parish School Board v. Acands, Inc., 96-895 (La.1/14/97), 687 So. 2d 84. In that case, the supreme court found that the enactment of La.R.S. 9:5644, relative to prescription of actions involving asbestos abatement, contained no "clear and unequivocal" expression by the legislature to revive claims that had already prescribed. Reviewing the language of the statute, the supreme court stated:
First, the language used in the statute does not contain any reference to revival of prescribed claims. Moreover, the legislative history of this statute gives no indication of any intent on the part of the legislature that this statute should apply to revive causes of action which had already prescribed under the law existing prior to the statute's enactment.
Id. at 91.
The supreme court observed that "use by the legislature of the word or phrases `action,' `any action,' `all actions,' and `any and all actions' in these prescriptive statutes" was supportive of its determination that the legislature had not expressed a clear intent to revive an already-prescribed cause of action. Id.
Similarly, in the present case, 2005 La. Acts No. 192 § 3, provides that "[t]he provisions of this Act shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date." We find no "clear and unequivocal" expression by the legislature that Article 197 revives filiation claims which have already prescribed. It is clear that the intent of the legislature was to ensure that the provisions of the Act applied to causes of action that had not prescribed but were existing or already in litigation on June 29, 2005, the effective date of the Act. We, therefore, find that Article 197 is not applicable to these already-prescribed claims.
With this finding, we additionally note that it would not be necessary to address any constitutional issues regarding Article 197 even if a proper pleading had been filed. See Cameron Parish Sch. Bd., 687 So. 2d 84.
For the reasons discussed in this opinion, the judgment of the trial court granting Defendants' exceptions of prescription and no cause/no right of action is affirmed. Costs of this appeal are to be shared *1224 equally between Samuel Cooper and Caldwell Burgess.
AFFIRMED.
NOTES
[1] Louisiana Civil Code Article 6 provides that: "[I]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920376/ | 921 So. 2d 873 (2006)
Ronald DELORENZO, Appellant,
v.
STATE of Florida, Appellee.
No. 4D04-3607.
District Court of Appeal of Florida, Fourth District.
March 8, 2006.
*874 Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
HAZOURI, J.
Ronald Delorenzo appeals from his conviction of possession of cocaine. Delorenzo *875 pleaded no contest to a charge of possession of cocaine while reserving his right to appeal the trial court's ruling on his motion to suppress. Delorenzo filed a motion to suppress arguing that the evidence was obtained as the result of an unlawful search. The motion was denied. The trial court ruled that the motion to suppress was dispositive. We reverse.
At the hearing on the motion to suppress, Officer Paul Vardakis was the only witness. He testified as to the events that occurred the night Delorenzo was arrested. At 3:30 in the morning, Vardakis saw a vehicle in a shopping center parking lot, with its motor running and all of its lights off and someone seated in the driver's seat. Vardakis wanted to make sure the individual was okay, so he approached the legally parked vehicle. Delorenzo's eyes were closed. Vardakis knocked on the window a couple of times which eventually awakened Delorenzo. Once Delorenzo realized Vardakis's presence, he put his hand in his right pocket. Vardakis testified that at that point he thought Delorenzo had a weapon or was trying to hide something. Vardakis repeatedly asked Delorenzo to take his hand out of his pocket. Vardakis testified that Delorenzo's digging was not leisurely, but very aggressive digging in his pocket, which raised Vardakis's suspicion. Delorenzo finally took his hand out of his pocket and then stepped out of the car.
During the hearing, Vardakis testified that he did not recall whether he asked Delorenzo to step out of the car. At his deposition, Vardakis stated that he asked Delorenzo to step out of the vehicle. On cross-examination, Vardakis was asked about this discrepancy. He testified that he could not recall which actually occurred. In its order, the trial court made a factual determination that Delorenzo stepped out of his car upon Vardakis's instruction to do so.
When Delorenzo stepped out of the car, he once again put his hand in his right pocket. Vardakis again directed Delorenzo to take his hand out of his pocket. Vardakis testified that Delorenzo had baggy, carpenter-type pants on and as a result, Vardakis could not see whether there was a bulge. Vardakis did not know whether Delorenzo had a weapon in his pocket and was concerned about his safety. After asking Delorenzo to remove his hand from his pocket, Vardakis asked Delorenzo to consent to a search for officer safety, to which Delorenzo agreed. Vardakis testified that the exchange was as follows: "do you mind if I search you, do you have any weapons on you, for my safety, he said sure." Then Delorenzo stated, "I just have money and matches in my pockets." Vardakis testified that Delorenzo knew he was referring to his pockets. Instead of doing a "pat down," Vardakis proceeded to search Delorenzo, pulling out a pack of matches. As the matches were pulled out, a green baggy containing a white powdery substance which was later determined to be cocaine, fell to the ground.
In denying Delorenzo's motion to suppress, the trial court judge stated as follows:
The Court finds that the encounter consisted of an officer seeing a citizen sitting in a car with the engine running, which indicated, first of all, that he may be ill, he may be under the influence of an alcoholic beverage, or a controlled substance.
So, for the officer just to ignore the fact that the Defendant is asleep or passed out, and may be suffering from carbon monoxide poisoning, I think they have a right to knock on the window.
When he knocked on the window, the defendant put his hand into his pocket, *876 and it is a clear indication, based on the officer's experience, that the defendant may be armed. . . .
So, at this point, when the officer asked him to step out, we have a reasonable, articulable suspicion, based on his experience, that the defendant may be under the influence of an alcoholic beverage, or a controlled substance, or may be armed.
So, the step of asking him to step out was not a 4th amendment violation.
The Court further finds that the officer says he gave consent. The Defendant never testified otherwise.
So, the Court finds that it was a consentual (sic) search, and that the Defendant gave him legal consent to search, and during that consentual (sic) search, the cocaine was found. The motion to suppress is denied.
The trial court is vested with the authority to determine the credibility of the witnesses and the weight of the evidence in ruling on a motion to suppress. Although we are required to accept the trial court's determination of the historical facts, a defendant is entitled to a de novo review of whether the application of the historical facts to the law establishes an adequate basis for the trial court's finding of reasonable suspicion. See Lee v. State, 868 So. 2d 577, 579 (Fla. 4th DCA 2004); see also Curtis v. State, 748 So. 2d 370, 371 (Fla. 4th DCA 2000) (en banc).
Delorenzo argues that the encounter between himself and Vardakis went from a consensual encounter to an investigatory stop when Vardakis demanded that Delorenzo pull his hand out of his pocket. Delorenzo further argues that at the time of the investigatory stop, Vardakis did not have a reasonable suspicion that Delorenzo had committed, was committing, or was about to commit a crime, which is required for an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Delorenzo further asserts that because Vardakis did not have a well-founded, articulable suspicion of criminal activity at the time that he directed Delorenzo to remove his hand from his pocket and step out of his car, that notwithstanding his consent to a search for weapons the discovery of the cocaine must be suppressed. We agree.
There are three levels of police-citizen encounters. See Johnson v. State, 785 So. 2d 1224, 1226 (Fla. 4th DCA 2001). The three levels are: (1) consensual encounter where a citizen voluntarily complies with a police request or chooses to ignore it, (2) an investigatory stop which requires a "well-founded, articulable suspicion of criminal activity," and (3) "an arrest supported by probable cause that a crime has been or is being committed." Id. at 1226.
Vardakis testified that while he was still in his car, Delorenzo noticed Vardakis's presence and put his hand in his pocket. It was at this point that Vardakis asked Delorenzo to take his hand out of his pocket. Ordering an individual to take his hand out of his pocket ordinarily turns a consensual encounter into a stop. See Lee, 868 So.2d at 580; Harrison v. State, 627 So. 2d 583, 584 (Fla. 5th DCA 1993). There are times during an officer's encounter with an individual, when the officer's observations may lead to a belief that the individual is armed and dangerous, a belief the officer did not hold when the encounter was initiated. Under certain factual circumstances this court has held that concern for an officer's safety may create reasonable suspicion warranting an investigatory stop. See Johnson, 785 So. 2d 1224; see also Brown v. State, 714 So. 2d 1191 (Fla. 4th DCA 1998). However, as pointed out in Brown, not every *877 "consensual encounter may escalate to an investigative stop simply because the officer generally has safety concerns." Brown, 714 So.2d at 1193.
In Brown and Johnson, this court affirmed the trial courts' denials of the motions to suppress under factual scenarios in which the initial encounters with the defendants were consensual, but because the law enforcement officers' concern for their safety and the conduct of the defendants created a reasonable suspicion, the consensual encounters were properly converted into investigatory stops.
In Brown, an officer was patrolling a high crime area when he witnessed Brown yell into a vehicle stopped at a traffic light. Brown then came up to the officer's car in an excited state telling the officer he was trying to get a ride home. Brown, 714 So.2d at 1191. The officer knew Brown from prior contacts and arrests, and when he asked Brown his name, Brown gave the officer a fictitious one. Id. at 1192. It was upon observing these facts in addition to the fact that Brown had his hands in his pockets, that the officer asked Brown to remove his hands from his pockets. Id. Brown complied but then reached into the front of his pants, underneath his waistband and turned away from the officer. Id. The officer testified that at that time, Brown was not free to leave. Id. At that point, the officer was in fear that Brown was going for a weapon. Id. The officer then reached around to grab Brown's hands. Id. The officer and Brown fell to the ground as the officer yelled to Brown to take his hands out of his pants. Id. Eventually, the officer gained control of Brown and placed him under arrest for resisting arrest. Id. A subsequent search of Brown revealed drugs. Id. The trial court determined that it was after Brown removed his hands from his pockets and turned around that a stop occurred and that the officer had reasonable suspicion to believe that Brown was going for a weapon and endangering the safety of the officer and the detention was lawful. Id. This court agreed that a stop occurred and based on the facts, the officer had the required reasonable suspicion. Id.
In Johnson, the pertinent facts noted by this court are as follows:
Deputy Alex McDonald, an eighteen year veteran of the Broward County Sheriff's Office, was on routine patrol at about 3:51 a.m. on October 5, 1999. He saw appellant Claude Johnson standing by a pay phone at a twenty-four hour gas station. Johnson was staring off into space. McDonald thought that Johnson looked lost, as if he had wandered off from the nearby hospital or nursing home. McDonald, during his seven years of patrolling that area, had encountered similar incidents with patients wandering the area.
After watching Johnson for a few minutes from the other side of the parking lot, the deputy drove his patrol car over to Johnson. At this point, he did not suspect Johnson of any criminal activity.
Johnson began to walk away from the cruiser. The deputy got out of the car. He called over, "Excuse me, sir. Can I speak to you a minute?" He did not order Johnson to stop. Johnson walked over and spoke to Deputy McDonald as they stood next to the pay phone.
The deputy asked Johnson his name and where he lived and began to fill out a field interview card. During this brief conversation, Johnson shook violently, which Deputy McDonald found to be unusual. Johnson appeared to be nervous. He had a bulge in his front left pocket, that "seemed to fill most of his pocket." He kept reaching toward the bulge. Concerned that Johnson might have a weapon in his pocket, Deputy *878 McDonald terminated the conversation and directed him to assume the pat down position.
Johnson complied. As soon as the deputy reached toward the front left pocket of his jeans, Johnson tried to break away and run. During the ensuing struggle, Johnson continued to reach for his pocket, amplifying the deputy's concern that he had a weapon. Unable to control Johnson's hands, the deputy took him to the ground and handcuffed him.
Deputy McDonald found two cigarette packs in Johnson's front left pocket. One pack was full of cigarettes. The other contained a glass tube with Brillo-like shavings and a white residue. The residue was later determined to be cocaine.
Johnson, 785 So.2d at 1225-26.
The factual scenarios in Brown and Johnson are significantly different than the facts of the instant case. In this case, Vardakis observed Delorenzo with his eyes closed in a car running with all of its lights off, in a shopping center parking lot. Delorenzo was awakened by the officer knocking on his window. When he saw the officer, Delorenzo put his hand in his pocket. At the point that Delorenzo complied with the request that he remove his hand from his pocket, Vardakis had no reasonable basis to fear for his safety. Vardakis did not see a bulge in Delorenzo's pocket and he saw no threatening gesture. Furthermore, Vardakis did not testify to any observation of Delorenzo which would support a reasonable suspicion that Delorenzo was ill or under the influence of alcohol or a controlled substance. To then order Delorenzo out of his vehicle and order him once again to remove his hand from his pocket constituted a stop without the requisite reasonable suspicion to make the detention lawful.
The state relies on State v. Baez, 894 So. 2d 115 (Fla.2004), to support the position that there were sufficient facts upon which the officer could have a reasonable articulable suspicion. We disagree. The issue in Baez is different than that in the present case. In Baez, the Florida Supreme Court found that no stop or seizure occurred where a police officer found Baez slumped over the wheel of his vehicle in a location where he should not normally have been, a dimly lit warehouse area at night. Baez, 894 So.2d at 117. Baez got out of his car voluntarily after the officer had knocked on his window and asked if he was all right. Id. at 115-16. After exiting his car, the officer asked for Baez's license and ran a check on it, at which point it was discovered that there was an outstanding warrant for his arrest. Id. at 116. The Court held "that Baez was not unreasonably detained while the officer ran a warrants check on Baez's driver's license." Id. While the court determined that no stop or seizure had occurred, it also said that "the officer did have a reasonable basis and reasonable suspicion to investigate Baez further." Id. at 117. This is the language relied upon by the state in the instant case. In particular, the court said that where Baez was slumped over in his van in an unusual spot, "[i]t was not unreasonable for the officer to proceed with the computer check when he had not yet eliminated reasonable concern and justified articulable suspicion of criminal conduct." Id. However, this language relied upon by the state is dicta because Baez did not involve whether the officer had reasonable suspicion. Therefore the state's reliance on it is misplaced.
Having found that Vardakis's interaction with Delorenzo went from a consensual encounter to an investigatory stop without the required reasonable suspicion, we conclude the investigatory stop was *879 illegal. The state argues and the trial court found that during the investigatory stop Delorenzo consented to a search. Consent given after police conduct determined to be illegal is presumptively tainted and deemed involuntary, unless the state proves by clear and convincing evidence that there was a clear break in the chain of events sufficient to dissolve the taint. See Scott v. State, 696 So. 2d 1335, 1336 (Fla. 4th DCA 1997); see also Faulkner v. State, 834 So. 2d 400, 403 (Fla. 2d DCA 2003). In the instant case, the state did not prove a break in events from the time Vardakis asked Delorenzo to remove his hand from his pocket while Delorenzo was in the car until Vardakis ordered Delorenzo out of the car and asked him if he could search him. With no break in the events, any consent Delorenzo provided remained tainted and cannot vitiate the illegality.
We reverse the trial court's order denying the motion to suppress and since the motion is dispositive, we direct that Delorenzo be discharged.
Reversed.
KLEIN, J., concurs.
WARNER, J., concurs specially with opinion.
WARNER, J., concurs specially.
I concur in the result. When the officer ordered Delorenzo to take his hand out of his pocket, the consensual encounter turned into a stop. See Harrison v. State, 627 So. 2d 583 (Fla. 5th DCA 1993). If that was not enough, the officer ordered Delorenzo out of the vehicle, which also constitutes a stop for Fourth Amendment analysis. See Popple v. State, 626 So. 2d 185 (Fla.1993). At either point, the officer did not have a founded suspicion that a crime was being committed, and he made no observations to support a reasonable belief that Delorenzo was armed and dangerous. See Johnson v. State, 785 So. 2d 1224 (Fla. 4th DCA 2001). The mere thrusting of one's hand in one's pocket in front of a police officer does not constitute conduct which supports a founded suspicion that an individual is armed and dangerous. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920562/ | 471 Pa. 238 (1977)
369 A.2d 1285
COMMONWEALTH of Pennsylvania
v.
Clenzell GASKINS, Appellant.
Supreme Court of Pennsylvania.
Argued March 29, 1976.
Decided February 28, 1977.
*239 Rudolph S. Pallastrone, Geo A. Bachetti, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Philadelphia, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION
O'BRIEN, ROBERTS, NIX and MANDERINO, Justices.
Appellant, Clenzell Gaskins, was convicted by a jury of murder of the first degree for the shooting death of Robert Speakes. After post-trial motions were denied, he was sentenced to life imprisonment. This direct appeal followed.[1]
While appellant presents several alleged errors for our review, we need only discuss one of them. Gaskins, a juvenile when he was arrested on this charge, argues that certain inculpatory statements given to the *240 police should be suppressed because he did not have an opportunity to consult with an interested adult or counsel before he waived his Miranda rights.[2]Commonwealth v. Stanton, 466 Pa. 143, 351 A.2d 663 (1975); Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1975); Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975); Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974). Because we agree with appellant's argument, we reverse and remand for a new trial.
Appellant was sixteen years and eleven months old at the time of his arrest. He was awakened by his mother at 8:20 a.m. and two police officers requested that he go with them because he was wanted for questioning concerning the death of Speakes. Appellant was taken to the Police Administration Building where he was questioned beginning at 9:40 a.m. Prior to this interrogation, Miranda warnings were read to him and he waived his rights. Gaskins gave his first inculpatory statement about 1:18 p.m. and this was followed by a formal confession later that afternoon. No consultation prior to his waiver was permitted at the Police Administration Building.
However, there is a conflict in the record as to whether appellant's mother was told, prior to his departure, *241 that she could accompany him. According to the police witnesses, she declined such an offer because of the need to care for the younger children at home. There is also a conflict as to whether she was given a phone number by the officers where she could reach her son. Nonetheless, it is clear that Mrs. Gaskins was not called prior to the questioning, nor was she notified before he gave his formal confession. In Chaney, we stated:
"[A]bsent a showing that a juvenile had an opportunity to consult with an interested and informed parent or adult or counsel before he waived his Miranda rights, his waiver will be ineffectual."
464 Pa. at 409, 350 A.2d at 830. The record fails to establish such an opportunity. Even if we accept the Commonwealth's testimony regarding what Mrs. Gaskins was told, we do not feel this meets what is necessary under McCutchen. This case is unlike Commonwealth v. McFadden, 470 Pa. 604, 369 A.2d 1156 (filed January 28, 1977), wherein we held that the requirements of McCutchen were satisfied. In that case, the defendant's mother was present when he was arrested, informed of the nature of the charge, and read his Miranda rights. Additionally, that record indicated a period of several minutes during which the mother could advise her son before any interrogation was initiated. 470 Pa. at 604, 369 A.2d at 1160. In the instant case, there is no showing that Mrs. Gaskins was aware either that her son was under any suspicion of actual involvement, or that she was informed of his rights under Miranda at the time he was taken from home. The mere offer to allow her to accompany her son in these circumstances cannot satisfy the requirement that an opportunity to consult be provided.
Because appellant did not have an opportunity to consult with an interested adult prior to waiving his rights *242 under Miranda, the statements should be suppressed.[3]Commonwealth v. Smith, 465 Pa. 310, 350 A.2d 410 (1976); Commonwealth v. Chaney, supra; Commonwealth v. Stanton, supra; Commonwealth v. McCutchen, supra; Commonwealth v. Roane, supra. We therefore reverse and remand for a new trial consistent herewith.
JONES, C.J., dissents.
POMEROY, J., filed a dissenting opinion in which JONES, C.J., and EAGEN, J., joined.
POMEROY, Justice, dissenting.
For the reasons stated in my dissenting opinion in Commonwealth v. Lee, 470 Pa. 401, 368 A.2d 690 [1977] (joined by Mr. Chief Justice JONES and Mr. Justice EAGEN), I dissent.
JONES, C.J., and EAGEN, J., join in this opinion.
NOTES
[1] We hear this appeal pursuant to the 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. 1976).
[2] It is urged by the Commonwealth, relying upon Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975), that this argument has been waived. However, Mitchell is inapplicable here. In that case, we held that a claim of unnecessary pre-arraignment delay not raised pre-trial, was waived even though it was prior to our decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). The fact that the penalty for a violation of the prompt arraignment rule had not been announced did not excuse counsel's failure to raise such a violation pre-trial. 464 Pa. at 126, 346 A.2d at 53. In the instant case, this confession was obtained on February 2, 1973. The suppression motion was heard and denied on June 29, 1973. Both events occurred well before our decision in Roane, the earliest of this line, was announced in November 1974. Because there was nothing comparable to a Rule of Criminal Procedure which, if violated, should have been known and raised by counsel, a Mitchell analysis is inappropriate. Counsel herein challenged the confession on a general voluntariness basis including the issue of a knowing waiver.
[3] The Commonwealth argues that McCutchen should not be applied retroactively. However, this Court has previously stated that we will apply that rule to cases which were on direct appeal at the time of the decision in that case. See, e.g., Commonwealth v. Smith, 465 Pa. 310, 350 A.2d 410 (1976); Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1975). This case was at that stage when McCutchen was decided. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/539152/ | 899 F.2d 1228
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Rebardo R. CUMMINGS, Petitioner,v.UNITED STATES POSTAL SERVICE, Respondent.
No. 89-3437.
United States Court of Appeals, Federal Circuit.
March 14, 1990.
Before RICH, Circuit Judge, BALDWIN, Senior Circuit Judge, and JOHN C. LIFLAND, Judge.*
PER CURIAM.
1
Rebardo R. Cummings appeals from the August 3, 1989 decision of the Merit Systems Protection Board (board), docket number SF07528910345, denying his Petition for Review of the Administrative Judge's (AJ's) initial decision. The AJ dismissed as untimely Cummings' appeal of the decision of the United States Postal Service (Service) which dismissed him from the position of mailhandler for possessing and distributing a controlled substance on Service premises. We affirm.
OPINION
2
Cummings asserts that the board abused its discretion by failing to find "good cause" for waiving the 20-day limit for appealing an adverse agency action. 5 CFR 1201.12 (1988). First, he asserts that the erroneous advice given by his union representative was "good cause" for his appeal being nearly five months late. However, in Rowe v. Merit Systems Protection Board, 802 F.2d 434, 437-38 (Fed.Cir.1986), we rejected the argument that reliance on the erroneous advice of a labor union lawyer, who was confused as to the proper appeal date, required the board to find "good cause" for delay. In addition, Cummings' argument is undermined by the Service's offer to advise him of his appeal rights. The Service's Letter of Decision removing Cummings states:
3
For further information on appeals procedures, contact the undersigned. Attached for your reference are a copy of the MSPB regulations and a copy of the appeal form.
4
Second, Cummings argues that his appeal was late because he was fighting a companion criminal indictment in federal court. According to Cummings, he would have abandoned his Fifth Amendment privilege against self-incrimination had he contemporaneously appealed the service's removal decision to the MSPB. This, he asserts, is "good cause" for not filing his appeal on time. We find this argument unpersuasive, and note that it was not raised before the board.
*
Judge John C. Lifland of the District of New Jersey, sitting by designation | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3073947/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
CHRISTIAN ALBERTO MARTINEZ, § No. 08-14-00130-CR
Appellant, § Appeal from the
v. § 210th District Court
THE STATE OF TEXAS, § of El Paso County, Texas
State. § (TC# 20110D01837)
§
ORDER
The Court GRANTS Mary Ann Marin’s third request for an extension of time within
which to file the Reporter’s Record until November 2, 2014. NO FURTHER REQUESTS FOR
EXTENSION OF TIME TO FILE THE REPORTER’S RECORD WILL BE CONSIDERED
BY THIS COURT.
It is further ORDERED that Marin Ann Marin, Roving Court Reporter for the 210th
District Court for El Paso County, Texas, prepare the Reporter’s Record and forward the same to
this Court on or before November 2, 2014.
IT IS SO ORDERED this 13th day of August, 2014.
PER CURIAM
Before McClure, C.J., Rivera and Rodriguez, JJ. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1621287/ | 725 N.W.2d 733 (2007)
STATE of Minnesota, Respondent,
v.
Arturo Montano MARTINEZ, Appellant.
No. A05-696.
Supreme Court of Minnesota.
January 11, 2007.
*734 John M. Stuart, State Public Defender, Office of the State Public Defender, Minneapolis, MN, Charles F. Clippert, Special Assistant Public Defender, Bethel & Associates, St. Paul, MN, for Appellant.
Lori Swanson, Attorney General, St. Paul, MN, Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for Respondent.
Heard, considered, and decided by the court en banc.
OPINION
PAGE, Justice.
On December 14, 2004, a Hennepin County jury found appellant Arturo Montano Martinez guilty of four counts of first-degree murder.[1] The trial court sentenced *735 Montano Martinez to life imprisonment on count one first-degree premeditated murder, and a 24-month consecutive sentence on count two first-degree premeditated murder committed for the benefit of a gang. Montano Martinez raises three issues on appeal: (1) whether the admission of accomplice Francisco Vargas's testimony from the trial of another accomplice was error; (2) whether the admission of certain gang expert testimony was error; and (3) whether Montano Martinez's sentence is lawful. For the reasons discussed below, we affirm Montano Martinez's conviction, but vacate his sentence and remand for resentencing consistent with this opinion.
The events giving rise to Montano Martinez's conviction began on the evening of December 2, 2000. That evening, Montano Martinez was standing outside near Lake Street and Portland Avenue in Minneapolis with members of the Latin Kings gang. A car with members of the rival 18th Streeters gang, including the victim, Ernesto Ayala, approached the group. Shots were fired from the car and two Latin Kings members were wounded. Montano Martinez assisted one of the victims into a vehicle and accompanied him to the hospital. After leaving the hospital, Montano Martinez went to the home of Roberto Lopez-Rios, where a group of Latin Kings members were hanging out with members of a separate gang, the Sureños 13. According to Vargas, at some point he, Montano Martinez, Lopez-Rios, and two Sureños 13 gang members set out to find 18th Streeters to shoot in retaliation for the earlier shooting. The plan was for either Vargas or Lopez-Rios to do the shooting. Just before the shooting, Lopez-Rios attempted to hand Vargas a gun but dropped it on the floor between Montano Martinez's legs. Montano Martinez then picked it up, got out of the vehicle by crawling over Vargas, and shot at Ayala.
Montano Martinez testified in his own defense. He testified that he was a member of the Latin Kings gang and had been a member for approximately six months before shooting Ayala. He further testified that the Latin Kings commit crimes of violence, including drive-by shootings and murders. When asked about the role of retaliation and respect, he testified that when an enemy of the Latin Kings "disrespects" a King, "something" has to be done and that "[something] is harm." With respect to the night of the Ayala shooting, Montano Martinez testified that he remembered very little because he had been drinking heavily and had smoked crack and marijuana.
In his testimony, Montano Martinez admitted getting into the vehicle with Lopez-Rios, Vargas, and two others, but denied knowing about a plan to retaliate against the 18th Streeters. Montano Martinez explained that he was not aware of what was going on because he was intoxicated and under the influence of drugs. Montano Martinez testified that he fell asleep in the car, but awoke when they encountered the 18th Streeters because he felt a gun fall into his lap. According to Montano Martinez, he picked up the gun and crawled out of the vehicle and then, out of fear, shot at Ayala.
Montano Martinez fled to Mexico, but turned himself in to authorities in California in April 2004. Two Minneapolis detectives interviewed Montano Martinez while he was in custody in California and recorded a statement in which Montano Martinez admitted killing Ayala. In that statement, *736 Montano Martinez indicated that on the night of the shooting the group in the car went to the scene of the shooting to retaliate against 18th Streeters gang members for the earlier shooting. He also indicated that the plan was for either Vargas or Lopez-Rios to be the shooter, but when Lopez-Rios dropped the gun, Montano Martinez picked it up, exited the vehicle, and shot Ayala. When the detectives asked Montano Martinez why he and the others in the vehicle went searching for the 18th Streeters, he responded, "[I]t was just some stupid stuff with gangs."
At trial, the state called Vargas to testify. Vargas had reached a plea agreement with the state. Pursuant to that agreement, Vargas pleaded guilty to a reduced charge of second-degree murder for the benefit of a gang and assault. The agreement required Vargas to testify at the trials of Lopez-Rios and Montano Martinez. Vargas complied with the plea agreement and testified at the trial of Lopez-Rios. However, when called to testify at Montano Martinez's trial, Vargas refused to testify against Montano Martinez, explaining that living in prison as a snitch was worse than the possibility of a longer sentence for refusing to testify. Based on Vargas's refusal to testify, the state offered Vargas's testimony from the Lopez-Rios trial as substantive evidence pursuant to Minn. R. Evid. 803(24) and State v. Ortlepp, 363 N.W.2d 39 (Minn.1985).
Montano Martinez's counsel objected and made the following argument:
[P]rocedurally, he should be made to sit here and answer questions and, if he refuses, Counsel could then impeach him on his prior record, prior statements, but to suggest that we go forward with just the statement from a prior trial without my having ability to cross-examine him I think would be reversible error, if that is where Counsel is going with this.
The state indicated that it had "no problem with Counsel's approach to present [Vargas] with his testimony and his answers." With the court's permission, the state proceeded by treating Vargas as a hostile witness and reading his trial testimony from the Lopez-Rios trial aloud. Early in this process, defense counsel objected, stating, "Your Honor, I'm going to object to this matter of the transcript. He has to allow the witness either to agree or disagree that that is an accurate, truthful statement he made at that time." The court allowed the state to continue reading Vargas his Lopez-Rios trial testimony, but required that the state allow Vargas to confirm his earlier testimony and to view each page of the transcript being read.
When the state finished taking Vargas through his testimony from the Lopez-Rios trial, the trial court compelled Vargas to testify, which he did on both direct and cross-examination. While counsel for Montano Martinez was able to elicit some testimony supportive of defense theories, Vargas's testimony was largely consistent with the testimony he gave at the Lopez-Rios trial.
Don Bautista, a former member of the Minnesota Gang Strike Force, testified as an expert on criminal gangs. Bautista, who had also testified at the Lopez-Rios trial, testified generally about the Latin Kings' colors, symbols, and turf and that, in December 2000, the Latin Kings had three or more members who individually or collectively engaged in a pattern of criminal activity. Bautista further testified that he was familiar with Montano Martinez and knew him to be a Latin Kings member. With respect to the importance of respect in gang culture and the way respect played into the Ayala shooting, Bautista testified:
*737 In this particular case, it's not brain surgery that the Latin Kings, well, as you say, the 18th Streeters at the time, were disrespected. They came by, they shot. Retaliation by the Latin Kings had to come soon after that and that is exactly what happened.
* * * *
[Ayala's death] benefited the Latin Kings, because they now got their respect back. Several hours before, like I said, when they were disrespected by the 18's and got shot at and 2 of their people were hit, they had to retaliate. Once they did retaliate, then they got their respect back.
There was also testimony that Montana Martinez told other people that he was involved in Ayala's shooting. Bryanna Redbird, who was with Montano Martinez when the 18th Streeters gang members carried out their shooting, testified that after the Ayala shooting Montano Martinez told her that "they went and blasted them fools." Armando Jaramillo testified that Montano Martinez admitted to him that he shot at the 18th Streeters gang members.
I.
Montano Martinez first argues that the trial court committed reversible error when it admitted Vargas's testimony from the Lopez-Rios trial as substantive evidence pursuant to Minn. R. Evid. 803(24) and Ortlepp. He further argues that Vargas's testimony was not otherwise admissible to impeach Vargas because the state had not elicited a prior inconsistent statement. In support, Montano Martinez argues that, because Vargas was an accomplice to Ayala's murder, Vargas's testimony from the Lopez-Rios trial is inherently untrustworthy and therefore does not satisfy the reliability requirements of Rule 803(24) and Ortlepp and was inadmissible as substantive evidence.
We afford trial courts considerable discretion in admitting evidence. State v. Stallings, 478 N.W.2d 491, 496 (Minn. 1991); State v. Glaze, 452 N.W.2d 655, 660 (Minn.1990). We review their evidentiary rulings for an abuse of that discretion. State v. Byers, 570 N.W.2d 487, 491 (Minn. 1997). We will not reverse a trial court's findings unless those findings are clearly erroneous. Id. Under our rules of evidence, an otherwise inadmissible hearsay statement by an available witness may be admitted at trial if the statement fits within one of the exceptions to the hearsay rule set out in Minn. R. Evid. 803. Minn. R. Evid. 802, 803; see Ortlepp, 363 N.W.2d at 44. The evidentiary rule at issue here is Minn. R. Evid. 803(24). In Ortlepp, we held that a hearsay statement made by the defendant's accomplice was sufficiently trustworthy and therefore an admissible statement under Rule 803(24) because (1) there was no confrontation problem presented by the admission of the statement as substantive evidence because the declarant testified, admitted making the statement, and was available for cross-examination; (2) there was no dispute that the declarant made the statement and no dispute as to what the statement contained; (3) the statement was against the declarant's penal interest; and (4) the state "introduced[] evidence which pointed strongly toward" the guilt of the accused. 363 N.W.2d at 44.
We recently made clear that we did not establish an all-encompassing four-factor test in Ortlepp for determining the admissibility of hearsay statements under Rule 803(24). Rather, we explained that we review the totality of the circumstances to determine whether the extrajudicial statement had sufficient guarantees of trustworthiness to be admissible under the rule. *738 State v. Robinson, 718 N.W.2d 400, 408 (Minn.2006). Therefore, although the factors articulated in Ortlepp provide guidance, they are not an exclusive list of the indicia of reliability relevant to our analysis.
Here, as in Ortlepp, there is no confrontation problem, nor is there any doubt about whether Vargas made the statement or what it contained. Before Vargas's testimony from the Lopez-Rios trial was admitted into evidence, Vargas admitted giving the testimony and indicated that he told the truth at the time that he gave it. Moreover, because Vargas admitted giving the testimony, there is no dispute over whether he made the statement or what it contained. Finally, it should be noted that Vargas ultimately testified at Montano Martinez's trial and was subject to cross-examination. While Vargas was a reluctant witness, his testimony was largely consistent with his testimony from the Lopez-Rios trial.
Also, as in Ortlepp, there was a significant amount of evidence introduced at trial pointing towards Montano Martinez's guilt. That evidence included Montano Martinez's trial testimony and his self-incriminating statement to the police, both of which corroborate much of Vargas's testimony from the Lopez-Rios trial and point toward finding Montano Martinez guilty. The state also introduced testimony from Redbird and Jaramillo indicating that Montano Martinez had told them that he was involved in Ayala's murder.
Based on the totality of the circumstances, we conclude that Vargas's statements from the Lopez-Rios trial are sufficiently trustworthy and were admissible as substantive evidence under Rule 803(24). Therefore, the trial court did not abuse its discretion when it admitted them.
II.
At trial, the state offered the testimony of gang expert Don Bautista who testified generally about the Latin Kings gang and specifically about the night of Ayala's shooting. Montano Martinez did not object to this testimony at trial and, in fact, vigorously cross-examined Bautista (with particular emphasis on several points beneficial to his defense theory). Montano Martinez now asserts that, despite his failure to object, this court should address the admissibility of Bautista's testimony because it was plain error affecting his substantial rights.
Specifically, Montano Martinez asserts that Bautista's testimony that Montano Martinez was a member of the Latin Kings gang and that the crime was committed for the benefit of a gang was error because it was testimony that went to an ultimate issue in the trial. The state asserts that, even if the admission of Bautista's testimony was error, the testimony did not affect Montano Martinez's substantial rights because there was ample independent evidence both linking Montano Martinez to the Latin Kings and demonstrating that the murder was premeditated retaliation for the benefit of a gang.
Failure to object to the admission of evidence generally constitutes a waiver of the right to appeal on that basis; however, this court has discretion to consider an error not objected to at trial if it is plain error that affects substantial rights. State v. Taylor, 650 N.W.2d 190, 205 (Minn.2002); State v. Griller, 583 N.W.2d 736, 740, 742 (Minn.1998). In order to constitute plain error, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. Griller, 583 N.W.2d at 740. If any one of these prongs is not met, the claim fails and will not be considered. Id. If all three prongs are met, then we will "assesses whether [we] *739 should address the error to ensure fairness and the integrity of the judicial proceedings." Id.
We have considered the admissibility of gang expert testimony in four recent cases: State v. Jackson, 714 N.W.2d 681 (Minn.2006); State v. Blanche, 696 N.W.2d 351 (Minn.2005); State v. DeShay, 669 N.W.2d 878 (Minn.2003); and State v. Lopez-Rios, 669 N.W.2d 603 (Minn.2003). In each case, there was ample independent evidence linking the defendant to the gang and supporting a conclusion of guilt as to the crime charged. Jackson, 714 N.W.2d at 693; Blanche, 696 N.W.2d at 374; DeShay, 669 N.W.2d at 888; Lopez-Rios, 669 N.W.2d at 613. In each case, we concluded that the expert corroborated the testimony of numerous witnesses and likely was no more influential than much of the other evidence presented linking the defendant to the crime. Jackson, 714 N.W.2d at 693; Blanche, 696 N.W.2d at 374; DeShay, 669 N.W.2d at 888; Lopez-Rios, 669 N.W.2d at 613. And, in each of those cases, we concluded that reversal was not warranted because the error did not affect substantial rights. Jackson, 714 N.W.2d at 693; Blanche, 696 N.W.2d at 374; DeShay, 669 N.W.2d at 888; Lopez-Rios, 669 N.W.2d at 613.
On the record presented here, we need not determine whether the admission of Bautista's gang expert testimony was error or whether, if error, the error was plain because any possible error did not affect Montano Martinez's substantial rights. As in Jackson, Blanche, DeShay, and Lopez-Rios, there was ample independent evidence establishing that Montano Martinez was a member of the Latin Kings gang and that the shooting of Ayala was for the benefit of a gang. That evidence includes Montano Martinez's testimony that he was a member of the Latin Kings gang. Vargas's testimony, corroborated by Montano Martinez's statement to police, the testimony of other Latin Kings members, Montano Martinez's trial testimony with respect to the role of respect and retaliation, and the timing of the shooting all support the conclusion that Montano Martinez killed Ayala in retaliation for the 18th Streeters' earlier shooting. Thus, while Bautista's testimony may have been cumulative, it merely confirmed the testimony of other witnesses and did not affect Montano Martinez's substantial rights.
III.
Montano Martinez was sentenced to life in prison on count one, first-degree premeditated murder, and a consecutive sentence of 24 months in prison on count two first-degree premeditated murder committed for the benefit of a gang. Montano Martinez argues, and the state agrees, that the court erred when it imposed Montano Martinez's sentence in that manner. They are correct. As we said in State v. LaTourelle, 343 N.W.2d 277, 284 (Minn.1984): "[T]he proper procedure to be followed by the trial court when the defendant is convicted on more than one charge for the same act is for the court to adjudicate formally and impose sentence on one count only." (Emphasis added.)
Here, Montano Martinez was found guilty on four counts and the court adjudicated formally and imposed sentences on counts one and two. Therefore, we vacate Montano Martinez's sentences and remand to the trial court for resentencing.[2]
*740 Affirmed in part, vacated in part, and remanded for resentencing.
NOTES
[1] Specifically, Montano Martinez was found guilty of count one, first-degree murder in violation of Minn.Stat. § 609.185(1) (2006); count two, first-degree premeditated murder committed for the benefit of a gang in violation of Minn.Stat. §§ 609.185(1) and 609.229 (2006); count three, felony murder in violation of Minn.Stat. § 609.185(3); and count four, felony murder committed for the benefit of a gang in violation of Minn.Stat. §§ 609.185(3) and 609.229. In addition to the counts for which he was convicted, Montano Martinez was indicted on four additional counts: count five, assault in the second degree; count six, assault in the second degree committed for the benefit of a gang; count seven, drive-by-shooting; and count eight, drive-by-shooting committed for the benefit of a gang. These four counts of the indictment were dismissed during trial.
[2] Montano Martinez argues that any sentence imposed for a conviction of a crime "committed for the benefit of a gang" requires compliance with the Minnesota Sentencing Guidelines as well as the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). This argument is unavailing. As we said in Lopez-Rios, "In a crime committed for the benefit of a gang, the underlying crime is an included crime." 609 N.W.2d at 615 (quoting State v. Matelski, 622 N.W.2d 826, 833 (Minn.App.2001)). Because the underlying crime here is first-degree murder, the sentencing guidelines do not apply. Minn. Sent. Guidelines V ("First Degree Murder is excluded from the guidelines by law."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621289/ | 215 F. Supp. 513 (1963)
Albert STRITE and Commonwealth Trust Co. of Pittsburgh, Executors of the Estate of Lillian D. Cree, deceased,
v.
Edgar A. McGINNES, District Director of Internal Revenue.
Civ. A. No. 30564.
United States District Court E. D. Pennsylvania.
March 28, 1963.
Henry D. O'Connor, Philadelphia, Pa., for plaintiffs.
John M. Hammerman, Edward S. Smith, David A. Wilson, Jr., Louis F. Oberdorfer, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Drew J. T. O'Keefe, U. S. Atty., for defendant.
FREEDMAN, District Judge.
This is an action by the executors of decedent's estate for refund of estate *514 taxes. It is before us on motions for summary judgment filed by both parties.
Decedent, Lillian D. Cree, was the last survivor of three sisters and a brother. On April 15, 1939, the three sisters executed identical wills. Each will in Item Fourth, paragraph (3), established a trust of the residue of the estate, the net income of which was to be paid for life to the other two sisters and their survivor, and thereafter to the brother for life. On the death of both surviving sisters and the brother, the trust estate was to be divided among the testatrix's nephews and nieces after the payment of certain small bequests. The problem before us is created by a power to consume, granted by Item Fourth, paragraph (6), of each will: "It is my desire that my sisters enjoy the benefit of my property to as full an extent as they may require. If, therefore, in the sole judgment of the Trustees hereinafter named it is at any time necessary or advisable in order to provide for the reasonable needs and proper expenses or the benefit or comfort of my sisters or the survivor of them, I authorize, empower and direct them to sell any or all of the said residue of my property as they may think proper and pay over to my sisters or to my surviving sister the proceeds or any part thereof as if it were income."
The sisters and brother, or the survivors or survivor of them, were named as executors and trustees. In the event none of the designated executors or trustees took or continued in office, Commonwealth Trust Company of Pittsburgh was designated executor; and the trustees, in their discretion, if there existed at least one vacancy, were authorized to appoint Commonwealth Trust Company of Pittsburgh as an additional trustee with the trustee or trustees continuing in office.
The brother, James W. Cree, Jr., died on November 24, 1941. One of the sisters, Mary W. Cree, died on July 22, 1950, and another sister, Katherine M. Cree, died on May 17, 1953. Lillian D. Cree, as the survivor, became the sole beneficiary of the trusts established under Item Fourth of her sisters' wills. After the death of Lillian on July 27, 1956, the Internal Revenue Service claimed that the power to consume, which she had in the estates of her two sisters under paragraph (6) of Item Fourth of their wills, amounted to a general power of appointment which rendered the entire trusts taxable as part of her estate by virtue of § 2041 of the Internal Revenue Code of 1954. Her executors paid the additional estate tax assessed, amounting to $36,842.39. Their claim for refund having been denied, they brought this suit to recover the additional tax paid, with interest.
Section 2041(a)(2) provides that there shall be included in the gross estate the value of a general power of appointment created after October 21, 1942.[1] A general power of appointment is defined in § 2041(b)(1) as "a power which is exercisable in favor of the decedent, his estate, his creditors, or the creditors of his estate", but an exception is made by § 2041(b)(1)(A), so that "A power to consume, invade or appropriate property for the benefit of the decedent which is limited by an ascertainable standard relating to the health, education, support, or maintenance of the decedent, shall not be deemed a general power of appointment".[2]
The Regulations, which seek to illustrate the requirements, do not attain *515 much clarification, perhaps because of the inherent difficulty of the subject matter. They provide in part: "A power to use property for the comfort, welfare, or happiness of the holder of the power is not limited by the requisite standard. Examples of powers which are limited by the requisite standard are powers exercisable for the holder's `support,' `support in reasonable comfort,' `maintenance in health and reasonable comfort,' `support in his accustomed manner of living,' `education, including college and professional education,' `health,' and `medical, dental, hospital and nursing expenses and expenses of invalidism'."[3]
The extent of the decedent's interest in her sisters' estates under the power to consume must be determined by Pennsylvania law. The taxability of the interest as so established will be determined by Federal law. Morgan v. Commissioner of Internal Revenue, 309 U.S. 78, 60 S. Ct. 424, 84 L. Ed. 858 (1940);[4] Commissioner of Internal Revenue v. Ellis' Estate, 252 F.2d 109, 113 (3d Cir., 1958); Hoffman v. McGinnes, 277 F.2d 598, 602 (3d Cir., 1960).
The guiding principle in ascertaining the nature of decedent's property interest under Pennsylvania law is that each will is unique and in arriving at its true meaning we must seek out the intention of the testator as it may be found within the four corners of the instrument.[5] In ascertaining the meaning of paragraph (6) of Item Fourth we may not dismiss the language used as "boiler plate", although it is so characterized by plaintiff's counsel, perhaps with some justice. Boiler plate it may be, in the sense that the words may have been chosen indiscriminately by the scrivener without that imaginative understanding which is the hallmark of the skillful draftsman. Executors confronted with substantial tax liability because of the carefree use of words in a will, especially words which never were put to use, must view a scrutiny of their meaning as an academic intrusion into the world of reality. But we deal here with the power to consume *516 property, regardless whether the power was exercised or lay dormant. The grant of power in the will is the test of taxability, and the reality which governs is the language of the grant rather than the extent of its exercise. Helvering v. Evans, 126 F.2d 270, 272-273 (3d Cir., 1942), cert. den. 317 U.S. 638, 63 S. Ct. 30, 87 L. Ed. 514, rehearing den. 317 U.S. 706, 63 S. Ct. 152, 87 L. Ed. 564. The words employed, however uncritically they may have been chosen, are in legal intendment those of the testatrix. It is from them, within the context of the entire will, that the testatrix's intention must be ascertained. For the courts of Pennsylvania make it clear that evidence extrinsic to the will will not be received, in the absence of patent ambiguity; solely from the will itselfits four corners must a testator's intention be derived. This has even been expressed in the harsh rubric that it is not really the intention of the testator which the Pennsylvania courts seek out, but rather the meaning of the words which he used in his will. Wright Estate, 380 Pa. 106, 108, 110 A.2d 198 (1955); Collins Estate, 393 Pa. 195, 199, 142 A.2d 178 (1958).
Paragraph (6) of Item Fourth of the wills expresses the testatrix's "desire" that the surviving sisters enjoy the benefit of her property "to as full an extent as they may require". This is precatory language. It is some indication, however, of the testatrix's intention. The word "require" has been interpreted in context as less than an unlimited power to appoint corpus to one's self.[6] The meaning of the word "require" as the equivalent of "demand" is not to be excluded. The language of the power to consume is then expressed in the authority to invade principal. It is first specified as invasion in order to provide for the "reasonable needs[7] and proper expenses" of the life tenant. We may assume that these are words of limitation to an ascertainable standard relating to the health, education, support or maintenance of the life tenant and fall within the statutory exception. We must then consider the meaning of the remaining words which authorize invasion of principal for "the benefit or comfort" of the life tenant. In Zumbro v. Zumbro, 69 Pa.Super. 600 (1918), the decedent made a devise of his property to his wife for life for her own "benefit and comfort", with remainder to their children. In discussing the power granted the widow the court directed its attention to the meaning of the word "comfort" alone. It held that payments made by the widow out of principal to two of the children, for which another child later sought an accounting, were authorized because they were made to satisfy a moral obligation of the testator. In Winthrop Company v. Clinton, 196 Pa. 472, 477-478, 46 A. 435 (1900), it was said that the word "benefit" is much broader in meaning than "support". "Now the word `benefit' is a much broader word than `support,' and has no such limited meaning as the latter word. It is thus defined in Worcester, `Advantage; gain; profit;' and its manifest signification is anything that works to the advantage or gain of the recipient." In Helvering v. Evans, 126 F.2d 270, 272 (3d Cir., 1942), cert. den. 317 U.S. 638, 63 S. Ct. 30, 87 L. Ed. 514, rehearing den. 317 U.S. 706, 63 S. Ct. 152, 87 L. Ed. 564, *517 a trust authorized payments out of principal to the extent that current income, together with beneficiary's other income, was insufficient to provide properly for the "support, maintenance, benefit, and/or education" of the beneficiary and her dependents. Judge Goodrich said that the trustee's strict practice under the trust did not change "the term `benefit' from its common as well as dictionary concept as meaning whatever promotes welfare; advantage, profit".
The Evans case was followed in Newton Trust Co. v. Commissioner of Internal Revenue, 160 F.2d 175, 179 (1st Cir., 1947), which involved deduction of charitable bequests from gross income. The trustee was authorized to make payments to the wife for her "use and benefit". The court, holding that the remainders to charity were not deductible because they were not sufficiently ascertainable, said: "`Use and benefit' considered conjunctively or disjunctively connote considerably more than the maintenance of a standard of living * * *".
We may not, of course, determine the meaning of the words "benefit or comfort" dictionary in hand. We must read the words in the setting in which the testatrix has cast them in order to ascertain her individual intention. In this light we must also consider whether the words "reasonable" and "proper", although they literally modify only "needs" and "expenses", may also be applied to "benefit or comfort". We find decisive indication that the paramount objects of the testatrix's bounty were her surviving sisters or sister. The power to consume was conferred only on the surviving sisters or sister, although the brother was designated as a life tenant if he survived them. The brother was given no interest in principal. The nephews and nieces came into enjoyment as beneficiaries only after the death of all the sisters and the brother too, although he was a beneficiary less generously endowed. The subordinate status of the nephews and nieces in the testatrix's testamentary scheme is shown in the provision of Item Third dealing with articles of household and personal goods and effects. The will confirms the existence in the sisters of a joint estate with right of survivorship in all household and personal goods and effects. Having thus sought to make clear the right of the surviving sisters to this personalty, the will expressly declares that testatrix desires further to assure its ownership by her sisters. To make this assurance effective beyond doubt the will bequeaths all such property to the surviving sisters as joint tenants with the right of survivorship. Only if both sisters predecease the testatrix, a circumstance in which she must make provision against a lapse, does she refer to her nephews and nieces. In that event she bequeaths the property to them. But even here she makes it abundantly clear that they are more or less formal beneficiaries. For she goes on to say that they are to have the benefit of the bequest only if she does not before her death make further distribution of any of this property by letter addressed to them.
It is thus clear that the bequest to the nephews and nieces of the residue is an ultimate provision, one typically made to provide against intestacy. The will emphatically reveals that the sisters are intended to be the main objects of the testatrix's bounty. This is heightened three-fold by the identical provisions which each sister made in her will. Were we now construing this will in the lifetime of a surviving sister it is difficult to believe that a Pennsylvania court would place any grudging limitation on the breadth of the power to consume. The power conferred on the decedent to invade principal for her "benefit or comfort" must therefore be given its broadest meaning. It is not a power limited to her support, but on the contrary, is to be used for her benefit or comfort. Such a power is a taxable general power of appointment under the Regulation and is not within the exception. It is, in the words of the Regulation, "a power to use property for the comfort, welfare or *518 happiness of the holder of the power [and] is not limited by the requisite standard."
It is true that under Pennsylvania law the decedent's power could only be exercised in good faith and not simply to subvert the will's provision of an ultimate gift to nephews and nieces.[8] This requirement does not, however, restrict the life tenant's consumption of principal exclusively to support and maintenance. There is present here a power to consume which extends beyond the statutory exception of an ascertainable power for health, education, support or maintenance, even though it is confined within the outer reaches of the judicial limitation of good faith. The judicial requirement is that the estate must not be depleted "for the mere purpose of defeating the testator's intention, or of preferring certain heirs or beneficiaries"; in all other cases the Pennsylvania courts will be slow "to condemn expenditures as being contrary to the power lodged" in the holder of the power. Zumbro v. Zumbro, 69 Pa.Super. 600, 603 (1918). Manifestly, Pennsylvania's equitable doctrine does not automatically bring all powers to consume within the statutory exception from taxability under § 2041. Even if the judicial requirement of good faith in the exercise of a power to consume creates an "ascertainable standard", in this case it would not be a standard which relates to the power holder's "health, education, support or maintenance". There are areas of expenditure beyond support and maintenance which do not cross the line of good faith. See Zumbro v. Zumbro, supra. This decedent clearly had such additional power. The enjoyment of that power, unexercised though it was, subjected the decedent's estate to taxation as the owner of a general power of appointment, one which did not fall within the exception delineated by § 2041(b) (1) (A).
The three Supreme Court decisions dealing with the deductibility of gifts over to charity under what is now § 2055 of the Revenue Code of 1954, shed some light on our problem. They are not, of course, decisive for us. For they deal with a greater requirement than an ascertainable standard. The standard there is one which is presently ascertainable in order that the value of the gift in remainder to the charity may presently be determined. In Ithaca Trust Co. v. United States, 279 U.S. 151, 49 S. Ct. 291, 73 L. Ed. 647 (1929), the life tenant's authority to invade principal to the extent "that may be necessary to suitably maintain her in as much comfort as she now enjoys" was held to establish a suitably definite standard and the charitable deduction was permitted. On the other hand, in Merchants National Bank of Boston v. Commissioner of Internal Revenue, 320 U.S. 256, 263, 64 S. Ct. 108, 112, 88 L. Ed. 35 (1943), it was held that the power of invasion of principal was too broad and speculative to permit a deduction for the charitable bequest over, even though the widow's previous mode of life was modest and her own resources substantial. *519 There the invasion of principal was authorized "for the comfort, support, maintenance, and/or happiness" of the wife, "and it is my wish and will that in the exercise of its discretion * * * my said trustee shall exercise its discretion with liberality to my said wife, and consider her welfare, comfort and happiness prior to claims of residuary beneficiaries under this trust."[9] In Henslee v. Union Planters National Bank, 335 U.S. 595, 69 S. Ct. 290, 291, 93 L. Ed. 259 (1949), rehearing den. 336 U.S. 915, 69 S. Ct. 601, 93 L. Ed. 1078, the power was held too broad to permit a charitable deduction, where authority was given to invade principal for the "pleasure, comfort and welfare of my mother", with another provision that "The first object to be accomplished in the administration and management of my estate * * * is to take care of and provide for my mother in such manner as she may desire", with direction to the trustees to manage the estate "primarily for this purpose".
Our Brother Kraft recently reviewed the right to deduction for charitable remainders in In re Bartlett's Estate, 153 F. Supp. 674 (E.D.Pa.1957). There the trustees were authorized to invade principal to such extent as they in their sole discretion considered to be "for the best interest" of the life tenant "during illness or emergency of any kind." Judge Kraft held that the extent of the power to invade principal was not measurable by any presently ascertainable standard.
These cases reveal the extent of variation in the language of powers to consume and the significance which must be attributed to the individual language used in arriving at the ultimate determination of the intention of the individual testator in the particular case.
Plaintiff relies heavily on the recent case of United States v. Powell, 307 F.2d 821 (10th Cir., 1962), where a refund of estate taxes was allowed. There the trustee was authorized to invade principal "for the maintenance, welfare, comfort or happiness of the * * * wife, * * * or * * * daughters, * * * or for the education * * * of said daughters, * * * provided that the Trustee shall deem that the purpose for which the payments are to be made, justifies the reduction in the principal of the trust properties." It was held that the trustees were limited by an external standard which the courts of Kansas (whose law was involved) would enforce in the exercise of their equity powers. The question there, however, was whether the power of the decedent as grantor-trustee to invade the trust corpus for the happiness of his wife and daughters constituted a power to alter and amend an inter vivos trust within the meaning of § 811(d) (2) of the Revenue Act of 1939. Moreover, the decision was rendered after a trial on the merits in which evidence was taken regarding the unusual circumstances of the parties, and after a finding of fact that the trust instrument did not intend the subjective pleasure or "delight" of the wife or daughters, but merely distributions necessary to maintain them according to the conservative mode of life to which they had been accustomed. (See p. 823). This finding was in harmony with the provision that the trustee's power to invade principal was subject to the limitation that the trustee deemed the purpose one which justified reduction in principal and tied in with another provision, not expressly adverted to by the court, that in making investments the protection of principal was to be deemed more important than securing a higher rate of income.
ORDER
AND NOW, March 28, 1963, the motion for summary judgment of Albert Strite and Commonwealth Trust Company of Pittsburgh, Executors of the Estate of Lillian D. Cree, deceased, plaintiffs, *520 is denied; and the motion for summary judgment of Edgar A. McGinnes, District Director of Internal Revenue, defendant, is granted.
NOTES
[1] A power of appointment created by will is, in general, considered to have been created on the date of the testator's death. See Treas.Reg., 26 CFR 20.2041-1(e), as amended, T.D. 6582, 26 F.R. 11861, Dec. 12, 1961.
[2] There are two other sections of the Internal Revenue Code where problems similar to ours arise. Section 2055 (concerning deductions for charitable bequests); and § 2056 (concerning the marital deduction). Cases under § 2056 have only limited relevance since the question which arises is not whether an ascertainable standard exists but whether any standard exists. In order to qualify for the marital deduction, the surviving spouse must have an unqualified power to appoint the principal to herself during her lifetime. The power must be one that may be exercised "in all events".
[3] The Regulation reads: "* * * A power is limited by such a standard if the extent of the holder's duty to exercise and not to exercise the power is reasonably measurable in terms of his needs for health, education, or support (or any combination of them). As used in this subparagraph, the words `support' and `maintenance' are synonymous and their meaning is not limited to the bare necessities of life. A power to use property for the comfort, welfare, or happiness of the holder of the power is not limited by the requisite standard. Examples of powers which are limited by the requisite standard are powers exercisable for the holder's `support,' `support in reasonable comfort,' `maintenance in health and reasonable comfort,' `support in his accustomed manner of living,' `education, including college and professional education,' `health,' and `medical, dental, hospital and nursing expenses and expenses of invalidism'. In determining whether a power is limited by an ascertainable standard, it is immaterial whether the beneficiary is required to exhaust his other income before the power can be exercised." 26 CFR 20.2041-1(c) (2).
[4] "State law creates legal interests and rights. The federal revenue acts designate what interests or rights, so created, shall be taxed. Our duty is to ascertain the meaning of the words used to specify the thing taxed. If it is found * * * that an interest or right created by local law was the object intended to be taxed, the federal law must prevail no matter what name is given to the interest or right by state law." (pp. 80-81, 60 S.Ct. p. 426).
[5] "It was said by Sharswood, C. J., in Fox's Appeal, 99 Pa. 382, that `every will is to be construed from its four corners to arrive at the true intention of the testator. Decisions upon other wills may assist but cannot control the construction'. This is but one of the hundreds of expressions of the cardinal rule in the interpretation of wills, to find the testator's intent, and by that is meant his actual, personal, individual intent, not a mere presumptive conventional intent inferred from the use of a set phrase or a familiar form of words." Tyson's Estate, 191 Pa. 218, 225, 43 A. 131, 132 (1899), Mitchell, J.
[6] Commissioner of Internal Revenue v. Ellis' Estate, 252 F.2d 109 (3d Cir., 1959), especially where there are remainders over: See Hoffman v. McGinnes, 277 F.2d 598 (3d Cir., 1960).
[7] See Funk v. Commissioner of Internal Revenue, 163 F.2d 796 (3d Cir., 1947), 185 F.2d 127 (3d Cir., 1950), where authority to the wife-trustee to apply income to the settlor-husband or herself, or let it be added to principal, in accordance with their respective needs, in her discretion, was held to be measurable by the equitable standard applied by the New Jersey courts that the trustee must exercise her judgment in good faith and not capriciously or in breach of her fiduciary obligation since what was not needed belonged to principal. In Pittsfield National Bank v. United States, 181 F. Supp. 851 (D.C.Mass.1960), "needs" was held in the affluent circumstances of the parties as intended to provide in case of "want of the means of subsistence, necessity".
[8] Tyson's Estate, 191 Pa. 218, 43 A. 131 (1899); Fassitt v. Seip, 240 Pa. 406, 87 A. 957 (1913); Rumsey's Estate, 287 Pa. 448, 135 A. 119 (1926); Endsley v. Hagey, 301 Pa. 158, 151 A. 799 (1930); O'Brien Estate, 381 Pa. 322, 112 A.2d 178 (1955); Zumbro v. Zumbro, 69 Pa. Super. 600 (1918); Commissioner of Internal Revenue v. Ellis' Estate, 252 F.2d 109 (3d Cir., 1958); Price v. Rothensies, 67 F. Supp. 591 (E.D.Pa.1946). The purpose and extent of the rule are well expressed in Tyson's Estate, supra, where Mr. Justice Mitchell said: "The extent of the widow's consumption of the estate was within her own control. Her decision was without appeal, but it must have been honestly reached in accordance with the purpose the testator intended, and not merely colorably to defeat his will. She had power to carry out his intentions by sale, transfer and consumption of the proceeds in such a way as to leave nothing at her death. But a transfer with intent not to consume for herself, but to preserve for others after her death, and to change the beneficiaries after her from those chosen by her husband to others of her own selection would be a fraud on the testator and his will." (191 Pa. pp. 226-227, 43 A. p. 133).
[9] The court said: "Introducing the element of the widow's happiness and instructing the trustee to exercise its discretion with liberality to make her wishes prior to the claims of residuary beneficiaries brought into the calculation elements of speculation too large to be overcome * * *". | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621271/ | 733 So. 2d 463 (1998)
Randall Lee WHITT
v.
STATE.
No. CR-96-0349.
Court of Criminal Appeals of Alabama.
April 3, 1998.
Rehearing Denied August 14, 1998.
Certiorari Denied April 23, 1999.
*466 Andrew Dalins, Huntsville, for appellant.
Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
Alabama Supreme Court 1972150.
PATTERSON, Retired Appellate Judge.
The appellant, Randall Lee Whitt, was indicted on December 8, 1994, in Madison County, in a two-count indictment. Count One charged the capital offense of murder committed during a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975, and Count Two charged the offense of attempted murder, see §§ 13A-4-2 and *467 13A-6-2. The indictment reads, in pertinent part, as follows:
"Count One:
"The Grand Jury of said County charge ... Randall L. Whitt ... did intentionally cause the death of James Maples by shooting him with a firearm, and Randall L. Whitt ... caused said death during the time that Randall L. Whitt ... was in the course of committing a theft of property, to-wit: a purse and its contents, belonging to Mary Humphries, by the use of force against the person of James Maples, with intent to overcome his physical resistance or physical power of resistance, while the said Randall L. Whitt ... was armed with a deadly weapon, to-wit: a firearm, in violation of Code of Alabama 1975, § 13A-5-40(a)(2)....
"Count Two:
"The Grand Jury of said County charge ... Randall L. Whitt ... did, with intent to commit the crime of Murder (Section 13A-6-2 of the Code of Alabama) attempt to commit said offense by shooting Mary Humphries with a firearm, in violation of § 13A-4-2 of the Code of Alabama...."
At arraignment, the appellant pleaded not guilty, and on August 29, 1996, a jury found him guilty of both counts as charged in the indictment. The state made it known at the beginning of the trial that it would not seek the death penalty; therefore, no sentencing hearing, pursuant to §§ 13A-5-43 through -46, was held before the jury in reference to the capital conviction. After a sentencing hearing before the trial court, the court sentenced the appellant on November 1, 1996, as follows: On Count One, the capital offense of murder committed during a robbery in the first degree, the appellant was sentenced to life imprisonment without the possibility of parole, was fined $1,000, and was ordered to pay $1,000 to the victims compensation fund, all court costs, and the attorney fees of any court-appointed attorney. On Count Two, the offense of attempted murder, he was sentenced to life imprisonment, was fined $1,000, and was ordered to pay $1,000 to the victims compensation fund, all court costs, and the attorney fees of any court-appointed attorney.
The state's evidence showed that David Anthony Coffman and the appellant had visited the appellant's former girlfriend, Nancy Denise Guerin, at her mother's mobile home on the morning of August 15, 1994; that they were traveling in Coffman's older model, white pickup truck; and that both men were armed with pistols. Nancy's brother, James Kevin Guerin, who was also present, overheard Coffman say during a telephone conversation that "he had to hurry up and go, they had to rob somebody." The appellant was standing near him and Coffman when Coffman made the statement. Nancy heard Coffman, after talking on the telephone, say to the appellant, "We need to go. We got business to take care of." Immediately after these statements, Coffman and the appellant left in a hurry. (James Guerin testified they left between 12:30 and 1:00 p.m.; Nancy Guerin testified that they left between 12:30 and 12:45 p.m.).
The state's evidence further showed that, before the incident out of which this case arose, Mary Arminda Humphries and James Murray Maples had been seeing each other for several months and that, during that time, they had met on about 15 occasions behind the Flint River Primitive Baptist Church in rural Madison County. The evidence further showed that they planned to meet at the church around 1:00 p.m. on August 15, 1994; that Humphries arrived first, shortly after 1:00 p.m., parked her automobile behind the church, and sat on the church steps waiting for Maples; that shortly thereafter, what she described as an older model, noisy, white pickup truck with two persons in it came around the church and pulled up within five feet of her; and that the passenger in the truck leaned over and asked, "Have you seen a nigger in a brown Cadillac?" *468 Humphries answered that she had not, and the truck pulled away. (At photographic lineups and at the trial, she positively identified the driver of the truck as being Coffman and the passenger as being the appellant). Concerned, she got back in her automobile and waited for Maples. A few minutes later Maples arrived. They got out of their respective automobiles and greeted each other. Then Humphries heard and saw the same noisy, white pickup truck approaching the church. She heard the truck stop and the motor cut off, and immediately thereafter saw two men approaching them on foot. According to her, they were the same two men who had earlier approached her in the truck while she was sitting on the church steps. Coffman came directly to them, stopped about five feet from them, and stood with his hands on his hips, looking at them. The appellant, who stood about 10 feet behind and to the side of Coffman, said, "Have you seen a nigger in a brown Cadillac?" Maples said, "No, we haven't. That's why we come back here. This is private." The appellant then pulled a pistol from his belt and started firing at Humphries and Maples, as he advanced on them. After Maples shoved Humphries to the ground and ran, the appellant stood at her feet, pointing the pistol in her face. She begged him not to kill her, and she put her hand up to shield her face, but the appellant fired directly at her. The bullet went through her hand. She then lay still and pretended she was dead. She then heard someone (whom she believed to be Coffman) say, "Make sure that son-of-a-bitch is dead." Then someone (whom she believed to be the appellant) grabbed her by the hair, lifted her off the ground and struck her in the head with a heavy object, causing her to lose consciousness. When she regained consciousness and saw no one around, she began looking for Maples. She found him lying nearby, unable to breath and bleeding from the mouth and nose, from what appeared to be a gunshot wound. Determining that she could not help him, she ran to the road, flagged an automobile, went to a nearby house, and telephoned the police.
It was subsequently determined that Maples suffered a gunshot wound; that the wound caused his death; and that he died at the scene. The bullet was never recovered. Humphries suffered a gunshot through her hand, a grazing gunshot wound to a knee, and lacerations to her head caused by a blunt instrument.
The investigation disclosed that Humphries's purse was missing. A short time later, her Alabama driver's license, several of her identification and credit cards, and personal photographs that had been in her purse, along with her purse, were found along the roadside some distance from the scene of the incident.
As a result of the descriptions of the suspects and the truck furnished by Humphries, Coffman was stopped by the police about 3:00 p.m. on the same day, while driving the truck, and was subsequently arrested and charged with the crimes.[1] Around 4:00 p.m. on the day of the crimes, the appellant telephoned Nancy Denise Guerin and told her, "I already killed a man and shot a woman." The appellant called her again later that day and said, "We killed a man and shot a woman." At trial, Guerin testified that she has received several letters from the appellant since his arrest in this case, and in each letter he claims that he is innocent and places the *469 full blame for the crimes on Coffman. Around 7:00 p.m., the police were called to a mobile home park to investigate a disturbance involving the appellant. It had been reported that he had been firing a pistol. After he was arrested, it was discovered that he had a pistol and live ammunition in his possession, as well as some of Humphries's identification cards. These were seized by the police. It was subsequently determined by a ballistics expert that the pistol seized from the appellant was the same pistol that had fired the bullet that had been recovered from Humphries's automobile and also had fired one of the five spent shell casings that had been found at the scene. The findings as to the other shell casings found were inconclusive; that is, it could not be determined whether they had been fired by the appellant's pistol. No other pistol was recovered.
After proper Miranda[2] warnings and a waiver of rights by the appellant, he gave the officers two oral and two written statements. In the statements, he admitted being with Coffman when they approached Maples and Humphries at the church; however, he denied any involvement in the crimes. He stated that he had no knowledge that Coffman was intending to rob or to shoot anybody; that Coffman did the shooting; that when Coffman started firing his pistol, the appellant ran back to the truck; and that when he and Coffman were fleeing the scene, he discovered the purse in the truck and threw it out on the side of the road. He placed the entire blame on Coffman.
About five months after the incident, the appellant telephoned James Kevin Guerin from the jail, and he asked the appellant what had happened. The appellant told him, "[T]hey were going down through there, and David [Coffman] pulled his gun and told the man to give his money to him, and the dude was supposed to have pulled a knife on him, and David shot him. Then [the appellant] said he panicked and shot the woman."
The appellant did not testify in his defense. He called five witnesses; all were relatives. His mother testified that when the appellant left home with Coffman on the morning of the incident, he was not wearing a shirt. This was offered apparently to cast doubt on Humphries's identification of the appellant as her assailant because she had testified that the appellant was wearing a dirty, white T-shirt when she observed him at the scene. The other witnesses were character witnesses.
The theory of the appellant's defense was that although he was at the scene when the crimes were committed, he had no part in their commission and had no prior knowledge that they were going to be committed. He placed the full responsibility for the commission of the crimes on his friend Coffman and urged the jury, through his counsels' opening statement, cross-examination of the state's witnesses, and summation to the jury to consider the possibility that Coffman was a "hit man" who had been employed by someone to kill Maples and that no robbery occurred or was intended. In support of his theory, he called attention to the facts that Maples's wallet, which contained $1,400, was not taken; that Dannie Certain, an investigator with the Madison County Sheriff's Department, testified on cross-examination that Coffman had been charged twice in the past for offenses of murder for hire; and that Humphries's doctor had made an entry in her medical records that she stated that her boyfriend had been killed by hit mena comment which she denied. Further, in support of his theory, his counsel urged the jury to question Humphries's identification of him as her assailant. Counsel pointed to Humphries's testimony that at the time of the shooting the appellant was wearing a dirty, white T-shirt and that Coffman was wearing a dark shirt; that when Coffman was arrested he was wearing a clean, white T-shirt and when the appellant was arrested several hours *470 later he was wearing no shirt at all; and that the appellant's mother testified that when he left home that morning he was not wearing a shirt.
The appellant raises 10 issues on appeal.
I.
The appellant first contends that the guilty verdicts are contrary to the law and the weight of the evidence. From his arguments in brief, it is apparent that his issues concern the weight and sufficiency of the evidence. These issues are often argued interchangeably, even though they are distinct and separate issues. For a discussion of the legal principles involving the weight of evidence as opposed to the sufficiency of evidence, see Johnson v. State, 555 So. 2d 818 (Ala.Crim.App.1989). See also Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982). The weight of the evidence refers to a determination by the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other. Johnson v. State. We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial. Johnson v. State, and cases cited therein. The credibility of witnesses and the weight to be given testimony is for the jury to determine. Zumbado v. State, 615 So. 2d 1223 (Ala.Crim.App.1993); Harris v. State, 513 So. 2d 79 (Ala.Crim.App.1987). On the other hand, the sufficiency of the evidence concerns the question of whether, "`viewing the evidence in the light most favorable to the prosecution, [a] rational factfinder could have found the defendant guilty beyond a reasonable doubt.'" Johnson v. State, 555 So.2d at 819 (quoting Tibbs v. Florida, 457 U.S. at 37, 102 S. Ct. 2211). In the instant case, the conflicting evidence presents a jury question, and the jury's verdicts rendered thereon are conclusive on appeal. Zumbado v. State; Johnson v. State.
The appellant contends that the state's evidence was insufficient to support his convictions. He preserved this issue for review by motions for judgments of acquittal made at the conclusion of the state's case-in-chief, at the conclusion of the presentation of all the evidence, and in a motion for a new trial. In deciding whether there is sufficient evidence to support the verdicts of the jury and the judgment of the trial court, the court must review the evidence in the light most favorable to the prosecution. Faircloth v. State, 471 So. 2d 485 (Ala.Crim.App.1984), aff'd, 471 So. 2d 493 (Ala.1985); Cumbo v. State, 368 So. 2d 871 (Ala.Crim.App.1978), cert. denied, 368 So. 2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state's evidence establishes a prima facie case. Gunn v. State, 387 So. 2d 283 (Ala.1980); McBryar v. State, 368 So. 2d 568 (Ala.Crim.App.), cert. denied, 368 So. 2d 575 (Ala.1979). The action of the trial court in denying a motion for a judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So. 2d 199 (Ala.Crim. App.1983); Thomas v. State, 363 So. 2d 1020 (Ala.Crim.App.1978).
After examining the evidence in the instant case and applying the proper standards of review, we find that there was sufficient evidence presented by the state from which the jury could conclude beyond a reasonable doubt that the appellant was guilty of the crimes charged in both counts of the indictment, i.e., the capital offense of murder committed during a robbery in the first degree, § 13A-5-40(a)(2), and attempted murder, §§ 13A-4-2 and 13A-6-2. In fact, we find the evidence of appellant's guilt on both counts strong and convincing. There was little or no credible evidence to support a conclusion that the appellant was not involved in the commission of the crimes and that Coffman was a "hit man" of some sort, as the appellant urged in his defense. To reach such a *471 conclusion would require resort to surmise and conjecture. Although in his statements to authorities the appellant denied any knowledge that the crimes were going to be committed and any involvement in their commission, he offered no explanation in the statements as to how Humphries's identification cards happened to be in his pocket when he was arrested or why he confessed to Nancy Guerin that he had "already killed a man and shot a woman" and to James Guerin, five months after the crimes, that he "panicked and shot the woman."
Accordingly, the appellant's motions for judgments of acquittal and for a new trial on the assertion of insufficient evidence were properly denied. The submission of the case to the jury was proper. We find no merit in the appellant's contentions as to this issue.
II.
The appellant contends that the trial court erred in admitting the testimony of Humphries, in identifying him as her assailant, because, he argues, the identification was based upon a "biased and suggestive" photographic identification procedure. He also contends that Humphries was under the influence of "painkillers" when she identified him from a photographic lineup, which, he says, rendered the identification procedure invalid. He argues that the out-of-court identification procedure was unduly suggestive and unreliable and that it therefore tainted Humphries's in-court identification.
The record shows that after Humphries had been treated in the hospital for injuries she had sustained in the incident and released, later on the same day of the incident, she viewed photographic arrays at the police station. She promptly identified the appellant as her assailant in one of the photographic arrays, and without hesitation, identified Coffman in another.
In Cochran v. State, 500 So. 2d 1161 (Ala. Cr.App.1984),[3] we reviewed the legal requirements for determining the constitutional adequacy of pretrial identification procedures and the admissibility of identification testimony. In Cochran, we stated:
"There exists a due process right to the exclusion of unreliable identification testimony that results from procedures that are both unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293[, 87 S. Ct. 1967, 18 L. Ed. 2d 1199] ... (1967). The primary focus in the due process inquiry is on the reliability of the identification, and identification evidence derived from an unnecessarily suggestive source need not be excluded if the totality of the circumstances indicates that it is reliable. Manson v. Brathwaite, 432 U.S. 98[, 97 S. Ct. 2243, 53 L. Ed. 2d 140] ... (1977).
"In Manson, the Supreme Court adopted the five factors enumerated in Neil v. Biggers, 409 U.S. 188[, 93 S. Ct. 375, 34 L. Ed. 2d 401] ... (1972), to determine the reliability of the identification: the witness' opportunity to view the criminal at the time of the crime; the witness' degree of attention at the time of the crime; the accuracy of the witness' prior description of the criminal; the witness' level of certainty when identifying the suspect at the confrontation; and the length of time between the crime and the confrontation.
"... After Manson, courts have employed a two-step analysis to determine whether due process has been violated by the admission of identification testimony. `A defendant first must prove *472 that the identification procedure was unnecessarily and impermissibly suggestive, and courts then will consider the reliability of the identification by balancing the Biggers factors against the suggestiveness of the procedure.' Project: Thirteenth Annual Review of Criminal Procedure: United States Supreme Court And Courts of Appeal 1982-83, 72 Geo.L.J. 249, 334 (1983), citing United States v. Briggs, 700 F.2d 408, 412 (7th Cir.), cert. denied, 461 U.S. 947, 103 S. Ct. 2129, 77 L. Ed. 2d 1307, 462 U.S. 1110, 103 S. Ct. 2463, 77 L. Ed. 2d 1340 (1983); Brayboy v. Scully, 695 F.2d 62, 65 (2d Cir.1982), cert. denied, 460 U.S. 1055[, 103 S. Ct. 1505, 75 L. Ed. 2d 934]... (1983) (`Since the identification procedure was not impermissibly suggestive, the issue of the reliability of Kolkmann's identification of Brayboy is not before us.'); United States v. Harper, 680 F.2d 731, 734 (11th Cir.), cert. denied, 459 U.S. 916[, 103 S. Ct. 229, 74 L. Ed. 2d 182] ... (1982) (`First, as a threshold inquiry, the Court must decide whether the identification procedure was unnecessarily suggestive. A finding of impermissible suggestiveness raises concern over the reliability of identification and triggers closer scrutiny by the Court to determine whether such a procedure created a substantial risk of misidentification.')."
500 So.2d at 1169.
Thus, whenever the in-court identification of the defendant is challenged, the first inquiry is whether the out-of-court identification procedure used was unnecessarily or impermissibly suggestive; if it was not, then the inquiry stops. Cochran. Only when the pretrial procedures used are unnecessarily or impermissibly suggestive must we analyze the totality of the circumstances under the factors set out in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). Coleman v. State, 487 So. 2d 1380 (Ala. Crim.App.1986).
When an in-court identification is shown to have a basis independent of any pretrial identification or confrontation, it is properly admitted into evidence. Mullis v. State, 545 So. 2d 205 (Ala.Crim.App. 1989); Coleman v. State; and Jackson v. State, 414 So. 2d 1014 (Ala.Crim.App.1982).
After reviewing the record in this case pertaining to Humphries's out-ofcourt identification, we hold that the procedures used were not unnecessarily or impermissibly suggestive in that they did not create a substantial risk of misidentification and thus taint the in-court identification of the appellant by Humphries. Further, we find in the record an independent basis for the in-court identification. Humphries's in-court identification was clearly based on a source independent of the photographic lineups. Humphries had ample opportunity to observe the appellant, in daylight and at close range, shortly before the crimes were committed and again during the commission of the crimes; she obviously paid close attention to what was happening; her descriptions of the appellant and Coffman and their vehicle turned out to be quite accurate; she was positive and did not hesitate in identifying the appellant at trial; and the length of time between the commission of the crimes and her in-court identification, which was approximately two years, was not such as would likely dim her memory of what she had observed and endured. Moreover, when assessing reliability, courts may also consider the strength of other evidence against the defendant. United States v. Tisdale, 817 F.2d 1552 (11th Cir.), cert. denied, 484 U.S. 868, 108 S. Ct. 194, 98 L. Ed. 2d 145 (1987). In the present case, Humphries's testimony was strongly supported by the other evidence. Assuming arguendo that the pretrial identification procedures were impermissibly suggestive, and we do not concede that they were, the independent basis of Humphries's in-court identification was so strong and reliable that there was no substantial likelihood that the pretrial identification, even if suggestive, *473 would have led to an in-court misidentification. The appellant's contention that Humphries was under the influence of "painkillers" at the time she identified him in the photographic lineups to such as extent that her identification would be suspect is not supported by the record.
The trial court properly denied the appellant's motion to suppress Humphries's identification of the appellant. We find no merit in the appellant's contentions.
III.
The appellant contends that the state failed to establish a proper chain of custody for the admission into evidence of three of the four spent shell casings found at the scene of the crime on August 16, and on August 18, 1994, and of the bullet recovered on August 16, 1994. He argues that the crime scene was not properly secured by the police so as to prevent tampering and alteration of the evidence. He contends that the admission of the shells and the photographs of them into evidence, without establishing a chain of custody to show that there was no reasonable probability that the shells had not been tampered with, altered, or substituted, constituted reversible error.
The purpose of establishing a chain of custody is to demonstrate with reasonable probability that the evidence has not been tampered with or altered. Graham v. State, 593 So. 2d 162 (Ala.Crim. App.1991); Bridges v. State, 516 So. 2d 895 (Ala.Crim.App.1987).
"... We have held that the State must establish a chain of custody without breaks in order to lay a sufficient predicate for admission of evidence. Ex parte Williams, 548 So. 2d 518, 520 (Ala. 1989). Proof of this unbroken chain of custody is required in order to establish sufficient identification of the item and continuity of possession, so as to assure the authenticity of the item. Id. In order to establish a proper chain, the State must show to a `reasonable probability that the object is in the same condition as, and not substantially different from, its condition at the commencement of the chain. McCray v. State, 548 So. 2d 573, 576 (Ala.Crim.App.1988).'"
Ex parte Holton, 590 So. 2d 918, 919-20 (Ala.1991).
"[I]t is not necessary to prove to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from the object at the commencement of the chain. Slaughter v. State, 411 So. 2d 819 (Ala.Crim.App.1981), cert. denied, 411 So. 2d 819 (Ala.Crim.App.1982). See also, Mauldin [v. State, 402 So. 2d 1106 (Ala.Cr.App.1981) ]; Sexton v. State, 346 So. 2d 1177 (Ala.Crim.App.), cert. denied, 346 So. 2d 1180 (Ala.1977). Moreover, where a weak link in the chain of custody is said to exist, it presents a question of the credit and weight to be afforded the evidence, rather than the admissibility of the item. Williams v. State, 375 So. 2d 1257 (Ala.Crim.App.), cert. denied, 375 So. 2d 1271 (Ala.1979). Grice v. State, 481 So. 2d 449, 451 (Ala.Crim.App. 1985)."
Bridges v. State, 516 So.2d at 903-04.
The totality of the circumstances test is applied to alleged deficiencies in a chain of custody. Graham v. State; Moorman v. State, 574 So. 2d 953 (Ala.Crim. App.1990).[4]
"`The principles governing chain of custody challenges were outlined in *474 United States v. Lane, 591 F.2d 961 (D.C.Cir.1979), as follows:
"`"Tangible evidence of crime is admissible when shown to be `in substantially the same condition as when the crime was committed.' And it is to be presumed that the integrity of evidence routinely handled by governmental officials was suitably preserved `[unless the accused makes] a minimal showing of ill will, bad faith, evil motivation, or some evidence of tampering.' If, however, that condition is met, the Government must establish that acceptable precautions were taken to maintain the evidence in its original state.
"`"The undertaking on that score need not rule out every conceivable chance that somehow the identity or character of the evidence underwent change. `The possibility of misidentification and adulteration must be eliminated,' we have said, `not absolutely, but as a matter of reasonable probability.' So long as the court is persuaded that as a matter of normal likelihood the evidence has been adequately safeguarded, the jury should be permitted to consider and assess it in the light of surrounding circumstances."'"
Moorman v. State, 574 So.2d at 956-57. See also Snowden v. State, 574 So. 2d 960 (Ala.Crim.App.1990).
In the instant case, the officers arrived at the scene in the afternoon of August 15, 1994, shortly after the crimes had been committed. To secure the crime scene, they placed yellow police tape around the area and began a search of the area for evidence. On that day, they found two spent shell casings in the grass. The officers remained at the scene on that date until about 10:00 p.m. They left the crime scene unattended over the night and returned around noon on August 16 and continued their investigation and the search of the scene. They found two more spent shell casings and recovered a spent bullet from the door post of Humphries's automobile. The crime scene was left unattended at night and the officers returned each day until they had completed their investigation, which apparently took four days. On August 18, another spent shell casing was found. The shell casings found on August 15 and 16 were placed in the same envelope. One of these casings was the one identified as having been fired from the appellant's pistol. We cannot ascertain from the record whether it was found on August 15 or 16.
The appellant, in effect, argues that leaving the crime scene unattended at night amounted to a break in the chain of custody as to the shell casings and bullet and that the state failed to lay a sufficient predicate that there was a reasonable probability that the items found were original to the scene or had been there since the crimes were committed or were in the same condition as they were at the commencement of the chain. The crime scene was in an isolated and unlighted rural area, well off the highway, and behind a church. The officers were apparently satisfied that the posting of the area with yellow police tape was sufficient to secure the crime scene in that particular location. There was no indication that the crime scene had been tampered with in any manner. The appellant did not allege or make any showing of ill will, bad faith, evil motive, or evidence of tampering by the investigators or anyone else. Without some showing in this regard, it is reasonable to assume that the items referred to above that were found at the scene were in substantially the same condition as when the crimes were committed and were evidence of the crimes themselves. We do not find a break in the chain of custody. The state established a chain of custody sufficient to authenticate the items and allow their admission into evidence. Applying the totality of the circumstances test, we conclude that there is a reasonable probability that the evidence was intact, and we find that the trial court committed no error in allowing *475 the shell casings and bullet into evidence.
IV.
The appellant contends that the trial court committed reversible error by denying his motion to absent himself from a pretrial suppression hearing on the state's evidence relating to or stemming from pretrial photographic lineups involving him. The trial court denied his motion and required his presence at the suppression hearing. We find no merit in this contention. His reliance on Ala. R.Crim.P. 9.1 and Ex parte DeBruce, 651 So. 2d 624 (Ala.1994), is misplaced. While a defendant in a capital case may waive his appearance at some pretrial proceedings under some circumstances, Ex parte DeBruce, neither Ex parte DeBruce nor Rule 9.1 gave him the right to be absent.[5]
"`Although it has sometimes been argued that a defendant should have a right to be absent from his trial if he so chooses, the law generally is to the contrary. "The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right," [Singer v. United States, 380 U.S. 24, 34-35, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965)] and thus it does not follow from the fact that the right of presence can be waived or forfeited that a defendant can insist upon a right not to attend his trial.'"
Cox v. State, 585 So. 2d 182, 197 (Ala.Crim. App.1991), cert. denied, 503 U.S. 987, 112 S. Ct. 1676, 118 L. Ed. 2d 394 (1992) (quoting with approval 3 W. LaFave and J. Israel, Criminal Procedure § 23.2(c) at 9 (1984)).
We hold that the appellant had no right to be absent from the suppression hearing, and the trial court's denial of his motion was proper.
V.
The appellant contends that the trial court committed reversible error in denying his motion in limine seeking to have the two prosecuting attorneys removed from the prosecution of his case and new prosecutors substituted on the grounds that the prosecutors were present when the appellant gave incriminating statements to the police and that they testified at the hearing on the appellant's motion to suppress his statements. The record shows that the two prosecutors in question were present when some of the appellant's statements were given; however, they testified at the hearing on the motion in limine that they did not participate in the interrogation, but that they were merely observers. They were not called as witnesses during the trial and did not testify before the jury. The rule against prosecutors testifying as witnesses in jury trials in criminal cases is premised upon the concern that the jury might be improperly influenced because of the prestige and authority of the office of the prosecutor. Tarver v. State, 492 So. 2d 328, 329-30 (Ala.Crim.App.1986), aff'd, 553 So. 2d 633 (Ala.1989), cert. denied, 494 U.S. 1090, 110 S. Ct. 1837, 108 L. Ed. 2d 966 (1990), and cases cited therein. However, because neither prosecutor was called as a witness or testified before the jury, there was no possibility of the jury's being improperly influenced in this case. The trial court properly denied the motion in limine seeking removal of the prosecutors.
VI.
The appellant contends that the trial court erred in denying his motion to suppress his inculpatory statements on the grounds that they were obtained in violation of his Fifth and Sixth Amendment rights under the Constitution of the United States; more specifically he argues that he did not knowingly, intelligently, and *476 voluntarily waive his right to counsel, and that his statements were illegally obtained from him by interrogation after he had invoked his right to counsel.
The Fifth Amendment provides that "no person ... shall be compelled in any criminal case to be a witness against himself." The United States Supreme Court in Miranda v. Arizona established procedures to safeguard a defendant's Fifth Amendment privilege against the inherently coercive effects of custodial interrogation. Miranda requires that before questioning a suspect in custody, law enforcement officials must inform the suspect of certain rights, including the right to have an attorney present during questioning, and that if the suspect cannot afford an attorney, one will be appointed for him. Id. at 444, 86 S. Ct. 1602. Failure to inform a suspect of his Fifth Amendment rights before questioning renders any pretrial statements elicited from the suspect during custodial interrogation inadmissible at trial. Id. at 492, 86 S. Ct. 1602. In Miranda, the Supreme Court held that when the person being questioned invokes his right to counsel, the interrogation must cease until an attorney has been made available. Id. at 473-74, 86 S. Ct. 1602. The Supreme Court held in Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), that "unless the accused himself initiates further communication, exchanges, or conversations with the police," invocation of the right to counsel bars further interrogation without counsel. In Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983) (plurality opinion), the Supreme Court held that a defendant who "evinced a willingness and a desire for a generalized discussion about the investigation," had effectively initiated conversation under Edwards v. Arizona, despite having earlier asserted his right to counsel. See also Henderson v. Dugger, 925 F.2d 1309, 1312-13 (11th Cir.1991).
"Inculpatory admissions in the nature of a confessionthat is, directly relating to the facts or circumstances of the crime, and connecting the defendant therewithare subjected to the same rules of admissibility, as direct confessions, and are therefore prima facie involuntary and inadmissible." McGehee v. State, 171 Ala. 19, 22, 55 So. 159, 160 (1911) (citations omitted). Moreover, no distinction is made between inculpatory and exculpatory statements. Miranda, 384 U.S. at 477, 86 S. Ct. 1602. Inculpatory statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver as any other statement. Id. See also Coral v. State, 628 So. 2d 954 (Ala.Crim.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); Arthur v. State, 575 So. 2d 1165 (Ala.Crim.App.1990), cert. denied, 575 So. 2d 1191 (Ala.1991). However, volunteered statements of any kind are not barred by the Fifth Amendment, and their admissibility is not affected by the holding in Miranda. Miranda, 384 U.S. at 478, 86 S. Ct. 1602; Williams v. State, 601 So. 2d 1062 (Ala.Crim.App.1991), aff'd, 662 So. 2d 929 (Ala.), cert. denied, 506 U.S. 957, 113 S. Ct. 417, 121 L. Ed. 2d 340 (1992). A spontaneous statement, volunteered by an accused and volunteered to a police officer prior to any questioning, is admissible against the accused even though he was not given Miranda warnings. Magwood v. State, 494 So. 2d 124 (Ala.Crim.App.1985), aff'd, 494 So. 2d 154 (Ala.1986), cert. denied, 479 U.S. 995, 107 S. Ct. 599, 93 L. Ed. 2d 599 (1986).
The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." The rights of the accused under the Sixth Amendment have been held to attach "at or after the initiation of adversary judicial criminal proceedingswhether by way of formal charge, preliminary hearing, indictment, information, or arraignment." United States v. Gouveia, 467 U.S. 180, 187-88, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984). We *477 have previously held that where the interrogating officer knows that the accused is represented by counsel but nevertheless interviews the accused at a time when counsel is not present, willingly and by subterfuge bypassing the presence of defendant's counsel, the accused is denied his constitutional right of counsel, and such denial is not cured by a contention that the inculpatory statement secured at the time was voluntary. Thompson v. State, 347 So. 2d 1371 (Ala.Crim.App.), cert. denied, 347 So. 2d 1377 (Ala.1977), cert. denied, 434 U.S. 1018, 98 S. Ct. 740, 54 L. Ed. 2d 765 (1978); Freeman v. State, 342 So. 2d 435 (Ala.Crim.App.1977).
The oft-stated rule is that a confession is prima facie involuntary and inadmissible, and the state must show voluntariness and lay a Miranda predicate in order for the confession to be admitted. Thomas v. State, 373 So. 2d 1167 (Ala. 1979), vacated on other grounds, 448 U.S. 903, 100 S. Ct. 3043, 65 L. Ed. 2d 1133 (1980); Coral v. State; Lewis v. State, 535 So. 2d 228 (Ala.Crim.App.), cert. denied, 535 So. 2d 228 (Ala.1988). (Of course, as we have previously noted, this principle does not apply to volunteered statements.) Clearly, a constitutional right, such as the right to counsel, may be waived, even at critical stages of the proceedings. Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); United States v. Wade, 388 U.S. 218, 237, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Whether a waiver of the right to remain silent and the right to counsel is voluntarily, knowingly, and intelligently made depends upon the particular underlying facts and circumstances of each case, including the background, experience, and conduct of the accusedi.e., the totality of the circumstances. Lewis v. State; Chandler v. State, 426 So. 2d 477, 478 (Ala.Crim. App.1982) (citing Edwards v. Arizona; Myers v. State, 401 So. 2d 288 (Ala.Crim. App.1981)), and cases cited therein. An accused may waive the right to have counsel present at an interrogation at a critical stage after counsel has been retained or appointed, the burden being on the prosecution to show that the waiver of counsel's presence was voluntarily, knowingly, and intelligently made. Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977); Miranda v. Arizona; Nelson v. State, 398 So. 2d 421 (Ala.Crim.App.1981). Thus, the fact that a defendant was represented by counsel does not mean, per se, that law enforcement officials cannot procure a statement of any kind from the accused without prior notice to, and the consent of, his counsel. Brewer v. Williams; Miranda v. Arizona; Nelson v. State. In Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), the defendant challenged the validity of his otherwise voluntary and intelligent waiver of his Miranda rights on the ground that the police failed to inform him of the efforts of a public defender to contact him. The Court held that such police conduct, if entirely unknown to the defendant, had no bearing on his ability to comprehend and knowingly relinquish a constitutional right. The Court held, "[W]e are not prepared to adopt a rule requiring that the police inform a suspect of an attorney's efforts to reach him." Id. at 425, 106 S. Ct. 1135. The Court's decision focused on the voluntariness of the suspect's waiver as well as the state court's finding that there was no conspiracy or collusion on the part of the police. In Ex parte Neelley, 494 So. 2d 697, 699 (Ala.1986), cert. denied, 480 U.S. 926, 107 S. Ct. 1389, 94 L. Ed. 2d 702 (1987), the Alabama Supreme Court, applying the holding in Moran v. Burbine, held that "neither petitioner's Fifth nor Sixth Amendment rights were violated by the failure of the interrogating authorities (who had given petitioner the Miranda warnings) to inform her of the presence of an attorney who had been sent at the request of a third party." Cf. Smith v. State, 588 So. 2d 561, 575-77 (Ala.Crim. App.1991).
*478 In the instant case, the record shows that the crimes were committed shortly after 1:00 p.m. on August 15, 1994; that, around 7:00 p.m. the same day, the appellant was arrested for committing the crimes; that he was advised of his Miranda rights by an officer shortly after his arrest; that he refused to sign an acknowledgement that he had been advised of his Miranda rights or that he had waived of those rights; and that, when he was advised of his rights, he "started cussing everybody out" and volunteered that he had not killed anybody and was not involved in the crimes. No interrogation occurred on this occasion. On August 18, 1994, he was interviewed by an officer about an unrelated arson case, and during this interview he stated that he wanted an attorney before he talked to anyone about the crimes at issue here. He was not interrogated on this occasion about these crimes. On August 20, 1994, Officer Dannie Certain of the Madison County Sheriff's Department, the chief investigator of the crimes involved in this case, was contacted by the appellant's father, who told him that the appellant wanted to talk with him at the jail. Upon arriving at the jail, Certain advised the appellant of his Miranda rights, and the appellant executed an acknowledgement and waiver of those rights. Certain asked the appellant if he had telephoned his father and had had his father contact Certain and request that Certain come to the jail, and the appellant responded that he had. After the appellant signed the waiver of rights form, Certain asked him "what he had to tell us," and the appellant related in his own words his version of the crimes and his involvement or lack of involvement in them. After he had finished his statement, which was not recorded, Certain asked him if he would repeat it so that he could record it. The appellant repeated the statement; however, the recording device failed to work properly and only a small portion of the statement was recorded. Certain then asked the appellant if he would write out his statement in his own handwriting, which he did. After a discussion with Certain, the appellant volunteered to take a polygraph examination if one could be arranged. On August 24, 1996, the appellant completed a questionnaire in preparation for taking the polygraph examination; however, the polygraph examination was cancelled because of time constraints, and it was never rescheduled. Before completing the questionnaire, the appellant was again advised of his Miranda rights and he again waived them, signing an acknowledgment and waiver. The questionnaire was, in essence, another statement almost identical to the appellant's previous written statement. The first oral statement, the second oral statement (which was partially recorded), the statement written in the appellant's own handwriting, and the completed questionnaire were all practically identical. In all of his statements, except the first volunteered statement in which he denied involvement in the crimes, while admitting that he was present at the scene when the crimes were committed, he denied knowledge that any crime was going to be committed, denied any involvement in the crimes, and placed the entire blame upon Coffman. The appellant's written statement, the portion of the oral statement that was tape-recorded, and the questionnaire were admitted into evidence and are a part of the record.
The appellant's first statement, which he made shortly after he was arrested, where he denied involvement in the crimes, was volunteered, was not subject to Miranda warnings, and was properly admitted. Miranda; Williams v. State; Magwood v. State. The appellant's statements are not direct confessions, but are admissions. His first statement, which was volunteered, was exculpatory, and the remaining statements were inculpatory, even though he denied involvement in the crimes, because they connected him in some respects with the criminal activity and placed him at the scene of the crimes when they were committed. As we have previously stated, the same rules of admissibility apply to *479 admissions, both inculpatory and exculpatory, as apply to confessions. Miranda; McGehee v. State; Coral v. State.
The record in this case supports the conclusions that full Miranda warnings were given the appellant; that there was no improper influence, threats, intimidation, coercive factors, or other inducement to obtain the appellant's statements; and that he initiated the conversations with Investigator Certain after he had initially invoked his right to counsel. He was informed of his right to counsel before making his inculpatory statements or admissions, and he clearly voluntarily, knowingly, and intelligently waived that right and chose to talk with the investigator. The facts do not support the appellant's contention that his statements were illegally obtained. The appellant, who was 31 years of age, knew what he was doing. In fact, the appellant was obviously eager to discuss the case with the investigators, and willingly repeated his story in his own words four times. He seems to have done all the talking, and there was little or no interrogation. He "evinced a willingness and a desire for a generalized discussion about the investigation," without counsel, even though he had earlier asserted his right to counsel. Clearly, he initiated the conversations with the investigators. Oregon v. Bradshaw. Although the record shows that the appellant filed a written request for appointment of counsel with the trial court on August 17, 1994, and that counsel was appointed that day and further shows that on August 18, 1994, when he was questioned about an unrelated crime, he stated that he did not wish to talk about these crimes until he had an attorney, neither the appellant nor Certain knew of the appointment of counsel when the statements were made and the questionnaire was completed. On August 20, 1994, Certain asked the appellant before receiving his statement if he had an attorney, and he responded that he did not have one at that time. Certain did not learn that counsel had been appointed until the preliminary hearing on September 21, 1994. There is nothing in the record to suggest the investigator or anyone else willingly or by subterfuge bypassed the presence of the appellant's counsel. The rulings in Moran v. Burbine, Thompson v. State, Freeman v. State, and Ex parte Neelley, are not applicable in this case.
Our review and assessment of the totality of the circumstances surrounding the appellant's inculpatory statements convinces us that the statements were voluntarily given after a knowing and intelligent waiver of the appellant's Fifth Amendment rights. Such a review also convinces us that the appellant made voluntarily and intentionally relinquished his known right to have counsel present before talking with Certain. We hold that the prosecution met the standard required to show a waiver of the appellant's Fifth and Sixth Amendment rights. Accordingly, we further hold that the trial court's denial of the appellant's motion to suppress the statements was proper, and the statements were properly admitted into evidence.
VII.
The appellant contends that any statements and all evidence arising from his warrantless arrest should have been suppressed because, he argues, Deputy Sheriff Pete Hose did not have the required legal authority to search the mobile home he was in when he was arrested and that Hose had no probable cause to arrest him. We find no merit to this contention.
The record shows that Hose was on routine patrol when he received a radio dispatch that shots were being fired in or near a mobile home park. Upon arriving, a child informed Hose that the shots came from the far east corner of the park, and directed him toward a particular mobile home. A woman,[6] who was at the *480 front door of the mobile home, beckoned Hose and said, "He's in here. He's back there, and he's got a gun. Be careful." The record also shows that Wanda Oliver, the appellant's aunt and the owner of the mobile home gave her consent to Hose, along with a city police officer, to enter her home. Hose went down the hallway to a bedroom where he found the appellant lying on a bed. He advised the appellant to stand up and to keep his hands above his head. He conducted a patdown search of the appellant for safety purposes, and in doing so, discovered a clip to a small caliber semiautomatic pistol, a knife, and some identification cards that were obviously not his. Although the record is not clear, apparently at some point during this time, Hose was notified by radio that the appellant was wanted as a suspect in a murder that had occurred earlier that day. Hose handcuffed the appellant "for safekeeping," escorted him out of the mobile home, and placed him in the patrol car. We also note that it does not appear from the record that Hose searched any portion of the mobile home, but rather that he was directed by Oliver to the location of the loaded pistol, which was lying on the top of a box of clothes.
"`One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent. When the state seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving the consent was given freely and voluntarily. State v. Ossey, 446 So. 2d 280 (La.1984); State v. Wolfe, 398 So. 2d 1117 (La.1981).'"
Brannon v. State, 521 So. 2d 1356, 1359 (Ala.Crim.App.1987) (quoting State v. Owen, 453 So. 2d 1202, 1206 (La.1984)).
It is apparent that Hose did not go to Oliver's home to arrest the appellant for a felony, but rather went there to investigate the "shots-being-fired" call. Under the circumstances present upon his arrival, Hose had every reason to believe that a dangerous person was in Oliver's home. Further, the evidence is undisputed that Oliver voluntarily gave her consent for the officers to enter. Therefore, we hold that there was a valid consensual search and that it was proper for Hose to search the appellant before his arrest.
"In the absence of probable cause for arrest, officers have a right under appropriate circumstances to stop and interview a person for purposes of investigation. In such a situation, a limited exception to the search warrant requirement exists allowing officers to search the person and immediate vicinity for weapons where the officers have reason to believe their safety is endangered. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968]; Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 [1969]."
United States v. Bonds, 422 F.2d 660, 665 (1970). Given the facts available to Hose at the time, he would have been derelict in his duty as a law officer if he had not ensured his safety and the safety of others.
Finally, the appellant argues that Hose did not have probable cause to arrest him and, in particular, he notes that Hose testified that he did not have probable cause to arrest the appellant. "[B]ecause the test for determining probable cause is an objective and not a subjective test, this court may `"find probable cause in spite of an officer's judgment that none exists."'" Hopkins v. State, 661 So. 2d 774, 779 (Ala.Crim.App.1994) (quoting 1 LaFave § 3.2(b), in turn quoting United States ex rel. Senk v. Brierley, 381 F. Supp. 447 (M.D.Pa.1974), aff'd, 511 F.2d 1396 (3d Cir.), cert. denied, 423 U.S. 843, 96 S. Ct. 77, 46 L. Ed. 2d 63 (1975)). "[W]hen considering whether an arrest is valid, a police officer's subjective intent is immaterial; the only requisite is that at the time the arrest is made, the police have probable cause." Carruth v. Barker, 454 So. 2d 539, 540 (Ala.1984). Clearly, when Hose was notified that the appellant was wanted in a murder that had occurred that day, particularly in view of the fact that Hose had *481 discovered during his safety patdown of the appellant a semi-automatic pistol clip, a knife, and identification cards belonging to someone else (which turned out to belong to the victim, Humphries), Hose had probable cause to arrest the appellant.
For these reasons, the trial court's denial of his motion to suppress on the grounds asserted here was proper.
VIII.
The appellant contends that after opening statements but before the testimony of the first witness, "several matters were discussed at the bench outside of the Defendant's presence during a recess." He specifically argues that a juror made a belated response to voir dire questions when he was not present. However, we cannot recognize factual assertions made in brief that are not disclosed or supported by the record; this court is bound by the record. Moore v. State, 457 So. 2d 981 (Ala.Crim.App.1984), cert. denied, 470 U.S. 1053, 105 S. Ct. 1757, 84 L. Ed. 2d 820 (1985). Although the record shows that during the hearing on the motion for new trial there was some discussion regarding a time during a recess when the appellant was not sitting at the defense table, the record falls short of showing that the appellant was absent from the courtroom. In fact, the record does not show that the appellant was absent during any of the trial proceedings; thus, in the absence of evidence to the contrary, we must presume that he was present at all times. Pike v. State, 47 Ala.App. 161, 251 So. 2d 779 (1971).
IX.
The appellant contends that, during closing argument, reversible error occurred when the prosecutor, on two occasions, allegedly commented on the appellant's failure to testify and also when the prosecutor commented on codefendant Coffman's conviction for the same crimes. In each instance the appellant objected to the comments and/or moved for a mistrial. The trial court overruled the objections and denied the motions for a mistrial.
First, we note,
"A mistrial should be granted only when manifest necessity is demonstrated. Wadsworth v. State, 439 So. 2d 790, 792 (Ala.Cr.App.1983), cert. denied, 466 U.S. 930[, 104 S. Ct. 1716, 80 L. Ed. 2d 188] ... (1984). It is clear that `"[a] motion for mistrial should not be granted where the prejudicial qualities of the comment can be eradicated by action of the trial court."' Register v. State, 640 So. 2d 3, 10 (Ala.Cr.App.1993), aff'd, 680 So. 2d 225 (Ala.1994), quoting Henry v. State, 468 So. 2d 896, 901 (Ala.Cr.App. 1984), cert. denied, 468 So. 2d 902 (Ala. 1985). See Stanton v. State, 648 So. 2d 638, 643 (Ala.Cr.App.1994). `The grant or denial of a mistrial is a matter within the sound discretion of the trial court and will only be disturbed upon a showing of manifest abuse.' Roundtree v. State, 461 So. 2d 31, 33 (Ala.Cr.App. 1984). Furthermore, when the `trial court promptly charges the jury to disregard improper remarks, there is a presumption against error and the prejudicial effects thereof are removed.' Parker v. State, 549 So. 2d 989, 992 (Ala. Cr.App.1989), quoting Haywood v. State, 501 So. 2d 515, 519 (Ala.Cr.App.1986)."
Huffman v. State, 706 So. 2d 808 (Ala. Crim.App.1997).
A.
The first comment complained of is as follows:
"No, we heard testimony aboutI am not talking about in the statement, but other testimony about business to take care of, we have got to go. All of a sudden there is a rush for time. In that rush for time they go from a trailer there in New Market down near Gurley, the Flint River, and nowhere in either written statement is it ever mentioned why they were going anywhere. It was never mentioned. It was never mentioned *482 why they went to that particular place.
"Also, when they get there, in the statement the defendant admits in that statement he asked for the fellow in the Cadillac. It was never mentioned why. Why was he asking for the fellow in the Cadillac?"
Defense counsel objected to the comment, stating:
"We object to the last statement of counsel saying that there was no explanation of why they were out there. That's a direct comment on the defendant's failure to testify. We object and move for a mistrial."
Following its denial of the motion for a mistrial, the trial court instructed the jury to "disregard the last statement of the prosecutor. Disregard the statement regarding the man in the car. Don't consider that in your deliberations."
The appellant argues that the trial court's instructions in this instance compounded and magnified what, he says, was an improper comment upon his failure to testify. We need not reach the question whether the court's instructions were curative because we hold that the comment was not a comment upon the appellant's failure to testify.
"`Alabama law clearly holds that "[w]here there is the possibility that a prosecutor's comment could be understood by the jury as reference to failure of the defendant to testify, Art. I, § 6 [Const. of Ala. of 1901] is violated."' Ex parte Wilson, 571 So. 2d 1251, 1262 (Ala. 1990). However, `a prosecutor may legitimately base his argument on the evidence of the appellant's statement' to the police. Hereford v. State, 608 So. 2d 439, 442 (Ala.Cr.App.1992). See also Henderson v. State, 584 So. 2d 841, 855 (Ala.Cr.App.1988); Smith v. State, 588 So. 2d 561, 570 (Ala.Cr.App.1991); Kimble v. State, 545 So. 2d 228, 230 (Ala.Cr. App.1989); Brinks v. State, 500 So. 2d 1311, 1314-15 (Ala.Cr.App.1986). `Argument by the prosecution concerning omissions and inconsistencies in the defendant's version of the case is not improper.' Salter v. State, 578 So. 2d 1092, 1096 (Ala.Cr.App.1990), cert. denied, 578 So. 2d 1097 (Ala.1991)."
Mosely v. State, 628 So. 2d 1041, 1042 (Ala. Crim.App.1993). Unquestionably, the above comments by the prosecutor were directed toward the written statement and the questionnaire the appellant gave to the authorities; he was pointing out the omissions in those statements. Thus, the trial court properly denied the motion for a mistrial.
The record regarding the second comment complained of shows the following:
"The theory. We have heard some talk from the defense that there was some talk that David Coffman is a hit man. David Coffman is a hit man. In fact, they asked Dannie Certain about that. Have you ever known David Coffman to be connected with any other killings? Certain answered, `Yes.' And there was something about a contract. But, other than that statement by Dannie Certain, there is no proof of any kind of a contract killing or hit. It's just talk in opening statement. That's all we have heard. Even in that regard, if they want you to believe this was a contract hit, the defendant was with him."
"[DEFENSE COUNSEL]: Your Honor, same objection; same motion.
"THE COURT: Overruled."
We question whether the trial court was sufficiently put on notice of the specific comment defense counsel was objecting to. See Kimble v. State, 545 So. 2d 228 (Ala. Crim.App.1989) (it is the duty of opposing counsel to object specifically and to point out substantially the language deemed objectionable).
Assuming, arguendo, that this complaint is preserved, clearly this comment by the prosecutor was a reference to the defense's theory that Coffman was a hired *483 hit man, that robbery was not the motive, and that, although the appellant was with Coffman when the crimes occurred, he did not do the shooting and was not involved. The prosecutor's argument regarding the defense's theory was a fair and legitimate comment on the evidence and a fair response to the argument of the defense. It was not a comment on the appellant's failure to testify. See Brinks v. State, 500 So. 2d 1311 (Ala.Crim.App.1986). The trial court properly overruled the appellant's objection.
B.
The appellant contends that the following comment was improper because, he says, it was irrelevant and highly prejudicial:
"The last point made by the defense is that Coffman, the co-defendant in this case, was convicted earlier, a few months ago, on the very same charge as this defendant sits before you today charged with. He was not convicted of being a hit man, but this exact same thing we are here on today."
The trial court did not specifically rule on the appellant's objection to this comment; however, it did instruct the jury that the prosecutor's remarks were not evidence and that the jury should not consider the comment in its deliberations.
In Stokes v. State, 462 So. 2d 964, 966-67 (Ala.Crim.App.1984), we addressed an almost identical comment and discussed the general rule of inadmissibility of a codefendant's conviction, as follows:
"A survey of the Alabama cases on this point reveals that disclosure of the outcome of a co-defendant's case has been denounced whether it occurred in argument, see Knowles v. State, 44 Ala. App. 163, 204 So. 2d 506 (1967) (Prosecutor's statement that other defendants had already pled guilty); Bell v. State, 41 Ala.App. 561, 140 So. 2d 295 (1962) (Prosecutor's statement that co-defendant had confessed); Lowery v. State, 21 Ala.App. 352, 108 So. 351 (1926) (District attorney's comment that one person had already been convicted); Felder v. State, 20 Ala.App. 603, 104 So. 444 (1925) (Prosecutor's comment that, `The other man had pleaded guilty'), in the State's case-in-chief, see Williams v. State, 369 So. 2d 910 (Ala.Crim.App.1979) (State's witness asked whether he testified in case when co-defendant was convicted); Lane v. State, 40 Ala.App. 174, 109 So. 2d 758 (1959) (State asked co-indictee the outcome of his prosecution); Evans v. State, 39 Ala.App. 498, 105 So. 2d 831 (1958) (District attorney asked accomplice whether he was guilty of same offense with which defendant was charged), or during the presentation of the defense, see Dickens v. State, 49 Ala.App. 480, 273 So. 2d 240 (1973) (Defendant questioned, on cross-examination, about co-defendant's guilty plea); McGhee v. State, 41 Ala.App. 669, 149 So. 2d 1 (1962) (Defendant sought to present evidence of co-defendant's acquittal); Hill v. State, 210 Ala. 221, 97 So. 639 (1923) (Defendant claimed his own prosecution should be barred by accomplice's acquittal).
"In all of the Alabama cases cited above, the reviewing courts have disapproved of reference to the disposition of a co-defendant's case on the theory that the outcome of another's prosecution is simply irrelevant to the guilt or innocence of the defendant and may not be received as substantive evidence at defendant's trial. See, e.g., Hill v. State, 210 Ala. 221, 97 So. 639 (1923). This is not to say, of course, that for impeachment purposes, a co-defendant may not be questioned regarding his conviction for the same offense. See generally C. Gamble, McElroy's Alabama Evidence § 149.01(8)(3d ed.1977). The trial court should receive the latter kind of evidence, however, only as it bears on the testifying co-defendant's credibility and should, on request, instruct the jury regarding its limited purpose. See generally *484 1 Wigmore, Evidence § 13 (Fillers rev.1983)."
Therefore, we hold that the above comment by the prosecutor in this case was improper. However, we also held in Stokes that reversal is not required when the error is cured by the trial court's prompt instruction to the jury to disregard the prosecutor's remark. Here, the trial court instructed the jury, "Ladies and gentlemen, that evidence is not before you. Don't consider any of that in your deliberations." Under the circumstances of this case, we hold that any error was cured by these instructions. See Stokes v. State; Williams v. State, 369 So. 2d 910 (Ala. Crim.App.1979); Bell v. State, 41 Ala.App. 561, 140 So. 2d 295 (1962).
X.
The appellant contends that the trial court's jury instructions were inadequate because, he says, the instructions failed to properly address the issue relating to specific intent to kill. This issue is not preserved for review. Defense counsel did not timely object to the instructions.
"`[O]bjections to portions of the court's oral charge cannot be raised for the first time on motion for new trial.' Harris v. State, 412 So. 2d 1278, 1282 (Ala.Cr.App. 1982). See also Duncan v. State, 436 So. 2d 883, 906 (Ala.Cr.App.1983) (`even if the manner in which the trial court delivered its oral charge and the subsequent requested charge was error, which we do not hold that it was, appellant's objections[, which were raised in his motion for a new trial,] came too late') (emphasis omitted), cert. denied, 464 U.S. 1047, 104 S. Ct. 720, 79 L. Ed. 2d 182 (1984), overruled on other grounds, Jackson v. State, 516 So. 2d 726 (Ala.Cr. App.1985). `Proper objections to the trial judge's failure or refusal to give the defendant's requested written instructions may not be raised for the first time on the motion for new trial. See Gurley v. State, 216 Ala. 342, 113 So. 391 (1927); Hewitt v. State, 389 So. 2d 157 (Ala.Cr. App.1980).' Coleman v. State, 420 So. 2d 833, 834 (Ala.Cr.App.1982)."
Hunter v. State, 645 So. 2d 370, 371 (Ala. Crim.App.1994). The trial court did not err in denying the motion for a new trial on this ground.
For the above reasons, the trial court's judgment in this case is due to be, and it is hereby, affirmed.
The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.
AFFIRMED.
All Judges concur.
NOTES
[1] David Anthony Coffman was indicted for the same offenses as the appellant in this case. He was tried before a jury and convicted on both counts of the indictment, i.e., murder committed during a robbery and attempted murder, and was sentenced to life imprisonment without the possibility of parole on the murder-robbery conviction and life imprisonment on the attempted murder conviction. The Alabama Court of Criminal Appeals affirmed his convictions by an unpublished memorandum. Coffman v. State, 717 So. 2d 893 (Ala.Cr.App.1997) (table). The Alabama Supreme Court denied Coffman's petition for certiorari review on November 21, 1997, and the Court of Criminal Appeals issued its certificate of judgment on the same date.
[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[3] Cochran v. State, 400 So. 2d 435 (Ala.Cr. App.1981), writ denied, 400 So. 2d 435 (Ala. 1981), app. after remand, 500 So. 2d 1161 (Ala.Cr.App.1984), aff'd. in part, rev'd in part, 500 So. 2d 1179 (1985), on remand, 500 So. 2d 1188 (Ala.Cr.App.1986), aff'd, 500 So. 2d 1064 (Ala.1986), cert. denied, 481 U.S. 1033, 107 S. Ct. 1965, 95 L. Ed. 2d 537 (1987), grant of habeas corpus aff'd, 61 F.3d 20 (11th Cir. 1995), cert. denied, 516 U.S. 1073, 116 S. Ct. 776, 133 L. Ed. 2d 728 (1996).
[4] Section 12-21-13, provides as follows:
"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."
[5] Rule 9.1, Ala.R.Crim.P. was amended effective December 1, 1997, to permit a capital defendant to waive his right to be present at all stages of the proceedings, except sentencing.
[6] The record does not clearly indicate whether this woman was Wanda Oliver, the owner of the mobile home, or Carol Henderson, a neighbor. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621311/ | 733 So. 2d 1282 (1999)
STATE of Louisiana
v.
Johnell BROWN.
No. 99-K-0640.
Court of Appeal of Louisiana, Fourth Circuit.
May 26, 1999.
*1283 Harry F. Connick, District Attorney, Robin Pittman, Assistant District Attorney, New Orleans, Louisiana, Counsel For Plaintiff-Relator.
Court composed of Judge WILLIAM H. BYRNES III, Judge DENNIS R. BAGNERIS Sr., Judge MICHAEL E. KIRBY.
BYRNES, Judge.
We grant the State's writ application in order to review a ruling of the trial court granting the defendant, Johnell Brown's, motion to suppress the evidence. This Court issued an Order on April 9, 1999, permitting the defendant 15 days in which to file a response. Over thirty days have elapsed since the issuance of that order and the defendant has not filed a response.
On September 24, 1998, the defendant was charged with one count of possession of a firearm while in possession of a controlled dangerous substance, a charge to which he pled not guilty. His motion to suppress the evidence was heard and granted on January 29, 1999. The State now comes before this court seeking relief from this ruling. There is no indication of a trial date.
On September 21, 1998, police officers conducted a traffic stop in the 3000 or 3100 block of Annunciation Street. Driving the car was the defendant Johnell Brown. Brown did not have a driver's license with him at the time, and he told the officers that he had left his license at his home, which was a few blocks from the scene. One officer had him complete a field interview card, gave him a warning, and released him. When the officers returned to police headquarters, they ran Brown's name through the computer and found his license had been suspended.
On September 22nd, the officers were on patrol in the 3100 block of Annunciation when they saw Brown driving the same car he was seen driving the day before. When Brown saw the officers, he quickly pulled the car to the side of the road, jumped out of the car, leaving the car door open, and ran to the front yard of 2332 Annunciation. The officers stopped their car, exited, and called to Brown to step toward their car. One officer noticed Brown was clutching something in his hand. When one of the officers started walking around the police car, Brown turned and fled inside the residence at that address, leaving the door to the residence open. The officers followed Brown inside and saw him throw three packets out of an open window. While one officer escorted Brown outside, the other officer went outside to the area under the window and found three clear plastic bags of marijuana.
The officers and Brown walked to the police car, and they noticed the door to the car Brown had been driving was still open. One officer walked up to the car, looked inside, and saw a gun lying on the driver's side floorboard. Brown told the officers that it was his gun, and from his wallet he produced a receipt for the gun. The officer who appeared at the suppression hearing testified that he and his partner had not yet had a chance to advise him of his rights prior to his statement concerning the gun.
The officer also testified that Brown was known to other officers as "Micey", who was rumored to be involved with people who were involved with guns and drugs. However, the officer did not know Brown was "Micey" at the time he conducted the *1284 traffic stop the day before Brown's arrest. The officer testified that on the day of the arrest, there were some children milling in front of the Brown's car after Brown stopped it, but he denied that the children had been in the car when Brown stopped it or that they went inside the residence with Brown. He stated that he and his partner placed Brown under arrest after the officer retrieved the items Brown threw out the window and discovered they contained marijuana.
It is unclear exactly why the trial court suppressed the evidence in this case. Defense counsel argued at the suppression hearing that the officer's testimony was not credible because of "inconsistencies" in his testimony. However, these "inconsistencies" are negligible at best. Defense counsel first pointed to the officer's statement that he did not stop the defendant on the same street both days, yet the officer later testified that both times he saw the defendant driving on Annunciation Street. The officer testified that he was unsure what defense counsel meant by the "same street", and he insisted that the traffic stop the day before the arrest occurred a few blocks away from the scene of the arrest on the same street. The other "inconsistency" mentioned by defense counsel involved the officer's answers to questions about whether there were any children in the car on the day of the arrest. The officer first testified that the children did not get out of the car but were merely standing in front of the car after Brown stopped it. Defense counsel then further questioned the officer, and there was some confusion over whether defense counsel asked the officer if he saw "them" getting out of the car (meaning the children) or if he saw "him" (meaning the defendant) getting out of the car. The question immediately following the unclear question pertained only to the defendant's actions. When the question was read back by the court reporter later in the hearing, she indicated she thought defense counsel had said "them", while one of the prosecutors stated he thought defense counsel said "him." In any event, the court did not indicate that it did not believe the testimony of the officer.
Defense counsel then argued that the officers were not justified in entering the house, and therefore the marijuana abandoned at the officers' entry was tainted by the illegal entry. It has long been held that property cannot be seized legally if it was abandoned pursuant to an infringement of the person's property rights. However:
if ... property is abandoned without any prior unlawful intrusion into a citizen's right to be free from government interference, then such property may be lawfully seized. In such cases, there is no expectation of privacy and thus no violation of a person's custodial rights.
State v. Belton, 441 So. 2d 1195, 1199 (La. 1983)[1]. See also State v. Britton, 93-1990 (La.1/27/94), 633 So. 2d 1208; State v. Tucker, 626 So. 2d 707 (La.1993), opinion reaffirmed and reinstated on rehearing by 626 So. 2d 720 (La.1993); State v. Laird, 95-1082 (La.App. 4 Cir. 5/8/96), 674 So. 2d 425.
An "actual stop" occurs when an individual submits to a police show of authority or is physically contacted by the police. Tucker. An "imminent actual stop" occurs when the police come upon an individual with such force that, regardless of the individual's attempts to flee or elude the encounter, an actual stop of the individual is virtually certain. Id. The Supreme Court listed the following factors to be considered in assessing the extent of police force employed in determining whether that force was "virtually certain" to result in an "actual stop" of the individual: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the *1285 individual with their weapons drawn; (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter. Id. An actual stop is imminent "when the police come upon an individual with such force that, regardless of the individual's attempts to flee or elude the encounter, an actual stop of the individual is virtually certain." Tucker, 626 So.2d at 712.
Here, the officers asked the defendant to approach their car and then chased the defendant into the house and overtook him inside the first room inside the house as he threw the marijuana out the window. As such, there was an actual stop. Thus, the officers had to have a justification for entering the house. The State argues the officers lawfully entered the house because they had probable cause to arrest the defendant, and there were exigent circumstances which allowed their entry.[2] In State v. Page, 95-2401, p. 10 (La.App. 4 Cir. 8/21/96), 680 So. 2d 700, 709[3], this court discussed the warrantless entry into a protected area:
There is a justified intrusion of a protected area if there is probable cause to arrest and exigent circumstances. State v. Rudolph, 369 So. 2d 1320, 1326 (La. 1979), cert. den., Rudolph v. Louisiana, 454 U.S. 1142, 102 S. Ct. 1001, 71 L. Ed. 2d 294 (1982). Exigent circumstances are exceptional circumstances which, when coupled with probable cause, justify an entry into a "protected" area that, without those exceptional circumstances, would be unlawful. Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence. State v. Hathaway, 411 So. 2d 1074, 1079 (La.1982).
See also State v. Blue, 97-2699 (La.App. 4 Cir. 1/7/98), 705 So. 2d 1242[4]; State v. Tate, 623 So. 2d 908 (La.App. 4 Cir.1993).[5]
"Probable cause to arrest exists when the facts and circumstances known to the officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing the person to be arrested has committed a crime." State v. Wilson, 467 So. 2d 503, 515 (La.1985)[6]. See also Blue; State v. Johnson, 94-1170 (La.App. 4 Cir. 8/23/95), 660 So. 2d 942[7].
In Blue, the officers had received a tip concerning drug sales from a certain address by a man wearing certain clothing. The officers went to that address and saw the defendant walk out onto the porch, wearing clothing which matched the description given in the tip. The defendant, however, was unknown to the officers. When the defendant walked back inside the apartment, the officers followed him inside and discovered contraband. On review of the trial court's suppression of this evidence, this court found the officers did not have probable cause to enter the house. Although the defendant's clothing matched the description given in the tip, the officers did not observe him engage in any criminal activity; he merely looked *1286 startled and walked back inside the apartment when he observed the officers. This court distinguished the other case cited by the State wherein the officers' entries were upheld, finding that in those cases there were additional factors which supplied the probable cause to arrest the defendant:
In State v. Hathaway, 411 So. 2d 1074 (La.1982), officers received a tip that a known drug user would be delivering drugs to a residence in a certain block and that he would be armed. The officers set up a surveillance of the block and saw the user talking to another known drug user and to the defendant, who was unknown to the officers. The officers decided to detain the men, and when they announced their presence and told the men to "freeze", the other known drug user and the defendant ran inside one of the residences in the block. The officers chased them and entered the residence, where they found the defendant with a gun and the other man trying to flush a syringe. On review of the defendant's conviction, the Court found the tip, combined with the officers' observations and their knowledge of two of the men, gave them reasonable suspicion to stop the group. The flight of one of the known users gave them probable cause to believe he was involved in drug activity, and their belief he entered the house to dispose of evidence gave them exigent circumstances to follow and enter the house.
Likewise, in State v. Killian, 95-826 (La.App. 3rd Cir.5/8/96), 677 So. 2d 487 [writ den. 96-1461 (La.11/8/96), 683 So. 2d 266], the officers received a tip that marijuana was being sold from a certain residence. The C.I. then conducted a controlled purchase from the residence and informed the officers that although the seller still had a quantity of marijuana in the residence, he was planning to sell it soon. The officers entered the house to secure it while they obtained a warrant. After being advised of his rights, the defendant consented to a search of the house. On review, the court found the officers had probable cause to believe the residence contained drugs, and the imminent sale of the remaining drugs allowed the officers to enter and secure the residence while the warrant was sought. In addition, the court found that because the entry was valid, the consent to search was also valid.
In State v. Morace, 446 So. 2d 1274 (La.App. 2nd Cir.1984) [writ den. 448 So. 2d 689 (1984)], officers received a tip that the defendant, who was under investigation by them at the time, was riding around a certain area in a certain car with a box containing marijuana. The officers immediately went to that area and saw the defendant drive up in the described car and pull into the driveway of a known drug dealer. The officers stopped the defendant when he left the driveway. The officers ordered the defendant and his companion out of the car, and inside the car the officers could see a gun and a bag containing marijuana lying in plain view. The officers then searched the car and found more drugs. Pursuant to a search incident to arrest, the officers seized a vial of cocaine from the defendant. The officers then had the car towed, and pursuant to a warrant to search the car they found more guns. On review, the court found that the detailed tip, combined with the officers' knowledge of the defendant and the other dealer and their observations, gave the officers probable cause to arrest the defendant when they stopped him.
The remaining cases cited by the State are even less similar to the case here. In State v. Robertson, 557 So. 2d 315 (La.App. 4th Cir.1990), the officers had detained a man walking out of an abandoned building about which they had received complaints of trespassing. As one of the officers investigated the building, he looked through an open door and saw the defendant and others *1287 standing around a table upon which sat cocaine. This Court found the officer was justified in entering the building to investigate the complaint. In State v. Lyons, 514 So. 2d 558 (La.App. 4 Cir. 1987) [writ den. Lyons v. State, 581 So. 2d 680 (1991)], the officers were investigating a call of a shot fired through the floor of an apartment in a four-plex. The defendant lived in the apartment below, and the officers arrested him at his door. Fearing for their safety, the officers then entered the apartment to make sure no one else was in the apartment. Once inside, they saw a gun lying on a bed in a room directly below the hole created by the gunshot. This Court found the officers' fears for their continued safety gave them exigent circumstances to enter the apartment from which the shot had originated. In State v. Henderson, 571 So. 2d 770 (La.App. 2nd Cir.1990), the defendant was seen near the area where a convenience store customer had been beaten and robbed. The defendant was wearing a distinctive shirt which matched the description of the shirt worn by the perpetrator and also worn by a man seen leaving the convenience store. Police officers followed the defendant to his trailer, surrounded it, and then saw the shirt lying inside a detached outbuilding. Although the court spoke of "exigent circumstances", it found the officers could lawfully seize the shirt found in plain view in the outbuilding.
State v. Blue, 97-2699, pp. 4-6, 705 So.2d at 1245-1246.
Here, the State argues the officers had reasonable suspicion to stop the defendant because they saw him driving the same car he had been driving the day before, and they knew his license had been suspended. The State argues that this reasonable suspicion blossomed into probable cause to arrest when the defendant refused their order to come to their car and turned and fled into the residence while clutching something in his hand. The officers already had probable cause to arrest the defendant for driving without a license when they saw him driving the car just prior to the stop. Thus, the probable cause prong of the exigent circumstance warrant exception was met.
The State next argues that the fact that the defendant was clutching something in his hand gave them the necessary exigent circumstances to enter the house because the object in his hand could have been contraband and he could dispose of it inside the house. Moreover, it is sufficient that the officers were in "hot pursuit" of the defendant. In State v. Byas, 94-1999 (La.App. 4 Cir. 12/15/94), 648 So. 2d 37, this court also combined the theories of exigent circumstances and hot pursuit. The officers received a tip from a reliable known informant that "Cory" was selling cocaine at a certain address. The C.I. also stated that "Mary" lived at that address and aided Cory in the operation. The officers went to the residence and saw a man standing outside. The man saw the officers and fled. The next evening, the officers again approached the residence and saw the same man standing outside. Upon seeing the officers, the man fled toward the rear of the residence, and one officer saw him throw a bag, containing a large white object, over a fence into a vacant lot next to the residence. The man ran to the back of the residence, knocked, and was admitted by the defendant. When she saw the officers pursuing, the defendant slammed the door shut. The officers entered and seized the defendant and the man. The officers searched her and found in her pant pocket a matchbox containing three rocks of cocaine. Upholding the officers' entry into the house and the search of the defendant, this court noted that the officers had probable cause to arrest the man based upon the tip from the C.I., the man's flight, and his abandonment of the bag containing what appeared to be cocaine. The officers were justified in chasing the man into the residence in "hot pursuit". This court further found *1288 that once the officers were inside the house, they were justified in arresting the defendant for her commission of acts which constituted resisting arrest and for her participation in the drug operation.
Here, the officers had probable cause to arrest the defendant for driving without a license. When he noticed the officers, he immediately stopped and exited the car, clutching something in his hand. He ignored the officers' order to step to their car and instead fled into the residence, leaving the door open. Given these circumstances, it appears the officers' entry was justified under the "hot pursuit" exception to the warrant requirement. When they entered, they saw the defendant throw the packets out the window. Because the marijuana was abandoned as a result of a justified impingement upon the defendant's constitutional rights, the officers could lawfully seize the marijuana packets and arrest the defendant not only for driving without a license but also for the possession of the marijuana.
As the officers were walking the defendant back to their car, one of them went to the defendant's car in order to close the car's door. The officer looked inside the car and saw a gun lying in plain view on the floorboard on the driver's side of the car. The officers were justified in seizing this gun pursuant to the "plain view" exception to the warrant requirement. In State v. Smith, 96-2161 p. 3 (La.App. 4 Cir. 6/3/98), 715 So. 2d 547, 549, this court discussed this exception:
In order for an object to be lawfully seized pursuant to the "plain view" exception to the Fourth Amendment, "(1) there must be a prior justification for the intrusion into a protected area; (2) in the course of which the evidence is inadvertently discovered; and (3) where it is immediately apparent without close inspection that the items are evidence or contraband." State v. Hernandez, 410 So. 2d 1381, 1383 (La.1982); State v. Tate, 623 So. 2d 908, 917 (La.App. 4 Cir.), writ denied 629 So. 2d 1126 and 1140 (La.1993). In Tate, this court further noted: "In Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990), the Court held that evidence found in plain view need not have been found "inadvertently" in order to fall within this exception to the warrant requirement, although in most cases evidence seized pursuant to this exception will have been discovered inadvertently."
Tate at 917.
Here, the officer was justified in walking up to the car and closing the door. Upon doing so, he looked inside and saw the gun lying on the floorboard. Thus, the gun was also lawfully seized.
As noted above, there is no indication the trial court suppressed the evidence because it did not believe the officer's testimony. Based upon the officer's testimony, it appears the trial court erred by suppressing the evidence because the officers had a lawful basis for the seizure of both the marijuana and the gun.
For the foregoing reasons, we grant the State's writ application, reverse the ruling of the trial court granting the defendants motion to suppress the evidence, and remand for further proceedings consistent with this opinion.
WRIT GRANTED; JUDGEMENT REVERSED AND REMANDED.
NOTES
[1] Cert. den. Belton v. Louisiana, 466 U.S. 953, 104 S. Ct. 2158, 80 L. Ed. 2d 543 (1984).
[2] The State also argues that because the officers could have seized the marijuana if it had been thrown out the window if they had not entered the house, the marijuana would have inevitably been discovered. The fallacy of this argument is that chances are the defendant would not have thrown the marijuana out the window if the officers had not entered his residence.
[3] Writ den. 96-2352 (La.2/21/97), 688 So. 2d 522.
[4] Writ den. 98-0340 (La.3/27/98), 716 So. 2d 887.
[5] Writ den. 629 So. 2d 1126 and 1140 (1993).
[6] Cert. den. Wilson v. Louisiana, 474 U.S. 911, 106 S. Ct. 281, 88 L. Ed. 2d 246 (1985).
[7] Writ den. State v. Johnson, 95-2331 (La.2/2/96), 666 So. 2d 1092, and State v. Dibartolo, 95-3044 (La.2/2/96), 666 So. 2d 1105. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/56307/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 19, 2007
No. 06-15448 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00238-CV-JOF-1
STARSHIP ENTERPRISES OF ATLANTA, INC.,
Plaintiff-Appellant,
versus
FULTON COUNTY, a political
subdivision of the state of
Georgia,
JOHN H. EAVES, Fulton County Commission
Chairperson, in his official capacity,
LYNNE RILEY,
EMMA I. DARNELL,
WILLIAM EDWARDS, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 19, 2007)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
HULL, Circuit Judge:
Plaintiff Starship Enterprises of Atlanta, Inc. (“Starship”) appeals the district
court’s order dismissing Starship’s complaint challenging the constitutionality of
defendant Fulton County’s zoning regulations for adult bookstores, as well as its
denial of Starship’s motions for preliminary injunction and to compel discovery.
I. STARSHIP’S RETAIL STORE
Starship operates retail stores that sell books, magazines, apparel, gifts, and
novelties. Some of its inventory is sexually explicit. Starship planned to open a
new store in Fulton County that contained less than 25% sexually explicit
materials. Starship expressly wanted a store with less than 25% sexually explicit
merchandise because then Starship would not be subject to Fulton County’s zoning
regulations on the location of adult bookstores.1 Accordingly, on March 24, 2004,
Starship submitted to Fulton County an application for a business license to
1
Fulton County regulates “adult” establishments, including adult bookstores, within its
boundaries through a comprehensive scheme of zoning regulations contained in the Fulton
County Zoning Resolution (“FCZR”). Specifically, the FCZR requires adult bookstores to
acquire a special “adult use permit” before they can operate as a business. FCZR, § 19.4.1. The
FCZR further mandates that adult bookstores, among other things, not be located within 1000
feet of any residential- or agricultural-zoned property, any public recreational facilities, or any
public or private institutional use property, which includes churches, schools, libraries, and day
care centers. Id. The FCZR defines an “adult bookstore” as any “establishment or facility
licensed to do business in Fulton County having a minimum of 25 percent of its stock in trade”
as sexually explicit merchandise. FCZR, § 3.3.1A.
2
operate a retail store with less than 25% of its stock in trade devoted to sexually
explicit materials. Fulton County ultimately granted Starship a business license for
a store with less than 25% sexually explicit merchandise. Starship placed its
inventory in the store and applied for a certificate of occupancy.
On September 27, 2004, Fulton County code enforcement personnel
inspected the proposed location, at which time Starship’s counsel informed County
officials that if they disagreed with the percentage of material considered “adult,”
Starship would adjust its inventory. Two days later, Steven Cover, the director of
the County’s Department of Environment and Community Development, sent
Starship a letter stating that Cover had concluded that Starship’s proposed store
was an adult bookstore and required a special use permit. Fulton County never
issued Starship a certificate of occupancy. Further, at all times in this case Starship
contended its merchandise was less than 25% sexually explicit and that it was not
subject to Fulton County’s adult bookstore zoning regulations. Indeed, the City of
Sandy Springs has now incorporated over the area where Starship’s proposed store
was located, thereby divesting Fulton County of jurisdiction. Starship
subsequently obtained a permit from Sandy Springs and is currently operating its
store.
Starship did not challenge Fulton County’s 25% determination either
3
administratively (through Fulton County’s Board of Zoning Appeals) or through
the state courts. Starship did not apply for a special use permit to operate as an
adult bookstore, because it always wanted to have, and contended it had, a store
with less than 25% sexually explicit materials.
II. STARSHIP’S § 1983 LAWSUIT
Before Sandy Springs incorporated and Fulton County lost jurisdiction,
Starship filed a 42 U.S.C. § 1983 lawsuit against Fulton County and others,
alleging that its adult use zoning regulations were unconstitutional, both facially
and as applied to Starship. In its complaint, Starship requested both injunctive
relief and monetary damages. The district court dismissed the action as unripe, and
Starship appealed.
At oral argument, counsel for Starship acknowledged that Sandy Springs had
granted Starship a general use business license in March 2007, and that the store at
issue had been open since that time. Therefore, Starship’s claims for injunctive
relief against Fulton County are now moot. See Elend v. Basham, 471 F.3d 1199,
1207 (11th Cir. 2006) (“[P]ast exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief . . . if unaccompanied by any
continuing, present adverse effects.”) (omission in original) (quotation marks and
citations omitted); 31 Foster Children v. Bush, 329 F.3d 1255, 1263 (11th Cir.
4
2003) (holding that plaintiffs’ claims for prospective injunctive relief were moot
because the plaintiffs “cannot be further harmed by the defendants’ alleged illegal
practices”).2
Starship’s claims for damages against Fulton County have not been mooted
simply because Starship eventually obtained from Sandy Springs the license and
occupancy it sought. Nevertheless, we conclude that Starship, which always
intended to operate a store with less than 25% sexually explicit materials, lacks the
requisite standing to pursue claims concerning Fulton County’s adult bookstore
zoning regulations which Starship claims never applied to Starship.3
2
After Sandy Springs’ incorporation, Starship amended its complaint to add Sandy
Springs as a defendant. Starship asserted claims for injunctive relief against both Fulton County
and Sandy Springs.
Starship appealed the denial of its motion for an injunction against Sandy Springs, but
after it received the license from Sandy Springs and began to operate in March 2007, Starship
joined in a consent motion, which this Court granted, to dismiss Sandy Springs as an appellee.
3
We note that the district court dismissed Starship’s claims on the grounds of ripeness
rather than standing, and the parties have therefore addressed their arguments to the former
issue; however, “we are obliged to consider questions of standing regardless of whether the
parties have raised them.” Sierra Club v. Tennessee Valley Auth., 430 F.3d 1337, 1344 (11th
Cir. 2005) (quotation marks and citation omitted). Although questions of ripeness and standing
can at times overlap, see, e.g., MedImmune, Inc. v. Genentech, Inc., ___ U.S. ___, 127 S. Ct.
764, 772 n.8 (2007); Women’s Emergency Network v. Bush, 323 F.3d 937, 945 n.10 (11th Cir.
2003), here the issue is appropriately determined under standing doctrine because the case’s
justiciability turns not on whether Starship’s action is premature but whether Starship – as an
ostensibly non-adult business that contends it was never properly subject to Fulton County’s
adult use regulations – is a proper party to challenge those regulations, see Hallandale Prof’l Fire
Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 760 n.3 (11th Cir. 1991)
(distinguishing standing from ripeness because “where standing is at issue the question regarding
the existence of an actual injury arises from the identity of the parties rather than . . . the non-
occurrence of events in the causal chain which may or may not occur”).
5
Standing to sue in federal court contains three constitutional requirements.
First, the plaintiff must have experienced an “injury in fact.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992) (quotation marks and
citation omitted). Such injury must be “concrete and particularized” as well as
“actual or imminent.” Id. (quotation marks and citation omitted). Second, the
plaintiff’s injury must be “fairly traceable to the challenged action of the
defendant.” Id. (omission and alteration omitted). Third, there must be a
likelihood that the plaintiff’s injury would be “redressed by a favorable decision.”
Id. (quotation marks and citation omitted).
Certainly Starship has suffered an actual, concrete injury – the inability to
open its store until Sandy Springs eventually granted it a license and permitted
occupancy of the store. However, Starship’s injury is not “fairly traceable” to the
Fulton County adult use zoning regulations that it challenges. By its terms, that
zoning scheme applies only to adult bookstores, that is, to stores whose
merchandise is at least 25% sexually explicit.4 And Starship has consistently
maintained that: (1) it intended to operate a non-adult, general use bookstore; and
(2) its store’s percentage of adult merchandise was always less than 25%. Thus,
accepting Starship’s allegations as true (which we must, as this appeal arises from
4
See footnote 1, supra.
6
a Rule 12 dismissal), Starship’s inability to open its store was caused not by Fulton
County’s adult bookstore regulations, but by Fulton County’s erroneous
determination that Starship’s inventory was one-quarter or more sexually explicit.
Indeed, Sandy Springs determined that Starship’s inventory was less than 25%
sexually explicit and granted Starship the required license and permitted occupancy
of the store.5
Standing doctrine requires that a plaintiff’s injury “result[] from the
putatively illegal action.” CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451
F.3d 1257, 1270 (11th Cir. 2006) (quoting Warth v. Seldin, 422 U.S. 490, 499, 95
S. Ct. 2197, 2205 (1975)). For that reason, in CAMP we held that an organization
whose city festival permit application had been denied had standing to challenge
only those portions of the city festival ordinance which applied to it or served as a
basis for the city’s permit denial. See id. at 1274-77.
In determining whether a challenged regulation applies to the plaintiff, the
plaintiff’s intent to come within the regulation is crucial. See id. at 1276 (“All that
constitutional standing requires is that the provision of the ordinance applies to
CAMP. The 90-day advance application requirement affected CAMP because
5
Starship could have appealed Fulton County’s erroneous 25% determination to the
Board of Zoning Appeals, or at least challenged it in state court. However, Starship did not
pursue the remedies available to challenge Fulton County’s factual determination.
7
[CAMP] evidenced an intent to hold an outdoor festival that required a permit
. . . .” (citation omitted)); Tanner Adver. Group, LLC v. Fayette County, Ga., 451
F.3d 777, 791 (11th Cir. 2006) (en banc) (holding that a plaintiff who challenged a
county sign ordinance after his sign permit was denied lacked standing to challenge
the ordinance’s “Attention-getting devices” provision because “[t]he record is
devoid of any evidence that [the plaintiff] ever intended to use ‘Attention-getting
devices’ . . . .”). Here, Starship’s unequivocal intent was to operate a general use
business, not an adult bookstore that required a special use permit and was subject
to special zoning regulations. Because Starship neither attempted nor intended to
come within the Fulton County adult use zoning scheme, the injury it suffered
cannot be “fairly traceable” to that scheme.6 Consequently, Starship lacks
standing to bring its constitutional challenge to the FCZR’s adult bookstore
provisions. To hold otherwise would permit a federal court to render an improper
advisory opinion on the constitutionality of Fulton County’s zoning regulations.
See Int’l Soc’y for Krishna Consciousness v. Eaves, 601 F.2d 809, 817-18 (5th Cir.
1979) 7 (“[The judiciary’s] responsibility, broad as it is, does not amount to an
6
Because Starship cannot satisfy the traceability requirement, we need not reach the third
standing requirement, redressability.
7
Former Fifth Circuit decisions rendered before October 1, 1981 are binding precedent in
the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc).
8
unlimited power to survey the statute books and pass judgment on laws . . . . [T]he
plaintiff [must be] seriously interested in disobeying . . . the challenged measure.”)
(quotation marks and citations omitted).8
For the foregoing reasons, to the extent Starship appeals the denial of
injunctive relief against Fulton County, we dismiss the appeal as moot. With
respect to the remainder of Starship’s appeal, we affirm.
AFFIRMED IN PART; APPEAL DISMISSED IN PART.
8
As Starship’s claims are not justiciable, we do not reach the merits of Starship’s appeal
of the district court’s denial of its motion to compel discovery.
9 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/101501/ | 280 U.S. 379 (1930)
OHIO EX REL. POPOVICI, VICE-CONSUL OF ROUMANIA,
v.
AGLER ET AL.
No. 35.
Supreme Court of United States.
Argued January 7, 8, 1930.
Decided January 20, 1930.
CERTIORARI TO THE SUPREME COURT OF OHIO.
*380 Messrs. Atlee Pomerene and Malcolm Y. Yost, with whom Mr. Frank Harrison was on the brief, for petitioner.
Mr. Harry Nusbaum, with whom Mr. Henry W. Harter, Jr., was on the brief, for respondents.
*382 MR. JUSTICE HOLMES delivered the opinion of the Court.
The relator was sued for divorce and alimony in a Court of the State of Ohio. He objected to the jurisdiction of the Court, but the objection was overruled and an order for temporary alimony was made. He thereupon applied to the Supreme Court of the State for a writ of prohibition, but upon demurrer to the petition the writ was denied. 119 Ohio State, 484. A writ of certiorari was granted by this Court.
The facts alleged are that the relator is Vice-Consul of Roumania and a citizen of that country, stationed and now residing at Cleveland, Ohio, and it is said by the Supreme Court to have been conceded at the argument that he was married to Helen Popovici, the plaintiff in the original suit, in Stark County, Ohio, where she resided. The relator invokes Article III, Section 2, of the Constitution: "The Judicial Power shall extend. . . to all Cases affecting Ambassadors, other public Ministers and Consuls." "In all Cases affecting Ambassadors, other public Ministers and Consuls . . . the supreme Court shall have original jurisdiction"; and also the Judicial Code, (Act of March 3, 1911, c. 231) § 256, "The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several States, . . . *383 Eighth. Of all suits and proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, or against consuls or vice-consuls." To this may be added § 24 giving to the District Court original jurisdiction "Eighteenth. Of all suits against consuls and vice-consuls"; the Supreme Court, by § 233, being given "exclusively all such jurisdiction of suits and proceedings against ambassadors or other public ministers, or their domestics or domestic servants, as a court of law can have consistently with the law of nations."
The language so far as it affects the present case is pretty sweeping but like all language it has to be interpreted in the light of the tacit assumptions upon which it is reasonable to suppose that the language was used. It has been understood that, "the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States," Ex parte Burrus, 136 U.S. 586, 593, 594, and the jurisdiction of the Courts of the United States over divorces and alimony always has been denied. Barber v. Barber, 21 How. 582. Simms v. Simms, 175 U.S. 162, 167. De La Rama v. De La Rama, 201 U.S. 303, 307. A suit for divorce between the present parties brought in the District Court of the United States was dismissed. Popovici v. Popovici, 30 Fed. (2d) 185.
The words quoted from the Constitution do not of themselves and without more exclude the jurisdiction of the State. Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511. The statutes do not purport to exclude the State Courts from jurisdiction except where they grant it to Courts of the United States. Therefore they do not affect the present case if it be true as has been unquestioned for three-quarters of a century that the Courts of the United States have no jurisdiction over divorce. If when the Constitution was adopted the common understanding *384 was that the domestic relations of husband and wife and parent and child were matters reserved to the States, there is not difficulty in construing the instrument accordingly and not much in dealing with the statutes. `Suits against consuls and vice-consuls' must be taken to refer to ordinary civil proceedings and not to include what formerly would have belonged to the ecclesiastical Courts.
It is true that there may be objections of policy to one of our States intermeddling with the domestic relations of an official and subject of a foreign power that conceivably might regard jurisdiction as determined by nationality and not by domicil. But on the other hand if, as seems likely, the wife was an American citizen, probably she remained one notwithstanding her marriage. Act of September 22, 1922, c. 411, § 3; 42 Stat. 1021, 1022. Her position certainly is not less to be considered than her husband's, and at all events these considerations are not for us.
In the absence of any prohibition in the Constitution or laws of the United States it is for the State to decide how far it will go.
Judgment affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1920423/ | 107 B.R. 227 (1989)
In re TEXSCAN CORPORATION, Debtor.
TEXSCAN CORPORATION, a Delaware corporation, Appellant,
v.
COMMERCIAL UNION INSURANCE COMPANIES, Appellee.
BAP No. AZ-88-1896, Bankruptcy No. B-85-3618-PHX-GBN.
United States Bankruptcy Appellate Panel of the Ninth Circuit.
Argued and Submitted May 22, 1989.
Decided November 30, 1989.
*228 Virginia Barklow, Stretch, Land, Weeks, Cardon, Phoenix, Ariz., for appellant.
Gerald L. Shelley, Chris Kimble, Winston & Strawn, Phoenix, Ariz., for appellee.
Before JONES, RUSSELL and PERRIS, Bankruptcy Judges.
OPINION
JONES, Bankruptcy Judge:
The Appellant, Texscan Corporation, appeals a bankruptcy court order denying its motion to reject an executory contract. We reverse.
FACTS
Commercial Union Insurance Companies ("CUIC") and Texscan Corporation ("Texscan") entered into a contract called a Large Risk-Loss Dividend Plan ("Plan"). The Plan provided business coverage to Texscan through various workmen's compensation, comprehensive liability and automobile insurance contracts for claims arising from January 1, 1983 until January 1, 1986.
The Plan is modeled after a retrospective insurance premium contract. Under such a contract an annual premium, called a deposit premium or standard premium is estimated and paid in installments. After the inception of the contract, annual adjustments are made whereby actual losses are computed and then plugged into a mathematical formula to determine the actual premium for that adjustment period. Based on whether the estimated premium is too high or too low, an overpaid premium is refunded to the insured while an underpaid premium is paid to the issuer.
The first full adjustment occurred in June 1986 and covered the previous 12 months resulting in a premium return to Texscan of $42,054.00. Meanwhile, on November 22, 1985, Texscan filed a petition for relief under Chapter 11 of the Bankruptcy Code. Even though five weeks of coverage remained under the Plan, CUIC continued to fulfill its obligations by servicing the claims which arose during those final weeks. The adjustment process also continued and in June, 1987, the second full adjustment was made. The second full adjustment showed that in the 12 months since the first full adjustment CUIC paid out $97,823.00 on claims. These losses were plugged into the formula used to calculate retrospective premiums and after deducting the standard premium already paid, a deficiency of $114,892.00 remained. However, pursuant to the terms of the Plan CUIC is entitled to only $80,212.00 of the second full adjustment.[1] It is this premium of $80,212.00 which CUIC seeks to recover as a priority administrative expense through its proof of claim.
CUIC first appeared in this bankruptcy case on October 28, 1987 by filing an "Amended Administrative Expense Proof of Claim" ("Proof of Claim") and an "Application for Payment of Administrative Expenses Incurred by Commercial Union Insurance Companies" ("Application") on November 16, 1987. The aforementioned *229 pleadings were filed two years after Texscan's petition, 17 months after the expiration of the court-ordered bar date for the filing of claims and less than one month prior to the confirmation of the "Second Amended Joint Plan of Reorganization."
Nevertheless, on February 23, 1988, nearly two months after Texscan's plan of reorganization was confirmed by the bankruptcy court, CUIC's disputed Claim and Application was heard.[2] At that hearing, the bankruptcy court determined, inter alia, that: (1) even though the insurance coverage under the Plan expired on January 1, 1986, the Plan remained executory; (2) the Plan had not been specifically assumed or rejected; and (3) the Plan remained in some manner in force until a formal assumption or rejection was approved by the bankruptcy court.
In reliance on the bankruptcy court's rulings, Texscan filed a motion to reject the Plan. After a hearing on the matter, the bankruptcy court entered an order denying Texscan's motion as untimely.[3] Texscan timely appealed.
STANDARD OF REVIEW
We review de novo the bankruptcy court's conclusions of law. In re American Mariner Industries, 734 F.2d 426 (9th Cir.1984); In re New England Fish Co., 749 F.2d 1277, 1280 (9th Cir.1984); In re Bialac, 712 F.2d 426, 434 (9th Cir.1983).
DISCUSSION
Although the term "executory contract" is not defined in the Bankruptcy Code, the legislative history of 11 U.S.C. § 365(a) states that executory contracts generally include contracts on which performance remains due to some extent on both sides. H.R.Rep. No. 595, 95th Cong., 1st Sess. 347 (1977). S.Rep. No. 989, 95th Cong., 20th Sess. 58 (1978), U.S.Code Cong. & Admin. News 1978, pp. 5787, 5844, 5963, 6303. The widely adopted "Countryman Definition" narrows the executory contract definition contained in the legislative history and generally provides that a contract is executory if the obligations of both the debtor and the non-debtor party remain so far unperformed that failure of either to complete performance would constitute a material breach excusing performance of the other. See Countryman, Executory Contracts and Bankruptcy: Part 1, 57 Minn.L.Rev. 439, 460 (1973); In re Pacific Express, 780 F.2d 1482, 1487 (9th Cir.1986).
In the instant case the Plan terminated by its own terms on January 1, 1986, five weeks after Texscan filed its petition. Yet, CUIC contends that the Plan is executory, arguing that the clause which provided for premium payments based on actual losses survived the petition. Thus, it follows, CUIC contends, that under the Plan the retrospective premium policies continued to impose obligations; for instance, were CUIC to cease to service the claims, it would be liable to Texscan for breach of contract, similarly, were Texscan to cease making premium payments it would be in default. This analysis was adopted by the bankruptcy court which relied on In re Wegner, 839 F.2d 533 (9th Cir.1988) and In re Select-a-Seat, 625 F.2d 290 (9th Cir.1980) in determining that the Plan was executory. In Wegner, the Ninth Circuit held that the duty to pay money on one side is a material obligation sufficient to render the contract executory where corresponding material obligations exist on the other side. 839 F.2d at 537. In Select-A-Seat, the Ninth Circuit held a particular licensing agreement executory. 625 F.2d at 293. The debtor in Select-A-Seat had entered into a worldwide exclusive licensing agreement with a non-debtor company. As part of the agreement, the debtor agreed to give a 20-year exclusive distribution right in return for $140,000.00 down payment plus five percent of annual net *230 return of the non-debtor, subject to five optional extensions of five years each. The court held the contract executory because performance owing on both sides was still substantial. Deductively, the bankruptcy court in the instant case held the Plan executory, concluding that Texscan and CUIC both had continuing obligations of performance thereunder. We disagree.
It is axiomatic that before 11 U.S.C. § 365 can apply a contract must exist. If a contract has expired by its own terms then there is nothing left to assume or reject. 2 Collier on Bankruptcy 365.02 at 365-14 (15th ed. 1981). In this case, the Plan required CUIC to indemnify all claims arising between January 1, 1983 and January 1, 1986. Consequently, since the Plan expired five weeks after the bankruptcy case commenced and before either party filed a 11 U.S.C. § 365(a) motion there was nothing for Texscan to assume or reject. In fact, CUIC's obligations to Texscan under the Plan were unaffected by the filing of Texscan's petition. Under applicable state law, notwithstanding Texscan's bankruptcy or the expiration of the Plan, CUIC was required to continue processing claims. Ariz.Rev.Stat.Ann. § 23-963 (1987). Section 23-963 reads in pertinent part:
Every policy of insurance covering the liability of the employer for workers' compensation . . . shall cover the entire liability of the employer to his employees covered by the policy or contract, and be deemed to contain the following provisions . . .
4. That the insolvency or bankruptcy of the employer and his discharge therein shall not relieve the insurance carrier from payment of compensation for injuries or death sustained by an employee during the life of the policy or the contract.
Thus, regardless of Texscan's obligations, CUIC had an affirmative duty to Texscan and its employees to continue to provide coverage for the five weeks after Texscan filed its Chapter 11 petition. In addition, CUIC had an affirmative responsibility for the administration of covered claims thereafter. Accordingly, we conclude that the expired Plan was not executory and consequently could not "ride through" the bankruptcy case.[4]
CONCLUSION
Contracts that expire by their own terms before a § 365(a) motion is brought or a plan of reorganization providing for assumption is confirmed cannot be assumed because there is nothing left to assume. Thus, such contracts are not executory. In addition, a prepetition obligation can not be converted into an administrative expense simply by operation of § 365. Accordingly, the judgment of the bankruptcy court is REVERSED and REMANDED for proceedings in accordance with this disposition.
NOTES
[1] Under the Plan, Texscan's maximum liability is $556,558.00. Any liability beyond that amount is to be borne by CUIC. At the time the second full adjustment was calculated, Texscan had already paid $476,376.00 in liability. Accordingly, a payment of $80,212.00 would bring Texscan to its premium ceiling. However, CUIC seeks to recover $90,212.00. This figure appears to be a simple addition-subtraction error on its part. Consequently, CUIC is entitled to seek only $80,212.00 of the $114,892.00 originally claimed.
[2] The order confirming the plan contained the standard provision regarding executory contracts, which provided that Texscan assumed any executory contract which was not previously rejected and was not, as of the effective date of the plan, the subject of a pending motion to assume or reject.
[3] Notwithstanding its February 23, 1988 ruling, the bankruptcy court determined, inter alia, that Texscan could not reject the Plan after the plan confirmation and that the Plan "rode through" the case and remained binding on Texscan.
[4] Although not before us, the real issue in this dispute is whether CUIC's claim of $80,212.00 is an administrative expense. It appears that claims of insurance carriers based on injuries suffered by employees post-petition are administrative expenses under 11 U.S.C. § 503(b)(1)(A) but that claims of insurance carriers based on injuries suffered by employees pre-petition are not. See Fireman's Fund Insurance Co. v. Wheeler-Pittsburgh Steel Corp. (In re Wheeling-Pittsburgh Steel Corp.), 67 B.R. 620, 623 (Bankr. W.D.Pa.1986). On remand, the bankruptcy court shall determine what portion of CUIC's claim qualifies as an administrative expense. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920438/ | 107 B.R. 350 (1989)
In re Shelba James JONES, SSN XXX-XX-XXXX, Debtor.
Bankruptcy No. 89-70702.
United States Bankruptcy Court, E.D. Oklahoma.
October 30, 1989.
James A. Conrady, Okmulgee, Okl., for debtor.
G. Robert Inglish, Jr., Okmulgee, Okl., for creditor, Bobo Oilfield Supply.
ORDER
JAMES E. RYAN, Bankruptcy Judge.
On August 29, 1989, this Court conducted a hearing with regard to an Objection to Exemption by Bobo Oilfield Supply (Bobo) (Docket Entry # 4) with a Response to the Objection by the Debtor (Docket Entry # 7), a Motion to Avoid the Lien as to Bobo (Docket Entry # 11) with a Response and Objection to the Motion by Bobo (Docket Entry # 13), with a further Objection to the Motion to Avoid Lien by Bobo (Docket Entry # 22).
Appearances at the hearing were made by James Conrady on behalf of the Debtor and Robert Inglish for Bobo.
*351 At the conclusion of the trial, the parties were given an opportunity to file legal Briefs on the issues involved in this case. Said Briefs were timely filed by each party and thus were considered in the formulation of this Order.
After review of the above-referenced pleadings, the evidence presented at trial, the Briefs submitted by the parties and the applicable law in the area, this Court does hereby enter the following Statement of Facts and Conclusions of Law in conformity with B.R. 7052 in this core proceeding:
STATEMENT OF ISSUES
Trial gave rise to three issues to be resolved in this Order:
(a) Whether the Debtor has sufficiently demonstrated the indicia necessary for establishing a homestead under the laws of the State of Oklahoma;
(b) Whether the filing of a Petition for Separate Maintenance and estrangement from her husband is sufficient to allow the Debtor to claim a homestead exemption, under the circumstances of this case and the applicable law;
(c) Whether a judicial lien which attached during the period when the property was not subject to a homestead exemption may be avoided pursuant to 11 U.S.C. § 522(f)(1).
STATEMENT OF FACTS
As a result of a Divorce Decree entered in November of 1984, the Debtor was awarded certain real property, more particularly described as:
Lots Eleven (11) and Twelve (12), Block Five (5) in Park View Addition to the City of Okmulgee, Okmulgee County, State of Oklahoma
Property Address: 605 South Ohio, Okmulgee, OK 74447
The Debtor continued to live in this home until 1987 when she married Mr. Steve Jones. However, the Debtor primarily resided in Tulsa, Oklahoma and in Glenpool, Oklahoma for the years 1987 and 1988. Neither the Debtor nor Steve Jones has owned other real estate since their marriage. Rather, the couple rented property in the two cities.
The Debtor leased the Okmulgee property in February of 1988 to a party with an option to purchase. The lessee stayed in the property until December, 1988. The Debtor also attempted to sell the subject Okmulgee property during this time, but failed in her efforts.
The Debtor filed a Petition for Separate Maintenance in the District Court of Tulsa County, Oklahoma on June 8, 1989. The Debtor returned to the Okmulgee home in May of 1989. The Debtor changed the utilities in the property to her own name just prior to moving back. The Debtor kept some personal property in the Okmulgee home while it was being leased. Further, the Debtor continued to maintain payments on the Okmulgee property subsequent to the expiration of the lease in December of 1988.
The Debtor filed for relief under Chapter 7 of the United States Bankruptcy Code on June 12, 1989 claiming the Okmulgee home as exempt under the homestead exemption provided for in the Oklahoma Statutes.
Creditor Bobo obtained a general Judgment and filed said Judgment of record in the County Clerk's Office of Okmulgee County, Oklahoma on July 23, 1987.
CONCLUSIONS OF LAW
A. Since Oklahoma chose to exercise its ability to opt-out granted under the United States Bankruptcy Code in determining that property which may be claimed as exempt by a debtor, this Court shall rely solely upon the homestead exemption statute found in Okla.Stat.Ann. tit. 31, § 2 (West 1989) and Oklahoma case law interpreting property and circumstances which constitute "homestead" in this decision.
B. In order to impress property with homestead character, two elements must be satisfied under Oklahoma law. First, "there must be a fixed intention to make a home on the property evidenced by overt acts of preparation in the erection of improvements and in the preparation of the *352 land for a home;" and second, "the actual occupancy of the land, or an attempt in good faith to do so, must follow the overt act of preparation without unreasonable delay." Enosburg Falls Savings Bank & Trust Company v. McKinney, 172 Okl. 298, 44 P.2d 987 (1935). Homestead character continues until the owner of the property disposes of said property or leaves it with the intention of not returning or forms such intention after leaving. White Investment Company v. Stupart, 152 Okl. 144, 4 P.2d 77 (1931).
The Debtor in the instant case expressed an intention to consider the land and the home located thereon as homestead and reside there permanently as evidenced by the actual occupancy, etc. pre-Petition and claimed exemption in this proceeding. However, "this intention should not only be in the minds of the parties, but should be evidenced by some unmistakable acts, showing the intention to carry out such a design." Jefferson, et al. v. Henderson, et al., 140 Okl. 86, 282 P. 677 (1929). Although Bobo introduced evidence from which an inference could be drawn to indicate questionable intent, such evidence was insufficient for this Court to rest its decision. Further, the relatively short period of time between the Debtor occupying the Okmulgee home and the filing of the bankruptcy also is of suspicious consequence. However, the Debtor's intent was borne out by her testimony and actions of actually occupying the Okmulgee home, and thus the two required elements to establish a homestead under Oklahoma law are hereby found to exist.
C. The second question this Court must address before it can find that a homestead exemption is proper in this case is the effect of the Petition for Separate Maintenance and estrangement from her husband considering the language of the Oklahoma statute on exemptions. The applicability of the homestead exemption is limited to "the homestead of any family in this state or the homestead of a single, adult person in this state ..." Okla.Stat. Ann. tit. 31, § 2 (West Supp.1989). A literal reading of the Oklahoma statute reveals that the Debtor is not a single person under the common definition of that term. Rather, the Debtor, despite having filed a Petition for Separate Maintenance, is still in a state of marriage with her estranged husband. Thus, in the eyes of the Oklahoma exemption statute, there still exists a "family unit" in this case.
The question as to who chooses the homestead is complicated by the repeal of Okla.Stat.Ann. tit. 32, § 2 (West 1976) which established that the husband was the head of the family and as such chose the homestead. With the state of ambiguity that now exists, we must conclude that either member of the "family unit" being either the husband or the wife, may elect the homestead. Since the Debtor's estranged husband has never declared a homestead for the family, the Debtor, as wife, may do so and thus her claim of homestead exemption as to the Okmulgee property is valid and proper.
D. The final question to be decided in pursuit of resolving this matter is whether Bobo in fact possesses a judicial lien which may not be avoided due to attachment during the period when the property was not subject to homestead exemption. Bobo's interest in the Okmulgee real property did properly attach according to the laws of the State of Oklahoma. See Okla. Stat.Ann. tit. 12, § 706(A) (West 1989). The question then is whether the Debtor may avoid this lien.
Clearly, while "a state may elect to control what property is exempt under state law ... federal law determines the availability of the lien avoidance provision." In re Leonard, 866 F.2d 335, 336 (10th Cir. 1989).
The avoidance of a judicial lien is governed by 11 U.S.C. § 522(f)(1) which states:
Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is
(1) a judicial lien ...
*353 Thus, § 522(f) has three conditions which must be met for lien avoidance to occur: (1) the lien to be avoided must have fixed "on an interest of the debtor in property;" (2) the lien must impair "an exemption to which the debtor would have been entitled;" and (3) the lien must be a "judicial lien."
E. Since the Debtor obtained an interest in the property in November of 1984 and the attachment of the lien on the Okmulgee property by Bobo was effectuated in July of 1987, the Debtor did have an interest in the property at the time of the fixing of the lien. Thus, the first condition of § 522(f) has been met.
F. Under Oklahoma law, it would appear that the Debtor would be entitled to a homestead exemption absent the security interest and thus, the second element of § 522(f) is satisfied. See In re Leonard, supra at p. 336.
G. Lastly, we have determined that the lien possessed by Bobo is a judicial lien and therefore the third element is satisfied.
As a result, pursuant to Federal Bankruptcy law, the Debtor is entitled to avoid the lien possessed by Bobo on the subject Okmulgee property. See generally In re Baxter, 19 B.R. 674 (Bankr. 9th Cir.1982).
IT IS THEREFORE ORDERED that the Objection to Exemption filed by Bobo Oilfield Supply is hereby overruled.
IT IS FURTHER ORDERED that the Motion to Avoid the lien of Bobo Oilfield Supply filed by the Debtor is hereby granted for the reasons stated hereinabove. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920448/ | 107 B.R. 100 (1988)
In the Matter of Anthony Alfred DINGLEMAN, Debtor.
Bankruptcy No. 86-01139.
United States Bankruptcy Court, E.D. Louisiana.
April 15, 1988.
Eustace J. Shearman, III, New Orleans, La., for debtor.
Gilbert J. Hamberg, Monroe & Lemann, New Orleans, La., for Adler and Barish.
FINDINGS OF FACT
CONCLUSIONS OF LAW
THOMAS M. BRAHNEY, III, Chief Judge.
This matter came before the Court on a Motion For Leave To Amend Informal Proof of Claim filed by Adler, Barish, Levin & Creskoff, a partnership, and Avram G. Adler, Marvin I. Barish, Arnold Levin and *101 Howard J. Creskoff, individually and as partners of said partnership (Adler & Barish). After consideration of the evidence adduced at the hearing, arguments and briefs of counsel, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
The Debtor filed for relief under Chapter 7 of the Bankruptcy Code on April 2, 1986. He listed Adler & Barish in his Statement of Financial Affairs and Schedule A-3 as the plaintiff in a lawsuit against him pending in the Eastern District of Pennsylvania for a disputed amount of "ONE MILLION TWO HUNDRED THOUSAND AND NO/100 ($1,200,000.00) DOLLARS plus."
The bar date for filing proofs of claim was July 31, 1986. Adler & Barish did not file their claim until August 15, 1986. Adler & Barish does not contend they were unaware of the bar date. Movant asks this Court to find that their actions and pleadings filed in the case prior to July 31, 1986 constitutes an informal proof of claim. They seek to amend this informal proof of claim with the formal proof of claim filed on August 15, 1986.
Richard Thalheim, a creditor, filed an objection to the Motion to Amend arguing he will be severely prejudiced if Adler & Barish's motion is granted. Excluding Adler & Barish's claim for $1.2 million, the Debtor listed unsecured claims totalling $9,050.00. The estate consists of funds in the approximate amount of $12,500.00. If Adler & Barish is allowed to participate in the distribution, his share of the estate will be substantially diminished.
CONCLUSIONS OF LAW
In order to be considered an informal proof of claim, a document must contain a specific demand setting forth the amount and nature of the debt and the intent to hold the Debtor liable. In re Franciscan Vineyard, Inc., 597 F.2d 181 (9th Cir.1979); In re Nucorp Energy, Inc., 52 B.R. 843 (Bankr.S.D.Ca.1985); In re Sherret, 58 B.R. 750 (Bankr.W.D.La.1986).
The following pleadings were filed in the record prior to July 31, 1986:
1. June 24, 1986, Joint Application For Extension of Time To Object And/or To Seek A Denial of The Debtor's Discharge.
2. July 3, 1986, Request For Production of Documents filed by Adler & Barish.
3. July 3, 1986, Joint Application For Reduction of Time For Debtor To Respond To Creditor's Interrogatories And Request for Production of Documents.
4. July 3, 1986, Interrogatories filed by Adler & Barish.
5. July 3, 1986, Joint Application To Increase The Number of Interrogatories.
6. July 17, 1986, Joint Application For Extension of Time To Object And/or To Seek a Denial of the Debtor's Discharge.
7. July 17, 1986, Joint Application For Extension of Time For Debtor To Respond To Creditor's Interrogatories and Request For Production of Documents.
8. July 17, 1986, Joint Application To Extend The Time For Rule 2004 Examination of the Debtor.
The Court is of the opinion that none of these documents meets the criteria necessary to constitute an informal proof of claim. In the pleading filed on June 24, 1986, Movant states it is a claimant against the Debtor by virtue of a lawsuit. However, none of the documents set forth a specific demand showing the amount of the debt. They simply relate to discovery matters and an extension of time in which to object to the Debtor's discharge.
Movant argues that both the Debtor and Trustee were aware through telephone conversations of their claim and the intent to hold Debtor liable thereon. The Court is of the opinion this is not a sufficient basis for allowing an untimely claim. Nor is the fact that the Debtor listed Adler & Barish in his bankruptcy schedules. In re Middle Plantation of Williamsburg, Inc., 48 B.R. 789 (E.D.Va. 1985); In re Sems Music Company, Inc., 24 B.R. 376 (Bankr.M.D.Tn.1982).
The Court finds that while Adler & Barish may have had an interest and been *102 active in pursuing it, the written documents filed by them prior to July 31, 1985 do not constitute an informal proof of claim which can be amended.
Accordingly, the Court will enter an Order denying Adler & Barish's motion. | 01-03-2023 | 10-30-2013 |
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN><STRONG></CENTER>
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<CENTER>NO. 03-9<A NAME="1">8</A>-00<A NAME="2">038</A>-CR</CENTER>
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<CENTER><A NAME="3">Tony Lockwood</A>, Appellant</CENTER>
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<P><STRONG><CENTER>v.</CENTER>
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<P><STRONG><CENTER>The State of Texas, Appellee</CENTER>
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<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF <A NAME="4">TRAVIS</A> COUNTY, <A NAME="5">331ST</A> JUDICIAL DISTRICT</CENTER>
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<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="6">0973778</A>, HONORABLE <A NAME="7">BOB PERKINS</A>, JUDGE PRESIDING</STRONG></SPAN><STRONG></CENTER>
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Appellant's motion to dismiss this appeal is granted. <EM>See</EM> Tex. R. App. P. 42.2(a).
The appeal is dismissed.
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<P> Bea Ann Smith, Justice</P>
<P>Before Justices Powers, Kidd and B. A. Smith</P>
<P>Dismissed on Appellant's Motion</P>
<P>Filed: October 29, 1998</P>
<P>Do Not Publish</P>
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https://www.courtlistener.com/api/rest/v3/opinions/2393471/ | 423 F. Supp. 761 (1976)
UNITED HEALTH CLUBS OF AMERICA, INC., et al., Plaintiffs,
v.
J. P. STROM and Daniel R. McLeod, Defendants.
Civ. A. No. 75-1091.
United States District Court, D. South Carolina, Columbia Division.
Heard October 22, 1976.
Decided November 24, 1976.
*762 *763 Henry R. Weeks, Jr., Columbia, S. C., George S. Daly, Jr., Charlotte, N. C., for plaintiffs.
M. Elizabeth Crum, Kenneth B. Woodington, Columbia, S. C., for defendants.
Before HAYNSWORTH, Chief Judge, RUSSELL, Circuit Judge, and BLATT, District Judge.
THREE-JUDGE COURT AMENDED OPINION AND ORDER
PER CURIAM.
On June 24, 1975, the Governor of South Carolina approved Act Number 281[1], passed by the General Assembly of South Carolina, and generally known as the Massage Parlor Act. On June 26, 1975, the plaintiffs filed this action, alleging that the aforesaid Act was unconstitutional, and in their complaint, the plaintiffs sought a Three-Judge Court[2] for the purpose of having such court invalidate the Act, and, at the same time, the plaintiffs sought an injunction from the single judge to whom the case was assigned enjoining enforcement of the terms of the Act pending a hearing by the Three-Judge Court. By letter dated July 3, 1975, addressed to the single judge, who then had jurisdiction of the case, the office of the Attorney General of South Carolina, representing the defendants herein, informed the court that the defendants had no objection to the issuance of an injunction restraining enforcement of the Act, and the court learned that the reason for the defendants' consent to such injunction was due to the fact that state personnel required to enforce the provisions of the Act were not then available. Accordingly, an injunction preventing enforcement of the Act was issued on July 10, 1975, which injunction has remained in effect.
In the ensuing months, all of the individual parties except the plaintiff, United Health Clubs of America, Inc., an alleged eleemosynary corporation representing a group of individual massage parlors, were voluntarily dismissed from the action and discovery was undertaken by the parties so that a hearing could be held by the single judge to determine whether he should request that a Three-Judge Court be convened in this case.
After the commencement of the action and before a decision had been reached by the single judge as to the propriety of certifying this case for Three-Judge consideration, several important cases involving massage parlor ordinances or statutes, with provisions similar to the one here under attack, were decided by the Supreme Court of the United States and by the Fourth Circuit Court of Appeals. In Hogge v. Johnson, 526 F.2d 833 (4th Cir. 1975), cert. denied, ___ U.S. ___, 96 S. Ct. 3228, 49 L. Ed. 2d 1221 (1976), the plaintiffs sought injunctive and declaratory relief against local ordinances of the cities of Hampton and Newport News, Virginia, which ordinances, among other things, prohibited opposite sex massage. In that case, the validity of the prohibition against opposite sex massage was upheld, the Fourth Circuit Court of Appeals basing its decision upholding the *764 validity of such a prohibition on the dismissal by the United States Supreme Court, for want of a substantial federal question, of the case of Kisley v. City of Falls Church, 212 Va. 693, 187 S.E.2d 168, appeal dismissed, 409 U.S. 907, 93 S. Ct. 237, 34 L. Ed. 2d 169 (1972). Kisley had presented the identical issue regarding opposite sex massage to the United States Supreme Court as that which the plaintiff contested here under Section 11 of the South Carolina Act, S.C.Code Ann. § 56-840 (Cum.Supp. 1976), which Section likewise proscribes this type of massage. Furthermore, in Colorado Springs Amusements Ltd. v. Rizzo, 524 F.2d 571 (3rd Cir. 1975), cert. denied, ___ U.S. ___, 96 S. Ct. 3228, 49 L. Ed. 2d 1222 (1976), the Third Circuit Court of Appeals had determined that a Supremacy Clause attack on a provision similar to Section 11 on the ground that it conflicted with the Civil Rights Act of 1964, 42 U.S.C. Section 2000e(b), could not be sustained, for lack of standing, in any instance in which the massage parlor employer did not employ at least fifteen (15) persons for each working day in each twenty (20) or more calendar weeks in the current or preceding calendar year, a factor which the plaintiff could not prove in this case. An additional and even more meaningful decision on a Supremacy Clause attack upon a provision against opposite sex massage arose from the New Jersey case of Rubenstein v. Cherry Hill, 417 U.S. 963, 94 S. Ct. 3165, 41 L. Ed. 2d 1136 (1974), in which the United States Supreme Court dismissed a Supremacy Clause attack based on a conflict between the Civil Rights Act and an opposite sex massage ordinance for want of a substantial federal question.
In view of the decisions heretofore set forth, the plaintiff's attorney on February 11, 1976, completely withdrew plaintiff's attack on Section 11 of the South Carolina Act, the provision against opposite sex massage, and again requested that a Three-Judge Court be convened for the purpose of hearing the other questions raised by the plaintiff as to the constitutionality of other provisions of the South Carolina Act. Thereafter, on February 27, 1976, the single judge filed a certificate with the Honorable Clement F. Haynsworth, Jr., Chief Judge of the Fourth Circuit Court of Appeals, as required by 28 U.S.C. Section 2281, requesting that a Three-Judge Court be convened to hear and decide the issues raised by the plaintiff, and on March 9, 1976, a Three-Judge Court was designated consisting of Chief Judge Haynsworth, the Honorable Donald Russell, United States Circuit Judge, and the single judge, United States District Judge Sol Blatt, Jr., who had originally assumed jurisdiction of the case. A briefing schedule was established and the Three-Judge Court convened in Greenville, South Carolina, on October 22, 1976, to hear the issues remaining in the case.
The first question before the court was raised by the defendants' assertion that the plaintiff lacked standing to challenge the constitutionality of the Act, basing their contention on the fact that since Section 11 of the Act is unquestionably valid, and it was admitted that the members of the plaintiff's group were engaged almost entirely in opposite sex massage, the plaintiff lacked a sufficient personal stake in the result to present a challenge to the Act, because the plaintiff could present no "injury in fact." See, Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972); and Association of Data Processing v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970). The plaintiff, however, asserted that it did have standing, since there was no irrefutable evidence indicating that none of its members would apply to be licensed under the Act, and, furthermore, that at least a small part of the business of one or more of its massage parlor employers did involve similar sex massage; thus, the plaintiff insisted that its members would suffer economic loss if they were required to comply with the alleged constitutional provisions of the Act. Arnold Tours v. Camp, 400 U.S. 45, 91 S. Ct. 158, 27 L. Ed. 2d 179 (1970).
Assuming that the plaintiff and its members do have standing to challenge the constitutionality of any provisions of the Massage Parlor Act, this court is of the *765 opinion that the plaintiff's constitutional attacks on the Act have no merit. At the threshold of an analysis on the constitutionality of any statute, the reviewing court must, of course, identify the standard of judicial scrutiny that is appropriate to the case before it. Under general principles, if a regulation or statute imposes a "fundamental right", Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), or creates an inherently "suspect classification" such as race, nationality, or alienage, the challenged Act will be subjected to "close judicial scrutiny" requiring the state to establish a "compelling" interest in its enactment. See, e. g., Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971). If, on the other hand, the regulation does not affect a fundamental right or create a suspect classification, it has traditionally been accorded a presumption of constitutionality that may not be disturbed unless the enactment is shown to rest on grounds "wholly irrelevant to the achievement of (a legitimate) state's objective." McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S. Ct. 1101, 1105, 6 L. Ed. 2d 393 (1961); Williamson v. Lee Optical, 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 563 (1955); Metropolis Theater Co. v. City of Chicago, 228 U.S. 61, 33 S. Ct. 441, 57 L. Ed. 570 (1913). It is to be noted that the constitutionality of state statutes which regulate professions or trades invested with a strong public interest have normally been measured against the more lenient rational relationship standard. Schware v. Board of Law Examiners of New Mexico, 353 U.S. 232, 239, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957); Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S. Ct. 461, 99 L. Ed. 563 (1955); Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552, 556, 67 S. Ct. 910, 91 L. Ed. 1093 (1947).
Since this action neither affects "fundamental" or "First Amendment" rights, nor rights which have been held in the past to bear a "suspect" classification, this court is of the opinion that the proper judicial test for it to use is to determine whether the provisions of the Massage Parlor Act under attack bear a reasonable relationship between the purpose of the Act and the classifications used in it.
The United States Supreme Court has recognized a presumption which operates in favor of the reasonableness of legislative classifications. If any state of facts can adequately be advanced that would justify the classifications, the existence of those facts will be assumed by the court to be the basis of the classifications in order to uphold the legislation. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S. Ct. 337, 55 L. Ed. 369 (1911). In ascertaining the purpose of the statute, so that this court can determine whether a rational relationship does exist between the statute and the state's interest, this court must focus not only on the terms of the statute, but, also, on the context in which it was enacted and its legal and practical operative effect. Richards v. U. S., 369 U.S. 1, 11, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1961). Usually, all that need be shown is that the classifications adopted in the statute are not based on reasons totally unrelated to the purpose of the statute, because as long as there is a sufficient relationship with a proper legislative purpose, the statute should be upheld. Such a situation occurs whenever the court, in its opinion, determines that the prevailing social, economic and historic factors involved justify the classifications and the disparity resulting therefrom. Williams v. Rhodes, 393 U.S. 23, 30, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968). While the provisions of a massage parlor ordinance of the City of Durham, North Carolina, sustained in Brown v. Brannon, 339 F. Supp. 133 (M.D.N. C.1975), aff'd mem. 535 F.2d 1249 (4th Cir. 1976), were more specific than the provisions of the Act here under attack[3], the South Carolina Act is not so vague, in this court's opinion, using the rational relationship test, as to render it invalid. This court will not engage in a presumption that the South Carolina officials charged with the enforcement of the provisions of this Act will do so in an unconstitutional or illegal manner. At the very least, the provisions *766 of the South Carolina Massage Parlor Act are equally as specific as the provisions of the City of Fayetteville ordinance upheld in Smith v. Keator, 285 N.C. 530, 206 S.E.2d 203, appeal dismissed, 419 U.S. 1043, 95 S. Ct. 613, 42 L. Ed. 2d 636 (1975).
As to the challenge made to that provision of the South Carolina act requiring that each applicant provide proof of good moral character, it appears that similar requirements have been upheld in order to obtain a license in other businesses or professions, Konigsberg v. State Bar of California, 366 U.S. 36, 81 S. Ct. 997, 6 L. Ed. 2d 105 (1961), and this court feels that, under the circumstances here involved, such a provision is perfectly valid and reasonable.
While this court has the very highest regard for the Supreme Court of North Carolina, we are compelled to disagree with that court's conclusion reached in Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E.2d 18 (1968), wherein it was held, under an ordinance similar to that with which we are here concerned, that there was no rational reason for placing Y.M.C.A. and Y.W.C.A. Health Clubs in a separate classification and exempting these clubs, as does the South Carolina Act, from the provisions of the Charlotte ordinance. As noted earlier, under classic equal protection analysis, only a rational relationship to the state's interest is required to differentiate between these eleemosynary clubs and massage parlors which operate for profit. This court is of the opinion that the long history which both the Y.M.C.A. and Y.W.C.A. have established as health clubs, conforming to every provision of the law, without encroaching in any respect, on the health, safety, welfare or morals of the citizens of South Carolina, provides ample reason for the General Assembly to exempt these two organizations from the coverage of the South Carolina Massage Parlor Act. Having conducted their businesses in a perfectly legitimate manner for so many years, this court agrees with the General Assembly that there is no reason to conclude that these organizations will not continue their present lawful method of conducting their businesses in the years ahead. Additionally, even if this court concluded that the exemption of the Y.M.C.A. and Y.W.C.A. would constitute an improper and unreasonable classification for these two clubs, if such exemption were attacked by other nonprofit organizations administering massage without sexual orientation, Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957), under the circumstances here involved, this court is of the opinion that such classification made in the Act is unquestionably reasonable insofar as the plaintiff is concerned.
Plaintiff further complains that Sections 8 and 9(a), and a part of Section 11, of the South Carolina Act, authorize state officials to make warrantless searches of member establishments, without proper cause, thereby violating the proscriptions of the Fourth Amendment. Plaintiff relies for this position on Camera v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), in which case an attempt was made to prosecute an apartment lessee for refusing to allow an inspection of his premises by city officials under the provisions of a city housing code. The United Supreme Court in that case held that the Fourth Amendment barred prosecution of a person who had refused to permit the warrantless inspection there of his personal residence, but that case is obviously quite different from the instant case involving a business operating with a license issued by the state. Sections 8 and 11 of the Act require that the massage parlor operators maintain certain records which are subject to inspection at reasonable times, and Section 9(a) merely directs SLED to inspect these records. Thus, these regulations are not the type condemned by the Court in Camera, supra, and in See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967). Nothing in the Act purports to grant SLED the authority to conduct warrantless inspections or to permit such inspections of the records in violation of the Fourth and Fourteenth Amendments and, as we have previously stated herein, we have no reason to assume that SLED will attempt to enforce these provisions *767 of the Act in an unconstitutional or illegal manner. Should any constitutional violations occur, the plaintiff, or any aggrieved party, may seek the assistance of the court at that time to protect its rights.
Furthermore, under the state's police power, it has long been recognized that the state may require that businesses be inspected by state authorities at reasonable times for safety, or for other legitimate reasons. Inspection of buildings by state fire marshals, and inspections of businesses where alcoholic beverages are sold or consumed by agents of the State Alcohol and Beverage Control Commission, are only two of many examples of such statutorily designated warrantless inspections, and this court does not intend to intimate that there is anything unconstitutional or unreasonable for the General Assembly of South Carolina having placed massage parlors under similar regulations.
Based on the foregoing, it is
ORDERED, that the motion of the defendants for summary judgment herein be, and the same hereby is, granted.
IT IS FURTHER ORDERED, that the injunction heretofore issued in this case be, and the same hereby is, dissolved.
AND IT IS SO ORDERED.
NOTES
[1] No. 281 (1975) S.C. Acts & Jt.Res. 686, S.C. Code Ann. §§ 56-831 to -847 (Cum.Supp.1976).
[2] It is to be noted that the United States Congress in Public Law 94-381, approved August 12, 1976, greatly restricted the convening of three-judge courts; but provided in Section 7 of the Act that it would not apply to any action commenced before its date of enactment. See, 1976 U.S.Code Congressional & Admin.News 3160.
[3] See appendix, Brown v. Brannon, supra, at page 139. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621409/ | 215 F. Supp. 833 (1963)
Jack CINNAMON, Plaintiff,
v.
ABNER A. WOLF, INC., a Michigan corporation, A.C.F. Wrigley Stores, Inc., a Delaware corporation, and Gold Bell Gift Stamps Cooperative, Inc., a Michigan corporation, jointly and severally, Defendants.
Civ. A. No. 21397.
United States District Court E. D. Michigan, S. D.
March 26, 1963.
Arthur J. Hass, Norman D. Katz, Katz & Victor, Morris Garvett, Levin, Levin, Garvett & Dill, Detroit, Mich., for plaintiff.
John Sklar, Maurice S. Binkow, Irwin I. Cohn, Honigman, Miller, Schwartz & Cohn, Detroit, Mich., for defendants.
FREEMAN, District Judge.
This is a motion to dismiss a private antitrust suit where the plaintiff died during the pendency of the action. The sole ground of the motion is that such action does not survive. In support of this contention, defendants argue that in the absence of a federal survival statute for such claims, state law applies, and that under Michigan law, the action has abated.
The executor of the estate of the deceased plaintiff, Jack Cinnamon, has *834 moved to substitute himself as party plaintiff.
In support of his position that the instant action does survive, the executor maintains that federal decisional law governs and that under such law, an antitrust action survives a plaintiff's death. He also argues that the action survives under Michigan law.
The first question this Court must decide is whether federal or state law governs the survivability of an antitrust action where the statutes creating such action are silent regarding this particular issue.
In applying particular federal statutes such as the antitrust laws, the courts are primarily concerned in determining and effectuating the policies of such statutes and will turn to either federal decisional or state law to fill in the interstices present in these statutes, depending on which law is more apt to effectuate their policies. Pritchard v. Smith (C.A.8, 1961), 289 F.2d 153; Volume 1A, Moore's Federal Practice (1961), ¶ 0.323 [22], pp. 3757-9. In the recent Sixth Circuit decision of United States v. Helz, 314 F.2d 301, in considering this problem, the Court said:
"In diversity cases, since Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, the law of the state governs the remedies. In cases arising under federal statutes, remedies are governed by the directive of the statutes or, if no directive, then by rules fashioned by the federal courts. A rule set up by a decision of the federal court may adopt the state law or may fashion the governing rule of law according to its own standards."
The purpose of Section 4 of the Clayton Act, Title 15 U.S.C. § 15, which provides for private triple damage suits is "to enlist `the business public * * * as allies of the Government in enforcing the antitrust laws;' the means chosen, on the other hand, is to give `the injured party ample recompense for the wrong suffered' by allowing threefold recovery of damages." Report of the Attorney General's National Committee to Study the Antitrust Laws, p. 378 (1955). In other words, the private antitrust suit is a substantial weapon in effectuating a national policy of protecting, preserving, and promoting free competition in the market place by blending "antitrust policy with private compensatory law." Id.
Assuming, arguendo, that under Michigan law[1] the action abated with plaintiff's death, an application of such state law in the instant matter would not be consistent with the national policy underlying the creation of a private antitrust *835 suit. The Supreme Court in Sola Electric Co. v. Jefferson Elec. Co., 317 U.S. 173 at p. 176, 63 S. Ct. 172, at pp. 173-174, 87 L. Ed. 165 (1942), held that state law or policy cannot nullify the prohibitions of a federal statute or deny its benefits, and stated:
"It is familiar doctrine that the prohibition of a federal statute may not be set at naught, or its benefits denied, by state statutes or state common law rules. In such a case our decision is not controlled by Erie R. Co. v. Tompkins, 304 U.S. 64 [58 S. Ct. 817, 82 L. Ed. 1188]. There we followed state law because it was the law to be applied in the federal courts. But the doctrine of that case is inapplicable to those areas of judicial decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law. Royal Indemnity Co. v. United States, 313 U.S. 289, 296 [61 S. Ct. 995, 85 L. Ed. 1361]; Prudence [Realization] Corp. v. Geist, 316 U.S. 89, 95 [62 S. Ct. 978, 86 L. Ed. 1293]; Board of Comm'rs [of Jackson County] v. United States, 308 U.S. 343, 349-350 [60 S. Ct. 285, 84 L. Ed. 313]; cf. O'Brien v. Western Union Telegraph Co., [1 Cir.], 113 F.2d 539, 541. When a federal statute condemns an act as unlawful, the extent and nature of the legal consequences of the condemnation, though left by the statute to judicial determination, are nevertheless federal questions, the answers to which are to be derived from the statute and the federal policy which it has adopted. To the federal statute and policy, conflicting state law and policy must yield."
See also Chicago & N. W. Ry. Co. v. Davenport (C.A.5, 1953), 205 F.2d 589.
In support of their position, the defendants argue that prior to the passage of § 4B of the Clayton Act (15 U.S.C. § 15b), the federal courts applied the various state statutes of limitations. With respect to this argument, it should be noted (1) in the absence of a federal statutory period of limitations, the federal courts either had to follow the state statute or invade an area that is within the province of Congress; (2) the private party had some control over the matter, i. e., he could bring suit within the statutory period, while, obviously, no one can control death; and (3) though the state statute of limitations was applicable, federal law determined what was necessary to advance the federally created right to the level required to consider it "accrued" under state law. See Judge Friendly's excellent discussion of this point in Moviecolor Limited v. Eastman Kodak Co. (C.A.2, 1961), 288 F.2d 80, cert. denied, 368 U.S. 821, 82 S. Ct. 39, 7 L. Ed. 2d 26.
The defendants, in support of their contention that state law should apply, rely upon the concept enunciated in Erie R. Co. v. Tompkins, supra, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), that there is no federal common law, the Rules of Decision Act (28 U.S.C. § 1652) and Rule 17(b) of the Federal Rules of Civil Procedure. The defendants' reliance upon the "Erie doctrine" is not well taken in light of the previously discussed points that state law cannot thwart a federal policy expressed in a Congressional statute, and for the reason that where the courts in federal question cases have applied federal decisional law and rejected state law, or vice versa, it has been for the sole purpose of carrying out a Congressional policy. In other words, the approach to any particular problem is one of statutory policy and not the creation of decisional or common law.
The Rules of Decision Act (Title 28 U.S.C. § 1652) reads as follows:
"The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts *836 of the United States, in cases where they apply."
In overruling Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865 (U.S.1842), the Court in Erie R. Co. v. Tompkins, supra, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, held that the words "laws of the several states," as used in the Rules of Decision Act, included state decisional or common law as well as state statutes. The Court in Erie did not lay down any rule of law that in diversity cases state law automatically applies and that in federal question cases, federal law always governs. 1A M.F.P. ¶ 0.305 [3] (1961), pp. 3054-5; Hart & Wechsler, The Federal System (1953), 690-700. But the Court did hold that the source or origin of the right sued upon, and not the ground on which federal jurisdiction over the case is founded, determines the governing law. Garrett v. Moore-McCormack Co., 317 U.S. 239, 245, 63 S. Ct. 246, 87 L. Ed. 239 (1942); Maternally Yours v. Your Maternity Shop (C.A.2, 1956), 234 F.2d 538, 540, n. 1. In the instant case, the source or origin of plaintiff's claim is a federal statute and, consequently, state law is not made applicable by the Rules of Decision Act. It should be noted that such Act makes the "laws of the several states" applicable "in cases where they apply" and that where "Acts of Congress otherwise require or provide," such state law shall not "be regarded as rules of decision in civil actions in the courts of the United States."
Rule 17(b) (F.R.Civ.P.) deals with capacity to bring an action and does not affect survivability of an action.
None of the decisions upon which the defendants rely as authority for invoking state law involve the precise problem of the survivability of an antitrust action following the death of a plaintiff.
In the instant case, this Court concludes that federal decisional law governs the question of survivability, especially in light of the fact that state law, which may not be uniform on this question, could possibly defeat the policy of a particular federal statute. See Moore v. Backus (C.A.7, 1935), 78 F.2d 571, and Barnes Coal Corp. v. Retail Coal Merchants Association (C.A.4, 1942), 128 F.2d 645, holding that federal law determines survivability of an antitrust action; Hicks v. Bekins Moving & Storage Co. (C.A.9, 1937), 87 F.2d 583, applying federal law without discussion to an antitrust action; Nelson v. Knox (C.A.6, 1956), 230 F.2d 483, applying federal law without discussion to a civil rights action.
Various federal courts have considered the problem of survivability of an antitrust claim and have held or strongly indicated that such action survives the plaintiff's death. Moore v. Backus, supra, 78 F.2d 571 (specific holding of survivability); Hicks v. Bekins Moving & Storage Company, supra, 87 F.2d 583 (specific holding of survivability); Barnes Coal Corp. v. Retail Coal Merchants Association, supra, 128 F.2d 645 (holding that the state statute of limitations which governs actions that survive applies to an antitrust action, since such action survives the plaintiff's death). The courts have also concluded that such cause of action survives the death of a defendant. Rogers v. Douglas Tobacco Board of Trade (C.A.5, 1957), 244 F.2d 471; Banana Distributors, Inc. v. United Fruit Co. (S.D.N.Y.,1961), 27 F.R.D. 403; Haskell v. Perkins, et al. (D.N.J.,1928), 28 F.2d 222. See also Sullivan v. Associated Billposters & Distributors (C.A.2, 1925), 6 F.2d 1000 (the first major case this Court has found which recognized the survivability of an antitrust claim).
The Sixth Circuit Court of Appeals in Nelson v. Knox, supra, 230 F.2d 483, held that where an action is brought under the Civil Rights Act, 42 U.S.C.A. § 1983, in which it is alleged that the defendants intentionally destroyed the plaintiff's business, such action survives the death of the plaintiff. Significantly, the Court in that case cites and quotes extensively from the decision of Barnes Coal Corp. v. Retail Coal Merchants Ass'n, supra, 128 F.2d 645. The rationale of Barnes Coal, which the Sixth Circuit adopted, *837 is that an injury to a person's business is ultimately one to his estate and, consequently, the action survives. This reasoning is applicable to the case at bar, since the alleged injury sustained by the plaintiff, Cinnamon, was a financial or business loss which, in the final analysis, his estate must bear.
This Court concludes that an antitrust claim under Section 4 of the Clayton Act, 15 U.S.C. § 15, survives the death of a plaintiff. However, the Court does not pass on the survivability of the triple damage aspect of such claim at this time, in view of a split of authority as to this precise problem,[2] and because the parties did not argue this question.
An appropriate order may be submitted.
NOTES
[1] An examination of the Michigan authorities reveals an interesting situation. In the case of Frohlich v. Deacon, 181 Mich. 255, 148 N.W. 180 (1914), the Michigan Supreme Court unanimously agreed that a cause of action for unfair competition and for a violation of the State Antitrust Act did not survive under the provisions of what is now M.S.A. § 27.684, Comp.Laws 1948, § 612.32, and divided evenly over the interpretation of an amendment (since repealed) to the statute involved. However, in the case of Federal Gravel Co. v. Detroit & M. Ry. Co., 263 Mich. 341, 248 N.W. 831 (1933), the court held that a cause of action under the Michigan statutes for unjust price discrimination was not a personal tort which abated on the death of the injured party and, consequently, was assignable. The court considered the action as one for a tort to the plaintiff's property or estate. In the earlier opinion, the court only considered injury "to property," while in the later opinion, its consideration was broadened to include injury to the estate. If this Court were to decide the issue of survivability on the basis of state law, it would follow the reasoning of the court in Federal Gravel Co. v. Detroit & M. Ry. Co., supra. The other decisions on which the parties rely are not applicable. Jones v. Hicks, 358 Mich. 474, 100 N.W.2d 243, and Stebbins v. Dean, 82 Mich. 385, 46 N.W. 778 (1890), stand only for the proposition that fraud is a personal tort and does not survive. The case of Holmes v. Loud, 149 Mich. 410, 112 N.W. 1109 (1907), involved direct injury to plaintiff's estate and the cause of action was consequently assignable.
[2] Compare the decisions of Moore v. Backus, supra, 78 F.2d 571; Hicks v. Bekins Moving & Storage Co., supra, 87 F.2d 583; Barnes Coal Corp. v. Retail Coal Merchants Ass'n, supra, 128 F.2d 645, which either hold or strongly indicate that the triple damage aspect survives with those of Sullivan v. Associated Billposters, supra, 6 F.2d 1000; Rogers v. Douglas Tobacco Board of Trade, supra, 244 F.2d 471; Haskell v. Perkins, supra, 28 F.2d 222, which either hold or indicate that triple damages do not survive. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621794/ | 942 S.W.2d 120 (1997)
Jonathan Lee KENDRICK, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 09-95-076 CR, 09-94-326 CR.
Court of Appeals of Texas, Beaumont.
Submitted September 3, 1996.
Decided March 12, 1997.
*121 James R. Makin, Beaumont, for appellant.
Tom Maness, Criminal District Attorney, David W. Barlow, Assistant Criminal District Attorney, Beaumont, for appellee.
Before WALKER, C.J., and BURGESS and STOVER, JJ.
OPINION
WALKER, Chief Justice.
We are combining our discussion and resolution of the issues before us in one opinion because, with the exception of one point of error, the issues raised and the law used to resolve said issues are identical. Appellant was tried separately for the felony offenses of Capital Murder. In cause number 66112, appellant was indicted for causing the death of Harlan Taylor while in the course of committing or attempting to commit the offense of robbery. In cause number 66114, the same allegations were made except the victim was alleged to be Ursala Taylor. The trial in cause number 66112 began on May 16, 1994 and concluded on May 19, 1994. The trial in cause number 66114 began on September 19, 1994 and concluded on September 21, 1994. The jury in each case found appellant guilty. As appellant was *122 fifteen years' of age at the time the offenses were committed, the guilty verdicts resulted in the trial court automatically assessing punishment at confinement in the Texas Department of Criminal JusticeInstitutional Division for life in both cases. See TEX.PENAL CODE ANN. § 8.07(d) (Vernon 1994). The trial court ordered that the sentences run consecutively. In cause number 66112, appellant raises three points of error. In his separately prosecuted appeal in cause number 66114, appellant raises four points of error. In both appeals, the first three points of error are virtually identical and read as follows:
Point of Error One: The trial court erred by failing to make specific factual findings regarding the voluntariness of appellant's confession.
Point of Error Two: The trial court erred in denying appellant's pretrial motion to suppress his statement which was shown to have been involuntarily given and coerced.
Point of Error Three: The trial court erred in failing to sustain appellant's timely objection to the admission of inflammatory and prejudicial photographs.
In cause number 66114, appellant raises a fourth point of error which states, "The trial court erred in stacking the appellant's sentence with a sentence arising out of the same facts." We will proceed with discussion and resolution of the first three points of error, and then conclude with the resolution of point of error four.
With regard to appellant's initial points of error in each case, appellant contends that the trial court failed to comply with TEX.CODE CRIM.PROC.ANN. art. 38.22, § 6 (Vernon 1979). The record before us reflects that the oral statement in question was made after appellant was taken into custody by Investigator Carl Rose of the Jefferson County District Attorney's Office and Ranger L.C. Wilson. Appellant was fifteen years' old and no transfer to felony district court had yet taken place. As we noted in our recent case of Travis v. State, 921 S.W.2d 559, 568 (Tex.App.Beaumont 1996, no pet.), in considering issues involving substantive rights of pre-transfer juveniles, such as the admissibility of statements, the Court of Criminal Appeals has held that until the moment transfer from juvenile court jurisdiction is ordered, said issues, though raised in the criminal forum, shall be controlled by applicable provisions of the Family Code. See also Griffin v. State, 765 S.W.2d 422, 427 (Tex.Crim.App.1989). Therefore, any question as to what is or is not required of the trial court with regard to appellant's pretransfer oral statement is controlled by TEX. FAM.CODE ANN. § 51.09 (Vernon 1986 & Vernon Supp.1994).
An examination of § 51.09 reveals no requirement that the trial court, after ruling that the juvenile's statement was voluntarily made, enter an order containing findings of fact and conclusions of law in support of said ruling. Although the record before us includes a supplemental transcript containing findings of fact and conclusions of law by the trial court, as is required under art. 38.22, sec. 6, we hold that § 51.09 is controlling with regard to the admissibility of a pretransfer juvenile's statement, and that § 51.09 does not require the trial court to issue written findings of fact and conclusions of law following a hearing on the voluntariness of said statement. Point of error one is overruled in each appeal.
The oral statement at issue in points of error two is the same one involved in the previous points of error. Said oral statement was introduced into evidence at both trials over appellant's objection. By agreement of the parties, the voluntariness issue was not relitigated in the second trial, with the trial court at the second trial taking judicial notice of the testimony in the first trial. The trial court in the second trial adopted its findings of fact and conclusions of law made following the hearing conducted in the first trial. In his second points of error, appellant contends his oral statement was obtained in violation of "the Fifth and Fourteenth Amendments to the United States Constitution, Article I, sections 10 and 19 of the Texas Constitution and articles 38.21 and 38.22 of the Texas Code of Criminal Procedure." While appellant does attempt to separate the federal and state constitutional provisions in his briefs, he does not argue or provide authority to establish *123 that his protection under the Texas Constitution exceeds, or differs from, that provided to him by the United States Constitution. See Arnold v. State, 873 S.W.2d 27, 33 (Tex.Crim. App.1993), cert. denied, 513 U.S. 830, 115 S. Ct. 103, 130 L. Ed. 2d 51 (1994). We will therefore not address appellant's state constitutional argument. Id.; Heitman v. State, 815 S.W.2d 681, 690 n. 23 (Tex.Crim.App. 1991). Recall that we stated in points of error one that the proper statutory provision regarding admissibility of appellant's statement is § 51.09 of the Family Code.
A statement is "involuntary," for purposes of federal due process, only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker. Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App.1995). In holding the right against self-incrimination applies to juveniles to the same extent it applies to adults, the Supreme Court has added an extra caution when incriminating statements made by a juvenile are offered into evidence. In re Gault, 387 U.S. 1, 55, 87 S. Ct. 1428, 1458, 18 L. Ed. 2d 527, 561 (1967). The Court held that if counsel is not present when the juvenile makes a statement, "[T]he greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair." Id. This admonishment seems to place a more stringent burden on the State to prove, by a preponderance of the evidence, the juvenile's statement was given voluntarily. See Alvarado, 912 S.W.2d at 211; see also Colorado v. Connelly, 479 U.S. 157, 168-169, 107 S. Ct. 515, 522-23, 93 L. Ed. 2d 473, 485 (1986). However, the trial court is still the sole judge of the admissibility of the statement, and the trial court's finding will not be disturbed on appeal absent a clear abuse of discretion. Alvarado, 912 S.W.2d at 211.
In the instant case, the record of the suppression hearing indicates that Jefferson County Justice of the Peace Harold Engstrom fully admonished appellant with the entire panoply of warnings contained in § 51.09(b)(1) of the Family Code. Judge Engstrom also testified that he felt that appellant had the ability to fully understand and comprehend said warnings. Indeed, the final portion of the written warning form filled out and signed by Judge Engstrom provided the following:
I hereby certify that I have examined Jonathan Kendrick outside of the presence and independently of any law enforcement officer or any prosecuting attorney and have determined that this person understands the nature and content of these warnings.
Investigator Carl Rose was the State's next witness. Rose described the events surrounding the detention of appellant on December 10, 1993. The particular circumstances were described by Investigator Rose as follows:
Q. [The State] Once he was picked up, where was he taken?
A. [Rose] He was picked up at his residence on Tram Road. He was transported by the Beaumont Police Department.
Q. Did he go to Judge Engstrom?
A. He went in front of Judge Engstrom, yes, sir.
Q. And to your knowledge, did Judge Engstrom advise him of his rights?
A. That's correct, sir.
Q. After Judge Engstrom talked to him, did you have an occasion to talk to him?
A. Yes, sir, I did.
Q. Who else was with you, if anyone, when you talked to him?
A. Ranger L.C. Wilson.
Q. And was thatdid that occur over in the juvenile facility of the Beaumont Police Department?
A. Yes, sir, it did.
Q. Was there anyone else present in the room?
A. No, sir, there was not.
Q. When youwhat did you say to Jonathan Kendrick when he first came in?
A. I identified myself who I was and I identified Ranger Wilson and we spoke briefly, and I told him why he was here.
*124 Q. What was that?
A. He was being detained for questioning on a capital murder case.
Q. Did he appear to understand that?
A. Yes, sir.
Q. What happened next?
A. We talked to him very briefly. He initially, of course, said he had nothing to do with this case. We talked to him approximately about five minutes. We ran down the evidence that we had that would substantiate our contention that he was involved. And it didn't take approximately I'd say about five minutes before he kind of bowed his head and said, "I did it."
Q. At any time during that first five minutes, did he tell you that he wanted to talk to a lawyer?
A. No, sir.
Q. Did he tell you that he wanted to talk to anyone other than you-all?
A. No, sir.
Q. Did it appear that he had been abused in any manner?
A. No, sir.
Q. Did he proceed to tell you, you and Ranger Wilson, what had occurred?
A. Yes, sir, he did.
Appellant was called by his trial counsel to testify at the hearing. Although he admitted that Judge Engstrom did admonish him as to his rights under § 51.09, appellant stated that he did not remember Judge Engstrom mentioning that a lawyer could be appointed for appellant if he was unable to hire one, nor did he (appellant) really understand what was going on. Appellant further testified on direct examination that when he was initially taken from his home, he was not permitted to put on his shoes and was bare-footed until sometime after arriving at the police station. Appellant also stated that at some point he was scared and that he didn't read anything that he signed that day. During direct examination, appellant explained his oral statement to Investigator Rose and Ranger Wilson as follows:
Q. [Trial Counsel] And what happened then?
A. [appellant] And they took a statement from me.
Q. Now, you say they took a statement. Did you supply facts to them, or did they tell you what happened?
A. The Texas Ranger come in and said, "This is the way you did it" and he just told me a bunch of stuff, and I said, "Yeah, that's the way I did it."
Q. Now, why would you say you did that?
A. So my brother wouldn't hurt my family.
Q. And your brother being ...
A. Roy, III.
Q. Had he threatened you?
A. Yes, sir.
Q. So, you were admitting to a murder that you hadn't done.
A. Yes, sir.
Q. Did you tell the officers this?
A. No, sir.
Appellant's alleged reason for providing the oral statement was touched on during the State's cross-examination which we reproduce as follows:
Q. [State (lead counsel) ] Okay. And the bottom line, I think, of what [Trial Counsel] was asking you, are you telling Judge Giblin that you gave the statement to the police on December 10ththat that's the statement you wanted to give them because of what Roy had told you?
A. [appellant] Yes, sir.
Q. But I mean, the police didn't make you give that statement, did they? That's what you wanted to do.
A. (Nodding affirmatively)
[State (lead counsel) ]: I'll pass the witness.
[State (co-counsel) ]: Your Honor, I want the record to reflect that that was an affirmative nod as a result of that last question.
THE COURT: That will reflect if ...
CONTINUED CROSS-EXAMINATION
By The State:
Q. [State (lead counsel) ] Is that what you wanted to do?
*125 A. [appellant] Yeah.
In an apparent attempt to clarify matters, appellant's trial counsel revisited the issue during re-direct examination as follows:
Q. [Trial Counsel] Now, this statement you gave them, you say that's what you wanted to tell them. That's not what you wanted to tell them, is it?
A. I wanted to protect my family.
Q. Did you feel that you could just remain silent?
A. No.
Q. Did you feel threatened by the officers?
A. Well, in a way because if I would have told them that my brother would have done it, then they would have went and questioned him and then they wouldn't have arrested him right away and he could still hurt my family.
It is clear from appellant's testimony alone that he voluntarily admitted to having committed the offense in question allegedly to prevent his older brother from doing harm to his (appellant's) family. No official, coercive conduct is apparent from any of the testimony. Appellant was not deprived of his rights under the Fifth Amendment when his oral incriminating statement was admitted before the jury.
With regard to any denial of appellant's statutory rights, § 51.09 of the Family Code contains the following provision under subsection (b)(2):
(b) Notwithstanding any of the provisions of Subsection (a) of this section, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:
* * * * * *
(2) it be made orally and the child makes a statement of facts or circumstances that are found to be true, which conduct tends to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.
The record of the suppression hearing reflects that Investigator Rose testified as follows regarding appellant's oral statement admitting to the offense:
Q. [The State] And did he tell you how he entered the Taylor residence?
A. [Rose] Yes, sir, he stated he entered through the front door.
Q. And what did he tell you occurred after he went into the Taylor residence?
A. He stated that he was walking down the hallway when he was surprised by Mr. Taylor and he had a knife with him in his possession. He said Mr. Taylor came from behind him. He turned around and stabbed Mr. Taylor. He was unsure how many times he did so. And while the attention was with Mr. Taylor, Mrs. Taylor came out of the bathroom and started screaming. He chased her through the master bedroom where she attempted to use the telephone, and they wrestled for the telephone for a little while. He stabbed her also. She ran into another bedroom and tried to get out the window. He wrestled with her. She supposedly scratched his neck. There was also a piece of jewelry he had on at that time, a necklace, and
Q. (Interrupting) Let me stop you right there. Did he advise you at that time when you were talking to him on December 10th that a necklace that had been found at the scene, which is State's Exhibit No. 47 was, in fact, his necklace?
A. That's correct.
Q. And prior to that time, were you or any law enforcement officers aware that that necklace belonged to Jonathan Kendrick?
A. We were aware that there was a necklace located in the house, but we did not know exactly who it belonged to.
Investigator Rose also testified that appellant's oral statement provided the specific location of the murder weapon and some of the jewelry stolen from the Taylor's home. Rose stated that subsequent searches located both the murder weapon and the jewelry based upon appellant's statement. As such, appellant's oral inculpatory statement was admissible under § 51.09(b)(2), which appears not to predicate admissibility on the *126 juvenile ever having been provided any warnings whatsoever. Because appellant's statement was voluntary under the Fifth Amendment and because said statement also satisfied the express provisions of § 51.09(b)(2) of the Family Code, we cannot say that the trial court's denial of appellant's motion to suppress was a clear abuse of discretion. Point of error two is overruled in each appeal.
Appellant's third points of error complain of the inflammatory nature of several photographs, State's Exhibits 49 through 54 (66112), and State's Exhibits 49 through 51 (66114) in that they graphically depict the charred, nude body of the victims, Harlan Taylor and Ursala Taylor. We have received, for our examination, the original exhibits from the court reporter. As we observed in Phipps v. State, 904 S.W.2d 955, 957 (Tex.App.Beaumont 1995, no pet.), a court may consider many factors in determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, such as the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black and white, whether they are close-up, and whether the body depicted is clothed or naked. See also Long v. State, 823 S.W.2d 259, 272 (Tex.Crim.App.1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3042, 120 L. Ed. 2d 910 (1992). Ultimately, the admissibility of photographs over any challenge is within the sound discretion of the trial judge. Jones v. State, 843 S.W.2d 487, 501 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 1035, 113 S. Ct. 1858, 123 L. Ed. 2d 479 (1993).
In his opinion in Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App.1995), Judge Meyers provides the following well-reasoned response to similar complaints of inflammatory photographic exhibits admitted by the State:
The photographs are gruesome. That is to say, they are disagreeable to look at, but they depict nothing more than the reality of the brutal crime committed. The photographs are powerful visual evidence, probative of various aspects of the State's theory of the offense including the brutality and heinousness of the offense. Appellant must realize that it is precisely the quality which we describe as "powerful" which gives rise to his arguments that the photographs are prejudicially inflammatory. But when the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence. A trial court does not err merely because it admits into evidence photographs which are gruesome. [citations omitted] The trial court did not abuse its discretion in admitting the video recording or photographs of which appellant complains.
We echo the above-stated rationale in Sonnier with regard to the photographs at issue. The color photographs depicting the charred remains of the victims are somewhat gruesome, but these results were apparently what appellant himself intended. We too find no abuse of discretion by the trial court in admitting the photographs. The probative value of the photographs has not been shown to be substantially outweighed by any unfair prejudice to appellant. Tex.R. of Crim.Evid. 403. Point of error three is overruled in both appeals.
Appellant's fourth point of error contained in his appeal in cause number 66114 contends that because the murders of the victims arose out of the same criminal episode, the trial court erred in ordering the sentences to run consecutively. Generally, a trial court's authority to cumulate sentences is found in TEX.CODE CRIM.PROC.ANN. art. 42.08 (Vernon Supp.1997). The Court of Criminal Appeals in LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App.1992), held that a trial court's general authority under art. 42.08 is further limited by TEX.PENAL CODE ANN. § 3.03 (Vernon 1994), "whenever a single criminal action arising out of the same criminal episode occurs,..." The Court in LaPorte held that a defendant is prosecuted in "a single criminal action" "whenever allegations and evidence of more than one offense arising out of the same criminal episode, as that term is defined in Chapter 3, are presented in a single trial or plea proceeding, whether pursuant to one charging instrument or several, and the *127 provisions of Section 3.03 then apply." [emphasis supplied] Id.
While the State in the instant case concedes that the murders took place during the "same criminal episode," as that term is defined in TEX.PENAL CODE ANN. § 3.01 (Vernon 1994), it is obvious that two separate trials took place, with separate juries, approximately four months apart. Appellant seems to ignore the additional requirement under § 3.03 that he be prosecuted in "a single criminal action" in order to be statutorily protected from exposure to consecutive sentencing by the trial court under art. 42.08. As appellant in the instant case was prosecuted in separate criminal actions, the trial court did not err in "stacking" the respective life sentences. Point of error four in cause number 66114 is overruled. The judgments and the sentences in cause numbers 66112 and 66114 are affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/98519/ | 238 U.S. 393 (1915)
OREGON & CALIFORNIA RAILROAD COMPANY
v.
UNITED STATES.
No. 679.
Supreme Court of United States.
Argued April 23, 26, 27, 1915.
Decided June 21, 1915.
CERTIFICATE FROM AND CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
*411 Mr. P.F. Dunne, with whom Mr. Wm. F. Herrin, Mr. Wm. D. Fenton, Mr. Frank C. Cleary and Mr. Joseph H. Call were on the brief, for appellant railroads.
Mr. John C. Spooner, with whom Mr. John M. Gearin was on the brief, for appellant, Union Trust Company.
Mr. John Mills Day, with whom Mr. M.E. Brewer, Mr. Charles E. Shepard and Mr. Lewis C. Garrigus were on the brief, for interveners.
Mr. A.W. Lafferty for cross complainant.
Mr. Constantine J. Smyth, Special Assistant to the Attorney General, with whom Mr. Solicitor General Davis and Mr. Assistant Attorney General Knaebel were on the brief, for the United States.
Mr. George M. Brown, Attorney General of the State of Oregon, filed a brief as amicus curiae.[1]
After stating the case as above, MR. JUSTICE McKENNA delivered the opinion of the court.
A direct and simple description of the case would seem to be that it presents for judgment a few provisions in two acts of Congress which neither of themselves nor from the context demand much effort of interpretation or construction. But the case has never been considered as having that simple directness. A bill which occupies 78 pages of the record (exclusive of exhibits), the allegations of which were iterated and reiterated by cross complainants and interveners and added to, and an answer that admitted or *412 traversed their averments with equal volume and circumstance, constituted the case for trial. Seventeen volumes of testimony, each of many pages, were deemed necessary to sustain the case as made. It is certain, therefore, that no averment has been omitted from the pleadings; no fact from the testimony that has any bearing on the case; the industry of counsel has neglected no statute or citation, and their ability no comment or reason that can elucidate or persuade. As we proceed it will be seen that we have rejected some contentions. It is not the fault of counsel if we have misunderstood them.
Yet with all the research, it may be on account of it, the contestants have not preserved an exact alignment and have shown no preference as to the company in which contentions are made or opposed.
The Government contends that the provisos, we so designate them and shall so refer to them, though they differ in technical language, constitute conditions subsequent and that by the alleged breaches indicated the lands became forfeited to the United States. The railroad company and other defendants contend that the provisos constitute restrictive and unenforceable covenants. The cross complainants insist that a trust was created for actual settlers and the interveners urge that the trust has the broader scope of including all persons who desire to make actual settlement upon the lands.
This curious situation is presented: The Government joins with the railroad in opposing the contentions of the cross complainants and interveners. Both of the latter unite with the Government in contesting the position of the railroad but join with the railroad against the Government's assertion of forfeiture. The cross complainants attack the claim of the interveners, and the State of Oregon, through its Attorney General, without definitely taking sides in the controversies, declares it to be to the interest of the State and expresses the hope that the lands *413 now withdrawn by the railroad shall be "subject to settlement and improvement, as contemplated by the provisions of the grant, in order that these vast areas of the State may be improved, but also that the lands may not be withdrawn from taxation, thus depriving the State, and especially the eighteen counties in which they are situated, of a large proportion of their resources from direct taxation." The interest and hope expressed seem like a prayer against the Government's contentions.
There is something more in these opposing contentions than a wrangle or medley of interests, and we are admonished that the words of the provisos, simple and direct as they are of themselves, take on, when they come to be applied, ambiguous and disputable meaning. It may be said at the outset that if ambiguity exists there may be argument in it against some of the contentions.
However, without anticipating, let us consider the provisos, and we repeat them to have them immediately under our eyes. The first is contained in the act of April 10, 1869. That act was expressed to be an amendment of the act of 1866 and to relieve from the effect of the expiration of the time for filing assent to the act of 1866 and to give "such filing of assent, if done within one year from the passage of the" amending act, the same force and effect to all intents and purposes as if it had been filed within one year after the passage of the act of 1866. Then came this proviso, which was preceded by another not necessary to quote: "And provided further, That the lands granted by the act aforesaid shall be sold to actual settlers only, in quantities not greater than one quarter section to one purchaser, and for a price not exceeding two dollars and fifty cents per acre."
The act of May 4, 1870, making the grant to the West Side Company, provides in § 4 that the lands granted, excepting only such as are necessary for depots and other needful uses in operating the road, "shall be sold by the *414 company to actual settlers," the quantities and the price being designated as in the act of 1869.
These, then, are the provisos which are submitted for construction. The contention of the Government is as we have seen, and it lies at the foundation of its assertion of forfeiture of the grant, that they constitute conditions subsequent.
The argument to support the contention is based first on the general considerations that experience had demonstrated to the country the evils of unrestricted grants, and that the bounty of Congress had been perverted into a means of enriching "a few financial adventurers," and that lands granted for national purposes "were disposed of in large blocks to speculators as well as to development companies organized by officers of the railroad companies." Informed by such experience, in substance is the contention, and solicited by petition and moved by the reasoning of some of its members, Congress changed its policy of unqualified bounty, and, while not refusing to contribute to the aid of great enterprises, sought to prevent the perversion of such aid to selfish and personal ends, and to promote the development of the country by the disposition to actual settlers of the lands granted. And, it is insisted, efficient means were adopted to secure the purpose by making the provisos conditions subsequent, with the sanction of forfeiture for violation.
These general considerations are supplemented by a special and technical argument. The provisos and their context, it is said, show the general characteristics of conditions, that is, they make the estate granted and its continuance to depend upon the doing of something by the grantee, and that the proviso in the act of 1869 is expressed in apt and technical words, by the use of which, it is further contended, it is established by authority that an estate upon condition is necessarily created. Cases are cited, and the following is quoted from page 121 of Sheppard's *415 Touchstone: "That for the most part conditions have conditional words in their frontispiece, and do begin therewith; and that amongst these words there are three words that are most proper, which in and of their own nature and efficacy, without any addition of other words of reentry in the conclusion of the condition, do make the estate conditional, as proviso, ita quod, and sub conditione. . . . But there are other words, as si, si contingat, and the like, that will make an estate conditional also, but then they must have other words joined with them and added to them in the close of the condition, as that then the grantor shall reenter, or that then the estate shall be void, or the like." And words of such determining effect, it is urged, introduce and give meaning to the proviso in the amendatory act of 1869.
But it will be observed there are no such controlling words in the provision for the sale to actual settlers in the act of May 4, 1870, that is, in the grant to the West Side Company; and the Government is confronted by the rule which it quotes, that in such cases there must be "words of reentry" or a declaration "that then the estate shall be void, or the like." The Government, therefore, varies and relaxes the rule it invokes and admits that the sense of a law or terms of an instrument may be found in other words than the quoted technical ones if the intention is made clear.
It is not necessary to review the cases cited respectively to sustain and oppose the contending arguments. The principles announced in the cases are rudimentary and may be assumed to be known and the final test of their application to be the intention of the grantor.
These principles will be kept in mind in our consideration of the acts of Congress involved, and, besides, that there may be a difference in rigor between public and private grants and that this court has especially said that railroad land grants have the command and necessarily, therefore, the effect of law.
*416 The Government reinforces its contention, as we have seen, with what it considers a change of policy in legislation and in effect insists that restrictions upon the disposition of the lands granted became more dominant in purpose than the building of the roads, to aid which it was admitted the lands were necessary. The argument is hard to handle, as indeed are all arguments which attempt to assign the exact or relative inducements to conjoint purposes. In the first grants to railroads there were no restrictions upon the disposition of the lands. They were given as aids to enterprises of great magnitude and uncertain success and which might not have succeeded under a restrictive or qualified aid. However, a change of times and conditions brought a change in policy, and while there was a definite and distinct purpose to aid the building of other railroads, there was also the purpose to restrict the sale of the granted lands to actual settlers. These purposes should be kept in mind and in their proper relation and subordination.
We shall be led into error if we conclude that because the railroad is attained it was from the beginning an assured success, and that it was a secondary and not a primary purpose of the acts of Congress. There is much in the argument of the defendants that the aid to the company was part of the national purpose, which this court has said induced the grants to the transcontinental railroads (91 U.S. 79; 99 U.S. 48; United States v. Sanford, 161 U.S. 412). And we may say that the policy was justified by success. Empire was given a path westward and prosperous commonwealths took the place of a wilderness.
But such success had not been achieved when the grant of 1866 was made nor in full measure when the acts of 1869 and 1870 were passed, and it may be conceded that they were intended to continue and complete such national purpose, and that it was of the first consideration, but the *417 secondary purpose was regarded and provided for in the provisos under review. Both purposes must be considered. It may be that it was not expected that actual settlers would crowd into "the vast unpeopled territory," but the existence of such settlers at some time must have been contemplated. Both purposes, we repeat, were to be subserved, and how to be subserved is the problem of the case.
There is certainly a first impression against a forfeiture being the solution of the problem or that there was necessity for it. A forfeiture of the grant might have been the destruction of the enterprise, and settlement postponed or made impossible to any useful extent by the inaccessibility of the lands. And forfeiture was besides beset with many practical difficulties as a remedy. When, indeed, would it be incurred? The obligation of the provisos and the remedy for their breach were coincident. The refusal of the demand of the first actual settler (if there could be such without the consent of the railroad) or of the first applicant for settlement would subvert the scheme of the acts of Congress. It cannot be that the grants were intended to be so dependent and precarious and the enterprises so menaced with peril and, it might be, brought to disaster.
Are the contingencies fanciful? Such character may be asserted of any conjecture of what might have occurred but which did not, and yet to construe a statute we must realize its inducements and aims, solving disputes about them by a consideration of what might accomplish or defeat such aims. The acts under review conferred rights as well as imposed obligations, and it could not have been intended that the latter should be so enforced as to defeat the former. We have given an instance of how this might be done by regarding the provisos as conditions subsequent. Another instance may be given. In its argument at bar the Government insisted that it was the duty of *418 the railroad company to have provided the machinery for settlement and, by optional sales, guarded by probational occupation of the lands, to demonstrate not only initial but the continued good faith of settlers, and that the omission to do so was of itself a breach of the provisos and incurred a forfeiture of the grants. But when did such obligation attach? Before or after the construction of the road construction in sections or completely? The contention encounters the Government's admission that there was no obligation imposed upon the railroad to sell. And we have the curious situation (which is made something of by cross complainants and interveners in opposition to the Government's contention) of the right of settlers to buy but no obligation on the railroad to sell, and yet a duty of providing for sales under an extreme and drastic penalty. We may repeat the question, Might not such consequences have ended the enterprise, making it and its great purpose subordinate to local settlement? Indeed, might not both have been defeated by the inversion of their purposes.
The omission to institute a plan of settlement and sale is not alleged in the bill as a breach of the provisos. The first breach alleged is the trust deed to Stephen T. Gage, and the next the trust deed to the Union Trust Company. But these deeds manifestly were but forms of security, even if they went too far and were not binding to the extent of their excess. The Government admits that the grants were intended to be used as a basis of credit; and we have argument again against a forfeiture by the dilemma to which the railroad might be brought in its attempt to comply with all the provisions of the act as well as with the provisos. If it failed to complete the road within the time required the granting act was to become "null and void," (upon which we shall presently comment). If it made efforts to complete the road by using the grants as a means of credit it might forfeit them.
*419 But there is a better argument than what may be deduced from the solution of perplexing difficulties or the conjecture of possible contingencies. It will be observed that there was an explicit provision in the act of 1866 that upon the failure of the companies to file assent to the act and to complete the road as and within the time required, the act should "be null and void" and the lands not patented at the time of such failure should "revert to the United States." And it was provided that if the road should not be "kept in repair and fit for use," Congress by legislation might put the same in that condition and repay its expenditures from the road's income or fix pecuniary responsibility upon the company not exceeding the value of the lands granted.
Congress, therefore, had under consideration remedies for violations of the provisions of the act and adjusted them according to what it considered the exigency. As a penalty for not completing the road as prescribed Congress declared only for a reversion of the lands not then patented; for not maintaining it in repair and use Congress reserved the right temporarily to sequester the road; and yet for a violation of the provision for sale to settlers it is urged that Congress condemned to forfeiture not only the lands then unpatented but those patented. Mark the difference. Was noncompletion of the road of less consequence than settlement along its line? not necessarily complete settlement but any settlement the refusal, it might be, of the acceptance of a single offer of settlement or even, as it is contended, of making provision for settlement, being of greater consequence and denounced by more severe penalty than the declared conditions, that is, assent to the act, completion of the road, and its maintenance. This is difficult, if not impossible to believe.
It appears, therefore, that the acts of Congress have no such certainty as to establish forfeiture of the grants as their sanction, nor necessity for it to secure the accomplishment *420 of their purposes, either of the construction of the road or sale to actual settlers and we think the principle must govern that conditions subsequent are not favored but are always strictly construed, and where there are doubts whether a clause be a covenant or condition the courts will incline against the latter construction; indeed, always construe clauses in deeds as covenants rather than as conditions, if it is possible to do so. 2 Washburn on Real Property, 4. And this because "they are clauses of contingency on the happening of which the estates granted may be defeated." And it is a general principle that a court of equity is reluctant to (some authorities say never will) lend its aid to enforce a forfeiture.
By this conclusion do we leave the provisos meaningless and the Government without remedy for their violation? There is no argument in a negative answer. From the defects of a provision we can deduce nothing nor on account of them substitute one of greater efficacy.
But must the answer be in the negative, and by rejecting the contention of the Government are we compelled to accept that of the railroad company? or we may say those of the railroad company, for the contentions are many, some of which preclude the application of the provisos, some of which assert their invalidity and others limit their application.
If not first in order, at least in more immediate connection with the contention of the Government is the contention that the provisos are not conditions subsequent but simple covenants, and, it is said, restrictive and negative only, and therefore not enforceable. In support of the contention all of the uncertainties or asserted uncertainties of the provisos are marshaled and amplified. We can only enumerate them. There is uncertainty, it is asserted, in the legal measure of duty, therefore of its performance for whom to be performed and when; nor is the time or condition of settlement prescribed, whether *421 by the standard of the homestead or preemption laws; nor by what test or by what tribunal contests between applicants to purchase are to be determined; no compulsion of sale at any time, to any person, in any quantity; no mutuality in the covenant; no assurance that settlers will apply, and no obligation assumed by them. And the conclusion is deduced that the actual settlers clauses, viewed even as covenants, were either impossible of performance or repugnant to the grants, and, therefore, void.
The arraignment seems very formidable, but is it not entirely artificial? It is stipulated that prior to 1887 more than 163,000 acres of the granted lands were sold, nearly all of which were sold to actual settlers, in small quantities. If the sale of 163,000 acres of land encountered no obstacle in the enumerated uncertainties we cannot be impressed with their power to obstruct the sale of the balance of the lands. The demonstration of the example would seem to need no addition. But passing the example, as it may be contended to have some explanation in the character of the lands so disposed of, the deduction from the asserted uncertainties is met and overcome by the provisos and their explicit direction. They are, it is true, cast in language of limitation and prohibition; the sales are to be made only to certain persons and not exceeding a specified maximum in quantities and prices. If the language may be said not to impose "an affirmative obligation to people the country" it certainly imposes an obligation not to violate the limitations and prohibitions when sales were made, and it is the concession of one of the briefs that the obligation is enforceable, and that, even regarding the covenant as restrictive, the "jurisdiction of a court of equity, upon a breach or threatened breach of the covenant, to enforce performance by enjoining a violation of the covenant cannot be doubted." Apposite cases are cited to sustain the admission, and in answer to the contention of the Government that it could *422 recover no damages for the breach and hence had no enforceable remedy but forfeiture, it is said: "But the jurisdiction of a court of equity in such cases does not depend upon the showing of damage. Indeed, the very fact that injury is of public character and such that no damage could be calculated, is an added reason for the intervention of equity." And cases are adduced. We concur in the reasoning and give it greater breadth in the case at bar than counsel do. They would confine it, or seem to do so, to the compulsion of sales of land susceptible of actual settlement, and assert that the evidence established that not all of the lands, nor indeed the greater part of them, have such susceptibility. But neither the provisos nor the other parts of the granting acts make a distinction between the lands, and we are unable to do so. The language of the grants and of the limitations upon them is general. We cannot attach exceptions to it. The evil of an attempt is manifest. The grants must be taken as they were given. Assent to them was required and made, and we cannot import a different measure of the requirement and the assent than the language of the act expresses. It is to be remembered the acts are laws as well as grants and must be given the exactness of laws.
If the provisos were ignorantly adopted as they are asserted to have been; if the actual conditions were unknown, as is asserted; if but little of the land was arable, most of it covered with timber and valuable only for timber and not fit for the acquisition of homes; if a great deal of it was nothing but a wilderness of mountain and rock and forest; if its character was given evidence by the application of the Timber & Stone Act to the reserved lands; if settlers neither crowded before nor crowded after the railroad, nor could do so; if the grants were not as valuable for sale or credit as they were supposed to have been and difficulties beset both uses, the remedy was obvious. *423 Granting the obstacles and infirmities, they were but promptings and reasons for an appeal to Congress to relax the law; they were neither cause nor justification for violating it. Besides, we may say that there is controversy about all of the asserted facts and conclusions.
Our conclusions, then, on the contentions of the Government and the railroad company are that the provisos are not conditions subsequent; that they are covenants, and enforceable; and we pass to the other contentions of the company.
It is contended (1) that Congress was without lawful authority on April 10, 1869, to annex a new condition, by amendment or otherwise, to the grant made by the act of 1866 as amended by the act of June 25, 1868 (the latter extended the time to complete the first and subsequent sections of the road and the completion of the whole road). We do not think it is necessary to follow the involutions of the argument by which the contention is attempted to be supported. It is asserted that the California & Oregon Railroad Company filed its assent within one year and completed the first section of twenty miles within two years after the passage of the act of July 25, 1866, and that the Oregon Central Railroad Company (East Side Company) was not in default on April 10, 1869. The assertions come very late. Had they been made at that early time, questions would have been presented whose solution we need not conjecture. The West Side Company preceded the East Side Company and on October 10, 1866, received the designation from the Oregon legislature as the road entitled to receive the grant of 1866. The East Side Company started its existence on April 22, 1867, and in 1868 attacked the legality of the incorporation of the other company and procured the revocation of the designation of that company and the designation of itself by the legislature. The controversy for precedence and rights continued. It was carried to Congress, and the *424 act of April 10, 1869, was passed. Subsequently came compromises and the act of May 4, 1870. By the latter act and in acceptance of its grant and provisions, the West Side Company took the west side of the Willamette River. The East Side Company took the east side of the river and on June 8, 1869, by resolution, accepted the provisions of the act of 1866 "and of all acts amendatory thereof, and upon conditions therein specified, and do hereby give our assent and the assent of such company thereto." It was not then thought, as it is now asserted, that the act of 1869 annexed new and invalid conditions, nor was there such assertion afterwards. The East Side Company, on March 29, 1870, assigned its rights under the act of 1866 and the acts amendatory thereof and supplemental thereto to the present company, the Oregon & California Railroad Company, and then dissolved. The Oregon & California Railroad Company accepted the transfer and by resolution accepted the act of 1866 and amendments thereto and "all the benefits and emoluments therein and thereof granted, and upon the terms and conditions therein specified," and authorized the assent to be filed in the office of the Secretary of the Interior.
It is too late to declare such formal and repeated action to have been unnecessary. Every advantage was obtained, and while enjoying the benefit of it the obligations of it cannot be denied. Had there been an assertion of rights against the act of 1869 and had there been an immediate rejection of its provisions and obligations, the questions in the present case would not now be submitted for solution. It is possible to suppose that no patents to lands would have been issued, or at any rate the Government's attention would have been challenged to the assertion of rights which it might have contested from a position of supreme advantage.
(2) It is contended that if sales were made under the *425 limitations of the provisos the breaches were acquiesced in, and for this the action and knowledge of the officers of the Government are adduced indeed, the knowledge of Congress itself; and reciting what was done under the grants, counsel say: "It is a story of mortgages and sales, executory contracts and conveyances, and a stream of Government patents flowing in between. These things were known of all; they were matters of common knowledge, notoriety, of public record; the railroad knew them; the people knew them, the Government knew them." And cases are cited which, it is contended, establish that such circumstances might work an estoppel even against the Government, which, when it appears in court, it is contended, is bound like other suitors, and certainly establish that for more than forty years in the view of the executive officers the provisos were not conditions subsequent. Granting their strength in that regard, granting they have some strength in every regard, they have not controlling force, considering the provisos as simple covenants. And they cannot be asserted as an estoppel. No one was deceived, at least no one should have been deceived; no action was or should have been induced by them that could plead ignorance of the provisions and immunity from their responsibility. The recited conduct had explanation and notice in the opinions of the Department of the Interior. They are entirely consistent with the belief expressed by Mr. Ballinger, then Commissioner, afterwards Secretary of the Interior, that their enforcement was a matter for the courts, not for executive or legislative action.
Mr. Ballinger, in a communication to a member of the House of Representatives, expressed the view that "as soon as the title vested in the company [and it was his view that it had vested by the construction of the railroad], jurisdiction over the lands passed from the executive branch of the Government, and the enforcement of the *426 provision [the sale of lands to actual settlers] rests with the courts, through appropriate action by either the settlers entitled to purchase or by the Government, acting through the Department of Justice." And a doubt was expressed of the power of Congress to compel compliance with the provision. This was the position of the Department in 1907. It was not new or sudden. It was the repetition of the declaration of a much earlier time.
In an early day of the grant 1872 a communication was addressed by the then Attorney General to the Commissioner of the Land Office, accompanied by a letter from the president of the European & Oregon Land Company (this company was made a trustee of the lands granted under the acts of 1866 and 1869 to secure a bond issue of the company), in which it was stated that the board of trustees of the company, in accordance with a legal opinion given to it, had ordered that persons who had become actual settlers between July 25, 1866, and April 10, 1869, should have the privilege of purchasing according to the proviso, "but as to all others the company was not legally restricted from selling on liberal terms, for cash or credit, at reasonable rates." A request was made for an approval of the construction, and that the company be authorized "to sell on such terms as may be reasonable and just to all parties without any restrictions." This letter was submitted to the then Secretary of the Interior Mr. Delano, who replied "that the proviso means just what it says," "`that the lands be sold to actual settlers only'" in the designated quantities and for the designated prices; that the legislative intention was plainly to prevent the lands being held for speculative prices or disposed of to others than actual settlers, and that to construe the proviso as requested would in his "judgment utterly defeat such intention."
It being objected that the case was not submitted for decision or opinion, the Secretary replied that it was so *427 regarded and that the opinion could not be formally withdrawn. He, however, expressed his willingness at any time on application to reopen the case and to hear all arguments which the company might desire to present. The opportunity was never taken advantage of, but the company proceeded upon its own construction of the proviso.
These views explain the attitude of the Department and give different color and meaning to its action than those assigned to it by the railroad company, and if the company disagreed with or defied the Department it cannot claim to have been deceived. The views of the Department were no doubt the views of Congress, and its action and reluctance to prejudge are exhibited in the resolution of April 30, 1908, under which this suit was brought. It refused, as we have seen, to determine peremptorily the rights of the United States or to anticipate judicial action.
We may observe again that the acts of Congress are laws as well as grants and have the constancy of laws as well as their command and are operative and obligatory until repealed. This comment applies to and answers all the other contentions of the railroad company based on waiver, acquiescence and estoppel and even to the defenses of laches and the statute of limitations. The laws which are urged as giving such defenses and as taking away or modifying the remedies under review have no application. It would extend this opinion too much to enter upon their discussion.
A word of comment may be made upon one of the acts adduced as constituting a waiver of the breaches of the covenants, that is, upon the act passed August 20, 1912 (c. 311, 37 Stat. 320), it being supplemental to the joint resolution of April 30, 1908, supra. It was passed after this suit was commenced and brought forward with the other acts by an amendment to the answer. Counsel assert *428 of it substantially as alleged in the answer that it "is a recognition of the non-settlement character of the lands involved, and that such lands, at the time they were sold to the so-called innocent purchasers described in forty-five suits brought by the United States against said purchasers and these defendants in this court, are unfit for settlement and were so unfit for settlement and could not be sold to actual settlers at the time they were sold by the company to such purchasers."
We have answered the contention so far as it depends upon the character of the lands. The character of the lands furnished no excuse. It might have justified non-action, but it did not justify antagonistic action. Moreover the act, while it authorized compromises with purchasers from the company, explicitly excluded the application of the provision to lands in the present suit and declared that it should create no "rights or privileges whatever in favor of any of the defendants therein" and that nothing in the act should condone any of the breaches of the conditions or provisions of the granting acts nor be a waiver of any cause of action or remedy of the United States on account of any such breach or breaches or of any right or remedy existing in favor of the United States.[1a]
With the provisos as conditions subsequent out of the way, the suit remains one to enforce a continuing covenant. It is not a suit to vacate and annul patents.
*429 (3) There is a special contention, given the pretension of a separate brief, that the "Sinking Fund Act of Congress of May 7, 1878, ratified the transfer of the California & Oregon Railroad and its land in California to the Central Pacific Company, and operated to abrogate the `Settlers Clause' contained in the acts of April 10, 1869, and May 4, 1870." The argument to support the contention is that the Central Pacific Railroad Company became, with the consent of Congress, the owner of the California & Oregon Railroad (to avoid confusion this company must be kept distinct from the defendant Oregon & California Railroad) in 1870, and that after such transfer and date it became impossible for the latter company to sell the lands for the prescribed price, or for any other price, or to settlers in any quantities, "for the reason that the company had parted with its title to the entire grant, and this was recognized, approved and validated by the United States." The contention seems to be directed more to the settlers' clause viewed as a condition subsequent than to it considered as a covenant. It is, however, said that the clause "has been entirely abrogated by said legislation and the acts of the Government." We are not impressed by the contention. It seems to be a tardy claim in the case and is the dare of an extreme ingenuity against the admissions and averments of the answers and many assertions which the record contains of ownership of and dominion over the lands by the Oregon and California Company and of their disposition by it. Indeed, it is opposed to the whole scheme of the suit and the defenses to it and to the stipulation of the parties. It there appears that after the designated date patents were applied for and issued to the Oregon & California Railroad Company, defendant herein, for 323,078.68 acres of land, over 163,000 acres of which were sold by that company to actual settlers. Indeed, all of the activities in the administration of the grants were those of the Oregon & California *430 Railroad. It made contracts and executed deeds for particular parcels; it made trust deeds for the whole of them; it went into receivership and emerged from it to resume its activities, and made the reports to Congress upon which it bases the acquiescence of the Government in the breaches of the provisos.
It is true that there appears in the stipulation the confusion of a statement that there was an amalgamation and consolidation of the Central Pacific, Western Pacific and Oregon Central Railroad Companies into the Central Pacific Company and that at the time the articles of amalgamation and consolidation were filed (June 23, 1870) the California & Oregon Railroad Company "was the owner of all unsold lands in California" granted by the act of July 25, 1866; that from the date of filing such articles of amalgamation and consolidation the Central Pacific Railroad Company remained owner of all of the lands granted by the act of 1866 and two other acts which made grants to the latter company until 1899, when what remained unsold of the lands were granted to the Central Pacific Railway. But it is stipulated that the statements "concerning the ownership and conveyance of the lands granted by said acts of Congress are made subject to the terms and provisions of said acts of Congress respectively, and all rights of the United States thereunder the title to said lands not being an issue in the suit at bar." Why these facts were stipulated it is hard to guess, but it is certain they cannot be given effect against all other facts stipulated. It will be observed the stipulation is concerned only with the California & Oregon Railroad, not with the defendant Oregon & California Railroad. The explanation of the Government is, therefore, correct that the Oregon part of the grant was by the grant itself treated as substantially distinct from the California part and that the Oregon part has always been claimed, used and enjoyed by defendant, the Oregon & *431 California Railroad Company or its predecessors in title, and never by the Central Pacific.
The provisos of the acts having been thus established as covenants, not conditions subsequent, between the Government and the defendants, and their continuing obligation determined, we are brought to the consideration of the rights of the cross complainants and interveners thereunder.
It may be said that in some of the aspects of our discussion there was implication against their contentions, but it also may be said there is implication for them. Undoubtedly the provisos expressed the policy of the settlement of the lands and a sale to settlers, but the cross complainants and interveners assert a right more definite a trust, indeed, and personal of compulsory obligation upon the railroad company, to be enforced in individual suits.
Snyder and 63 others, alleging themselves to be actual settlers upon specified lands, brought suits nearly a year before the present suit was commenced. They were brought into this suit and are now here as cross complainants. They pray that the grants be declared to be grants in trust and ask for protection, "whatever form of decree may be entered." They further ask "that receivers or trustees be appointed, whose duty it shall be to formulate, with the approval of the District Court, suitable rules and regulations for the sale of all the lands here involved, in accordance with the acts of Congress making the grants." They deny having anything in common with the interveners, and, as we have seen, vigorously attack the claim of the Government for a forfeiture of the grants.
The interveners concur with the cross complainants that the acts created a trust but assert that they have a broader extent. In other words, and as their counsel express it, the intention of Congress was to create a trust *432 in the granted lands for the benefit of those who might desire to acquire title thereto, that is, not actual settlement was the condition of purchase, but an intention to settle, with the qualification to do so.
Here, then, is a conflict between the asserted beneficiaries of the asserted trust whether actual settlers, as cross complainants contend, or applicants for settlement, as the interveners insist. The distinction would seem to be real and cannot be confounded. The word "actual" expresses a settlement completed, not simply contemplated or possible. Upon the express words of the provisos it would seem that interveners' claims to be beneficiaries of the trust, if there is a trust, must be refuted.
The cross complainants present arguments of more difficulty, supported by appealing considerations. "Actual settlers" are the words of the provisos, and we may assume actual settlers were contemplated and sales of the lands were restricted to them; but how were actual settlers to be ascertained, and by whom? And was there a compulsion or option as to sales? There could not be an absolute right to settle or purchase unless there was an absolute compulsion to sell. The acts of Congress omit regulation. Their language is not directive; it is restrictive only. With this exception the grant is unqualified. The lands were granted to aid in the construction of the road and while it is a certain inference that disposition of them was contemplated, necessarily there was conferred a discretion as to time. There was certainly no limitation of it expressed.
The contending considerations we have already stated and their respective weights, and decision must necessarily turn upon a judgment of the purposes of the granting acts, and in what manner they were intended to be accomplished, not of the provisos alone. There is plausibility in the argument which represents that if the provisos *433 be held to give to the railroad a discretion of sale, the choice of time and settlers, their requirement is impotent, and instead of securing settlement would prevent it; instead of devoting the lands to development, retain them in monopoly and a kind of mortmain.
We feel the strength of the argument but cannot yield to it. There are countervailing ones. We have already indicated that nothing can be deduced from the imperfections of the granting acts. Indeed, the argument of cross complainants, like a great many other contentions in the case get their plausibility from the abuses of the granting acts, not their uses. We have seen that in the early days of the grants settlements were normally made and the railroad, in the exercise of its discretion, responded to such settlement by sales to settlers.
There was no embarrassment then in the selection of settlers and no question by anybody that there was a discretion of sale on the part of the railroad company. A denial came later and the assertion of a peremptory right against the company of settlement and purchase, both to be acquired by an intrusion upon the company's possession, if it can be said to have had possession. Of course, the delay in the assertion of a right is not conclusive against its existence. There is, however, argument in it, and if it may be said that settlers were not in such numbers and urgency as to bring their rights to attention and assertion, a conjecture may be engendered that some other purpose than the acquisition of homes has led to a denial of rights which no one theretofore had questioned. It is asserted that not a desire of settlement but the rise in the price of lumber has created an eager demand for the lands.
There are, however, further considerations. By the acts of 1866 and 1870 it is provided that upon the survey and location of the roads the Government shall withdraw from sale the granted lands, and the provision would *434 seem to withdraw the lands from the specific operation of the land laws and certainly from a complete analogy to them. The public land laws had test of the qualification of settlers under them; they had also the machinery of proof and precaution. When the granted lands were withdrawn from those laws and primarily devoted to another purpose they were committed to another power, to be administered for such purpose, and a discretion in the exercise of the power, within the restriction imposed, was necessarily conferred. This purpose we have sufficiently estimated. Nor need we pause to consider the differences between charitable trusts and other trusts, the class, not individual interest, which the former must have, as it is contended, and the certainty in the beneficiaries which the cases have assigned to the latter. And certainly the words "actual settlers" indicate no particular individuals. They describe a class or body of individuals without habitation or name. As Judge Wolverton, in his opinion in the District Court (186 Fed. Rep. 861, 910), said: "There could be no actual settler until an actual habitation was established upon some specific parcel of this land. Logically, no one is a cestui que trust under the theory until and unless he becomes such a settler. This is a palpable demonstration of the uncertainty as to the beneficiary, for who, of the vast concourse of humanity, is going to come and claim the right and privilege of settling upon the land?" We cannot construe the grants as confined or encumbered by rights so indefinite.
There was a complete and absolute grant to the railroad company with power to sell, limited only as prescribed, and we agree with the Government that the company "might choose the actual settler; might sell for any price not exceeding $2.50 an acre; might sell in quantities of 40, 60, or 100 acres, or any amount not exceeding 160 acres." And we add, it might choose *435 the time for selling or its use of the grants as a means of credit, subject ultimately to the restrictions imposed; and we say "restrictions imposed" to reject the contention of the railroad company that an implication of the power to mortgage the lands carried a right to sell on foreclosure divested of the obligations of the provisos.
To use the grant for credit might become, indeed did become, a necessity. The construction of the road halted for funds. They were raised by trust deeds, as we have seen. The accomplishment of the purpose of the grants determines, we repeat, against the creation of a trust.
In conclusion we cannot refrain from repeating that the case in its main principles is not in great compass. It has been given pretension and complexity by the happening of the unforeseen, the lapse of time, change of conditions and the contests of interests. These, however, are but accidents, giving perplexity and prolixity to discussion. Judgment is independent of them. It is determined by the simple words of the acts of Congress, not only regarded as grants but as laws and accepted as both; granting rights but imposing obligations rights quite definite, obligations as much so. The first had the means of acquisition; the second, of performance; and, as we have pointed out, whatever the difficulties of performance, relief could have been applied for and, it might be, have been secured through an appeal to Congress. Certainly evasion of the laws or the defiance of them should not have been resorted to.
Nor can their obligation be magnified by looking backwards, by the results achieved rather than when they were only hoped for, by conditions of which there was not even prophecy.
We have seen that one company failed under the burdens which it assumed. The other company took it up and struggled for years under it and its own burden. It may, indeed, have finally succeeded by a disregard of *436 the provisos. It might, however, have succeeded by a strict observance of them. We are not required to decide between the suppositions. We can only enforce the provisos as written, not relieve from them.
For the same reason we cannot at the instance of the Government give a greater sanction to them than Congress intended, nor give to cross complainants and interveners a right which the granting acts did not confer upon them.
Rejecting, then, the contention of the Government and the contentions of the cross complainants and interveners and regarding the settlers clauses as enforceable covenants, what shall be the judgment? A reversal of the decree of the District Court, of course, and clearly an injunction against further violations of the covenants. There certainly should be no repetition of them. What they were the record exhibits.
We need not comment on them or point out how opposed they were to the covenants, how antagonistic to the policy and purpose of the Government expressed in the covenants. The contrast of a sale to a single purchaser of 160 acres (the maximum amount) with a sale of 1000, 2000, 20,000 and 45,000 acres to a single purchaser needs no emphasis; nor the contrast of a use of the lands to establish homes with their use for immediate or speculative enterprises.
In view of such disregard of the covenants, and gain of illegal emolument, and in view of the Government's interest in the exact observance of them, it might seem that restriction upon the future conduct of the railroad company and its various agencies is imperfect relief; but the Government has not asked for more.
In its bill it has distinguished between the sold and unsold lands and between the respective rights and interest, vested, contingent or expectant, in them; and while it is asserted that all have become forfeited, only the unsold *437 lands and the rights and interest in them are included in this suit. And the reason is given that the purchasers were many, the names and places of residence of only a few of them were known and the names of the others could not have been ascertained in time to make them parties to the suit. Besides, that such purchases and interests were made and acquired under greatly varying circumstances and that it would be inequitable to make a few purchasers representatives of all, and to make all parties would postpone and might ultimately defeat the public interests. That, therefore, this suit was brought, it is alleged, to determine the rights and remedies as to the unsold lands and that subsequently other suits will be instituted as to the sold lands, rights and remedies as to them being in effect reserved.
Therefore, the decree in this suit shall be without prejudice to any other suits, rights or remedies which the Government may have by law or under the joint resolution of April 30, 1908 (Res. 18, 35 Stat. 571), or under the act of Congress passed August 20, 1912 (c. 311, 37 Stat. 320).
However, an injunction simply against future violations of the covenants, or, to put it another way, simply mandatory of their requirements, will not afford the measure of relief to which the facts of the case entitle the Government.
The Government alleged in its bill that more than 1000 persons had made application to purchase from the railroad company in conformity to the covenants. In answering the defendants averred that such applications were made by persons who desired to obtain title on account of the timber and not otherwise, and for the purpose of speculation only and not in good faith as actual settlers. And it was averred that the lands were chiefly and in most instances solely of value because of the timber thereon and were not fit for actual settlement. And, further, that the lands capable of actual settlement and the establishment of *438 homes thereon at no time "exceeded (approximately) 300,000 acres, consisting of small and widely separated tracts, all of which were sold to actual settlers or persons claiming to be such during construction and prior to completion, respectively, of said railroads, in quantities of 160 acres or less to a single purchaser, at prices not exceeding $2.50 per acre."
A great deal of testimony was introduced, consisting not only of that of witnesses but of maps, photographs, reports and publications, which tended to establish the asserted character of the lands. And there was evidence in rebuttal. We cannot pause to determine the relative probative force of the opposing testimonies. It is, however, clear, even from the Government's summary of the evidence, that lands which may be fit for cultivation have a greater value on account of the timber which is upon them. Besides, for our present purpose we may accept the assertion of defendants; and we have seen that Congress extended the Timber and Stone Act to the reserved lands, and, by the act of August 20, 1912, supra, it has withdrawn from entry or the initiation of any right whatever under any of the public land laws of the United States the lands which might revert to the United States by reason of this suit.
This, then, being the situation resulting from conditions now existing, incident, it may be, to the prolonged disregard of the covenants by the railroad company, the lands invite now more to speculation than to settlement, and we think, therefore, that the railroad company should not only be enjoined from sales in violation of the covenants, but enjoined from any disposition of them whatever or of the timber thereon and from cutting or authorizing the cutting or removal of any of the timber thereon, until Congress shall have a reasonable opportunity to provide by legislation for their disposition in accordance with such policy as it may deem fitting under the circumstances *439 and at the same time secure to the defendants all the value the granting acts conferred upon the railroads.
If Congress does not make such provision the defendants may apply to the District Court within a reasonable time, not less than six months, from the entry of the decree herein, for a modification of so much of the injunction herein ordered as enjoins any disposition of the lands and timber until Congress shall act, and the court in its discretion may modify the decree accordingly.
Decree reversed and cause remanded to the District Court for further proceedings in accordance with this opinion.
MR. JUSTICE McREYNOLDS took no part in the consideration and decision of the case.
NOTES
[1] It is not possible to make abstracts of the briefs, as there are more than ten of them containing over 2500 pages. Several hundred authorities are cited.
[1a] "SEC. 6. That nothing in this act contained, nor action taken pursuant to the provisions of this Act, shall be construed as a condonation of any of the breaches of any of the conditions or provisions annexed to any of the grants designated in said joint resolution approved April thirtieth, nineteen hundred and eight, nor as a waiver of any of said conditions or provisions, nor as a waiver of any right of forfeiture in favor of the United States on account of any breach or breaches of any of said conditions, nor as a waiver of any cause of action or remedy of the United States on account of any breach or breaches of any said conditions or provisions, nor as a waiver of any other rights or remedies existing in favor of the United States." | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/461758/ | 779 F.2d 37
U.S.v.Vido
85-1335
United States Court of Appeals,Second Circuit.
9/17/85
1
E.D.N.Y.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1520381/ | 486 S.W.2d 932 (1972)
Charles CAMPBELL et al., Petitioners,
v.
SONFORD CHEMICAL COMPANY, Respondent.
No. B-3380.
Supreme Court of Texas.
November 15, 1972.
Rehearing Denied December 13, 1972.
Louis V. Nelson, Ernest L. Sample, Beaumont, for petitioners.
Orgain, Bell & Tucker, Howell Cobb, Beaumont, for respondent.
PHILLIPS, Justice.
Charles Campbell filed suit for personal injury against Sonford Chemical Company, *933 respondent herein, on May 15, 1969, alleging that he was an employee of Texas Welding Works and was injured on the job due to the negligence of Sonford while performing work for Sonford in the fall and winter of 1964 and spring of 1965.
Texas Employers' Insurance Association intervened, asserting that it was the compensation carrier for Texas Welding Works, had paid Campbell $618 compensation for his injury and, by reason of Article 8307, Section 6a,[1] it was subrogated to the rights of Campbell to this extent. Sonford Chemical Company filed a motion for summary judgment alleging that Campbell's claim against it was barred by the two-year statute of limitations, Article 5526, since Campbell had been injured in 1964 and had not filed his claim with the Industrial Accident Board until September 8, 1967. Campbell answered that he had good cause under Section 4a for not filing his claim, that this matter had been adjudicated favorably to him and final judgment in his compensation suit was not entered until May 7, 1969, just a little over a week before his cause of action against Sonford was filed.
The trial court granted Sonford's motion for summary judgment and the Court of Civil Appeals affirmed. 480 S.W.2d 237. We reverse and remand for trial on the merits.
The Court of Civil Appeals reached its decision on the basis that the general statute of limitations, Article 5526, applies to the employee's claim against a third party and that the effect of filing a claim with the Industrial Accident Board merely tolls the running of this statute. Consequently, a claim which was filed more than two years after the date of the injury cannot toll the statute because the statute would have already run its course and the claim would have been barred and could not be revived by subsequent action on the part of the employee.
This reasoning is not without support from authorities in some other jurisdictions. 8 Appleman, Insurance Law & Practice 528, § 4982, states that it has been held that the insurer's action against a tortfeasor is governed by the statute of limitations pertaining to personal injuries or wrongful death. To this effect, see Super Valu Stores, Inc. v. Stompanato, 128 Ill.App.2d 243, 261 N. E.2d 830 (1970); Employers Mut. Liability Ins. Co. v. Brown Wood Preserving Co., 298 Ky. 194, 182 S.W.2d 30 (1944); Thomas v. Matthews Lumber Co. of Mansfield, Inc., La.App., 201 So.2d 357, affirmed 253 La. 1, 215 So.2d 832 (1967); and American Mutual Liability Ins. Co. v. Reed Cleaners, 265 Minn. 503, 122 N.W.2d 178 (1963).
On the other hand, other jurisdictions have followed different rules, one of which is set out in 18 Couch, Cyclopedia of Insurance Law 2d 731, § 75:39, to the effect that statutes which provide that an employer or insurer who becomes obligated to an employee for compensation may bring an action against a third party to recover the compensation which he has paid, create a new right of action and limitation begins to run against this new right of action from the time it was created rather than from the date of the original injury. See Limited Mut. Compensation Ins. Co. v. Billings, 74 Cal.App.2d 881, 169 P.2d 673 (1946).
The compensation laws of the State of Texas have been in existence for many years. Article 8307, Sections 4a and 6a, was passed in 1917. In the case of Holloway v. Texas Indemnity Ins. Co., 40 S.W. 2d 75 (Tex.Com.App.1931, jdgmt. adopted), the Court stated that Section 4a "operates to remove all cases arising under the Workmen's Compensation Law from the statute of limitation applicable in ordinary personal injury cases." This rule has consistently been followed by the courts of this state and it is well settled that limitation runs against the carrier or the employee *934 in third-party actions authorized by Section 6a from the date of the payment of the award of the Industrial Accident Board or the entry of final judgment against the carrier. Mourning v. Crown Stevedoring Company, 417 S.W.2d 725 (Tex.Civ.App. Waco 1967, no writ); Judice v. Sumner Sollitt Company of Texas, 346 S. W.2d 135 (Tex.Civ.App.Beaumont 1961, writ ref'd n. r. e.); Thompson v. Graham, 318 S.W.2d 102 (Tex.Civ.App.Eastland 1958, writ ref'd n. r. e.); Brooks v. Lucky, 308 S.W.2d 273 (Tex.Civ.App.Beaumont 1957, writ ref'd n. r. e.); Texas Employers' Ins. Ass'n v. Texas & P. Ry. Co., 129 S.W. 2d 746 (Tex.Civ.App.Eastland 1939, writ dism'd jdgmt. cor.); and Fidelity Union Casualty Co. v. Texas P. & L. Co., 35 S.W. 2d 782 (Tex.Civ.App.Dallas 1931, writ ref'd).
The mere filing of a claim with the Industrial Accident Board even if filed timely does not toll the statute of limitations. Should a claimant attempt to invoke the provisions of our Workmen's Compensation Law and be unsuccessful in this attempt, he is still governed by the provisions of Article 5526, our general limitations statute. If such claimant is unsuccessful and his case is in litigation for more than two years before a final judgment is entered against him, he would then be barred from prosecuting a claim against a third party. See Garza v. Sumrall, 267 S.W.2d 912 (Tex.Civ.App.San Antonio 1954, writ ref'd). It is only when he satisfies the provisions of the Workmen's Compensation Law and is entitled to recover thereunder that the cause of action is removed from operation of the provisions of Article 5526.
The rule in Texas may be stated as follows: When a claimant elects to proceed under workmen's compensation statutes and qualifies for an award thereunder, the cause of action of the compensation carrier does not accrue against a third party until the amount of the award made by the Industrial Accident Board is paid by the carrier or until the claimant obtains a final judgment in a court of competent jurisdiction against such insurance carrier. When either of these events occur, the cause of action matures against the third party and the suit authorized by Section 6a must be filed on such cause of action either by the carrier or by the insured within two years from that date. Fidelity Union Casualty Co. v. Texas P. & L. Co., supra. This Court has recognized in the past in other types of cases that limitation runs from the date the cause of action accrues rather than from the date of the original accident or injury. See Hernandez v. Great American Ins. Co. of N. Y., 464 S.W.2d 91 (Tex.1971).
We recognize that this rule may, on occasion, work an injustice on the third-party defendant because of the delay in pursuing the cause of action against him. The fault, however, lies in the requirement of Section 6a, which provides that the employee waives his claim for compensation if he proceeds against the third party prior to final determination of the claim. We would strongly urge that the Legislature consider an amendment of Article 8307, Section 6a, to allow the injured workman to file a third-party action without thereby losing his compensation rights. The third-party rights should then be governed by Article 5526.
The judgments of the trial court and the Court of Civil Appeals are reversed and the cause remanded for trial on the merits. All costs of this appeal are taxed against Sonford Chemical Company, the respondent herein.
Dissenting opinion by POPE, J., in which GREENHILL, C. J., joins.
POPE, Justice (dissenting).
I respectfully dissent. This is a suit for common law recovery of damages, and while it may be said that the insurer's action did not accrue until the time stated in the majority opinion, the same may not *935 be said of the injured employee's claim. His action was not asserted against the third party until two years and nine months after his injury. The Legislature, as to workmen's compensation, has said that good cause will excuse the late filing of a compensation claim. The Legislature has not made such an exception in the case of a common law third party action.
GREENHILL, C. J., joins in this dissent.
NOTES
[1] All statutory references are to Vernon's Texas Revised Civil Statutes Annotated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920506/ | 447 N.W.2d 326 (1989)
Renee O'CALLAGHAN, Petitioner and Appellee,
v.
L.B., Respondent and Appellant.
In the Interest of L.B.
Civ. No. 890297.
Supreme Court of North Dakota.
October 25, 1989.
*327 Bruce B. Haskell, Asst. State's Atty., Bismarck, for petitioner and appellee.
Anne E. Summers of Dyer & Summers, Bismarck, for respondent and appellant.
VANDE WALLE, Justice.
L.B. appealed from an order of the County Court of Burleigh County committing him to the State Hospital for 90 days to receive treatment for mental illness. We reverse and remand for further proceedings.
Section 25-03.1-07, N.D.C.C., authorizes a person to be involuntarily admitted to the State Hospital only if it is determined that he is a person requiring treatment as defined under Section 25-03.1-02(10), N.D. C.C.:[1]
"10. `Person requiring treatment' means a person who is mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property. `Serious risk of harm' means a substantial likelihood of:
"a. Suicide as manifested by suicidal threats, attempts, or significant depression relevant to suicidal potential;
"b. Killing or inflicting serious bodily harm on another person or inflicting significant property damage, as manifested by acts or threats;
"c. Substantial deterioration in physical health, or substantial injury, disease, or death based upon recent poor self-control or judgment in providing one's shelter, nutrition, or personal care; or
"d. Substantial deterioration in mental health which would predictably result in dangerousness to that person, others, or property, based upon acts, threats, or patterns in the person's treatment history, current condition, and other relevant factors."
The petitioner for an involuntary admission must prove by clear and convincing evidence that the respondent is a person requiring treatment. Section 25-03.1-19, N.D.C.C.; In the Interest of U.A.M., 446 N.W.2d 23 (N.D.1989).
In this case Renee O'Callaghan, a partial care supervisor at West Central Human Service Center, filed a petition to have L.B. involuntarily admitted for treatment. O'Callaghan testified that L.B. is one of her clients at the center. She testified that he was "doing some drinking," "appears to be delusional," and has made threats that he intended to kill a neighbor. O'Callaghan also testified that she was aware that L.B. had previously been incarcerated for manslaughter and that she feared he would follow through with his threats to kill the neighbor.
Dr. William Pryatel, a psychiatrist, testified that L.B. is a mentally ill person suffering from delusions, whose diagnosis is "schizophrenia, paranoid type." The doctor also testified that L.B. has a history of *328 anti-social behavior and was incarcerated for manslaughter. In his written Report of Examination, Dr. Pryatel concluded that as a result of L.B.'s mental illness there exists a serious risk that L.B. will cause significant property damage or inflict serious bodily harm on another person.
After considering the foregoing evidence the trial court concluded that L.B. was a person requiring treatment under Chapter 25-03.1, N.D.C.C. On appeal L.B. asserts that there is not clear and convincing evidence to support the trial court's finding in this regard. In our opinion there is substantial unrefuted evidence, constituting clear and convincing evidence, that L.B. is a mentally ill person who poses a serious risk of harm to others and is in need of treatment. Accordingly, we affirm this finding by the trial court.
Our review does not end here, however. Section 25-03.1-21(1), N.D.C.C., imposes duties upon the State Hospital and the trial court which are relevant to this case:
"Before making its decision in an involuntary treatment hearing, the court shall review a report assessing the availability and appropriateness for the respondent of treatment programs other than hospitalization which has been prepared and submitted by the state hospital or treatment facility. If the court finds that a treatment program other than hospitalization is adequate to meet the respondent's treatment needs and is sufficient to prevent harm or injuries which the individual may inflict upon himself or others, the court shall order the respondent to receive whatever treatment other than hospitalization is appropriate for a period of ninety days."
This section requires the State Hospital to prepare and submit to the court a report assessing the availability and appropriateness of alternative treatment programs other than involuntary hospitalization. It also imposes a duty upon the court to review such a report prior to making its decision in involuntary treatment proceedings. L.B. asserts on appeal that the State Hospital and the court have not complied with this provision. We agree.
The only written report by a representative of the State Hospital is the Report of Examination filed by Dr. Pryatel. This is a "fill in the blank" form report which, in this case, does not include an assessment of the availability and appropriateness of alternative treatment programs, but rather contains a cursory statement that "[a]lternative treatment is not in the best interest of the Respondent or others ..." The report form states: "A list of forms of care and treatment that may serve as alternatives to involuntary hospitalization are as follows:" In response, Dr. Pryatel merely lists the term "[j]ail." That written response appears to contradict the testimony given by Dr. Pryatel at the hearing.
Dr. Pryatel was asked at the hearing if he would recommend that L.B. be released into a structured environment other than the State Hospital, such as a halfway house or other type of facility, to which he responded:
"If there was a very structured environment where somebody could keep tabs on him and make sure that he's not drinking and not justkeep close tabs on him every day, then I would recommend that he could go there, but my understanding [is] that such a place is not available here."
Dr. Pryatel testified that he had been in the State for only two weeks prior to the hearing and that he was unaware of alternative treatment facilities which might be available to L.B. At the conclusion of the hearing the trial judge informed Dr. Pryatel that he was aware of two halfway houses in Fargo that deal with people who have chemical problems and problems with anti-social behavior. The court told Dr. Pryatel that "they should be checked out." We do not know what Dr. Pryatel's recommendation would have been had he known about and reviewed available alternative treatment programs.
The trial court made a finding of fact that a treatment program other than hospitalization is not adequate to meet L.B.'s treatment needs. We conclude that *329 the trial court's finding of inadequate alternative treatment is not supported by the evidence, because it is based upon an incomplete record which is not in compliance with Section 25-03.1-21(1), N.D.C.C. Neither Dr. Pryatel's testimony nor his written Report of Examination constitutes substantial compliance with the requirement under that provision that the State Hospital prepare and submit a report assessing the availability and appropriateness of treatment programs other than hospitalization. That provision requires the trial court to consider such a report before making its decision. We conclude, on the record before us, that no complying report was submitted or considered by the trial court.
We reverse the order of involuntary commitment and remand with directions that the trial court forthwith require a report assessing the availability and appropriateness of alternative treatment programs for L.B. other than hospitalization, in compliance with Section 25-03.1-21(1), and after receiving the report proceed to make a redetermination on the petition.
ERICKSTAD, C.J., and LEVINE, MESCHKE and GIERKE, JJ., concur.
NOTES
[1] The definition of a person requiring treatment was substantially amended by the 1989 Legislative Assembly; subdivision d. of subsection 10 of Section 25-03.1-02, N.D.C.C., was added to the definition by the 1989 N.D.Laws, Ch. 149, § 3. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621781/ | 725 N.W.2d 660 (2006)
IN RE J.J.R.
No. 06-1446.
Court of Appeals of Iowa.
November 16, 2006.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393378/ | 500 S.W.2d 271 (1973)
STATE of Missouri, Respondent,
v.
Robert GLOVER, Appellant.
No. 9395.
Missouri Court of Appeals, Springfield District.
September 25, 1973.
*272 John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Spec. Asst. Atty. Gen., St. Louis, for respondent.
James A. Dunn, Carthage, for appellant.
BILLINGS, Judge.
Defendant Robert Glover was convicted by a Newton County jury of second degree burglary and stealing. The jury could not agree on defendant's punishment and the court sentenced him to prison terms of ten years for burglary and five years for stealing, with the sentences to be served concurrently. Defendant's plea of former jeopardy was rejected by the trial court and this is his sole assignment of error. We affirm.
Russell Buckmaster, an ex-convict and admitted thief, joined what he described as Leonard Joe Baker's "burglary ring" in June of 1971 and became acquainted with the defendant during the first few days of September of that year. Between the time that he met defendant and October 12, 1971, Buckmaster admitted involvement in approximately 75 burglaries in Newton, Jasper, Dade and Vernon Counties of Missouri.
On the morning of October 12, 1971, Buckmaster, his wife, Baker, the defendant and defendant's then wife had breakfast together in Galena, Kansas, where the defendant resided. The defendant told the group that he wanted to show them "some places in Saginaw [Missouri] that he wanted to burglarize." The quintet drove to Missouri and while the two women stayed in the automobile the three men burglarized the M. O. Moffett home in or near Saginaw. Items stolen from the Moffett residence were placed in the trunk of the car and it was driven to the defendant's home in Galena, Kansas. According to defendant's former wife, re-married at trial time and called by him as a witness, two houses were broken into the morning of October 12. The stolen property was taken into defendant's house where prices defendant was willing to pay for each item were agreed upon and totalled by the former wife on an adding machine. Included was a tape recorder which was not stolen from the Moffett residence but which Buckmaster said had been "burglarized that morning." Defendant paid Buckmaster and Baker for their "share" of the stolen property.
Kansas, Missouri, and federal authorities, armed with a Kansas search warrant, searched the defendant's home in Galena, *273 Kansas, on November 10, 1971, and found various stolen articles, including some items taken in the Moffett burglary and the tape recorder. Defendant was prosecuted and convicted in Kansas for "possession of stolen property" and sentenced to not less than three years nor more than ten years in prison. Appeal of the conviction was pending when the defendant went to trial in this case in August of 1972.
At the beginning of defendant's trial in this case, but before the jury was empaneled, the defendant orally moved to dismiss these proceedings because of double jeopardy. No evidence was offered in support of the motion and it was overruled. As part of his defense the defendant testified he was tried and convicted in Kansas for a November 10, 1971, charge for "possession of this property here" but "not the exact same items."
In this state the plea of former jeopardy can be shown either by a motion to dismiss prior to trial or at the trial under the general issue of a plea of not guilty. Rule 25.05(b), V.A.M.R.; § 546.360 RSMo 1969, V.A.M.S. Such a plea does not prove itself and must be supported by the necessary record proof, showing the offense charged to be the same and that it was based on the same facts, and, that the trial resulted in a conviction or an acquittal. State v. Broyles, 317 Mo. 284, 295 S.W. 550 (1927). "The test is the identity of the `offenses', offenses identical in law and in fact." State v. Bowles, 360 S.W.2d 706, 707 (Mo.1962). While parol evidence is admissible to show identity of offenses [State v. Thornton, 37 Mo. 360 (1866)] the defendant has the burden of proof to show identity of offense. State v. Andrews, 27 Mo. 267 (1858).
Jeopardy means exposure to danger [Kepner v. United States, 195 U.S. 100, 24 S. Ct. 797, 49 L. Ed. 114 (1904)] and it was a principle of the common law that a man should not be brought into danger of his life or limb for one and the same offense more than once. Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L. Ed. 872 (1874); State v. Linton, 283 Mo. 1, 222 S.W. 847 (1920). This fundamental axiom is constitutionally rooted in the Fifth Amendment of the United States Constitution and Article I, § 19 of the Missouri Constitution. Since Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969) the provisions of the federal Double Jeopardy Clause are applicable to the states through the Fourteenth Amendment and Price v. Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970), held that "the `twice put in jeopardy' language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the `same offense' for which he was initially tried." Also see State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970).
Although we entertain serious doubt as to whether the record before us is sufficient to establish defendant's Kansas conviction we will, nevertheless, proceed on this basis and further assume his prosecution and conviction was based on Kan. Stat.Ann. § 21-3701 (Supp.1972).[1]
We initially observe that the fact defendant's Kansas conviction was pending on appeal would not foreclose his plea of former jeopardy. This because Missouri follows the authorities which hold that a plea of former conviction is available to a defendant being tried for a second time for the same offense even though the defendant has an appeal pending from his first conviction. State v. Bockman, 344 Mo. 80, 124 S.W.2d 1205 (1939); 21 Am.Jur.2d, Criminal Law, § 178 (1965).
*274 Defendant predicates his plea of former jeopardy on the premise that his Kansas conviction was for the possession of stolen property, "the identical property with which he was charged for stealing in the instant case." From this he concludes that the prior Kansas conviction "for possession or unauthorized control of stolen property is a bar to the prosecution for burglary and stealing in the State of Missouri." We disagree. Defendant's contention ignores completely the two-sovereign principle, as well as the identity of offenses requirement.
Even where there is identity of offense, jeopardy in one jurisdiction does not free a party from trial in another jurisdiction where the act or transaction violates the laws of both jurisdictions. The classic example of this principle is demonstrated where a criminal act constitutes a violation of both federal and state law. In such instance it is held that a conviction or acquittal in one jurisdiction will not prevent a subsequent conviction in the other if the case is one over which both sovereignties have jurisdiction. Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959). While it is true that Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (1970), rejected the extension of the two-sovereign principle to successive municipal and state prosecutions, that decision did not disturb Bartkus insofar as prosecutions by different sovereignties are involved.
"A conviction in one state for an act in violation of its laws is not a bar to a prosecution in another for the same act, if it violates the laws of the latter state. . .." 22 C.J.S. Criminal Law § 296c (1961); 21 Am.Jur.2d, Criminal Law, § 191 (1965). This rule, we believe, is consistent with the proposition that each state, by virtue of its police power, has broad authority to create criminal offenses for the purpose of protecting or promoting the public welfare, and as a consequence more than one state may have jurisdiction over the same incident. We therefore hold that since defendant's earlier conviction was by a separate and different sovereign the plea of double jeopardy was not a bar to his prosecution in the instant case by the State of Missouri.
In view of the foregoing we find it unnecessary to demonstrate that in fact and in law the identity of offenses requirement was not met by the defendant and such failure would deny his plea of former jeopardy. See Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932); Goldsmith v. Chency, 447 F.2d 624 (10th Cir. 1971); State v. Bowles, supra; State v. Toombs, 326 Mo. 981, 34 S.W.2d 61 (1930); State v. Richardson, supra.
The judgment is affirmed.
TITUS, C. J., and STONE and HOGAN, JJ., concur.
NOTES
[1] § 21-3701. Theft. Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property:
(a) Obtaining or exerting unauthorized control over property; or
. . . . .
(d) Obtaining control over stolen property knowing the property to have been stolen by another.
. . . . . | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393385/ | 253 Md. 197 (1969)
251 A.2d 849
NALLEY
v.
NALLEY
[No. 200, September Term, 1968.]
Court of Appeals of Maryland.
Decided April 9, 1969.
The cause was argued before HAMMOND, C.J., and MARBURY, BARNES, SINGLEY and SMITH, JJ.
Samuel Intrater for appellant.
Hal C.B. Clagett, with whom were Thomas A. Farrington and Sasscer, Clagett, Powers & Channing and Milton I. Baldinger on the brief, for the appellee.
BARNES, J., delivered the opinion of the Court.
The appellant, James A. Nalley, filed a caveat to the will of his deceased mother, Annie E. Nalley, dated September 29, 1964, and admitted to probate on March 14, 1967 by the Orphans' Court for Prince George's County, on the ground of undue influence, against his brother William L. Nalley who was named as executor of the will. The trial court (Mathias, J.) directed a verdict in favor of the caveatee, William, at the end of all the testimony. From the action of the jury pursuant to the trial court's direction, this appeal was timely taken.
Annie E. Nalley, the testatrix, and her husband, William J. Nalley, had four children, all sons: James A., the oldest son and caveator, Dewey (who died in infancy unmarried and without issue), Edwin J., who died on July 21, 1964 intestate, leaving a widow Evelyn Marie Nalley, but no children, and William L., the caveatee. The husband had operated a funeral home *199 at 522 Eighth Street, N.E., Washington, D.C., as a sole proprietorship prior to December 16, 1931, on which date he incorporated as "William J. Nalley Original Successor to Thomas R. Nalley & Son", but he continued to operate the funeral business as a sole proprietorship until his death on April 30, 1950.
By paragraph 8 of his will, probated on May 12, 1950, he bequeathed his "funeral business * * * to my wife Annie E. Nalley, for her natural life, and upon her death * * * to my three sons * * *." On June 3, 1950 Annie and the three sons, James, Edwin and William executed an agreement, under seal, whereby the three sons sold and assigned "all of their right title and interest whatsoever existing in the funeral business as referred to under aforesaid paragraph eight (8) to Annie E. Nalley, absolutely and in fee simple." James testified that he did not read the agreement but merely signed it because his mother asked him to do so and that he did not understand that by the agreement he was transferring his interest in his father's funeral business to his mother. William, on the other hand, testified that he knew, and believed all of the sons knew that "they were signing away their rights to share in that business" (the funeral business) after their mother's death. Any challenge to the agreement of June 3, 1950 is not before us in this case. It was stated at the argument that there was another unresolved proceeding involving these issues in the Circuit Court for Prince George's County.
On August 31, 1950, Articles of Incorporation of J.B. Beall, Incorporated were amended to change the corporate name to Nalley's Funeral Home, Inc., the stock of that corporation having been purchased in order to obtain a license to operate a funeral home.[1] Thereafter on July 12, 1955 a certificate to do business by Nalley's Funeral Home was filed in the District of Columbia.
The testimony indicated, without contradiction, that Annie was the dominant factor in the operation of the funeral home business. She was a strong-willed woman who made substantially all of the important decisions in the business. James *200 worked for a while in his father's funeral business, but disliked the funeral business intensely and ultimately went into the plumbing business. He testified that "I felt that it was a business that I was not inclined to take up and I didn't want anything to do with it. I was a plumber and I'd rather be a plumber than a mortician. I don't like fooling with the dead, I don't like being around dead bodies." He further testified:
"Q. Do you like to go to funerals? A. No, sir, I don't.
"Q. Did you go to your father's funeral? A. No. I didn't actually go to my father's funeral, nor my mother's, nor my wife's father and mother's, nor my two brothers-in-law that died. I don't like funerals.
"Q. Did your mother know this? A. My mother knew it. My mother loved me and she understood.
"Q. She understood you didn't like funerals? A. Yes."
James also stated that from 1950 to 1967 he never attended or participated in the conducting of any funerals at the Nalley Funeral Home.
Edwin and William, however, worked under the direction of their mother at the funeral home. Annie personally purchased the property at 3200 Rhode Island Avenue, Mt. Rainier, for $40,000 on February 10, 1958 and leased it to Nalley's Funeral Home, Inc. She transferred this property to the Nalley Family Trust on June 6, 1963.
On January 3, 1962, Annie transferred to Edwin and William 48 shares each of the 200 shares of Nalley's Funeral Home, Inc. stock, retaining for herself 104 shares, the controlling interest in the corporation. Edwin died intestate on July 21, 1964. Annie renounced all of her interest in Edwin's estate in favor of his widow Evelyn Marie, on September 29, 1964.
Also, on September 29, 1964, Annie executed the will challenged by the caveat in this case. By Item II she bequeathed James $8,000, with certain provisions for payment and by Item III she bequeathed all of her shares in Nalley's Funeral Home, Inc. to William. By Item IV she divided the residue of her estate in equal shares between James and William with certain *201 additional provisions if they predeceased her. William was named as executor to serve without bond. Annie directed that Milton I. Baldinger, her attorney, who was familiar with her affairs, be named as attorney for the executor. The will was prepared by Mr. Baldinger and William was not present when it was executed. There were three witnesses to the will.
Annie died on January 1, 1967 and, as indicated, the will was duly probated. There is no contention that at the time of the execution of the will, Annie was not mentally capable. On the contrary, James testified that his mother was a business-like, capable, intelligent woman, strong-willed but honorable and fair. She did the hiring and firing in the business and even made rather minute decisions as to whether or not a one-half inch or three-quarter inch pipe should go in the radiators. As James put it, his "mother was the business." James' daughter, Jean Ann Poerio, testified that Annie seemed fine to her and was alert when she visited her. Mary Feddon, who had known Annie for 36 years testified that Annie had a very, very good business mind, that no one could do anything without her permission and that Annie made all of the final decisions. The Reverend John F. Burns, pastor of St. James Roman Catholic Church in Mount Rainier, testified that he had known Annie for 13 years and up to the date of her death; that she had conducted some 40 funerals in the parish and her mental capacity was fine; that he had ministered to her in her last illness and even then her mental powers had not been impaired. When asked whether Annie was a person susceptible to being influenced by other people, Father Burns stated: "I think not."
James contends that sufficient evidence of undue influence was established by testimony that Annie's friend, confidante and former attorney, Mrs. Augusta Brown, did not like James and advised his mother not to leave him anything in her will, and further that on a few occasions William, as a result of some disagreement with his mother over details in operating the funeral business, stated that he was going to leave, thereby making his mother very nervous and upset. The fact is, however, that Mrs. Brown died in July 1962 more than two years prior to September 29, 1964 when Annie executed her will and more than three years prior to Annie's death. None of the evidence in *202 regard to William's occasional frustration with his mother's business decisions, indicated that it related in any way to the preparation of his mother's will or the disposition of her property.
The sole issue in the caveat proceeding was: "Was the paper writing filed in this Court and bearing the date of 29th of September, 1964 obtained, or was the execution thereof procured from Annie * * * deceased, by undue influence or duress or coercion of Augusta Brown or by any person or persons?" As we have indicated, the trial court directed the jury to answer this question "No", and in our opinion the trial court ruled correctly.
In Shearer v. Healy, 247 Md. 11, 230 A.2d 101 (1967), the Maryland law in regard to the required proof to establish undue influence vitiating a will was stated in a quotation from the opinion by Judge (now Chief Judge) Hammond, for the Court, in Stockslager v. Hartle, 200 Md. 544, 547, 92 A.2d 363-64 (1952), as follows:
"`* * * [U]ndue influence which will avoid a will must be unlawful on account of the manner and motive of its exertion, and must be exerted to such a degree as to amount to force or coercion, so that free agency of the testator is destroyed. The proof must be satisfactory that the will was obtained by this coercion (although it need not be immediately exercised as of the date of the execution of the will if its influence causes its execution) or by importunities which could not be resisted, so that the motive for the execution was tantamount to force or fear. Mere suspicion that a will has been procured by undue influence, or that a person had the "power unduly to overbear the will of the testator" is not enough. It must appear that the power was actually exercised, and that its exercise produced the will. The burden of proof is on the caveator to meet these requirements of the law.' (Emphasis supplied.)" (247 Md. at 23, 230 A.2d at 107.)
See also Sachs v. Little, 245 Md. 343, 226 A.2d 283 (1967) and Ingalls v. Trustees of Mt. Oak Methodist Church Cemetery, 244 Md. 243, 223 A.2d 778 (1966).
*203 The proof in the present case indicates that Annie was a strong-willed, intelligent woman who was not susceptible to domination by anyone. She successfully operated the funeral business, had her own attorney, was not isolated from other people or from James, the caveator, or his family. On the contrary, a rather close relationship between James and his mother was described by him, whereby they either saw or talked to each other by telephone every day. Even if it be assumed arguendo that William had the power to unduly overbear the mother's will (the evidence indicates the contrary), there is no evidence whatever that he actually exercised such power in connection with the formulation and execution of the will. When James was asked "Did you ever hear Bud [William] make any statements to your mother about how she should leave the business?", he answered "No, sir." It is apparent that Mrs. Brown's hostility to James and her alleged influence over Annie had ceased with Mrs. Brown's death some two years prior to the execution of the will.
Nor do the provisions of the will, itself, indicate any unusual or unnatural distribution by the testatrix of her estate. James' testimony establishes his active and intense dislike of the funeral business. William, on the other hand, devoted his life to that business and contributed greatly to its success. Under these circumstances, it appears quite natural for Annie to leave money to James and the balance of her stock in the Nalley Funeral Home, Inc. to William.
James relies upon the decision of our predecessors in Smeak v. Perry, 175 Md. 73, 199 A. 788 (1938), in which there was evidence that a husband exerted substantial pressure on a wife, dying of tuberculosis, to execute a will which she had resisted doing prior to her terminal illness and that the wife had stated to a witness "Sign the G---- D---- thing, give him what he wants and let me die in peace." The facts in the present case are obviously quite different.
Judgment affirmed, the costs to be paid by the appellant.
NOTES
[1] J.B. Beall, Incorporated had been incorporated on April 8, 1929 and Articles of Revival were dated March 13, 1950. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920379/ | 447 N.W.2d 574 (1989)
INTERSTATE POWER COMPANY, Plaintiff-Appellee,
v.
WAUKON MANOR, INC., Defendant-Appellant.
WAUKON MANOR, INC., Cross-Petitioner,
v.
Norman BOHR, Jack Duffy, and Don Rodenkirk, Defendants to Cross-Petition.
No. 88-1163.
Court of Appeals of Iowa.
August 23, 1989.
As Corrected August 23, 1989.
John L. Butler of Lundy, Butler & Lundy, Eldora, for defendant-appellant.
James U. Mellick, Waukon, for plaintiff-appellee.
Heard by OXBERGER, C.J., and SCHLEGEL and SACKETT, JJ.
SCHLEGEL, Judge.
Appellant appeals the decision of the district court which entered judgment against it for $32,751. Appellant raised the affirmative defenses of statute of limitations, estoppel, laches, accord and satisfaction, and unconstitutionality. These were denied in an adjudication of law points where the district court found a defense of material economic hardship was barred as a matter of law. We reverse.
Iowa Code section 476.5 provides that a public utility shall not "charge a greater or less compensation for its services than that prescribed in its tariffs" and shall not "subject any person to any unreasonable prejudice or disadvantage." Waukon Manor urges that it has been subjected to unreasonable prejudice and disadvantage because it cannot recover this amount from the patients nor obtain assistance from the State of Iowa for it. Waukon Manor urges that the latter clause of the statute be considered an exception to the requirement that undercharges be recovered.
Defendant Waukon Manor owns and operates a nursing home. Plaintiff Interstate Power Company installed a new current transformer at the nursing home in June 1977. When the old transformer was installed the meter reading was multiplied by a factor of thirty to determine the amount of Waukon Manor's electric usage. The new transformer required the meter reading to be multiplied by sixty. Due to a clerical error, Waukon Manor's meter reading was multiplied by thirty for the months of June 1977 through August 1985. Interstate Power brought this action to recover the underbilled charges for electrical service.
The issue in this case concerns the interpretation of the first paragraph of Iowa Code section 476.5, which states:
No public utility subject to rate regulation shall directly or indirectly charge a greater or less compensation for its services than that prescribed in its tariffs *575 and no such public utility shall make or grant any unreasonable preferences or advantages as to rates or services to any person or subject any person to any unreasonable prejudice or disadvantage.
There are certain rules that must be followed when construing a statute. We presume the entire statute is intended to be effective. Iowa Southern Utilities Co. v. Iowa State Commerce Commission, 372 N.W.2d 274, 278 (Iowa 1985). We also presume that a reasonable result was intended. Id. Finally, we consider all parts of the statute together, without attributing undue importance to any single or isolated portion. Id. Given these rules of construction, what meaning and or purpose should be given to the last sentence, "or subject any person to any unreasonable prejudice or disadvantage?"
There is very little case law interpreting what course of action is required when a customer of a public utility is harmed through a metering mistake of the utility. In Iowa Electric Light & Power Co. v. Wendling Quarries, Inc., 389 N.W.2d 847 (Iowa 1986), the Iowa Supreme Court had this issue before it, but returned it to the trial court to make an Iowa Rule of Civil Procedure 105 disposition. However, the Court did cite the trial court to certain authorities to facilitate its decision. Those authorities, in addition to the ones cited by the appellee, do not control this situation. Those cases either dealt with specific actions by a utility to benefit someone, in direct contravention of section 476.5 regarding unreasonable preferences, or arose from a statute which imposed an absolute requirement to recover undercharges with no exceptions. In the Iowa Southern Utilities case there was an agreement to benefit employees. See also, Heuer Truck Lines v. Brownlee, 239 Iowa 267, 270, 31 N.W.2d 375, 377 (1948) (specific agreement); Cummings Sand & Gravel Co. v. Minneapolis & St. Louis Railroad Co., 182 Iowa 955, 964, 166 N.W. 354, 357 (1918) (no exception included within statute).
In order for the entire statute to have effect, the final sentence must mean something. There must be some type of action by the utility that will subject a person to unreasonable prejudice or disadvantage. In addition, Division 199 of the Iowa Administrative Code, chapter 20.4(14)(d), sets a six-month limitation as the time limit in which back billings can be rendered. This six-month limit starts on the date of the metering installation test. Even if this limit is to begin only after the error is discovered, it still places a possible limit on whether the utility can recover back billing. In this case the underbilling occurred over a period of eight years and could possibly subject the appellant to charges of over $32,000. This type of delay and possible harm could very well be unreasonable within the meaning of the statute.
If the statute is read to require the collection of all undercharges regardless of whether a mistake has occurred, or the degree of harm suffered, then the last part of the paragraph is rendered meaningless, and the six-month limitation on back billing cannot apply. On the other hand, by reading the last sentence as an exception to the requirement of equal charges, the entire statute is given effect. Because the exception is included within the statute itself, and because other limitations on the right to recover undercharges exist, such an exception is clearly reasonable and cannot be read out of the statute.
We hold that the provisions of Iowa Code section 476.5 that "no such public utility shall subject any person to any unreasonable prejudice or disadvantage" is an exception to absolute liability and absolute duty to assess the rate in question. The judgment of the trial court is reversed and costs assessed to the appellee, Iowa Power.
REVERSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920395/ | 447 N.W.2d 297 (1989)
Marie LITHUN, Plaintiff and Appellee,
v.
Michael DuPAUL, Defendant and Appellant.
Civ. No. 890064.
Supreme Court of North Dakota.
October 24, 1989.
*298 Kapsner & Kapsner, Bismarck, and Rodney Karl Feldner, guardian ad litem, Mandan, for plaintiff and appellee; argued by Carol Ronning Kapsner and Rodney K. Feldner.
Michael DuPaul, Minot, pro se.
ERICKSTAD, Chief Justice.
Michael DuPaul appealed, pro se, from a district court judgment restricting Michael's visitation with his two minor children. We affirm.
Michael and Marie Lithun were married in June 1976 and of that marriage had two children, Jason and Tina. Michael and Marie separated in 1984 and were divorced in 1986. Marie was awarded custody of Jason and Tina, and Michael received liberal visitation rights including, but not limited to, visitation on alternating weekends and major holidays, and a 30-day visitation period each summer.
On November 30, 1988, Marie filed a motion requesting the district court to restrict Michael's visitation privileges. Following an evidentiary hearing, the trial court granted the motion restricting Michael to one supervised 30-minute visitation with the children each month, providing, however, that the supervising social worker could "enlarge the visitation" in duration and frequency if it was in Jason and Tina's best interests to do so. From the district court's judgment restricting visitation, Michael filed this appeal.
Michael asserts that the restricted visitation imposed by the district court is improper, unduly restrictive, and unconstitutionally violates Michael, Jason, and Tina's "personal rights."
The standards for awarding custody and visitation in a divorce action are provided under Section 14-05-22, N.D.C.C.:
"14-05-22. Custody of childrenVisitation rights.
"1. In an action for divorce, the court, before or after judgment, may give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may vacate or modify the same at any time. Any award or change of custody must be made in accordance with the provisions of chapter 14-09.
"2. After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child's physical or emotional health." [Emphasis added.]
The trial court's denial of visitation rights will not be overturned on appeal *299 unless it is clearly erroneous. C.B.D. v. W.E.B., 298 N.W.2d 493 (N.D.1980).
In granting Marie's request to restrict Michael's visitation, the trial court entered the following relevant findings of fact and conclusions of law:
"4. The Court finds that there are changes in the circumstances permitting a modification of the Orders with regard to visitation. The changes in circumstances are as follows:
"(a) The children have almost never been returned on time after the Father's visitation.
"(b) The Father's visitation has had a detrimental effect on the children for the following reasons:
"(1) He makes the children his surrogates for his continued belligerence towards the Mother.
"(2) Prior to visitation, Jason hides and becomes apprehensive. The children don't want to be around the Mother in an attempt to avoid becoming the focus of the Father's animosity towards the Mother.
"(3) The children have developed emotional disorders under the present visitation arrangement.
* * * * * *
"5. On the issue of whether it is in the best interests of the children to restrict their visitation with the Father, the Court concludes that it is in their best interests. The reasons for this are as follows:
* * * * * *
"(e) The conflict between the parents is 99 percent the doing of the Father. The Court gives the following reasons for this conclusion:
"(1) The Father has directly or indirectly made 15 or 18 child abuse reports against the Mother and the foster parents, all of which were found to be ungrounded upon investigation. The Father complained to the point that 12 cases were re-investigated and again found to be ungrounded. The investigator conducted an investigation of both the substance of the allegation of abuse and the method of investigation previously used with reference to the reports.
"(2) Jason benefited from counseling in the summer of 1986 with John Mogren. This benefit continued until the Father got Jason to refuse to cooperate in counseling. This was very detrimental to Jason. The Father has also undermined the children's counseling with Dennis Anderson.
"(3) While the children were in foster care, both parents had supervised visitation.
"(i) The Mother complied with the restrictions on visitation which were beneficial to the children, and as a result of her compliance the visitation was expanded.
"(ii) The Father constantly violated the restrictions on visitation. He refused to refrain from asking about the Mother. He repeatedly put the children in the position of having to choose between the parents. He made verbal threats against John Mogren in February of 1988, and the visit had to be terminated as a result. In February of 1988, he threatened the foster mother in the presence of the children and upset them.
* * * * * *
"7. The Court concludes that any kind of visitation will cause further mental and emotional harm to the children.
* * * * * *
"8. The Court finds that the Father is on a crusade and is incapable of considering the terrible effects of his behavior on the children. The Court believes that the Father has lost contact with reality and the ability to exercise self-control. The Court is inclined to the view that all of the Father's visitation rights should be terminated. However, John Mogren is quite certain that some limited visitation with the Father would be beneficial to the children. The Court is not certain that he is correct but will yield to his expertise. The Court has confidence in the ability of John Mogren, as a social *300 worker, to conduct supervision of further visitation."
Rule 10(b), N.D.R.App.P., requires the appellant to furnish a transcript of the proceedings. Michael has failed to provide a transcript of the proceedings for this appeal. The appellant assumes the consequences and the risk for the failure to file a complete transcript. Owan v. Kindel, 347 N.W.2d 577, 579 (N.D.1984). If the record on appeal does not allow for a meaningful and intelligent review of alleged error, we will decline review of the issue. Cullen v. Williams County, 446 N.W.2d 250 (N.D.1989); Bye v. Elvick, 336 N.W.2d 106 (N.D.1983).
The file on appeal contains a report of the Wells County Social Service Board filed by John Mogren, as well as reports and letters filed by others involved in this case which tend to support the findings of the district court.[1] These documents may or may not have been properly admitted into evidence, but without a transcript we cannot make this determination.
We conclude that a complete and meaningful review of the district court's action in this case cannot be accomplished without a transcript of the evidentiary proceedings. By failing to submit a transcript, Michael has not met his burden of demonstrating that the trial court's findings of fact are clearly erroneous or that the trial court otherwise committed reversible error.
The motions for attorney fees by Marie and Rodney Feldner, the children's Guardian Ad Litem, are denied. Costs on appeal are taxed against appellant, Michael DuPaul.
THE JUDGMENT IS AFFIRMED.
VANDE WALLE, GIERKE, LEVINE and MESCHKE, JJ., concur.
NOTES
[1] The report filed by social worker John Mogren states in relevant part:
"Michael is intent to `prove' that Marie is an unfit parent. This became problematic as the children became involved in the father's endeavor. The children have seen numerous doctors, counselors, therapists and psychologists within the past four years. Taking this to light, it is easy to understand why they began to verbalize that they felt `caught' between their parents.
* * * * *
"[I]t was observed that Michael took measures which resulted in causing maladjustment for the children. He would persist in these actions even after they were brought to his attention. The end result was that stress produced in the children was manifested in the form of depression, adjustment disorder, sleep disturbance and continual anxiety.
* * * * * *
"It has been this agency's observation, by supervised visits and by his letters to the children, that he [Michael] will not refrain from following past problematic behaviors.
* * * * * *
"RECOMMENDATIONS:
* * * * * *
"2. Visitation: It would appear, in light of this agency's observations as well as the recommendations of the psychologists, that supervised visitation could continue for Michael DuPaul with his children. We would recommend that these visitation[s] be limited in time and frequency which could increase if Mr. DuPaul does not utilize the visitation as a means to perpetuate or increase the past anxiety and distress in Jason and Tina." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/101961/ | 287 U.S. 103 (1932)
BURNET, COMMISSIONER OF INTERNAL REVENUE,
v.
HARMEL.
No. 26.
Supreme Court of United States.
Argued October 20, 21, 1932.
Decided November 7, 1932.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
*104 Solicitor General Thacher, with whom Assistant Attorney General Youngquist, and Messrs. Whitney North Seymour, Sewall Key, and A.H. Conner were on the brief, for petitioner.
Messrs. Robert Ash and A.H. Britain, with whom Mr. Harry C. Weeks was on the brief, for respondent.
Mr. Walter E. Barton, by leave of Court, filed a brief as amicus curiae.
MR. JUSTICE STONE delivered the opinion of the Court.
Respondent, the owner in fee of Texas oil lands, executed oil and gas leases of the lands for three years and as long thereafter as oil or gas should be produced from them by the lessee, in return for bonus payments aggregating $57,000 in cash, and stipulated royalties, measured by the production of oil and gas by the lessee. In making his income tax returns under the Revenue Act of 1924 for the years 1924 and 1925, respondent reported the cash payments as gain from a sale of capital assets, taxable under the applicable section of the statute at a lower rate than other income. The Commissioner treated the payments *105 as ordinary income taxed at the higher rate, and gave respondent notice of assessment for the deficiency. The order of the Board of Tax Appeals upholding the assessment, 19 B.T.A. 376, was reversed by the Court of Appeals for the Fifth Circuit, 56 F. (2d) 153, following its earlier decision in Ferguson v. Commissioner, 45 F. (2d) 573. It was held that because Texas law, unlike that of other states, regards an oil and gas lease as a present sale of the oil and gas in place, the gain resulting from the cash payment received as consideration for the leases was taxable only as gain from the sale of capital assets. This Court granted certiorari, 286 U.S. 536, to resolve a conflict of the decision below with that of the Court of Claims, under corresponding provisions of the Revenue Act of 1921, in Hirschi v. United States, 67 Ct. Cls. 637.
The Revenue Act of 1924, c. 234, 43 Stat. 262, like that of 1921, c. 136, 42 Stat. 232, taxed certain income derived from capital gains at a lower rate than other income. By § 208 (a) (1) "The term `capital gain' means taxable gain from the sale or exchange of capital assets consummated after December 31, 1921." By § 208 (a) (8) "capital assets" means property held by the taxpayer for more than two years but does not include property "which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale in the course of his trade or business." Related provisions of the section define "capital loss" and "capital deductions" which, in some circumstances, are allowed as deductions from capital gain in order to arrive at the net gain taxed at the lower rate. The only question presented here is whether the bonus payments to the respondent, after allowed deductions, if any, are "gain from the sale or exchange of capital assets" within the meaning of the taxing act.
*106 Before the Act of 1921, gains realized from the sale of property were taxed at the same rates as other income, with the result that capital gains, often accruing over long periods of time, were taxed in the year of realization at the high rates resulting from their inclusion in the higher surtax brackets. The provisions of the 1921 revenue act for taxing capital gains at a lower rate, reenacted in 1924 without material change, were adopted to relieve the taxpayer from these excessive tax burdens on gains resulting from a conversion of capital investments, and to remove the deterrent effect of those burdens on such conversions. House Report No. 350, Ways and Means Committee, 67th Cong., 1st Sess. on the Revenue Bill of 1921, p. 10; see Alexander v. King, 46 F. (2d) 235.
It is an incident of every oil and gas lease, where production operations are carried on by the lessee, that the ownership of the oil and gas passes from the lessor to the lessee at some time and the lessor is compensated by the payments made by the lessee for the rights and privileges which he acquires under the lease. But notwithstanding this incidental transfer of ownership, it is evident that the taxation of the receipts of the lessor as income does not ordinarily produce the kind of hardship aimed at by the capital gains provision of the taxing act. Oil and gas may or may not be present in the leased premises, and may or may not be found by the lessee. If found, their abstraction from the soil is a time-consuming operation and the payments made by the lessee to the lessor do not normally become payable as the result of a single transaction within the taxable year, as in the case of a sale of property. The payment of an initial bonus alters the character of the transaction no more than an unusually large rental for the first year alters the character of any other lease, and the taxation of the one as ordinary income does not act as a deterrent upon conversion of capital assets, any more than the taxation of the other.
*107 Moreover, the statute speaks of a "sale," and these leases would not generally be described as a "sale" of the mineral content of the soil, using the term either in its technical sense or as it is commonly understood. Nor would the payments made by lessee to lessor generally be denominated the purchase price of the oil and gas. By virtue of the lease, the lessee acquires the privilege of exploiting the land for the production of oil and gas for a prescribed period; he may explore, drill, and produce oil and gas if found. Such operations with respect to a mine have been said to resemble a manufacturing business carried on by the use of the soil, to which the passing of title of the minerals is but an incident, rather than a sale of the land or of any interest in it or in its mineral content. Stratton's Independence v. Howbert, 231 U.S. 399, 414, 415; see Von Baumbach v. Sargent Land Co., 242 U.S. 503, 521.
Long before the enactment of the capital gains provision in the 1921 Revenue Act, this Court had to determine whether a mining lease was to be regarded as a sale. In interpreting the Corporation Tax Law of 1909, it had occasion to consider the nature of the proceeds derived by the owner of mineral land from his own mining operations or from payments made to him by the lessee under a mining lease. That Act imposed an excise tax on corporations, measured by their income. Unlike the later revenue acts, it made no provision for a depletion allowance to be deducted from the proceeds of mining in order to arrive at the statutory income. It was argued that since the net result of the mining operation is a conversion of capital investment as upon a sale, the money received by the corporate owner or lessor, being its capital in a changed form, could not rightly be deemed to be income. But that argument was rejected, both with respect to the proceeds of mining operations carried on by the corporate owner on its land, Stratton's Independence v. *108 Howbert, supra; Goldfield Consolidated Mines Co. v. Scott, 247 U.S. 126; see Stanton v. Baltic Mining Co., 240 U.S. 103, 114, and with respect to payments made by the lessee to the corporate lessor under the provisions of a mining lease. Von Baumbach v. Sargent Land Co., 242 U.S. 503, 521, 522; United States v. Biwabik Mining Co., 247 U.S. 116.
Although these cases arose under the Act of 1909, before the enactment of the capital gains provision in the 1921 Act, they established, for purposes of defining "income" in a tax measured by it, that payments by lessees to lessors under mining leases were not a conversion of capital, as upon a sale of capital assets, but were income to the lessor, like payments of rent. And before the 1921 Act this Court had indicated (see Eisner v. Macomber, 252 U.S. 189, 207), what it later held, that "income," as used in the revenue acts taxing income, adopted since the Sixteenth Amendment, has the same meaning that it had in the Act of 1909. Merchants Loan & Trust Co. v. Smietanka, 255 U.S. 509, 519; see Southern Pacific Co. v. Lowe, 247 U.S. 330, 335.
Congress legislated in the light of this history, cf. United States v. Merriam, 263 U.S. 179, 187; and, in the absence of explicit language indicating a different purpose, it cannot be taken to have intended that an oil and gas lease under the capital gains provision, any more than a mineral lease under the earlier acts, should be treated like an ordinary sale of land or chattels, resulting in a conversion of capital assets. Such a construction would have disregarded legislative and judicial history of persuasive force; it would have adopted a distorted, rather than the common meaning of the term "sale," see Old Colony R. Co. v. Commissioner, 284 U.S. 552, 561, and would have tended to defeat rather than further the purpose of the Act.
*109 The respondent does not challenge the correctness of the construction of the statute which we adopt,[1] when applied to oil and gas leases under which the title to the oil and gas passes to the lessee only on severance from the leasehold. But it is argued that the section cannot be so applied to the bonus payments received by the lessor in the present case, because, under Texas law, an oil and gas lease operates immediately upon its execution to pass the title of the oil and gas, in place, to the lessee, and it is thus a sale of the oil and gas and a conversion of capital assets within the precise terms of § 208.
In Group No. 1 Oil Corp. v. Bass, 283 U.S. 279, this Court recognized that oil and gas leases have been characterized, in the decisions of the Texas courts, as present sales of the oil and gas in place, and we applied the rule of those decisions that ownership of the oil and gas passes from lessor to lessee on execution of the lease. There the question was not one of the interpretation of a federal statute, but of the power of the federal government to levy a tax upon the income of a lessee of state lands, derived from the sale of oil and gas abstracted by him from the land. It was objected that the tax was not within the power of the federal government because imposed on income derived from an instrumentality of the state. If the oil and gas had ceased to be property of the state before its removal by the lessee, it had, under the decisions of this Court, ceased to be an instrumentality of the state, and the income derived from it was within the taxing power of the national government. Whether the title *110 had so passed was a question of state law, and the affirmative answer of the state courts necessarily led to the conclusion that the lessee's income was not immune from federal income tax. Compare Burnet v. Coronado Oil Co., 285 U.S. 393, 399.
Here we are concerned only with the meaning and application of a statute enacted by Congress, in the exercise of its plenary power under the Constitution, to tax income. The exertion of that power is not subject to state control. It is the will of Congress which controls, and the expression of its will in legislation, in the absence of language evidencing a different purpose, is to be interpreted so as to give a uniform application to a nationwide scheme of taxation. See Weiss v. Weiner, 279 U.S. 333, 337; Burk-Waggoner Oil Assn. v. Hopkins, 269 U.S. 110; United States v. Childs, 266 U.S. 304, 309. State law may control only when the federal taxing act, by express language or necessary implication, makes its own operation dependent upon state law. See Crooks v. Harrelson, 282 U.S. 55; Poe v. Seaborn, 282 U.S. 101; United States v. Loan & Building Co., 278 U.S. 55; Tyler v. United States, 281 U.S. 497; see Von Baumbach v. Sargent Land Co., supra, 519.
But § 208 neither says nor implies that the determination of "gain from the sale or exchange of capital assets" is to be controlled by state law. For the purpose of applying this section to the particular payments now under consideration, the Act of Congress has its own criteria, irrespective of any particular characterization of the payments in the local law. See Weiss v. Weiner, supra, 337. The state law creates legal interests but the federal statute determines when and how they shall be taxed. We examine the Texas law only for the purpose of ascertaining whether the leases conform to the standard which the taxing statute prescribes for giving the favored treatment to capital gains. Thus tested we find in the *111 Texas leases no differences from those leases where the title to the oil and gas passes only on severance by the lessee, which are of sufficient consequence to call for any different application of § 208. The fact that title to the oil and gas is said to pass before severance, rather than after, is not such a difference. The economic consequences to the lessor of the two types of lease are the same. Under both, the payments made by the lessee are consideration for the right which he acquires to enter upon and use the land for the purpose of exploiting it, as well as for the ownership of the oil and gas; under both the bonus payments are paid and retained, regardless of whether oil or gas is found and despite the fact that all which is not abstracted will remain the property of the lessor upon termination of the lease.
Title to the oil and gas likewise passes from the land owner when he conducts mining operations on his own land. But, as was pointed out in Stratton's Independence v. Howbert, since that is only an incident to the use of his land for oil production, the operation, considered in its entirety, cannot be viewed as a sale or a conversion of capital assets. Like considerations govern here.
The court below thought that the bonus payments, as distinguished from the royalties, should be treated as capital gain, apparently because it assumed that the statute authorizes a depletion allowance upon the royalties alone. See Ferguson v. Commissioner, 45 F. (2d) 573, 577. But bonus payments to the lessor have been deemed to be subject to depletion allowances under § 214a (9), Revenue Act of 1924, by Art. 216, Treasury Regulations 65, as well as under earlier acts. § 214 a (10), Revenue Act of 1921, Art. 215, Treasury Regulations 62. Cf. Murohy Oil Co. v. Burnet, 55 F. (2d) 17. The distinction, so far as we are advised, has not been taken in any other case. See Alexander v. King, supra; Ferguson v. Commissioner, 59 F. (2d) 891; Appeal of Nelson Land & Oil Co., 3 B.T.A. *112 315; Burkett v. Commissioner, 31 F. (2d) 667, and see the same case before the Board of Tax Appeals, 7 B.T.A. 560; Berg v. Commissioner, 33 F. (2d) 641; Hirschi v. United States, supra. We see no basis for it. Bonus and royalties are both consideration for the lease and are income of the lessor. We cannot say that such payments by the lessee to the lessor, to be retained by him regardless of the production of any oil or gas, are any more to be taxed as capital gains than royalties which are measured by the actual production. See Work v. Mosier, 261 U.S. 352, 357-358.
Reversed.
NOTES
[1] The capital gains provision of the 1921 Act (§ 206) was held not to embrace receipts of the lessor from an oil and gas lease in Burkett v. Commissioner, 31 F. (2d) 667; Berg v. Commissioner, 33 F. (2d) 641; Hirschi v. United States, 67 Ct. Cl. 637; Ferguson v. Commissioner, 59 F. (2d) 891; and in Alexander v. King, 46 F. (2d) 235, a similar construction was placed upon the like provisions of the 1924 Act. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2088749/ | 198 Ill. App. 3d 597 (1990)
555 N.E.2d 1272
FLOYD RIDLE et al., Plaintiffs-Appellants,
v.
SPRAYRITE MANUFACTURING COMPANY et al., Defendants-Appellees.
No. 3-89-0552.
Illinois Appellate Court Third District.
Opinion filed June 18, 1990.
*598 March, McMillan & Stone, P.C., of Macomb (John D. McMillan, of counsel), for appellants.
West, Neagle & Williamson, of Galesburg (Roger L. Williamson and John P. Fleming, of counsel), for appellee John Fayhee & Sons, Inc.
John P. Fleming and David A. Hunt, both of Quinn, Johnston, Henderson & Pretorius, of Peoria, for appellee Sprayrite Manufacturing Company.
Order affirmed.
*599 JUSTICE SCOTT delivered the opinion of the court:
Plaintiffs-appellants purchased a self-propelled crop sprayer from defendant-appellee John Fayhee & Sons, Inc. (Fayhee), which was manufactured by defendant-appellee Sprayrite Manufacturing Co. (Sprayrite). The sprayer was delivered by Fayhee to plaintiffs on or about March 30, 1984. Plaintiffs allege the engine of the sprayer was inadequate for the terrain of plaintiffs' farmland and the sprayer was sent back to defendants. A rebuilt engine was subsequently placed in the sprayer and returned to plaintiffs in June of 1985. Plaintiffs allege that defendants at this time made assurances that the sprayer would be adequate with the rebuilt engine. Plaintiffs, however, were not satisfied with the performance of the sprayer even with the rebuilt engine. The truthfulness of plaintiffs' allegations are essentially undisputed.
On April 21, 1989, plaintiffs filed a multiple-count complaint against Fayhee and Sprayrite. Count I alleged a breach of implied warranty of merchantability; count II alleged a breach of implied warranty of fitness for a particular purpose; count III alleged a breach of express warranty; and count IV alleged a breach of contract and revocation of acceptance. Both Fayhee and Sprayrite filed motions to dismiss under section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619), claiming the cause was barred by the four-year statute of limitations of the Uniform Commercial Code, section 2-725 (Ill. Rev. Stat. 1987, ch. 26, par. 2-725). The trial court, by order dated August 28, 1989, granted both motions and dismissed plaintiffs' cause of action with prejudice.
The procedural question for review is whether the trial court erred in granting Fayhee's and Sprayrite's respective motions for dismissal. Substantively, we must first decide whether plaintiffs' complaint alleging a delivery of equipment within the statutory four-year limitations period is sufficient to create an issue of fact precluding dismissal. Second, we must decide whether plaintiffs' allegations regarding the assurances made by either one or both of the defendants at the time the engine was rebuilt are legally sufficient to extend the statutory four-year limitation period.
1-3 Plaintiffs do not dispute that the sprayer was initially delivered in March of 1984 and that said date is more than four years prior to the filing of their complaint. Plaintiffs, however, allege a second delivery date of June 1985, the date when the sprayer was returned to plaintiffs after having the engine rebuilt. Plaintiffs contend that based on defendants' representations that the sprayer with the rebuilt engine would be adequate to meet plaintiffs' needs, the statute *600 of limitations should not begin to run until June of 1985. As authority, plaintiffs cite cases from other jurisdictions which indicate (1) that the statute of limitations is tolled until the repairs are completed when a seller makes representations that the repairs will cure the defect or (2) that the cause of action does not accrue until delivery and the opportunity for the buyer to discover the breach. Plaintiffs concede, however, that most jurisdictions hold that the discovery rule does not generally apply to warranty cases and also that established Illinois case law holds that repairs performed pursuant to a warranty do not extend the warranty. (Nelligan v. Tom Chaney Motors, Inc. (1985), 133 Ill. App. 3d 798, 479 N.E.2d 439.) Additionally, under section 2-725(2):
"A cause of action accrues when the breach occurs * * *. * * * A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance * * *." (Ill. Rev. Stat. 1987, ch. 26, par. 2-725(2).)
Plaintiffs argue that tender of delivery should be construed to mean the date when the sprayer with the rebuilt engine was returned to plaintiffs since the sprayer underwent a substantial change. When, however, the term "tender of delivery" is construed in light of Nelligan and other similar cases, that term can only be construed to mean that delivery takes place when the product is first delivered to a buyer. To hold otherwise would, in effect, create a discovery rule in warranty cases as well as a significant question of what repairs are sufficient to constitute a significant change in the product. Plaintiffs have cited no Illinois cases which would require any other holding. Moreover, plaintiffs herein determined that the sprayer was inadequate shortly after it was initially delivered and also shortly after it was returned with a rebuilt engine. Thus, this is not a situation where plaintiffs had no knowledge of the defective condition until after expiration of the limitations period.
4 Plaintiffs also allege that the assurances made by either Fayhee or Sprayrite at the time the sprayer was equipped with the rebuilt engine amounted to an express warranty by defendants of future performance, thereby extending the limitations period and making plaintiffs' revocation of acceptance and warranty actions timely filed. We disagree. Section 2-725(2) of the Uniform Commercial Code states:
"A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance *601 of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered." Ill. Rev. Stat. 1987, ch. 26, par. 2-725(2).
Case law interpreting this paragraph of section 2-725 is clear and unambiguous. In Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, our supreme court had occasion to interpret the meaning of the phrase "explicitly extends to future performance" contained within section 2-725(2). Citing numerous State and Federal court decisions, the court determined that a warranty stating a certain bulk tank was designed to withstand "60 lbs. per bushel grain and 100 m.p.h. winds" was not an explicit warranty of future performance in part because there was no reference to future time in the warranty and, thus, no explicit warranty of future performance. Although the buyer may have had an expectation that the warranty would run for the life of the product, that fact alone was insufficient to delay the point at which the limitations period commenced to run. Moorman, 91 Ill. 2d 69, 435 N.E.2d 443.
A case factually similar to the present case is Wilson v. Massey-Ferguson, Inc. (1974), 21 Ill. App. 3d 867, 315 N.E.2d 580. In Wilson plaintiff allegedly purchased a certain farm tractor which was not adequate to do heavy duty plowing and, therefore, not merchantable or fit for the particular purpose for which it was purchased. Plaintiffs' subsequent breach of warranty action was commenced more than four years after delivery of the tractor by defendant. Nonetheless, the trial court determined that the statue did not commence running until the defective condition was discovered by plaintiff. In reversing the trial court, the court first determined that the theory of implied warranty of fitness for a particular purpose was inapplicable to the cause. The court next determined that the statute of limitations applied because the proper point for commencing the statute was the date of delivery, unless the seller made explicit warranties as to future performance of the tractor. Thus, the question presented was whether explicit warranties as to future performance were made by the seller.
5 In determining the meaning of the word "explicit," the court stated:
"Explicit is defined * * * as `not implied merely, or conveyed by implication; distinctly stated plain in language; clear; not ambiguous; express; unequivocal.'" Wilson, 21 Ill. App.3d at 872, 315 N.E.2d at 583, quoting Binkley v. Teledyne Mid-America Corp. (E.D. Mo. 1971), 333 F. Supp. 1183, aff'd (8th Cir.1972), 460 F.2d 276.
*602 The court further found that nothing in the record or transcript of evidence suggested that the seller had made any explicit warranties as to the future performance of the tractor. The court added:
"Even if the seller had specifically told plaintiff that `this tractor is suitable for heavy duty plowing,' Binkley makes it clear that the breach of that warranty occurred at the time of delivery because the warranty did not explicitly state that the tractor would be suitable for such work beyond that time." Wilson, 21 Ill. App.3d at 872, 315 N.E.2d at 584.
6 Having already established that the date of delivery in this cause was the date Fayhee delivered the sprayer to plaintiffs, we now determine that the alleged assurances by defendants that the sprayer with the rebuilt engine would be adequate for plaintiffs' needs does not rise to an explicit warranty of future performance. These alleged assurances, even when viewed in a light most favorable to plaintiffs, do not refer to a specific future time frame and thus are not "explicit" as that phrase has repeatedly been interpreted. Therefore, plaintiffs' cause of action is time barred by section 2-725, and the trial court's decision must be affirmed.
Affirmed.
HEIPLE, P.J., and BARRY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621438/ | 733 So.2d 815 (1999)
Re Petition of Robbie Kirk ASHER for Reinstatement to the Privilege of Practicing Law in the State of Mississippi.
No. 1998-BR-01367-SCT.
Supreme Court of Mississippi.
March 4, 1999.
Appellant, pro se.
Michael B. Martz, Jackson, Attorney for Appellee.
EN BANC.
PITTMAN, Presiding Justice, for the Court:
¶ 1. This matter came before the Court en banc on a Petition for Reinstatement by Robbie Kirk Asher (Asher) seeking reinstatement into the Mississippi Bar. Reinstatement into the Bar is governed by Rule 12 of the Mississippi Rules of Discipline. The Bar has filed an Answer to the Petition for Reinstatement of Asher and has submitted copies of the Ruling of the Complaint Tribunal, the deposition of Asher, a copy of Asher's Application for a Real Estate Broker's License, a copy of the Opinion and Judgment of the Complaint Tribunal in the matter styled Mississippi Bar v. Robbie K. Asher, No. 95-B-329, by virtue of which Asher was suspended from the practice of law in the State of Mississippi for a period of sixty days to run consecutively with the suspension from the practice of law imposed upon Asher by this Court in cause number 94-BA-00324-SCT. This Court also recognizes that Asher has recently petitioned this Court for Reinstatement in cause number 98-BR-00191-SCT which was denied in an order signed by Justice James L. Roberts, Jr.
¶ 2. After carefully reviewing the Petition for Reinstatement and the Answer to that Petition, we deny Asher's Petition for Reinstatement. We agree with the Bar that serious concerns remain as to whether Asher possesses the requisite legal ability as well as the requisite moral character to be reinstated into the practice of law in the State of Mississippi.
¶ 3. We base that concern in part on the fact that approximately four months after Asher was suspended from the practice of law for misrepresentation, deceit, fraud *816 and forgery, he made a misrepresentation on his Application for Real Estate Broker's License. To the question as to whether he had ever had a license suspended or revoked, he incorrectly answered in the negative. Further, we have been provided with no documentation from Asher as to his compliance with Rule 12.5 of the Mississippi Rules of Discipline which requires that he take and successfully pass the Multi-State Professional Responsibility Examination with a score of not less than 80.
¶ 4. On several other occasions Asher has ignored rulings adverse to his interests. Asher was assessed with costs and expenses in the total amount of $490.86 which he neglected to pay until almost two years after the assessment. This assessment was the result of Cause No. 94-BA-324 and Cause No. 95-B-329.
¶ 5. Asher failed to include any mention of Cause No. 95-B-329 in the present Petition for Reinstatement. In addition to being assessed with costs and expenses in this action, Asher was required to apologize, in writing, to the Bar and Tribunal for an unnecessary hearing. The Bar, apparently, never received said apology. Asher has engaged in reprehensible conduct for which he seems to have little or no remorse.
¶ 6. Under the facts of this case, we deem it proper that Asher continue to be suspended from the practice of law in the State of Mississippi for a period of not less than one year; that he be reinstated to practice only upon petition under the provisions of Rule 12 of the Mississippi Rules of Discipline; and that prior to reinstatement he take the Multi-State Professional Responsibility Examination and achieve a score as provided in Rule 12.5 of the Mississippi Rules of Discipline.
¶ 7. ROBBIE KIRK ASHER'S PETITION FOR REINSTATEMENT TO PRACTICE LAW IN THE STATE OF MISSISSIPPI DENIED. HIS SUSPENSION IS TO CONTINUE FOR A PERIOD OF NOT LESS THAN ONE YEAR, AND HE SHALL BE READMITTED ONLY UPON PETITION IN ACCORDANCE WITH RULE 12 OF THE MISSISSIPPI RULES OF DISCIPLINE WHICH INCLUDE PASSING THE MULTI-STATE PROFESSIONAL RESPONSIBILITY EXAMINATION WITH A SCORE AS PROVIDED IN RULE 12.5. ALL COSTS AND EXPENSES ARE ASSESSED TO ROBBIE KIRK ASHER.
PRATHER, C.J., SULLIVAN, P.J., BANKS, McRAE, SMITH, MILLS AND WALLER, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
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