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https://www.courtlistener.com/api/rest/v3/opinions/1621441/ | 733 So.2d 1096 (1999)
Kenneth PAULK, et al., Appellants,
v.
The STATE of Florida, Appellee.
No. 98-1262.
District Court of Appeal of Florida, Third District.
May 19, 1999.
Bennett H. Brummer, Public Defender, and John E. Morrison, Assistant Public Defender, for appellants.
Robert A. Butterworth, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.
PER CURIAM.
In these consolidated cases, thirteen defendants appeal from judgments of conviction entered after probation revocation hearings.[1] For the reasons that follow, we reverse.
In all of these cases, the defendants had been placed on probation for one year, with a special condition that they enroll in and complete a 26-week course of domestic violence counseling sessions.[2] Within the one-year period, the State filed Affidavits *1097 of Violation of Probation alleging that each defendant failed to appear for intake at the probation program or failed to attend the mandated counseling sessions. Although each of the Affidavits of Violation of Probation was filed within the one-year probationary period, none of the ensuing arrest warrants was delivered to the sheriff or other officer for execution within that period. Each defendant moved to dismiss the Affidavit of Violation of Probation, alleging that the county court lacked subject matter jurisdiction, as the probationary period had expired prior to the warrants being delivered for execution. Each defendant entered a nolo contendere plea and reserved the right to appeal the denial of the motion to dismiss. The County Court's Domestic Violence Division, sitting en banc, conducted an en mass hearing to determine the jurisdictional question; denied the motions; and sentenced the defendants. The court certified six questions of great public importance; this court accepted jurisdiction.
Because we are bound by the rule of law pronounced by the Florida Supreme Court in State v. Boyd, 717 So.2d 524 (Fla.1998), we reverse and remand with directions to discharge the defendants for lack of subject matter jurisdiction. We rephrase the six questions certified by reducing them to the one dispositive issue in this case:
To comply with the supreme court decision in Boyd v. State[State v. Boyd], 717 So.2d 524 (Fla.1998), in order for the court to retain jurisdiction over the defendant to revoke probation, must the arrest warrant that ensues from the affidavit of violation of probation be delivered for execution before the probationary period expires, even when the affidavit of violation of probation itself is filed within the probationary period?
We answer that question in the affirmative. The language in Boyd is unequivocal. "[A]n arrest warrant is not issued for the purpose of setting in motion the probation revocation process until a judge has signed the warrant and the warrant has been delivered to the proper executive officer for execution." Boyd, 717 So.2d at 524 (emphasis added). Therefore, even though the Affidavits of Violation of Probation were filed within the probationary period, the "probation revocation process" as defined in Boyd was not set in motion within that period, and the county court did not have jurisdiction over these revocation proceedings.[3]See Francois v. State, 695 So.2d 695, 697 (Fla.1997) ("[W]hen a probationary period expires, the court is divested of jurisdiction over the probationer unless, prior to that time, the appropriate steps were taken to revoke or modify the probation.").
Furthermore, the mandate of Boyd and Francois cannot be avoided by construing the defendants' violations of probation as "absconding" that would toll the probationary period. See Francois, 695 So.2d at 697 (holding that the failure to satisfactorily meet the conditions of probation is not the legal equivalent of "absconding" and does not toll the probationary period).
Reversed and remanded for further consistent proceedings.
NOTES
[1] Some of the thirteen defendants had more than one case pending.
[2] The defendants were all charged with misdemeanor domestic violence offenses.
[3] We note that at the time the county court entered the order on appeal, it did not have the benefit of the mandate of Boyd. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621443/ | 13 So.3d 455 (2007)
GLENN K. BROWN
v.
TABITHA P. BROWN.
No. 2060338.
Court of Civil Appeals of Alabama.
August 10, 2007.
Decision of the Alabama Court of Civil Appeals without published opinion. Dismissed on joint motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920481/ | 107 B.R. 210 (1989)
In the Matter of Robert HARRIS and Barbara Harris, Debtors.
AMERICAN CHARTER FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff,
v.
Robert HARRIS and Barbara Harris, d/b/a Western Nebraska Produce, Defendants.
Bankruptcy No. BK87-00755, Adv. No. 87-00279.
United States Bankruptcy Court, D. Nebraska.
June 22, 1989.
*211 Richard P. Garden, Jr.
David C. Nuttleman.
MEMORANDUM OPINION[1]
JOHN C. MINAHAN, Jr., Bankruptcy Judge.
Plaintiff, American Charter Federal Savings and Loan Association, brought this action to establish an exception to discharge under 11 U.S.C. § 523(a)(6). This section excepts from discharge any debt incurred from a "willful and malicious" injury. American Charter asserts that the debtors, Robert Harris and Barbara Harris, sold property in which American Charter had a duly perfected security interest and used the proceeds in violation of the agreement between American Charter and the debtors. The issue before the court is whether debtors' caused "willful and malicious" injury to American Charter by the unauthorized sale of collateral and use of proceeds.
FINDINGS OF FACT
For several years prior to the filing of this bankruptcy case, Robert Harris had been in the business of growing, processing, and selling onions. In 1985, American Charter made a loan to the debtors, Robert and Barbara Harris. The debtors signed a Security Agreement granting American Charter a security interest in farm products to secure payment of all their present and future obligation. American Charter had a duly perfected security interest in the debtors' onion crop.
During the Fall of 1985, Robert Harris was authorized by American Charter to sell onions and utilize the proceeds for purposes other than making payments to American Charter. Myron Chappel, a former loan officer of American Charter, authorized the sale of onions. The consent to use proceeds was discontinued on November 8, 1985. From November 8, 1985 to September 18, 1986, American Charter consistently demanded that all proceeds from the sale of onions be applied to the indebtedness of the debtors to American Charter.
On November 8, 1985, the debtors were advised by American Charter that "[a]ll income must be applied against your loan. These funds can be reborrowed according to the cash flow or as agreed upon by American Charter." On December 6, 1985, the debtors were reminded that "[a]ll proceeds from the sale of the onions should be applied against your loan with American Charter and if need be redisbursed according to your cash flow. Would you please start sending any checks you receive for the sale of the onions to American Charter."
On January 6, 1986, Robert Harris was advised by American Charter that eighty percent of the proceeds from the 1985 onion crop must be applied to the debt at American Charter. This was confirmed by correspondence from American Charter to *212 Mr. Harris dated January 14, 1986, wherein it was made clear that American Charter insisted that it was absolutely necessary that all onion proceeds be paid to American Charter.
On January 6, 1986, the debtors executed a new note payable to American Charter. The debtors also executed a loan agreement which provided that the note would continue to be secured by the Security Agreement dated May 3, 1985. After January 6, 1986, various arrangements were made for the repayment of the loan, none of which resulted in the application of significant proceeds from the sale of the 1985 onion crop to the indebtedness. Robert Harris admitted that only $15,200.00 of the proceeds from the sale of the 1985 crop was applied to the indebtedness to American Charter. The rest of the proceeds of the 1985 crop were used for ordinary living expenses and for operating expenses. There was a significant shortage in the 1985 onion crop due to severe freeze.
The January 6, 1986 Note became due on April 15, 1986. American Charter agreed to forbear collection on the Note in order to allow the debtors to apply for a Small Business Administration ("SBA") disaster loan. After the completion of harvest of the 1985 crop, the debtors attempted to obtain the SBA Economic Disaster Loan to refinance the American Charter debt and provide operating funds for the 1986 crop year. Robert Harris advised American Charter by correspondence dated May 30, 1986 that he had made arrangements with his creditors to "hold off payments until the SBA loan or harvest is complete." (emphasis supplied). The SBA loan application was not approved. The debtors requested additional operating funds for 1986 from American Charter. Although American Charter refused to advance any additional funds, the debtors were able to plant an onion crop in 1986. The debtors raised money through personal family loans and from income generated by custom work performed by Robert Harris. The debtors were also able to obtain financing from suppliers and landlords for a portion of their expenses for the 1986 crop year. For example, fertilizer was obtained and secured by a fertilizer lien, and Dill Farms, one of debtors' landlords, was granted a security interest in the 1986 onion crop to secure debtors rental obligation.
Robert Harris understood that American Charter continued to have a security interest in the 1986 onion crop. An August 8, 1986 telephone conversation between Robert Harris and Kurt Grosshans, an American Charter employee, confirmed this understanding. Further, Mr. Grosshans advised Robert Harris that American Charter was looking to the 1986 crop for repayment of the debt. During the course of the conversation, Mr. Grosshans agreed to allow Robert Harris to sell transplanted onions to Delicious Foods, which had agreed to include American Charter as a payee on any checks issued for the crop. Mr. Grosshans did not authorize the sale of the 1986 onion crop to any buyer other than Delicious Foods.
On August 28, 1986, Robert Harris advised Mr. Grosshans that the transplants had produced 10,500 bags of onions, and that 1,650 bags had been shipped to Delicious Foods. Robert Harris failed to tell Mr. Grosshans that 8,241 bags of onions had been shipped to other purchasers. Mr. Grosshans' notes of the conversation reflect that Mr. Grosshans was concerned about the 8,241 bags of onions.
On August 29, 1986, Mr. Grosshans learned that Robert Harris had sold onions having a value of $23,000.00 to an "Omaha broker," and that sales had been made to Tom Lange Company. These sales were not authorized by American Charter.
On September 9, 1986, Mr. Grosshans traveled to Scottsbluff, Nebraska to inspect the debtors' onion crop. Robert Harris showed various fields of onions to Mr. Grosshans.
By a letter of September 18, 1986, American Charter demanded payment of its debt, or alternatively, that the debtors turn over all collateral, including farm products. Robert Harris received the letter and understood its contents. On that same date, American Charter retained Scottsbluff attorney Richard Douglas as local counsel to *213 represent American Charter on the Harris loan.
On September 23, 1986, Robert Harris contacted Mr. Grosshans by telephone in response to the September 18, 1986 letter. Robert Harris told Mr. Grosshans that if American Charter was going to take the entire 1986 crop and its proceeds, he, Robert Harris, would not harvest the crop. Mr. Grosshans suggested that it would not be in anyone's interest to let the crop go unharvested and encouraged Robert Harris to harvest the crop.
During the course of the September 23, 1986 telephone conversation, Robert Harris and Mr. Grosshans agreed that it was essential that the 1986 onion crop be harvested. It was agreed that Robert Harris would harvest the crop, place the onions in storage, and obtain scale tickets to verify the quantity of onions in storage. It was further agreed that once the crop was harvested, Robert Harris and Mr. Grosshans would meet in Scottsbluff, Nebraska, to negotiate a settlement of the debt to American Charter. American Charter took no further action to take possession of the 1986 onion crop.
Mr. Grosshans' file notes in connection with the Harris debt reflect the understanding reached during the telephone conference of September 23, 1986. These notes provide:
Rob (Harris) called me about the demand letter. I told him we wanted to realize some repayments from the 1986 crop and issuing the demand letter was part of the process we will be using. He informed me the crop was still in the field and he would not finish harvesting if we wanted 100 percent of the proceeds. I told him that would be foolish but he could do whatever he wanted to. I agreed not to take any legal action until the crop is harvested. He said he will have scale tickets and possibly could get an inventory loan from Commerce Savings if we would settle at a reduced amount (i.e., $50-$75,000). I agreed to meet with both Rob and his attorney in Mr. Douglass' office as soon as harvest has been completed. We would then determine our next action. Rob said he has discussed bankruptcy with his attorney.
Mr. Grosshans testified that American Charter could have hired a farm manager or other individual to complete the harvest of the 1986 onion crop. He stated that American Charter chose not to do so based on Mr. Grosshans' understanding that the crop would be placed in storage after harvest.
American Charter wanted Robert Harris to harvest the 1986 crop and use his expertise in selling the crop. However, I specifically find that Robert Harris agreed to harvest and store the 1986 onions. American Charter did not consent to the sale of any of the 1986 onions except for the sale to Delicious Foods.
On October 30, 1986, Mr. Grosshans learned that Mr. Harris had been selling the 1986 onion crop in breach of the September 23, 1986 agreement. Mr. Grosshans directed local counsel to sue the debtors.
By correspondence of November 28, 1986, American Charter placed purchasers of the 1986 crop on notice of American Charter's lien in the crop. American Charter was able to recover $38,185.75 in proceeds of the 1986 crop. A settlement agreement was subsequently reached between First State Bank of Scottsbluff, J.R. Simplot Company, and American Charter to divide the proceeds received. As a part of the settlement agreement, the First State Bank assigned its security interest in farm products to American Charter.
Throughout 1986, American Charter was aware that the debtors had no operating loan to enable them to pay labor, fuel, utilities, costs of bags or any other necessities for planting, harvesting, processing and selling the 1986 crop. In his proposal of August, 1986 to American Charter, Robert Harris advised Mr. Grosshans that he had committed to pay his labor from the proceeds received from the 1986 crop. The cash flow statement that was submitted by Robert Harris to American Charter later in August, 1986, showed that approximately $140,000.00 of the proceeds of the 1986 crop would be used by Robert Harris to *214 complete the harvest, storage, processing and sale of that crop. Robert Harris estimated that, after the payment of expenses, there would be approximately $45,000.00 of proceeds remaining from the 1986 crop for payment on the American Charter debt.
American Charter provided no financing for the 1986 crop and it had knowledge that the only source of funds for paying the approximate $140,000.00 in necessary expenses would be the proceeds of the 1986 crop. American Charter stood by while other parties provided financing for the 1986 crop. Then on September 18, 1986, American Charter sent a letter to Mr. Harris demanding the benefit of the entire 1986 crop.
After the September 23, 1986 conference with Mr. Grosshans, Robert Harris completed the harvest, which took until approximately October 10, 1986. Robert Harris then telephoned Mr. Grosshans to discuss the disposition of the crop. Mr. Harris was told that Mr. Grosshans would no longer discuss the matter since American Charter had retained legal counsel, Richard Douglas. Robert Harris then contacted Mr. Douglas and discussed Mr. Harris' attempts to obtain alternative financing. Mr. Douglas did not tell Robert Harris to discontinue selling the crop.
American Charter argues that Robert and Barbara Harris caused willful and malicious injury by unauthorized sale of the 1986 onion crop and the use of proceeds. American Charter claims $132,610.50 in damages, calculated as follows:
Fair Market Value of 1986 Crops $179,595.02
Less Onions Not Owned by Debtors $ 3,182.50
Less Amount Received by American
Charter & Other Creditors
from Proceeds $ 38,185.75
Less Payment on J.R. Simplot Co.
Secured Claim $ 3,296.27
Less Payment to Dill Farm Claim $ 2,320.00
___________
TOTAL $132,610.50
American Charter asserts that injury was caused by debtor's payment of crop proceeds of $132,610.50 to the other creditors.
The fair market value of the 1986 onion crop was $179,595.00 and the entire crop was sold by Robert Harris. Proceeds of the 1986 crop were used exclusively for the necessary living expenses of Robert Harris and his immediate family and for the payment of bills that arose in connection with the planting, harvesting, processing and selling of the 1986 onion crop and costs and expenses necessary and incidental thereto. Proceeds in the amount of $137,090.38 were used to pay for labor, rent, equipment, taxes, supplies and utilities. These actual expenses were consistent with the August 1986 projections of Robert Harris wherein he advised American Charter that projected expenses for the 1986 onion crop would be $140,000.00.
CONCLUSIONS OF LAW
Under § 523(a)(6), an injury caused by "willful and malicious" conduct is not dischargeable. The decisional law interpreting the "willful and malicious" standard is disparate and difficult to reconcile. The Eighth Circuit Court of Appeals has enunciated a test for determining whether the willful and malicious standard is met in cases involving the sale of collateral in violation of security agreements. In re Long, 774 F.2d 875 (8th Cir.1985). The test was derived from the Restatement (Second) of Torts and held that injuries caused by the sale of collateral in violation of the terms of a security agreement are not dischargeable if the conduct is:
1. headstrong and knowing ("willful"), and
2. targeted at the creditor ("malicious"), at least in the sense that the conduct is certain or almost certain to cause financial harm.
See Id. at 881.
The willful element of § 523(a)(6) is not completely satisfied by finding that the conduct of the debtor was merely voluntary or intentional. Rather, the "willful" element is not satisfied unless the resulting injury is willful. The fact that the conduct or act of the debtor was voluntary or intentional is a necessary element of the statutory requirement that there be a willful injury. However, to be "willful" the conduct must also be "headstrong and knowing." *215 See In re Long, 774 F.2d at 880. See also In re Cecchini, 37 B.R. 671 (Bkrtcy.App. 9th Cir.1984). Although the recent decision of the eighth circuit in Hartley v. Jones (In re Hartley), 869 F.2d 394 (8th Cir.1989) vacated, 874 F.2d 1254 (8th Cir.1989) (en banc) held similarly, that decision was vacated and the judgment reversed upon reconsideration en banc by an evenly divided court. Therefore, Hartley was not relied upon in reaching my conclusions of law.
As has often been stated, mere reckless disregard for the rights of others is not a basis for barring discharge respecting injuries caused by the reckless conduct. See In re Long, 774 F.2d at 881. I conclude that "willful" as used in § 523(a)(6) means that the debtor engaged in voluntary or intentional conduct intending injury or knowing that injury would be caused thereby.
In the context of the conversion of collateral in violation of the terms of a security agreement, an injury is "willful" if the debtor voluntarily sold or otherwise disposed of the collateral knowing that the disposition violated the legal rights of the creditor and, at the time of the disposition, the debtor intended or knew that the disposition would cause injury to the economic or financial interest of the creditor.
A separate question concerns whether the "willful injury" constitutes a "malicious injury." If the conduct of the debtor is willful and it causes injury, discharge is barred on the claim only if the injury is "malicious." In the context of the sale of collateral without the consent of a secured party, the injury is malicious if the conduct of the debtor is "targeted at the creditor, at least in the sense that the conduct is certain or almost certain to cause financial harm." See Id. at 881. In Long, the eighth circuit stated that:
"We are convinced that if malice, as it is used in Section 523(a)(6), is to have any meaning independent of willful it must apply only to conduct more culpable than that which is in reckless disregard of creditors' economic interests and expectations, as distinguished from mere legal rights. Moreover, knowledge that legal rights are being violated is insufficient to establish malice absent additional aggravated circumstances under Davis (Davis v. Aetna Acceptance Co., 293 U.S. 328 [55 S.Ct. 151, 79 L.Ed. 393] (1934)) and its progeny."
In re Long, 774 F.2d at 881. In order to determine whether particular conduct caused a malicious injury, it is necessary for the trial court to consider the circumstances of the particular case.
MRS. BARBARA HARRIS
The court concludes that Mrs. Harris did not cause a willful and malicious injury to American Charter. Mrs. Harris was a party to the agreements with American Charter and the agreements were violated. However, there is no evidence from which I would conclude that the breach of agreements were due to her conduct. There is no evidence that collateral was converted by her. Nor is there any evidence that her husband acted on her behalf or as her agent, or even that she received the benefits of any conversion of the property of American Charter. The acts and omissions of Robert Harris may not be imputed to Barbara Harris by virtue of their marital status. There is no evidence from which I conclude that Mrs. Harris willfully and maliciously caused injury to American Charter. I conclude simply that she was a party to agreements with American Charter, that the agreements were breached and that the debt due American Charter has not been paid.
Judgment should therefore be entered in favor of Mrs. Harris. Her obligation to American Charter should not be excepted from the discharge entered in this case.
MR. ROBERT HARRIS
1985 CROP
The 1985 onion crop was sold by Mr. Harris with the consent and permission of American Charter. However, in January of 1986, Mr. Harris agreed to turnover eighty percent of the proceeds he received from the sale of the 1985 crop to American Charter. He failed to so turnover the proceeds, *216 and this was in violation of the legal rights of American Charter. This was also injurious to the economic and financial interest of American Charter.
The failure to turnover the proceeds of the 1985 crop was done voluntarily and knowingly. Mr. Harris was aware of his legal obligations and his agreement to turnover the proceeds of the 1985 onion crop to American Charter and he failed to do so. However, Mr. Harris did not intend to injure American Charter by the sale and use of proceeds.
There is no evidence from which I will conclude that the failure of Mr. Harris to turnover the proceeds of the 1985 crop was "targeted" at American Charter. The failure to turnover the proceeds of 1985 crop was not certain or almost certain to cause financial harm to American Charter. Mr. Harris hoped to repay American Charter from the proceeds of the 1986 crop or alternatively from the proceeds of a new loan. Mr. Harris used the proceeds to pay crop expenses. He hoped to remain in the onion farming business and his conduct was referable to a desire to pay his debts to American Charter from the 1986 crops or from alternate financing which he actively pursued. In addition, Mr. Harris suffered significant crop loss in 1985.
The voluntary conduct of Mr. Harris concerning the 1985 crop and its proceeds was in violation of the legal rights of American Charter and the conduct was injurious to the economic and financial interest of American Charter. However, I conclude that the conduct of Robert Harris did not cause a willful and malicious injury to American Charter.
1986 CROP
In the sale of the 1986 onion crop and the use of proceeds, Robert Harris engaged in voluntary and intentional conduct which violated the legal rights of American Charter and the conduct was injurious to the economic and financial interest of American Charter. Mr. Harris intentionally and voluntarily sold the 1986 onion crop and, at the time, he had knowledge that the sales and application of proceeds were in violation of the legal rights of American Charter. At the time of the sales of the 1986 onion crop and at the time Robert Harris used the proceeds of sales to pay creditors other than American Charter, Robert Harris knew that his conduct would cause financial injury to American Charter. The "willful" requirement of § 523(a)(6) is therefore fulfilled with respect to the 1986 crop and crop proceeds. Robert Harris caused willful injury to the economic and financial interest of American Charter.
The second element of the two-step test to be applied under In re Long involves a determination of whether there was a malicious injury. Here the factual issue concerns whether or not the conduct of Mr. Harris was "targeted" at American Charter, at least in the sense that the conduct was certain or almost certain to cause financial harm. A determination of malice also involves a consideration of aggravating and mitigating circumstances.
Mr. Robert Harris knowingly violated the legal rights of American Charter and he did so knowing that his conduct was likely to cause harm to the economic or financial interest of American Charter. However, the particular facts and circumstances of this case lead me to conclude that the conduct of Robert Harris was not malicious. The approximate $130,000.00 which American Charter seeks to have declared nondischargeable was used by Robert Harris to pay creditors who had extended new value to enable Robert Harris to plant, grow and harvest the 1986 crop.
When the time came for Robert Harris to pay his bills from the proceeds of the 1986 crop he was short of funds. Mr. Harris did not have sufficient funds to pay all creditors who had financed the crop and to make payments to American Charter. He had a difficult choice. Mr. Harris elected to pay the creditors who had extended new value for the 1986 crop year. His conduct was not "targeted" at American Charter. His motivation was a good faith desire to pay other creditors. Mr. Harris believed that the other creditors were entitled to be paid before American Charter was paid. Although the payment of the proceeds of the 1986 crop to various creditors was in *217 violation of the legal rights of American Charter, I conclude, as a matter of fact, that the conduct of Mr. Harris did not cause a malicious injury.
Under the facts and circumstances of this case it was arguably equitable for Robert Harris to first pay creditors who had extended new value to produce the 1986 crop. Although American Charter's legal rights were senior to the legal rights of such creditors, basic principles of equity favor the payment of creditors who extended new value. This basic equitable principle is recognized in U.C.C. § 9-312(2) and in 11 U.S.C. § 552(b). Section 552 permits duly perfected security interests in certain after-acquired property to be limited based upon the equities of a case. Under this provision, a duly perfected security interest may be subordinated to creditors who extend new value. Similarly, U.C.C. § 9-312(2) recognizes that creditors who extend new value to enable a debtor to produce a crop may be entitled to priority over the holder of a preexisting lien. Of course, U.C.C. § 9-312(2) and 11 U.S.C. § 552 are not applicable to this case. The creditors who extended new value do not claim a purchase money security interest in the 1986 crop and § 552 has no application to these prebankruptcy transactions. However, these statutes recognize a principle that is quite germain. Mr. Harris' conduct and testimony was consistent with his recognition of equities which favored creditors that extended new value. Robert Harris' decision to pay the proceeds of sale was motivated by his belief that they should be paid first. His conduct was not targeted at American Charter. His conduct was targeted at the creditors who received payments and his conduct, although not legally justifiable, was consistent with principles recognized in equity. After weighing all the circumstances of this case, I conclude, as a matter of fact, that the injury caused to American Charter was not malicious.
For the reasons stated, I conclude that the actions of Robert Harris in connection with the sale and disposition of the 1985 and the 1986 crop and its proceeds did not cause a willful and malicious injury. Accordingly, the plaintiff's claim for an exception to discharge should be denied.
The separate judgment previously entered (Fil. # 21) is consistent herewith and shall remain in full force and effect.
NOTES
[1] This is an Amended Memorandum Opinion. The original version was withdrawn. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2757742/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1729
SIRINA SUCKLAL,
Debtor - Appellant,
v.
GOLDMAN SACHS MORTGAGE COMPANY,
Creditor – Appellee,
NANCY SPENCER GRIGSBY,
Trustee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:14-cv-00039-JFM)
Submitted: November 25, 2014 Decided: December 4, 2014
Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sirina Sucklal, Appellant Pro Se. Gregory Christopher Mullen,
MORRIS HARDWICK SCHNEIDER, LLC, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sirina Sucklal appeals from the district court’s order
dismissing as moot her appeal from the bankruptcy court’s order
lifting the automatic stay and allowing the sale of her real
property. We have reviewed the record and find no error in the
bankruptcy court’s decision. See In re Frushour, 433 F.3d 393,
398 (4th Cir. 2005) (noting that, in an appeal from the district
court sitting as an appellate court from a bankruptcy court, we
“review directly the bankruptcy court’s decision”).
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
2 | 01-03-2023 | 12-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1920412/ | 107 B.R. 492 (1989)
In re Robert Vaughn GIBBS, Debtor.
COOPERS & LYBRAND, LTD., as Receiver and Manager of the Assets of William C. Player, Plaintiff,
v.
Robert Vaughn GIBBS, Defendant.
Bankruptcy No. 88-04478, Adv. No. 88-0893 TS.
United States Bankruptcy Court, D. New Jersey.
November 16, 1989.
*493 Walter J. Fleischer, Jr., Shanley & Fischer, P.C., Somerville, N.J., and Alan D. Lash, Greer, Homer & Bonner, P.A., Miami, Fla., co-counsel, for plaintiff.
Jules L. Rossi, Long Branch, N.J., and Gerald J. Houlihan, Steel, Hector & Davis, Miami, Fla., co-counsel, for defendant.
MEMORANDUM OPINION AND ORDER
STEPHEN A. STRIPP, Bankruptcy Judge.
This matter is before the Court on a motion by plaintiff Coopers & Lybrand, Ltd., ("plaintiff" or "Coopers & Lybrand") for summary judgment under Bankruptcy Rule 7056, which makes Rule 56 of the Federal Rules of Civil Procedure applicable in adversary proceedings. The complaint alleges that a debt of defendant Robert Vaughn Gibbs ("defendant" or "Gibbs") to plaintiff is nondischargeable in bankruptcy under 11 U.S.C. § 523 (the "Bankruptcy Code" or "Code"), and that defendant should be denied a discharge of all of his debts under Code § 727. The motion contends that the doctrine of res judicata requires that the Court accept a prior consent judgment by the United States District Court for the Southern District of Florida as dispositive of the cause of action under Code § 523.[1] This opinion shall constitute the Court's findings of fact and conclusions of law.
I.
The allegations in the complaint filed in this adversary proceeding are as follows.
In May, 1981 Seagate Development Corporation ("Seagate Development"), a Florida corporation owned or controlled by defendant Gibbs, purchased the Seagate Hotel, a resort hotel situated in Delray Beach, Florida. Seagate Development subsequently purchased adjacent beachfront property as well.
*494 On December 28, 1982 another corporation controlled by Gibbs entered into an agreement with William C. Player ("Player") under which Player would purchase fifty percent of the common stock of Seagate Development for $2,000,000. Steps were taken to consummate the agreement, including the transfer of funds from entities controlled by Player to entities controlled by Gibbs.
On February 3, 1983 the Supreme Court of Ontario, Canada entered an injunction restraining Player from disposing of any of his assets on the basis of evidence of fraud by Player in connection with a large, complex transaction involving Canadian real estate and known as the "Cadillac Fairview transaction."
An internal document from one of Gibbs' corporations involved in the Seagate transaction which is dated February 7, 1983, four days after the Supreme Court of Ontario enjoined Player from disposing of his assets, indicates knowledge that Player is facing "potential problems" in Canada, and that as a result Gibbs could "end up with an unwanted partner" in Seagate Development.[2] As a result, the agreement between Player and Gibbs was changed so that, essentially, Player surrendered his common stock in Seagate Development and received preferred stock instead.
From April through July, 1983 a corporation controlled by Gibbs received further funds from Player and transferred them to third persons on Player's behalf.
On August 17, 1983 the Supreme Court of Ontario appointed Coopers & Lybrand as receiver and manager of all monies received by Player in connection with the Cadillac Fairview transaction. On August 20, 1983 the same court entered another order appointing Coopers & Lybrand as receiver and manager of all of Player's assets. On October 27, 1983 Coopers & Lybrand gave Seagate Development written notice of its appointment as receiver and manager, and presented an instrument under which Player authorized the transfer of his preferred stock in Seagate Development to Coopers & Lybrand. Although Player had no interest of record in Seagate Development after that point, he continued to receive accommodations on a complimentary basis at the Seagate Hotel for extended periods in 1983, 1984 and 1985. The charges incurred by Player at the hotel during this period, for which he was never billed at the instructions of Gibbs, were in excess of $100,000.
Player was subsequently convicted of criminal fraud in connection with his role in the Cadillac Fairview transaction and sentenced to a prison term of fifteen years.[3]
In 1984 Gibbs and his affiliates created Seagate Land Development, Inc. ("Seagate Land Development") and transferred the beachfront property owned by Seagate Development to Seagate Land Development, with nothing of value in return to Seagate Development. In August, 1984 and September, 1985 Seagate Development and Seagate Land Development refinanced their mortgages, from which Gibbs and his affiliates received cash of more than $1,200,000. The net result of these transactions was to remove the equity from Seagate Development and Seagate Land Development. Partially as a result of the additional debt service, the Seagate Hotel was thereafter not able to operate profitably. The September, 1985 mortgage loan was foreclosed and the lender purchased the property at the foreclosure sale.
On July 7, 1986 Coopers & Lybrand filed a complaint against Gibbs and his affiliates in the United States District Court for the Southern District of Florida. The causes of action asserted in the Florida action included violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., violation of § 10(b) of the Securities and Exchange *495 Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, intentional conversion, intentional breach of fiduciary duty, intentional waste of corporate assets, and violation of the Florida Civil Theft Statute, § 812.014 of the Florida Statutes.
After extensive discovery, and shortly before trial, the parties to the Florida action entered into a settlement agreement dated July 9, 1987. On the same date the District Court entered a final judgment which provided in pertinent part as follows:
1. Judgment is hereby entered against ROBERT V. GIBBS, INTERNATIONAL CAPITAL & DEVELOPMENT CORPORATION, INTERNATIONAL CONSOLIDATED INDUSTRIES, INC., DEVINCO OF FLORIDA, INC., SEAGATE DEVELOPMENT CORPORATION and SEAGATE LAND DEVELOPMENT, INC., jointly and severally, in the amount of U.S. $1,700,000.00, together with interest thereon at the statutory rate from the date of entry of this Judgment. By stipulation of the parties, this Judgment shall be non-dischargeable in any proceeding brought by or against ROBERT V. GIBBS, SEAGATE DEVELOPMENT CORPORATION, SEAGATE LAND DEVELOPMENT, INC., DEVINCO OF FLORIDA, INC., INTERNATIONAL CAPITAL & DEVELOPMENT CORPORATION, and INTERNATIONAL CONSOLIDATED INDUSTRIES, INC. pursuant to the provisions of the United States Bankruptcy laws, Title 11, United States Code, or any successor enactment thereto, or in any proceeding under the provisions of any bankruptcy laws of any jurisdiction. (emphasis added)
The judgment also provides that it shall be governed by the settlement agreement, which states:
3. The parties intend that the Final Judgment with respect to the specific Counts in COOPERS & LYBRAND LIMITED'S Amended Complaint, and the debt set forth in the Final Judgment, be such as to render both non-dischargeable in any proceeding under the provisions of the United States Bankruptcy laws, Title 11, United States Code, or any successor enactment thereto, or in any proceeding under the provisions of any bankruptcy or insolvency laws of any jurisdiction. The parties additionally agree that GIBBS, ICD, ICI, DEVINCO, SEAGATE DEVELOPMENT and SEAGATE LAND DEVELOPMENT will not seek a discharge in bankruptcy of the Final Judgment or the debt set forth in the Final Judgment.
On July 7, 1988 Gibbs filed a petition for relief under chapter 7 of the Bankruptcy Code. On October 31, 1988 Coopers & Lybrand filed the complaint commencing this adversary proceeding. Gibbs filed an answer asserting that his debt to Coopers & Lybrand is dischargeable. After a pretrial conference, Coopers & Lybrand filed the subject motion for summary judgment.
II.
Coopers & Lybrand's memorandum of law in support of its motion asserts that the doctrines of res judicata and/or collateral estoppel require that this Court accept the judgment of the District Court in the prepetition Florida action as conclusive on the issue of nondischargeability under Code § 523. Gibbs' brief in opposition contends that res judicata does not apply in bankruptcy proceedings pursuant to Brown v. Felsen, 442 U.S. 127, 99 S. Ct. 2205, 60 L. Ed. 2d 767 (1979). Gibbs also argues that before collateral estoppel could be applied, the case of Matter of Ross, 602 F.2d 604 (3rd Cir.1979), requires that the Court conduct an evidentiary hearing on that issue. Coopers & Lybrand's reply memorandum reaffirms that it is seeking application of res judicata, but withdraws reliance on collateral estoppel, and hence asserts that a Ross hearing is not necessary.
III.
Any analysis of res judicata or collateral estoppel in bankruptcy cases must begin with Brown v. Felsen, supra. In that case, the Supreme Court held that a bankruptcy court may consider evidence extrinsic *496 to the judgment and record of a prior state court suit when determining whether a debt reduced to judgment in the state court is dischargeable in bankruptcy, since res judicata does not bar a creditor from offering additional evidence to meet a new defense of bankruptcy asserted by a debtor. The nature and purpose of res judicata were summarized as follows:
Res judicata ensures the finality of decisions. Under res judicata, "a final judgment on the merits bars further claims by parties or their privies based on the same cause of action." Montana v. United States, 440 U.S. 147, 153, 59 L. Ed. 2d 210, 99 S. Ct. 970 [973] (1979). Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding. Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378, 84 L. Ed. 329, 60 S. Ct. 317 [320] (1940); 1B J. Moore, Federal Practice ¶ 0.405[1] (2d ed 1974). Res judicata thus encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.
442 U.S. at 131, 99 S. Ct. at 2209. However, res judicata must be applied carefully:
Because res judicata may govern grounds and defenses not previously litigated, however, it blockades unexplored paths that may lead to truth. For the sake of repose, res judicata shields the fraud and the cheat as well as the honest person. It therefore is to be invoked only after careful inquiry.
Id. at 132, 99 S. Ct. at 2209. The Supreme Court noted that considerations material to discharge in bankruptcy are irrelevant to the ordinary collection proceeding, id. at 134, 99 S. Ct. at 2211, and a creditor should have the opportunity to meet the new defense of bankruptcy by raising claims of fraud even if they were not raised in a prepetition collection action. The Supreme Court also noted that under the Bankruptcy Act which preceded the Bankruptcy Code, the bankruptcy courts have exclusive jurisdiction over issues of discharge.[4]Id. at 135 and 136, 99 S. Ct. at 2211 and 2211. Thus a state court could not determine such issues.
A.
However, Gibbs' argument that res judicata does not apply at all in bankruptcy cases is not correct. State courts cannot determine bankruptcy issues before bankruptcy jurisdiction arises and as long as the bankruptcy courts retain it, but they can certainly determine state law issues as to which they have jurisdiction. The bankruptcy courts look to state law for the determination of various issues. For example, the amount of a claim typically is determined by state law. See In re Meyertech Corp., 831 F.2d 410, 418 (3rd Cir. 1987). When a state court enters a prepetition judgment as to the amount of a claim in the proper exercise of its jurisdiction, such judgment is res judicata in bankruptcy as to the amount of the claim, although not as to its dischargeable nature. In re Comer, 723 F.2d 737 (9th Cir.1984); see also 1B J. Moore, Moore's Federal Practice ¶ 0.419[3.-6], at 672-673 (3d ed. 1984). It follows that since the District Court in the Florida action had jurisdiction to determine the amount of Coopers & Lybrand's claim against Gibbs, the judgment of the District Court is res judicata as to the amount of the claim. Gibbs admits this in his answer to the complaint in this adversary proceeding.
B.
Although it is clear from Brown v. Felsen that a state court cannot determine the dischargeability of a debt in bankruptcy before bankruptcy jurisdiction arises in the bankruptcy court and as long as the bankruptcy court retains it, there are no reported cases on the res judicata effect of *497 a judgment of nondischargeability entered by a federal district court before a bankruptcy petition was filed. This case therefore appears to be one of first impression.
It is clear that if a federal district court withdraws the reference of an action to determine dischargeability from a bankruptcy court under 28 U.S.C. § 157(d), the district court has jurisdiction over such an action pursuant to 28 U.S.C. § 1334(b). However, in this case Gibbs had not filed a bankruptcy petition when the judgment was entered. Gibbs argues that bankruptcy jurisdiction does not exist until a bankruptcy petition is filed, and that the District Court in Florida therefore lacked jurisdiction to enter a judgment of nondischargeability.
A bankruptcy case is commenced by the filing of a petition under Bankruptcy Code §§ 301, 302 or 303. "From that beginning follow all of the proceedings, whether called controversies, contested matters, suits, actions or disputes, that will occur in the unfolding of the case under the Bankruptcy Code." 1 Collier on Bankruptcy, ¶ 3.01[c][i], p. 3-20 (L. King 15th ed. 1989). 28 U.S.C. § 1334(a) and (b) vest the district courts with subject matter jurisdiction over all bankruptcy cases and all civil proceedings arising under the Bankruptcy Code, or arising in or related to a bankruptcy case. An action to determine the dischargeability of a debt is a civil proceeding arising under Code § 523. There is no provision in title 28, title 11 or elsewhere in the law which authorizes any federal court to exercise jurisdiction over any proceeding arising under title 11, or over any other bankruptcy issue, until a bankruptcy case is commenced by the filing of a petition.
It might be argued that a district court can enter a declaratory judgment as to a bankruptcy issue such as dischargeability outside of a bankruptcy case under the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. However, it is well-established that the Declaratory Judgment Act is limited in operation to those cases which would otherwise be within the jurisdiction of federal courts; the Declaratory Judgment Act does not in itself confer subject matter jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S. Ct. 876, 94 L. Ed. 1194 (1950); Ragoni v. United States, 424 F.2d 261 (3rd Cir.1970).
Further, a district court has no jurisdiction over a bankruptcy case or proceeding unless such court is the venue for such case or proceeding under 28 U.S.C. §§ 1408, 1409 or 1412. See also Bankruptcy Rule 1014(b). Gibbs filed his bankruptcy petition in the District of New Jersey, not the Southern District of Florida.
For all of the foregoing reasons, the United States District Court for the Southern District of Florida lacked subject matter jurisdiction over the issue of whether the judgment or the debt underlying it were dischargeable in bankruptcy, and the judgment is therefore void to the extent that it purported to determine that issue.[5]
IV.
The issue of the possible application of collateral estoppel still remains. Although Coopers & Lybrand elected to withdraw its reliance on that doctrine when Gibbs asserted that an evidentiary hearing would be required under Matter of Ross, supra, the Court has elected sua sponte to consider it.[6]
*498 Although res judicata cannot apply as to the issue of nondischargeability, collateral estoppel might bar relitigation of underlying issues:
This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v United States, 440 U.S. 147, 153, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979); Parklane Hosiery Co. v Shore, 439 U.S. 322, 326 n 5, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979); Cromwell v County of Sac, 94 U.S. 351, 352-353, 24 L. Ed. 195 (1877). If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court.
Because respondent does not contend that the state litigation actually and necessarily decided either fraud or any other question against petitioner, we need not and therefore do not decide whether a bankruptcy court adjudicating a § 17 question should give collateral-estoppel effect to a prior state judgment.
Brown v. Felsen, supra, 442 U.S. at 139, n. 10, 99 S. Ct. at 2213 n. 10.
A.
Res judicata is often referred to as claim preclusion, and collateral estoppel as issue preclusion. The Supreme Court distinguished the doctrines as follows in Parklane Hosiery Co. v. Shore:
Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action.
439 U.S. 322, 326, 99 S. Ct. 645, 649, n. 5, 58 L. Ed. 2d 552 (1979)
The "claims" extinguished by res judicata include all rights of the plaintiff to remedies against the defendant with respect to the transaction out of which the suit arose. Restatement (Second) of Judgments § 24 comment a (1982); United States v. Athlone Industries, Inc., 746 F.2d 977, 983-984 (3rd Cir.1984). The terms "claim" and "cause of action" are essentially synonymous for purposes of res judicata. 1B J. Moore, Moore's Federal Practice, supra, ¶ 0.410[1]. By contrast, an "issue" is a single, certain and material point arising out of the allegations and contentions of the parties. Id., ¶ 0.443[2]. Collateral estoppel applies to issues both of fact and law. Id., ¶ 0.442[1]; Restatement (Second) of Judgments § 27 comment a (1982). Thus, for example, a judgment finding the presence or absence of fraud can collaterally estop relitigation of the issues of fraud. Brown v. Felsen, supra, 442 U.S. at 139, n. 10, 99 S. Ct. at 2213, n. 10; Restatement (Second) of Judgments § 27 comment a at p. 251 (1982).
The distinction between "issues" and "claims," and hence the distinction between res judicata and collateral estoppel, has become blurred:
The differences between claim preclusion and issue preclusion in many cases may be more fiction than fact. In Charter Oak Fire Ins. Co. v. Sumitomo Marine & Fire Ins. Co., Ltd., 750 F.2d 267 (3rd Cir.1984), this court recently remarked that the federal common law pertaining to collateral estoppel has been interpreted by the courts so broadly that the doctrine of issue preclusion is "virtually indistinguishable from res judicata." Id. at 271 n. 2. An expansive definition of "issue" may be used to encompass any legal theory or factual assertion put forward in a second action that is related to the subject matter and relevant to the issues actually adjudicated in the initial action. See J. Moore, J. Lucas & T. *499 Currier, 1B Moore's Federal Practice ¶ 0.443[2] at 760-61 (3d ed. 1984).
Purter v. Heckler, 771 F.2d 682, 689-690 n. 5 (3rd Cir.1985). See also Restatement (Second) of Judgments § 26 comment a (1982). Brown v. Felsen nevertheless requires that the Court make the distinction. However, as the Supreme Court undoubtedly knew when it decided that case, both doctrines will often have the same effect. "While the distinction between res judicata and collateral estoppel is often adverted to in the cases, when issues are litigated in the first action that will be dispositive of the second action, the practical result is the same." 1B.J. Moore, Moore's Federal Practice, supra, ¶ 0.410[1] at p. 350, n. 4.
B.
In Matter of Ross, supra, the standards and procedure for applying collateral estoppel to dischargeability issues in the Third Circuit were set forth:
Contrary to the position of certain commentators, Brown v. Felsen, supra at note 10, decided after the July 1978 order subject to this appeal, indicates that the doctrine of collateral estoppel may be applicable to a dischargeability determination by the bankruptcy court. In order for the doctrine to bar relitigation of the dischargeability issue, the bankruptcy court would have to find that:
". . . (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) that issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the prior judgment."
Haize v. Hanover Ins. Co., 536 F.2d 576, 579 (3d Cir.1976). See also Matter of McMillan, 579 F.2d 289 (3d Cir.1978).
A determination of whether the Haize standards are met should be made in the first instance by the bankruptcy judge after a careful review of the record of the prior case, a hearing at which the parties have the opportunity to offer evidence, and the making of findings of fact and conclusions of law. [footnotes omitted]
Id. at pp. 607 and 608.
Ross dealt with a judgment after a trial on the merits rather than a consent judgment. However, a consent judgment has the same res judicata and collateral estoppel effect as a judgment entered after trial. Interdynamics, Inc. v. Firma Wolf, 653 F.2d 93, 96-97 (3rd Cir.), cert denied sub nom. Trans Tech Inc. v. Interaynamics, Inc., 454 U.S. 1092, 102 S. Ct. 658, 70 L. Ed. 2d 631 (1981). Prepetition consent judgments have resulted in application of collateral estoppel to issues underlying bankruptcy court determinations of nondischargeability in at least three reported decisions from courts of appeals for other circuits.
In Carey Lumber Co. v. Bell, 615 F.2d 370 (5th Cir.1980), the debtor had consented to entry of prepetition state court judgments finding that he had misapplied funds held in a fiduciary capacity. In a subsequent bankruptcy court action to determine dischargeability under § 17(a)(4) of the Bankruptcy Act, the predecessor to Bankruptcy Code § 523(a)(4), summary judgment was granted that the debts were nondischargeable because they resulted from defalcation in a fiduciary capacity. The summary judgment was affirmed.
In In re Halpern, 810 F.2d 1061 (11th Cir.1987), the debtor had consented to entry of a prepetition state court judgment finding that he had made material misrepresentations of fact to the plaintiff bank, that he knew the statements were false when he made them, that he made the misrepresentations with the intent to induce the bank to extend cash and credit to him, and that his actions were for the purpose of fraudulently deceiving the bank. The prepetition judgment further provided that the findings set forth therein would collaterally estop the debtor from denying such facts, and would conclusively establish that the debt is excepted from discharge in bankruptcy. In a subsequent bankruptcy court action to determine dischargeability under Code § 523(a)(2), the bankruptcy court granted summary judgment *500 on the grounds that the facts admitted in the state court judgment contained all of the elements necessary for a determination of nondischargeability under that section. The summary judgment was affirmed.
In Klingman v. Levinson, 831 F.2d 1292 (7th Cir.1987), the debtor had consented to entry of a prepetition state court judgment finding that he had breached his fiduciary duty regarding trust funds through misappropriation or defalcation. The judgment further provided that it was the debtor's intention that the debt would not be dischargeable and that the findings may be taken as true and correct without further proof in subsequent proceedings. In a subsequent bankruptcy court action to determine dischargeability, summary judgment was granted on the grounds that the findings in the consent judgment should be given collateral estoppel effect. The summary judgment was affirmed.
In this case, the district court judgment did not set forth specific findings like the judgments in the three cases discussed above, but it did provide that it would be governed by the terms of the settlement agreement. Paragraph 3 of the settlement agreement provided that "The parties intend that the Final Judgment with respect to the specific Counts in COOPERS & LYBRAND LIMITED's Amended Complaint" will be nondischargeable in bankruptcy. That statement might be construed as an admission by Gibbs that the allegations in the amended complaint in the Florida action, as summarized in section I above, are true. If those allegations have been admitted, such admissions might contain all elements necessary for a determination of nondischargeability under Code § 523(a)(2), (4) and/or (6). The hearing called for by Ross must therefore be held.
The first question which must be answered under Ross is whether the issues sought to be precluded in this adversary proceeding are the same as those involved in the Florida action. This will require a careful comparison of the elements of causes of action under Code § 523(a)(2), (4) and (6) with the allegations in the amended complaint in the Florida action. The standards in the two actions must be identical for collateral estoppel to apply. Brown v. Felsen, supra, 442 U.S. at 139, n. 10, 99 S. Ct. at 2213 n. 10.
The second question is whether the issues in the Florida action were actually litigated. That requirement is satisfied as to findings in a consent judgment if the parties could reasonably have foreseen the conclusive effect of their actions. Klingman v. Levinson, supra, 831 F.2d at 1296; In re Halpern, supra, 810 F.2d at 1064.
The third question is whether the issues in the Florida action were determined by a valid and final judgment. Gibbs has not argued that the District Court in the Florida action lacked jurisdiction to enter judgment on the causes of action in the amended complaint in that case, or that the judgment is not final or is invalid except to the extent that it purported to determine bankruptcy issues.
The fourth question is whether the determinations in the Florida action were essential to the judgment. Like the requirement that an issue actually be litigated, the central inquiry as to this requirement is different with a consent judgment:
The requirements that issues be actually litigated and necessary to the judgment in order for issue preclusion to apply are altered somewhat in the context of consent decrees. As we stated in Barber v. International Brotherhood of Boilermakers, 778 F.2d 750, 757 (11th Cir.1985), "[t]he very purpose of [consent] decrees is to avoid litigation, so the requirement of actual litigation necessary to preclusion always will be missing." Instead, the central inquiry in determining the preclusive effect of a consent judgment is the intention of the parties as manifested in the judgment or other evidence. Id.; Balbirer v. Austin, 790 F.2d 1524, 1527 (11th Cir.1986).
In re Halpern, supra, 810 F.2d at 1064.
The parties' attention must be focused on those questions in preparation for the Ross hearing.
V.
In opposition to the motion for summary judgment, Gibbs offered affidavits from *501 himself and his attorney in the Florida action essentially to the effect that Gibbs agreed to the language in question in the settlement agreement and judgment, while denying any wrongdoing, only as an expression of his intention not to file a bankruptcy petition and on the basis of advice of counsel that the language in question would not bar discharge of the debt. Coopers & Lybrand moves to strike those affidavits on the grounds that, inter alia, they violate the parol evidence rule. Coopers & Lybrand relies on cases for that proposition including Albright v. R.J. Reynolds Tobacco Co., 350 F. Supp. 341 (W.D.Pa.1972), aff'd., 485 F.2d 678 (3rd Cir.1973), cert denied, 416 U.S. 951, 94 S. Ct. 1961, 40 L. Ed. 2d 301 (1974).
Gibbs has not briefed that issue or the others raised by the motion to strike. The Court will defer decision on that motion pending receipt of a brief from Gibbs on those issues in connection with the Ross hearing. It should be noted, however, that although Ross requires that the parties have the opportunity to offer evidence at the hearing, it does not require that the court admit such evidence over an objection unless it is admissible under the Federal Rules of Evidence.
VI.
In conclusion, IT IS ORDERED that the plaintiff's motion for summary judgment on the basis of res judicata is denied. A hearing will be conducted pursuant to Matter of Ross, supra, to determine if collateral estoppel applies to bar relitigation of issues admitted in the settlement agreement and consent judgment in the Florida action. Decision will be deferred on the motion to strike Gibbs' affidavits in opposition pending further briefing. The attorneys for the plaintiff are to arrange a conference call within fifteen days with the attorneys for the defendants and the Court to set up an appropriate schedule.
NOTES
[1] The plaintiff does not contend that the consent judgment is dispositive as to the cause of action under Code § 727. Hence the motion is actually for partial summary judgment.
[2] Page 10 of the amended complaint in the Florida action, annexed as an exhibit to the complaint in this adversary proceeding.
[3] The extent of the fraud perpetrated by Player in connection with the Cadillac Fairview transaction is unclear from the amended complaint, but it appears that he somehow converted in excess of one hundred million dollars to his own use.
[4] Under 28 U.S.C. § 1334(b), the district courts have original but not exclusive jurisdictions of all civil proceedings arising under, arising in or related to cases under the Bankruptcy Code. 28 U.S.C. § 157(a) authorizes the district court to refer all bankruptcy cases and proceedings to the bankruptcy court, which has been done in this district. Determinations of discharge and dischargeability are core proceedings under 28 U.S.C. § 157(b)(2)(I) and (J).
[5] It is also noteworthy that the judgment in this case provides that it is nondischargeable not only by Gibbs, but also by five corporate defendants. As to the corporations, such judgment would be unnecessary in chapter 7 because Code § 727(a)(1) bars a corporation from obtaining a discharge under that chapter. In a chapter 11 case, the judgment would appear to violate Code § 1141(d)(1), which provides that confirmation of a plan of reorganization discharges any debt except as provided in § 1141(d), the plan or the order confirming the plan.
[6] The Court has authority under Code § 105(a) to raise this issue sua sponte. The salutary purposes of res judicata and collateral estoppel include freeing the courts to resolve other disputes. Brown v. Felsen, supra, 442 U.S. at 131, 99 S. Ct. at 2209. The parties estimated in their pretrial memoranda that it would take forty hours to conduct a trial on the merits. A review of the pretrial memoranda indicates that those estimates might be conservative. Time available to the court may be saved if collateral estoppel applies. It is therefore perfectly proper to raise the issue sua sponte, in the interests of seeing other litigants have their day in court sooner rather than later. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920434/ | 107 B.R. 798 (1989)
In re William DANIEL and Marie Lackey, Debtors.
William DANIEL and Marie Lackey, Plaintiffs,
v.
UNITED STATES of America, Defendant.
Bankruptcy No. A85-03774-JB, Adv. No. 88-0315A.
United States Bankruptcy Court, N.D. Georgia, Atlanta Division.
October 16, 1989.
*799 Paulina C. Hoover, UAW-GM Legal Services Plan, Norcross, Ga., for plaintiffs.
Elizabeth Sullivan, Trial Atty. Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendant.
ORDER
JOYCE BIHARY, Bankruptcy Judge.
This adversary proceeding between the Chapter 13 debtors and the United States of America on behalf of its agency, the Internal Revenue Service (hereinafter "IRS") is before the Court on cross-motions for summary judgment. The plaintiff debtors seek a judgment that their pre-petition debt to the IRS has been discharged under 11 U.S.C. § 1328(a). The issues involve the adequacy of the notice given to the IRS and a determination of whether the unsecured priority tax claims were "provided for" under the Chapter 13 plan within the meaning of § 1328(a).
The facts are not in dispute. The debtors, William Daniel and Marie Lackey, (hereinafter "debtors") filed this Chapter 13 case on July 22, 1985.[1] Along with the petition, the debtors filed their Chapter 13 statement listing the IRS as a creditor with claims of $1,800.00 against both debtors for 1984 taxes, claims against the debtor husband for 1982 and 1983 taxes in the amounts of $138.00 and $340.39 respectively, and a claim of $368.00 against the debtor wife for 1982 taxes. The address at which the debtors listed the IRS in the Chapter 13 statement and in the master creditor address list was "P.O. Box 47-413, Doraville, GA 30362".
On July 25, 1985, an "Order for Meeting of Creditors, Combined with Notice Thereof and Automatic Stay" (hereinafter "Order and Notice") was sent to all creditors and other parties in interest providing, in pertinent part, as follows:
In order to have his claim allowed so that he may share in any distribution from the estate, a creditor must file a claim whether or not he is included in the list of creditors filed by the debtor. Claims which are not filed within 90 days after the above date set for the meeting of creditors will not be allowed, except as otherwise provided by law.
The date set for the meeting of creditors was August 21, 1985, and thus the bar date for filing proofs of claim was November 19, 1985. The Order and Notice also contained a plan summary stating that unsecured creditors would be paid 100 cents on the dollar after payment of all administrative, priority, and secured claims and the debtors' attorney's fees. A copy of this Order and Notice was sent to the IRS at the Doraville, Georgia post office box address listed on the master creditor address list.
The parties agree that the Chapter 13 plan called for the payment of priority claims after payment of administrative expenses and the debtors' attorney's fees. The confirmation hearing was held on October 4, 1985, before the Honorable Hugh Robinson. Judge Robinson entered an order confirming the plan and finding, among other things, that the plan complied with the provisions of Chapter 13. Section 1322(a)(2) of the Bankruptcy Code requires *800 that all Chapter 13 plans provide for the full payment, in deferred cash payments, of all claims entitled to priority. 11 U.S.C. § 1322(a)(2).
It is undisputed that the IRS did not file a proof of claim, and it is undisputed that no distribution was made to the IRS through the Chapter 13 plan.
The IRS tried to collect taxes from the debtors outside the bankruptcy proceeding. On two occasions after the Chapter 13 petition was filed, the IRS placed levies on the debtor husband's wages at General Motors Corporation and on both occasions the levies were released by the IRS because of the Chapter 13 filing. The releases of the levies are dated January 30, 1986 and October 7, 1986. Accordingly, the IRS does not dispute that it had actual notice of the Chapter 13 proceeding at these times, and the IRS conceded in a proposed pretrial order that it violated the automatic stay when it levied on the debtor husband's wages.
On March 23, 1987, the IRS sent a notice to the debtors that their 1986 tax refund in the amount of $2,274.00 had been applied to pre-petition taxes for 1982, 1983 and 1984. Despite demands, the IRS refused to return the tax refund to the debtors.
On April 6, 1988, the Chapter 13 trustee filed a final report showing that the plan was fully paid out on March 14, 1988 and that the trustee collected a total of $7,876.92 under the plan. On April 21, 1988, the Court entered an Order discharging the debtor from all debts provided for by the plan pursuant to 11 U.S.C. § 1328(a) (hereinafter the "Discharge Order"). The Discharge Order provided, among other things, that the discharge operated as an injunction against the commencement or continuation of any act to collect, recover or offset any such discharged debt as a personal liability of the debtor or from the property of the debtor.
The debtors filed this adversary proceeding alleging that the IRS was violating the automatic stay under 11 U.S.C. § 362(a) by continuing to attempt to collect taxes after the filing of the Chapter 13 case and by applying the debtors' tax refund for 1986 to pre-petition taxes and that the continued efforts of the IRS to collect the pre-petition taxes violated the Discharge Order entered on April 21, 1988.
In its answer, the IRS admitted that the debtors were entitled to the tax refund for the year 1986 with interest, and the parties have advised the Court that the IRS has now returned the tax refund with interest to the debtors.
The parties agree that the only remaining issue to be determined is whether the pre-petition taxes were discharged. The IRS contends that it did not receive proper notice of the Chapter 13 filing, and that an unsecured priority claim can only be discharged under § 1328(a) if it is actually paid. The debtors argue that notice was proper and that the plan provided for payment of the tax claims within the meaning of § 1328(a).
I. The Notice Issue
The IRS contends that the only proper address for notice to the IRS was the district director at Post Office Box 1082, Atlanta, Georgia 30370, not the collection office address used by the debtor. The only basis for the IRS's contention is Bankruptcy Rule 2002(j)(3) which provides, in pertinent part, as follows:
(j) NOTICES TO THE UNITED STATES. Copies of notices required to be mailed to all creditors under this rule shall be mailed . . . (3) in a Chapter 11 case to the district director of the Internal Revenue Service for the district in which the case is pending. . . .
Bankr.R. 2002(j)(3).
However, Bankruptcy Rule 2002(j)(3) by its terms applies only to Chapter 11 cases, and this is a Chapter 13 case. Unfortunately, the Bankruptcy Rules as they currently exist do not contain any mention of where to serve notice to the IRS in Chapter 13 cases, and the IRS has not offered any authority or argument for applying Rule 2002(j)(3) to this Chapter 13 case.
A review of the history of the Bankruptcy Rules suggests that the drafters of the current Rules intentionally omitted any rule pertaining to service of notices to the *801 IRS in Chapter 13 cases. The first set of Bankruptcy Rules became effective on October 1, 1973. 411 U.S. 991 (1972). It contained two rules pertinent to this discussion, Rule 203(g) and Rule 13-203(d). Bankr.R. 203(g), 411 U.S. 991, 1024 (1972); Bankr.R. 13-203(g), 411 U.S. 991, 1156 (1972). Both Rule 203(g) and Rule 13-203(d) were entitled "Notices to the United States" and provided that copies of notices required to be mailed to all creditors under the rules be mailed to the district director of the Internal Revenue Service for the district in which the case was pending. Both of these rules remained in effect until August 1, 1983 and thus applied to cases under Chapter XIII of the Bankruptcy Act and Chapter 13 of the Bankruptcy Code.
On August 1, 1983, a comprehensive new set of Bankruptcy Rules went into effect which took into account the significant changes in the bankruptcy laws. Bankruptcy Rule 2002 entitled "Notices to Creditors, Equity Security Holders and the United States" superceded Rules 13-203 and 203. Rule 2002(j), which deals with notices to the United States, limited the requirement of sending notices of all cases to the district director by requiring that such notices be sent only in Chapter 11 cases. The new Rules thus omitted any requirement of notice to the IRS in all Chapter 13 cases, and omitted any mention of a specific place or official to whom such notice should be sent in a Chapter 13 case. See In re Ryan, 78 B.R. 175, 183 (Bankr.E. D.Tenn.1987). Since the Bankruptcy Rules applicable to this case do not contain any provision dealing with where to send notice to the IRS in a Chapter 13 case, the Court's inquiry is limited to whether the specific notice given in this case was fair and reasonable under the circumstances. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873-874 (1950).
It is not disputed that a collection office of the IRS received the Order and Notice at the address listed by the debtors, and the debtors' explanation as to why they listed the IRS at the collection office address is perfectly reasonable. The debtors received a collection notice prior to filing the Chapter 13 which contained the address for the IRS at P.O. Box 47-413, Doraville, Georgia, 30362. The debtors allege that they gave this address to their attorney to put on the creditor mailing list. The debtors argue that they had no idea that the IRS preferred to receive bankruptcy notices of Chapter 13 cases through the district director's office, and that they believed the address provided by the IRS on the collection notice was the correct address.
The IRS argues that notice sent to one office of the collection division of the IRS is not the same as serving a unit with authority to file a proof of claim, but the IRS does not explain why the collection office could not send the notice to the district director. See United States v. Diez, 428 F. Supp. 1028, 1030 (E.D.La.1977) (where the court considered service to the Postal Service of the United States and held that the failure of the New Orleans Post Office and/or the U.S. Attorney to forward notice to the head of the agency should not deprive the debtor of his discharge.) Furthermore, the IRS acknowledges that debtors cannot be charged with knowing the intricacies of the organization. Finally, the IRS has not contended that the Doraville address was not an address of the IRS or that the debtors listed an erroneous address.
None of the cases cited by the IRS supports the argument that the notice to the IRS in the instant case was inadequate. The IRS cited Spring Valley Farms, Inc. v. Crow (In re Spring Valley Farms, Inc.), 863 F.2d 832 (11th Cir.1989), but there the creditors were property owners with nuisance and trespass claims against Chapter 11 debtors to whom official notice of the bankruptcy proceeding was never sent. In Morgan v. Barsky (In re Barsky), 85 B.R. 550 (C.D.Cal.1988) and In re Pagan, 59 B.R. 394 (D.P.R.1986), the creditors were not sent copies of the order and notice setting out the deadline for filing claims, whereas here the IRS was sent a copy of the Order and Notice. Finally, the case of United States v. Zolla, 724 F.2d 808 (9th Cir.1984), relied upon by the IRS, was not a *802 bankruptcy case and is not relevant to the issues before this Court.
In conclusion, this is not a case where the IRS was not sent official notice of the bankruptcy filing. This is simply a case where the debtors listed the IRS at the best address they had, the address in a collection notice. The IRS contends that the Chapter 13 debtors should have referred to rules pertaining to notices in Chapter 11 cases to determine where the IRS should be served, but the IRS has cited no authority for this proposition. The Court finds that the Order and Notice sent to the IRS at the address listed in the collection notice was proper and reasonably calculated under all the circumstances to apprise the IRS of the pendency of the case and to afford the IRS an opportunity to file its proof of claim.
II. The Discharge Issue
The next question is whether the tax debt was discharged under the liberal discharge provisions of 11 U.S.C. § 1328(a). Section 1328(a) provides as follows:
(a) As soon as practicable after completion by the debtor of all payments under the plan, unless the court approves a written waiver of discharge executed by the debtor after the order for relief under this chapter, the court shall grant the debtor a discharge of all debts provided for by the plan or disallowed under section 502 of this title, except any debt
(1) provided for under section 1322(b)(5) of this title; or
(2) of the kind specified in section 523(a)(5) of this title.
11 U.S.C. § 1328(a) (emphasis added).
The Chapter 13 discharge is broader than the discharge in Chapter 7, and tax claims are not within either class of nondischargeable claims set out in § 1328(a). See, e.g., United States v. Richards (In re Richards), 50 B.R. 339 (E.D.Tenn.1985). The IRS debt here was not disallowed, since a claim was never filed, and so the sole issue in determining whether the tax debt was discharged is whether the taxes were "provided for by the plan" within the meaning of 11 U.S.C. § 1328(a).
The IRS argues that the taxes were not "provided for" by the plan because the IRS was not actually paid under the plan and that priority taxes cannot be discharged under § 1328(a) unless they are actually paid in full. The only authority cited by the IRS for this position is In re Tomlan, 88 B.R. 302 (Bankr.E.D.Wash.1988). However, that decision was reversed by the district court on July 5, 1989 by In re Tomlan, 102 B.R. 790 (E.D.Wash.1989).[2] In addition to the Tomlan bankruptcy court decision having been reversed, two courts have declined to follow the Tomlan bankruptcy court decision. In re Miller, 100 B.R. 898 (Bankr.N.D.Ohio 1989); In re Ungar, 104 B.R. 517 (Bankr.N.D.Ga.1989).
The Tomlan district court decision thoroughly discussed the statutory scheme and analyzed the cases of In re Rothman, 76 B.R. 38 (Bankr.E.D.N.Y.1987), In re Goodwin, 58 B.R. 75 (Bankr.D.Me.1986), and In re Richards, 50 B.R. 339 (E.D.Tenn.1985), all of which construed the "provided for" language in § 1328(a) in the context of late filed unsecured tax claims. The district court in Tomlan concluded that the IRS's untimely proof of claim was properly disallowed, that a plan did not have to provide for full payment of untimely filed or unfiled priority claims, and that the IRS's claim would be discharged upon the debtor's completion of performance under the plan.
This Court agrees with the district court in Tomlan and with those courts which have held that "the phrase `provided for' in § 1328(a) simply requires that for a claim to become dischargeable, the plan must `make a provision for' it, i.e., deal with it or refer to it." Lawrence Tractor Co. v. Gregory (In re Gregory), 705 F.2d 1118, 1122 (9th Cir.1983); Accord United States Internal Revenue Service v. Vlavianos (In re Vlavianos), 71 B.R. 789, 792 (Bankr.W. *803 D.Va.1986). The plan here provided for the payment of priority claims, and the only reason the IRS debt was not paid is because the IRS never filed a proof of claim.
This ruling is consistent with the reasoning in In re Kiker, 98 B.R. 103 (Bankr.N.D. Ga.1988), where another court in this district sanctioned the IRS for violating the discharge injunction of 11 U.S.C. § 524(a)(2). In Kiker, the court examined the effect of § 1328(a) on an untimely proof of claim filed by the United States, which claim had been objected to and subsequently disallowed. The court stated:
The United States, like any other creditor, must timely file a proof of claim or be barred from participation in the plan. However, if the debtor's plan makes provision for payment and a tax claim is not timely filed or is disallowed, such priority claim is discharged upon completion by debtor of all payments required to fund the plan. (citations omitted)
Id., at 107.
Finally, the IRS argues that in order to have the debt discharged under § 1328(a), the debtor should be required to file a proof of claim on behalf of the IRS when the IRS forgets to file a claim. The IRS, however, cites no authority for this argument. Section 501(c), which allows the debtor or the trustee to file a proof of a creditor's claim when the creditor does not file a timely proof of claim, is permissive only. There is nothing in the statutory scheme to suggest that debtors must file claims for creditors in order for the debts to be discharged under the liberal discharge provisions of § 1328(a).
In accordance with the above reasoning, the plaintiffs' motion for summary judgment is GRANTED, the defendant's cross-motion for summary judgment is DENIED, and the Court finds that the unsecured debt to the IRS has been discharged. A judgment in favor of the plaintiffs will be entered pursuant to this Order.
IT IS SO ORDERED.
NOTES
[1] In the statements of undisputed material facts filed by the parties, they state that the case was filed on July 12, 1985. However, the file reflects a filing date of July 22, 1985.
[2] The briefs filed by both parties make no mention of the district court decision reversing the bankruptcy court in Tomlan. The district court decision was rendered shortly before the motions were filed in this Court, and the Court assumes that counsel would have cited the decision to the Court if they were aware of it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920454/ | 107 B.R. 31 (1989)
In the Matter of Gary Anthony PELOSO and Deborah Ann Peloso, Debtors.
Gregory CHAPINS and Janet Chapins, Plaintiffs,
v.
Gary Anthony PELOSO, Defendant.
Bankruptcy No. 89 B 20064, No. 89 Adv. 6064.
United States Bankruptcy Court, S.D. New York.
November 14, 1989.
Moloney & Anker White Plains, N.Y., for plaintiffs.
Shatz, Meier & Scher, New York City, for defendant.
DECISION ON MOTION TO DISMISS DISCHARGEABILITY COMPLAINT
HOWARD SCHWARTZBERG, Bankruptcy Judge.
The Chapter 7 debtors, Gary Peloso and his wife, Deborah Ann Peloso, have moved to dismiss the complaint filed by the plaintiffs, Gregory Chapins and his wife, Janet Chapins, on the ground that the complaint is time barred. The plaintiffs allege in their complaint that they are creditors of the debtors and seek a judgment in the sum of $350,000 which they contend should *32 be determined as nondischargeable under 11 U.S.C. § 523 for various reasons including false representations, fraud, a false written statement respecting the debtor's financial condition, fiduciary fraud and defalcation and willful and malicious injury by the debtors to the plaintiffs' property. The damages claimed by the plaintiff are alleged to have arisen in connection with payments which the plaintiffs contend they made to the debtor, Gary Peloso, for the alteration and remodeling of the plaintiff's home in Yonkers, New York.
FACTS
On February 1, 1989, the debtors, Gary and Deborah Ann Peloso, filed with this court their voluntary joint petition for Chapter 7 relief under 11 U.S.C. § 302. The debtors did not list the plaintiffs as creditors in their schedule of creditors filed with the petition.
Pursuant to an order and notice issued by this court dated February 9, 1989, a meeting of creditors was set for March 29, 1989. Additionally, May 30, 1989 was the last date fixed for the filing of objections to the debtor's discharge and as the last day for the filing of complaints to determine the dischargeability of any debts pursuant to 11 U.S.C. § 523(c). The order and notice also stated if no complaint to determine the dischargeability of a debt under 11 U.S.C. § 523(a)(2), (4) or (6) was filed on or before May 30, 1989, that such debt may be discharged.
A discharge hearing was scheduled for June 6, 1989. The discharge hearing was held and closed. No objections to discharge or to the dischargeability of the debtors' obligations were filed before May 30, 1989. On June 20, 1989, the meeting of creditors was held and then adjourned to July 25, 1989, at which time the meeting was adjourned to September 11, 1989, when it was closed. On September 15, 1989, this court entered an order discharging the debtors in accordance with 11 U.S.C. § 727. On September 18, 1989, this court entered an order discharging the trustee in bankruptcy and closing the case.
On October 3, 1989, the plaintiffs filed with this court their complaint to determine the dischargeability of the debtors' debts. The specific subsections under 11 U.S.C. § 523 upon which the plaintiffs rely are not stated. However, the language contained in the various causes of action in the complaint tracks the grounds delineated under subsections (2), (4) and (6) of § 523(a), all of which had to be filed on or before the May 30, 1989 deadline set by order of this court. However, the plaintiffs rely upon the fact that on August 4, 1989, the debtors amended their schedules as they were entitled to do without leave of court, and as permitted under Bankruptcy Rule 1009(a), in order to add the plaintiffs as additional creditors. The clerk automatically notified the plaintiffs that they were listed as creditors under the debtors' amended schedules and notified the plaintiffs that they could file a complaint to determine the dischargeability of the amended debts by October 3, 1989, notwithstanding that the last day to file a dischargeability complaint had already expired on May 30, 1989.
The debtors maintain that the complaint is time barred and that the plaintiffs had actual notice of the debtors' Chapter 7 petition by reason of a certified letter dated May 17, 1989 which counsel for the debtors mailed the plaintiffs in order to inform the plaintiffs that a pending State Court action which they commenced against the debtors had to be halted because of the debtors' Chapter 7 petition and the automatic stay imposed under 11 U.S.C. § 362.
Discussion
Not having been listed as creditors before the May 30, 1989 deadline for creditors to object to the debtors' discharge or to the dischargeability of their claims, the plaintiffs are not bound by the bar date prescribed under Bankruptcy Rule 4007(c) for filing a complaint alleging the grounds delineated under 11 U.S.C. § 523(c). Bankruptcy Rule 4007(c) provides as follows:
(c) A complaint to determine the dischargeability of any debt pursuant to § 523(c) of the Code shall be filed not later than 60 days following the first date set for the meeting of creditors held *33 pursuant to § 341(a). The court shall give all creditors not less than 30 days notice of the time so fixed in the manner provided in Rule 2002. On motion of any party in interest, after hearing on notice, the court may for cause extend the time fixed under this subdivision. The motion shall be made before the time has expired.
The debtors did not comply with 11 U.S.C. § 521(1) and list the plaintiffs as creditors until after the 60 day period prescribed under Bankruptcy Rule 4007(c) had expired. Therefore, the plaintiffs are entitled to rely upon 11 U.S.C. § 523(a)(3)(B) which does not discharge an individual debtor from debts specified in paragraphs (2), (4) or (6) of § 523(a) unless the creditors had notice or actual knowledge of the case in time to file a complaint to determine the dischargeability of their debts.
There were no exceptional circumstances presented in this case which would justify the court to exercise the equity powers authorized under 11 U.S.C. § 105(a) to extend the creditors' time for filing an objection to the debtors' discharge, nor did the creditors apply to the court for an extension of time as in In re Greene, 81 B.R. 829 (Bkrtcy.S.D.N.Y.1988) aff'd, 103 B.R. 83 (S.D.N.Y.1989). Therefore, the plaintiffs' claims would be protected from discharge so long as they had no knowledge of the case so as to permit the timely filing of a proof of claim and a dischargeability complaint. The clerk's notice to the plaintiffs after the debtors belatedly added the plaintiffs as creditors constituted official notice of the amendment to add the plaintiffs as creditors so that the plaintiffs might, if they wished, file a nondischargeability complaint to the effect that their claims were not discharged because they were neither listed nor scheduled in time to file an objection to the dischargeability of their debts, as provided under 11 U.S.C. § 523(a)(3)(B). The debtors would then have to establish that the plaintiffs had notice or actual knowledge of the case in time to file such a complaint. The clerk's notice to the plaintiffs did not have the effect of extending their time to file a complaint pursuant to 11 U.S.C. § 523(a)(2), (4) or (6) because such extension was unnecessary. Moreover, the clerk's notice to the plaintiffs that they were belatedly added as creditors could not limit the time for filing a dischargeability complaint under 11 U.S.C. § 523(a)(3)(B) because Bankruptcy Rule 4007(b) provides that a complaint other than under § 523(c) may be filed at any time, even after the case was closed.
Accordingly, the plaintiffs' complaint is not time barred, although the grounds for nondischargeability should be bottomed on 11 U.S.C. § 523(a)(3)(B) and not § 523(a)(2), (4) or (6). The debtors may include in their answer as a defense the issue that the plaintiffs had notice or actual knowledge in time for them to file a dischargeability complaint. The issue of notice or actual knowledge raises a question of fact which cannot be determined on a motion to dismiss the complaint.
Conclusions of Law
1. This court has jurisdiction of the subject matter and the persons in accordance with 28 U.S.C. § 1334 and 28 U.S.C. § 157(a). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I).
2. The debtors' motion to dismiss the complaint as time barred is denied because the plaintiffs were not timely scheduled as creditors in accordance with 11 U.S.C. § 523(a)(3)(B) and Bankruptcy Rule 4007(c).
3. The debtors may raise the issue as to the plaintiff's notice or actual knowledge of the case in time to file a dischargeability complaint as a defense in their answer which shall be served within twenty days from the date of this order.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1299445/ | 275 S.C. 586 (1981)
274 S.E.2d 510
The STATE, Respondent,
v.
Edgar Allen OWEN and Charles Edmund Owen, Appellants.
21370
Supreme Court of South Carolina.
January 13, 1981.
*587 William B. Long, Jr. of Long, Black & Gaston, Greenville, Bruce E. Pashley, Atlanta, Ga. and James A. Nolan of Madison Ga., for appellants.
Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Kay G. Crowe, Columbia, and Sol. William W. Wilkins, Jr., Greenville, for respondent.
January 13, 1981.
LEWIS, Chief Justice:
Appellants Edgar Allen Owen and Charles Edmund Owen appeal from their conviction and sentence for possession of marijuana with intent to distribute. Edgar was thereafter sentenced to five (5) years, and Charles received a sentence of twenty (20) years as a third offender. They assign error under eleven (11) exceptions which, it is argued in appellants' brief, pose as many questions for decision. However, we find that the questions which warrant discussion are much less in number.
The basic issue involves the sufficiency of the affidavit to show probable cause for the issuance of the search warrant *588 under which the officers searched the premises of appellant Edgar Owen and seized over one thousand (1000) pounds of marijuana. Appellants contend that the trial judge erroneously denied their pretrial motion to suppress the evidence obtained under the search warrant in question.
The challenged search warrant was issued on the affidavit of a deputy sheriff of Pickens County, South Carolina, and was based partly on information obtained from his investigation and partly on information received by phone from the Sheriff of Oglethorpe County, Georgia, who was investigating the illegal activities of appellants and others. The information given by the Sheriff was based partly upon his investigation and partly from that given to him by a named informant.
Appellants argue that the affidavit upon which the search warrant was issued was insufficient to show that the affiant's informant was reliable and failed to state whether the information was based on personal knowledge, hearsay or supposition.
The principles are well settled that a search warrant may issue only upon a finding of probable cause; and that, in passing upon the validity of the warrant, a reviewing court may consider only information brought to the magistrate's attention, which, in this case, was set forth in the supporting affidavit.
In order to comply with constitutional standards, the affidavit must state sufficient facts to form the basis of a judgment by the issuing officer that probable cause exists. Where the affidavit is based upon an informant's statement, it must set forth facts which show that the informant is reliable and the underlying factual circumstances which support the accuracy of the informant's information. State v. York, 250 S.C. 30, 156 S.E. (2d) 326; State v. Williams, 262 S.C. 186, 203 S.E. (2d) 436; State *589 v. Sullivan, 267 S.C. 610, 230 S.E. (2d) 621; State v. Hammond, 270 S.C. 347, 242 S.E. (2d) 411. As stated in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. (2d) 723 (as quoted in State v. Williams, supra): "... the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed ..., was `credible' or his information `reliable'."
The search warrant was issued for the search of property belonging to appellant Edgar Owen, located near Pickens, South Carolina; and the property sought was "marijuana and other related drugs." The reasons set forth in the affidavit for affiants belief that the property sought was on the premises of appellant Edgar Owen, were as follows:
The affiant talked with Sheriff Gene Smith, of Oglethorpe County Ga., on 10-12-79 at 11:30 p. m. Sheriff Smith said he had under arrest one Gerald Owen, brother of Howard Owen, for violation of Ga. Controlled Substance. He stated that he had also talked with Sherman Scott Owen, son of Howard Owen. Sherman Scott Owen stated that his father Howard Owen was driving a U-Haul truck that had a front like a pickup truck, and a big square box shape back, with Florida License AB8 511, and that the truck was loaded with marijuana. Sheriff Smith said that Gerald Owen, Howard Owen, and Charles Berry had loaded the truck with black trash bags, filled with marijuana into the truck. The marijuana had been packed into the bags with a trash compacter. Sheriff Smith stated that he had confiscated the trash compacter, which had marijuana residue in it. Sheriff Smith stated that Howard Owen was going to Six Mile, S.C. to the residence of Edgar Owen, telephone No. XXX-XXX-XXXX. Further investigation of telephone number shows *590 that it is listed to that residence of Edgar Owen, highway 183 W. of Pickens. Sheriff Smith stated that Howard Owen left Ga. at app. 9:00 PM 10-12-79, and that his office had subjects under surveillance since 10-10-79 app. 5:30 p.m. Further investigation by the affiant shows the said truck to be in the yard of Edgar Owen.
The affidavit shows that affiant's information came partly from the Georgia Sheriff who was conducting an investigation into illegal drug activities in which appellant Edgar Owen was apparently involved. The information given by the Sheriff was sufficient to sustain a reasonable belief that there was marijuana on the premises of appellant Edgar Owen in South Carolina. The Sheriff and his officers had the alleged driver of the truck under surveillance for two days. As a result, he had arrested Gerald Owen, the brother of the alleged truck driver, for violation of Georgia drug laws. The named informer was the son of the alleged driver of the marijuana loaded truck. The loading of the truck and a description of the truck, with license number, was given. The trash compacter, used in packing the marijuana, had been confiscated by the Sheriff and found to contain marijuana residue.
The status of the Sheriff's informer (son of the alleged driver of the marijuana laden truck) showed a capacity and relationship which would prompt belief in his opportunity to know the facts and in the reliability of his information; the information given by the informer implicated his own father in a serious crime.
In addition, material portions of the information given to the Sheriff were independently corroborated by him and the affiant. Most significantly, the truck described by the Georgia Sheriff was observed, a few hours after the Sheriff reported its departure from Georgia, on the premises of appellant Edgar Owen in South Carolina, as predicted by the Sheriff.
*591 Irrespective however, the affiant, a Deputy Sheriff in South Carolina, properly relied upon the credibility of the information reported to him by the Sheriff in Georgia in the performance of the latter's duties. U.S. v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L.Ed. (2d) 684; State v. Ellington, 284 N.C. 198, 200 S.E. (2d) 177; U.S. v. Harrick, 582 F. (2d) 329; U.S. v. Welebir, 498 F. (2d) 346; U.S. v. McCoy, 478 F. (2d) 176; State v. Sullivan, 267 S.C. 610, 230 S.E. (2d) 621.
The affidavit in question was clearly sufficient to sustain a finding of probable cause for the issuance of the warrant in question.
Appellants further contend that the trial judge was in error in denying their motions for directed verdicts. It is argued that there was no evidence to show that either appellant had possession of marijuana.
There was testimony that appellant Edgar Owen was the owner of the premises where the marijuana was found. When the officers surrounded the house, three men came out onto the porch. One of the individuals ran and avoided apprehension. However, appellants were captured on the back porch. The U-Haul truck, in which presumably the marijuana was transported, was parked on the premises of appellant Edgar Owen, in close proximity to his home. The marijuana was found about 2:30 a. m., a distance of 22 feet from the rear of the truck. There were tracks visible in the dew from the rear of the truck to the point where the marijuana was found, indicating recent activity. Marijuana debris was found in the rear of the truck; three marijuana cigarettes were found in the living room of the Edgar Owens home; and a bag of marijuana was found in the refrigerator.
Possession may be either actual or constructive. The foregoing evidence establishes the dominion and control of Edgar Owen over the marijuana by virtue of his ownership and *592 control of the premises upon which it was found. State v. Ellis, 263 S.C. 12, 207 S.E. (2d) 408.
It was contended, however, that the evidence only places appellant Charles Owen present on the premises as a visitor and is insufficient to establish his dominion and control over the marijuana or the right to control it, relying upon State v. Brown, 267 S.C. 311, 227 S.E. (2d) 674. This case differs from Brown in that here proof of presence was coupled with other facts and circumstances which presented a jury issue as to whether appellant Charles Owen was guilty of possession.
Appellants are brothers. Charles arrived at the home of Edgar about eleven o'clock, p. m., and the marijuana was found about 2:30 a. m. on the same night. The tracks in the dew, leading to the marijuana and the condition of the marijuana indicated that it had been recently unloaded from the truck. There was marijuana found in the living room, in the form of three hand rolled cigarettes lying on a table. The house had been under surveillance for approximately one hour and a half prior to the search and the position of the U-Haul truck was moved during that time; the house lights were on and both appellants were fully dressed at the time of the search at 2:30 in the morning. When the house was surrounded, appellants and one other came on to the porch. Appellants were apprehended immediately but the other person ran.
The foregoing circumstances give rise to an inference that appellant Charles Owen was on more than an innocent visit to the home of his brother. When marijuana cigarettes were found, lying on the living room table, a U-Haul truck is moved from one location in the yard to another in order to unload a quantity of marijuana, the occupants of the premises were fully clothed at 2:30 in the morning, and one of the party coming from the house, along with appellants, seeing the officers, runs to avoid apprehension, certainly it is *593 reasonably inferable that both of the appellants knew of the illegal activities taking place around them and participated therein. The evidence clearly presented a question for the jury on the issue of possession of marijuana by both appellants.
We additionally note appellants challenge to their respective sentences upon the grounds that (1) the sentences amounted to cruel and unusual punishment and (2) appellant Charles Owen was erroneously sentenced as a third offender when his second offense was still under appeal. These questions were not presented in the lower court and, hence, can not be raised on appeal. Cummings v. State, 274 S.C. 26, 260 S.E. (2d) 187.
The remaining exceptions concern (1) rulings on the admissibility of evidence, (2) the denial of motions for a continuance, (3) amendment of the indictment, and (4) alleged error in the charge. These exceptions have been considered and are affirmed under Supreme Court Rule 23 because no error appears and a full discussion would be of no precedential value.
Judgment affirmed.
LITTLEJOHN, NESS, GREGORY and HARWELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621464/ | 733 So. 2d 207 (1999)
Steven Leslie SWEATT
v.
Paul MURPHY and Therese Murphy.
No. 97-CA-00638-SCT.
Supreme Court of Mississippi.
January 28, 1999.
*208 Derek Arthur Wyatt, Gulfport, Attorney for Appellant.
Bobby Atkinson, James R. Foster, II, Gulfport, Attorneys for Appellees.
EN BANC.
PRATHER, Chief Justice, for the Court:
STATEMENT OF THE FACTS AND CASE
¶ 1. In April, 1995 Steven Sweatt ("Sweatt") and his wife began renting a house in Gulfport from Paul and Therese Murphy. On April 30, 1995, Sweatt was injured on the property when a porch swing on which he was sitting fell due to a failure in the hook which connected it to the ceiling. Following the accident, Sweatt was diagnosed with a lumbar disc herniation, but the Murphys, then living in Sweden, denied any responsibility for his injuries. The Sweatts gave notice to Gloria Murphy, Paul Murphy's mother, that they were moving out and requested the return of the security deposit. The Murphys refused to return the deposit.
¶ 2. Sweatt filed a complaint in circuit court, alleging that the Murphys had failed to comply with the provisions of the Residential Landlord and Tenant Act ("RLTA"), Miss.Code Ann. § 89-8-1, et seq. (1972), specifically the RLTA's mandate to landlords/owners to comply with applicable "housing codes affecting health and safety." After discovery, Sweatt filed a motion for summary judgment, seeking an instruction that the Murphys were negligent per se in violating the provisions of the RLTA and/or the Housing Code. The trial judge denied this motion, as well as a motion filed by Sweatt to add Gloria Murphy as a defendant and to assert additional claims against the defendants.
¶ 3. On March 24, 1997, the case went to trial, and the trial judge refused to give any instructions based upon the RLTA and/or the Standard Housing Code. The jury returned a verdict for the Murphys as to the personal injury claim, but the jury returned a verdict for $700 (the amount of the security deposit) for Sweatt on his contract claim. Feeling aggrieved, Sweatt appeals to this Court.
LAW
I. Whether the trial court erred in failing to apply the Mississippi Residential Landlord and Tenant Act, Miss.Code Ann. § 89-8-1 et seq. (1972, as amended) as controlling law.
II. Whether the trial court erred in failing to apply the provisions of the Standard Housing Code, adopted by the City of Gulfport in City Ordinance *209 No.1974, and compliance with which is made mandatory on all residential landlords in Mississippi by the Residential Landlord and Tenant Act, Miss.Code Ann. § 89-8-1 et seq. (1972, as amended), as controlling law.
III. Whether the trial court erred in failing to grant summary judgment for plaintiff.
IV. Whether the trial court erred in failing to grant plaintiff jury instruction for negligence applying the provisions of the Mississippi Residential Landlord and Tenant Act, Miss.Code Ann. § 89-8-1 et seq. (1972, as amended), and the Standard Housing Code, adopted by the City of Gulfport in City Ordinance No.1974.
V. Whether the trial court erred in failing to grant plaintiff jury instruction for negligence per se applying the provisions of the Mississippi Residential Landlord and Tenant Act, Miss. Code Ann. § 89-8-1 et seq. (1972, as amended), and the Standard Housing Code, adopted by the City of Gulfport in City Ordinance No.1974.
VI. Whether the trial court erred in failing to grant plaintiff's motion to amend judgment, and motion for judgement notwithstanding the verdict or, motion for new trial.
¶ 4. These points of error are combined as they are all related to the central issue of whether the trial judge was in error in refusing to apply the RLTA, grant summary judgment, instruct the jury, or direct a verdict in favor of Sweatt based on the provisions of the Mississippi Residential Landlord and Tenant Act and, by incorporation, the Gulfport Housing Code.
¶ 5. Miss.Code Ann. § 89-8-23(1) (1991) provides that:
(1) A landlord shall at all times during the tenancy:
(a) Comply with the requirements of applicable building and housing codes materially affecting health and safety;
(b) Maintain the dwelling unit, ... in substantially the same condition as at the inception of the lease.
Sweatt notes that this provision of the RLTA incorporates by reference the Standard Housing Code, re-enacted by the City of Gulfport in 1994. In particular, Sweatt cites § 305.5 of the Housing Code, which provides:
305.5 Stairs, Porches, and Appurtenances.
Every inside and outside stair, porch, and any appurtenance thereto shall be safe to use and capable of supporting the load that normal use may cause to be placed thereon and shall be kept in sound condition and good repair.
Sweatt argues that:
The Murphys, owners/landlords of an existing, residential dwelling in the City of Gulfport, rented to Sweatt, were at all times relevant to the Sweatt's accident under a legal duty to comply with Housing Code 305.5 and any other Housing Code provisions "materially affecting health and safety." ... Under Mississippi law, the violation of a city ordinance may become grounds for granting a negligence per se instruction. citing Hill v. London, Stetelman, and Kirkwood, Inc., 906 F.2d 204 (5th Cir.1990).
¶ 6. In the view of this Court, Sweatt's argument that the Murphys should be held negligent per se for all violations of the Housing Code "materially affecting health and safety" is without merit. This Court has never interpreted the RLTA as constituting a basis for holding a landlord negligent per se for all housing code violations, and such an interpretation of the RLTA would lead to inequitable and extreme results.
¶ 7. The only decision cited by Sweatt concerning the landlord's duty to comply with applicable housing codes is Justice Sullivan's concurring opinion in O'Cain v. Harvey Freeman and Sons, 603 So. 2d 824 (Miss.1991) (Roy Noble Lee, Prather, Robertson, and Banks also concurred, thus *210 giving this opinion precedential value). While these concurring justices did place importance upon the RLTA's incorporation of the applicable housing codes, it is clear that the opinion does not advocate the sort of strict liability in tort for housing code violations which Sweatt advocates in the present case. To the contrary, Justice Sullivan's O'Cain concurrence states in part that:
Recognizing that building and housing codes which affect health and safety generally are often governed locally, I advocate that the bare minimum standard for an implied warranty of habitability should require a landlord to provide reasonably safe premises at the inception of a lease, and to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant, unless expressly waived by the tenant.
O'Cain, 603 So.2d at 833. It is thus apparent that the concurrence in O'Cain advocated a general implied warranty of habitability for residential leases, and not the sort of strict liability for all housing code defects advocated by Sweatt herein. These concurring justices did interpret the incorporation of housing code standards into the RLTA as an indication that the Legislature intended to abolish the doctrine of caveat emptor with regard to residential leases in favor of an implied warranty of habitability. This Court has never held, however, that a lessor is strictly liable in tort for each and every violation of housing code provisions, as Sweatt would seem to advocate.
¶ 8. One commentator, in discussing the concurring opinion in O'Cain, interpreted the opinion as a positive step away from a scheme under which standards of habitability are determined pursuant to housing codes, which may differ from one municipality to another. University of Mississippi Law Professor Deborah Bell writes that:
General obligations to repair, or warranties of habitability, are imposed as a matter of public policy; courts, or legislatures, have determined that residential tenants should be afforded a minimum standard of habitability in their homes. The policy applies equally to all tenants, and should not be tied to the chance decision of a municipality to enact a housing code. The better approach to general maintenance obligations in a state checkerboarded with codes is a general standard of minimum habitability with reference to available codes as a guideline.
The problem of inconsistent coverage may have been remedied by a recent Mississippi Supreme Court decision. In O'Cain v. Freeman & Sons, Inc., a majority of the court appears to have endorsed a general warranty of habitability as a supplement to the statutory obligation to comply with [housing] codes.
Deborah H. Bell, The Mississippi Landlord-Tenant Act of 1991, 61 Miss. L.J. 527, 540 (1991).
¶ 9. The implied warranty of habitability is based upon sound considerations of public policy, but this Court is cognizant of the fact that different, and sometimes competing, public policies may exist in different contexts. In this context, it is important that the standards of law be patterned on flexible concepts of law rather than inflexible, and sometimes arbitrary, regulations such as housing codes.
¶ 10. Sweatt's reliance upon a negligence per se theory is understandable, given that the facts of the present case do not support a finding that his injuries were the result of any failure to exercise due care on the part of the Murphys. Robert Evans, a metallurgist, testified on behalf of Sweatt that the porch swing fell when a metal hook which connected the swing to the ceiling broke under Sweatt's weight. Evans admitted under cross-examination, however, that a crack which was present on the hook was not detectable by casual inspection:
*211 Q: From what I understood from your deposition and your testimony here today, the crack that developed was hidden from view. No question about that?
A: Its sheer minor size, yes. I mean, it would have been difficult to see without
. . .
Q: A microscope?
A: Or a magnifying glass.
Q: Well, but also not only as to its size, but to where it was located. It was into the ceiling, correct?
A: It could have It appears that it could have been above the plywood level right where it would have intersected the 2 × 4 or 2 × 6 whatever the joist is. It could have been above there. I can't tell after the fact.
Q: Well, in fact, the drawings that you made that were attached to your deposition as an exhibit indicated that based on the information that you had in the case, you've got the crack drawn above the ceiling line, did you not.
A: That was what I drew for the technician that was helping me with the SEM (scanning electron microscope) work, yes.
. . . .
Q: So even if the Murphys or anyone else had walked up to that hook before the fall happened on April 30 of '95 and looked at it, they would not have been able to see the crack for two reasons; it was up in the ceiling, and it took a microscope magnification to see it, correct?
A: That's correct.
The Murphys can not reasonably be expected to have noticed the microscopic crack in the hook which caused the accident, and it is clear that Sweatt's injuries were not the result of any failure to exercise due care on the part of the Murphys. Under the O'Cain standard, it is clear that the Murphys did not fail "to exercise reasonable care to repair dangerous conditions upon notice of their existence by the tenant." Sweatt himself acknowledges that he did not notice the microscopic crack in the hook supporting the swing, and he obviously did not provide any notice of these defects to the Murphys.
¶ 11. The only theory of recovery which would permit a recovery on the part of Sweatt under the facts herein is a strict liability theory which we have never applied to leasehold properties and which we expressly reject today. In a proper case, a jury may properly be instructed as to the applicable provisions of the local housing code in order to assist in the determination of whether the premises were delivered in a reasonably safe condition. In the present case, however, this Court concludes that the trial court did not err in refusing to instruct the jury or direct a verdict based on the provisions of the housing code. Regardless of the applicable housing code provisions, it is clear that the defect in the hook supporting the swing could not have been noticed through the exercise of reasonable care and that Sweatt's action against Murphy was not supported by the facts of this case.
¶ 12. A very important point in the present context is that Sweatt's lawsuit was primarily a tort action for personal injuries resulting from the failure of the hook supporting the swing. An action to recover for personal injuries resulting from housing defects which may constitute a breach of the implied warranty of habitability is clearly different from an action to recover, for example, the expenses of repairing the property. The O'Cain concurrence noted that an action for personal injuries resulting from the allegedly unsafe condition of leasehold property is, in essence, a negligence action governed by the familiar elements of that cause of action:
This is not to say that a landlord is an insurer of safety. A landlord is not. Making a landlord subject to tort liability merely requires him to act as a reasonable landlord under the circumstances of the case. The tenant would still be required to show duty, breach, *212 causation, and damages, and the landlord would be entitled to raise the standard tort defenses, such as contributory negligence, unforeseeability or intervening cause.
Id. at 833. Under the facts of the present case, it is clear that Sweatt's injuries did not result from any failure to exercise due care on the part of the Murphys, and Sweatt's tort action against the Murphys was properly rejected by the jury. The jury's verdict is affirmed.
VII. Whether the trial court erred in failing to grant plaintiff's motion to amend the compliant to add additional parties and counts for violation of Miss.Code Ann. § 76-31-3 et seq (1972, as amended).
¶ 13. On January 22, 1997, Sweatt sought to add additional grounds for relief and to join Paul Murphy's mother Gloria as a defendant to the lawsuit. Specifically, Sweatt sought an amendment to add claims that the Murphys engaged in misleading and deceptive advertising practices in violation of Miss.Code. Ann. § 97-23-3 (1972). Sweatt argues that:
Defendant's advertisement when made contained assertions, representations, and/or statements of fact which were untrue, deceptive and/or misleading, and which Defendants knew, or, alternatively, on reasonable investigation, might have ascertained, were untrue, deceptive, and/or misleading. Specifically, Sweatt alleged that the Murphys Defendants knew, or alternatively, might have ascertained, multiple dangerous defects as well as numerous state and city residential housing and electrical code violations then existing on the subject premises.
The trial court was correct in refusing to permit Sweatt to add his deceptive advertising complaint. The advertisement which Murphy placed for his house simply read:
Inviting 3 BR home. I blk from beach. Frplc., hardwood floors, Cent. H/A, porch w/ swing, etc. Avail 4/1 $750/ month + dep. 864-7903.
None of the specific defects which, Sweatt alleges, existed in the house were in any way misrepresented in this advertisement. The advertisement merely described, in general terms, the nature of the house, and no representations were made in the ad regarding the electrical outlets, allegedly defective porch swing, "malfunctioning bathroom fixtures," nor any of the other defects alleged by Murphy. Sweatt is unable to demonstrate any false or misleading representations in the advertisement, and the trial judge correctly refused to permit Sweatt to amend his complaint in this regard.
¶ 14. Sweatt also argues that he should have been permitted to join as a defendant Gloria Murphy, the mother of Paul, who, Sweatt argues, served as a real estate agent in the transaction. The record reveals, however, that the Sweatts did not even meet Gloria until the lease had already been agreed to, and it appears that Gloria merely served as a contact for Paul and Therese while Paul was studying in Sweden. Sweatt testified that:
Q: Isn't it true, sir, that she (Gloria) was represented as being a local contact, if you will, that you could in fact call or contact if any problem arose with regard to the house?
A: That's correct.
Q: There was no representation that she was to represent you or them in any way as far as being any kind of real estate agent toward putting this house on the market or anything like that, correct?
A: That's correct.
Q: And certainly she wasn't involved in renting the house to you, was she?
A: Not directly, no.
The trial court correctly refused to permit the joinder of Gloria Murphy as the real estate agent in the present lease transaction, and this point of error is without merit.
*213 VIII. Whether the damages awarded for breach of contract are grossly inadequate.
¶ 15. Sweatt sought to recover against the Murphys for a breach of the lease contract, based on the Murphys' alleged failure to repair various items on the property. The jury, however, only returned a verdict of $700, which constitutes the amount of the security deposit tendered by Sweatt. Sweatt argues that these contractual damages are "grossly inadequate."
¶ 16. The Murphys, however, disputed much of Sweatt's testimony regarding the defects which existed in the house, and it was for the jury to reach a determination on these issues. Moreover, the Sweatts only paid rent on the property for four months, and it was for the jury to determine the extent of damages, if any, which Sweatt incurred during this rather short lease period. Although a jury could conceivably have awarded some damages in addition to the return of the deposit, we conclude that there is insufficient basis for determining that the jury erred in assessing damages in the present case. The judgment of the trial court is affirmed.
¶ 17. JUDGMENT IS AFFIRMED.
SULLIVAN AND PITTMAN, P.JJ., BANKS, JAMES L. ROBERTS, Jr., SMITH, MILLS AND WALLER, JJ., CONCUR.
McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
McRAE, Justice, DISSENTING:
¶ 18. City building codes are enacted for the purpose of maintaining a specified level of quality in the construction and maintenance of buildings located within a municipality in the interest of promoting public health and safety. The provisions of the Mississippi Residential Landlord and Tenant Act, Miss.Code Ann. §§ 89-8-1 et seq. (Rev.1991 & Supp.1998), incorporates by reference the Gulfport Housing Code and should be applicable in the case sub judice. To find otherwise undermines the intents and purposes of the local ordinances as well as the state law. Accordingly, I dissent.
¶ 19. Given the applicability of the city code and the requirement that property owners/landlords comply with it as well as the Landlord and Tenant Act, there exists a question of whether there was a failure to inspect the swing, an appurtenance to the porch. At the very least, a failure to inspect would dictate the issuance of a jury instruction on negligence per se. See Hill v. London, Stetelman & Kirkwood, Inc., 906 F.2d 204, 209 (5th Cir.1990)(under Mississippi law, plaintiffs were entitled to a negligence per se instruction if defendant's failure to install a smoke detector was a violation of the city code, if they were members of the class the ordinance sought to protect and if the harm they suffered was the type the ordinance was intended to prevent). See also Wright v. United States, 866 F. Supp. 804, 806 (S.D.N.Y.1994)(considering discretionary function exception to Federal Tort Claims Act, failure to take steps to minimize risks of personal injury where feasible "is negligent and not within the discretionary function exemption....")
¶ 20. Where a tenant is injured as the result of some defect in the leased premises, we simply cannot disregard the provisions of either the Landlord and Tenant Act or any applicable city ordinances. Rather, if the landlord or building owner acted in violation of any applicable ordinance, the plaintiff if within the class the ordinance sought to protect, and the harm suffered was that which the ordinance was intended to prevent, a negligence per se instruction should be given.
¶ 21. For these reasons, I respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621461/ | 733 So. 2d 461 (1997)
Wade Allen HARTZOG
v.
STATE.
No. CR-96-1738.
Court of Criminal Appeals of Alabama.
November 14, 1997.
*462 Chris Capps, Dothan, for appellant.
Bill Pryor, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
BROWN, Judge.
The appellant, Wade Allen Hartzog, appeals from the circuit court's denial of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his 1995 conviction for first-degree possession of marijuana. The appellant's conviction was affirmed by this Court in an unpublished memorandum. Hartzog v. State, (CR-94-1546) 687 So. 2d 226 (Ala.Cr.App.1996) (table).
On August 27, 1997, the appellant filed the present Rule 32 petition, alleging (1) that his sentence was excessive; (2) that the trial judge made prejudicial statements that "tainted the fairness of the proceedings"; (3) that the state failed to establish exclusive possession of the controlled substance; (4) that he was the victim of selective prosecution; (5) that there was a material variance between the indictment and the evidence produced at trial; and (6) that he was denied the effective assistance of trial counsel. The appellant amended his petition to include allegations of ineffective assistance of appellate counsel. Specifically, he argued that appellate counsel was ineffective for failing to raise on direct appeal a claim of ineffective assistance of trial counsel.
In its response to the petition, the state argued that the claims were precluded from review because, it says, they either were, or could have been, raised at trial and on direct appeal. Rule 32.2(a)(2), (3), (4), and (5), Ala.R.Crim.P.
The court conducted an evidentiary hearing during which the appellant, represented by appointed counsel, presented evidence in support of his claims. The petition was denied after the hearing by a written order that stated: "Petition for Rule 32 denied." (C. 4, 143.)
The appellant maintains that the trial court erred in dismissing his petition without making specific findings of fact with regard to each claim presented in his petition.
Rule 32.9(d), Ala.R.Crim.P., requires that if an evidentiary hearing is conducted on a Rule 32 petition, "[t]he court shall make specific findings of fact relating to each material issue of fact presented." (Emphasis added.) Here, the trial court's order does not specify which of the many claims raised by the appellant were denied nor does it make any specific findings of fact with respect to any of these claims. "[A] statement of the basis of the trial court's decision is essential to afford the appellant due process." Owens v. State, 666 So. 2d 31, 32 (Ala.Cr.App. 1994).
Accordingly, we must remand this cause to the trial court and instruct that court to enter an order specifying its reasons for denying the petition, whether procedural or on the merits, with respect to each of the grounds raised in the petition. We note that the appellant's claims of ineffective assistance of trial counsel and the claims concerning the underlying trial issues are precluded from review by Rule 32.2(a)(3) and (5), Ala.R.Crim.P.[1]*463 Thus, the trial court need not reach the merits of these particular claims and should state in its order that they are precluded. Because the appellant's claims of ineffective assistance of appellate counsel are reviewable in the present petition, the trial court shall make specific findings of fact relating to the merits of these claims in its order.
The trial court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 60 days of the release of this opinion.
REMANDED WITH INSTRUCTIONS.[*]
All the Judges concur.
NOTES
[1] The appellant was convicted on May 5, 1995, before the Alabama Supreme Court overruled Ex parte Jackson, 598 So. 2d 895 (Ala.1992). See Ex parte Ingram, 675 So. 2d 863 (Ala.1996). The appellant had new counsel on appeal. His new counsel did not raise a claim of ineffective assistance of trial counsel in a motion for a new trial or on direct appeal. Thus, his claims of ineffective assistance of trial counsel were precluded by the provisions of Rule 32.2(a)(3) and (5), Ala. R.Crim.P., because they could have been raised at trial and on direct appeal, but were not. Alderman v. State, 647 So. 2d 28 (Ala.Cr. App.1994).
[*] Note from the reporter of decisions: On August 14, 1998, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On October 2, 1998, that court denied rehearing, without opinion. On April 23, 1999, the Supreme Court denied certiorari review, without opinion (1980081). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621489/ | 104 F. Supp. 245 (1952)
INTERSTATE COMMERCE COMMISSION
v.
YEARY TRANSFER CO., Inc.
No. 882.
United States District Court E. D. Kentucky.
April 3, 1952.
*246 Claude P. Stephens, U. S. Atty., Lexington, Ky., Gerald E. Jessup, Atlanta, Ga., Attorney, Interstate Commerce Com'n, for plaintiff.
Glenn F. Morgan, Washington, D. C., William Hays, Winchester, Ky., Robert H. Hays, Lexington, Ky., for defendant.
Charles W. Bucy, U. S. Dept. of Agriculture, Henry A. Cockrum, U. S. Dept. of Agriculture, Washington, D. C., for Secretary of Agriculture, amici curiæ.
H. CHURCH FORD, Chief Judge.
Under the provisions of sections 204a (6) and 222(b) of the Interstate Commerce Act, 49 U.S.C.A. §§ 304a (6) and 322(b), the Interstate Commerce Commission invokes the jurisdiction of this Court seeking a permanent injunction restraining the defendant, a common carrier, from transporting redried tobacco by motor vehicle in interstate commerce on public highways, for compensation, unless and until such time as there shall be in force, with respect to the defendant, a certificate of public convenience and necessity issued by the Interstate Commerce Commission authorizing such operation, as provided by section 206, chapter 8, Part II of the Interstate Commerce Act, 49 U.S.C.A. § 306.
The principal question for determination is presented by defendant's claim, asserted in defense of the action, that the redried tobacco involved in this case is an agricultural commodity, not a manufactured product thereof, and that, by § 203(b) (6) of chapter 8, Part II of the Interstate Commerce Act, 49 U.S.C.A. § 303(b) (6), (except in certain respects not here material) motor vehicles used and operated in the transportation thereof are excluded from the regulatory provisions which plaintiff here seeks to enforce. So far as here pertinent, section 203(b) (6) provides: "Nothing in this chapter * * * shall be construed to include * * * (6) motor vehicles used in carrying property consisting of * * * agricultural commodities (not including manufactured products thereof) * * *."
If defendant's contention in this respect be sustained, it will dispose of the case rendering it unnecessary to consider or determine any other issue.
Findings of Fact.
No evidence was introduced and the case is submitted upon facts set out in a stipulation filed by the parties which facts are adopted by the Court as its findings of fact and are incorporated herein by reference.
It appears from the stipulation that the word "redried" is a term customarily applied to leaf tobacco which has been handled in the manner and for the purpose set out in paragraph X of the stipulation as follows:
"The customary handling of redried leaf tobacco, including the shipments referred to in the complaint, is as follows:
"1. The grower delivers his leaf tobacco generally to the tobacco auction market at which point it is sold to large users of tobacco or to brokers.
"2. The tobacco is then taken to redrying plants where it is hung on sticks or hangers and slowly passed through a redrying chamber, a space of from 50 to 75 feet in distance in which the temperature is approximately 200 degrees (F.), by which practically all moisture is removed from the leaf. The normal moisture content before redrying is from 20 to 30%. The purpose of redrying leaf tobacco is to reduce moisture content and obtain uniform standardization of the moisture content in the tobacco leaf, and it speeds up the drying of tobacco which, in time, would take place by natural processes. There is no visible difference in the leaf tobacco which is about to be redried and that which has been redried.
"3. As a continuing process, the tobacco, after most of the moisture is removed as above noted, is then passed through another section of the chamber where moisture is restored under control to the extent *247 of from 11 to 15%. It is then immediately packed in hogsheads. The percentage of moisture replaced depends upon the kind of tobacco and what is to be done with it.
"4. At normal moisture content (without passing through the redrying chamber), packed tobacco will not keep for any appreciable length of time but will deteriorate. After redrying and a uniform moisture content established, it can be packed in hogsheads immediately and then can be shipped abroad or stored from two to three years or more until used in the making of tobacco products.
"5. The redrying machine is relatively expensive, costing from $35,000 to $75,000 depending upon the size. It may redry from 30,000 to 75,000 pounds of leaf tobacco per ten-hour day depending, of course, upon the size of the plant.
"6. Redrying plants are usually owned or operated by persons other than the growers of tobacco."
Conclusions of Law.
1. The rule of strict construction of exemptions upon which plaintiff relies should not be applied to the extent of requiring a result contrary to the clear intent of the law. Neither should the rule attributing great weight to contemporaneous administrative rulings be applied to require the Court to follow such rulings when they are found to be clearly wrong. Interstate Commerce Commission v. Service Trucking Co., 3 Cir., 186 F.2d 400; Interstate Commerce Commission v. Love, D.C., 77 F. Supp. 63, affirmed, 5 Cir., 172 F.2d 224.
2. The facts set out in paragraphs 7 and 8 of the stipulation and the exhibits attached thereto are insufficient to render the defense herein asserted by the defendant a collateral attack upon an order of the Commission or to preclude assertion of such defense in this action. Interstate Commerce Commission v. Dunn, 5 Cir., 166 F.2d 116.
3. In view of the facts as to the manner and purpose of the treatment of leaf tobacco customarily referred to as redrying, and the result of such treatment, I am of the opinion that, as a matter of law, redried tobacco is an agricultural commodity and not a manufactured product thereof, within the intent and meaning of section 203(b) (6) of the Interstate Commerce Act. Anheuser-Busch Brewing Association v. United States, 207 U.S. 556, 28 S. Ct. 204, 52 L. Ed. 336; American Fruit Growers, Inc., v. Brogdex Co., 283 U.S. 1, 51 S. Ct. 328, 75 L. Ed. 801.
4. Motor vehicles used by defendant in the transportation of redried tobacco (if not at the same time used in carrying any other property, or passengers, for compensation) are exempt from the provisions of Chapter 8, Part II of the Interstate Commerce Act, except as to qualifications, maximum hours of service of employees, safety of operation and standards of equipment.
5. For the reasons above indicated, this action should be dismissed.
Judgment will be entered accordingly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621523/ | 104 F.Supp. 162 (1952)
NEWELL
v.
O. A. NEWTON & SON CO. et al.
Civ. A. 1197.
United States District Court D. Delaware.
March 31, 1952.
*163 Thomas Cooch, of Morford, Bennethum, Marvel & Cooch, of Wilmington, Del. and K. Thomas Everngam of Denton, Md., for plaintiff.
Hugh M. Morris and George T. Coulson, of Morris, Steel, Nichols & Arsht, of Wilmington, Del., for defendants.
RODNEY, District Judge.
This is a motion for involuntary dismissal under Rule 41 (b), Federal Rules of Civil Procedure, 28 U.S.C. The action is for damages and injunctive relief growing out of alleged unfair competition. Jurisdiction in this court is founded on diversity of citizenship and the amount in controversy is in excess of $3,000.
The following are undisputed facts.
George A. Newell, the plaintiff, was at the time of the alleged acts owner of a small machine shop in Hurlock, Md.
The defendant, O. A. Newton & Son Company (hereinafter referred to as Newton), is a corporation of the State of Delaware dealing with agricultural and poultry products and farm machinery, mostly in Kent and Sussex Counties, Delaware and the Eastern Shore of Maryland, with its main office in Bridgeville, Delaware.
The defendant, Kenneth Baker (hereinafter referred to as Baker), at the time of the alleged acts, was sales manager for Newton, and has had considerable experience and education along agricultural lines.
The gravamen of the offense charged is that through confidential information supplied by Newell, Newton built and placed upon the market a light conveyor similar in a great many respects to that sold and built by Newell.
In the summer of 1948 Newell completed his conveyor and called it a "chicken house manure and carry-all conveyor." Upon its completion Newell telephoned Baker to come down to Hurlock as they "had something to show him." Baker arrived later the same day and there ensued a discussion as to exhibiting the conveyor with the Newton exhibit at the Harrington Fair which opened to the general public on Tuesday, July 27, 1948, and it was so exhibited.
From this point on the facts are in some dispute.
At the time of the aforementioned meeting some oral agreement was reached in respect to the sale of the conveyors manufactured by Newell. Newton was to receive a seven and one-half per cent "commission"[1] on all sales made by him of the chicken house manure and carry-all conveyors. There is no evidence that Newton should have an exclusive sales contract; indeed, what evidence there is of the understanding is to the contrary.
Under the agreement and by subsequent orders Newell produced ten conveyors which were billed to Newton and then sold by Newton to various purchasers. The evidence is not entirely clear as to whether the sales made by Newton were as a result of the showing at the Harrington Fair or by subsequent sales promotion.
During this contract performance the testimony shows that all but two of the conveyors were delivered directly to Newton. Newell testified also that it was no concern of his who bought the conveyors from Newton. Further testimony shows he knew nothing concerning payment by these third persons to Newton, but Newton was always "very prompt in sending checks." *164 Newton's records show that checks were sent in all but two cases on the day of receipt by Newton of Newell's bill.
The contract between Newell and Newton was formally terminated by a letter of September 21, 1948, from Newton to Newell.[2]
On February 3, 1949, Newell was put on notice that a conveyor similar to his own was being built by the Delaware, Aircraft Industries, Inc. of Greenwood, Delaware. Newell that day drove to Greenwood and inspected the conveyors of that plant which were in various stages of completion. In his own words "they are practically mine." On the following day Newell, with his attorney, went to Newton's office in Bridgeville. From the conversation there had with Baker, Newell was informed of contracts let by Newton to Delaware Aircraft Industries for the construction of some twenty-five conveyors, some of which Newell had seen on the previous day. These contracts between Newton and Delaware Aircraft Industries had been entered into sometime in the fall or winter of 1948 after the termination of the Newell-Newton contract.
On March 9, 1949, the complaint was filed in this case. The plaintiff claims:
(1) That he was first in the field of conveyors especially adapted for the removal of chicken house manure due to the narrow width of the chicken house door, effect of manure on certain types of chains and belts, and the maneuverability by one person.
(2) By reason of the above, the design and machine had novelty which created a property right in the plaintiff and which should be protected as a trade secret when revealed in confidence or under circumstances which create a relation of trust and confidence.
(3) The relationship of plaintiff and defendant was one which necessitated rudimentary requirements of good faith.
(4) The defendants copied the design of the plaintiff's conveyor in violation of the confidence reposed and are thereby guilty of unfair competition.
The defendants assert:
(1) That no trade secret was revealed to the defendants by the plaintiff since there was prior disclosure to the general public.
(2) Unless barred by well-known equitable principles, any person may manufacture and sell an unpatented article that has been previously manufactured by another without being guilty of unfair competition, even though in all essential features that one article is an exact simulacrum.
(3) Relationship between plaintiff and defendants was one of seller and purchaser not that of principal and agent.
*165 (4) There was no confidential relationship from which there can be inferred a promise by the defendants not to compete with the plaintiff in the manufacture and production of a conveyor similar to that of plaintiff's.
The doctrine of unfair competition is founded upon the principles of common business integrity. A court of equity will always protect one's trade secret when a disclosure in confidence is followed by a use which is in direct violation of the confidence in which it is disclosed.
The elements which are necessary to sustain this kind of action include: (1) the plaintiff must have a species of property in the invention, process, trade secret or discovery; (2) there must be a disclosure of that trade secret, or similar matter, to another in confidence or by virtue of a relationship of a nature from which there may appear or be implied a covenant not to use or disclose the information so secretly or confidentially imparted; and (3) a use or disclosure of the information in violation of the obligation thus incurred.
A proper application of the facts of this case to the contentions of the parties indicates that there are here involved two main questions for consideration which, while seemingly somewhat separate, yet are to some extent interdependent. These are: (1) the existence in the plaintiff of some information or knowledge in the nature of a trade secret; and (2) the unauthorized use or disclosure of that information under circumstances rendering such use or disclosure a breach of good faith.
"A trade secret may consist of any formula, patent, device, plan, or compilation of information which may be used in one's business and which gives a person an opportunity over his competitor."[3]
In connection with a discussion of a trade secret there are here presented certain principles which seem somewhat inharmonious but which seem readily reconcilable. These would include the application of the principles of unfair competition to the manufacture of an unpatented article by one person after such unpatented article had previously been manufactured and disclosed by another. In this case I am not concerned with any patent upon the machine here involved. It is true that the plaintiff made application for and subsequently received a patent for the machine in question, but both the application and the subsequent issue of the patent were of dates subsequent to all of the times material in the present case. Insofar as this case is concerned, the issues involve an unpatented article.
In this Circuit Judge Gray said,[4] "a person may manufacture and sell an unpatented article that has been previously manufactured by another, without being guilty of unfair competition, even though in all essential features the one article is an exact simulacrum of the other."
To the same effect is Raenore Novelties v. Superb Stitching Co., Sup., 47 N.Y.S.2d 831, and cases there cited. This principle seems supported by all the authorities when disassociated from the principle of confidential relationship. Indeed, I think the likeness between the two articles mentioned in Rice v. Redlich may be more exact than that which is indicated by the word "simulacrum," some of the definitions of which include an unreal resemblance. The resemblance may be a very real one.
It seems quite clear that while a trade secret may involve such novelty as is required for patentability and a trade secret, to be protected, must contain some element of value or usefulness, yet a trade secret need not contain such novelty as would make it patentable. The protection given to a trade secret is independent of the patent laws and covers not the invention itself, but the secrecy of the information under the given set of circumstances.
Consideration of the existence of a trade secret in this case must involve a number of elements, among which is the *166 element of secrecy itself. A trade secret must, in its very nature and from its very definition, involve to some degree an element of secrecy. Matters of public or general knowledge cannot form the basis of a trade secret. "Matters which are completely disclosed by the goods which one markets cannot be his secret."[5]
The defendants contend that the manufacture and exhibition of the machine of the plaintiff was a public disclosure of all the matters connected with it and, since it was visible to anyone who viewed it, hence there could have existed no trade secret. This element of secrecy is comparative in nature and dependent upon the facts. The protection begins and ends with the life of the secrecy and the secrecy to be protected depends upon the degree of public knowledge.
The acts of the plaintiff as affecting the disclosure and as relating to the required secrecy in this case must be considered with relation to two distinct dates of disclosure: (a) during the manufacture and completion of the machine in the machine shop at Hurlock, Maryland, and (b) the exhibition of the completed and unpatented machine at the Harrington Fair.
(a) Prior to July, 1948, and prior to any connection of the defendants with the machine in question or any knowledge on their part of its existence it was being manufactured in a small shop in a small village (Hurlock) in a rural county of Maryland. It was being worked on openly in the shop and could be seen by anyone who entered. Indeed, two witnesses saw it being manufactured. I do not think, however, that the conduct of the plaintiff in his shop at Hurlock was such a disclosure as would have prevented the application of the principle of secrecy as constituting a trade secret if such principles depended upon that act alone. There is no evidence that the machine being constructed was seen by anyone competent to evaluate its structure or parts and it would appear that a sufficiently substantial element of secrecy existed.
(b) The exhibition of the machine at the Harrington Fair was a different matter. There the completed machine was publicly displayed with all the completed parts. The exhibition was either at the request of the plaintiff or with his knowledge and approval. The machine was exhibited with the intention that it should be seen by everyone who had special knowledge of such machines and of the peculiar and valuable characteristics connected therewith. The disclosure of the characteristics of this unpatented machine, then, was more complete after its exhibition at the Harrington Fair.
It is unnecessary to consider the effect of the disclosure resultant from the exhibition of the machine at the Harrington Fair. After that disclosure it is possible that there is a distinction between the rights of the plaintiff against the public at large obtaining their knowledge from that disclosure as contrasted against the rights of the plaintiff against a party who antecedently obtained his knowledge under a confidential relationship not to use or divulge the trade secret inherent in the machine. Most of the cases collected in the annotation in 170 A. L.R. 449, 486, hold there is such distinction, but in Carver v. Harr, 132 N.J.Eq. 207, 27 A.2d 895, it is intimated that even if the defendants were originally under an implied obligation not to use the complainant's invention for their own purposes, the obligation was ended when the complainants disclosed the secret to a considerable number of persons. In any event, the distinction, if existing, depends upon the existence of a confidential relationship between the parties and, as indicated in Du Pont de Nemours Powder Co. v. Masland, 244 U.S. 100, 37 S.Ct. 575, 61 L.Ed. 1016, this must be the starting point.
The plaintiff, while contending that the relationship between the parties was that of principal and agent, yet does not rely upon that relationship alone, but contends that generally the relationship was one in which were required "the rudimentary requirements of good faith."
The defendants deny any confidential relationship of any kind and contend that at the most the relationship was that of buyer *167 and seller, from which no promise not to compete may be inferred.
The plaintiff relies heavily upon International Industries, Inc., v. Warren Petroleum Corp., D.C.Del.1951, 99 F.Supp. 907, but that case seems clearly distinguishable upon the facts. In the cited case both the plaintiff and defendant were interested in the water transportation of liquified petroleum gas. The defendant seems to have been interested in converted tankers as a means of transportation, while the plaintiff was developing the use of dry cargo ships by the installation of vertical tanks which had not theretofore been so used. The plaintiff sent to the defendant an economic study of the various elements to be considered in connection with the desired transportation of liquified petroleum gas. This economic study was acknowledged by the defendant, which stated, "The information you have given us is very interesting and of value, and we are trying to work some ideas out on terminal facilities." Subsequently, the plaintiff had plans prepared by a naval architect at a cost of over $40,000 and adapting vertical tanks into dry cargo ships. These plans were furnished by the plaintiff to the defendant. Subsequently, at a later meeting of all the parties, these plans were again presented, examined and explained and left for a time with the defendant and its associates. After seeing and considering the plans, the defendant stated that it was not interested in the subject matter of the discussion. The defendant, however, soon thereafter converted a dry cargo vessel for the transportation of liquified petroleum gas involving vertical tanks and the design of which vessel was found to be basically similar to the plans of the plaintiff theretofore furnished by the plaintiff to the defendant.
Under these circumstances, the court held that the information and plans of the plaintiff, developed while the parties were working out a matter of mutual interest, and which plans were furnished to the defendant, were charged with the relationship of trust and confidence, and could not be appropriated by the defendant in breach of that relationship.
In the present case the defendant was entirely without knowledge of the plaintiff's machine until it was completed and ready for the market. It was the plaintiff who desired the defendant to market the machine and that seems to have been the sole purpose of the first interview. The defendant was to contribute nothing to the marketing of the machine but its sales organization and promotion efforts and for these was to obtain a fixed sum.
The plaintiff has alleged a confidential relationship between the parties, but I find no facts upon which such relationship can be based. The plaintiff has attempted to show that the defendant was the plaintiff's agent, but the facts and applicable law do not sustain that position.
Newton placed only two orders with Newell, one on August 2, 1948, for nine conveyors and the other on August 10, 1948, for one conveyor. It would appear that at least the first order was as a result of the exhibition at the Harrington Fair during the week of July 26, 1948. In all but one case the payment made by the customer to Newton was subsequent by times varying from one to 92 days to payment by Newton to Newell. Newell had no control over the sale of the conveyor to Newton's customer. On this point Mechem on Sales is particularly applicable:
"Sec. 43. Sale as distinguished from agency to sell or consignment The essence of sale is * * * the transfer of the title to the goods for a price paid or to be paid. Such a transfer puts the transferee, who has procured the goods to sell again, in the attitude of an owner selling his own goods, and makes him liable to the first seller as a debtor for the price, and not, as an agent, for the proceeds of the resale. The essence of the agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principal, who remains owner of the goods and who therefore has the right to control the sale, to recall the goods, and to demand and receive their proceeds when sold, less the agent's commission, but *168 who has no right to a price for them before sale or unless sold by the agent." Mechem, Sales, Vol. 1, pp. 40, 41, Sec. 43.
I conclude that Newton was a resale dealer receiving seven and one-half per cent discount on all sales made by him. There are no other facts to characterize the arrangement as an agency. Beyond the fact that the defendant was a re-sale dealer for a specific discount I can find no facts that would make the relationship a confidential one.
A discussion as to proper parties to the action or other issues seems unnecessary since it is found that there was no confidential relationship between the parties.
Separate findings of fact and conclusions of law are filed herewith.
An appropriate order may be submitted.
NOTES
[1] This "commission" has been variously referred to in the transcript and briefs as "discount," "percentage" or "commission."
[2] "September 21, 1948
"Mr. George Newell
Hurlock, Maryland
"Dear George:
"We have been giving careful consideration to the possible continuation of purchasing conveyors from you.
"You may recall that prior to the time of the Harrington Fair this year, I agreed to have you exhibit one of the Model A Conveyors with our exhibit and with the understanding that we would receive 7½% on all sales made at that time. I also mentioned to you both in our initial conversations at the Fair and since that time that we could not possibly continue to handle these conveyors with such a small margin. However, you do not feel it advisable to make any change and also advised me that the cost of the conveyors will be increased $25.00.
"After consideration of these factors we do not feel that we can continue to serve as a retail outlet and therefore am writing this letter to give you this information for the record. You stated on several occasions that if we did not care to handle them on a 7½% basis that you had numerous other people that had been asking for this privilege, therefore, I assume this will not create any hardship on your part.
"I regret that it is impossible for us to continue on the 7½% basis but want to take this opportunity to express our appreciation for the opportunity of working with both you and Melvin. It has been a real pleasure to work with you and I trust that we may be able to conduct other lines of business together in the future.
"Very truly yours,
/s/ O. A. Newton & Son Co.
Kenneth W. Baker,
Sales Mgr."
[3] International Industries v. Warren Petroleum Corporation, D.C., 99 F.Supp. 907, 914; Restatement of Torts, Sec. 757(b).
[4] John H. Rice & Co. v. Redlich Mfg. Co., 3 Cir., 202 F. 155, 157.
[5] Restatement of Law of Torts, Vol. 4, p. 6, Sec. 757b. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621524/ | 733 So.2d 674 (1999)
STATE of Louisiana
v.
Shawn S. PIERRE.
No. 98-KA-1123.
Court of Appeal of Louisiana, Fifth Circuit.
April 14, 1999.
*675 Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, Louisiana, Attorney for Appellant, Shawn S. Pierre.
Paul D. Connick, Jr., District Attorney, Alison Wallis, Allison Monahan, Assistant District Attorneys, Twenty-Fourth Judicial District Court, Gretna, Louisiana, Attorneys for Appellee, State of Louisiana.
Panel composed of Judges CHARLES GRISBAUM, Jr., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
CHEHARDY, Judge.
On January 20, 1998, the Jefferson Parish District Attorney filed a bill of information charging defendant, Shawn S. Pierre, with two counts of aggravated burglary, in violation of La. R.S. 14:60. At his arraignment on March 13, 1998, defendant plead not guilty. A judge trial was held on July 21, 1998. Upon conclusion of trial, the trial court found defendant guilty as charged on both counts. On July 31, 1998, the trial court sentenced defendant to ten years at hard labor on each count to be served concurrent with each other and concurrent with a sentence defendant was already serving. This appeal followed.
This case arises out of an altercation between defendant, Shawn Pierre, and his ex-girlfriend, Wanda Smith. In the early morning hours of December 26, 1997, Wanda Smith and Alfred Frederick were in Ms. Smith's apartment when defendant began knocking on the front door. Ms. Smith knew that defendant would be upset if he encountered Mr. Frederick in her apartment, and she did not open the door. However, defendant eventually kicked in her door and discovered Mr. Frederick, and commenced a fight with Mr. Frederick. Defendant then went into the kitchen, apparently to arm himself with a knife. While defendant was in the kitchen, Ms. Smith and Mr. Frederick fled the apartment. Ms. Smith ran next door to the apartment of her friend, Wanda Williams.
Defendant chased Ms. Smith into Ms. Williams' apartment while armed with the knife. Ms. Williams and her brother, who also lived there, attempted to keep defendant from entering, but defendant forced his way in. Once inside the apartment, defendant began to beat Ms. Smith. Ms. Williams' brother attempted to stop defendant from beating Ms. Smith, but retreated when defendant threatened him with the knife. Defendant continued to severely beat and kick Ms. Smith for several minutes, until he grew tired and left. During the encounter, several calls to 911 were placed, and upon arrival, the police arrested defendant at the scene.
At the conclusion of the July 21, 1998 trial, the trial court made the following remarks on the record:
It's apparent to the Court that the only witness who was not uncomfortable about testifying was Wanda Williams. *676 The other three witnesses were, at best, reluctant witnesses.[1]
The Court's also satisfied that the entries into ... apartment 229 belonging to Wanda Smith and 228 belonging to Wanda Williams were unauthorized. The evidence both direct and circumstantial indicates that when the defendant entered Wanda Smith's apartment, apartment 229, he committed a battery upon Alfred Frederick and at some point in time, armed himself while he was in that apartment.
When he entered the second apartment, apartment 228 belonging to Wanda Williams, he came in armed, which was testified to by two witnesses and he committed a severe battery upon Wanda Smith. It's apparent from the battery that he inflicted upon Wanda Smith, that that was his intention when he broke down the door of apartment 229.
The Court finds the defendant guilty on both counts.
In defendant's first assignment of error, he argues that the verdict was contrary to the law and evidence; making essentially an insufficiency of evidence claim. The constitutional standard for testing the sufficiency of evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Rosiere, 488 So.2d 965 (La.1986).
The crime of aggravated burglary is defined in La. R.S. 14:60, which provides in pertinent part:
Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.
In the present case, defendant admits that he entered both apartments without authorization. Therefore, the issue is whether the state put on sufficient evidence to support a finding that the remaining two elements of aggravated burglary were met. The second element to be proven by the state under La. R.S. 14:60 is that the offender had the intent to commit a felony or theft at the time of the unauthorized entry. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, cert. denied, ___ U.S. ___, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Lockhart, 438 So.2d 1089 (La.1983). In Lockhart, the Louisiana Supreme Court held that the state must prove intent as a distinct element of the crime of aggravated burglary, and further noted that the intent required is specific intent.
Specific criminal intent exists when the defendant "actively desired the prescribed criminal consequences to follow his act...." La. R.S. 14:10; State v. Page, 96-227 (La.App. 5 Cir.8/28/96), 680 So.2d 104, writ denied, 96-2543 (La.9/19/97), 701 So.2d 153. Specific intent is a state of mind and, as such, need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. State v. Graham, 420 So.2d 1126 (La.1982). The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of the correctness of this determination is to be guided by the Jackson standard. State v. Huizar, 414 So.2d 741 (La.1982).
*677 In the present case, as there was no evidence presented that defendant intended to commit a theft in either apartment, the issue is whether the state put on sufficient evidence to support a finding that defendant intended to commit a felony when he entered the apartments. At trial, Mr. Frederick testified that upon kicking in the door to Ms. Smith's apartment, defendant punched Mr. Frederick while searching for Ms. Smith. Defendant then went into the kitchen and Ms. Smith ran to Ms. Williams' apartment. Defendant forced his way into Ms. Williams' apartment while armed with a knife, and thereafter severely beat Ms. Smith. Although the beating did not occur in Ms. Smith's apartment, it is clear from the record that the trial court found that, based on the severity of the beating, defendant intended to beat Ms. Smith when he entered her apartment.
In finding defendant guilty on both counts, it is apparent that the trial court found that defendant intended to commit a second degree battery, a felony, on Ms. Smith when he entered her apartment, and did, in fact, commit a second degree battery when he caught her in Ms. Williams' apartment. Second degree battery is defined in La. R.S. 14:34.1, which states in part that:
Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
In the present case, there is no question that defendant committed a second degree battery upon Ms. Smith. The witnesses testified that defendant punched Ms. Smith, knocked her to the ground and kicked her for several minutes, until he grew tired and left. Ms. Williams testified that the day after the beating, Ms. Smith's eye was swollen shut. Viewing the evidence in the light most favorable to the prosecution, based on the force defendant used to enter both apartments and the severity of the beating he inflicted upon Ms. Smith once he caught her, we find that the trial court was presented with sufficient evidence at trial that defendant had the specific intent to commit a felony when entering both Ms. Smith's apartment and Ms. Williams' apartment. See State v. Accardo, 466 So.2d 549 (La.App. 5 Cir. 1985), writ denied, 468 So.2d 1204 (La. 1985).
The final element of aggravated burglary pursuant to La. R.S. 14:60 is that the offender: (1) is armed with a dangerous weapon, (2) after entering arms himself with a dangerous weapon, or (3) commits a battery upon any person while in such place, or in entering or leaving such place. In this case, there was testimony at trial that defendant armed himself with a knife while in Ms. Smith's apartment. While no witness testified that they saw defendant grab a knife from Ms. Smith's kitchen, the testimony was undisputed that when defendant kicked in Ms. Smith's door and encountered Mr. Frederick, he was not holding a knife. However, after fighting with Mr. Frederick, defendant went into Ms. Smith's kitchen and Mr. Frederick and Ms. Smith fled her apartment. When defendant forced his way into Ms. Williams' apartment seconds later, he was armed with a knife. The same knife was found on the kitchen counter in Ms. Smith's apartment after defendant was arrested. Viewing the evidence in the light most favorable to the prosecution, we find that the trial court was presented with sufficient evidence at trial to support a finding that defendant either had the knife when he broke into Ms. Smith's apartment or armed himself with the knife while in that apartment.
Moreover, affirming defendant's conviction on the first count of aggravated burglary *678 in this case does not rest solely on defendant arming himself in Ms. Smith's apartment.[2] Mr. Frederick and Ms. Smith both testified that defendant attacked Mr. Frederick while in Ms. Smith's apartment. The trial court found that defendant committed a battery on Mr. Frederick while in Ms. Smith's apartment. Viewing the evidence in the light most favorable to the prosecution, even if the evidence was not sufficient to support a finding that defendant armed himself with a dangerous weapon while in Ms. Smith's apartment, there was sufficient evidence presented at trial to support a finding that defendant committed a battery on Mr. Frederick while in Ms. Smith's apartment, thereby satisfying the final element of aggravated burglary for that count.
Based on the foregoing, after a thorough review of the record, we find that defendant's conviction of two counts of aggravated burglary is based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt.
In defendant's second assignment of error, he claims that the sentence imposed by the trial court was excessive. The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739 (La. 1992). Once imposed, a sentence will not be set aside absent manifest abuse of the trial court's wide discretion to sentence within statutory limits. State v. Carter, 96-358 (La.App. 5 Cir.11/26/96), 685 So.2d 346. For a conviction of aggravated burglary, a defendant may be sentenced to hard labor from one to thirty years. La. R.S. 14:60.
Upon review, there is ample evidence in the record before us to support a finding that defendant's sentence is not constitutionally excessive. The record contains a copy of defendant's criminal history, which reflects prior convictions for unauthorized entry of an inhabited dwelling and simple battery. In addition to defendant's criminal past, the circumstances of defendant's crime support a finding that defendant's sentence was not excessive. In this case, defendant kicked in Ms. Smith's door in order to beat her. Defendant also armed himself with a knife, forced his way into a neighbor's apartment, and used the knife to hold attempted rescuers at bay so that he could continue to beat and kick Ms. Smith, an attack which lasted several minutes. Pursuant to the statutory range within the trial court's discretion, defendant could have received a sentence of thirty years, three times what he received. Accordingly, we find that defendant's ten year sentence on each conviction of aggravated burglary, to run concurrently with each other and with a sentence defendant is already serving, is not constitutionally excessive.
Finally, pursuant to La.C.Cr.P. art. 920, the record was reviewed for errors patent. Article I, § 17 of the Louisiana Constitution provides that in a case in which the punishment is necessarily confinement at hard labor, as is this one, the defendant shall be tried before a jury of twelve. La.C.Cr.P. art. 780 requires that a defendant be advised of his right to a jury trial, and further provides that a defendant, once he has been so informed, may "knowingly and intelligently" waive his right to a trial by jury. Waiver of the right to a trial by jury is never presumed. State v. McCarroll, 337 So.2d 475 (La. 1976).
Where no valid jury waiver is found in the record, Louisiana appellate *679 courts have traditionally set aside the defendant's conviction and remanded for a new trial. State v. Williams, 404 So.2d 954 (La.1981); State v. Miller, 517 So.2d 1113 (La.App. 5 Cir.1987), writ denied, 523 So.2d 1335 (La.1988). However, in more recent decisions, the preferred procedure is to remand the case to the trial court for an evidentiary hearing on the issue of whether a valid jury waiver was obtained. State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963; State v. Stoltz, 98-235 (La.App. 5 Cir.8/25/98), 717 So.2d 1243; State v. James, 94-720 (La.App. 5 Cir.5/30/95), 656 So.2d 746, State v. Brual, 98-657 (La.App. 5 Cir.1/26/99), 726 So.2d 1112.
In the instant case, the only evidence of a jury waiver in the record is a statement by defense counsel just prior to opening statements at trial that "we're going to waive the jury, Your Honor." We find that this statement by defense counsel, on its own, is not a valid waiver of defendant's constitutional right to a trial by jury. We will therefore remand this case to the trial court for an evidentiary hearing on the question of whether defendant validly waived his right to a jury trial through counsel in open court and in defendant's presence before trial. If the evidence shows that defendant did not make a valid waiver of his right to a jury trial, the trial court must set aside his conviction and sentence and grant him a new trial. Defendant may appeal from any adverse ruling on the waiver issue. See State v. Nanlal, supra, 701 So.2d at 963, and the cases cited therein.
Additionally, pursuant to La.C.Cr.P. art. 930.8 C, at the time of sentencing, the trial court must inform the defendant of the prescriptive period for post conviction relief. In the present case, the trial court failed to so inform defendant. Accordingly, if the trial court finds after the evidentiary hearing that defendant validly waived his right to a trial by jury, we order the trial court to inform defendant of the provisions of La.C.Cr.P. art. 930.8 C by sending appropriate written notice to defendant within ten days of the finding of a valid jury trial waiver and to file written proof that defendant received the notice in the record of these proceedings. State v. Kershaw, 94-141 (La.App. 5 Cir.9/14/94), 643 So.2d 1289.
For the foregoing reasons, we conditionally affirm defendant's conviction and sentence on the two counts of violating La. R.S. 14:60, aggravated burglary. The matter is remanded to the trial court for an evidentiary hearing on the issue of whether defendant validly waived his right to a trial by jury. If the trial court finds that a jury trial was validly waived, the trial court is ordered to inform defendant of the provisions of La.C.Cr.P. art. 930.8 C by sending appropriate written notice to the defendant within ten days of the finding of a valid jury trial waiver and to file written proof that defendant received the notice in the record of these proceedings.
CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; REMANDED WITH INSTRUCTIONS.
NOTES
[1] There was testimony at trial that Ms. Smith and defendant had apparently reconciled and that, despite what happened to her, Ms. Smith no longer wanted to pursue criminal charges against defendant.
[2] Clearly, there was ample evidence to show that defendant was armed when he entered Ms. Williams' apartment, which suffices to prove the third element of armed robbery for the second count. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621472/ | 733 So. 2d 102 (1999)
Calvin THOMAS, Plaintiff-Appellant,
v.
EVANGELINE PARISH SCHOOL BOARD, Defendant-Appellee.
No. 98-1458.
Court of Appeal of Louisiana, Third Circuit.
March 24, 1999.
Writ Denied June 4, 1999.
*103 James Isaac Funderburk, Abbeville, for Calvin Thomas.
Daniel G. Brenner, Alexandria, for Evangeline Parish School Board.
Before: DOUCET, C.J., THIBODEAUX, and WOODARD, JJ.
DOUCET, Chief Judge.
The Plaintiff-Appellant, Calvin Thomas, appeals the trial court's judgment upholding the Evangeline Parish School Board's decision to terminate his employment as a school janitor. We reverse the decision of the trial court.
PROCEEDINGS IN THE TRIAL COURT
In his Reasons for Judgment, the trial judge outlined the basic facts of the case as follows:
The plaintiff was a full time non-tenured janitor at the ACE School in Evangeline Parish and was also used as a relief bus driver at the school. Thomas was discharged from his duties as janitor on August 2, 1995 by the School Board at its regular meeting. On or about July 22, 1996 Thomas filed a Petition for Declaratory Judgment and writ of Mandamus against the Evangeline Parish School Board seeking reinstatement. Thomas alleges the Board violated the provisions of their procedures for separation of employees in firing him. In this petition Thomas alleges that the Board failed to follow their procedures in the following respects:
a) failing to provide plaintiff with a copy of the recommendation of his principal or department head;
b) failing to provide plaintiff with an opportunity to resign or retire;
c.) to provide plaintiff with a copy of the written recommendation of the superintendent or designee as required[.]
The trial judge went on to discuss the law and jurisprudence applicable to the case, stating:
The Louisiana Constitution provides for the creation and recommendation of parish school boards but does so subject to the power of the Legislature to enact laws affecting them. By enacting Louisiana Revised Statutes 17:81.5, the Legislature removed non-tenured school employees from the category of "at will" employees. This legislation, in effect, limited the authority of school boards to hire and fire non-tenured, non-teaching personnel without regard to the rights of the employees so affected.
*104 The Louisiana Constitution and the Legislature entrust the administration of the school system to the Parish School boards and not to the courts. The School Board is vested with broad discretion in the administration of the school system, nevertheless, due process requires judicial review to insure that the school boards do not abuse this discretion. But that review is limited, and where there is a rational basis, which is supported by substantial evidence for the School Board's discretionary determination, the Courts cannot and should not substitute their judgment for that of the School Board. Myres v. Orleans Parish School Board, 423 So. 2d 1303 [(La.App. 4 Cir.1982)], writ denied, 430 So. 2d 657 [(La.1983)].
The Court finds that the School Bus driver tenure act does not apply to the part time lunch route which Mr. Thomas had. Mr. Thomas is not, therefore, entitled to the procedural mandates of R.S. 17:492. The procedures which the Board was required to follow in terminating Mr. Thomas [were] its "Procedures for Separation of Employees."
Pursuant to Louisiana Revised Statute 17:91.5 the Evangeline Parish School Board adopted "Procedures for Separation of Employees" which reads as follows:
"PROCEDURES FOR SEPARATION OF EMPLOYEES"
With the exception of lay-offs caused by programmatic changes, budget cuts, staff reorganizations and/or reductions in force, no school board employee shall be dismissed without just cause. Dismissal of tenured or contracted employees shall be handled in accordance with the requirements of Louisiana Law and as outlined in the Evangeline Parish Personnel Assessment Plan, reviewed annually. Dismissal of non-tenured employees shall be accomplished in accordance with the following procedure:
1. The employee's immediate supervisor or other person recommending his dismissal shall discuss the reasons therefore with the principal of the school where the employee works or, if the employee is not housed at a particular school, with the department head under whom the employee works (i.e. director of maintenance, director of transportation, director of finance, etc.).
2. If the principal or department head feels that dismissal is appropriate then he shall make a written recommendation to the superintendent or his designee outlining the reasons for the recommendation. The employee shall be provided a copy of such recommendation.
3. The superintendent or his designee shall thereafter conduct a conference with the principal or department head, the employee, and the employee's immediate supervisor (if other than principal or department head). Those recommending the dismissal of the employee shall be asked therein to explain their reasons for such recommendation, and the employee shall be given the opportunity to rebut those reasons and/or to explain his position. The conference may be recessed if the superintendent or his designee feels that additional information is needed before a decision can be made.
4. If, after considering the information presented in the conference and other information considered important, the superintendent or his designee feels that dismissal is appropriate, then the employee shall be advised of that staff-level determination and shall be given the opportunity to resign and/or retire.
*105 5. If the employee does not exercise his opportunity to resign and/or retire, then the superintendent or his designee shall make a written recommendation of dismissal to the school board. The recommendation shall outline the reasons, therefore, and a copy of it shall be provided to the employee.
6. The School Board will be asked to act upon the recommended dismissal at the next meeting following receipt of such written recommendation.
7. A non-tenured employee who has been recommended to the board for dismissal shall not be entitled to a hearing before the board unless a majority of the members vote to afford one.
All policies, procedures, regulations, etc., previously adopted by the board which are in conflict with the provisions of this policy are hereby repealed.
There is no doubt that the School Board has technically failed to comply with its own procedure for separation of employees. The School Board argues that it has substantially complied therewith. For a number of years Mr. Thomas has been apprised of and called on the carpet for his failure to perform his attendant duties and for willful disobedience. He has continually been skating on the edge, refusing to cure these deficiencies, apparently relying upon the School Board issuing yet another reprimand of which he has had many. He has been counseled concerning these matters on [many] occasions. There was certainly a rational basis for the Board's action in firing this individual as it was supported by substantial evidence of the employee's actions and inactions. They actually had ample reason to discharge him long ago but continued to work with him to try to make a good employee of him. Although he has brought this all on himself he now seeks to avoid the consequences of his actions and inactions because of a technicality i.e. failure of the Board to comply with its "Procedures for Separation of Employees".
While there is no doubt the School Board did not strictly comply with its procedures for separation, the Court here finds substantial compliance. The failure to follow procedure to the letter did not adversely affect the plaintiff as the outcome was not in doubt. No employer can allow an employee to show complete disdain for the orders and duties required of him by his supervisors, continually reprimand and try to rehabilitate him and allow him to continue to flaunt their orders.
Clearly the plaintiff should have known when he received notice of the School Board meeting that suspension and/or termination was one of the things that would be addressed. This is borne out by the fact he attended the meeting with his union representative.
LAW
The law regarding the standard of appellate review is well settled:
A court of appeal may not set aside a trial court's or a jury's finding of fact in absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So. 2d 840 (La.1989); Stobart v. State, Through DOTD, 617 So. 2d 880 (La. 1993). The appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one, after reviewing the record in its entirety. Mart v. Hill, 505 So. 2d 1120 (La. 1987); Rosell, 549 So. 2d 840; Stobart, 617 So. 2d 880. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978). The trier of fact *106 may choose to reject all of the testimony of any witness or may believe and accept any part or parts of a witness' testimony and refuse to accept any other part or parts thereof. LaHaye v. Allstate Ins. Co., 570 So. 2d 460 (La.App. 3 Cir.1990).
Tubre v. State, Dept. of Transp. and Dev., 96-1194, p. 3 (La.App. 3 Cir. 4/2/97); 693 So. 2d 1190, 1192, writs denied, 97-1913 (La. 11/21/97); 703 So. 2d 1307, 97-1916 (La.11/21/97); 703 So. 2d 1307.
In this case, the Plaintiff is protected by La.R.S. 17:81.5, which provides as follows:
Not later than January 1, 1988, each city and parish school board shall develop and adopt rules and policies which it shall use in dismissing school employees who have not attained tenure in accordance with applicable provisions of law and whose dismissal is not a result of a reduction in force, as provided for in R.S. 17:81.4. The school board shall provide a procedure by which any employee, whose dismissal is governed by this Section, may participate in the development of the rules and policies. Such rules and policies shall be made available for public inspection within ten days after they are finally adopted.
The Evangeline Parish School Board complied with the mandate of La.R.S. 17:81.5 when it adopted its "Procedures for Separation of Employees." In McKenzie v. Webster Parish School Board, 26,713, p. 7 (La.App. 2 Cir. 4/5/95); 653 So. 2d 215, 219, writ denied, 95-1415 (La.9/22/95); 660 So. 2d 472, the court stated that: "The School Board is given great discretion in fashioning, adopting and implementing its plan and the standard of review used by courts when called upon to review whether a school board complied with its own policies is substantial compliance. Harris v. West Carroll Parish, School Board, 605 So. 2d 610 (La.App. 2d Cir.1992)."
The trial judge in this case found that the school board was in substantial compliance with its procedures. On review, we must scrupulously examine the record to determine, not whether the conclusion reached by the trial judge was right or wrong, but whether his conclusion was reasonable in light of the evidence and testimony adduced at trial. Our review of the facts in this case convinces us that the conclusion reached by the trial judge was not reasonable and that his decision was clearly wrong.
DISCUSSION
The Plaintiff does not contest the trial judge's ruling with regard to his part-time employment as a bus driver. Therefore, we need only address those issues concerning Thomas's employment as a custodian. The Plaintiff would have us consider only the events of July and August of 1995 leading up to his termination. However, we, like the trial judge, find that it is appropriate to consider the Plaintiff's entire employment record.
Thomas's first full year with the Evangeline Parish school system was the 1988-1989 academic year. He served as the custodian at the Evangeline Parish Career School, which became the Alternate Center for Education (ACE) in 1992. He held this position when he was terminated in August 1995. His supervisors were: Roy Fontenot, who served as principal for the Career School/ACE through the 1993-1994 school year; Glen Lafleur, who was principal in 1994-1995; and Harold Soileau, the assistant principal, who was acting principal during the summer of 1995. When Thomas was terminated, the principal or acting principal of ACE reported to the Assistant Superintendent for Personnel, Dr. Albert Zackrie, Jr. and the Superintendent of the Evangeline Parish schools, Larry Broussard. Dr. Zackrie was newly appointed in 1995, but Broussard had been Superintendent for a number of years.
Thomas's first year of employment seems to have been uneventful. However, beginning in January 1990, his job performance appears to have been almost constantly below the level expected. On January *107 22, 1990, the Plaintiff failed to secure a tractor and was called and told to do so. The next morning the tractor had not been moved. Thomas's failure to take action resulted in a conference between the Plaintiff, Fontenot and Broussard in which the tractor incident and Thomas's unsatisfactory job performance were discussed. The Plaintiff signed a document acknowledging the conference and promising to do better.
In November 1991, Thomas was again in trouble. He was placed on probation for the remainder of the 1991-1992 school year. Although he did not sign a letter documenting the conference, he was notified and signed a receipt for a certified letter from the Superintendent informing him of the school board's action. In June of 1993, Fontenot made a notation in the Plaintiff's personnel file that he had to have a conference with the Plaintiff over a classroom door being left open. That notation was not signed by Thomas, but he signed a letter detailing allegations of more serious shortcomings discussed in an August 25, 1993 conference, and a letter detailing another conference on April 18, 1994, dealing with unsatisfactory job performance.
Glen Lafleur took over as principal for the 1994-95 school year. That year, Lafleur met with Thomas about unsatisfactory job performance on a number of occasions. He met with Thomas on October 6, 1994. He had a counselor speak with Thomas on November 15, 1994. Lafleur personally spoke with Thomas on December 8 and 12, 1994. He had Harold Soileau, his assistant principal, speak with the Plaintiff on December 13, 1994. Lafleur again personally counseled Thomas on December 14 and 16, 1994. On December 15, 1994, in an attempt to correct any misunderstanding about Thomas's responsibilities, Lafleur drew up a two-page document, delineating the Plaintiff's responsibilities. Although Lafleur stated that Thomas refused to sign the document, the refusal is not documented in the personnel file. On December 30, 1994 and January 3, 1995, Lafleur spoke to Superintendent Broussard about the Plaintiffs continuing unsatisfactory job performance and suggested that the Plaintiff be terminated. It appears that Broussard counseled the Plaintiff at that time. We note that Thomas's personnel record is almost devoid of formal counseling statements signed by the Plaintiff.
In spite of this, Thomas continued to have problems with his job performance through the spring semester. Lafleur was forced to counsel Thomas on February 7, April 21, and May 15, 1995. At trial, Lafleur testified that many of the documents were not signed by Thomas because he refused to do so. However, no notations to that effect appear in the Plaintiff's record. Lafleur left ACE at the end of the 1994-95 school year to become the principal at Ville Platte High School.
In mid-July 1995, Harold Soileau, who was the acting principal after Lafleur left, wrote an undated letter to Dr. Albert Zackrie asking the school board to look into the Thomas situation and to take "immediate" action. The letter did not recommend or mention termination. In response to Soileau's request, Dr. Zackrie sent a letter to Thomas, dated July 25, 1995, informing him that there would be a hearing at the August 2, 1995 school board meeting "to evaluate your job performance as janitor at ACE." The letter went on to inform Thomas that he had the right to be represented by an attorney at the hearing. The letter also indicated that supporting enclosures were being sent. Finally, the letter stated that Thomas should contact Dr. Zackrie if he had any questions. The letter neither stated that Thomas was being considered for dismissal nor offered him the option of retiring. Although Thomas denies receiving the "enclosures," Dr. Zackrie testified that he was sure they were sent. In any event, these enclosures would not have put the Plaintiff on notice that his termination was to be considered.
*108 Thomas contacted and was accompanied to the school board meeting by Ms. Jacqueline Sumler, a "Uniserve Director" with the Louisiana Association of Educators, a position equivalent to a union representative. However, the record contains no indication that Thomas was offered the opportunity or took action to rebut any of the allegations against him or to explain his poor job performance.
At the meeting, Broussard orally recommended that Thomas be terminated. The board followed this recommendation and Thomas was notified of the board's action by Dr. Zackrie in a letter dated August 24, 1995. This suit followed.
We find that the evidence in the record clearly supports the board's decision to fire Thomas. However, the board did not follow its own procedures in this matter. Thomas's immediate supervisors, whether the principal or the acting principal at ACE, never discussed his possible termination, or the reasons therefor, with him. Thomas's supervisor made no written recommendation to the superintendent. There was no conference between the superintendent, Thomas and the principal or acting principal at ACE. Thomas was never given the opportunity to retire or resign. No written recommendation was presented to the School Board. In light of these facts, it is clear that there was not substantial compliance with Board policy in this matter.
For these reasons, the judgment of the trial court is reversed. The Plaintiff, Calvin Thomas, is reinstated to his position as janitor at ACE, retroactive to the date of his dismissal, with reimbursement of all salary and benefits to which he would have been entitled had he not been terminated. Costs from the trial court and appellate courts in the amount of $1125.68 are assessed to the Evangeline Parish School Board[1].
REVERSED AND RENDERED.
NOTES
[1] See La.R.S. 13:5112 and Brown v. Webster Parish School Bd., 30,350 (La.App. 2 Cir. 4/16/98); 716 So. 2d 16. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621509/ | 13 So. 3d 100 (2009)
David Scott EVANS, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-258.
District Court of Appeal of Florida, Fourth District.
May 20, 2009.
*101 Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
DAMOORGIAN, J.
David Scott Evans timely appeals his judgment and sentence for felony resisting with violence and battery on a law enforcement officer. We reverse, holding that the jury instruction stating that the trespass or narcotics investigation constituted the lawful execution of a legal duty impermissibly directed a verdict for the State. By failing to instruct the jury that the investigation must be "lawful" in order for it to find that the officer was executing a legal duty, the trial court took the issue away from the jury.
Sergeant Baer, Officer Jozwick, and four other officers were driving in an unmarked vehicle when Sergeant Baer observed Evans in the parking lot of an open convenience store talking to another male, which he knew from past encounters. He noticed the other male had money in his *102 hands and watched as Evans tossed an object into his month. Under the belief that he just witnessed a drug transaction and that the men were trespassing, Sergeant Baer decided to conduct an investigatory stop. The police vehicle then pulled up to the men, and Officer Jozwick exited the vehicle, signaling them to stop with his hand. Evans then grabbed officer Jozwick's thumb, and a struggle ensued. Following the incident, Evans was charged with felony resisting with violence and felony battery on a police officer.
During trial, the court conducted a charge conference at which defense counsel requested that the jury be given the following instruction:
"[I]f you find that the police officer had reasonable suspicion to detain you for a criminal investigation, then you should find that the officer was lawfully executing a legal duty. If you find that Officer Jozwick did not have reasonable suspicion to detain the defendant for a criminal investigation, then you should find that Officer Jozwick was not executing a lawful duty and thus you should find the defendant not guilty as to the crimes charged."
The State objected to the instruction, arguing that the jury instruction should state that the officer needed probable cause in order to have been executing a legal duty. The trial court denied defense counsel's request, and instead, advised that it was going to give the following instruction: "[T]he Court further instructs you that conducting a trespass or narcotic investigation is a lawful execution of a legal duty." In response, defense counsel asked that the word "lawful" be inserted before trespass, and the State agreed. The Court, however, over defense counsel's objection, declined to change the instruction to include the word "lawful." The instruction was subsequently submitted to the jury as proposed by the trial court. Evans now appeals, arguing that the trial court erred in giving the above mentioned instruction. We agree.
To prove felony resisting with violence pursuant to section 843.01, Florida Statutes (2007), and felony battery on a law enforcement officer pursuant to 784.03 and 784.07, Florida Statutes (2007), the State must prove that the officer was lawfully executing a legal duty at the time of the incident. Accordingly, a jury instruction should not define the "lawful execution" element in a way that takes the issue from the jury. See State v. Anderson, 639 So. 2d 609, 610 (Fla.1994). A jury instruction is valid "as long as the jury understands that it must decide that the officers were in fact performing the duty described." Perry v. State, 861 So. 2d 462, 464 (Fla. 1st DCA 2003) (citing Anderson, 639 So.2d at 610). In Anderson, the Florida Supreme Court held that "in those cases where the defendant maintains that the arrest was unlawful and requests that the jury be instructed on that defense, an instruction should be given to insure that the jury understands that it must decide the issue." 639 So.2d at 610.
The jury instruction in this case was improper because it did not convey to the jury that it was to determine whether the trespass or narcotic investigation was lawful. Although defense counsel did not maintain that the arrest was unlawful, it did assert that the stop was unlawful and thus, the instruction should have made clear that the jury was to decide this issue. See id. By inserting the word "lawful" before "trespass" in the jury instruction, the instruction would have conveyed to the jury that it needed to determine that the investigation was lawful before it could find that officer Jozwick was executing a legal duty. See Campbell v. State, 812 So. 2d 540, 544 (Fla. 4th DCA 2002) (holding *103 that by omitting the word "lawful" before "arrest," the jury instruction failed to clarify that the "arrest itself must have first been lawful"). Accordingly, the trial court's failure to give the requested jury instruction constituted error.
We also conclude that the error in this case is reversible. Although not all erroneous failures to give a jury instruction constitute reversible error, the failure to give the requested instruction does constitute reversible error when it is established that: "(1) [t]he requested instruction accurately states the applicable law, (2) the facts in the case support giving the instruction, and (3) the instruction was necessary to allow the jury to properly resolve all issues in the case." Campbell, 812 So.2d at 544 (citing Langston v. State, 789 So. 2d 1024, 1026 (Fla. 1st DCA 2001)). Here, the requested jury instruction correctly stated the applicable law, the facts supported giving the instruction because the lawfulness of the stop was a central issue in the case, and it was necessary to convey to the jury that it must decide that issue. Because each of the elements was established, the trial court's failure to give the requested instruction constituted reversible error. Id.
Reversed.
WARNER and STEVENSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621451/ | 733 So.2d 11 (1999)
Paul L. PARFAIT, Jr.
v.
GULF ISLAND FABRICATION, INC.
No. 97 CA 2104.
Court of Appeal of Louisiana, First Circuit.
January 6, 1999.
Rehearing Denied February 26, 1999.
*15 Michael J. Samanie, David B. Allen, Samanie, Barnes & Allen, Houma, LA, Attorneys for Plaintiff-Appellee Paul L. Parfait, Jr.
William S. Bordelon, Houma, LA, Attorney for Defendant-Appellant Gulf Island Fabrication, Inc.
BEFORE: GONZALES, PARRO, and GUIDRY, JJ.
PARRO, J.
In this workers' compensation case, an employer appeals a judgment awarding temporary total disability benefits, medical expenses, penalties, and attorney fees in favor of the claimant. For the following reasons, we reverse in part, amend in part, affirm in part, and render.
Factual Background and Procedural History
Between September 28, 1996, and October 7, 1996, while employed by Gulf Island Fabrication, Inc. (Gulf Island) as a sandblaster/painter, Paul L. Parfait, Jr. (Parfait) allegedly sustained a work-related accident in the course and scope of his employment. Parfait contends that, as he pulled on a sandblasting hose, he felt pain in his hip and lower back. This pain allegedly worsened as he continued to perform heavy manual labor. On October 7, 1996, he told his supervisor that he was in pain and desired to leave work to see his family doctor, Dr. Brian Matherne. At this point in time, Parfait thought an arthritic condition in his hip may have been causing the pain. Initially, Dr. Matherne diagnosed arthritis for which he prescribed medication.
Several days later, Parfait returned to see Dr. Matherne, but instead saw his partner, Dr. Bruce Guidry. Because of his continued pain, Dr. Guidry ordered an MRI of the lumbar spine. On October 15, 1996, the MRI was performed and revealed a very large extruded fragment at the L4-5 level which was impinging on the spinal cord. Dr. Guidry told Parfait to see an orthopedic surgeon. On this advice, Parfait saw Dr. Richard Landry on October 18, 1996, who informed him that he had a very serious condition in his low back which required immediate surgery. Based on this diagnosis, Parfait underwent a surgical procedure on October 23, 1996.
Subsequently, Parfait notified Gulf Island that he had sustained a work-related injury, and an accident report was completed on November 11, 1996. Gulf Island declined to pay workers' compensation benefits. Therefore, Parfait filed a formal claim with the Office of Workers' Compensation Administration against Gulf Island, alleging that it refused to provide reimbursement for medical treatment and to pay benefits. In conjunction with his claim, Parfait sought penalties and attorney fees.
*16 After a hearing, the workers' compensation judge made the following findings: (1) Parfait was involved in an accident; (2) Parfait had proven a disability that was causally related to his work accident; (3) such disability was expected to continue into the future; (4) his statements regarding prior history were not willfully made for the purpose of obtaining workers' compensation benefits, thus LSA-R.S. 23:1208 was inapplicable; (5) medical treatment was rendered in an emergency situation, thus LSA-R.S. 23:1142(B) limiting recovery to $750 where treatment was rendered without authorization was inapplicable; (6) LSA-R.S. 23:1142(E) was applicable; and (7) despite having medical authorization to obtain the information, Gulf Island failed to adequately investigate this claim in a timely fashion and relied on initial representations of an arthritic problem, even after it received information regarding the nature and severity of Parfait's condition, thus Gulf Island's actions or inactions were arbitrary and capricious.
Based on these findings, the workers' compensation judge entered judgment in favor of Parfait, awarding temporary total disability benefits from October 5, 1996, until he reached maximum medical improvement, plus all past medical expenses, all reasonable and necessary future medical expenses, and statutory penalties and attorney fees in the amount of $10,000. The judgment also denied Gulf Island's demand for a credit for the medical expenses paid by the group health insurer. From this judgment, Gulf Island appeals and contends the workers' compensation judge erred in finding (1) Parfait sustained an accident; (2) Parfait did not violate LSA-R.S. 23:1208 by making false statements or misrepresentations regarding prior back injuries; (3) Parfait proved medical treatment was rendered in an emergency situation and LSA-R.S. 23:1142(B) was inapplicable; (4) Gulf Island's liability for medical expenses was not extinguished pursuant to the provisions of LSA-R.S. 23:1212, and Gulf Island was not entitled to a credit in proportion to the percentage of hospitalization insurance premium paid by it; and (5) Gulf Island was arbitrary and capricious. Gulf Island also submits the judge erred in awarding temporary total disability benefits for a period in excess of the maximum six-month period provided for in LSA-R.S. 23:1221(1)(d). Additionally, Gulf Island complains the judge erred in awarding penalties, attorney fees, and future medical expenses.
Standard of Review
Factual findings in a workers' compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. The twopart test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court's finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a trial court's factual finding only if, after reviewing the record in its entirety, it determines the trial court's finding was clearly wrong. See Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882; Morris v. Norco Construction Company, 632 So.2d 332, 335 (La.App. 1st Cir.1993), writ denied, 94-0591 (La.4/22/94), 637 So.2d 163.
*17 Accident
LSA-R.S. 23:1021(1) defines an accident as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration." In order to recover workers' compensation benefits, an employee must show that he received a personal injury by accident arising out of and in the course and scope of his employment and that said injury necessitated medical treatment or rendered the employee disabled, or both. Augustus v. St. Mary Parish School Board, 95-2498 (La.App. 1st Cir.6/28/96), 676 So.2d 1144, 1149. The primary burden is to establish an injury was sustained as a result of an accident occurring in the course and scope of employment. LSA-R.S. 23:1031. The fact that an employee does not notify his employer immediately that he suffered an accident or does so several days after the date of the alleged injury does not prohibit a finding that the employee sustained an accident. Middleton v. International Maintenance, 95-0238 (La.App. 1st Cir.10/6/95), 671 So.2d 420, 424, writ denied, 95-2682 (La.1/12/96), 667 So.2d 523. see LSA-R.S. 23:1301. Moreover, an employee should not be barred from recovery because he did not realize or diagnose the full extent of his injury immediately after it happened. Middleton, 671 So.2d at 424.
The court in Bruno v. Harbert International Inc., 593 So.2d 357 (La.1992), concluded that the determination of whether an accident occurred is to be construed from the worker's perspective. Bruno, 593 So.2d at 360. Notably, however, the claimant's burden of proof is not relaxed, for he or she must still establish a work-related accident by a preponderance of the evidence. Bruno, 593 So.2d at 361. A worker's testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. Bruno, 593 So.2d at 361.
Thus, in determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a claimant's testimony is accorded great weight. Bruno, 593 So.2d at 361. A workers' compensation judge's determinations as to whether the claimant's testimony is credible and whether the claimant has discharged his burden of proof are factual determinations which will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Bruno, 593 So.2d at 361.
The record in this case shows Parfait's job required heavy physical labor every day, and in connection with his work, he pulled on sandblasting hoses that weighed approximately 65 pounds per section. Parfait testified that after pulling on one of these hoses, he felt pain in the area of his hip, lower back, and tailbone, which steadily progressed over several days until he was unable to work any further. At this point, he reported complaints of pain to his supervisor and asked that he be allowed to leave work to see his family physician. Co-employees recalled his complaints on the day he left work.
The evidence supports Parfait's claim that the onset of pain was contemporaneous with his pulling of sandblasting hoses while at work, and he reported this pain within a short period of time. This evidence corroborates Parfait's testimony, and there is no other evidence to discredit or cast serious doubt upon his version of the incident.[1] Based on the workers' compensation *18 judge's credibility determinations and after consideration of all of the evidence, we cannot say the judge was clearly wrong in finding that Parfait proved, by a preponderance of the evidence, that he sustained personal injury by accident arising out of and in the course and scope of his employment.
LSA-R.S. 23:1208
Gulf Island contends the trial court erred in finding Parfait did not violate LSA-R.S. 23:1208 by making false statements or misrepresentations regarding prior back injuries. At all pertinent times, LSA-R.S. 23:1208 provided, in relevant part:
A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
* * *
E. Any employee violating this Section shall ... forfeit any right to compensation benefits under this Chapter.
In Resweber v. Haroll Construction Company, 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7, the supreme court noted the requirements for forfeiture of benefits under section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Resweber, 660 So.2d at 12. The word "willful" has been defined as "proceeding from a conscious motion of the will; voluntary; knowingly; deliberate; intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary." Grant v. Natchitoches Manor Nursing Home, 96-1546 (La.App. 3rd Cir.5/14/97), 696 So.2d 73, 76, writ denied, 97-1582 (La.10/17/97), 701 So.2d 1330.
In a pre-trial deposition, Parfait failed to state that he had sought the care of a chiropractor for a previous back injury, which allegedly occurred while cutting grass at his home. However, the chiropractor's name was listed by Parfait on answers to interrogatories. Also, Gulf Island was already aware of this situation because Parfait took off of work for treatment and had a "return-to-work" physical performed at Gulf Island's request. After the trial of this matter, the workers' compensation judge found that Parfait did not willfully make a false statement or misrepresentation in an attempt to secure payment of compensation benefits. The workers' compensation judge's findings are supported by the record and are not clearly wrong. Therefore, we do not find error in the judge's ruling concerning the inapplicability of LSA-R.S. 23:1208.
Term of Award for Temporary Total Disability Benefits
The workers' compensation judge held that Parfait would be entitled to indemnity benefits from October 5, 1996, until he reached maximum medical improvement. Gulf Island argues that LSA-R.S. 23:1221(1)(d) restricts the time limit to which an award of temporary total disability benefits can extend to a maximum of six months. We are thus presented with the issue of when the benefits will cease.
LSA-R.S. 23:1221(1)(d) provides:
An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made, and the employee's physical condition has improved to the point that *19 continued, regular treatment by a physician is not required, or six months after the injury, whichever first occurs. If the claimant contends that his disability is of a temporary nature, but extends beyond this six-month period, he must submit a claim for extension of the period of temporary total disability under R.S. 23:1310.3.
This court has previously determined the clear and unambiguous terms of this statute provide that the initial award of benefits is limited to the period of six months after the date of the injury or until the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made, and the employee's physical condition has improved to the point that continued, regular treatment by a physician is not required (maximum medical improvement), whichever first occurs. Hughes v. Carroll Timber Company, 96-0031 (La.App. 1st Cir.10/1/96), 694 So.2d 331, 335. Therefore, the initial award will be for, at most, six months after the date of injury. Hughes, 694 So.2d at 335. However, if the employee contends that his disability is of a temporary nature, but extends beyond this six-month period, he must submit a claim for extension of the period of temporary total disability under LSA-R.S. 23:1310.3. LSA-R.S. 23:1221(1)(d.).
In this case, the judge found the injury occurred on September 28, 1996. Trial of this matter was held on June 30, 1997, and the judgment was rendered on July 18, 1997, more than six months after the date of injury. The record does not reflect that a claim for an extension of the period of temporary total disability was filed by Parfait, nor is there any evidence of a stipulation by the parties to a longer period of disability. Therefore, in light of these facts and the law, the initial award of temporary total disability benefits should have ceased after a period of six months from the date of the injury, or on March 28, 1997.[2] The workers' compensation judge erred in holding that Parfait would be entitled to such benefits until he reached maximum medical improvement.
Medical Expenses
An employer has a statutory duty to furnish all necessary medical treatment caused by a work-related injury. LSA-R.S. 23:1203(A);[3]Patterson v. Long, 96-0191 (La.App. 1st Cir.11/8/96), 682 So.2d 1327, 1334, writ denied, 96-2958 (La.2/7/97), 688 So.2d 499. The right to reimbursement for medical expenses is separate and distinct from the right to compensation. Ridlen v. St. Charles Manor Nursing Center, Inc., 94-275 (La.App. 5th Cir.10/12/94), 644 So.2d 244, 247, writ denied, 94-3039 (La.2/3/95), 649 So.2d 410. The question of whether the claimant is entitled to medical benefits is ultimately a question of fact, and the fact finder's resolution of that issue may not be disturbed by the appellate court in the absence of manifest error or unless clearly wrong. Starks v. Universal Life Insurance Company, 95-1003 (La.App. 1st Cir.12/15/95), 666 So.2d 387, 391, writ denied, 96-0113 (La.3/8/96), 669 So.2d 400.
To recover medical expenses under LSA-R.S. 23:1203, the claimant *20 must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Patterson, 682 So.2d at 1334; see Spurrell v. Ivey, 25,359, 25,360 (La.App. 2nd Cir.1/25/94), 630 So.2d 1378, 1384. An award of medical expenses must be limited to those expenses shown to have been made necessary by the work-related accident. An injured employee is not entitled to recover for medical expenses where he or she fails to substantiate a claim. Starks, 666 So.2d at 391. Nonetheless, when a claimant alleges that he or she incurred medical expenses and that allegation is supported by a bill, unless there is sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to the accident, it is sufficient to support the inclusion of the item in the judgment. Augustus, 676 So.2d at 1155.
Gulf Island argues that its liability for the treatment rendered to Parfait should be limited to $750, pursuant to LSA-R.S. 23:1142(B). At the time of Parfait's accident and injury, LSA-R.S. 23:1142 provided in pertinent part:[4]
A. Definitions. For the purposes of this Section, the following terms shall have the following meanings unless the context clearly indicates otherwise:
(1) "Payor" shall mean the entity responsible, whether by law or contract, for the payment of the medical expenses incurred by a claimant as a result of a work related injury.
B. Nonemergency care. Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in nonemergency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for nonemergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer's workers' compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.
C. Emergency care. (1) In no event shall prior consent be required for any emergency procedure or treatment deemed immediately necessary by the treating health care provider. Any health care provider who authorizes or orders emergency diagnostic testing or treatment, when said diagnostic testing or treatment is held not to have been of an emergency nature, shall be responsible for all of the charges incurred in such diagnostic testing or treatment. Said health care provider shall bear the burden of proving the emergency nature of the diagnostic testing or treatment.
(2) Fees for those services of the health care provider held not to have been of an emergency nature shall not be an enforceable obligation against the employee or the employer or the employer's workers' compensation insurer unless the employee and the payor have agreed upon the treatment or diagnostic testing by the health care provider, except as provided in R.S. 23:1272(D).
* * *
E. Exception. In the event that the payor has denied that the employee's injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.
Generally, in order to avoid the $750 statutory cap on certain medical services, an employee must receive prior approval from his employer before he seeks medical attention for a work-related accident and resulting injury. However, exceptions to this approval requirement exist. See LSA-R.S. 23:1142(C) and (E).
*21 Under the exception found in LSA-R.S. 23:1142(E), when an employer or insurer has denied that a claimant's injury is compensable, the statutory cap does not apply. Washington v. Lyon's Specialty Company, 96-0263 (La.App. 1st Cir.11/8/96), 683 So.2d 367, 381, writ denied, 96-2944 (La.1/31/97), 687 So.2d 408. From the time it received notice of Parfait's workers' compensation claim on November 8, 1996, Gulf Island consistently contested that Parfait was involved in a work-related accident. Accordingly, Gulf Island is not entitled to the statutory cap on liability for unapproved nonemergency medical treatment rendered after November 8, 1996. However, we conclude LSA-R.S. 23:1142(E) would not apply to treatment rendered to Parfait prior to Gulf Island being notified that a work-related accident had occurred. With regard to medical services rendered prior to November 8, 1996, Parfait's health care providers were required to obtain Gulf Island's prior approval to preserve their right to pursue Gulf Island or Parfait for the costs of such medical services in excess of $750.
It is undisputed that Parfait's health care providers had not received prior approval from Gulf Island before providing medical services to Parfait. Thus, Gulf Island argues it was only obligated to pay $750 pursuant to LSA-R.S. 23:1142(B). The $750 cap provided for in LSA-R.S. 23:1142(B) clearly applies to each health care provider. Thus, Gulf Island's argument that Parfait is entitled to reimbursement for a total of $750 for medical services rendered prior to November 8, 1996, is without merit.
Under the exception found in LSA-R.S. 23:1142(C)(1), we must examine the emergency care provisions to determine if prior consent was required. If these provisions apply, prior approval would not have been necessary for the medical services rendered to Parfait prior to November 8, 1996.
Gulf Island argues the workers' compensation judge erred in finding Parfait had proved that his treatment was emergency in nature. The judge made the following findings concerning whether claimant proved his treatment was of an emergency nature such that it constituted an emergency procedure or treatment deemed immediately necessary by the treating health care provider:
Upon the trial of the merits of this case, it was established through the testimony of the treating physician that plaintiff's injuries were of an emergency situation and that there was a very serious risk of neurological deficits, and paralysis if surgery was not done immediately. Dr. Landry, under cross-examination, was clear in his testimony in that he was of the opinion that plaintiff was facing a very serious emergency situation. Counsel for defendant attempted to make some gains by distinguishing between "emergency" and "urgent." However, Dr. Landry was clear that, if you use the word "emergency" or you use the word "urgent," that the plaintiff needed this surgery now.
After considering the testimony of Dr. Landry, the workers' compensation judge concluded the surgery and treatment needed by Parfait was of an emergency nature.
We are mindful that LSA-R.S. 23:1142(C) requires an emergency procedure or treatment that the treating health care provider deems immediately necessary. Although this statute contains a definition section, it does not define the terms "emergency" and "immediately necessary." Black's Law Dictionary defines emergency as:
A sudden unexpected happening; an unforeseen occurrence or condition; perplexing contingency or complication of circumstances; a sudden or unexpected occasion for action; exigency; pressing necessity. Emergency is an unforeseen combination of circumstances that calls for immediate action. *22 Black's Law Dictionary 469 (5th ed.1979). The PDR Medical Dictionary defines emergency as "[a]n unexpected development or happening; a sudden need for action." PDR Medical Dictionary 560 (1st ed.1995). "Immediate" is defined in Black's Law Dictionary as:
Present; at once; without delay; not deferred by any interval of time. In this sense, the word, without any very precise signification, denotes that action is or must be taken either instantly or without any considerable loss of time. A reasonable time in view of particular facts and circumstances of case under consideration....
Black's Law Dictionary 675 (5th Ed.1979).
In his deposition, Dr. Matherne testified that he would not categorize any of the treatment rendered as emergency treatment. Rather, he opined that Parfait's situation was urgent because he displayed symptoms that required surgery. However, he admitted that if the disc was extruded to such an extent that it presented a risk of paralysis, he would consider it an emergency situation.
Dr. Landry explained that Parfait had a very large disc protrusion which was causing severe symptoms, such as muscle spasms and mobility problems. Without immediate surgery, Dr. Landry feared Parfait might develop some permanent neurological damage because of the size and location of the disc problem. He was also concerned that Parfait could develop bladder and bowel problems. In light of these potential developmental problems, Dr. Landry felt Parfait's condition presented an emergency or semi-emergency situation. He opined it was necessary for surgery to be performed immediately to avoid residual problems or disability. Surgery was performed on October 23, 1996, which was within five days of Parfait's initial appointment with Dr. Landry.
After considering the definitions presented and the facts pertaining to Parfait's treatment following the October 15, 1996 MRI, we are unable to find that the workers' compensation judge manifestly erred in finding that Parfait proved his surgery and treatment were of an emergency nature, such that it constituted an emergency procedure or treatment deemed immediately necessary by the treating health care provider as required by LSA-R.S. 23:1142(C). Accordingly, Gulf Island's liability for the medical treatment rendered prior to November 8, 1996, is not limited to $750 for each health care provider.
Gulf Island's Right to a Credit under LSA-R.S. 23:121
Gulf Island contends it is entitled to a credit under LSA-R.S. 23:1212,[5] which provides in pertinent part:
Payment by any person or entity, other than a direct payment by the employee, a relative or friend of the employee, of medical expenses that are owed under this Chapter shall extinguish the claim against the employer or insurer for those medical expenses.... If the employee or the employee's spouse actually pay premiums for health insurance, either as direct payments or as itemized deductions from their salaries, then this offset will only apply in the same percentage, if any, that the employer of the employee or the employer of his spouse paid the health insurance premiums.
An employer is required to furnish medical treatment under LSA-R.S. 23:1203(A). However, an employer is entitled to a credit or an offset against the employer's section 1203 medical expense *23 obligation for medical expenses paid by someone other than the employee or a relative or friend of the employee under LSA-R.S. 23:1212. This credit or offset is not available to the employer for that portion of the medical expense obligation undertaken by a health insurer which corresponds to premium payments for the health insurance coverage made by the employee or by his or her spouse. Principal Mutual Life Insurance Company v. Progressive United Corporation, 28,378 (La.App. 2nd Cir.5/8/96), 674 So.2d 1073, 1075, writ denied, 96-1474 (La.9/20/96), 679 So.2d 436.
Parfait paid a portion of the premiums for group health insurance with Blue Cross Blue Shield of Louisiana (Blue Cross), which insurance apparently covered approximately 80 percent of Parfait's eligible medical expenses up to $5,000 after payment of a $300 deductible. In briefs to this court, the parties stated that Gulf Island paid 60 percent of the premium charges for Parfait's health insurance.
Parfait retained the right to claim from Gulf Island, under LSA-R .S. 23:1203, reimbursement for the medical expenses that were not paid by Blue Cross. Additionally, Parfait retained the right to claim from Gulf Island reimbursement for a percentage of the medical expenses that were paid by Blue Cross, equal to the percentage of Parfait's contributions toward the group health insurance premiums or 40 percent. With respect to the latter point, Gulf Island's LSA-R .S. 23:1203 medical expense obligation to Parfait has not been offset or extinguished pursuant to LSA-R.S. 23:1212. See Principal Mutual Life Insurance Company, 674 So.2d at 1075. With respect to Blue Cross' payments attributable to Gulf Island's percentage of premium contributions, however, Gulf Island's LSA-R.S. 23:1203 medical expense obligation has been offset or extinguished pursuant to LSA-R .S. 23:1212. See Principal Mutual Life Insurance Company, 674 So.2d at 1075.
The employer is responsible for submitting evidence at trial showing payment of the employee's medical expenses by a person or entity other than the employee or a relative or friend of the employee, thereby proving the amount of the credit. Gentile v. Baton Rouge General Medical Center, 95-0348 (La.App. 1st Cir.11/9/95), 665 So.2d 422, 430. Our review of the record revealed the following. Parfait's medical expenses totaled $15,595.41. Of this amount, $12,216.54 was paid by Blue Cross to various health care providers; the remaining $3,378.87 represents amounts paid or to be paid by Parfait toward deductibles or co-payments and amounts disallowed by Blue Cross. Based on this evidence, we conclude that pursuant to LSA-R.S. 23:1212, Gulf Island is entitled to have Parfait's award of medical expenses reduced by $7,329.92 ($12,216.54 × 60%).
AWARD OF FUTURE MEDICAL EXPENSES
Gulf Island asserts the workers' compensation judge erroneously awarded Parfait future medical expenses. A workers' compensation claimant is not entitled to an award for future medical expenses, but the right to claim such expenses is always reserved to him, even though the defendant's liability for them arises only when they are incurred. LSA-R.S. 23:1203; Lester v. Southern Casualty Insurance Company, 466 So.2d 25, 27 (La. 1985); Durand v. National Tea Company, 607 So.2d 573, 576 (La.App. 1st Cir.1992), writ denied, 612 So.2d 101 (La.1993); Campbell v. Luke Construction Company, 543 So.2d 1032, 1039 (La.App. 3rd Cir. 1989). Thus, the workers' compensation judge erred in awarding future medical expenses at this time and that portion of the judgment is reversed. See Anderson v. Biedenharn Bottling Group, 95-646 (La. App. 3rd Cir.11/2/95), 664 So.2d 588, 594-595.
PENALTIES AND ATTORNEY FEES
Gulf Island contends the workers' compensation judge erroneously ruled that *24 Gulf Island was arbitrary and capricious in its denial of Parfait's request for workers' compensation benefits.
LSA-R.S. 23:1201(F) provides for the imposition of a 12 percent penalty on compensation and medical benefits which the employer or insurer fails to pay timely. Augustus, 676 So.2d at 1153. Penalties are not to be assessed when the employee's right to such benefits has been reasonably controverted by the employer or insurer. Augustus, 676 So.2d at 1153-1154. A claim is reasonably controverted if the employer or insurer had sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant. Allen v. Misco Paper, 27,146 (La.App. 2nd Cir.8/23/95), 660 So.2d 175, 180. An employee has the burden of proving his entitlement to statutory penalties. Breshears v. Security Guard Service, Inc., 537 So.2d 730, 736 (La.App. 1st Cir.1988).
An award of attorney fees is appropriate when the employer and/or insurer has acted arbitrarily, capriciously, or without probable cause in failing to pay workers' compensation benefits. LSA-R.S. 23:1201.2. The applicable statute requires a finding that the defendant acted arbitrarily, capriciously, or without probable cause before attorney fees can be assessed. Augustus, 676 So.2d at 1154. A refusal to pay compensation will not be held to be arbitrary or capricious when this decision is based on competent medical advice. Martin v. H.B. Zachry Company, 424 So.2d 1002, 1008 (La.1982); see Willie v. Balehi Marine, Inc., 525 So.2d 231, 235 (La.App. 1st Cir.1988). A determination of whether a denial of compensation benefits is arbitrary, capricious, or without probable cause depends primarily on the facts existing and known at the time that benefits are denied. Vernon v. Wade Correctional Institute, 26,053 (La.App. 2nd Cir.8/19/94), 642 So.2d 684, 691. The realistic standard for making this determination is whether there was a "reasonable" basis for a dispute as to the employee's entitlement to benefits. Culotta v. Great Atlantic and Pacific Tea Company, 524 So.2d 259, 262 (La.App. 5th Cir.), writ denied, 530 So.2d 88 (La.1988).
These statutes allowing recovery of attorney fees and penalties are penal in nature and must be strictly construed. Martin, 424 So.2d at 1008. Whether the refusal to pay or the discontinuation of benefits warrants the imposition of penalties and attorney fees is a factual question which will not be disturbed upon review in the absence of manifest error. Augustus, 676 So.2d at 1154.
By November 8, 1996, the documentation Gulf Island had on file disclosed the possibility of a job-related injury. Gulf Island's administrative risk manager testified that without Inquiring about Parfait's treatment or obtaining medical records, Gulf Island turned over Parfait's claim to Gulf South Risk Services, a third party administrator. The claims adjuster testified that all the information she had on file indicated Parfait was perhaps suffering from arthritis in his hip due to a motorcycle accident.[6] She had no proof that he sustained a job-related injury. Yet, she never spoke with the job foreman or with Dr. Landry. Admittedly, she considered Dr. Landry's opinion to be of importance. Instead, she relied on the defense attorney to contact these people. Meanwhile, Parfait's claim for workers' compensation benefits was denied.
*25 An insurer or an employer has a duty to investigate and make every reasonable effort to assemble and assess factual and medical information in order to ascertain whether the claim was compensable before denying benefits. Allen, 660 So.2d at 181. This obligation is continuing in nature. Penn v. Wal-Mart Stores, Inc., 93-1262 (La.App. 3rd Cir.6/15/94), 638 So.2d 1123, 1127, writ denied, 94-1835 (La.10/28/94), 644 So.2d 651. Thus, if subsequent to an initial optimistic report, an insurer receives medical information undisputedly showing disability on a particular date, the insurer may not blindly rely on the earlier report and solely on that basis avoid penalties for arbitrary nonpayment of compensation benefits. Penn, 638 So.2d at 1127; see Johnson v. Insurance Company of North America, 454 So.2d 1113, 1119 (La.1984).
After a review of the record in its entirety, we conclude the workers' compensation judge did not manifestly err in finding that Parfait's right to benefits was not reasonably controverted by Gulf Island. Parfait thought the pain he was experiencing was caused by his arthritic condition until the MRI revealed differently. The information relied on by Gulf Island in denying Parfait's claim was that provided initially to it by Parfait. Upon receipt of notice of Parfait's actual condition, Gulf Island was obligated to properly investigate this incident. Once Gulf Island received notice of Parfait's claim for workers' compensation benefits, Gulf Island and its agents did very little to investigate the cause of Parfait's condition. In disregarding its duty to property investigate, the workers' compensation judge found that Gulf Island was arbitrary and capricious in its action or inaction. This finding was supported by the record and is not manifestly erroneous. Accordingly, the workers' compensation judge did not manifestly err in assessing statutory penalties and attorney fees against Gulf Island in the amount of $10,000.
In arguing his case, Parfait requested that this court award additional attorney fees for the defense of this appeal. An appellee who neither appeals nor answers an appeal is not entitled to additional attorney fees for legal services rendered on appeal. LSA-C.C.P. art. 2133; Williams v. Louisiana Indemnity Company, 26,887 (La.App. 2nd Cir.6/21/95), 658 So.2d 739, 743. Since Parfait did not appeal the judgment of the workers' compensation judge, nor did he answer Gulf Island's appeal and request additional attorney fees, he is not entitled to additional attorney fees.[7]
Decree
For the foregoing reasons, the portion of the judgment awarding temporary total disability benefits is amended to award such benefits for that period allowed by LSA-R.S. 23:1221(1)(d), or until March 28, 1997. The portion of the judgment denying Gulf Island's claim for a credit under LSA-R.S. 23:1212 is reversed, and judgment is rendered in favor of Gulf Island recognizing its entitlement to a credit in the amount of $7,329.92 against Parfait's award for medical expenses. That portion of the judgment awarding future medical expenses is reversed. Otherwise, the judgment is affirmed. Costs of this appeal are assessed to the parties equally.
REVERSED IN PART, AMENDED IN PART, AFFIRMED IN PART, AND RENDERED.
NOTES
[1] Although Dr. Matherne felt that Parfait had some disc fragmentation in January 1995, which was not then pinching the nerve and that his condition was not trauma related, he testified that he would defer to Dr. Landry's opinion. Dr. Landry testified that it was impossible for Parfait's disc problems to have been present for any significant length of time. Furthermore, he opined that Parfait could not have worked in his October 18, 1996 condition.
[2] We pretermit a discussion of the issue of the effect and timeliness of filing a claim for extension of the period of temporary total disability under LSA-R.S. 23:1310.3 at this time.
[3] Prior to its amendment in 1997, LSA-R.S. 23:1203(A) provided:
In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.... The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less.
[4] This statute was amended by 1997 La.Acts No. 1472, § 1.
[5] Extinguishment of an obligation in any manner is an affirmative defense which must be pled in the answer. LSA-C.C.P. art. 1005. Furthermore, to be entitled to a credit under LSA-R.S. 23:1212, a defendant employer must judicially assert its right to the credit. Gentile v. Baton Rouge General Medical Center, 95-0348 (La.App. 1st Cir.11/9/95), 665 So.2d 422, 430. The record indicates that Gulf Island sought a credit for the payment of medical expenses under LSA-R.S. 23:1212 in its amended answer. Therefore, Gulf Island is entitled to have this issue resolved.
[6] Prior to his employment with Gulf Island, Parfait broke his ankle in a motorcycle accident and broke his left hip in a separate automobile accident. Parfait explained that his residual problems from this accident have not prevented him from working or doing anything. During his employment with Gulf Island in May 1996, Parfait missed three days of work associated with a muscle pull in his back which occurred while cutting grass in a ditch. He received chiropractic treatment twice. Before returning to work, Parfait was examined by a doctor of Gulf Island's choice and was cleared to return to work without restrictions.
[7] For this same reason, we pretermit discussion or the issue raised by Parfait in his post argument brief to this court concerning the meaning of the workers' compensation judge's award for statutory penalties and attorney fees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920523/ | 107 B.R. 996 (1989)
In re Sammy George DAILY, Debtor.
The ESTATE OF Sammy G. DAILY, Plaintiff,
v.
LILIPUNA ASSOCIATES, a Hawaii limited partnership; Lilipuna Venture, Inc., a Hawaii corporation; Lilipuna Development Corporation, a Hawaii corporation; and Title Guaranty Escrow Service, Inc., a Hawaii corporation, Defendants.
Bankruptcy No. 85-00061, Civ. No. 89-00316 MP, Adv. No. 89-0005.
United States District Court, D. Hawaii.
October 11, 1989.
*997 *998 Jerrold K. Guben, Honolulu, Hawaii, for plaintiff.
Roy L. Anderson, Honolulu, Hawaii, for Lilipuna Venture and Lilipuna Development Corp.
Thomas Yamachika, Stewart J. Martin, Honolulu, Hawaii, for Lilipuna Associates.
ORDER AFFIRMING THE BANKRUPTCY COURT'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
PENCE, District Judge.
INTRODUCTION
This is an appeal from the decision of the Bankruptcy Court in Adv. No. 89-0005; Bk. No. 85-00061. Sammy G. Daily filed his petition for reorganization on January 31, 1985 and on September 23, 1986, Edward J. Stanley was appointed the Trustee of the Estate of Sammy G. Daily. On November 22, 1988, Sammy G. Daily's Chapter 11 case was converted to a Chapter 7 case, and on or about January 6, 1989, Richard Kennedy was appointed the Chapter 7 Trustee of the Estate of Sammy G. Daily. On January 18, 1989, the Trustee in the bankruptcy filed an adversary complaint against Lilipuna Associates ("LA"), a Hawaii limited partnership, Lilipuna Ventures, Inc. ("LVI"), a Hawaii corporation, Lilipuna Development Corporation ("LDC"), a Hawaii corporation, and Title Guaranty Escrow Service, Inc., a Hawaii corporation, seeking a ruling from the Bankruptcy Court that proceeds of the sale of certain lands in which LVI and LDC held an ownership interest be turned over to the Trustee. The Trustee alleged that LVI and LDC were "alter egos" of Sammy Daily, the debtor, and that therefore, any monies, funds and proceeds which might be attributable to LVI and LDC were the property of the estate of Sammy Daily and as such, properly under the control of the Trustee.
As part of the proceedings, the Trustee filed a Motion in Limine. At the hearing on the Motion in Limine, the Trustee argued that based on the repeated failure of the Lilipuna "entities" and the debtor's son Michael to produce subpoenaed corporate and business records of LVI and LDC, the Bankruptcy Court should grant the Trustee's Motion in Limine and prohibit introduction of any evidence or documents which contradicted the assertions made in the adversary complaint. In response to this motion, the Bankruptcy Court ruled that the defendants LVI, LDC and the debtor's son, Michael Daily, who was an officer in both of these corporations, were now precluded from introducing documents and materials which were the subject of subpoenas issued in 1987, 1988, and 1989, and which had been ignored repeatedly by Michael and the defendant corporations. The Court found that Michael, as custodian of the records of the Lilipuna "entities", had failed to produce the court-ordered documents for over 2 years, and that any attempt to introduce them at this point would be denied, and the allegations contained in the Trustee's complaint would be deemed established as facts for the purposes of the case. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER RE: PERMANENT INJUNCTION, Dated January 31, 1988, pp. 14-16.
As part of its Conclusions of Law, the Bankruptcy Court held that LVI and LDC were `alter egos' of Sammy G. Daily and any monies, funds and proceeds allocated to LVI and/or LDC [as their shares as a general and limited partner of Lilipuna Associates] from the sale of the Bayview Ridge property were to be paid over to the Trustee. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER at p. 3, ¶ 7. Furthermore, the Court held that "Sammy G. Daily is not just a manager and a trustee of LVI, LDC and/or LHI, but the actual owner of said entities and that Sammy G. Daily, through his control of the family entities, is the beneficial owner of the interest of his family in LVI, LDC and LHI." FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER, p. 16, ¶ 13. The Court went on to invoke its equitable powers to "pierce the veil of the various Lilipuna-related entities and declare that LVI, LDC, and LHI are `alter egos' of their true owner, Sammy G. Daily," FINDINGS OF FACT, CONCLUSIONS OF LAW AND *999 ORDER at p. 17, ¶ 16, and as a result order that Lilipuna Associates be directed to pay over all of the monies, funds and proceeds from the sale of the Bayview Ridge Estate which may be attributable to the general partners' [sic] interest of LVI and the limited partners' [sic] interest of LDC to the Trustee of the Estate of Sammy G. Daily." FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER at p. 18. It is from these conclusions and this order that the Appellants' present appeal is taken.
I. FACTUAL BACKGROUND
On January 18, 1989, the Bankruptcy Court granted the FDIC's motion for authority to institute adversary proceedings on behalf of the Chapter 7 Trustee of the Est. of Sammy G. Daily (converted from Chapter 11 on November 22, 1988), against LDC, LVI, LA and Title Guaranty Escrow Service. The proceedings concerned disposition of a fund composed of proceeds of the sale of real property in which LDC and LVI had an interest and the disposition of that fund, which was being held in escrow by Title Guaranty. The fund in question resulted from a complex series of business transactions. Lilipuna Associates was formed as a Hawaii limited partnership, comprised of two general partners and about 12 limited partners. For approximately the past 6 years, Lilipuna Ventures, Inc. has been one of the two general partners (LVI was substituted for Sammy G. Daily about 7 months after the partnership was formed) and Lilipuna Development Corporation has been one of the limited partners, both with a percentage interest therein. LA has recently closed a sale of its property (Bayview Ridge, located in Kaneohe) for a price in excess of $1 million, and was scheduled to make disbursements to all of its partners, including dispursements to LVI and LDC in the amount of approximately $275,000. This fund is now segregated in an escrow account held by Title Guaranty, pending the completion of an audit.
Judge Chinen's Order details the interrelationship between the debtor, the debtor's son, Michael C. Daily, and LVI and LDC. It discusses the failure of Michael, as custodian of records of various companies in which both he and his father were officers/directors, to produce various business and family-related records pursuant to various subpoena duces tecum, and also discusses two hearings which were held on the FDIC's motion for contempt.
Judge Chinen's Order states that following those hearings the Bankruptcy Court found: (1) that Sammy and Michael Daily were involved as officers or directors of the very same corporate and partnership entities during the relevant period; (2) that Michael Daily permitted Sammy Daily to take certain documents (including the Lilipuna companies' books and records) to Kansas even though the documents were under subpeona and Michael did not make copies of them; (3) Michael Daily personally threw away/disposed of documents specifically requested under those subpeonas; (4) Michael Daily lied as to whether certain documents were stored at the "Menehune Closet"; and, (5) Michael Daily gave contradictory testimony regarding documents which he did not produce because he "lost" them.
With regard to Sammy Daily's control over the Lilipuna-related entities, the Bankruptcy Court found as follows: (1) when Michael Daily was asked about LDC at the November 21, 1988 contempt hearing, he admitted to being the president of LDC, but was not sure what the corporation did; (2) Michael testified at his April 14, 1988 deposition that he and his father "flipped a coin" to determine who was going to be president of LVI; (3) Michael testified with respect to LDC that he "never questioned anything that he [Sammy Daily] did; (4) that Michael C. Daily, a putative officer, director and shareholder of LVI, LDC, and LHI "did not know many of the most fundamental things concerning the operation and ownership of the Lilipuna entities;" and, (5) that none of the other shareholders or stockholders of the Lilipuna entities, including Margaret P. Daily (Sammy Daily's wife) and Terry Lynn Daily (Sammy Daily's daughter) ever appeared in court and did not intervene or participate in the proceedings which ostensibly affected their purported *1000 ownership interests in LVI, LDC and LHI. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER at pp. 10-13, 16-17.
Pursuant to the Trustee's Motion in Limine to exclude certain evidence, documents and opinions which were not produced pursuant to the Bankruptcy Court's Order to Compel of May 27, 1987, and the Order Re Contempt of December 16, 1988, the Bankruptcy Court deemed "as established fact the assertions and allegations contained in the Trustee's Complaint for Declaratory and Equitable Relief." FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER, p. 16, ¶ 12 (citing cases).
The Bankruptcy Court found that:
As to the ownership of LVI, LDC and LHI, the Court, based on the record, submitted as part of the FDIC's Motion to Compel and the November 21, 1988 hearing, concludes that Sammy G. Daily is not just a manager and a trustee of LVI, LDC and/or LHI, but the actual owner of said entities and that Sammy G. Daily, through his control of family entities, is the beneficial owner of the interest of his family in LVI, LDC and LHI.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER at 16, ¶ 13.
The Bankruptcy Court further found that, "[it] is a Court of Equity and the court will pierce the veil of the various Lilipuna-related entities and declare that LVI, LDC, and LHI are `alter egos' of their true owner, Sammy G. Daily," FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER at p. 17, ¶ 16, ruling that a corporate entity would be disregarded when the existence of a corporation is a mere facade of the debtor and it would be inequitable to recognize the existence of a separate and independent corporate entity.
The Bankruptcy Court, after directing that LA pay over to the Trustee all funds from the sale of the Kaneohe property attributable to the interests of LVI and LDC, ruled that "the Trustee shall hold the monies, funds and proceeds paid over by LA as part of the Debtor's estate and may be disbursed according to further orders of the Court." FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER at p. 18.
II. THE PRESENT APPEAL
The present appeal is brought by LVI and LDC. They appeal from Judge Chinen's Findings of Fact, Conclusions of Law and Order, claiming that the order is a denial of fundamental procedural due process, that the Bankruptcy Court misapplied the corporate "alter ego" concept, that reversible error was committed in eliminating claims of innocent corporate stockholders and creditors, and that the claim against the proceeds from the sale of the Kaneohe property is not property of Daily's estate and thus cannot be maintained by the Trustee.
For his part, the Trustee maintains that this Court needs to view conduct of the debtor in the light of the decisions of other courts concerning Mr. Daily's business dealings, that the Appellants are barred by res judicata and/or collateral estoppel from "relitigating" certain issues already determined by the Bankruptcy Court, and that the Dailys were appropriately sanctioned for their failure to provide discovery in the adversary proceeding, the eventual result of which was to have the Bankruptcy Court order the assets of LVI and LDC to be turned over to the Trustee, who claims an equitable right to these proceeds.
While the Appellants have outlined 15 different issues presented, upon a careful review of the parties' papers, this Court finds that there are basically four issues requiring resolution:
1) May the Trustee supplement the record before this Court with the decisions of other courts regarding allegedly relevant conduct of the debtor?
2) Is res judicata and/or collateral estoppel appropriate in this case, and if so, may it appropriately be invoked against the Appellants?
3) Does the Bankruptcy Court possess the power to impose the sanctions which it did, namely deeming facts alleged in one party's complaint as established with the result being a piercing of the corporate veil *1001 with respect to the Appellants, and were those sanctions appropriate in this case?
4) May the Trustee properly assert a claim to the proceeds of the sale of the Kanehoe property?
III. STANDARD OF REVIEW
This Court notes that it is required to give deference to the Bankruptcy Court's findings of fact, and reject them only if they are found to be "clearly erroneous." Bankruptcy Rule 8013, Fed.Bk.R, provides that:
On an appeal the district court or bankruptcy appellate panel may affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree or remand with instructions for further proceedings. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witness.
The Trustee emphasizes in this regard the fact that Judge Chinen has had the opportunity to hear and observe Michael Daily's "live" testimony and judge his credibility, as well as reviewing the proposed findings of fact and conclusions of law from both parties in light of the Judge's familiarity with the case.
As to the Bankruptcy Court's conclusions of law, this Court reviews those conclusions de novo. In re John E. Lockard d/b/a J.W.L. Construction, 884 F.2d 1171, 1174 (9th Cir.1989); In re American Mariner Industries, Inc., 734 F.2d 426, 429 (9th Cir.1984). This includes questions regarding the availability of collateral estoppel. Lockard, supra; Robi v. Five Platters, Inc., 838 F.2d 318, 321 (9th Cir.1988); cf., Eilrich v. Remas, 839 F.2d 630, 632 (9th Cir.1988) (availability of collateral estoppel is a mixed question of law and fact which the Court of Appeals reviews de novo but, if collateral estoppel is available, decision to give preclusive effect is reviewed for abuse of discretion).
IV. SUPPLEMENTS TO THE RECORD ON APPEAL
The Trustee has submitted an extended discussion of other actions and convictions against the debtor Sammy Daily and his son Michael. He asserts that the Judge Chinen's decision and order "can only be understood in the context of" these other proceedings. Understandably, the Appellants resist the introduction of these additional matters and their consideration by the Court, arguing that the Court is restricted to a review of the "papers and exhibits filed in the District Court, the transcript of proceedings, if any, and a certified copy of the docket entries." REPLY BRIEF OF APPELLANTS, pp. 5-6, citing Fed.R.App.P. 10(a), and Fed.Bankruptcy Rule 8006.
The Appellants' position is well-taken. The Ninth Circuit reviewed the appropriate composition of the record on appeal in Kirshner v. Uniden Corp. of America, 842 F.2d 1074 (9th Cir.1988), citing Fed.R. App.P. 10(a) and the Ninth Circuit's own Rule 10-2 which provides that: "[p]ursuant to FRAP 10(a), the complete record on appeal consists of: . . . (b) the district [here bankruptcy] court clerk's record of original pleadings, exhibits and other papers filled with the district court (`clerk's record')".
Judge Alarcon went on to elaborate in language which is applicable to the instant case:
Papers not filed with the district court or admitted into evidence by that court are not part of the clerk's record and cannot be part of the record on appeal. See United States v. Walker, 601 F.2d 1051, 1054-55 (9th Cir.1979) (affidavits that "were not part of the evidence presented to the district court" would not be considered on appeal); Panaview Door & Window Co. v. Reynolds Metals Co., 255 F.2d 920, 922 (9th Cir.1958) (striking from record an exhibit that had been attached to appellant's trial court memorandum of points and authorities and a document that had been marked for identification, neither of which had been received into evidence). *1002 Kirshner v. Uniden Corp. of America, 842 F.2d 1074, 1077 (9th Cir.1988). The Circuit Court went on to hold that "[p]apers submitted to the district court after the ruling that is challenged on appeal should be stricken from the record on appeal." Id. (citations omitted) (emphasis in original).
Under such a clear mandate of authority from the Ninth Circuit, this Court is bound to strike from the record which it considers on appeal any material in addition to that which was before the Bankruptcy Court when it issued its findings and order. Were this an ordinary hearing before this Court, the material submitted by the Trustee might be relevant. However, in the consideration of an appeal from the decision of a lower court, this Court is bound to reject any attempt to supplement the record in this way and will strike any material which was not before the Bankruptcy Court from the record on appeal.
V. THE USE OF RES JUDICATA AND/OR COLLATERAL ESTOPPEL AGAINST NON-PARTIES
The Appellants argue that the order entered by the Bankruptcy Court is inapplicable them because it was "(1) against others, (2) in separate proceedings, (3) involving different issues, (4) between different parties, (5) before the Complaint against them existed, and (6) over which the Appellants had no control." OPENING BRIEF OF APPELLANTS, p. 21. Appellants point to law in this district where the court required that in order to apply collateral estoppel, the issues involved must have actually have been litigated, and that the precise question as to which the estoppel is asserted must have been raised. Pistoll v. Lynch, 96 F.R.D. 22, 29 (D.Hawaii 1982). Furthermore, they maintain that unless the issue decided was the same as that in the instant case, there was a final judgment in the matter, and the parties are the same, or in privity with those sought to be bound, that collateral estoppel will not be available.
For his part, the Trustee maintains that the "core proceeding" and the adversary proceeding involve parallel issues, namely issues of control and corporate dominance, and that Judge Chinen's findings of fact are "final" and subject to review of this Court. He does not deal with the difference between the parties.
The use of collateral estoppel is limited by the due process requirements of the Constitution. The general rule was stated by the United States Supreme Court in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971):
Some litigants those who never appeared in a prior action may not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and arguments on the claim. Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stands squarely against their position.
402 U.S. at 329, 91 S. Ct. at 1443.
The Supreme Court has qualified this rule by stating that "privies" may be bound by a prior litigation of an issue, Allen v. McCurry, 449 U.S. 90, 97-98, 101 S. Ct. 411, 416-417, 66 L. Ed. 2d 308 (1980), along with those who "control" a prior litigation. Montana v. United States, 440 U.S. 147, 154, 99 S. Ct. 970, 974, 59 L. Ed. 2d 210 (1979).
The Supreme Court has never provided precise definitions of "privies" or what would constitute sufficient control. Thus a determination of when due process might or might not permit collateral estoppel must focus on the factual context of the present appeal, history, decided cases, and stated or implicit reasons why those cases did or did not permit the application of collateral estoppel to nonparties.
A claim of due process protection may be lost through estoppel. This may occur in two different contexts. The first is where the nonparty substantially participated in the control of the presentation of the prior action. Montana v. United States, 440 U.S. 147, 155, 99 S. Ct. 970, 974, 59 L. Ed. 2d 210 (1979) (where United States required suit to be filed, reviewed and approved *1003 the complaint, paid the attorney's fees and costs, and directed an appeal, it would be found to be estopped from relitigating, even though not a party to the original action). The second is where conduct by the nonparties promotes reliance by others that the party opposing them is the proper party to the suit. These circumstances often arise when a person having property or contract rights, or other legally protectable interests, invests another with apparent ownership, thereby creating the appearance that the recipient is the party that others should approach concerning the interest. Restatement (Second) of Judgements § 41 (1982).
There is one other method of precluding nonparties from relitigating issues which has been employed in earlier cases. That is the concept of "virtual representation". The seminal case using this approach is Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S. Ct. 210, 46 L. Ed. 2d 137 (1975). In that case, Aerojet had an option to buy land that it had leased from the Florida state government. When the state passed a law prohibiting the sale of the land to private parties, Aerojet successfully sued to obtain specific performance of the option contract. Dade County, where the land was located, then sued to buy the land as provided by the statute. Both the district court and the Fifth Circuit held that under federal law "a person may be bound by judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative." 511 F.2d at 719 (citing cases).
Other courts have followed the Aerojet approach, including the Ninth Circuit. See, e.g., Los Angeles Branch NAACP v. L.A. Unified School District, 750 F.2d 731, 741 (9th Cir.1984) (nonparties could be collaterally estopped in school desegregation case where parties to a prior action had provided "actual and efficient protection"); Johnson v. United States, 576 F.2d 606, 611 (5th Cir.1978) (United States was precluded from relitigating issues which had been litigated in a prior action decided in favor of present party's sister-in-law, even though not a party to the prior litigation); Proctor & Gamble Co. v. Byers Transp. Co., 355 F. Supp. 547 (W.D.Mo.1973) (truckers challenging government regulations were bound by findings in a similar suit by approximately sixty other carriers represented by the same counsel); Environmental Defense Fund v. Alexander, 501 F. Supp. 742 (N.D.Miss.1980) (earlier challenge by environmental groups to a navigation project bound nonparty challengers `having the same interest.'). And at least one court has held that a party who could intervene but fails to try to do so should be bound. See Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 459 F. Supp. 507, 514-516 (S.D.Fla. 1978) (citing Aerojet-Gen. Corp. v. Askew) (when party was aware of suit and that its rights were jeopardized, but failed to intervene, it would be bound by the judgment).
The Appellants were not parties in the adversary proceeding below; therefore, res judicata is unavailable against them.
It is also true that a traditional application of collateral estoppel would require that at least the party against whom it is being applied be one who had litigated the issue in a prior proceeding which had resulted in a final judgment. Neither LVI or LDC litigated any issue in the adversary proceeding below, and the application of collateral estoppel against them thus would not be ordinary practice.
This is not to say, however, that it would be one without precedent. Even under the Appellants' own authority, in situations where there exists a final order which relates to the same issue as is sought to be relitigated by parties or their privies, collateral estoppel may be applied. Pistoll v. Lynch, 96 F.R.D. 22 (D.C.Haw.1982). Appellants admit that Judge Chinen's Order and Findings of Fact constitute "a final judgment against Appellants." OPENING BRIEF OF APPELLANTS, p. 21, ¶ 2. The question that this Court must resolve is whether the issues in that case are sufficiently similar to those raised in this appeal, and whether the Appellants are parties whose interests are so allied with those of the debtor and Michael C. Daily that the *1004 use of collateral estoppel against them is appropriate.
As to the identity of the issues, the matters that the Appellants raise in their appeal concern whether or not there existed sufficient control and/or ownership of LVI and LDC by Sammy Daily as would provide justification for Judge Chinen's order. These are issues which were dealt with by the order, although not litigated issues. The Court notes that it was as a sanction for failure to comply with his discovery orders that Judge Chinen deemed facts alleged in the initial adversary complaint to be admitted as true and that his ruling was based on those `admissions'. But the Trustee argues that these issues were dealt with extensively in both depositions and hearing testimony which was before the Bankruptcy Court. This Court therefore concludes that Judge Chinen had the information before him that he would have gotten even had LVI and LDC been parties to the adversary proceeding. (The Court notes that Michael Daily, though President of both LDC and LVI, was not sure what business the corporation conducted. It is doubtful that significantly more information would have been elicited by having LDC of LVI as parties.)
Even under the more traditional applications of collateral estoppel, privies to the parties who litigated a prior issue may be properly bound by the judgment. Given the interconnected nature of the family holdings of the Daily family in the various Lilipuna enterprises, it is certainly plausible to view LVI and LDC as in privity with the debtor and with Michael C. Daily.
Secondly, estoppel is appropriate in cases where the prior litigants either controlled, or were controlled by the subsequent parties. See Montana v. United States, 440 U.S. 147, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979). Certainly control existed here. Michael Daily was the President of both LVI and LDC. He was also custodian of the records which were the subject of the discovery abuses ultimately resulting in Judge Chinen's Order. As to Sammy Daily, the debtor, it is evident from the record that he `controlled' all of the Lilipuna enterprises from start to finish.
Additionally, this Court concludes that this is an appropriate situation for the application of the doctrine of "virtual representation" and the consequent application of collateral estoppel against nonparties. Here the interests of the Dailys are viewed as so "closely alligned with [LVI and LDC's] interests as to be [their] virtual representative." Aerojet-Gen. Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.), cert. denied, 423 U.S. 908, 96 S. Ct. 210, 46 L. Ed. 2d 137 (1975); see also, Los Angeles Branch NAACP v. L.A. Unified School District, 750 F.2d 731, 741 (9th Cir.1984); Johnson v. United States, 576 F.2d 606, 611 (5th Cir.1978); Proctor & Gamble Co. v. Byers Transp. Co., 355 F. Supp. 547 (W.D.Mo.1973); Environmental Defense Fund v. Alexander, 501 F. Supp. 742 (N.D. Miss.1980).
Finally, the Court notes that LVI and LDC failed to intervene in the adversary proceeding below. The documents which were requested under the subpoena duces tecum dealt with LVI and LDC, and they should have had adequate notice that their interests were potentially affected by the prior action. Furthermore, the subpoena were served on their officers and controlling shareholders. Yet they took no action to protect their interests and failed to intervene in the adversary proceeding. Such a failure has been viewed as enough to bind a person not a party. See, e.g., Treasure Salvors, Inc. v. Unidientified Wrecked, Etc., 459 F. Supp. 507, 514-517 (S.D.Fla. 1978). This same reasoning applies to the Appellants' claims that their shareholders and creditors are prejudiced by Judge Chinen's order. The doctrine of virtual representation and the failure of those parties to intervene both allow them to be viewed as collaterally estopped in the same way as the Appellants.
For all of the above reasons, this Court rejects the Appellants' due process arguments and will view them as collaterally estopped from asserting positions inconsistent with those of the Dailys' in the adversary *1005 proceeding and bound by the Order of the Bankruptcy Court below.
VI. THE SANCTIONS IMPOSED BY THE BANKRUPTCY COURT
The Appellants claim that the Bankruptcy Court's entry of the finding that Sammy G. Daily "controls" the corporations, and declaring that LVI and LDC "are `alter egos' of Sammy Daily, who actually owns and controls all of the Lilipuna entities," FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER, p. 17, ¶ 18, to be erroneous. Furthermore, they claim that the Bankruptcy Court's piercing of the corporate veil, even under its equitable powers, is an improper use of the alter-ego concept, a mistaken use of the notion of "control" under corporate law, and a disregard of the actual ownership of the corporation. Finally, they claim that the Bankruptcy Court's order makes short shrift of the claims of innocent shareholders and corporate creditors of LVI and LDC.
Basically it appears that what the Appellants are claiming is that the Bankruptcy Court lacked proper justification to pierce the corporate veil, and that the imposition of this measure as a discovery sanction is an abuse of discretion on the part of the Judge Chinen. This result ensued when, as a result of the failure of Michael C. Daily to abide by the Order to Compel issued by Judge Chinen, the Bankruptcy Court deemed as established the allegations of the Trustee's Complaint and then went on to find as a matter of law that Sammy G. Daily was not just a manager and trustee of LVI or LDC, but was the beneficial owner of the interests of his family in LVI, LDC and LHI. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER, pp. 13-16.
For his part, the Trustee argues that a Bankruptcy Court has the equitable power to pierce the corporate veil and attribute property to the estate of a debtor when it ostensibly belonged to a non-debtor. Furthermore, he argues that ample authority exists to view Sammy G. Daily as both in "control" and the "owner" of the Lilipuna entities, justifying the finding of the Bankruptcy Court that Mr. Daily was in fact in control and the actual owner of LVI and LDC. This finding is a necessary precursor to the view that the Trustee has an equitable claim to the assets of LVI and LDC, thereby making the Bankruptcy Court's order requiring the disgorging of the proceeds of the property sale appropriate.
The Court will deal with this issue in two parts; the first is the question of whether or not the Bankruptcy Court's action in deeming certain facts as "established" was an appropriate sanction for the failure to abide by its orders concerning discovery; the second is whether or not the Bankruptcy Court was justified in viewing Sammy G. Daily as the beneficial owner of the Lilipuna entities and whether or not it was appropriate for Judge Chinen to pierce the corporate veil and order the assets of LVI and LDC to be attributed to Daily.
A. Sanctions under Rule 7037 of the Bankruptcy Rules Establishment of Facts and Denial of Opportunity to Produce Evidence
Judge Chinen deemed as established the facts, assertions and allegations contained in the Trustee's Complaint for Declaratory and Equitable Relief. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER, p. 16, ¶ 12. Furthermore, he held that as a matter of law, he could deny a party the opportunity to rebut such a finding through the introduction of evidence and documents which the party was obligated to produce under discovery orders and a subpoena duces tecum, but which it had not yet produced. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER, p. 14, ¶¶ 4-9.
The Appellants do not raise any significant issue with respect to this part of the order. It is apparent that Fed.Bk.R. 7037(b)(2) authorizes such action, and the Bankruptcy Court's action is well-supported by law. See U.S. For Use of Wiltec Guam, Inc. v. Kahaluu Construction Co., Inc., 857 F.2d 600, 602 (9th Cir.1988); Nilsson, Robbin, et al. v. Louisiana Hydrolec, 854 F.2d 1538, 1546 (9th Cir.1988). Such action is reviewed for an abuse of discretion *1006 "and absent a definite and firm conviction that the . . . court made a clear error of judgment, [the reviewing court should] not reverse." Louisiana Hydrolec, supra, 854 F.2d at 1546.
Judge Chinen's findings are substantiated by the record and his actions are well-supported by the law. This Court therefore affirms the Bankruptcy Court's action in deeming the facts established and not allowing contradictory evidence.
B. Viewing Sammy G. Daily as the Beneficial Owner of the Lilipuna Entities
Part of the Conclusions of Law which Judge Chinen entered was that:
Sammy G. Daily is not just a manager and a trustee of LVI, LDC and/or LHI, but the actual owner of said entities and that Sammy G. Daily, through his control of the family entities, is the beneficial owner of the interests of his family in LVI, LDC and LHI.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER, p. 16, ¶ 13.
This is the part of this issue which Appellants argue most vigorously, asserting that Judge Chinen's findings are a misapplication of the corporate "alter ego" doctrine and corporate "ownership" as a matter of law. The Appellants further contend that LVI and LDC are free to allow anyone or anything to manage or control them, without actually causing that person to become the "owner" or having the corporations be the manager's alter ego. Furthermore, Appellants argue that the effect of Judge Chinen's order is not only to remove the corporate veil from LVI and LDC but also to take corporate property from the corporations' shareholders and creditors and to subject those assets to the debtor's unrelated personal liabilities.
The Trustee's response is that while there are shareholders other than the debtor in LVI and LDC, stock certificates are only prima facie evidence of the actual ownership of the corporate entity and that the Bankruptcy Court has the authority to grant to the Trustee any of the debtor's "equitable interests". He also points to the record, specifically deposition answers of Michael C. Daily, which show that it was Sammy Daily who actually ran LVI and LDC notwithstanding Michael's position as an officer and majority shareholder in the two entities.
It is clear that a Bankruptcy Court can pierce the corporate veil and attribute assets or liabilities to the shareholders of a corporation, and that equity will allow it to do so in order to achieve a just result. What is less clear is that if in doing so it can attribute assets of the corporation to one who is not a shareholder of the corporation concerned.
Disregarding the corporate entity is an action of a court which is taken under its equitable powers. "[A] bankruptcy court is a court of equity, charged to apply equitable principles to reach equitable results in administering the Bankruptcy Act. In doing so, the bankruptcy `chancellor' may disregard form for substance and alter the result which would obtain under a formal application of general legal principles, in order to do equity." In re Ahlswede, 516 F.2d 784, 787 (9th Cir.1975) (citing Pepper v. Litton, 308 U.S. 295, 60 S. Ct. 238, 84 L. Ed. 281 (1939)).
While the decision to disregard the corporate entity is one to be made only under exceptional circumstances, "equity will not hesitate to disregard the corporate fiction when justice requires such a result." In re County Green Ltd. Partnership, 604 F.2d 289, 292 (4th Cir.1979). And as to the review of the decision to pierce the corporate veil, or view a corporation as an alter-ego of those in control of it, that decision "depends largely on the resolution of questions of fact. Therefore, the decision of the bankruptcy court should not [be] reversed unless it was clearly erroneous." Id.; United States v. Jon-T Chemicals, Inc., 768 F.2d 686, 694 (5th Cir.1985) ("Resolution of the alter ego issue is heavily fact-specific and, as such, is peculiarly within the province of the trial court. Consequently, in reviewing the district court's finding, we apply the clearly erroneous standard of review) (citing cases)).
*1007 It is also clear that an application of the corporate law of this state would allow for piercing of the corporate veil to achieve equitable results if the factual situation demanded it. Hilo Crane Service, Inc. v. Ho, 5 Haw.App. 360, 693 P.2d 412, 421 (1984) (the doctrine of corporate entity may be disregarded when to observe it would work a fraud or injustice); Chung v. Animal Clinic, Inc., 63 Haw. 642, 636 P.2d 721, 723 (1981) (corporate veil will be pierced and the legal entity of the corporation will be disregarded when there is evidence that the corporate fiction has been used to perpetrate a fraud or defeat a rightful claim) (citing cases)).
Also, federal courts have been willing disregard a corporation's existence if in doing so they would alleviate an inequitable result. Cunningham v. Rendezvous, Inc., 699 F.2d 676, 680 (4th Cir.1983). And to pierce the corporate veil, fraud or other wrongful purposes need not be proven. S.E.C. v. Elmas Trading Corp, 620 F. Supp. 231 (D.C.Nev.1985); Schattner v. Girard, Inc., 668 F.2d 1366, 1370 (D.C.Cir. 1982).
Even more telling with respect to the instant case are those cases where a bankruptcy court has attributed property to nonowners in order to prevent injustice. See, e.g., In re Charnock, 97 B.R. 619, 18 B.C.D. 1365 (M.D.Fla.1989) (when debtor transferred shares in his development company to his spouse and 2 associates who took no part in its actual operation, but retained control over the business and assets, the bankruptcy court disregarded corporate form and viewed the property as part of the debtor's estate notwithstanding the fact that the debtor was not the owner of the shares or assets); In re Landbank Equity Corp., 83 B.R. 362 (E.D.Va.1987) (bankruptcy court could reach behind the corporate veil and recover from relatives and entities related to the debtor funds the trustee believed went to them illegally where corporations were owned and operated by members of one family and were used to perpetrate and conceal fraudulent business operations of the family, including those who had no ownership interest); In re Tureaud, 45 B.R. 658 (N.D.Okl.1985) (bankruptcy court disregarded the purportedly seperate existence of nondebtor corporate entities and consolidated those entities with the debtor's estate where the debtor organized those entities and maintained control over them in a manner which prejudiced creditors).
There are many factors which a court may consider in determining whether or not it is appropriate to pierce the corporate veil; the conclusion to disregard the corporate entity does not, however, rest on a single factor, but often involves a consideration of some of those listed such that the particular situation must generally present an element of injustice or fundamental unfairness. S.E.C. v. Elmas Trading Corp., 620 F. Supp. 231, 233-234 (D.Nev.1985). The multitude of these factors and their interplay explains why the decision to pierce is one peculiarly within the province of the court which has tried the facts of the case, and which is in the best position to weigh the factors and the veracity of the parties who have provided the evidence.
Appellants point to Riddle v. Leuschner, 51 Cal. 2d 574, 335 P.2d 107 (1959) as prohibiting attribution of corporate liabilities or assets to one not a shareholder of a corporation. In Riddle a closely-held corporation had been organized by a family. While the court disregarded the corporate entity, it refused to attribute liability to persons who, though they exercised control as managers, did not hold shares in the corporation. The Court has also examined Firstmark Capital Corp. v. Hempel Financial Corp., 859 F.2d 92, 94 (9th Cir. 1988). Citing the Riddle case, the Ninth Circuit held in Firstmark that "[o]wnership of an interest in the corporation is an essential part of the element of unity of ownership and interest." 859 F.2d at 94. A unity of ownership and interest is one of the requirements of the law in California necessary to establish alter ego liability. (The Firstmark case required the Circuit Court to construe California law.)
As to this issue, there is little doubt that the Bankruptcy Court had the power to pierce the corporate veil and to impose *1008 alter-ego liability on the shareholders of LVI and LDC. It is equally clear that one of the factors which the court is to consider is whether or not those in control of the corporation disregarded corporate formalities, abused that control, or treated the corporate interest as their own in such a manner as to impose liability on them. The record certainly would support Judge Chinen's view that Sammy Daily controlled LVI and LDC sufficiently so as to warrant the imposition of liability.
Secondly, the Court recognizes that the determination to pierce the corporate veil is one which is peculiarly within the province of the trier of fact and not to be reversed absent clear error. In re County Green Ltd. Partnership, supra; United States v. Jon-T Chemicals, Inc., supra.
The problem lies in the fact that Sammy Daily was not a shareholder of LVI or LDC. Notwithstanding this fact, the Court finds Judge Chinen's decision and order justified by both the record and the law.
While Riddle and Firstmark appear to be contra to this Court's conclusion, the Riddle case concerns the California Supreme Court's construction of California law, and thus is not binding upon any court except one construing the law of that state. As for the Firstmark case, the case itself (again construing California law) concerned the question of whether or not a passive spouse would bear incidental liability through her community property interest in a corporation which her husband had so abused as to result in the imposition of alter-ego liability. While the decision by the Ninth Circuit would prevent such an imposition on a passive spouse, the actions of Sammy Daily reflected in the record hardly allow for his characterization as a passive beneficiary of the acts of others.
In turning to the instant case, there are two methods of possible assessment for Judge Chinen's action. The first relies on the power of the Bankruptcy Court, considered supra, to take facts alleged in one party's papers as true as a sanction for failure to abide by the discovery rules. It is clear that Michael Daily's conduct relative to the discovery orders in this case warrants the sanctions imposed by the court below. Those sanctions allowed the facts alleged in the plaintiff's complaint to be taken as true. One of those facts was that Sammy Daily was the beneficial owner of LVI and LDC, and that they were nothing more than Daily's alter ego. If the Bankruptcy Court takes those facts as true then that ends the matter.
The second line of analysis is based on the equitable power of the Bankruptcy Court to not allow the corporate fiction to result in fraud or injustice. This analysis relies on the fact that in situations where a bankruptcy court sees a corporate entity being used by a debtor to prevent creditors of that debtor from reaching his assets, the inherent equitable power of the court allows it to disregard the corporate form so that the substance of the matter is accurately reflected. Here, the debtor Daily was clearly in control of LVI and LDC. He had organized them as means of carrying on his businesses, and while at the time of the bankruptcy was not an actual officer or shareholder, he was most certainly the moving and controlling force behind all of their actions. In re Matter of S.I. Acquisition, Inc., 817 F.2d 1142, 1152 (5th Cir. 1987), cited by the Bankruptcy Court, states that "when there is such an identity or unity between a corporation and an individual . . . that all separateness between the parties has ceased and a failure to disregard the corporate form would be unfair or unjust" then piercing is appropriate.
Finally, it is apparent from the bankruptcy cases cited earlier that Judge Chinen's action in going behind the corporate facade and attributing property to a debtor is an appropriate exercise of equitable power. This is true even where the debtor does not hold actual `title' to that property, particularly when the record supports a finding of abuse of the corporate entity and control of that entity by the debtor. See, e.g., In re Charnock, 97 B.R. 619, 18 B.C.D. 1365 (M.D.Fla.1989); In re Landbank Equity Corp., 83 B.R. 362 (E.D.Va.1987); In re Tureaud, 45 B.R. 658 (N.D.Okl.1985).
Since the record supports the finding that there existed an identity between the *1009 debtor and LVI and LDC and also Judge Chinen's position that it would be inequitable and unjust to allow Daily to hide behind the corporate facade as a means of escaping the claims of his creditors, and since the law is clear that Judge Chinen had equitable power to prevent such an abuse of the corporate fiction, the Bankruptcy Court's Findings of Fact, Conclusions of Law and Order as to this point are Affirmed.
VII. THE TRUSTEE'S CLAIM TO THE PROCEEDS OF THE SALE
The Appellants maintain that since no claim to the proceeds of the sale of the Bayview Ridge property could be asserted by Sammy Daily, the Trustee has no claim which can be asserted on the debtor's behalf to the proceeds of that sale. They point to 11 U.S.C. § 541, specifically § 541(b)(1) which provides that property of the estate does not include "any power that the debtor may exercise solely for the benefit of an entity other than the debtor." Appellants maintain that any control that the debtor exercised over LVI or LDC was solely for their (the corporations') benefit, and not for the benefit of the debtor and as such any interest he may have had in the corporations by means of his control does not constitute an asset of the estate under § 541.
Furthermore, Appellants cite cases which support their position that unless the debtor could himself assert an ownership interest the Trustee is barred from such an assertion since the Trustee's rights and claims are limited to those which could be made by the debtor.
The Trustee maintains that notwithstanding the debtor's lack of `ownership' interest in LVI and LDC that there exists ample authority for a bankruptcy court to attribute to the debtor property in which the debtor had an `equitable' interest, regardless of whether the debtor actually had any right of ownership in such property. The Trustee also points out that 11 U.S.C. § 541(a)(1) provides that all "legal and equitable interests" of the debtor are part of the debtor's estate and as such subject to the claims of the Trustee.
This Court will review Judge Chinen's conclusions of law de novo. The Court finds that there exists ample authority for the proposition that a bankruptcy court may attribute assets or stock to a debtor as part of his estate when transfers or the use of the corporate facade have been employed as a means of prejudicing creditors or perpetrating injustice. See, e.g., In re Charnock, 97 B.R. 619, 18 B.C.D. 1365 (M.D.Fla.1989); In re Landbank Equity Corp., 83 B.R. 362 (E.D.Va. 1987); In re Tureaud, 45 B.R. 658 (N.D. Okl.1985); In re 1438 Meridian Place, N.W. Inc., 15 B.R. 89 (D.D.C.1981).
In addition to this authority, the Court is satisfied that there is ample support in the record for Judge Chinen's conclusion that the debtor controlled LVI and LDC and should be viewed as the beneficial owner of those entities. As a result, the Trustee possesses grounds to assert the claims on the proceeds from the sale of the Bayview Ridge property as specified in Judge Chinen's order.
Accordingly, the Findings of Fact, Conclusions of Law and Order of the Bankruptcy Court are AFFIRMED.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920475/ | 107 B.R. 441 (1989)
In re PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, Debtor.
Bankruptcy No. 88-0043.
United States Bankruptcy Court, D. New Hampshire.
October 17, 1989.
*442 Deasy & Dwyer, P.A. by J. Michael Deasy, Nashua, N.H., for Unsecured Creditors Committee.
Hinckley, Allen, Snyder & Comen by Joseph M. DiOrio, Providence, R.I., for New Hampshire Consumer Advocate.
Orr & Reno by Connie L. Rakowsky and Charles A. Szypszak, Concord, N.H., for New England Elec. Systems, et al.
Whitman & Ransom by Richard N. Tilton and Howard J. Berman, for Equity Committee.
Sanders & McDermott, P.A. by David J. Dunfey, Hampton, N.H., for Citicorp & Consol. Utilities & Communications, Inc.
Goodwin, Procter & Hoar by Christopher T. Katucki, Boston, Mass., for United Illuminating Co. (Seabrook Joint Owners).
McLane, Graf, Raulerson & Middleton by J. Christopher Marshall, Manchester, N.H., Hebb & Gitlin, Hartford, Conn., and Michael J. Reilly, for Prulease.
Stutman, Treister & Glatt by Richard Levin and Don Willenburg, Los Angeles, Cal., Sulloway, Hollis & Soden, Martin L. Gross, Concord, N.H., Catherine E. Shively, and Cahill, Gordon & Reindel by Thomas R. Jones and Gary W. Wolf, New York City, for Public Service of New Hampshire.
United States Trustee for the Districts of Me. Mass. N.H. and R.I. by Virginia A. Greiman, Wellesley Hills, Mass., for U.S. Trustee.
Devine, Millimet, Stahl & Branch by Mark W. Vaughn, Manchester, N.H., Office of N.H. Atty. Gen. by Larry M. Smukler, Sr. Asst. Atty. Gen., Concord, N.H., for State of N.H.
Wiggin & Nourie by Anthony C. Marts, Manchester, N.H., for First Fidelity Bank and Amoskeag Bank.
Kramer, Levin, Nessen, Kamin & Frankel by Joel B. Zweibel and Kenneth H. Eckstein, New York City, for the Unsecured Creditors Committee.
MEMORANDUM OPINION
JAMES E. YACOS, Bankruptcy Judge.
This chapter 11 contested matter involves a motion filed by the State of New Hampshire against the Debtor Public Service Company of New Hampshire ("PSNH"). The motion asks this Court to order the debtor to pay to some of its present and former commercial customers their pre-petition customer deposits in the ordinary course of PSNH's business.
This Court has jurisdiction under 28 U.S.C. §§ 157 and 1134, and the general reference Order dated February 1, 1985 by the U.S. District Court for the District of New Hampshire.
This matter came on for a hearing on May 6, 1989, after the parties had filed *443 briefs. This Court then took the matter under submission.
FACTUAL BACKGROUND
PSNH is a public utility corporation engaged in providing electric service for designated service areas within the State of New Hampshire. PSNH must follow numerous statutory requirements and regulations of the New Hampshire Public Utilities Commission. PSNH must also abide by tariffs, which set forth the terms and conditions of service and the obligations of electric service customers. The tariff in effect at the time of the filing of the chapter 11 petition, Tariff NHPUC No. 31, which is still in effect, provides for deposits in section 3 in part as follows:[1]
3. DEPOSITS, PAYMENTS, REFUSAL OR DISCONTINUANCE OF SERVICE
Until a customer has established satisfactory credit relations or when unsatisfactory credit relations exist, the Company may require security in the form of a cash deposit. Such deposits should not be less than $10.00 nor more than the estimated bill for a period of two (2) high use months.
According to the schedules filed by PSNH, the amount of the deposits received from non-residential electric service customers at the time of the petition filing was approximately $1.5 million. PSNH has refused to repay the deposits in the ordinary course of business claiming they are unsecured debts and not entitled to priority. Normally, PSNH would return the deposits to customers following termination of service or after thirty-six consecutive months during which all bills have been paid without delinquency. The deposit would be either refunded by check, applied against the final bill when the customer terminates, or it may be applied against service rendered for the continuing customer who established good credit.
There are over four thousand non-residential customer accounts with deposits representing pre-petition amounts held by PSNH. If PSNH had not filed for bankruptcy and taken its current stance of refusing to refund deposits, more than one-half of the dollars being held would have been returned by this date under PSNH's normal practice.
With respect to residential deposits in amounts not exceeding $900, PSNH has *444 previously applied for and obtained permission from this Court to apply such deposits in the ordinary course of business. However, PSNH has refused to refund the non-residential deposits in the ordinary course of business.
PRELIMINARY MATTERS
A. Standing
The debtor contests the standing of the Attorney General of New Hampshire to represent non-consumer creditors in this matter. However, since the state has the power to enforce PSNH compliance with deposit laws, the state may properly bring this motion. Moreover, the state is generally empowered to protect consumers from public utilities, and the need for a "representative" is clear due to the small size of some of these claims.
B. Nature of Proceeding
The debtor contends that the state cannot bring this action by motion, but must bring an adversary proceeding. However, this Court has the power to resolve this matter on the pleadings before it, 11 U.S.C. § 105, and finds the characterization of the proceeding irrelevant in resolving this dispute since there are no factual issues in dispute.
THE RECOUPMENT THEORY
The state contends that the non-residential deposits are recoverable under a recoupment theory. The nature and limits of recoupment need to be discussed before applying it to this case.
Recoupment has to be distinguished from setoff, although both doctrines have the effect of preferring one creditor over others. Setoff is permitted by Section 553 of the Code, and allows a mutual pre-petition claim of a creditor to be setoff against a pre-petition claim of the debtor which arose out of a different transaction than the creditor's claim. Recoupment exists independent of the Code, and allows a creditor to reduce the amount of a debtor's claim, by even keeping post-petition payments due to the debtor, due to matters arising out of the same transaction. A frequently cited example is the case of Waldschmidt v. CBS, Inc., 14 B.R. 309 (M.D.Tenn.1981). In this case, a recording company made advance royalty payments to a musician who subsequently filed bankruptcy. The company then kept post-petition royalties it received from record sales to recover the amount of the advances. When challenged, the company was allowed to do this under a recoupment theory rather than having to maintain a claim as an unsecured creditor for the advances and turn over the royalties.
Recoupment is an equitable doctrine, see In re B & L Oil Co., 782 F.2d 155, 159 (10th Cir.1986), so one might expect it to be broad. However, it "should be narrowly construed as an exception to the general rule against preferring one creditor over another." Electronic Metal Prod., Inc. v. Honeywell, Inc., 95 B.R. 768, 770 (D.Colo.1989).
The first limitation on the doctrine is that there must be a single contract. See In re Denby Stores, Inc., 86 B.R. 768, 782 (Bankr.S.D.N.Y.1988). One case allowing recoupment under one contract is In re B & L Oil Co., supra, in which a buyer of crude oil under a long-term contract was allowed to recoup a mistaken overpayment for pre-petition services by withholding payment on post-petition services. Another case allowing recoupment is In re Yonkers Hamilton Sanitarium, Inc., 22 B.R. 427 (Bankr.S.D.N.Y. 1982), aff'd 34 B.R. 385 (S.D.N.Y.1983), in which the government under a single provider agreement recovered Medicare overpayments from post-bankruptcy reimbursements to a hospital that filed under chapter 11.[2] Some cases finding separate transactions include: In re California Canners and Growers, 62 B.R. 18 (Bankr. 9th Cir. 1986) (separate contracts to purchase canned goods); In re Buckley & Assoc. *445 Ins., Inc., 67 B.R. 331 (Bankr.E.D.Tenn. 1986) aff'd 78 B.R. 155 (E.D.Tenn.1987) (profit sharing agreement and agency contract were separate).[3]
There is little question that the deposits are part of a single electricity contract that each non-residential customer had with PSNH. A case supporting this conclusion is Brooks Shoe Mfg. Co., Inc. v. United Tel. Co., 39 B.R. 980 (E.D.Pa.1984). In this case, a telephone utility was allowed to apply a deposit to a pre-petition telephone bill under a recoupment theory: "In short, it is not at all clear to me that the situation involved setoff at all. Rather, it is more nearly akin to recoupment which is plainly permitted by the Bankruptcy Code." Id. at 982. In making its ruling, the court held one transaction was involved between the parties. The Court analogized the deposit to an advance payment for telephone service, or alternatively, to a security interest. Likewise, the deposits of the commercial users were part of one transaction.[4]
The second limitation on the doctrine is that there must be some type of "overpayment", whether accidentally made, see, e.g. B & L Oil Co., supra, or contractually made, see, e.g., Waldschmidt v. CBS, Inc., supra. See generally In re Denby Stores, Inc., 86 B.R. 768, 782 (Bankr.S.D.N.Y. 1988). In our case, the deposits are designed to be recovered by the commercial customer who stays in operation and pays his/her bills for thirty-six consecutive months by crediting it against their account. Alternatively, if the customer goes out of business then the deposit is applied against his/her final bill. In short, there is always an expectation that the deposit will be returned. This is clearly a type of "overpayment". An analogous case decided by Judge Queenan of Massachusetts is In re Mohawk Indus., Inc., 82 B.R. 174 (Bankr.D.Mass.1987). In this case, the debtor was entitled to advance progress payments to cover some of the debtor's costs, which would be recovered upon subsequent delivery of the goods. The advances were made pre-petition, and post-petition the creditor was allowed to deduct the amount of the payments from the value of the goods under a recoupment theory. (He would have been able to do this under the contract if the debtor was not in bankruptcy). Like these progress payments, the deposits were intended to cover the cost of PSNH doing business,[5] but were always contractually obligated to be returned.
The debtor suggests a third limitation that should apply to this case: that recoupment can only be used as a defense. This argument is misplaced. It is true that in most recoupment cases the creditor has funds or has taken action to offset an overpayment and is the defendant in an action. But this is not always the case. In B & L Oil Co., supra, the creditor sought a declaration that the prior receipt of oil post-petition could be applied to its pre-petition overpayment, and that it could receive oil in the future without having to pay until the overpayment was cured. This was one creditor on the offensive. In the present case, the doctrine involves the offsetting of competing claims arising out of the same *446 transaction, with the recouping party limited to recovering only the compelled "overpayment" that this regulated utility debtor clearly was required to return once the limiting conditions were satisfied.
The debtor suggests a final limitation on the recoupment theory: that it conflicts with the debtor's right to elect to assume or reject an executory contract. The debtor cites no recoupment cases for this proposition. This is not surprising since recoupment is allowed before debtors make their Section 365 election. As Judge Queenan remarked in In re Mohawak Indus., Inc., 82 B.R. 174, 177 (Bankr.D.Mass.1987):
It may recoup . . . even though the Debtor was never authorized by the Court to assume that contract pursuant to 11 U.S.C. § 365. Most courts that have considered this issue permit recoupment regardless of the occurrence of a bankruptcy filing and regardless of the absence of formal contract assumption by the Debtor. In re Midwest Service and Supply Co., Inc., 44 B.R. 262 (D.Utah 1983); Rakozy v. Reiman Construction (In re Clowards, Inc.), 42 B.R. 627 (Bankr.D. Idaho 1984); In re Yonkers Hamilton Sanitarium, Inc., 22 B.R. 427 (Bankr.S.D.N.Y.1982); Waldschmidt v. CBS, Inc., (In re Jones), 14 B.R. 309 (D.C.M.D.Tenn.1981). They do so not because the debtor is held to have assumed the contract under § 365, but rather on the ground that if a debtor seeks the benefit of a contract it must take the burden under that contract as well, for much the same reason that § 365 permits assumption of an executory contract only if the debtor makes the other party whole and provides adequate assurance of future performance.
"RECOUPMENT PLUS"
Although this Court concludes that the limitations on applying recoupment have been met in this case, there is an additional equitable reason why recoupment, or a concept very akin to recoupment, should be allowed in this case. The commercial user deposits here in question were not voluntary payments extended to the debtor on the basis of a risk assessment as to dealing with the debtor on an unsecured credit basis, as is generally true of trade creditors and unsecured debenture holders who must consciously make a determination whether to deal with the debtor on that basis, but instead were payments compelled by a regulated monopoly electric utility company acting under a tariff approved by the New Hampshire Public Utilities Commission. The tariff required such deposits as a condition of obtaining electrical service. See Section 3 of Tariff NHPUC No. 31. No other alternatives were available to such depositors and in no sense could they be deemed to have acted "voluntarily" in the sense of having made a decision as to the creditworthiness of the debtor and a decision to deal with the debtor on a general unsecured basis. This factor clearly distinguishes these customer-depositors from the other "general creditors" in this estate, i.e., trade creditors and debenture holders, who did act voluntarily and decide to extend credit on an unsecured basis.
The situation is directly analogous to the case of mistaken overpayments to a debtor which have been found to be recoverable under the recoupment doctrine, or something akin to it, notwithstanding a contention that such result gave improper preferential treatment to such claimants. As noted by the court of appeals in In re B & L Oil Co., 782 F.2d 155, 159 (10th Cir.1986):
Further, bankruptcy courts apply recoupment as an equitable doctrine. Here we face a question of unjust enrichment. The situation before us is not one in which the creditor seeking relief consciously made a loan, extended credit, or made payments required by a contract, as did the bankrupt's ordinary creditors. Ashland paid the sums to B & L by mistake. Although common sharing may be required in some mistake cases by the bankruptcy laws' cleavage rules, allowing B & L's other creditors to share in this money would give them a windfall, a classic case of unjust enrichment.
Moreover, the present case is also analogous to the situation of segregated security deposits, in a non-regulated, non-monopoly business operation, in which such deposits *447 are routinely recoverable in bankruptcy proceedings. In the case of Brooks Shoe Mfg. Co., Inc. v. United Tel. Co., 39 B.R. 980, 983 (E.D.Pa.1984), District Judge Fullam, in a novel application of recoupment theory to deposits held by a telephone company, noted that the normal requirement that segregation of security deposits be proven to support recovery of same, notwithstanding a subsequent bankruptcy filing, was not applicable in the regulated utility context:
The accounting systems of public utilities are closely regulated. Under applicable regulations, segregation of security deposits is not required; and, in the context of the present dispute, it is difficult to perceive any useful purpose to be served by imposing that requirement.
It seems to me that much of the confusion engendered in this case is attributable to attempting to equate a security deposit such as that involved here with bank deposits. In the latter situation, the depositor has unfettered access to the funds at all times, and whatever obligation the bank might seek to set off is truly an independent debt. Even more importantly such independent offsetting obligation would almost inevitably prove to have been an antecedent debt.
In the PSNH situation, the company was required to treat these deposits under the tariff and regulations as funds held for the customer. Indeed, the deposits are not supposed to be included in rate base. See Legislative Util. Consumers' Council v. Granite State Elec. Co., 119 N.H. 359, 402 A.2d 644 (1979). The company accordingly was under the complete control of its regulatory agency, which would assure that such deposits would be returned when the limiting conditions were satisfied eliminating the need for any escrowing or segregation. It would never occur to any commercial user making the required deposit that the deposit return was in any jeopardy because it wasn't segregated. The depositor would expect that the regulatory agency would assure that the company would honor the deposit requirement in the future. That assurance was and is the functional equivalent of segregation of the security deposit in my judgment when dealing with a regulated monopoly utility company.
It also must be recognized as a practical matter, no matter what the outcome of this reorganization proceeding, that reorganized PSNH or any acquiring entity under a plan of reorganization will in fact continue to provide electric service to its customers in New Hampshire and will continue to be subject to the tariffs and regulation of the New Hampshire Public Utilities Commission regarding the company's dealings with its retail customers whether residential or nonresidential. This is not the more normal case in fact just about every other chapter 11 case to date in which there is some uncertainty during the preplan confirmation stage as to whether the company or any successor will in fact continue in business providing the same services.
For that additional reason it is obvious that these commercial deposit refund rights will ultimately be honored and no good purpose is served in withholding such payments to protect against any alternative result that may occur by virtue of the reorganization. It is inconceivable that this court could or would approve a plan of reorganization for a continuing electric utility in this State that did not honor existing vested rights to return regulatory-compelled deposits to the utility's customers. Whether treated as compliance with regulatory requirements or as a mandatory separate classification required by the concept of recoupment, or a concept akin to recoupment, as set forth above, the result is the same, i.e., these depositors will receive refund in full of their compelled deposits. Accordingly, it is unnecessary for the court on this matter to reach the further issue argued by the parties in terms of whether Bankruptcy Code provisions override the effect of the New Hampshire tariffs and regulatory requirements in this instance.
CONCLUSION
PSNH should immediately return to the normal course of refunding pre-petition deposits held for non-residential customers *448 who have closed their accounts, and for non-residential customers who have thirty-six months of service establishing good credit. The parties shall submit and settle a form of order in accordance with this Memorandum Opinion at the next regularly-scheduled hearing in this case.
NOTES
[1] This tariff provision conforms to the requirements of N.H.Admin.Rules PUC § 303.04 (1989), which provides in part:
PUC 303.04 Deposits.
(a) A utility, to protect against loss, may require a satisfactory cash deposit or other guarantee as a condition of new or continuing service . . .
(b) Deposit conditions. A cash deposit required pursuant to these rules, is subject to the following terms and conditions:
(1) No deposit shall be less than $10.00 nor more than the estimated charge for utility service for a period of 2 high-use billing periods. The highest use period will not be used in determining the amount of deposit.
(2) Interest shall be payable by the utility on all deposits held 6 months or more at the rate of 10 percent annually and shall be credited with simple annual interest upon the service account of the customers or paid upon the refund of deposit.
(3) Deposits, plus accrued interest thereon, less any amount due the company, shall be refunded:
a. Within 30 days of termination service, or
b. When all bills have been paid without delinquency for 12 consecutive months for a residential customer, and 36 consecutive months for a non-residential customer; provided, however, with the agreement of the customer, deposits on continuing accounts may be applied against an account until the balance of the deposit is exhausted. When a deposit is applied against an account which has been terminated, interest shall cease to be accumulated on the balance at the date of termination, and the balance shall be returned promptly to the customer.
(4) A utility shall maintain a detailed record of all deposits received from customers, showing the name of the customer, location of the service, date of the making and amount of the deposit, the amount of interest and date paid as well as a record of any amount retained by the utility upon termination to settle a delinquent account.
(5) A utility shall provide each customer posting a cash deposit a receipt containing, as a minimum, the customer's name, the place, the date and amount of payment; the name and signature of the employee receiving the deposit; and a statement of the terms and conditions governing the receipt, retention, and refund of deposits.
[2] For additional cases involving recoupment under a single contract see In re Midwest Serv. and Supply Co., Inc., 44 B.R. 262 (D.Utah 1983); In re Alpco, Inc., 62 B.R. 184 (Bankr.S.D. Ohio 1986); In re American Central Airlines, Inc., 60 B.R. 587 (Bankr.N.D. Iowa 1986).
[3] For additional cases denying recoupment due to multiple transactions see Electronic Metal Products, Inc. v. Honeywell, Inc., 95 B.R. 768 (D.Colo.1989); Westinghouse Elec. Corp. v. Fidelity and Deposit Co., 63 B.R. 18 (E.D.Pa.1986); and In re Denby Stores, Inc., 86 B.R. 768 (Bankr. S.D.N.Y.1988).
[4] This Court is aware that the decision in the recent case of In re Cole, 104 B.R. 736, (Bankr. D.Md.1989), indicates that monthly electric bills and electric service deposits involve separate obligations. In the Cole case, the Court held that such separate obligations meant that setoff, not recoupment, would apply and that the debtor's claim for exemption of a pre-petition security deposit would prevail over the utility's attempt to apply the deposit against its pre-petition claim. Interestingly, the effect of decision in Cole was to allow the debtor to "cross the bankruptcy filing divide" by then using the deposit monies to satisfy her § 366 obligation to provide reasonable assurance regarding post-petition electrical service. To the extent that the "separate obligations" point in Cole was essential to the decision, and to the extent it differs with the Brooks decision, I believe that Cole is not persuasive; the monthly service and deposit in every practical sense are part of one electricity contract in my judgment.
[5] Specifically, it is to protect PSNH from suffering losses due to uncollectible receivables. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2410444/ | 704 S.W.2d 684 (1986)
W. Filmore HAITH, M.D., James S. Johnson, M.D., and Marion Richardson, M.D., Appellants,
v.
MODEL CITIES HEALTH CORPORATION OF KANSAS CITY, Missouri, Respondent.
No. WD 36901.
Missouri Court of Appeals, Western District.
January 28, 1986.
*685 Reggie C. Giffin, Leonard J. Johnson and David T. Holt (Morrison, Hecker, Curtis, Kuder & Parrish, of counsel), Kansas City, for appellants.
Lloyd S. Hellman and Blake Keating (Sandler, Balkin, Hellman & Weinstein, of counsel), B. William Jacob (Bagby, Jacob & Iliff, of counsel), Kansas City, for respondent.
Before SOMERVILLE, P.J., and PRITCHARD and BERREY, JJ.
PRITCHARD, Judge.
Count I of plaintiffs' first amended petition is for breach of an employment contract entered into on December 16, 1974, whereby plaintiffs were to provide comprehensive obstretrical (sic) and gynecological services for defendant. The contract was terminated on December 15, 1976, effective January 15, 1977, by defendant by written notice. Paragraph 9 of the contract provides: "This agreement may be terminated at any time by the mutual consent of the Health Center and any one of the Physicians." The contract provided for other reasons (mentioned below) for termination, not here in issue, and Paragraph 9 wound up, "In the event of termination for other causes, compensation shall cease as of the date of termination." The trial court entered summary judgment against plaintiffs upon Count I upon the ground that Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262 (1940); and Superior Concrete Accessories, Inc. v. Kemper, 284 S.W.2d 482 (Mo.1955), established that a written contract for services which does not contain a stated term shall, as a matter of law, be held to be terminable at will of either party upon reasonable notice.
In the Paisley case, supra, the basic issue was whether a successor insurance company, Missouri State, was empowered to cancel a contract relationship with plaintiffs. The original contract provided that the contract might be terminated by either party by notice in writing delivered to the other party at least 30 days before the date fixed for termination. An amendment of August 26, 1925, to the contract provided, "`It is understood that said contract and supplements thereto will be continued in full force and effect and will not be cancelled or modified, except by mutual agreement, * * * or unless the Insurance Department of the State of Missouri by proper order requires and demands such modification, or cancellation.'" [Italics *686 added.] On September 26, 1928, the Insurance Department advised appellant and Missouri State that it ordered, required and demanded that the contract and all supplements be cancelled. Missouri State so advised appellant that it was compelled to and did cancel the contract relationship. The Supreme Court in affirming the trial court held, pages 270, 271, that the contract was not one for life; but it was for an indefinite period and could be terminated at the will of either party, quoting 32 C.J.S. 1061, § 136, which is (in part) "`The agency may be terminated by the mutual consent of the parties, by operation of law, such as by the death of the agent; and if the agency contract fixes no date or time for its duration it may, as a general rule, be terminated at any time at the election of either party. (Citing other authority).'" Thus neither insurance company, International nor Missouri State were liable in damages to Paisley for breach of contract.
In the Superior Concrete case, supra, page 489, the contract provided that it "shall continue in effect thereafter until cancelled by mutual agreement." The contract had no fixed duration, either expressly or by implication. The court, following the general rule and the Paisley case, supra, held that contracts for an indefinite period of time may be terminated at the will of either party. Other later cases following the rule that unstated duration employment contracts are terminable at will are Enyeart v. Shelter Mutual Insurance Co., 693 S.W.2d 120 (Mo.App.1985); and Amaan v. City of Eureka, 615 S.W.2d 414, 415 (Mo. banc 1981).
Plaintiffs contend that the "at will" doctrine is inapplicable because the parties contractually limited or conditioned the reasons for which the contract could be terminated by (1) the mutual consent of the parties; (2) the death of one of the physicians; (3) for failure of one of the physicians to maintain licensure; (4) for behavior of one of the physicians disruptive to the Health Center; (5) for failure by the physicians to meet their professional responsibilities; or (6) for permanent disability of one of the physicians. None of these conditions occurred, and the argument ignores that the contract was for an indefinite period. Note that the provision for termination by mutual consent was in the contracts in both the Paisley and Superior Concrete cases, in which that provision was not held to be of consequence, since the contracts were for indefinite periods of time, and thus were terminable at will.
Plaintiffs cite and rely upon Drzewiecki v. H & R Block, Inc., 24 Cal. App. 3d 695, 101 Cal. Rptr. 169 (1972), but the facts there are inapposite to those here. In Block, the contract was entered into in 1959 and contemplated a long term relationship for the mutual benefit (profit) of both the employer and employee as manager of the Stockton and Fresno offices. At the outset, Mr. Richard Bloch told the employee that in the first year the operation would probably lose business, in the second year it might break even, and should start making a profit in the third year. He also told the employee that they would be "`like partners' ", that the business was his and he could "`sell it, trade it'" or "`do with it'" as he pleased. The employee entered into his managerial duties, and substantially increased the number of branch offices managed by him, with definite profits. In 1967, Block decided it was paying its 250 branch managers excessively, and proposed new contracts substantially reducing managers' share of net profits for future growth, which the employee refused to sign. The original contract provided that a 90 day notice of termination could only be given in case of the employee improperly conducting the business, which was obviously not the fact. At page 173[1], the Block court adhered to the general rule "that an employment contract purporting to establish a permanent employer-employee relationship through the use of oblique language is terminable at the will of either party unless it is based upon some consideration other than the employee's services. (Citing cases.)" In affirming the judgment for the employee, the court held, at page 175, that the contract was designed to accomplish a special purpose and that its *687 duration was to be for so long as the employee competently conducted the employer's business, and it could not be terminated by Block except for cause. No such condition is in the contract in the present case, and therefore it must be held that the trial court did not err in entering summary judgment against plaintiffs on Count I.
Count II of plaintiffs' first amended petition states a claim under the law of privacy for appropriation of their names. It is pleaded that after the notice of termination of December 15, 1976, defendant, in preparing its "Continuation Grant Application" for the fiscal year May, 1977 to May, 1978, acting through its project director, E. Frank Ellis, assured and certified to the Federal Government that plaintiffs would be employed by defendant for that budget period at a total annual salary rate of $94,506.00, well knowing that plaintiffs would not be employed by defendant for that fiscal year. According to the briefs, the "Continuation Grant Application" was made about two weeks after plaintiffs were terminated. It is said that the application is contained in a supplemental legal file, but that document has not been filed with this court.
"One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy." Restatement (Second) of Torts, § 652C (1977). See also W. Prosser, Handbook of the Law of Torts, § 117, p. 804-814 (4th Ed.1971), setting forth the four generally recognized tort actions for the invasion of privacy: "(1) intrusion; (2) public disclosure of private facts; (3) false light; and (4) appropriation of another's name or likeness." It is the fourth category which is the basis of plaintiffs' claim. See the excellent article, "Privacy", William L. Prosser, 48 California Law Review 383 (1960), tracing the history of the tort action, and discussing at page 401, the category of "Appropriation", and stating, page 403, "It is the plaintiff's name as a symbol of his identity that is involved here, and not his name as a mere name. * * * It is when he [defendant] makes use of the name to pirate the plaintiff's identity for some advantage of his own, as by impersonation to obtain credit or secret information, * * *." [Brackets added.]
This state early recognized the tort action for invasion of privacy in Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076 (1911). There the court held that such a claim was stated in the petition that defendants used and published the picture of the five year old plaintiff without his consent for advertising their business of selling merchandise, saying, page 1079, "We therefore conclude that one has an exclusive right to his picture, on the score of its being a property right of material profit. We also consider it to be a property right of value, in that it is one of the modes of securing to a person the enjoyment of life and the exercise of liberty, and that novelty of the claim is no objection to relief. If this right is, in either respect, invaded, he may have his remedy, either by restraint in equity or damages in an action at law. If there are special damages, they may be stated and recovered; but such character of damage is not necessary to the action, since general damages may be recovered without a showing of specific loss; and if the element of malice appears, as that term is known to the law, exemplary damages may be recovered."
In Alonso v. Parfet, et al., 171 Ga.App. 74, 318 S.E.2d 696, 698 (1984), where defendants used plaintiff's doctor's name in their publications after he was terminated as their director, the court said, "However, in addition to and independent of the right of privacy, this case deals with a man's rights in the publicity value of his name, i.e., the right to grant exclusive privilege of using his name." The Alonso case was reversed in 253 Ga.App. 749, 325 S.E.2d 152, 154 (1985), upon the ground that "The evidence establishes a question of fact as to whether appellees halted the use of appellant's name within a reasonable time after his dismissal.", an issue not present on this appeal.
Defendant says that mention of plaintiffs' names in the grant application constituted *688 an incidental business use and therefore was not a commercial appropriation. It argues that the Munden case, supra, indicated that it would follow the New York decisions which are based upon a statute there which limits appropriation actions to use for advertising and trade. The argument ignores that a jury could find that there was an advantage to defendant in using plaintiffs' names to procure a government grant, within the fourth category of privacy actions mentioned by Prosser, supra.
It is also argued by defendant, citing Beane v. McMullen, 265 Md. 585, 291 A.2d 37, 46 (1972), that one's privacy is not invaded by reports only to government officials and not to the press, to neighbors or social friends. The Beane case did not involve a name appropriation, but only requests to public authorities to investigate possible violations of zoning and other county laws. There was no personal advantage to the McMullens, and the court held that there was no evidence that McMullens' complaints were unreasonable or unjustified. It is also argued that plaintiffs as doctors and employees of defendants' clinics, were voluntarily operating within a public context, and defendant did not therefore invade their private lives their names cannot be construed as "private", nor as being appropriated in a tortious manner. Cited for the proposition that plaintiffs were public figures is Rinsley v. Brandt, 446 F. Supp. 850 (D.Kan. 1977). In that case plaintiff, as Director of the Children's Section at Topeka State Hospital and Associate Clinical Professor of Psychiatry at K.U. School of Medicine, and having worked exclusively at public medical institutions, was a public official or figure who was required to show actual malice in his action for invasion of privacy by placing him before the public in a false light under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). The court applied the definition of "public official" set forth in Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S. Ct. 669, 675, 15 L. Ed. 2d 597 (1966), "It is clear, therefore, that the `public official' designation applies at the very least to those among the hierachy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." Certainly plaintiffs here were not government employees, and there is nothing to indicate that they had any responsibility for or control over the conduct of governmental affairs. The Rinsley case, although holding at pages 857 and 858 that a public official has no right of privacy as to the manner in which he conducts his office, and could not be allowed to shelter his work completely from public scrutiny, did hold that plaintiff had the right to be protected from any falsehoods that accompany public scrutiny. The Rinsley case is not in point and cannot be a bar to plaintiffs' action.
Plaintiffs say in their brief that the appropriation of their names is a cause of action also referred to as the "right of publicity", citing Nimmer, The Right of Publicity, 19 Law and Contemp.Probs. 203 at 216 (1954). Plaintiffs do not claim to be celebrities having a right to publicity in the exclusive use of their names, as originated in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953). The cause of action for use of a celebrity's name differs at least in the rules for measure of damagesvalue of the use by defendant of a celebrity's name as against the measure of the injury to plaintiff in privacy actions. Besides, the Munden case holds that private, ordinary citizens have a cause of action in privacy for the appropriation of their names or likenesses. "Right of Publicity" in the sense used by a celebrity has nothing to do with this case.
Defendant seems to argue further in support of the grant of summary judgment on Count II that a person of reasonable sensibilities would not react by way of humiliation. Cited is Williams v. KCMO Broadcasting Div.-Meredith Corp., 472 S.W.2d 1 (Mo.App.1971). That case involved the television publication of plaintiff's arrest, held to be an authorized reporting *689 of a newsworthy event, not presented indecently, and thus held to be not actionable. The court's remark at page 4 that there must be shown that publication shows a "`serious, unreasonable, unwarranted and offensive invasion of private affairs'", is dictait refers to the evidence, a fact question for the jury. Whether plaintiffs were humiliated, or otherwise damaged, by the appropriation of their names is a question of fact for the jury.
Defendant lastly contends that plaintiffs' case must fail because there was no evidence of medically significant mental health problems caused to them. It bases that contention on plaintiffs' answers to interrogatories that no physician was consulted, and no monetary expense was incurred. Those answers were at the discovery stage of the proceedings, and whether there existed medically diagnosable distress or mental injury might be established, under Bass v. Nooney, Co., 646 S.W.2d 765, 772 (Mo. banc 1983), at trial. In any event, plaintiffs' recovery of damages (even nominal damages), should the jury find that they are entitled to recovery for appropriation of their names, is for that trier of the fact.
There exists genuine issues of fact as to whether defendant wrongfully appropriated plaintiffs' names to its advantage, and if so, the matter of damages therefor, and the Court erred in entering summary judgment on Count II.
The summary judgment on Count I is affirmed. The summary judgment on Count II is reversed and the case is remanded for further proceedings.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2399159/ | 394 S.W.2d 707 (1965)
FAIR WEST BUILDING CORPORATION, Appellant,
v.
TRICE FLOOR COVERINGS, INC., Appellee.
No. 16664.
Court of Civil Appeals of Texas, Fort Worth.
September 24, 1965.
Max E. Clark and G. V. Morton Minton, Fort Worth, for appellant.
Dalton, Moore, Forde & Joiner, T. M. Dalton, Jr., and Dan W. Stansbury, Dallas, for appellee.
RENFRO, Justice.
A lease contract was executed by Trice Floor Coverings, Inc., and Fair West Building Corporation for a ten year period beginning February 1, 1955, with a five *708 year option. Trice, the tenant, at the expiration of the ten year period, exercised its option and is occupying the described premises.
Plaintiff, lessee, desires to sublet a portion of the premises for the use and occupancy by a subtenant for purposes which are not in violation of law or the zoning ordinances applicable to the premises, but for a purpose other and different from those normally found in a floor covering store and not performed by Trice Floor Coverings, Inc.
Under declaratory proceedings the trial court decreed that plaintiff has the right under the indenture of lease between the parties to sublet all or any part of the premises described in said lease to subtenants for their use and occupancy for any purpose or purposes not in violation of law or the zoning ordinances applicable, and to make such changes and additions to the interior of the premises as shall be reasonably necessary for convenient use of the premises by plaintiff and its subtenants which do not affect the structural quality of the building.
Defendant contends the court erred because: the use of the building is restricted to the operation of a unit of Trice Floor Coverings, Inc.; subletting by the tenant is subject to all other provisions of the lease; and plaintiff has no right to make changes to the interior of the premises without the consent of the landlord.
In paragraph 4 "The Landlord and Tenant agree that said premises, during the continuance of this lease, may be used and occupied by tenant only for: Operating a unit of Trice Floor Coverings, Inc. and for no other purpose."
Paragraph 5 prohibits the tenant from making any structural changes in the premises.
Paragraph 7 requires the landlord's consent for changes to the exterior, but does not require consent for alterations, improvements, etc., inside the premises.
Paragraph 12 provides: "The Tenant may assign or transfer this lease or Tenant may at any time or from time to time sublet all or any part of the premises to sublessees, concessionaires, or independent contractors, provided, however, that no such assignment or sub-letting shall in any wise release Tenant from its obligation to pay the minimum guaranteed and percentage rentals herein stipulated. However, no assignment of the lease by the Tenant shall be effective as to the Landlord until the Landlord has been furnished with a true copy of the instrument of assignment, including the post office address of the assignee and said assignment shall not release the Tenant from any obligations under this lease."
Defendant relies for reversal upon Young v. De La Garza, Tex.Civ.App., 368 S.W.2d 667, and Grossmann v. Barney, Tex.Civ. App., 359 S.W.2d 475.
In the Young case the lease itself contained an express prohibition of reassigning without written consent of the landlord. In the Grossmann case the lease provided that no alteration would be made without the landlord's written consent.
In the instant case the tenant proposes to make alteration in the interior of the building only, and the lease does not require consent of or notice to the landlord for such changes as contemplated.
Although Article 5237, Vernon's Ann.Civ.St.Tex., provides that a person renting land or tenements shall not rent or lease the same during the term of the lease to any other person without consent of the landlord, such provision is for the sole benefit of the landlord and he may waive said provision. 36 Tex.Jur.2d, p. 63, § 224.
Paragraph 12 gives the tenant the right to sublet. The only requirements of the tenant are that it remain liable for the *709 rent, and that if the lease is assigned to another a copy of the assignment be delivered to the landlord. The sublease provision does not refer to any other part of the contract, except as to rent liability, and does not by reference or otherwise expressly make the sublease provision subject to any other provision of the lease agreement.
By unqualified words the parties in paragraph 12 said that the tenant might sublet all or any part of the premises to sublessees, concessionaires or independent contractors. The provision does not confine such subtenants to any particular usage of the premises, and does not restrict the lessee's right to sublet to any class of persons or businesses.
If in fact there are conflicts between paragraphs 4 and 12, such conflicts must be reconciled and harmonized, if possible, by reasonable interpretation, and the contract as a whole given effect. To uphold defendant's contention that the premises may be used only for operating a unit of Trice Floor Coverings, Inc., would render paragraph 12 meaningless and of no effect. We are bound by the meaning of what the parties said in the lease. 19 Tex. Jur.2d, p. 401, § 111. Considering the instrument from its four corners, it is reasonably susceptible to the construction given by the trial court.
We think the court was correct in decreeing the plaintiff had the right to make reasonably necessary interior changes for two reasons, first, the lease does not require the consent of the landlord for such alteration, but in fact assumes that the tenant will from time to time make interior alterations; and, second, as held by this Court in Mayer v. Texas Tire & Rubber Co., 223 S.W. 874 (Fort Worth Civ.App., 1920, no writ hist.), the stipulation in the contract according the lessee the right to sublet the premises, in part or in whole, carries with it the right of the lessee to make such changes and additions in the building as are reasonably necessary to the lease of the building by such tenants, provided such changes do not constitute a substantial change in the structural quality of the building, and where the additions can be removed at the expiration of the lease without injury to the building.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920418/ | 107 B.R. 707 (1989)
In re LORETTO WINERY, LTD., Debtor.
BELL FLAVORS & FRAGRANCES, INC., Appellant,
v.
Paul B. ANDREW, Trustee, Appellee.
BAP Nos. NC-88-1575-MeMoV, NC-88-1626-MeMoV, Bankruptcy No. 4-85-04121 WA, Adv. No. 3-87-0654 TC (OAK).
United States Bankruptcy Appellate Panel for the Ninth Circuit.
Argued and Submitted July 20, 1989.
Decided September 29, 1989.
*708 James S. Mori, Stokes, Welch & Stromsheim, San Francisco, Cal., for appellant.
Jeremy D. Weinstein, Buchalter, Nemer, Fields & Younger, San Francisco, Cal., for appellee.
Before MEYERS, MOOREMAN and VOLINN, Bankruptcy Judges.
OPINION
MEYERS, Bankruptcy Judge:
I
We are asked whether Section 547(c)(2)(C) of the Bankruptcy Code embodies an objective standard and whether an order awarding expenses pursuant to Rule 37 of the Federal Rules of Civil Procedure constituted an abuse of discretion. We AFFIRM.
II
FACTS
Loretto Winery, Ltd. ("Loretto") was supplied with natural and artificial flavorings to use in manufacturing consumer goods. The supplier, Bell Flavors & Fragrances, Inc. ("Bell"), shipped the flavorings under invoices which required payment within 30 days, but systematically accepted late payments. Eventually, during the 90 days which preceded Loretto's petition in bankruptcy, four transfers were made to Bell in satisfaction of similar antecedent debts. The transfers were themselves from 25 to 67 days late.
The trustee charged with administering the bankruptcy estate brought a complaint to avoid the transfers as preferences. Bell opposed the complaint, conceding that while the transfers fell within that definition, they were nevertheless immune from avoidance under 11 U.S.C. § 547(c)(2). Bell premised its contention on the notion that Section 547(c)(2) embodies nothing more than a subjective standard, i.e., that relief is available under the provision if the challenged transfer is consistent with the past practice of the debtor and the transferee.
While a hearing on the matter was pending, the trustee sought the immediate production of certain documents in Bell's possession to evaluate the merits of Bell's defense. Counsel for Bell responded that four months would be required to produce the requested documents, citing the distance between counsel and client as the justification for the delay. The trustee was dissatisfied with the anticipated response time and so submitted formal interrogatories and requests for production, once again demanding swift action. Bell answered the renewed request, but indicated that the deadline would be conditioned on the return of an absent Bell employee. Dissatisfied and under the pressure of discovery deadlines, the trustee filed a motion to compel production under Rule 37 of the Federal Rules of Civil Procedure.
A hearing on the motion was held, at which Bell urged in opposition that the trustee had failed to schedule a formal conference to "meet and confer" upon the issues and that he had not obtained a "certificate of compliance," both burdens under the local rules of court.[1] The trial court rejected these arguments, however, concluding on June 16, 1988, that the trustee had satisfied the "meet and confer" requirement of the relevant local rule through his discussions with Bell prior to the hearing. The court thereupon entered an order compelling discovery over the objections of Bell, and, pursuant to Rule 37(a)(4) of the Federal Rules of Civil Procedure, ordered Bell to pay $750 to cover the expenses which the trustee had incurred in prosecuting the motion. Bell appealed, *709 urging that the award of expenses was improper.
On July 7, 1988, the trial court held that the transfers sought to be avoided by the trustee were indeed avoidable as preferences. It rejected the notion that the transfers were immunized under Section 547(c)(2) on the ground that Bell had failed to prove that the transfers were made according to "ordinary business terms," a condition which was said to embrace an objective standard to be shown by the custom in the industry in which the parties were engaged. Bell appealed and its two appeals were thereafter consolidated.
III
STANDARD OF REVIEW
In resolving this appeal, we determine first whether 11 U.S.C. § 547(c)(2)(C) embodies a purely objective standard, an issue subject to de novo review, and second whether the order awarding the trustee expenses was appropriate under the circumstances, an issue subject to review for an abuse of discretion. In re Windmill Farms, Inc., 841 F.2d 1467, 1469 (9th Cir. 1988); Golden Eagle Dist. Corp. v. Burroughs Corp., 801 F.2d 1531, 1538 (9th Cir.1986); In re Walter, 83 B.R. 14, 17 (9th Cir. BAP 1988); In re Lewis, 79 B.R. 893, 895 (9th Cir. BAP 1987). The trial court answered both questions in the affirmative.
IV
DISCUSSION
A. The Ordinary Course of Business Exception
A party in receipt of a challenged preferential transfer must satisfy three conditions to be afforded relief under the "ordinary course of business" exception of Section 547(c)(2). The challenged transfer must be:
(A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee;
(B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
(C) made according to ordinary business terms.
11 U.S.C. § 547(c)(2).
It was the conclusion of the trial court that the third of these conditions, subparagraph (C), embodied an objective standard to be shown by the custom in the industry in which the transferee and debtor are engaged. We agree, for to graft upon the relevant terms anything but an objective yardstick would either ignore the operative nomenclature altogether, thereby making it a nullity, or interpret it in a manner which duplicates the requirement of subparagraph (B), thereby making it superfluous. In re Steel Improvement Co., 79 B.R. 681, 684 (Bkrtcy.E.Mich.1987). Such a construction would run contrary to settled principles of construction by impermissibly rendering the statute inoperative or superfluous, and by failing to give effect to all the words employed by Congress. Mountain States Tel. & Tel. Co. v. Santa Ana, 472 U.S. 237, 249, 105 S. Ct. 2587, 2594, 86 L. Ed. 2d 168 (1985); Reiter v. Sonotone Corp., 442 U.S. 330, 337-39, 99 S. Ct. 2326, 2330-31, 60 L. Ed. 2d 931 (1979); Colautti v. Franklin, 439 U.S. 379, 392, 99 S. Ct. 675, 684, 58 L. Ed. 2d 596 (1979); Nieto v. Ecker, 845 F.2d 868, 873 (9th Cir.1988).
We hold, as did the trial court, that a challenged transfer is "ordinary" under the terms of subparagraphs (A) and (B) if it is proved to be within the prior course of dealings between "the debtor and the transferee." However, because the terms of subparagraph (C) contain no such reference and would otherwise be deprived of operative effect if dependent on or subsumed in (A) and (B), we must conclude that the provision requires proof that the challenged transfer was made pursuant to an objective standard based on practices common to businesses similarly situated to the debtor and transferee. Broome, Payments on Long-Term Debt as Voidable Preferences: The Impact of the 1984 Bankruptcy Amendments, 1987 Duke L.J. 78, 84-86 (1987); DeSimone, Section *710 547(c)(2) of the Bankruptcy Code: The Ordinary Course of Business Exception Without the 45 Day Rule, 20 Akron L.Rev. 95, 117 (1986). The record of prior conduct of the debtor and transferee is so random and haphazard that it yields no reasonable, ascertainable boundaries. Transfers made in accordance with such conduct will not be considered "ordinary" under Section 547(c)(2)(C) without a showing that they otherwise satisfied an objective standard. DeSimone, supra, at 126.
Bell produced no objective evidence at all. The result reached by the trial court was therefore consistent with the language of Section 547(c)(2)(C), as well as with the majority of jurisdictions which have considered the issue. Windsor Communications Group v. Freedom Greeting Card Co., Inc., 63 B.R. 770, 775 (E.D.Pa.1986); In re SPW Corp., 96 B.R. 676, 680 (Bkrtcy. N.Tex.1989); In re Morren Meat and Poultry Co. Inc., 92 B.R. 737, 741 (W.D. Mich.1988); Matter of Unimet Corp., 85 B.R. 450, 453 (Bkrtcy.N.Ohio 1988); Steel Improvement, supra, 79 B.R. at 683-84; In re Magic Circle Energy Corp., 64 B.R. 269, 272 (Bkrtcy.W.Okla.1986); In re Alpex Computer Corp., 60 B.R. 315, 318 (Bkrtcy. Colo.1986); In re Production Steel, Inc., 54 B.R. 417, 423 (Bkrtcy.M.Tenn.1985).
B. Propriety of the Award of Attorney's Fees
Attorney's fees are awarded under Rule 37(a)(4) of the Federal Rules of Civil Procedure upon the granting of a motion to compel discovery unless the opposition to the motion is substantially justified or other circumstances make an award of expenses unjust.
If the motion [to compel discovery] is granted, the court shall, after opportunity for hearing, require the party . . . whose conduct necessitated the motion . . . to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 37(a)(4). See In re Tong Seae (U.S.A.), Inc., 81 B.R. 593, 594 n. 1 (9th Cir. BAP 1988) (F.R.Civ.P. 37 made applicable to bankruptcy proceedings by Bankruptcy Rule 7037). The trial court was of the opinion that the information sought by the trustee was discoverable and that conditions did not exist which warranted its refusal to impose costs and expenses. Given the equivocal justifications advanced by Bell in opposition to the motion, we cannot arrive at the definite and firm conviction which is necessary for a finding that the trial court committed a clear error of judgment. Mission Indians v. American Mgmt. & Amusement, Inc., 840 F.2d 1394, 1408 (9th Cir.1987); Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985).
The trustee's alleged failure to comply with local rules in obtaining the order to compel discovery does not merit a determination to the contrary. In any event, a bankruptcy court has discretion to excuse strict compliance with local rules. See In re Comer, 27 B.R. 1018, 1022-23 (9th Cir. BAP 1983), aff'd on other grounds, 723 F.2d 737 (9th Cir.1984) (bankruptcy court may allow filing and consideration of opposition papers later than the deadline set by local rules especially when detrimental reliance or other prejudice has not been demonstrated). Further, we permit trial courts broad discretion in determining the requirements of their general orders and local rules. See Guam Sasaki Corp. v. Diana's, Inc., 881 F.2d 713 (9th Cir.1989).
IV
CONCLUSION
Section 547(c)(2)(C) of the Bankruptcy Code embraces an objective standard requiring transfers to be made according to terms common to those of businesses similarly situated to the debtor and transferee. The order awarding the trustee his expenses under Rule 37 of the Federal Rules of Civil Procedure was justified under the circumstances.
AFFIRMED.
NOTES
[1] Bell asserts that the trustee violated Local Rule 230-4(b) for the District Court for the Northern District of California, which requires a party to serve and file a "certificate of compliance" prior to moving to compel discovery, and Local Rule 230-4(a), which compels the same party to "meet and confer" with the party against whom discovery is sought. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621719/ | 733 So.2d 313 (1998)
TRILOGY COMMUNICATIONS, INC., Appellant,
v.
THOMAS TRUCK LEASE, INC., Appellee.
No. 97-CA-00337 COA.
Court of Appeals of Mississippi.
December 8, 1998.
Rehearing Denied March 9, 1999.
Certiorari Denied May 20, 1999.
*314 Peter L. Doran, Jackson, Attorney for Appellant.
J. Gordon Flowers, Columbus, Attorney for Appellee.
*315 Before THOMAS, P.J., and DIAZ and COLEMAN, JJ.
DIAZ, J., for the Court:
¶ 1. Trilogy Communications, Inc., the appellant, appeals the decision of the Circuit Court of Lowndes County denying Trilogy's motions for relief from judgment and for a stay of the proceedings to enforce judgment pursuant to Mississippi Rules of Civil Procedure 60(b) and 62(b). Trilogy asserts numerous issues in this appeal; however, the determinative issue is whether the trial court abused its discretion in denying the motions filed pursuant to Rule 60. We find that Trilogy has failed to prove that the circuit court judge abused his discretion in denying the motions. Therefore, we affirm the ruling of the circuit court.
FACTS
¶ 2. This is the second appeal between Trilogy Communications, Inc., a Delaware Corporation with its principal place of business in Rankin County, Mississippi, and Thomas Truck Lease, Inc., an Alabama corporation with its principal place of business in Lowndes County, Mississippi. Thomas and Trilogy entered into a contract wherein Thomas agreed to supply custom ordered tractor trailer units, fuel, maintenance, permits, and other incidentals to Trilogy. Both parties agreed that if Trilogy breached the lease agreement, it would have to purchase the equipment under the buy-out provision of the lease. Thereafter, Trilogy breached the lease agreement by non-payment, so Thomas sued to recover the amount due under the lease for past performance and to enforce the buy-out provision of the lease since the equipment was custom ordered for Trilogy. The jury awarded actual damages according to the terms of the lease, and the circuit court awarded attorney's fees based on the express terms of the lease.
¶ 3. After this Court's first ruling and on remand to the trial court where the circuit court was ordered to explain its rationale for the award of attorney's fees, Thomas claimed that Trilogy attempted to expand the scope of review and to relitigate under Mississippi Rules of Civil Procedure 60 and 62 the jury's award of damages. In June of 1996, this Court entered a mandate that did not include an award of interest or the statutory penalty. Pursuant to a motion by Thomas, this Court awarded interest at 8% per annum from the date of the final judgment but denied the request for the 15% statutory penalty. Thereafter, a final undisputed order certifying attorney's fees was entered before this Court. The circuit court then had jurisdiction to provide the rationale for the award of attorney's fees.
¶ 4. At this point, Trilogy filed a motion for relief from judgment pursuant to M.R.C.P. 60(b) and for a stay of the proceedings to enforce judgment pursuant to M.R.C.P. 62(b). Trilogy's main argument states that Thomas had generated proceeds from third parties based upon the use, sale, or lease of the tractors and trailers after the entry of the final judgment, and that to allow Thomas to recover the final judgment would be a penalty against Trilogy. In November 1996, the circuit court ordered Thomas to give Trilogy records on an expedited basis so that Trilogy could provide the court with an analysis of the credit it was due for the use, sale, or lease by Thomas of the equipment. In December 1996, this Court affirmed the award of attorney's fees. Thomas filed a motion for entry of an order requiring payment of the August 1992 judgment in December 1996. In January 1997, Thomas filed a motion for reconsideration of the circuit court's order requiring production of the documents regarding lease proceeds. A hearing was set for February 1997. In late January 1997, the circuit court, sua sponte, entered an order requiring Trilogy and Thomas to show cause why an expert should not be appointed to determine the amount of credit that should be applied to the judgment. A hearing was set for the matter also in February *316 1997. One day before the scheduled hearings, Thomas withdrew its motion for the entry of an order requiring payment. At the hearing, a bench order was entered reversing an earlier decision to require Thomas to submit documents concerning the leases. Additionally, the court reserved the right to appoint an expert to determine the credits due to Trilogy. Arguments were heard on Trilogy's motions under M.R.C.P. 60 and 62, and the trial court denied those motions. Furthermore, the circuit court granted a judgment to Thomas against Trilogy for $1,693,831.12 plus interest and attorney's fees. The judgment did not consider the credit due by Thomas. Feeling aggrieved Trilogy perfected this appeal on the Rule 60(b) motions.
DISCUSSION
¶ 5. Although Trilogy lists several assignments of error, the crux of this appeal is whether the circuit court abused its discretion in denying Trilogy's Rule 60(b) motion. Trilogy's appeal of the circuit court's denial of its motion for relief under Rule 60(b) is limited to a review of whether the circuit court abused its discretion; it not an appeal on the merits. Overbey v. Murray, 569 So.2d 303, 305 (Miss. 1990). A decision regarding a Rule 60(b) motion will not be disturbed unless it is shown the trial court abused its discretion. Pointer v. J.D. Huffman, 509 So.2d 870, 875 (Miss.1987). In Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984), the Court held that:
[M]otions for relief under Rule 60(b) are generally addressed to the sound discretion of the trial court and appellate review is limited to whether that discretion has been abused. When ruling on such motions a balance must be struck between granting a litigant a hearing on the merits with the need and desire to achieve finality in litigation. Further, Rule 60(b) motions should be denied where they are merely an attempt to relitigate the case.
Id. (citations omitted). Furthermore, Rule 60(b) provides for extra ordinary relief to be granted only upon a showing of exceptional circumstances, Accredited Surety & Cas. Co., Inc. v. Bolles, 535 So.2d 56, 56 (Miss.1988), and not because a party is unhappy with the judgment, Stringfellow, 451 So.2d at 221.
¶ 6. The circuit court did not abuse its discretion in denying Trilogy's Rule 60(b) motions for several reasons. First, Rule 60(b) motions must be made within a reasonable time. M.R.C.P. 60(b). The Mississippi Supreme Court has held that Rule 60(b) motions which were filed two or more years after judgment were unreasonable. Donaldson v. Pontotoc County Welfare Dep't, 445 So.2d 1377, 1378 (Miss. 1984); Hinds County Bd. of Supervisors v. Common Cause of Miss., 551 So.2d 107, 108 (Miss.1989). Although trial courts may correct judgments even though an appeal has been perfected, Ward v. Foster, 517 So.2d 513, 516 (Miss.1987), the case sub judice was not only perfected but affirmed by this Court in a December 6, 1996 order. Trilogy could have filed a Rule 60(b) motion in the trial court six years ago after the appeal was perfected. Instead, Trilogy waited an unreasonable length of time before it brought its Rule 60(b) motion. Therefore, the circuit court did not abuse its discretion in finding the Rule 60(b) motion untimely.
¶ 7. Secondly, the circuit court was correct in finding that Trilogy's Rule 60(b) motion for relief related to and requested relief concerning issues previously determined. In Mississippi, it is well settled that a decision on a question of law decided on a former appeal becomes the law of the case; therefore, that law will be applied in subsequent trials and appeals of the same case involving the same issues and facts. Leatherwood v. State, 539 So.2d 1378, 1382 (Miss.1989). Trilogy has unsuccessfully attempted to relitigate the issue of damages seven times. In a previous decision, we made it clear that the issue of *317 damages in this case had already been litigated:
[T]here is no windfall or double recovery as the final judgment order[ed] Thomas to deliver the trucks to Trilogy as soon as Trilogy pa[id] the final judgment. Instead of paying the judgment, Trilogy chose to litigate whether they were even liable under the lease and have therefore not received the trucks. Subsequent mitigation by releasing the trucks has no bearing on the issue of double recovery as Trilogy only paid Thomas the agreed amount they owed under the lease agreement which was $479,816.48. These assignments are without merit.
Thus, our decision forecloses Trilogy's continuing argument over mitigation of damages.
¶ 8. Finally, the circuit court did not err in denying Trilogy's Rule 60(b) motions because the judgment has not been satisfied, released, or discharged. Trilogy argued that it should not be required to pay as provided in the lease, and that enforcement of the lease results in a profit to Thomas and a penalty to itself. Rule 60(b) provides:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons:
. . . .
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.
M.R.C.P. 60(b)(emphasis added). Both the final judgment and the amended final judgment expressly provided that Trilogy was to pay the amount it owed to Thomas prior to the delivery of equipment or crediting any amounts to Trilogy. The fact that Trilogy has not paid the judgment as ordered renders its Rule 60(b)motion untimely because the judgment is not satisfied, released, or discharged. Although a non-breaching party to a contract should only receive damages necessary to place him in the same position he would have been in had the contract been performed, Trilogy ignores the fact that the purpose of the buy-out clause was to avoid the exact situation the parties are now in. Since Trilogy breached the contract and refused to perform under the requirements of the lease, Thomas had to recover and manage the equipment. In order to put Thomas in the "same position," Trilogy must satisfy the judgment, i.e. purchase the equipment. Once Trilogy pays the amended final judgment, it will be entitled to credit for equipment that has been sold, leased, or otherwise disposed of not already credited against the judgment.
¶ 9. Based on the law of the case, as well as the evidence before the circuit court, we find that the circuit court did not abuse its discretion in denying Trilogy's Rule 60(b) motions.
¶ 10. Trilogy also claims that the trial court erred in refusing to order a court appointed expert on the question of credits against the judgment to which Trilogy was entitled. The appointment of an expert by the court under Mississippi Rule of Evidence 706 is done sparingly, and then only in exceptional cases involving complex issues where the expert's testimony would be helpful to the trier of facts. M.R.E. 706. Additionally, the record reflects that the circuit court did not find a need for an expert in February 1997; however, the court specifically "reserve[d] the right to reconsider and appoint an expert" for the issue of credits to Trilogy. This reservation was within the judge's discretion.
¶ 11. Trilogy also contends that the circuit court erred in reconsidering its bench order which required Thomas to produce documents to Trilogy in connection with Trilogy's Rule 60(b) motions. Trilogy argues that Thomas's motion for reconsideration was untimely under *318 M.R.C.P. 59. Although Rule 59 imposes a ten day limit for a motion for new trials or to amend judgments, it does not apply to a discovery order which is not final. M.R.C.P. 59. An order concerning additional discovery is clearly discretionary and will not be set aside in absence of an abuse of discretion. Paulk v. Housing Auth. of City of Tupelo, 228 So.2d 871, 873 (Miss.1969). Since the order in this case pertained to discovery, and Rule 59 does not refer or apply to discretionary discovery rulings, the judge did not abuse his discretion in reconsidering his order and it was not untimely. Therefore, this assignment of error is without merit.
¶ 12. Since 1857, Mississippi has imposed a mandatory penalty on parties who unsuccessfully appeal to the Mississippi Supreme Court. Miss. Rev.Code. Ch. 63, Art. 12 (1857). Furthermore, by statute, appellants are required to be charged with 15% of the judgment if it is (1) a final judgment (2) of the type specified by the statute is (3) affirmed unconditionally (4) by the Mississippi Supreme Court. M.C.A. § 11-3-23 (Rev.1991). The statute expresses a bona fide interest in providing a measure of compensation for the successful appellee who has endured the rigors of successful appellate litigation. Walters v. Inexco Oil Co., 440 So.2d 268, 274-75 (Miss.1983).
¶ 13. This is the second time this case has come before this Court. The request for a statutory penalty was denied in the first appeal since we remanded with instructions for the trial court to explain its rationale for determining attorney's fees. However, the second appeal is an attempt by Trilogy to relitigate issues already decided by this Court and the circuit court, as well as to avoid paying the amended final judgment. The public policy supporting the statutory penalty certainly justifies its application in this case. The statute is designed to discourage frivolous appeals and to provide compensation for the successful appellee. The statute directs the imposition of penalties based upon the judgment or decree affirmed if it is monetary. Therefore, we impose a statutory penalty of 15% upon such sum.
¶ 14. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED TO THE APPELLEE. COSTS ARE ASSESSED TO THE APPELLANT.
BRIDGES, C.J., and THOMAS, P.J., and KING and PAYNE, JJ., concur.
McMILLIN, P.J., dissents with separate written opinion, joined by COLEMAN, HERRING and HINKEBEIN, JJ.
SOUTHWICK, J., not participating.
McMILLIN, P.J., dissenting:
¶ 15. I respectfully dissent. It would be my opinion that Trilogy has raised an issue that ought to be considered on its merits. Even if a majority of my colleagues disagree with me on that issue, I am satisfied that this Court substantially exceeds its jurisdiction when it purports to award the statutory fifteen percent appeal penalty on the judgment amount to the appellee.
A.
The Merits of the Appeal
¶ 16. Trilogy filed a motion under Rule 60(b) for relief from an existing judgment. Trilogy advanced several theories for relief including one for partial credit against the judgment. It is that claim that I believe has merit if Trilogy can prove its assertions. That part of the motion involves matters that have occurred after the entry of the judgment. Thus, it is not an attack on the judgment itself, as Rule 60 motions are normally considered to be, yet it is an appropriate motion under Rule 60(b)(5) as a claim that "the judgment has been [partially] satisfied ... or discharged." M.R.C.P. 60(b)(5).
¶ 17. Assuming the factual accuracy of the assertions in Trilogy's motion, I can see no reason why it would not be entitled *319 to some measure of relief. Trilogy claims that, during the pendency of the earlier appeal on the merits of the judgment itself, Thomas continued to generate revenues by renting or leasing equipment that was, in effect, "purchased" by Trilogy as a result of the judgment entered in this case. Under the terms of the judgment, Trilogy was compelled to buy the equipment but was denied possession of the property until it had paid the purchase price as set out in the judgment. This, in effect, granted Thomas a possessory lien in the equipment to secure the payment of the purchase price as reflected by the judgment.
¶ 18. Trilogy unsuccessfully appealed the original judgment. The company had a perfect right to appeal, just as Thomas had a perfect right to stand on the existing terms of the judgment and hold possession of the equipment until that judgment was either (a) overturned or (b) affirmed and paid in full.
¶ 19. Nevertheless, during the pendency of the appeal, Thomas's continued possession of the equipment was, by any reasonable construction, nothing more than an exercise of a possessory lien. I am aware of no authority that would permit Thomas, as a lienholder in possession, to use the equipment or to rent it out to others for use. By way of example, a mechanic holding a customer's automobile for an unpaid repair bill acts within the law in denying the customer the use of the car. However, the mechanic would not be authorized to rent the car out to others while waiting for his customer to accumulate sufficient funds to redeem the vehicle, and, if he did so, the law would certainly require him to account to the vehicle owner for the revenue produced in that manner.
¶ 20. If it is true, as Trilogy alleges, that Thomas utilized equipment covered by the judgment to produce income for itself during the appeal period, then Thomas ought to be required to account for the net amount derived from that activity as a credit against the judgment. I further see nothing improper in Trilogy's request that this credit be computed and applied before the judgment is paid. If there is a credit presently due in some amount for these post-judgment income-producing arrangements, there is no principled reason to require Trilogy to pay more than it owes and then immediately seek a refund of a part of what it just paid. That amounts to a penalty imposed on Trilogy for asserting what ought to be an unconditional legal right.
¶ 21. Because the motion raises matters that occurred after entry of the original judgment, I can discover no legitimate claim of prejudice on the part of Thomas that would permit a timeliness bar to be imposed under Rule 60(b). The motion does not constitute an attack on the judgment itself and does not involve proof of any fact that occurred prior to entry of the judgment. So long as Thomas remained in possession of the property after entry of the judgment, any net revenues generated by that equipment ought to be properly credited against the judgment, and the proximity between the time that revenue was generated and the date of the original judgment is largely irrelevant.
¶ 22. I would remand the case for an evidentiary hearing to determine what post-judgment net revenue Thomas has generated from the leasing or other commercial use of the equipment covered under the judgment and would direct that the net amount so calculated be credited against the judgment.
¶ 23. The majority is incorrect when it suggests that Trilogy's claim for credit based on postjudgment income derived from the equipment is an attempt to relitigate the amount of damages. It is true that Trilogy asserted a claim at trial that it ought to get credit for income from Thomas's leasing of the equipment to others by way of mitigation of damages. However, the judgment, insofar as it determined these and other mitigating factors, was necessarily limited to events that had occurred up to the date of trial. Since the *320 judgment contemplated the immediate surrender of the equipment to Trilogy (conditioned on payment of the judgment), it would have been impossible for the jury to deliberate intelligently on a proper credit for any post-judgment income produced by the equipment. Therefore, the judgment could not possibly speak to post-judgment events that were unknown and unknowable at the time the case was tried.
B.
The Statutory Penalty on the Judgment
¶ 24. In a separate matter, even if the majority's decision on the merits in this appeal is correct, it is manifestly incorrect to assess the statutory fifteen percent appeal penalty in this proceeding. This appeal was limited to the issue of whether the trial court abused its discretion in denying a post-judgment Rule 60(b) motion. The amount of the judgment itself was not under direct attack in this appeal since the basis for claiming a partial credit related to events that occurred after the judgment was entered. Even if the majority is correct that this appeal is devoid of merit (which I do not believe it to be), it is not within this Court's jurisdiction to award the statutory fifteen percent penalty on the judgment amount to Thomas. The Court could have assessed the penalty when affirming the judgment in Case No. 92-CA-01266. That was not done and the issue of the statutory appeal penalty became res judicata when the mandate of this Court issued in that case. The matter cannot be resurrected in this appeal.
COLEMAN, HERRING and HINKEBEIN, JJ., join this separate opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/56766/ | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 12, 2007
No. 07-10427
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JORGE ALEJANDRO CORTEZ
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-183-1
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Jorge Alejandro Cortez appeals his guilty-plea conviction for possession
with the intent to distribute 50 grams or more of a mixture and substance
containing a detectable amount of methamphetamine. He argues that the
district court abused its discretion in not allowing him to withdraw his plea and
that, notwithstanding the district court’s ruling on his motion to withdraw his
plea, his conviction should be reversed because his plea was not knowing and
voluntary.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-10427
“A district court’s denial of a motion to withdraw a guilty plea is reviewed
for abuse of discretion.” United States v. Powell, 354 F.3d 362, 370
(5th Cir. 2003). When determining whether to allow a defendant to withdraw
his guilty plea, the district court should consider whether: (1) the defendant has
asserted his innocence, (2) withdrawal would prejudice the Government, (3) the
defendant has delayed in filing his withdrawal motion, (4) withdrawal would
substantially inconvenience the court, (5) close assistance of counsel was
available, (6) the original plea was knowing and voluntary, and (7) withdrawal
would waste judicial resources. United States v. Carr, 740 F.2d 339, 343-34
(5th Cir. 1984).
To enter a knowing and intelligent plea, the defendant must have “a
full understanding of what the plea connotes and of its consequence.” Boykin v.
Alabama, 395 U.S. 238, 244 (1969). “[A]s long as the defendant understands the
length of time he might possibly receive, he is fully aware of his plea’s
consequences.” James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). A defendant’s
solemn declarations in open court carry a strong presumption of truth.
Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Cortez states that the first, second, and seventh Carr factors “are neutral,
at best.” He also concedes that the third and fourth Carr factors (delay and
inconvenience to the court) weigh against him. Cortez argues, however, that the
fifth and sixth Carr factors weigh in his favor and that the district court
therefore abused its discretion in not allowing him to withdraw his guilty plea.
However, contrary to Cortez’s assertions, the record establishes that the fifth
and sixth Carr factors weigh against him being allowed to withdraw his guilty
plea. Accordingly, the district court did not abuse its discretion in denying
Cortez’s motion to withdraw his plea. See Powell, 354 F.3d at 370. In addition,
Cortez has not shown that his guilty plea was unknowing and involuntary such
that his conviction should be reversed. See James, 56 F.3d at 666.
2
No. 07-10427
Cortez avers next that there was not a sufficient factual basis to support
his guilty plea as required by FED. R. CIV. P. 11(f). Cortez’s challenge to the
factual resume is raised for the first time on appeal, and thus, is reviewed for
plain error. See United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001). Here,
the stipulation of facts and Cortez’s admissions at rearraignment established
that Cortez knowingly orchestrated the delivery of 681 grams of a mixture
containing a detectable amount of methamphetamine. Thus, the evidence was
sufficient to show Cortez’s constructive joint possession of that amount. See
United States v. Inocencio, 40 F.3d 716, 724 (5th Cir. 1994). Based upon the
foregoing, the district court’s finding that there was a sufficient factual basis for
Cortez’s guilty plea was not plain error. The judgment of the district court is
AFFIRMED.
3 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/56525/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 12, 2007
No. 06-14135 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20038-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS RODRIGO RINCON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 12, 2007)
Before DUBINA, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Jesus Rodrigo Rincon appeals his sentence imposed after he pled guilty to
conspiring to import five kilograms or more of cocaine, in violation of 21 U.S.C.
§ 963. We affirm Rincon’s sentence.
Rincon asserts the district court erred in denying him a minor-role reduction
pursuant to U.S.S.G. § 3B1.2(b). Rincon contends the court failed to compare his
conduct to the conduct of his co-conspirators. Rincon asserts he was clearly less
culpable than the other participants because he had no independent knowledge of
the conspiracy details and his only function was to introduce the confidential
source (CS) to a co-conspirator, Pompilio Gutierrez, for a small fee.
"This Court has long and repeatedly held that a district court's determination
of a defendant's role in the offense is a finding of fact to be reviewed only for clear
error." United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).
The defendant, as the proponent of the downward adjustment, bears the burden of
proving the mitigating role in the offense by a preponderance of the evidence. Id.
at 939.
The Sentencing Guidelines permit a court to decrease a defendant's offense
level by two points if it finds the defendant was a "minor participant" in the
criminal activity. U.S.S.G § 3B1.2(b). A minor participant is a defendant “who is
less culpable than most other participants, but whose role could not be described as
2
minimal." U.S.S.G. § 3B1.2, comment. (n.5). In determining whether a minor-role
reduction is warranted, a district court "should be informed by two principles
discerned from the Guidelines.” De Varon, 175 F.3d at 940. Under the first prong,
which may be dispositive in many cases, “the district court must measure the
defendant's role against the relevant conduct for which [he] was held accountable
at sentencing.” Id. at 945. Relevant conduct is the “conduct attributed to the
defendant in calculating [his] base offense level." Id. at 941. Under the second
prong, “the district court may also measure the defendant's role against the other
participants, to the extent that they are discernable, in that relevant conduct.” Id. at
945. A defendant, however, “is not automatically entitled to a minor role
adjustment merely because [he] was somewhat less culpable than the other
discernable participants. Rather, the district court must determine that the
defendant was less culpable than most other participants in [the] relevant conduct."
Id. at 944.
Rincon did not satisfy the first prong because his actual conduct, a
substantial role in a conspiracy to import ten kilograms of cocaine into the United
States, was identical to the relevant conduct for which he was sentenced. Because
Rincon was only held accountable for the drugs that were imported due to his
personal conduct, “[the] district court [could] legitimately conclude that [Rincon]
3
played an important or essential role in the importation of those drugs.” Id. at 942-
43.
As to the second prong, Rincon’s argument the district court erred by failing
to compare his conduct to the other participants’ conduct is not supported by the
record. Although at the sentencing hearing the district court did not make specific
findings comparing Rincon’s conduct to that of Gutierrez, the court did state it had
“discussed the matter with the probation officer, and [agreed] with the probation
officer’s conclusion.” In his conclusion, the probation officer included both an
assessment of Rincon’s conduct and a comparison between Rincon’s and
Gutierrez’s roles. The probation officer determined that Rincon and Gutierrez had
similar roles because they “were both contacts the CS spoke with on a regular basis
regarding the cocaine shipment [and t]hey both had knowledge of details regarding
the manner in which the cocaine would be smuggled, as well as when and where.”
In contrast to Rincon’s argument, he had a larger role in the conspiracy than
just recruiting the CS. He also remained in contact with both the CS and Gutierrez
regarding the cocaine shipment, participated in conversations planning the
smuggling of the drugs, relayed information to the CS to further the smuggling
operation, and arranged to receive $2,500 in exchange for introducing the CS to
Gutierrez. Although each participant had different roles in the conspiracy, these
4
differences do not indicate that either co-conspirator was more culpable than
Rincon. We have recognized that it is entirely possible for conspiracies to exist
where no co-conspirator’s conduct warrants an adjustment for role in the offense.
De Varon, 175 F.3d at 944.
We conclude the district court did not clearly err in denying Rincon a minor-
role reduction.
AFFIRMED.
5 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/56537/ | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2007
No. 06-50919 Charles R. Fulbruge III
Clerk
CYNTHIA MORGAN RIPPSTEIN
Plaintiff-Appellant
v.
GEOFFREY BARR
Defendant-Appellee
Appeal from the United States District Court
For the Western District of Texas
USDC No. 5:05-CV-234
Before DeMOSS, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Cynthia Rippstein appeals the district court’s order granting summary
judgment in favor of Comal County Assistant District Attorney Geoffrey Barr on
Ms. Rippstein’s 42 U.S.C. § 1983 claim. Ms. Rippstein brought suit against Barr
and Comal County Constable Benny Scroggin on March 24, 2005, alleging that
their attempted enforcement of a writ of execution against her husband’s
property violated her constitutional right to be free from unreasonable seizures.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-50919
The district court dismissed all claims against Barr, finding that he was entitled
to qualified immunity. Ms. Rippstein timely appealed.
I.
This dispute arose out of an attempt to enforce of a writ of execution issued
to seize property owned by Ms. Rippstein’s husband, Van Rippstein. In 1991, a
$610,000 civil judgment was entered against Van Rippstein. Mr. Rippstein
thereafter married Appellant Cynthia Rippstein in 1994. Prior to the marriage,
Van and Cynthia entered into a premarital agreement providing that their
respective current and future property would remain separate. During the
marriage, Ms. Rippstein acquired a number of valuable separate property assets,
including several substantial gifts and inheritances from Mr. Rippstein’s family.
In 2003, Ms. Rippstein acquired real property located on Mountain Laurel Drive
in New Braunfels, Texas, where the Rippsteins resided when Barr and
Constable Scoggin attempted to enforce the writ. We note that Mr. Rippstein has
acquired virtually no assets during the marriage.
In 2001, the owner of the 1991 judgment against Mr. Rippstein sought and
received a writ of execution to satisfy the judgment, which was valued at over
$1.9 million at the time of this suit. The creditor provided the writ to Constable
Scroggin, who declined to execute it because his investigation failed to reveal any
seizable property.
In June 2003, the judgment creditor assigned his interest in the judgment
to TAPPS LLC. On September 2, 2003, TAPPS obtained a new writ of execution
to enforce the judgment. The writ authorized any Texas sheriff or constable to
levy any “of the Chattels, Personal Property or Real Estate, subject to execution
by law of the said VAN JOHN HARPER RIPPSTEIN.” On September 11, 2003,
TAPPS’s attorney sent Constable Scroggin a letter arguing that the Rippsteins’
community property was subject to seizure, and urging Scroggin to execute the
writ.
2
No. 06-50919
On September 12, 2003, ADA Barr requested a certified copy of the writ
and explained to TAPPS that Constable Scroggin was not authorized to
determine which property was subject to seizure under the writ. However,
several days later, Barr advised Constable Scroggin that he could levy non-
exempt community property titled in Ms. Rippstein’s name pursuant to the
Texas statutory presumption that property obtained during marriage is
community property. See TEX. FAM. CODE § 3.003(a). On September 18, 2003,
TAPPS’s attorney sent Constable Scroggin a list of assets subject to seizure, and
informed him that the Rippsteins’ current residence on Mountain Laurel Drive
was not their registered homestead.
On October 2, 2003, Constable Scroggin and other officers went to the
Mountain Laurel property to execute the writ. Upon arriving, Constable
Scroggin notified the Rippsteins of the writ and asked them to identify property
subject to seizure. Ms. Rippstein informed Constable Scroggin that the Mountain
Laurel property was her homestead and Mr. Rippstein informed Constable
Scroggin that all of the property located there was his wife’s separate property.
Constable Scroggin posted a sign with the following language at the gate to the
property: “NOTICE: THIS PROPERTY HAS BEEN SEIZED UNDER WRIT OF
EXECUTION, CAUSE NO. 91-04777 BY COMAL COUNTY CONSTABLE PCT.
4, BEN SCROGGIN, DO NOT REMOVE UNDER PENALTY OF LAW.”
Later the same day, Ms. Rippstein sought a temporary restraining order
to stop the alleged seizure. The court granted Ms. Rippstein the restraining
order, setting bond at $20,000. Ms. Rippstein was unable to post the bond at
that time and returned to the Mountain Laurel property. Constable Scroggin
ordered Ms. Rippstein and her husband not to leave the property and allegedly
searched Ms. Rippstein’s truck and purse when she did leave the property the
next morning to post the bond. Once Ms. Rippstein posted the bond, Constable
3
No. 06-50919
Scroggin immediately withdrew his personnel, but left the above described sign
posted at the property.
Ms. Rippstein brought a 42 U.S.C. § 1983 suit against Barr and Constable
Scroggin, alleging that their actions resulted in a seizure of her person and her
property that violated her Fourth and Fourteenth Amendment rights. Barr and
Constable Scroggin moved for summary judgment on the basis of absolute and
qualified immunity. In an October 6, 2005 Opinion and Order, the district court
held that Barr was entitled to qualified immunity for his actions, but held that
at least one claim could proceed against Constable Scroggin. By order dated
June 19, 2006, the district court entered judgment against Ms. Rippstein on her
claims against Barr in his individual capacity, and dismissed Barr from the suit.
Ms. Rippstein timely appealed the judgment. Because the district court did not
dismiss Constable Scroggin from the suit, he is not a party to this appeal.
II.
We have reviewed the parties’ briefs and the record, and have heard oral
argument. Further, we have carefully considered the district court’s well-
reasoned Opinion and Order Granting in Part and Denying in Part Defendants’
Motion for Summary Judgment. Based on our review, we affirm the judgment
of the district court essentially for the reasons stated in its October 6, 2005
Opinion and Order.
AFFIRMED.
4
No. 06-50919
DENNIS, Circuit Judge, concurring separately.
I respectfully concur in the judgment. The majority reached the right
result in granting qualified immunity to the defendant. I disagree with the
district court opinion adopted by the majority in two respects.
First, the plaintiff’s claim of a Fourth Amendment violation can be
analogized to the situation in United States v. Certain Real Property Located
near Highway 195, 163 F.3d 1295, 1298-301 (11th Cir. 1998), which supports the
appellant’s position that a seizure of real property occurred. While I believe a
seizure occurred, I nevertheless agree with the majority in granting qualified
immunity to the defendant, because, under the circumstances, seizure was not
objectively unreasonable.
Second, I disagree with the majority in that the defendant probably did
violate Fourteenth Amendment rights as the plaintiff alleges, but I agree with
the majority in granting qualified immunity, because those rights were not
clearly established at the time of the violation.
5 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3033651/ | FILED
NOT FOR PUBLICATION FEB 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TRINIDAD MARILU PAULET DE No. 06-75572
FLORES; et al.,
Agency Nos. A077-125-608
Petitioners, A077-125-609
A077-125-610
v. A077-125-611
ERIC H. HOLDER Jr., Attorney General,
MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Trinidad Marilu Paulet De Flores, Juan Aurelio Flores Lazo, Juan Alfonso
Flores Paulet, and Emily Flores Paulet, natives and citizens of Peru, petition for
review of the Board of Immigration Appeals’ (“BIA”) order denying their motion
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
/Research
to reopen removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252.
Reviewing for abuse of discretion, Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.
2004), we deny the petition for review.
The BIA did not abuse its discretion in denying the petitioners’ untimely
motion to reopen because the motion failed to present materially changed
circumstances in Peru. See 8 C.F.R. § 1003.2(c)(3)(ii); see also Malty, 381 F.3d at
945.
Petitioners’ remaining contentions are unpersuasive.
PETITION FOR REVIEW DENIED.
/Research 2 06-75572 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2346460/ | 822 A.2d 420 (2003)
In re Shola E. AYENI, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals.
No. 02-BG-845.
District of Columbia Court of Appeals.
Submitted April 15, 2003.
Decided May 1, 2003.
Before FARRELL, GLICKMAN, and WASHINGTON, Associate Judges.
*421 PER CURIAM:
The Board on Professional Responsibility ("Board"), in accord with the Hearing Committee, has found that respondent Shola Ayeni violated several Rules of Professional Conduct, including recklessly or intentionally misappropriating client funds, and concluded that his misconduct mandates disbarment. Respondent's misconduct occurred in the course of his representation of three different clients.
First, in a matter in which he was appointed guardian of a minor, respondent transferred client funds to his own account, used those funds to cover a delinquency in another client fund, and made other transactions involving commingling of personal and client funds and questionable use of those funds. He also failed to file tax returns on behalf of his client. The Board concluded that respondent's conduct in that matter violated Rules 1.15(a), 1.17(a), and 1.3(b) of the District of Columbia Rules of Professional Conduct.
In another guardianship matter, respondent deposited client funds into his operating account. He used that account for both operating and personal expenses, and its balance often fell below the amount of the client funds he deposited into it. Respondent never accounted for the client funds, and asserted in his final accounting to the court that there were no tangible assets in the Estate. The Board concluded that respondent's conduct in that matter violated Rules 1.15(a), 1.17(a), 8.4(c), and 3.3(a)(1). In both of these cases, respondent was eventually removed as guardian.
In a third matter, in which respondent was appointed to represent a criminal defendant on appeal, respondent filed a brief in this court that was virtually identical to the brief filed earlier by his client's codefendant. Respondent denied having plagiarized the brief, claiming to have never seen the co-defendant's brief. He later stated that the brief was primarily written by an intern. However, respondent submitted a voucher for payment asserting that he expended more than nineteen hours researching and writing the brief. The Board concluded that respondent's conduct in that matter violated Rule 8.4(c).
The Board rejected respondent's argument that he was entitled to mitigation under In re Kersey, 520 A.2d 321 (D.C. 1987). Although respondent satisfactorily demonstrated that he suffered from an alcoholism-induced impairment at the time of his misconduct, the Board found that he failed to provide clear and convincing evidence that his impairment substantially caused his misconduct and that he has been rehabilitated.
Bar Counsel takes no exception to the Board's report and recommendation that respondent be disbarred. Although initially filing exceptions to the Board's recommendation, respondent has not filed a brief; thus, we deem the matter uncontested. See In re Johnson, 810 A.2d 917 (D.C.2002).
This court will accept the Board's findings as long as they are supported by substantial evidence in the record. D.C. Bar R. XI, § 9(g)(1). Moreover, we will impose the sanction recommended by the Board "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." Id. Respondent's failure to pursue his objections to the Board's report and recommendation increases this court's already substantial deference to the Board. D.C. Bar R. XI, § 9(g)(2); In re Delaney, 697 A.2d 1212, 1214 (D.C.1997).
We find substantial support in the record for the Board's findings on both respondent's misconduct and lack of entitlement to Kersey mitigation. Disbarment *422 is the appropriate sanction in nearly all cases of intentional or reckless misappropriation. In re Carlson, 802 A.2d 341, 348 (D.C.2002) (citing In re Addams, 579 A.2d 190, 191 (D.C.1990) (en banc)). Accordingly, we adopt the Board's recommendation, and it is
ORDERED that Shola R. Ayeni is disbarred from the practice of law in the District of Columbia effective thirty days from the date of this opinion. See D.C. Bar R. XI, § 14(f). We direct respondent's attention to the requirements of D.C. Bar R. XI, § 14(g) and their effect on his eligibility for reinstatement. See D.C. Bar R. XI, § 16(c).
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1554753/ | 36 So.3d 533 (2008)
Chester E. WILLIAMS and Rita K. Williams
v.
Katherine G. MOORE.
2070284.
Court of Civil Appeals of Alabama.
October 10, 2008.
Rehearing Denied March 6, 2009.
Certiorari Denied November 13, 2009 Alabama Supreme Court 1080726.
*534 William S. Poole, Jr., Demopolis, for appellants.
Edward P. Turner, Jr., E. Tatum Turner, and Martin R. Pearson of Turner, Onderdonk, Kimbrough, Howell, Huggins & Bradley, P.A., Chatom, for appellee.
THOMAS, Judge.
This appeal arises from an action in which Chester E. Williams and Rita K. Williams sued Katherine G. Moore to quiet title to a tract of property ("the disputed property"). Moore counterclaimed against the Williamses, seeking to quiet title to the disputed property and alleging trespass to that property. Moore claims to own the property by descent from her father, Alvin Garrick, and through a separate chain of title to that claimed by the Williamses. The Williamses claim to own the disputed property from a chain of title beginning with W.C. Garrick, Sr., and Mary B. Garrick, and through various conveyances, passing through W.C. Garrick, Jr., and his wife, and, ultimately, being conveyed to the Williamses by Lamar Hicks through a mortgage-foreclosure deed, foreclosing on a mortgage executed by Sharon Roberts. During the pendency of the action, the Williamses purported to convey the disputed property to Keith J. Savoie, whom Moore ultimately added as a third-party defendant. The case was tried before a jury, and the jury found in favor of Moore and against the Williamses and Savoie. The trial court entered a judgment on that jury verdict, from which the Williamses appeal.[1]
Procedural History
On April 5, 2002, the Williamses filed a complaint against Moore seeking to quiet *535 title to certain real property in Clarke County. The complaint alleged that Moore was claiming ownership of a 14-acre tract, more or less, of property that the Williamses purported to own. Attached to the complaint was the legal description of the Williamses' real property contained in the mortgage-foreclosure deed from Hicks. The property described in the deed includes a tract
"in the SE 1/4 of the SW 1/4 and in the S 1/2 of the SE 1/4 all in Section 14, all in [Township]-9-[North], [Range]-4-[East], Clarke County, Alabama, containing 85.8 acres more or less."
On May 15, 2002, Moore filed her answer, admitting that she
"claim[ed] to own and does own a 15 acre tract of land in Subdivision D and being part of the West part of the Southwest Quarter of the Southeast Quarter Section 14, Township 9 North, Range 4 East."
Moore claimed to possess legal title to the disputed property, and, in the alternative, she claimed ownership of the property by adverse possession. In her counterclaim, Moore alleged that she was the owner of a tract of land
"in the Southwest Quarter of the Southeast Quarter of Section 14, Township 9 North, Range 4 East; Clarke County, Alabama; Containing 15 acres more or less."
She also asserted a trespass claim against the Williamses, alleging that they had cut and removed timber from, and had otherwise damaged, the disputed property.
On June 4, 2002, the Williamses filed an answer to the counterclaim asserting, among other things, the affirmative defense that Moore was estopped from asserting her counterclaim. On October 23, 2003, before the case had been set for trial, the Williamses amended their answer to Moore's counterclaim, specifically asserting the affirmative defenses of res judicata, collateral estoppel, and waiver. See Rule 15, Ala. R. Civ. P. On October 28, 2003, the Williamses filed a motion for a summary judgment. In their motion, the Williamses argued that Moore was barred from asserting her claims by the doctrines of res judicata and collateral estoppel because, they asserted, the various ownership interests in, among other things, the disputed property had been determined in a previous lawsuit. The Williamses argued that Moore had been served in the previous lawsuit and that, although she had apparently not participated in the previous lawsuit, she was precluded from now asserting an ownership interest in the disputed property. On February 24, 2004, the trial court entered an order denying the Williamses' motion for a summary judgment.
On March 10, 2004, the Williamses moved the trial court to allow them to amend their answer to Moore's counterclaim to include the affirmative defense that Moore had failed to join indispensable parties pursuant to Rule 19, Ala. R. Civ. P. On March 18, 2004, the trial court entered an order granting the Williamses' motion to amend their answer to Moore's counterclaim.
On April 18, 2005, Moore amended her counterclaim to include Savoie as a party. During the pendency of the action, the Williamses had purported to convey the disputed property to Savoie.
On July 18, 2005, Savoie filed an answer by and through the same counsel as the Williamses. Savoie's answer claimed
"ownership of the disputed property in connection with a Warranty Deed recorded at Deed Book 1197, page 746, dated May 7, 2002, and recorded in the Probate Judges' Office in Clarke County, Alabama."
*536 On December 26, 2005, counsel for the Williamses and Savoie moved for leave to withdraw as counsel for Savoie due to a potential conflict of interest. That motion was granted on January 4, 2006. On February 13, 2006, new counsel appeared on behalf of Savoie, filing a notice of appearance along with a motion to join an indispensable party, the Federal Land Bank of South Alabama ("FLB"), the bank holding the mortgage executed by Savoie on the disputed property that Savoie had purportedly purchased from the Williamses.
On February 17, 2006, Moore moved the trial court to allow her to add FLB as a third-party defendant. That same day the trial court granted that motion.
On March 24, 2006, FLB answered, alleging that it owned a mortgage on the disputed property. On June 1, 2006, FLB moved the trial court to allow it to amend its answer, seeking to avail itself of the affirmative defenses of res judicata and collateral estoppel. At the same time, FLB also filed a motion for a summary judgment, arguing that, because she had failed to file a compulsory counterclaim in the previous lawsuit involving the disputed property, Moore's claims against it were barred by the doctrines of res judicata and collateral estoppel.
On July 24, 2005, the Williamses filed a second motion for a summary judgment, restating their original motion and adding the argument that Moore's counterclaim was barred because she had failed to file a compulsory counterclaim in the previous lawsuit. On September 22, 2006, the Williamses filed a motion to dismiss Moore's counterclaim for failure to join indispensable parties.
On October 19, 2006, the trial court set for hearing on January 9, 2007, all the pending motions to dismiss for failure to join indispensable parties and the pending motions for a summary judgment. On February 22, 2007, the trial court entered an order denying the motions to dismiss for failure to join indispensable parties, as well as FLB's and the Williamses' motions for a summary judgment.
On August 3, 2007, Moore filed a motion to strike the affirmative defenses raised by the Williamses and FLB, specifically the affirmative defenses of res judicata, collateral estoppel, and waiver. Contemporaneously, Moore also filed a motion in limine seeking to preclude those defenses from being raised at trial. The trial court granted both of Moore's motions. However, at all stages of the proceedings, the Williamses strenuously objected to the trial court's having struck their affirmative defenses. The Williamses were allowed to proffer evidence relating to their affirmative defenses, outside the presence of the jury, through testimony and several exhibits.
The trial court tried the matter from August 6 through August 9, 2007. On August 8, 2007, the Williamses moved for a judgment as a matter of law ("JML") pursuant to Rule 50, Ala. R. Civ. P., at the close of evidence. The trial court denied the motion the same day. On August 9, 2007, the jury returned a verdict in favor of Moore on the Williamses' claim and on her counterclaim. The jury awarded Moore $10,000 as damages for trespass. The trial court entered a judgment on that verdict on August 15, 2007, stating, in pertinent part:
"It is therefore, ORDERED, ADJUDGED and DECREED that the defendant, Katherine G. Moore is the owner of the following described property below and that the plaintiffs, Chester E. Williams and Wife, Rita K. Williams and counter-defendant, Keith J. Savoie have no title, claim or interest in said property. Said property being described as follows: `A 15 acre tract in Subdivision *537 D and being out of the West part of the Southwest Quarter of the Southeast Quarter of Section 14, Township 9 North, Range 4 East.'...
"It is further, ORDERED, ADJUDGED and DECREED, that the defendant, Katherine G. Moore, have and recover a judgment against the plaintiffs, Chester E. Williams and wife, Rita K. Williams, in the amount of Ten Thousand ($10,000.00) and no/100 Dollars, for which let execution issue."
The Williamses failed to file a renewed motion for a JML pursuant to Rule 50, Ala. R. Civ. P. On September 10, 2007, the Williamses filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P. On December 6, 2007, the trial court denied the Williamses' postjudgment motion. On December 17, 2007, the Williamses timely appealed.[2]
Analysis
I. Appellee's Brief of Keith J. Savoie
Savoie, a third-party defendant who was subject to an adverse judgment below, has filed an appellee's brief on appeal. However, he is not a proper appellee and should have filed a notice of appeal of the judgment below. The filing of a notice of appeal is a jurisdictional act. Rule 2(a)(1), Ala. R.App. P.; Miller v. Miller, 10 So.3d 570, 572 (Ala.Civ.App. 2008). Therefore, we do not consider the arguments in the brief filed by Savoie in this case.
II. Res Judicata
On appeal, the Williamses argue that the trial court erred because, they assert, Moore was precluded by the doctrine of res judicata from asserting her counterclaim against them. The Williamses argue that the issue of the ownership of the disputed property had already been adjudicated in the previous lawsuit in Clarke County. We agree.
In 1999, a timber company, MacMillan Bloedel Timberlands, Inc. ("MacMillan Bloedel"), in case no. CV-98-140M in the Clarke Circuit Court ("the MacMillan Bloedel lawsuit"), filed a complaint in interpleader seeking to determine the payees under a "Timber Sale and Purchase Contract" ("the timber contract"). The timber contract was for a term commencing January 1, 1968, and ending December 31, 2028. MacMillan Bloedel's predecessor in interest had entered into the timber contract with W.C. Garrick, Sr., and Mary B. Garrick. Attached to the timber contract is a document entitled "Exhibit A," which describes Tract # 2 under that contract to encompass
"in all 460 acres, more or less, being in Section[s] 22-23 and 14, Township 9, Range 4 East situated, lying and being in Clarke County, Alabama."
An attachment to the complaint in the MacMillan Bloedel lawsuit indicates that some of the land in Section 14 is reserved for the use of the owners, pursuant to the timber contract. The timber contract itself names W.C. Garrick, Sr., and Mary B. Garrick as "the Owner[s]" of the property subject to the timber contract.
The complaint in the MacMillan Bloedel lawsuit alleges that "Defendant Katherine G. Moore is an individual resident of Clarke County, Alabama." That complaint further alleges:
"On April 27, 1998, a tax sale of certain lands owned by Sharon Roberts and located in Tract #2 was held. These *538 lands were purchased by James Prescott, Jr. As reflected in Certificate of Land Sold for Taxes and Purchased by an Individual. A true and correct copy of said instrument is attached hereto as Exhibit 50."
Further, the complaint alleges:
"[MacMillan Bloedel] is also aware that another parcel of land located in Tract #2 and previously conveyed to Sharon Roberts has been assessed for taxes to one Katherine G. Moore."
The case-action summary for the MacMillan Bloedel lawsuit shows that Moore was served in that action on September 1, 1998.
The trial court's July 9, 1999, judgment in the MacMillan Bloedel lawsuit states:
"This is a case in interpleader filed by Plaintiff, MacMillan Bloedel Timberlands, Inc., to ascertain the proper recipients of the purchase price payments made, or to be made, by [MacMillan Bloedel] after January 1, 1998, under that certain Timber Sale and Purchase Contract dated August 31, 1966, by and among Harmac Alabama, Inc., an Alabama corporation and [MacMillan Bloedel's] predecessor in interest, and W.C. Garrick, Sr. and Mary B. Garrick (the `Owners'), pursuant to which the Owners agreed to sell exclusively to [MacMillan Bloedel], and [MacMillan Bloedel] agreed to purchase from the Owners, all timber standing and growing on certain of Owner's land located in Clarke County, Alabama during the term commencing January 1, 1968 and ending December 31, 2028 (the `Timber Contract'). The purchase price for timber purchased under the Timber Contract currently is paid by [MacMillan Bloedel] through advances of equal quarterly payments in the amount of $3,557.08, with any remaining purchase price being paid at the time the timber is harvested (collectively, the `Timber Contract Payments'). The Timber Contract defines the `land' that is subject thereto as all land owned by the Owners located in Clarke County, Alabama, being 927 acres, more or less, and being more particularly described in Exhibit A to the Timber Contract (the `Timber Contract Land'). Exhibit A to the Timber Contract separates the land into Tract # 1 and Tract # 2.
"This case is before the Court on [MacMillan Bloedel's] Motion for Summary Judgment filed March 25, 1999, pursuant to Rule 56 of the Alabama Rules of Civil Procedure. [MacMillan Bloedel's] Motion was set for hearing before the Court on May 25, 1999. Based on the uncontroverted facts set forth in the pleadings filed in this case and upon the affidavit of Otto (Bo) Haslbauer, Jr., R.F., Manager, Controlled Lands Administration of [MacMillan Bloedel], filed as Exhibit A to [MacMillan Bloedel's] Motion for Summary Judgment, together with the maps and calculations attached to and made a part of said affidavit, the Court has determined that there is no genuine issue of material fact and that [MacMillan Bloedel] is entitled to a judgment as a matter of law.
"Accordingly, it is ORDERED, ADJUDGED and DECREED as follows:
"(1) [MacMillan Bloedel] is discharged from all liability to Defendants [(including Moore)] or to any other claimants other than the obligation to pay the Timber Contract Payments to the Particular Defendant [(excluding Moore)] entitled to a portion of the Timber Contract Payments (the `Payment Recipients') in the proportions set forth below:
". . . .
"TRACT 2
"John C. Milstead:
1.68 Contract Cords
*539
"Reginald and Linda Barnes
9.58 Contract Cords
"James Prescott, Jr. (after April 27, 1998)
253.64 Contract Cords
"Sharon M. Roberts (through April 27, 1998)
258.34 Contract Cords
"Sharon M. Roberts (after April 27, 1998)
4.7 Contract Cords
"Darren and Paula Powell:
1.86 Contract Cords
". . . .
"(4) The West boundary of Tract # 2 is located as shown on Exhibit A-2 to the Haslbauer Affidavit, a copy of which is attached to and incorporated herein by this reference.
". . . .
"(10) No finding is made with respect to whether any of the Timber Contract Land, or those owning same, are in compliance, or not in compliance, with the provisions of the Timber Contract...."
(Emphasis added.)
The Supreme Court of Alabama has stated:
"The elements of both res judicata and collateral estoppel were set out by this Court in Wheeler v. First Ala. Bank of Birmingham, 364 So.2d 1190, 1199 (Ala.1978). Res judicata requires (1) a prior judgment rendered by a court of competent jurisdiction; (2) a prior judgment rendered on the merits; (3) substantially the same parties in both suits; and (4) the same cause of action in both suits. Where these elements are present, the former suit bars any later suit on the same cause of action, including issues that were or could have been litigated in the prior case."
Lott v. Toomey, 477 So.2d 316, 318-19 (Ala.1985).
By proffer, the Williamses introduced a certified copy of the complaint, a certified copy of the final judgment, a certified copy of the case-action summary, and a certified copy of a letter from MacMillan Bloedel to the trial court outlining its distribution of proceeds to the various "[l]andowner[s]" in the MacMillan Bloedel lawsuit.
There is no doubt that the Williamses showed that there had been a prior judgment rendered by a court of competent jurisdiction, the Clarke Circuit Court, the same court in which the instant action was tried. See Webb v. City of Demopolis, 14 So.3d 887 (Ala.Civ.App.2008).
That prior judgment was rendered and entered on the merits; the final judgment granted MacMillan Bloedel's motion for a summary judgment. "A summary judgment operates as an adjudication on the merits of a claim." Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990); see also Farley v. Genuine Parts Co., 701 So.2d 43 (Ala.Civ.App.1997).
Substantially the same parties were involved in both the instant action and the MacMillan Bloedel lawsuit. Moore was named as a defendant in the MacMillan Bloedel lawsuit. The certified case-action summary for the MacMillan Bloedel lawsuit shows that Moore was served in that action on September 1, 1998. The Williamses were not parties in the MacMillan Bloedel lawsuit. However,
"the `party identity criterion of res judicata does not require complete identity, but only that the party against whom res judicata is asserted was either a party or in privity with a party to the prior action or that the non-party's interests were adequately represented by a party in the prior suit, and the relationship between the party and non-party is not so attenuated as to violate due process.' Whisman v. Alabama Power Co., 512 *540 So.2d 78, 82 (Ala.1987) (citations omitted)."
Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 725-26 (Ala.1990). In Dairyland, the supreme court concluded that, "[b]ecause Jackson was a party to both actions, and is the party against whom res judicata was asserted, the party identity criterion was met." Id. at 726. Moreover, successors in title are in privity with their predecessors in title. Henderson v. Scott, 418 So.2d 840, 842 (Ala.1982). The Williamses' predecessors in title to the land, Sharon Roberts and Lamar Hicks, were defendants in the MacMillan Bloedel lawsuit.
The same cause of action was presented in both lawsuits. Moore argues in her brief to this court that the claims asserted in the MacMillan Bloedel lawsuit sounded in contract and that that action did not involve any quiet-title or trespass claims and that, therefore, the causes of action are not the same for the purposes of res judicata. Moore further argues that, because she does not claim ownership under the same chain of title as W.C. Garrick, Sr., and Mary B. Garrick, neither Moore nor her predecessors in interest were entitled to payments under the timber contract. However,
"[e]ven though some of our cases have recognized that the plaintiff's presentation of alternative legal theories in a second action can be a factor to be considered in determining whether the two causes of action are the same, see, e.g., Benetton S.p.A. v. Benedot, Inc., [642 So.2d 394 (Ala.1994)]; Vaughan v. Barr, [600 So.2d 994 (Ala.1992)]; and Dairyland Ins. Co. v. Jackson, [566 So.2d 723 (Ala.1990)], this Court has made it very clear that the determinative inquiry is whether the claims in both actions arise out of, and are subject to proof by, the same evidence."
Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 637 (Ala.1998); see also Thomas v. Lynn, 620 So.2d 615, 616 (Ala.1993) ("Whether the same cause of action is alleged in the original lawsuit and the subsequent lawsuit depends upon whether the issues in the two causes of action are the same and whether the same evidence would support a recovery in both lawsuits. Dominex, Inc. v. Key, 456 So.2d 1047 (Ala. 1984). `Regardless of the form of the action, the issue is the same when it is supported in both actions by substantially the same evidence. If it be so supported, a judgment in one action is conclusive upon the same issue in any suit, even if the cause of action is different.' Garris [v. South Alabama Production Credit Ass'n, 537 So.2d 911,] 914 [(Ala.1989)].").
The MacMillan Bloedel lawsuit determined the ownership of the land subject to the timber contract, including the disputed property, after numerous conveyances by W.C. Garrick, Sr., and Mary B. Garrick, as well as conveyances by others subsequent to the Garricks' deaths, to determine which parties owned the land and should be paid pursuant to the timber contract. In its final judgment in the MacMillan Bloedel lawsuit, the trial court expressly stated:
"Based upon the uncontroverted facts set forth in the pleadings filed in this case and upon the affidavit of Otto (Bo) Haslbauer, Jr., R.F., Manager, Controlled Lands Administration of [MacMillan Bloedel], filed as Exhibit A to [MacMillan Bloedel's] Motion for Summary Judgment, together with the maps and calculations attached to and made a part of said affidavit, the Court has determined that there is no genuine issue of material fact and that [MacMillan Bloedel] is entitled to a judgment as a matter of law."
*541 Otto Haslbauer was a witness and testified in the instant case. Haslbauer testified, by proffer, and outside the presence of the jury, that the purpose of the MacMillan Bloedel lawsuit was to determine the boundaries and ownership of the land subject to the timber contract, including the disputed property, so that the payments due pursuant to the timber contract would be paid to the proper people, i.e., the property owners. He also testified regarding the disputed property at issue.
Additionally, Exhibit A-2 to Haslbauer's affidavit, which was attached to, and incorporated by reference in, the final judgment in the MacMillan Bloedel lawsuit, was submitted to the trial court as evidence in the instant case. That exhibit depicts the disputed property and reflects that the property described in the exhibit is clearly the same land shown on the surveys submitted by the parties in the instant action and described by the parties in the instant action.
Further, a number of the deeds attached to the complaint, and referenced by the final judgment, in the MacMillan Bloedel lawsuit contain identical property descriptions of the disputed property to several deeds admitted into evidence in the instant case. Also, Moore introduced evidence indicating that the disputed property had been double-assessed for taxes, an issue raised in the MacMillan Bloedel lawsuit.
In Equity Resources Management, Inc. v. Vinson, our supreme court stated:
"`"In civil cases the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, and as evidence, conclusive, between the same parties upon the same matter directly in question in another court. A verdict for the same cause of action, between the same parties, is absolutely conclusive. And the cause of action is the same when the same evidence will support both actions, although the actions may happen to be founded on different writs. Thus a judgment in trespass will be a bar to an action of trover for the same taking. And a verdict in trover will be a bar to an action for money had and received for the sale of the same goods."'"
723 So.2d at 637 (quoting Gulf American Fire & Cas. Co. v. Johnson, 282 Ala. 73, 78, 209 So.2d 212, 216 (1968)(quoting in turn Cannon v. Brame, 45 Ala. 262, 263 (1871))).
The ownership of the disputed property was litigated in the MacMillan Bloedel lawsuit, and all the elements of res judicata were established by the Williamses. Thus, Moore was barred from bringing her counterclaim asserting her ownership of the disputed property in the instant action. Whisman v. Alabama Power Co., 512 So.2d 78, 81 (Ala.1987)("[U]nder res judicata we have consistently rejected an attempt by a former defendant to relitigate issues that were, or could have been, raised in prior litigation that ended in a valid adjudication by a court of competent jurisdiction."). Moreover, "[t]he interest of society demands that there be an end to litigation, that multiple litigation be discouraged, not encouraged, and that the judicial system be used economically by promoting a comprehensive approach to the first case tried." Id.
Moore alleged, alternatively, as part of her counterclaim that she had been in peaceable possession of the disputed property for over 10 years and had gained title through adverse possession. However, the judgment in the MacMillan Bloedel lawsuit was entered July 9, 1999. The ownership of the disputed property was conclusively adjudicated, in favor of the Williamses' predecessor in title and against Moore, in 1999 in the MacMillan Bloedel lawsuit. Therefore, Moore cannot *542 have shown the 10-year prescriptive period to establish her claim of adverse possession pursuant to Ala.Code 1975, § 6-5-200, because she had no color of title to the disputed property after the entry of the final judgment in the MacMillan Bloedel lawsuit. See Morris v. Merchants Nat'l Bank of Mobile, 267 Ala. 542, 103 So.2d 310 (1958). Further, the instant action and Moore's counterclaim were filed in 2002, only three years after the resolution of MacMillan Bloedel lawsuit, and, therefore, Moore could not have shown that she was in possession of the disputed property for sufficient time to confer to her title to the property by adverse possession. Id.
Regarding Moore's trespass claim, "`[o]ur law on trespass is plain that the gist of any trespass action is the interference with a right to possession of property. Absent such right of possession, there can be no action based on trespass.' Avery v. Geneva County, 567 So.2d 282, 289 (Ala.1990)." Drummond Co. v. Walter Indus., Inc., 962 So.2d 753, 782 (Ala.2006). Because we hold that Moore had no right to possession of the disputed property, her trespass claim necessarily must fail. Id.
Although the Williamses raise several other issues on appeal, we pretermit discussion of those issues because of our holding that Moore's counterclaim was barred by the doctrine of res judicata. We reverse the judgment and remand this cause to the trial court to enter a judgment in favor of the Williamses.
REVERSED AND REMANDED WITH INSTRUCTIONS.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.
NOTES
[1] Although Savoie has filed an "Appellee's Brief," he has not appealed from the trial court's judgment.
[2] Although Savoie has filed an "Appellee's Brief," neither he nor FLB has appealed from the trial court's judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/461723/ | 779 F.2d 36
U.S.v.Mauro
84-1472(R)
United States Court of Appeals,Second Circuit.
8/16/85
1
W.D.N.Y.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1621640/ | 104 F.Supp. 815 (1952)
RUSSELL et al.
v.
LAUREL MUSIC CORP. et al.
United States District Court, S. D. New York.
May 7, 1952.
Abner Greenberg, New York City, for plaintiffs.
Spring & Eastman, New York City, for defendants.
NOONAN, District Judge.
This is a motion by the defendants to vacate plaintiffs' demand for a jury trial and for an order directing the Calendar Clerk to remove this action from the jury calendar and place the same on the non-jury calendar.
This is an action for an alleged infringement of plaintiffs' statutory copyright. The complaint sets forth that jurisdiction of this action is based on the Copyright Act, 17 U.S.C.A. § 1 et seq.
The complaint alleges the creation by plaintiffs of an original musical composition and the copyrighting of the same by the plaintiffs. It further alleges that after plaintiffs copyrighted their composition, defendants infringed plaintiffs' copyright by publishing a composition with a title identical to and copied from plaintiffs' composition; that the defendants are continuing to infringe plaintiffs' copyright and that defendants are still publishing their composition to plaintiffs' irreparable damage.
The relief sought by the complaint is a temporary and permanent injunction, damages, *816 and an accounting for all gains and profits of the defendants.
The right to a jury trial is determined by whether the issues as disclosed in the complaint are essentially legal or equitable in nature.[1]
If plaintiffs sought only damages from the alleged infringers, they would be entitled to a trial by jury.[2] But where as here, plaintiffs seek complete relief, i. e., damages, accounting and an injunction, they may be held to be proceeding as in equity.[3] There does, however, appear to be a middle ground. In Bruckman v. Hollzer,[4] plaintiffs' complaint consisted of two counts; in count 1 damages were sought for infringement of the copyright, and in count 2, an accounting and an injunction. It was held there that the plaintiff was entitled to a jury trial on the issues raised in count 1. Thus, in brief, the difference between the Bellavance and Bruckman cases is that, in the latter, the claim for damages was stated in a separate count.[5]
Accordingly, if the plaintiffs here had drawn their complaint as in the Bruckman case, they would be entitled to a jury trial on their claim for money damages.[5] However, in the instant case, the same claim is the basis for both legal and equitable relief, but conforms to rule 10(b), F.R.C.P. in the manner pleaded. Moore, in his treatise[6] recognizes that under Rule 10(b) a plaintiff is not required to plead several claims, based on the one transaction, in separate counts but adds that when plaintiff does, there is then no doubt as to his desire to pursue separate, but cumulative, legal and equitable remedies. While this method is perhaps advantageous I think it unrealistic to require it in order that plaintiff not waive his right to a jury trial of his claim for damages.[7]
The joinder of legal and equitable claims in one action is now not only permitted but encouraged, and does not effect a waiver of jury trial as to the legal claim.[8] The fact that plaintiffs have claimed a jury trial on the whole case and did not specify the issues to be tried to the jury is of no moment; the court can designate the issues to be so tried.[9] Those cases upon which defendants rely and in which plaintiffs were denied jury trials are distinguishable. In those cases,[10] the cause was stricken from the jury calendar because the complaint was held to be essentially equitable in nature, or the equitable relief was dominant, and the claim for money damages merely incidental thereto.
Therefore, I conclude that plaintiffs here are entitled to a jury trial on their claim for money damages, and that the claims for accounting and injunction be tried by the Court. The entire matter of trial sequence should be left to the trial judge.
Settle order on two days' notice.
NOTES
[1] Ring v. Spina, 2 Cir., 166 F.2d 546.
[2] Arnstein v. Porter, 2 Cir., 154 F.2d 464.
[3] Bellavance v. Plastic-Craft Novelty Co., D.C., 30 F.Supp. 37; Arnstein v. Twentieth Century Fox Film Corp., D. C., 3 F.R.D. 58; Moore's Federal Practice, 2nd Ed. Vol. 5, Sec. 38.26, p. 206.
[4] 9 Cir., 152 F.2d 730.
[5] Moore supra.
[6] Note 3 supra.
[7] In Ring v. Spina supra, 166 F.2d at page 550, Judge Clark said "Rationally there is no basis upon which to ground such a waiver short of resurrecting the ancient divisions now abolished to say that plaintiff has brought his `legal' claims into an `equitable' cause."
[8] Ring v. Spina, supra.
[9] U. S. v. Strymish, D.C., 86 F.Supp. 999, Rule 39(a), F.R.C.P., 28 U.S.C.A.
[10] Arnstein v. Twentieth Century Fox Film Corp., D.C., 3 F.R.D. 58; Young v. Loew's Inc., D.C., 2 F.R.D. 350. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/104010/ | 322 U.S. 596 (1944)
LYONS
v.
OKLAHOMA.
No. 433.
Supreme Court of United States.
Argued April 26, 1944.
Decided June 5, 1944.
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMA.
Mr. Thurgood Marshall, with whom Messrs. Amos T. Hall, William H. Hastie, and Leon A. Ransom were on the brief, for petitioner.
Mr. Sam H. Lattimore, Assistant Attorney General of Oklahoma, with whom Mr. Randell S. Cobb, Attorney General, was on the brief, for respondent.
Mr. Morris L. Ernst filed a brief on behalf of the American Civil Liberties Union, as amicus curiae, urging reversal.
*597 MR. JUSTICE REED delivered the opinion of the Court.
This writ brings to this Court for review a conviction obtained with the aid of a confession which furnished, if voluntary, material evidence to support the conviction. As the questioned confession followed a previous confession which was given on the same day and which was admittedly involuntary,[1] the issue is the voluntary character of the second confession under the circumstances which existed at the time and place of its signature and, particularly, because of the alleged continued influence of the unlawful inducements which vitiated the prior confession.
The petitioner was convicted in the state district court of Choctaw County, Oklahoma, on an information charging him and another with the crime of murder. The jury fixed his punishment at life imprisonment. The conviction was affirmed by the Criminal Court of Appeals, 77 Okl. Cr. ___, 138 P.2d 142, rehearing 140 P.2d 248, and this Court granted certiorari, 320 U.S. 732, upon the petitioner's representation that there had been admitted against him an involuntary confession procured under circumstances which made its use in evidence a violation of his rights under the due process clause of the Fourteenth Amendment.[2]
*598 Prior to Sunday, December 31, 1939, Elmer Rogers lived with his wife and three small sons in a tenant house situated a short distance northwest of Fort Towson, Choctaw County, Oklahoma. Late in the evening of that day Mr. and Mrs. Rogers and a four-year-old son Elvie were murdered at their home and the house was burned to conceal the crime.
Suspicion was directed toward the petitioner Lyons and a confederate, Van Bizzell. On January 11, 1940, Lyons was arrested by a special policeman and another officer whose exact official status is not disclosed by the record. The first formal charge that appears is at Lyons' hearing before a magistrate on January 27, 1940. Immediately after his arrest there was an interrogation of about two hours at the jail. After he had been in jail eleven days he was again questioned, this time in the county prosecutor's office. This interrogation began about six-thirty in the evening, and on the following morning between two and four produced a confession. This questioning is the basis of the objection to the introduction as evidence of a second confession which was obtained later in the day at the state penitentiary at McAlester by Warden Jess Dunn and introduced in evidence at the trial. There was also a third confession, oral, which was admitted on the trial without objection by petitioner. This was given to a guard at the penitentiary two days after the second. Only the petitioner, police, prosecuting and penitentiary officials were present at any of these interrogations, except that a private citizen who drove the car that brought Lyons to McAlester witnessed this second confession.
*599 Lyons is married and was 21 or 22 years of age at the time of the arrest. The extent of his education or his occupation does not appear. He signed the second confession. From the transcript of his evidence, there is no indication of a subnormal intelligence. He had served two terms in the penitentiary one for chicken stealing and one for burglary. Apparently he lived with various relatives.
While petitioner was competently represented before and at the trial, counsel was not supplied him until after his preliminary examination, which was subsequent to the confessions. His wife and family visited him between his arrest and the first confession. There is testimony by Lyons of physical abuse by the police officers at the time of his arrest and first interrogation on January 11th. His sister visited him in jail shortly afterwards and testified as to marks of violence on his body and a blackened eye. Lyons says that this violence was accompanied by threats of further harm unless he confessed. This evidence was denied in toto by officers who were said to have participated.
Eleven days later the second interrogation occurred. Again the evidence of assault is conflicting. Eleven or twelve officials were in and out of the prosecutor's small office during the night. Lyons says that he again suffered assault. Denials of violence were made by all the participants accused by Lyons except the county attorney, his assistant, the jailer and a highway patrolman. Disinterested witnesses testified to statements by an investigator which tended to implicate that officer in the use of force, and the prosecutor in cross-examination used language which gave color to defendant's charge. It is not disputed that the inquiry continued until two-thirty in the morning before an oral confession was obtained and that a pan of the victims' bones was placed in Lyons' lap by his *600 interrogators to bring about his confession. As the confession obtained at this time was not offered in evidence, the only bearing these events have here is their tendency to show that the later confession at McAlester was involuntary.
After the oral confession in the early morning hours of January 23, Lyons was taken to the scene of the crime and subjected to further questioning about the instruments which were used to commit the murders. He was returned to the jail about eight-thirty A.M. and left there until early afternoon. After that the prisoner was taken to a nearby town of Antlers, Oklahoma. Later in the day a deputy sheriff and a private citizen took the petitioner to the penitentiary. There, sometime between eight and eleven o'clock on that same evening, the petitioner signed the second confession.
When the confession which was given at the penitentiary was offered, objection was made on the ground that force was practiced to secure it and that, even if no force was then practiced, the fear instilled by the prisoner's former treatment at Hugo on his first and second interrogations continued sufficiently coercive in its effect to require the rejection of the second confession.
The judge, in accordance with Oklahoma practice and after hearing evidence from the prosecution and the defense in the absence of the jury, first passed favorably upon its admissibility as a matter of law, Lyons v. State, 138 P.2d 142, 163; cf. McNabb v. United States, 318 U.S. 332, 338, n. 5, and then, after witnesses testified before the jury as to the voluntary character of the confession, submitted the guilt or innocence of the defendant to the jury under a full instruction, approved by the Criminal Court of Appeals, to the effect that voluntary confessions are admissible against the person making them but are to be "carefully scrutinized and received with great caution" *601 by the jury and rejected if obtained by punishment, intimidation or threats. It was added that the mere fact that a confession was made in answer to inquiries "while under arrest or in custody" does not prevent consideration of the evidence if made "freely and voluntarily." The instruction did not specifically cover the defendant's contention, embodied in a requested instruction, that the second confession sprang from the fear engendered by the treatment he had received at Hugo.
The mere questioning of a suspect while in the custody of police officers is not prohibited either as a matter of common law or due process. Lisenba v. California, 314 U.S. 219, 239-241; Wan v. United States, 266 U.S. 1, 14. The question of how specific an instruction in a state court must be upon the involuntary character of a confession is, as a matter of procedure or practice, solely for the courts of the state. When the state-approved instruction fairly raises the question of whether or not the challenged confession was voluntary, as this instruction did, the requirements of due process, under the Fourteenth Amendment, are satisfied and this Court will not require a modification of local practice to meet views that it might have as to the advantages of concreteness. The instruction given satisfies the legal requirements of the State of Oklahoma as to the particularity with which issues must be presented to its juries, Lyons v. State, 138 P.2d 142, 164, and in view of the scope of that instruction, it was sufficient to preclude any claim of violation of the Fourteenth Amendment.
The federal question presented is whether the second confession was given under such circumstances that its use as evidence at the trial constitutes a violation of the due process clause of the Fourteenth Amendment, which requires that state criminal proceedings "shall be consistent with the fundamental principles of liberty and *602 justice." Hebert v. Louisiana, 272 U.S. 312, 316; Mooney v. Holohan, 294 U.S. 103, 112; Buchalter v. New York, 319 U.S. 427, 429.
No formula to determine this question by its application to the facts of a given case can be devised. Hopt v. Utah, 110 U.S. 574, 583; Betts v. Brady, 316 U.S. 455, 462. Here improper methods were used to obtain a confession, but that confession was not used at the trial. Later, in another place and with different persons present, the accused again told the facts of the crime. Involuntary confessions, of course, may be given either simultaneously with or subsequently to unlawful pressures, force or threats. The question of whether those confessions subsequently given are themselves voluntary depends on the inferences as to the continuing effect of the coercive practices which may fairly be drawn from the surrounding circumstances. Lisenba v. California, 314 U.S. 219, 240. The voluntary or involuntary character of a confession is determined by a conclusion as to whether the accused, at the time he confesses, is in possession of "mental freedom" to confess to or deny a suspected participation in a crime. Ashcraft v. Tennessee, 322 U.S. 143, 154; Hysler v. Florida, 315 U.S. 411, 413.
When conceded facts exist which are irreconcilable with such mental freedom, regardless of the contrary conclusions of the triers of fact, whether judge or jury, this Court cannot avoid responsibility for such injustice by leaving the burden of adjudication solely in other hands. But where there is a dispute as to whether the acts which are charged to be coercive actually occurred, or where different inferences may fairly be drawn from admitted facts, the trial judge and the jury are not only in a better position to appraise the truth or falsity of the defendant's assertions from the demeanor of the witnesses but the legal duty is upon them to make the decision. Lisenba v. California, supra, p. 238.
*603 Review here deals with circumstances which require examination into the possibility as to whether the judge and jury in the trial court could reasonably conclude that the McAlester confession was voluntary. The fact that there is evidence which would justify a contrary conclusion is immaterial. To triers of fact is left the determination of the truth or error of the testimony of prisoner and official alike. It is beyond question that if the triers of fact accepted as true the evidence of the immediate events at McAlester, which were detailed by Warden Dunn and the other witnesses, the verdict would be that the confession was voluntary, so that the petitioner's case rests upon the theory that the McAlester confession was the unavoidable outgrowth of the events at Hugo.
The Fourteenth Amendment does not protect one who has admitted his guilt because of forbidden inducements against the use at trial of his subsequent confessions under all possible circumstances. The admissibility of the later confession depends upon the same test is it voluntary. Of course the fact that the earlier statement was obtained from the prisoner by coercion is to be considered in appraising the character of the later confession. The effect of earlier abuse may be so clear as to forbid any other inference than that it dominated the mind of the accused to such an extent that the later confession is involuntary. If the relation between the earlier and later confession is not so close that one must say the facts of one control the character of the other, the inference is one for the triers of fact and their conclusion, in such an uncertain situation, that the confession should be admitted as voluntary, cannot be a denial of due process. Canty v. Alabama, 309 U.S. 629, cannot be said to go further than to hold that the admission of confessions obtained by acts of oppression is sufficient to require a reversal of a state conviction by this Court. Our judgment there relied solely upon Chambers v. Florida, 309 U.S. 227. The Oklahoma *604 Criminal Court of Appeals in the present case decided that the evidence would justify a determination that the effect of a prior coercion was dissipated before the second confession and we agree.
Petitioner suggests a presumption that earlier abuses render subsequent confessions involuntary unless there is clear and definite evidence to overcome the presumption. We need not analyze this contention further than to say that in this case there is evidence for the state which, if believed, would make it abundantly clear that the events at Hugo did not bring about the confession at McAlester.
In our view, the earlier events at Hugo do not lead unescapably to the conclusion that the later McAlester confession was brought about by the earlier mistreatments. The McAlester confession was separated from the early morning statement by a full twelve hours. It followed the prisoner's transfer from the control of the sheriff's force to that of the warden. One person who had been present during a part of the time while the Hugo interrogation was in progress was present at McAlester, it is true, but he was not among those charged with abusing Lyons during the questioning at Hugo. There was evidence from others present that Lyons readily confessed without any show of force or threats within a very short time of his surrender to Warden Dunn and after being warned by Dunn that anything he might say would be used against him and that he should not "make a statement unless he voluntarily wanted to." Lyons, as a former inmate of the institution, was acquainted with the warden. The petitioner testified to nothing in the past that would indicate any reason for him to fear mistreatment there. The fact that Lyons, a few days later, frankly admitted the killings to a sergeant of the prison guard, a former acquaintance from his own locality, under circumstances free of coercion suggests strongly that the petitioner had concluded that it was wise to make a clean breast of his guilt and that *605 his confession to Dunn was voluntary. The answers to the warden's questions, as transcribed by a prison stenographer, contain statements correcting and supplementing the questioner's information and do not appear to be mere supine attempts to give the desired response to leading questions.
The Fourteenth Amendment is a protection against criminal trials in state courts conducted in such a manner as amounts to a disregard of "that fundamental fairness essential to the very concept of justice," and in a way that "necessarily prevents a fair trial." Lisenba v. California, 314 U.S. 219, 236. A coerced confession is offensive to basic standards of justice, not because the victim has a legal grievance against the police, but because declarations procured by torture are not premises from which a civilized forum will infer guilt. The Fourteenth Amendment does not provide review of mere error in jury verdicts, even though the error concerns the voluntary character of a confession. We cannot say that an inference of guilt based in part upon Lyons' McAlester confession is so illogical and unreasonable as to deny the petitioner a fair trial.
Affirmed.
MR. JUSTICE DOUGLAS concurs in the result.
MR. JUSTICE RUTLEDGE dissents.
MR. JUSTICE MURPHY, dissenting:
This flagrant abuse by a state of the rights of an American citizen accused of murder ought not to be approved. The Fifth Amendment prohibits the federal government from convicting a defendant on evidence that he was compelled to give against himself. Bram v. United States, 168 U.S. 532. Decisions of this Court in effect have held that the Fourteenth Amendment makes this prohibition applicable to the states. Chambers v. Florida, *606 309 U.S. 227; Canty v. Alabama, 309 U.S. 629; Lisenba v. California, 314 U.S. 219; Ashcraft v. Tennessee, 322 U.S. 143. Cf. Green, "Liberty Under the Fourteenth Amendment," 27 Wash. Univ. L.Q. 497, 533. It is our duty to apply that constitutional prohibition in this case.
Even though approximately twelve hours intervened between the two confessions and even assuming that there was no violence surrounding the second confession, it is inconceivable under these circumstances that the second confession was free from the coercive atmosphere that admittedly impregnated the first one. The whole confession technique used here constituted one single, continuing transaction. To conclude that the brutality inflicted at the time of the first confession suddenly lost all of its effect in the short space of twelve hours is to close one's eyes to the realities of human nature. An individual does not that easily forget the type of torture that accompanied petitioner's previous refusal to confess, nor does a person like petitioner so quickly recover from the gruesome effects of having had a pan of human bones placed on his knees in order to force incriminating testimony from him. Cf. State v. Ellis, 294 Mo. 269; Fisher v. State, 145 Miss. 116, 110 So. 361; Reason v. State, 94 Miss. 290, 48 So. 820; Whitley v. State, 78 Miss. 255; State v. Wood, 122 La. 1014, 48 So. 438. Moreover, the trial judge refused petitioner's request that the jury be charged that the second confession was not free and voluntary if it was obtained while petitioner was still suffering from the inhuman treatment he had previously received. Thus it cannot be said that we are confronted with a finding by the trier of facts that the coercive effect of the prior brutality had completely worn off by the time the second confession was signed.
Presumably, therefore, this decision means that state officers are free to force a confession from an individual *607 by ruthless methods, knowing full well that they dare not use such a confession at the trial, and then, as a part of the same continuing transaction and before the effects of the coercion can fairly be said to have completely worn off, procure another confession without any immediate violence being inflicted. The admission of such a tainted confession does not accord with the Fourteenth Amendment's command that a state shall not convict a defendant on evidence that he was compelled to give against himself. Chambers v. Florida, supra; Canty v. Alabama, supra; Lisenba v. California, qupra; Ashcraft v. Tennessee, supra.
MR. JUSTICE BLACK concurs in this opinion.
NOTES
[1] Whether or not the other evidence in the record is sufficient to justify the general verdict of guilty is not necessary to consider. The confession was introduced over defendant's objection. If such admission of this confession denied a constitutional right to defendant the error requires reversal. Bram v. United States, 168 U.S. 532, 540-42. Cf. Stromberg v. California, 283 U.S. 359, 367, 368; Williams v. North Carolina, 317 U.S. 287, 291, 292.
[2] In petitioner's brief a claim is made that Oklahoma denied to him the equal protection of the laws guaranteed by the Fourteenth Amendment. Apparently petitioner relies upon his undue detention without preliminary examination, which was in violation of the state criminal procedure, as a denial by Oklahoma of equal protection of the law. But the effect of the mere denial of a prompt examining trial is a matter of state, not of federal, law. To refuse this is not a denial of equal protection under the Fourteenth Amendment although it is a fact for consideration on an allegation that a confession used at the trial was coerced. Cf. McNabb v. United States, 318 U.S. 332, 340; United States v. Mitchell, 322 U.S. 65. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3033652/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-1849
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Juan Alavid Cortez, * District of Minnesota.
*
Appellant. * [UNPUBLISHED]
___________
Submitted: February 5, 2004
Filed: February 26, 2004
___________
Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Juan Alavid Cortez pleaded guilty to conspiring to distribute and possess with
intent to distribute approximately 452 grams of a substance containing
methamphetamine, and aiding and abetting possession with intent to distribute
approximately 452 grams of a substance containing methamphetamine, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846, and 18 U.S.C. § 2. The district court1
sentenced Cortez to concurrent terms of 87 months imprisonment on each count, plus
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
concurrent terms of 4 years supervised release. On appeal, counsel has filed a brief
under Anders v. California, 386 U.S. 738 (1967).
Construing the Anders brief as challenging the district court’s denial of
requested sentencing reductions, we find no error in Cortez’s sentence. First, the
district court did not clearly err in denying Cortez a reduction for being a minor
participant, as Cortez admitted he acted as a middleman who arranged the drug deal
underlying his conviction. See United States v. Thurmon, 278 F.3d 790, 792 (8th Cir.
2002) (standard of review). The district court also did not clearly err in denying
Cortez a reduction under the safety-valve provision. See U.S.S.G. § 2D1.1(b)(6);
United States v. Alarcon-Garcia, 327 F.3d 719, 721 (8th Cir. 2003) (standard of
review; defendant has burden to show entitlement to safety-valve reduction).
Following our independent review of the record, see Penson v. Ohio, 488 U.S.
75 (1988), we find no nonfrivolous issues. Accordingly, we affirm the judgment of
the district court. We also grant counsel’s motion to withdraw.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1920394/ | 107 B.R. 234 (1989)
In re Thomas M. QUINTANA and Delores J. Quintana, Debtors.
Thomas M. QUINTANA and Delores J. Quintana, Appellants,
v.
INTERNAL REVENUE SERVICE, BUREAU OF LAND MANAGEMENT, Clemons, Cosho & Humphrey, Norman Easterday, Farm City Livestock Supply, Connecticut General Life Insurance Company, et al., Appellees.
BAP No. ID 87-1946 VPR, Bankruptcy No. 87-01240-F.
United States Bankruptcy Appellate Panel of the Ninth Circuit.
Argued and Submitted June 15, 1988.
Decided October 27, 1989.
*235 Richard B. Eismann, Caldwell, Ind., for appellants.
Clifton R. Jessup, Jr., Dixon, Dixon, P.C., Omaha, Neb., for appellees.
Before VOLINN, PERRIS and RUSSELL, Bankruptcy Judges.
OPINION
BARRY RUSSELL, Bankruptcy Judge:
The debtors' Chapter 12 case was dismissed because their aggregate debts exceeded the statutory limitations for eligibility to file a Chapter 12 petition. The bankruptcy court rejected the debtors' argument that, for eligibility purposes, the value of a nonrecourse obligation should be written down to the value of the collateral. The court also rejected the debtors' argument that their aggregate debts should be reduced by a counterclaim that the debtors had asserted against a creditor. We affirm.
I. FACTS
In May 1979, the debtors Thomas M. and Delores J. Quintana borrowed $1 million from Connecticut General Life Insurance Company. The loan was secured by real property in Idaho. On March 8, 1985, after the debtors defaulted on both notes, Connecticut General brought an action in Idaho state court for a money judgment and for a decree of foreclosure and order of sale of its interest. The debtors answered and counterclaimed, alleging that Connecticut General had wrongfully procured the appointment of a receiver to conduct the debtors' business, and that the receiver had damaged the debtors' business by acting in a reckless and grossly negligent manner while acting as an agent of Connecticut *236 General. The debtors sought compensatory damages in the amount of $75,000 and punitive damages in the amount of $1 million on their counterclaim.
On September 10, 1986, the Idaho state court entered summary judgment in favor of Connecticut General and declined to enter summary judgment on the debtors' counterclaim, stating that it presented genuine issues of material fact. During the proceedings, Connecticut General waived its right to subsequently pursue a deficiency judgment against the debtors.
On April 17, 1987, the Quintanas filed a Chapter 12 petition. Connecticut General moved to dismiss the case on the grounds that the debtors' aggregate debts exceeded the statutory limitation of $1.5 million and that the debtors were therefore ineligible to file a Chapter 12 petition. On July 6, 1987, the bankruptcy court held a hearing, found that the Quintanas' aggregate debts exceeded $1.5 million, and dismissed the case.
The debtors timely appealed. On appeal, it is not disputed that Connecticut General has a claim for an amount in excess of $1.5 million. It is also not disputed that for these purposes the value of the property is about $600,000, an amount substantially less than $1.5 million.
II. ISSUE
Whether the debtors' aggregate debts exceeded $1.5 million in view of Connecticut General's waiver of a deficiency judgment and in view of the debtors' counterclaim against Connecticut General.
III. STANDARD OF REVIEW
The facts are not in dispute. On appeal is the definition and application of the term "aggregate debts," as used in Section 101(17)(A).[1] "Questions of statutory interpretation are reviewed de novo." Sierra Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705, 707 (9th Cir.1986).
IV. DISCUSSION
Section 109 contains the statutory limits on "Who may be a debtor." Subsection (f) states that "Only a family farmer with regular annual income may be a debtor under Chapter 12 of this title." Family farmer is defined along with certain other terms in Section 101. A family farmer is defined as an
individual or individual and spouse engaged in a farming operation whose aggregate debts do not exceed $1,500,000
and
not less than 80 percent of whose aggregate noncontingent, liquidated debts (excluding a debt for the principal residence of such individual or such individual and spouse unless such debt arises out of a farming operation), on the date the case is filed, arise out of a farming operation owned or operated by such individual or such individual and spouse,
and
such individual or such individual and spouse receive from such farming operation more than 50 percent of such individual's or such individual and spouse's gross income for the taxable year preceding the taxable year in which the case concerning such individual or such individual and spouse was filed.
11 U.S.C. § 101(17)(A) (emphasis and formatting added). The element of the statutory definition that is at issue in this appeal is that to qualify as a family farmer, a debtor's aggregate debts must not exceed $1.5 million on the date that the petition is filed.[2]See also § 101(17)(B)(ii) (the same $1.5 million debt ceiling applies when the petitioner is a corporation or a partnership).
*237 The phrase "aggregate debts," as used in Section 101(17)(A), is the most inclusive phrase used in the Bankruptcy Code in regards to aggregations of debts. Chapter 12's debt-ceiling limitation is not defined in terms of aggregate "noncontingent, liquidated debts," as Chapter 13's eligibility requirements are defined, nor is it defined in terms of claims that are "not contingent as to liability or the subject of a bona fide dispute," as eligibility for a creditor to file an involuntary petition is defined. Compare § 101(17)(A) with § 109(e) and § 303(b)(1). Two different definitions of debts are used within Section 101(17)(A) itself. "The $1,500,000 limitation refers to `aggregate debts,' a term which is much broader than the `aggregate, noncontingent, liquidated debts' language used in connection with the 80% test." 3 Norton Bankruptcy Law and Practice § 81.02 at 2 (1988). Thus, the term "aggregate debts" excludes fewer types of debts than the other more limited terms. In fact, the term "aggregate debts" includes all types of debts.
A debt is defined in Section 101(11) as "liability on a claim." A claim is broadly defined in Section 101(4) to include a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured." The legislative history to Section 101(4) emphasizes the broad definition of "claim" and states that "[b]y this broad definition . . . the bill contemplates that all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case." H.R.Rep. No. 595, 95th Cong., 1st Sess. 309 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 21-22 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5807-08, 6266. A relevant example of how broadly the term "claim" has been interpreted may be found in Downey Sav. & Loan Ass'n v. Metz (In re Metz), 820 F.2d 1495 (9th Cir.1987), where the Ninth Circuit held that a lien on property of the debtor was a claim against the debtor that could be dealt with by a Chapter 13 plan even though the debtor's in personam liability had been discharged in a prior Chapter 7. Id. at 1498.
The term "debt" has the same broad meaning as the term "claim." See, e.g., In re Vaughan, 100 B.R. 423 (Bankr.S.D.Ill. 1989). The legislative history to Section 101(11) states that "[t]he terms [debt and claim] are coextensive: a creditor has a `claim' against the debtor; the debtor owes a `debt' to the creditor." H.R.Rep. No. 95-595 at 310; S.Rep. No. 95-989 at 23, U.S.Code Cong. & Admin.News 1978, pp. 5809, 6267. In re Johnson-Allen, 871 F.2d 421, 424 (3rd Cir.1989). The term "coextensive" in the legislative history clearly suggests that both terms have the same scope.[3]E.g., Danning v. Bozek (In re Bullion Reserve of N. Am.), 836 F.2d 1214, 1219 (9th Cir.), cert. denied, 486 U.S. 1056, 108 S. Ct. 2824, 100 L. Ed. 2d 925 (1988). Any difference between the two definitions are merely those differences inherent in describing a term from opposing points of view. "Debt" concerns itself with a debtor's obligation, while "claim" concerns itself with a creditor's rights. In re Pulliam, 90 B.R. 241, 245 (Bankr.N.D.Tenn. 1988). Thus, a debt is coextensive with a claim. To the extent that a creditor has a claim against the debtor, the debtor owes a debt to the creditor.
We recognize the authority supporting the dissent's position that the term "debt" is narrower than the term "claim" and that liability on the claim must be established or unchallenged before a claim becomes a debt. See, e.g., In re Lands, 85 B.R. 83 (Bankr.E.D.Ark.1988); In re Carpenter, 79 B.R. 316 (Bankr.S.D.Ohio 1987); In re Lambert, 43 B.R. 913 (Bankr.D.Utah 1984). We believe however that this position is inconsistent with the command of the legislative history that the claims be construed coextensively.
It is a general rule of statutory construction that a term should be construed consistently throughout a statute. *238 See Yamaguchi v. State Farm Mutual Automobile Insurance Co., 706 F.2d 940, 947 (9th Cir.1983). This is particularly true where, as here, Congress has taken the effort to provide a definition applicable to the entire Bankruptcy Code. The narrow definition of the term debt is inconsistent with the application of that term in other sections of the Code[4] and may have drastic consequences if that definition is applied in other sections of the Code that use the term "debt" in an unrestricted manner. For example, sections 727(a), 1141(d), 1228(c) and 1328(c) provide that a discharge or confirmation of a plan discharges a debtor from all "debt[s]." If the term "debt" is limited to unchallenged or established liabilities, as suggested by some of the cases cited in the prior paragraph, a discharge would be limited in scope and the fresh start purposes of the Bankruptcy Code would be significantly impaired. If the term is limited to liability on allowed claims, as the dissent implies, the impairment would be more severe.[5]
Finally, cases which define the term "debt" narrowly in the context of a Chapter 12 eligibility determination, see In re Williams Land Co., 91 B.R. 923, 927 (Bankr.D.Or.1988); Lands, supra; Carpenter, supra, rely primarily on cases determining Chapter 13 eligibility. See In re Lambert, supra, In re King, 9 B.R. 376 (Bankr.D.Or.1981). Lambert and King involve determinations under section 109(e) which limits Chapter 13 eligibility to individuals with "noncontingent, liquidated, unsecured debts of less than $100,000." Those cases considered the relationship of "disputed" or similar terms to the terms "noncontingent" or "liquidated" and held that disputed debts could not be counted toward the $100,000 debt limitation. The issue in Lambert and King involved the interpretation of a section where the term "debt" was expressly restricted rather than the interpretation of a section where, as in this case, the term is unrestricted. In addition, the holdings of King and Lambert are inconsistent with In re Sylvester, 19 B.R. 671 (9th Cir. BAP 1982), where the Panel noted that the terms "disputed," "contingent" and "unliquidated" have different meanings and held that where the amount of the debt was readily ascertainable, the fact that the debt was disputed would not preclude its use in determining eligibility under section 109(e). If Sylvester refused to use the narrow definition in the context of a statutorily restricted application of the term debt, we will not do so here and we adopt the statute's broad definition of that term for purposes of determining Chapter 12 eligibility.
Although Connecticut General's proof of claim reflected a debt in excess of $1.5 million and an apparent ineligibility for Chapter 12 relief,[6] debtors argue that Connecticut *239 General's claim is not, in its entirety, a debt that should be considered in determining Chapter 12 eligibility. Debtors argue that the entire amount of Connecticut General's nonrecourse claim against the property is not a debt and that the amount of their aggregate debts should be reduced by the value of their counterclaims against Connecticut General. For the reasons set forth below, we disagree.
A. A Nonrecourse Claim Against The Property Of The Debtors Should Be Treated As A Claim Against The Debtors Personally For Eligibility Purposes.
The main issue present in this appeal is whether Connecticut General's claim should be valued at its full amount or at some lower value based on the amount that Connecticut General is likely to receive in collection on it. This issue arises due to Connecticut General's waiver of its right to pursue a deficiency judgment. The debtors assert that the value of Connecticut General's claim should be valued at the value of the land, because they are no longer personally liable for any deficiency. This issue is important because if this debt were valued at only $600,000 instead of $1.5 million, then the debtors would no longer violate Chapter 12's debt-ceiling limitation.
Debtors' argument, however, ignores Section 102(2), one of the Bankruptcy Code's basic rules of construction, which provides that a claim against property of the debtor is treated as a claim against the debtor personally. Pursuant to Section 103(a), that rule of construction applies to a case under Chapter 12. The legislative history reflects that Section 102(2) squarely addresses the issue before this panel.
This paragraph [Section 102(2)] is intended to cover nonrecourse loan agreements where the creditor's only rights are against property of the debtor, and not against the debtor personally. Thus, such an agreement would give rise to a claim that would be treated as a claim against the debtor personally, for the purposes of the Bankruptcy Code.
H.R.Rep. No. 95-595 at 315; S.Rep. No. 95-989 at 28, U.S.Code Cong. & Admin. News 1978, pp. 5814, 6272.
The obligation at issue in this appeal was personally created by the Quintanas. Even though Connecticut General has waived its right to pursue the remedy of a deficiency judgment, under section 102(2) the claim against the property is a claim against the debtors. Because the term claim is coextensive with the term debt, this obligation is a debt of the debtors which is defined by the amount of the claim against the property. Connecticut General's claim against the property is approximately $1.528 million because it has the right to payment of that amount from the property or from the proceeds of the sale of the property. Although, as a practical matter, Connecticut General will only be able to collect the value of the property, it has the right to payment of the entire obligation if under some circumstance, the property is sold for more than its present value.[7] Therefore, although the collectability may be limited to the value, the right to payment is not so limited and consequently neither is the claim, nor the debt. Accordingly, notwithstanding the non-recourse nature of the obligation, the entire debt is to be considered in computing aggregate debts.
B. The Amount Of The Quintanas' Aggregate Debts Should Not Be Reduced By The Value Of Any Of Their Assets, Including Their Counterclaim.
The debtors argue that they should be allowed to set-off their counterclaim against their debt to Connecticut *240 General. However, eligibility is simply defined in terms of aggregate debts, and not in terms of "net" aggregate debts. The Bankruptcy Appellate Panel has held that, for the purpose of determining eligibility for a Chapter 13, the amount of debt should not be reduced by the value of a counterclaim asserted by the debtor. Sylvester v. Dow Jones & Co. (In re Sylvester), 19 B.R. 671, 673 (9th Cir. BAP 1982).
The debtors' desire to set-off their counterclaim against their debt to Connecticut General is no different from any other attempt to set-off, with the added practical difficulty inherent in the valuation of an unliquidated counterclaim. The analysis is similar: a counterclaim, if it has some value, is an addition to assets of the estate and not a reduction to its liabilities. The term "aggregate debts" should not be interpreted as aggregate debts less certain assets. In re Sylvester, 19 B.R. at 673. See also In re Stedman, 72 B.R. 49, 53 (Bankr.D.N.D.1987) (Chapter 12 debtors were not allowed to set-off the Federal Land Bank stock that they had been required to purchase as a precondition to incurring debt to the Federal Land Bank against the debt that they did owe to the Bank).[8]
C. The Debt-Ceiling Limitation Should Be Enforced As Written.
It appears that the Quintanas might be family farmers in every definition of the phrase except for the definition provided by the Bankruptcy Code because the Quintanas fall just beyond the line that Congress drew for eligibility to file a Chapter 12. However, the line is where Congress placed it.
It is not necessarily "inequitable" if the Quintanas do not qualify to file under Chapter 12 because it was never expected that every single family that farms and that wants to file for bankruptcy would be eligible to file a Chapter 12 petition. "It was estimated that 90% of farmers would be eligible for Chapter 12 treatment, based on its $1.5 million debt-limit ceiling." 5 Bkr-L Ed., Code Commentary & Analysis § 44.1:2 at 7 (1987) (citations omitted). "Congress made it clear that Chapter 12 was not to apply to all farming operations, of whatever size." In re Stedman, 72 B.R. at 54. See also Norwest Bank Worthington v. Ahlers (In re Ahlers), 485 U.S. 197, 210 n. 9, 108 S. Ct. 963, 970 n. 9, 99 L. Ed. 2d 169 (1988) (dicta; the Ahlers, who were family farmers in the lay sense of the term, did not qualify for Chapter 12).
Even assuming arguendo that it is somehow "inequitable" for these debtors not to qualify to file a Chapter 12 petition, "[w]e have serious doubts . . . about the propriety of judges' declining to enforce statutes that produce inequitable results. Bankruptcy statutes are not special cases." Bonded Fin. Servs., Inc. v. European Am. Bank, 838 F.2d 890, 894 (7th Cir.1988) (citations omitted). Underinclusive legislation, such as Chapter 12, is still valid legislation and should be enforced as written.[9]
Liberal interpretation of the statute in *241 the manner suggested by the debtors,[10] should not be used to circumvent the plain meaning of the statutory language. Chapter 12's debt-ceiling limitation has been uniformly interpreted in accordance with the way the ordinary language of the statute. Reiners v. Federal Land Bank of Jackson (In re Reiners), 846 F.2d 1012, 1013 (5th Cir.1988).[11]
V. CONCLUSION
Congress has defined and limited eligibility to file a Chapter 12 petition in such a fashion as to exclude some who appear to be family farmers in the lay sense of the phrase. That is the prerogative of the legislature.
These debtors do not qualify to file a petition under Chapter 12 because they have more than $1.5 million in aggregate debts. Their debts may not be reduced merely because Connecticut General waived its right to pursue a deficiency judgment; nor may their debts be reduced by a counterclaim against a creditor.
One of the substantial benefits available to Chapter 12 debtors is the ability to write down an undersecured debt to the value of the land used as collateral and, at the same time, to keep the land. Presumably, this is the Quintanas' goal. However, only those debtors who qualify for relief under Chapter 12 may enjoy any of its substantial benefits. Specifically, Chapter 12 has a debt-ceiling limitation that must be met before a petitioner is allowed to enjoy the benefits of Chapter 12, such as writing down secured debt. The test for eligibility "is simply described and should be simply applied." Whaley v. United States (In re Whaley), 76 B.R. 95, 97 (N.D.Miss.1987).
We affirm the dismissal of the petition.
VOLINN, Bankruptcy Judge, dissenting:
A. RULING OF THE BANKRUPTCY COURT
The decision of the bankruptcy court was considered in the context of state law. Idaho is a state which follows the lien theory of mortgages. Because the mortgagee under Idaho law does not have legal title to the mortgaged premises and the mortgagor retains full ownership of the property, the mortgagee's interest in the property is that of a lienholder or holder of a security interest. Birkeland v. Clearwater Concentrating Co., 64 Idaho 122, 127 P.2d 1047, 1051 (1942); Hannah v. Vensel, 19 Idaho 796, 116 P. 115, 117 (1911). Therefore, the mortgagee must institute foreclosure proceedings in the event of a default in order to sell the property.
Idaho Code § 6-101 is known as the "single action rule." A real property mortgagee in Idaho must foreclose first on its security before having recourse against a debtor. A deficiency exists where the proceeds of the foreclosure sale are insufficient to satisfy the mortgage debt.[1] The *242 amount of a deficiency judgment under Idaho law is limited to the difference between the property's fair market value and the amount of the unpaid debt.[2]
The judgment of foreclosure and sale determines the parties' legal rights in the underlying obligation, as well as in the mortgaged property. Thus, it determines the amount of the mortgage indebtedness, the default, the right of the mortgagee to realize upon the security, the time and place of sale of the security, the notice required, and the right of the mortgagee to a judgment of deficiency. Idaho Code §§ 6-101 & 6-108 (1979). If the mortgagee bids at the sheriff's sale, he does not acquire title to the property until judicial confirmation of the sale. Idaho Code § 6-104 (1979). Therefore, the deficiency is determined following confirmation of the sale.
From this premise, Connecticut General contended that when a judgment has been obtained but a sale has not yet taken place, as in this case, a deficiency is not yet in existence, and therefore it remains entitled to the mortgage indebtedness of $1,527,861.89, regardless of its waiver of a deficiency. Connecticut General also argued that its waiver did not extinguish the debt, and that all it waived was the right to pursue a particular remedy that of a deficiency judgment. The bankruptcy court agreed with the latter argument of appellee, holding that only the remedy, but not the debt, was affected by the waiver. Thus, the court concluded, in effect, that the mortgage debt should be considered as fully enforceable despite a factual context which, beyond sale of the collateral, rendered such debt unenforceable under the Idaho Code, particularly section 6-101 as herein noted.
B. LEGISLATIVE POLICY UNDER THE BANKRUPTCY CODE
The Bankruptcy Code is to be liberally construed in order to give the debtor the full measure of the relief afforded by Congress. Any ambiguities should be resolved in favor of the debtor. See Wright v. Union Central Ins. Co., 311 U.S. 273, 278-79, 61 S. Ct. 196, 199-200, 85 L. Ed. 184 (1940) (construing pre-Code Bankruptcy Act provisions for relief of farmer-debtors). The court in Wright stated:
This Act provided a procedure to effectuate a broad program of rehabilitation of distressed farmers faced with the disaster of forced sales and an oppressive burden of debt. Safeguards were provided to protect the rights of secured creditors, throughout the proceeding, to the extent of the value of the property. There is no constitutional claim of the creditor to more than that. And so long as that right is protected the creditor certainly is in no position to insist that doubts or ambiguities in the Act be resolved in its favor and against the debtor. Rather, the Act must be liberally construed to give the debtor the full measure of the relief afforded by Congress, lest its benefits be frittered away by narrow formalistic interpretations which disregard the spirit and the letter of the Act.
Id. at 278-79, 61 S. Ct. at 199-200 (citations omitted).[3] For a recent application of this *243 principle, see In re Lambert, 43 B.R. 913, 919 (Bankr.D.Utah 1984), which held that the eligibility provisions of Chapter 13 "should be liberally interpreted so as not to unnecessarily obstruct the eligibility of debtors desiring relief. . . ."
Similarly, present Chapter 12 of the Bankruptcy Code, encompassed in legislation entitled the Bankruptcy Judges, United States Trustees, and Family Farmer Bankruptcy Act of 1986, Pub.L. No. 99-554, § 255, 100 Stat. 3105-3114, "was enacted by Congress as a tool for family farmers to use in reorganizing their business and financial affairs so as to weather the pending financial crisis in much of rural America." In re Stedman, 72 B.R. 49, 54 (Bankr.D.N.D.1987); see also 132 Cong. Rec. S15076-77 (daily ed. Oct. 3, 1986) (analysis of farmers' economic plight). Because Chapter 12 is a recent enactment, there is a consequent dearth of judicial interpretation. There can be little doubt, however, that Congress intended this statute to enlarge and liberalize a farmer's opportunity to enter into an arrangement with his creditors, particularly those who are secured, whereby he could try to effect a more favorable economic resolution of his problems. Congress found that Chapter 11, the only option for most family farmers, had been "needlessly complicated, unduly time-consuming, inordinately expensive and, in too many cases, unworkable." H.R.Conf.Rep. No. 958, 99th Cong., 2d Sess. 48 (1986), reprinted in 1986 U.S.Code Cong. & Admin.News 5227, 5249. Present Chapter 12 is
to be used only by family farmers. It is designed to give family farmers facing bankruptcy a fighting chance to reorganize their debts and keep their land. It offers family farmers the important protection from creditors that bankruptcy provides while, at the same time, preventing abuse of the system and ensuring that farm lenders receive a fair repayment.
. . . . .
Under this new chapter, it will be easier for a family farmer to confirm a plan of reorganization.
Id.
C. CLAIM VS. DEBT
A "family farmer" is eligible to file a petition for relief with the bankruptcy court under Chapter 12. The Code defines family farmer as an "individual or individual and spouse engaged in farming operations whose aggregate debts do not exceed $1,500,000. . . ." 11 U.S.C. § 101(17)(A) (1982 ed. Supp. IV) (emphasis supplied). The issue before us is whether the foregoing aggregate may include any sum in excess of the present value of the property which is admittedly the sole source for payment of appellee's claim. Obviously, if the deficiency amount is included, the Quintanas' aggregate debts exceed the $1,500,000 eligibility ceiling and they are not entitled to Chapter 12 protection. However, because of its waiver of deficiency, creditor Connecticut General has a right to payment of its secured claim not to the extent of $1,527,861.89 but only to the extent of the value of the property securing the claim, which, as of the filing of the Chapter 12 petition, was admittedly $600,000. Without bankruptcy, since its only recourse is to the property, the amount to which Connecticut General would have been entitled would rise (or fall) with fluctuations in the value of the property, such fluctuations being without relevance to what the debtor would owe. Therefore, characterizing the deficiency amount as contingent or unliquidated is not only inaccurate but does not dispose of the issue of whether it is a debt for Chapter 12 purposes, even though these types of liabilities are not statutorily excluded from the debt ceiling calculation in Chapter 12. 11 U.S.C. § 101(17)(A) (1982 ed. Supp. IV); In re Carpenter, 79 B.R. 316, 319-20 (Bankr.S.D.Ohio 1987); see In re Lambert, 43 B.R. 913, 919-23 (Bankr.D. Utah 1984) (defining noncontingent, liquidated, *244 and disputed debts in eligibility context of Chapter 13 proceeding). The issue here is whether a waived deficiency may rise to a level of existence consistent even with the concept of an unliquidated or contingent claim.
The majority cites the legislative history to the definition of "claim" in section 102(2) to the effect that a non-recourse claim against the debtor's property "would be treated as a claim against the debtor personally for the purposes of the Bankruptcy Code." However, note should be taken of the italicized sentence which follows the cited material: "However, it would not entitle the holders of the claim to distribution other than from the property in which the holder had an interest." H.Rep. No. 595, 95th Cong., 1st Sess. 315, U.S.Code Cong. & Admin.News 1978, p. 6272. This would mean, on the facts before us, that appellee's claim is worth no more than $600,000 or less than half of the threshold amount for Chapter 12.
Assuming arguendo that it is relevant to discuss the nature of a waived and unenforceable obligation, the nature of any claim thereon should nevertheless be subject to inquiry. "Debt," as defined in the Bankruptcy code, means "liability on a claim." 11 U.S.C. § 101(11) (1982). The term "claim" has a broader meaning than debt. 11 U.S.C. § 101(4) (1982);[4]In re Carpenter, 79 B.R. at 320; In re Lambert, 43 B.R. at 918-19; In re King, 9 B.R. 376, 377 (Bankr.D.Or.1981); contra, In re Energy Co-Op, 832 F.2d 997, 1001-02 (7th Cir.1987); In re Pulliam, 90 B.R. 241, 245-46 (Bankr.N.D.Tex.1988). The court in Carpenter expressed the consequences of this distinction well:
A claim arising from a creditor's demand for repayment, encompasses all obligations against a debtor which may be assertible in a bankruptcy case and thereby potentially affected by the discharge. But a claim is subject to disallowance if it is not a liability cognizable under law. That liability must be established or unchallenged before a claim becomes a debt. For that reason, the debtor's good faith indication of its debts generally establishes its eligibility for relief under a specific chapter of the Bankruptcy Code rather than the assertions of creditors by way of claims. See Comprehensive Accounting Corp. v. Pearson (In the Matter of Pearson), 773 F.2d 751 (6th Cir.1985). This Court would add to the finding in Pearson that the omission of a debt by the debtors, even if such omission is not in bad faith, but results from a mistake in law, is properly before the Court for the purpose of establishing eligibility for relief upon an appropriate challenge by a party in interest.
In re Carpenter, 79 B.R. at 320. Therefore, unliquidated, contingent or seriously disputed claims while subject to being counted at face value should nevertheless be subject to review for potentially commensurate enforceability.[5] Here, the *245 claim, limited as it is to property worth only $600,000, falls far short. As discussed below, while appellee's claim far exceeds the property's present value, it is not a presently cognizable debt and would be subject to disallowance by the bankruptcy court to the extent that such claim exceeds the value of the property.
D. ALLOWABILITY OF APPELLEE'S CLAIM
At the outset, 11 U.S.C. § 506(a) should be noted. In pertinent part it states:
An allowed claim of a creditor secured by a lien on property in which the estate has an interest . . . is a secured claim to the extent of the value of such creditor's interest in such property . . . and is an unsecured claim to the extent of the value of such creditor's interest less the amount of such allowed claim. . . . "
The legislative history states:
Subsection (a) of this section separates an undersecured creditor's claim into two parts. He has a secured claim to the extent of the value of his collateral; and he has an unsecured claim for the balance of his claim.
Section 506(d) provides:
(d) To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void
. . .
Based on the foregoing, it is clear that since appellee is undersecured, its claim may be dealt with in its discrete aspects, secured and unsecured, and that its secured claim is viable only to the extent of the value of the collateral.
However, appellee having waived recourse against the debtors, the unsecured portion of its claim cannot be allowed. The claim has no viability as an Idaho judgment, nor under the Bankruptcy Code. And, as indicated, the lien is subject to avoidance in any amount beyond the value of the property. The effect of these provisions on Chapter 12 has been stated as follows:
The essence of Chapter 12 is the ability of the Chapter 12 debtor to "write down" the mortgage securing the farm to the value of the farm and to pay the written-down amount over time. The "write down" is accomplished through use of Code § 506(a) and (d). Code § 506(a) provides that an allowed claim is only a secured claim to the extent of the value of the collateral and is an unsecured claim for the deficiency. Code § 506(d) provides that a lien which secures a claim is void to the extent the claim is not an allowed secured claim . . .
3 Norton Bankruptcy Law and Practice § 92.09
Connecticut General's claim to any amount in excess of the property's present value could not be allowed by the court, following objection by the debtors, because "such claim is unenforceable against the debtor and property of the debtor [other than the specific collateral in issue], under any agreement or applicable law for a reason other than because such claim is contingent or unmatured." 11 U.S.C. § 502(b)(1) (1982 ed. Supp. IV). Connecticut General's claim to any such excess is unenforceable because it waived its right to a deficiency; its only enforceable claim is for the property value. This issue, the basic one here, was dealt with in In re Lands, 85 B.R. 83 (Bankr.E.D.Ark.1988). The court considered whether the debts secured by non-recourse liens should be counted in the aggregate debt limitation. The liens had been granted by the Chapter 12 debtor on his property as an accommodation to secure his son's debts on which the debtor was not personally obligated. The court pointed out that under these circumstances, the creditor had no claim against the debtor which could be transformed into a debt, concluding:
*246 The claim of the three lienholders is not based on an obligation of the debtors which would be assertible in a bankruptcy case and thereby potentially affected by discharge. Their debts underlying the three claims pursuant to stipulations of the parties, are not debts owing by these debtors. Although the debtors' real estate may be clouded, they have no `liability' on the claims, hence no debt. Therefore inclusion in the calculation of `aggregate debt' is improper. Lands, p. 85.
There is a factual distinction between Lands and this case in that the debtor here was obligated to the creditor at the outset, whereas in Lands there was no personal debt at all; nevertheless, as matters now stand, this distinction is not pertinent since the debtor has no more personal obligation to the secured creditor than did the debtor in Lands. In both cases, at the relevant time in question, only the collateral was subject to the creditors' claims.
Debts of a family farmer, for Chapter 12 eligibility purposes, are to be determined as of the date the case is filed. In re Carpenter, 79 B.R. at 320; In re Labig, 74 B.R. 507, 509 (Bankr.S.D.Ohio 1987); In re Orr, 71 B.R. 639, 641 n. 4 (Bankr.E.D.N.C.1987). The date of filing is also determinative for fixing the value of Connecticut General's claim, 11 U.S.C. § 502(b) (1982 ed. Supp. IV), which in this case is the same as the value of the real property. 11 U.S.C. § 506(a) (1982). In this regard, Connecticut General's position is analogous to that of a creditor asserting a claim under a nonrecourse loan agreement. The amount of such a claim which exceeded the value of the security would be disallowed. In re Atlanta West VI, 91 B.R. 620, 623 (Bankr. N.D.Ga.1988).
By way of contrast, in a Chapter 11 proceeding, such a nonrecourse deficiency claim would be allowed due to the operation of § 1111(b), which deems that a claim secured by a lien on property of the estate shall be treated the same as if the holder of the claim had recourse against the debtor. 11 U.S.C. § 1111(b)(1)(A) (1982); In re Atlanta West VI, 91 B.R. at 623-24; In re Greenland Vistas, Inc., 33 B.R. 366, 367-69 (Bankr.E.D.Mich.1983); 5 Collier on Bankruptcy ¶ 1111.02 at 14 (L. King 15th ed. 1988). One of the important purposes of Chapter 12 was to eliminate the effects of § 1111(b) in farm bankruptcies so that farmers could scale their secured debts down to the value of their farms.[6] 132 Cong.Rec. S15092 (daily ed. Oct. 3, 1986) (statement of Sen. DeConcini); see id. at S15084 (discussion of difficulties faced by farmers under § 1111(b)). Despite the clear intent of Congress to provide exemption from section 1111(b) for farmers under Chapter 12, affirmance of dismissal here will engraft on Chapter 12 a stronger variant of section 1111(b) since it will endow the undersecured non-recourse with not simply a choice as to how to react to a debtor's Chapter 11 plan, but with power to deny the debtor any access to Chapter 12 and the opportunity to file a rehabilitative plan thereafter.
CONCLUSION
Having waived its right to a deficiency judgment, the relief available to the creditor-mortgagee should be limited to its true *247 status, that of secured creditor to the extent of the value of the mortgaged property. It would be an unfortunate paradox if that part of a claim which would not be allowable in a Chapter 12 proceeding could nevertheless preclude the debtor from filing thereunder. I therefore respectfully dissent.
NOTES
[1] All citations are to Title 11, U.S.C., unless otherwise noted.
[2] Although the statute does not explicitly state when the eligibility requirement concerning the debt-ceiling limitation is to be determined, it does state that the second element is to be determined "on the date the case is filed." That date is the logical date to be used for these purposes also. In re Carpenter, 79 B.R. 316, 320 (Bankr.S.D.Ohio 1987); In re Labig, 74 B.R. 507, 509 (Bankr.S.D.Ohio 1987); In re Orr, 71 B.R. 639, 641 n. 4 (Bankr.E.D.N.C.1987). Thus, the debtor must meet the eligibility requirements on the date the petition is filed.
[3] Although some authorities have characterized this language as imprecise, see In re Pearson, 773 F.2d 751, 755 (6th Cir.1985), we disagree with this characterization.
[4] In In re Sierra Steel, Inc., 96 B.R. 275 (9th Cir. BAP 1989), the Panel indicated that disputed or contingent liabilities must be included in determining total indebtedness for purposes of determining insolvency under section 547. The Panel also noted in Sierra Steel that contingent debts must be reduced to reflect their present or expected amount. Other courts have recognized the appropriateness of reducing disputed or contingent debts to reflect the possibility that liability will not be established or a contingency will not come to pass in determining the amount of debt for purposes of determining insolvency. See In re Kucharek, 79 B.R. 393 (Bankr.E.D.Wisc.1987). Because the debt in this case is undisputed, we need not determine whether it would be appropriate in analyzing Chapter 12 eligibility to so limit the amount of the debt on the basis of the probability that liability will not be established or that the nonoccurrence of a contingency will prevent a liability from coming to fruition.
[5] Apparently to avoid situations like this, In re Lambert, supra, suggests that the term "debt" may have different meanings for different sections of the code. However, Congress provided one definition for this term, which it made applicable to the entire title. Moreover, section 109(e) and other such sections indicate, Congress knew how to restrict the meaning of debt if it chose to do so to provide a different meaning for different sections.
[6] The debtors' schedules should be the starting point to a determination of the debtor's aggregate debts. A Chapter 12 petition was properly dismissed in Reiners v. Federal Land Bank of Jackson (In re Reiners), 846 F.2d 1012 (5th Cir. 1988), when it was "undisputed that the aggregate debt reflected on the face of the Reiners' petition was greater than $1.5 million." Id. at 1013. The Quintanas' schedules do not reflect aggregate debts greater than $1.5 million. However, the schedules are not dispositive. If the debtors' schedules were dispositive, then eligibility could be created by improper or incomplete scheduling of creditors. A bankruptcy court should "look past the schedules to other evidence submitted when a good faith objection to the debtor's eligibility has been brought by a party in interest." In re Williams Land Co., 91 B.R. 923, 927 (Bankr.D.Or.1988).
[7] For example, if the property is sold under section 363, Connecticut General could bid the full amount of its obligation at the sale. 11 U.S.C. § 363(k).
[8] Even if the debtors' argument were to be accepted, that the amount of aggregate debts should be reduced by the value of their counterclaim, the counterclaim must first satisfy a threshold test for merit. In re Carpenter, 79 B.R. 316, 319-20 (Bankr.S.D. Ohio 1987). The Quintanas' counterclaim does not pass such a threshold test. The bankruptcy court noted that the counterclaim "appears to be of questionable merit, particularly the claim for $1 million punitive damages." In re Quintana, No. 87-01240F, slip op. at 3 n. 3 (Bankr.D. Idaho Aug. 14, 1987) (Order of Dismissal). In addition, some evidence of the debtors' own opinion of the merits of their counterclaim is provided by noting that the debtors chose to omit their counterclaim when they scheduled, under penalty of perjury, the assets of their estate.
[9] It has been said that Chapter 12, as emergency legislation in response to the farm financing crisis, is a novel program that might be in need of refinement. 132 Cong.Rec. S15,075 (daily ed. Oct. 3, 1986) (remarks of Sen. Thurmond); id. at S15,092 (remarks of Sen. DeConcini). Such refinement may be needed to prevent the exclusion of these family farmers from bankruptcy relief under Chapter 12. However, that is a matter for Congress to consider and for not the courts. "[R]elief from current farm woes cannot come from a misconstruction of the applicable bankruptcy laws, but rather, only from action by Congress." Norwest Bank Worthington v. Ahlers (In re Ahlers), 485 U.S. 197, 209, 108 S. Ct. 963, 970, 99 L. Ed. 2d 169 (1988).
[10] Debtors support their argument that Chapter 12 should be liberally construed with citations to cases involving Section 75, the former farmer-relief section of the Bankruptcy Act of 1898. Agricultural Compositions and Extensions Act, 11 U.S.C. § 203 (enacted March 3, 1933, expired March 1, 1949). However, the Ninth Circuit has held that a court could not allow a case to continue under Section 75 with a debtor who did not meet the eligibility requirements. McLaughlin Land & Livestock Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 122 F.2d 193 (9th Cir.), cert. denied, 314 U.S. 700, 62 S. Ct. 483, 86 L. Ed. 560 (1941). Although Section 75 may have been otherwise liberally construed, courts were constrained then as they are now, in that they cannot create eligibility where none has been granted by Congress.
[11] See also In re Williams Land Co., 91 B.R. 923, 927-28 (Bankr.D.Or.1988); In re Carpenter, 79 B.R. 316, 321 (Bankr.S.D. Ohio 1987); In re Baldwin Farms, 78 B.R. 143, 144 (Bankr.N.D. Ohio 1987); In re Henderson Ranches, 75 B.R. 225, 226 (Bankr.D.Idaho 1987); In re Johnson, 73 B.R. 107, 109 (Bankr.S.D. Ohio 1987); In re Stedman, 72 B.R. 49, 54 (Bankr.D.N.D.1987).
[1] Section 6-101 provides for judicial foreclosure proceedings as follows:
There can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate which action must be in accordance with the provisions of this chapter. In such action the court may, by its judgment, direct a sale of the encumbered property (or so much thereof as may be necessary) and the application of the proceeds of the sale to the payment of the costs of the court and the expenses of the sale, and the amount due to the plaintiff; and sales of real estate under judgments of foreclosure of mortgages and liens are subject to redemption as in the case of sales under execution; (and if it appears from the sheriff's return that the proceeds are insufficient, and a balance still remains due, judgment can then be docketed for such balance against the defendant or defendants personally liable for the debt), and it becomes a lien on the real estate of such judgment debtor, as in other cases on which execution may be issued.
Idaho Code § 6-101 (1979) (emphasis added).
[2] Statute governing deficiency judgments provides:
No court in the state of Idaho shall have jurisdiction to enter a deficiency judgment . . . in any amount greater than the difference between the mortgage indebtedness, as determined by the decree, plus costs of foreclosure and sale, and the reasonable value of the mortgaged property, to be determined by the court in the decree upon the taking of evidence of such value.
Idaho Code § 6-108 (1979).
[3] Several cases have held that the eligibility provisions of Chapter 12 are to be strictly construed. Such cases, however, invoked this principle only after determining the true debt amount to be in excess of $1,500,000. In re Labig, 74 B.R. 507, 108-09 (Bankr.S.D. Ohio 1987) (husband and wife filed separate petitions, each listing one-half of their joint debts); In re Stedman, 72 B.R. 49, 54 (Bankr.D.N.D. 1957) (discrepancies between debtors' schedules and creditors' claims to be resolved most favorably to permit eligibility.)
[4] A claim is defined as a
(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or
(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured;
11 U.S.C. § 101(4) (1982). The legislative history merely states that "[t]he terms are coextensive: a creditor has a `claim' against the debtor, the debtor owes a `debt' to the creditor." S.Rep. No. 989, 95th Cong., 2d Sess. 23 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5809; H.R.Rep. No. 595, 95th Cong., 2d Sess. 310 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6267. The Sixth Circuit in Comprehensive Accounting Corp. v. Pearson (In re Pearson), 773 F.2d 751, 755 (6th Cir.1985) characterized this language as "imprecise."
[5] There are two Ninth Circuit Bankruptcy Appellate Panel opinions addressing issues related to eligibility determinations under Chapter 13 which may be discussed and distinguished. In re Wenberg, 94 B.R. 631, 633-35 (9th Cir. BAP 1988), involved whether an attorneys' fee award in an adversary proceeding was a liquidated debt and thus affected the debtors' eligibility under the Chapter 13 debt ceiling, 11 U.S.C. § 109(e) (1982). The court held that the fees were liquidated and debtors thus ineligible. The fee reasonableness issue, however, is more in the nature of a dispute over the liquidated character and amount of the debt, rather than over its existence, and so is fundamentally different than the waived deficiency against the Quintanas.
The second Bankruptcy Appellate Panel case, In re Sylvester, 19 B.R. 671, 673 (9th Cir. BAP 1982), also concerned eligibility for Chapter 13 and whether a disputed debt was liquidated. Debtors argued that their counterclaim rendered the debt unliquidated until after trial. The court disagreed. Again, a dispute over a set-off is a dispute over the amount of a debt, rather than its existence.
[6] This aspect of Chapter 12 has been attended by some controversy and apprehension as noted by the following:
. . . it is clear that Chapter 12 has rekindled the ability of a debtor with a substantially undercollateralized mortgage debt to write down the debt to the current depressed value of his land. The debtor, under chapter 12, is allowed to keep his land, pay the former secured debtor only "liquidation value" on the newly created unsecured debt, and receive a bankruptcy discharge on the rest of the debt, while the creditor is precluded from sharing in any future reappreciation of the land. As Senator DeConcini duly noted:
"Why won't every farmer with a substantially undercollateralized loan against his farm declare bankruptcy. . . . I fear that we have created a legal atmosphere that may well encourage farm bankruptcies and that farmers who can now manage to work things out with their creditors in some satisfactory manner to both will no longer have that incentive to reach mutual agreement."
Note, An Analysis of the Family Farmer Bankruptcy Act of 1986, (quoting 132 Cong.Rec. § 15092 (daily ed. Oct. 3, 1986) 15 Hofstra L.Rev. 353, 376 (1987)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920396/ | 133 N.J. Super. 418 (1975)
337 A.2d 54
ELIZABETH B. SHIELDS, PLAINTIFF-APPELLANT,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MANSFIELD; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MANSFIELD, COUNTY OF WARREN; PENWELL RACQUET CLUB, INC., A NEW JERSEY CORPORATION; EDWARD FABER AND RAYMOND MALEJKO, INDIVIDUALLY AND TRADING AS PENWELL RACQUET CLUB, DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued March 18, 1975.
Decided April 14, 1975.
*419 Before Judges CARTON, CRANE and KOLE.
Mr. Francis P. Sutton argued the cause for appellant.
Mr. William R. Edleston argued the cause for respondent Board of Adjustment of Mansfield Township (Mr. Harry K. Seybolt, attorney).
Mr. Joseph R. Valentino argued the cause for respondent Mansfield Township Committee.
Mr. Thomas E. Stover argued the cause for respondents Edward Faber and Raymond Malejko, individually and trading as Penwell Racquet Club.
*420 PER CURIAM.
The only issue which need concern us on this appeal is whether the board of adjustment and township committee properly held that the recreational use of the premises here in question constituted a special reason for the grant of a variance under N.J.S.A. 40:55-39(d). The trial judge held that it did and affirmed the municipal action. We hold to the contrary and hence reverse. We so hold, mindful of the somewhat limited scope of review by a trial court and appellate court of this kind of municipal determination. See, e.g., Shell Oil Co. v. Shrewsbury Zoning Bd. of Adj., dissenting opinion, 127 N.J. Super. 62, 63-64 (App. Div. 1974), rev'd on dissenting opinion, 64 N.J. 334 (1974).[1]
Defendant Penwell Racquet Club, Inc.[2] was granted a use variance under N.J.S.A. 40:55-39(d) by the Mansfield Township Committee, after favorable recommendation of the board of adjustment. The land involved is a site of ten acres, which was part of a larger tract owned by one of the applicant's principals. Only a small portion of it is in the B-2 highway commercial zone. Most of the land is in the R-1 residential zone, in which indoor tennis courts are not permitted. Outdoor tennis courts, however, are a permitted use in the R-1 zone by special exception, on application to the board of adjustment. Although zoned residential, the area in which the site is situated is generally undeveloped, except for agricultural use.
The proposed use involves the construction on the ten-acre parcel of a two-story building to be used as an indoor tennis facility with six tennis courts, locker rooms, sauna baths, a babysitting room, a conference room for companies desiring to use the facility in connection with a recreation program, *421 a television area, rest rooms, a vending area consisting of vending machines, a pro shop where equipment may be purchased, and custodial and utility space. The building apparently would also house two or three squash and handball courts. There would be seven outdoor tennis courts. The entire facility would be privately owned and operated as a business. A membership fee would be charged and participants would pay for court time at varying rates. Five full-time employees would include a pro, a manager and maintenance personnel.
We find no reasonable basis in the proofs or in the subsidiary findings made by the municipal agencies to sustain the ultimate conclusion, which they appear to have made, that the recreational use sought is peculiarly suited to this land.
Assuming for present purposes that the findings which follow are supported by the evidence, that ultimate conclusion may not be predicated on any or all of them: (1) that the property is located in two zones, thereby requiring a variance for any use not permitted in both zones; (2) that outdoor tennis courts constitute a permitted special exception use in the R-1 zone, and the special exceptions provisions relating to outdoor recreational facilities contemplate buildings such as that here proposed; (3) that the location of the property is unique in that it has frontage on two roads, Route 57 and Penwell Road, and thus the property would not be "conducive" for development for residential purposes; (4) that the property is unique in that it is the only parcel on the south side of Route 57 zoned R-1 for a distance of about 2,400 feet located between two commercial zones; (5) that the proposed use would be compatible with the development of the area, since it is adjacent to and part of the commercial zone and across the street from the township school; (6) that lands to the east of the proposed site along the highway cannot be readily developed and are owned by the State; (7) that the nearest tennis facility is 19 to 20 miles away and the proposed use would be the only indoor recreational *422 facility in the township; (8) that apart from the residence of one of the principals there are "little or no existing residences in the area"; (9) that the site is centrally located to residents of the township and to the principal population centers of Hackettstown and Washington, and could be used conveniently by the township board of education in connection with the school; (10) that most of the remaining land in the township is rural and not readily accessible to all of the residents of the township and the surrounding areas; (11) that there may be a "flood potential" of residential homes constructed adjacent to the Musconetcong River at or near the proposed site, and (12) that there is no other property in the township zoned to permit both outdoor and indoor tennis courts or other similar recreational use.
None of these reasons indicates that the proposed recreational use is peculiarly fitted to this property. Moreover, the entire area surrounding the applicant's property is basically undeveloped, and the record fails to support the findings, among others, that the surrounding areas are not available for commercial development, including the recreational use sought; that they are not readily accessible to all residents; that the property here involved is subject to a flood potential or otherwise not suitable for residential development, and that an appropriate area for this use could not be found elsewhere in the township. See Kohl v. Fair Lawn Mayor and Council, 50 N.J. 268 (1967); Mahler v. Fair Lawn, 94 N.J. Super. 173 (App. Div. 1967), aff'd o.b. 55 N.J. 1 (1969).
The conclusion by the municipal agencies that the proposed recreational use is peculiarly fitted to this site is thus without reasonable foundation. Accordingly, the determination of the court below holding to the contrary is incorrect.
Hence, the variance may only be predicated on a finding sustained by the proofs that the proposed use inherently serves the public good or welfare. Kohl v. Fair Lawn Mayor and Council, supra; De Simone v. Greater Englewood Housing Corp. No. 1, 56 N.J. 428 (1970); Bonsall v. Mendham *423 Tp., 116 N.J. Super. 337 (App. Div. 1971), certif. den. 59 N.J. 529 (1971).
The board of adjustment and township committee in effect so found. They referred to the need in the area for recreational facilities, particularly of an indoor nature, and the benefit ensuing from a recreational facility of this type to the "public health and welfare of the citizens and taxpayers" of the township. The trial court agreed. We conclude that in so doing, it erred.
Recreation and sports have been recognized judicially as valid public purposes appropriate for the government to undertake under the state constitutional provisions relating to the raising and use of public moneys only for public purposes. In this context it has been considered as "intimately related to the general welfare of a well-balanced state" and as "absolutely essential to the public welfare." N.J. Sports and Exposition Auth. v. McCrane, 119 N.J. Super. 457, 488-493 (Law Div. 1971), aff'd, with modification, on other gds., 61 N.J. 1 (1972).
But this concept of the public good may not be imported into the zoning area for use variance purposes. To recognize a commercially operated recreational facility of the kind here contemplated as a use inherently serving the public good or welfare so as to constitute a special reason for a variance under N.J.S.A. 40:55-39(d) would serve effectively to nullify the purpose of that provision and the decisions interpreting it. The beneficial effect of recreation, both indoor and outdoor, is also applicable to other recreational uses, such as bowling alleys, billiard parlors, health spas and the like. If the proposed use inherently serves the public good and welfare, then these uses, as well as other recreational uses in a commercial setting, must be granted variances in a residential zone under N.J.S.A. 40:55-39(d).[3] Such a construction of the statute is totally unwarranted. See Mahler *424 v. Fair Lawn, supra; Kohl v. Fair Lawn Mayor and Council, supra; Whitehead v. Kearny Zoning Bd. of Adj., 51 N.J. Super. 560 (App. Div. 1958), involving an attempt to obtain a use variance in a residential zone for a swimming pool at a nonprofit private club; Tullo v. Millburn Tp., 54 N.J. Super. 483, 499-500 (App. Div. 1959); Kramer v. Sea Girt Bd. of Adj., 45 N.J. 268, 292 (1965). See and compare Cooper v. The Maplewood Club, 43 N.J. 495 (1964), which, however, related to whether the negative criteria were satisfied by the proposed construction of a swimming pool at a private club in a district which did not preclude it.
Biglin v. West Orange, 46 N.J. 367 (1966), and Lander v. Village of South Orange, 58 N.J. 509 (1971), involving municipal swimming pools, are not to the contrary. Both were concerned with lands dedicated for park, playground or recreational purposes, and whether the dedication permitted the installation of a municipal swimming pool thereon. Neither related to a use variance proceeding. Indeed, in Biglin a playground was a permitted special exception use within the residential zone involved, and the court indicated that the zoning ordinance would not be violated by constructing the municipal pool as part of the dedicated playground facilities.
The statement by this court in Newark v. Daly, 85 N.J. Super. 555 (App. Div. 1964), aff'd 46 N.J. 48 (1965), that "to refer to a particular use in a residential district as a `business use' is not per se sufficient to stamp it as a violation of the zoning ordinance," must be limited to the situation there involved a determination as to whether a zoning ordinance permitting apartment houses in a residential district would allow milk vending machines in an apartment house. A variance was not there in issue.
The present case involves a use variance which would permit a commercial indoor-outdoor recreational facility in a residential district precluding the indoor use. To say that such recreational use inherently serves the public good and, therefore, constitutes a special reason warranting a variance is to *425 permit, in effect, the "untoward and clearly unintended consequence that variances could be awarded indiscriminately merely because they did not offend the negative criteria of the statute." Mahler v. Borough of Fair Lawn, supra, 94 N.J. Super. at 184. See, generally, Annotation, "Application of zoning regulations to golf courses, swimming pools, tennis courts, or the like," 32 A.L.R.3d 424 (1970).
Defendants claim that if this recreation use were a public or quasi-public enterprise, it would have to be permitted in a residential zone and that, accordingly, a similar private commercial recreation use must be allowed. They rely on cases which hold that it is the nature of physical use of the property, rather than the kind of ownership, which determines the applicability of zoning requirements. See Bridge Park Co. v. Highland Park, 113 N.J. Super. 219 (App. Div. 1971); Taxpayers Ass'n of Weymouth Tp. v. Weymouth Tp., 125 N.J. Super. 376 (App. Div. 1973).
This argument misconceives the issue before us. It is not the nature of the ownership but rather the nature of the use with which we are concerned with respect to this use variance. We need not decide whether the municipality itself may construct and operate a facility such as is here contemplated in the R-1 residential zone. See Thornton v. Ridgewood, 17 N.J. 499 (1955); Washington Tp. v. Ridgewood, 26 N.J. 578 (1958); In re Application of Hackensack Water Co., 41 N.J. Super. 408, 421 (App. Div. 1956); Scotch Plains Tp. v. Westfield, 83 N.J. Super. 323 (Law Div. 1964). Compare Biglin v. West Orange, supra; Hill v. Collingswood, 9 N.J. 369 (1952). But assuming that it may do so, the fact that the recreational use is sponsored by the public agency in and of itself may give the use the quality required for inherently serving the public good. Cf. De Simone v. Greater Englewood Housing Corp. No. 1, supra, 56 N.J. at 442. A similar use and operation in a residential zone by a commercial enterprise cannot be said to have that effect.
Of course, there is nothing in what we have said which would prevent the municipality, in accordance with *426 the Zoning Act, from rezoning the area of which this property is a part in such a way as to permit this kind of use either with or without the necessity for obtaining a special exception. See Hyland v. Morris Tp. Mayor and Tp. Comm., 130 N.J. Super. 470 (App. Div. 1974), aff'd o.b. 66 N.J. 31 (1974); Kozesnik v. Montgomery Tp., 24 N.J. 154 (1957); Southern Burlington Cty. NAACP v. Mount Laurel Tp., 67 N.J. 151, 181, n. 12 (1975); De Simone v. Greater Englewood Housing Corp. No. 1, supra, 56 N.J. at 443. Indeed, many of the reasons the municipality advanced for granting the variance, if properly supported, might serve as a justification for such rezoning.
Reversed.
NOTES
[1] We need not decide, therefore, the question of whether the negative criteria under the statute have been met.
[2] It is unclear whether the actual applicant was the corporation or individuals trading as Penwell Racquet Club.
[3] Assuming, of course, that the statutory negative criteria are met. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920402/ | 461 Pa. 566 (1975)
337 A.2d 549
COMMONWEALTH of Pennsylvania
v.
Willie LONDON, Appellant.
Supreme Court of Pennsylvania.
Argued January 16, 1975.
Decided May 13, 1975.
*567 *568 *569 George T. Guarnieri, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Suzanne Balen Ercole, Asst. Dist. Atty., Abraham J. Gafni, Deputy *570 Dist. Atty., for Law, Deborah Glass, Philadephia, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
JONES, Chief Justice.
On February 19, 1971, the appellant, Willie London, was convicted in a nonjury trial of voluntary manslaughter, carrying a concealed deadly weapon and violation of the Uniform Firearms Act. Shortly thereafter post-trial motions were heard and denied. Appellant was sentenced to a term of imprisonment from one to ten years on the homicide charge and sentence was suspended on the weapons charges.[1] In this direct appeal,[2] appellant advances three grounds for reversal. We find appellant's arguments cannot be sustained, and therefore affirm.
Appellant's first assignment of error is that the evidence presented at trial was insufficient to support *571 a conviction of voluntary manslaughter. In reviewing the evidence in homicide cases, it is well-settled that the test of sufficiency is "whether, accepting as true all of the evidence, be it direct or circumstantial, and all reasonable inferences arising therefrom upon which, if believed, the trier of fact could properly have based the verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted." Commonwealth v. Malone, 444 Pa. 397, 398, 281 A.2d 866, 867 (1971). See also Commonwealth v. Johnson, 458 Pa. 23, 326 A.2d 315 (1974); Commonwealth v. Pride, 450 Pa. 557, 301 A.2d 582 (1973); Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). It is also axiomatic that the evidence must be viewed in the light most favorable to the verdict winner. Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973); Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971). Reviewing the evidence presented at trial in light of the aforementioned principles, we are satisfied that there was sufficient evidence to sustain London's conviction of voluntary manslaughter.[3]
The instant shooting occurred in the mid-evening of August 20, 1970, at the corner of 5th and Berk Streets during an altercation between two rival gangs. The Commonwealth, relying on the testimony of several eyewitnesses, police officers and the recorded statement of the victim, was able to show that during the course of a fist-fight between appellant, a member of the "Montgomery Street" gang, and Frank Thomas, a former member of the "Oxford Street" gang, the appellant pushed the deceased away, "backed off" a number of feet (anywhere *572 from five to ten) and reached into his waist for a gun. At that point, the Commonwealth alleges the appellant, with an outstretched hand, fired two or three times into a crowd of rival gang members. One of these shots mortally wounded Thomas. Although there was some question as to whether appellant had at some point earlier fallen to the ground and fired his weapon while attempting to get up, there was no evidence that appellant was knocked down by the deceased or that the deceased was in any way the aggressor. Further, there was a postmortem report and sufficient eyewitness testimony supporting the Commonwealth's contention that appellant was standing facing the unarmed victim when he fired the fatal bullet.
Appellant admits that the testimony of one eyewitness, if believed, would support the finding of intentional killing. Nevertheless, appellant argues that, since the inference of self-defense or accidental shooting could also reasonably be drawn from the evidence, the Commonwealth failed to meet its burden.
It is doubtful that any reasonable interpretation of the Commonwealth witnesses' testimony lends support to a finding of self-defense. However, even if appellant's own characterization of the events[4] could have established the necessary elements of self-defense, it was for the trier of fact to accept or reject appellant's version of the facts. Commonwealth v. Zapata, 447 Pa. 322, 326, 290 A.2d 114, 117 (1972). It has long been the law that, notwithstanding discrepancies in the evidence or any dissimilarity between a defendant's testimony and that of other witnesses, the trier of fact may believe all, part or none of the testimony of any witness for the *573 Commonwealth or the defense. Commonwealth v. Ewing, 439 Pa. 88, 93, 264 A.2d 661, 663 (1970); Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970); Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338 (1963). Since it is the trier of fact's responsibility to reconcile any differences by determining who is worthy of belief, the reasonable doubt which will prevent conviction must be the fact finder's doubt and not that of an appellate court. United States v. Stirone, 311 F.2d 277, 284 (3d Cir. 1962). With this in mind, since it is clear that a finding of voluntary manslaughter could reasonably be adduced from the Commonwealth's evidence, appellant's first argument must fail.
The second assignment of error to be considered is whether the trial judge committed reversible error with reference to his rulings relating to the testimony of the Commonwealth witness, John Samuel Foster. Appellant claims that the trial judge erred in permitting the Commonwealth to plead surprise and cross-examine Foster, when Foster's testimony was not harmful to the Commonwealth's case. Further, the appellant contends that, even were cross-examination permissible to discredit Foster's initial testimony, the questioning went beyond mere discreditation and was a device to admit substantive evidence.[5]
When the Commonwealth called Foster to the witness stand, it was to corroborate the testimony of the other eyewitnesses to the shooting by detailing appellant's role in the incident. Foster had previously given a full *574 signed statement to the police in which he related in detail the occurrence similar to other Commonwealth witnesses. At trial, however, Foster testified that he had not seen appellant at the 5th and Berk Street incident and that, although he had seen Thomas being shot, he had not seen appellant fire a gun. Further, Foster testified that had appellant, a friend of four years, been present at that time, he would have seen him.
It is well-settled that when one's witness turns hostile by telling a different version on the witness stand than he told the calling party prior thereto, the latter may plead surprise and request leave to cross-examine the witness and impeach him by his prior inconsistent statement. See e.g., Commonwealth v. Thomas, 459 Pa. 371, 329 A.2d 277 (1974); Commonwealth v. Bynum, 454 Pa. 9, 309 A.2d 545 (1973); Commonwealth v. Dancer, 452 Pa. 221, 305 A.2d 364 (1973); Commonwealth v. Knudsen, 443 Pa. 412, 278 A.2d 881 (1971); Commonwealth v. Turner, 389 Pa. 239, 133 A.2d 187 (1957). Further, the fundamental rule in this jurisdiction is that it is within the sound discretion of the trial court to decide whether counsel may exercise the right to cross-examine the hostile witness. Commonwealth v. Thomas, supra; Commonwealth v. Dancer, supra. Recently, we have reiterated four guidelines for the trial court to follow in determining whether cross-examination is warranted. Commonwealth v. Thomas, supra. There is no question that the first and second criteria were met here, i.e., that the witness's testimony was unexpected and that the testimony was contradictory to statements made earlier. Nevertheless, there is some question whether the third and fourth criteria were met, i.e., whether the testimony was injurious to the party calling the witness and beneficial to the opposing side and whether cross-examination was limited to dispute only the unexpected adverse statements.
*575 When discussing what is deemed injurious, the courts in this jurisdiction have continued to maintain that they will be liberal in allowing a party to cross-examine his own witness when "it is believed that the interest of truth and justice so require [citations omitted].. . . On the other hand, our courts have been loathe to allow cross-examination for purposes of impeachment by use of prior statements when a witness states that he does not know or that he cannot remember. This is so for the reason that such an in-court declaration does not harm the calling party nor aid the opposing party. [Citations omitted.] Hence, when a witness claims he does not know or cannot remember, the prior statements should not be introduced because of the danger that the prior statements will be considered as substantive evidence by the jury." Commonwealth v. Knudsen, 443 Pa. at 414-15, 278 A.2d at 882-83.
Appellant claims that, since the Commonwealth called other witnesses whose testimony established that he was at the scene of the shooting, the fact that Foster said he did not see appellant was as if he merely disclaimed any knowledge of appellant's participation in the crime. Consequently, appellant would have us believe Foster's testimony was as neutral as had he said "I do not remember." We disagree. As was stated earlier, the trier of fact may choose to believe any part of any Commonwealth witness's statement. Since Foster's testimony reflects an unequivocal denial of seeing appellant and cast doubt on appellant having any role in the instant homicide, if the trial judge chose to believe Foster's testimony, appellant would indeed have benefitted. Consequently, it was not error to allow the Commonwealth to "stamp him unworthy of belief."
A review of the record reveals that the trial judge allowed cross-examination for the purpose of impeachment only specifically stating he would not consider *576 the former statement of Foster as substantive evidence. Yet we are disturbed by the fact that much of the witness's prior statement to police did not contradict the unexpected adverse statements made at trial. To the extent that the trial court allowed in testimony regarding the events prior to the 5th and Berk Street confrontation i.e., information not concerning appellants presence or role in the shooting death), the court was in error. Nevertheless, since the questions concerning prior events did not in any way incriminate the appellant or in any other way advance the Commonwealth's case, the error of admitting excessive testimony was harmless. See Commonwealth v. Knudsen, 443 Pa. at 415, 278 A.2d at 883; Commonwealth v. Linkowski, 363 Pa. 420, 424, 70 A.2d 278, 280 (1950). See also Commonwealth v. Thomas, 459 Pa. at 383-384, 329 A.2d at 283; Commonwealth v. Dancer, 452 Pa. at 227, 305 A.2d at 364.
Appellant's third and last assignment of error was that the evidence presented at trial was not sufficient to find the intent to unlawfully and maliciously injure another as required to convict one of carrying a concealed deadly weapon. This argument is meritless. The Commonwealth not only presented eyewitness evidence establishing that appellant both concealed and fired a .22 caliber pistol, through appellant's own testimony the Commonwealth established that on the afternoon of the day of the shooting, appellant purchased a pistol for what he claimed was "no reason." Appellant further admitted that he withdrew this pistol from his pocket while running from the rival gang.
Once the Commonwealth introduced evidence that appellant carried a deadly weapon concealed upon his person, the fact finder could conclude beyond a reasonable doubt that appellant possessed the intent to unlawfully and maliciously do injury to another person from the Commonwealth's evidence that appellant had, in *577 fact, intentionally used this weapon upon a vital part of Thomas' body. Act June 24, 1939, P.L. 872, § 416, as amended; 18 P.S. § 4416; Commonwealth v. Townsend, 211 Pa.Super. 135, 235 A.2d 461 (1967); Commonwealth v. Festa, 156 Pa.Super. 329, 40 A.2d 112 (1945). See also Commonwealth v. Cannon, 453 Pa. 389, 309 A.2d 384 (1973); Commonwealth v. Minoff, 363 Pa. 287, 69 A.2d 145 (1950).
The judgment of sentence is affirmed.
MANDERINO, J., concurs in the result.
NOTES
[1] Appellant's convictions of voluntary manslaughter and carrying a concealed deadly weapon have been appealed directly to this Court, although only the appeal on the homicide judgment is properly so taken. Act of July 31, 1970, P.L. 673, No. 223, Art. II, § 202(1), 17 P.S. § 211.202(1). However, since the Commonwealth has interposed no objection to the manner of appeal of the weapons conviction, and since both offenses arose from the same incident and factual background, this Court's power and competency to act is beyond question. Act of July 31, 1970, P.L. 673, No. 223, Art. V, § 503, 17 P.S. § 211.503.
[2] Although direct appeal was not timely, on July 13, 1972, London petitioned this Court for leave to file an appeal as if timely from the judgment of sentence. By order of July 29, 1972, this Court remanded the matter to the court below to determine whether appellant's right to appeal had been violated and whether appellant was effectively represented by counsel. After an evidentiary hearing held on these issues, the court, on November 2, 1972, denied appellant's claim of ineffective assistance of counsel, but granted appellant the right to file an appeal as if timely filed.
[3] Although it is arguable that the Commonwealth was able to show more, i.e., the necessary element of malice for murder in the second degree, the finding of voluntary manslaughter was within the trial court's prerogative. Commonwealth v. Hoffman, 439 Pa. 348, 356-57, 266 A.2d 726, 731 (1970). See also Commonwealth v. Butcher, 451 Pa. 359, 304 A.2d 150 (1973); Commonwealth v. Hill, 444 Pa. 323, 281 A.2d 859 (1971).
[4] Appellant's description of the shooting was that, although he drew his gun and had his finger on the trigger each successive time it fired, he only fired when the deceased attempted to wrestle it from his hand. Appellant also alleged that prior to the shooting Thomas was kneeling over him wielding a knife as appellant lay helplessly on the ground.
[5] Appellant also claims that, since the witness repudiated his prior inconsistent statement when cross-examined (claiming he was tired at the time of its making and consequently did not read it "too good"), the statement should not have been introduced into evidence. However, since Foster admitted his making, and identified his signature on, his statement to police, a proper foundation was laid and the prior inconsistent statement was admissible for credibility purposes. (See Commonwealth v. Rothman, 168 Pa.Super. 163, 166, 77 A.2d 731, 733 (1951); 2 Henry, Pennsylvania Evidence § 803 at p. 259 nn. 27 & 28 (1953); McCormick, Handbook of the Law of Evidence § 37 (2d ed. E. Cleary 1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920410/ | 461 Pa. 482 (1975)
337 A.2d 256
Sara WIEGAND, Appellant,
v.
Myron Paul WIEGAND.
Supreme Court of Pennsylvania.
Argued May 23, 1974.
Decided May 13, 1975.
*483 John W. Campbell, Jr., Pittsburgh, for appellant.
Lawrence N. Paper, Berger & Kapetan, Pittsburgh, Kathleen Herzog Larkin, Deputy Atty. Gen., Lawrence Silver, Deputy Atty. Gen., Chief, Litigation Div., Israel Packel, Atty. Gen., Dept. of Justice, Harrisburg, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
ROBERTS, Justice.
This is an appeal from an order of the Superior Court declaring sections 11 and 46 of the Divorce Law[1] unconstitutional as contrary to the Equal Rights Amendment of the Pennsylvania Constitution, P.S.[2] Because the constitutionality *484 of these provisions was never questioned by the parties either in the trial court or in their briefs in the Superior Court, we conclude that this issue was not properly before that court. We therefore reverse and remand to the Superior Court for consideration of the issues properly presented by the parties.
On July 12, 1967, appellant Sara Wiegand filed in the court of common pleas an action for divorce from bed and board against appellee Myron Wiegand. Mrs. Wiegand also petitioned the court for alimony and preliminary counsel fees pendente lite. Pursuant to section 46 of the Divorce Law, the court granted the petition and ordered Mr. Wiegand to pay $875 per month alimony and $250 preliminary counsel fees. Subsequently, Mrs. Wiegand petitioned the court for additional fees and reimbursement of costs incurred in prosecuting the divorce. After several hearings, the court granted the petition and on March 10, 1972, awarded $5,000 additional preliminary counsel fees and $82.20 expenses.
Mr. Wiegand appealed the order of March 10 to the Superior Court asserting that 1) the trial court had erred by refusing to permit him to cross-examine Mrs. Wiegand during the hearings about the disposition of her own estate and 2) the award of $5,000 attorney's fees was an abuse of the trial court's discretion. Despite submission to the Superior Court of only these two issues, that court felt "compelled to consider whether, in light of the adoption of the Equality of Rights Amendment to the Pennsylvania Constitution, §§ 11 and 46 of The Divorce Law, . . . providing respectively that wives, but not husbands may obtain divorces from bed and board and be allowed reasonable alimony pendente lite, counsel fees, and costs in a divorce action, still pass constitutional muster." 226 Pa.Super. 278, 280, 310 A.2d 426, 427 (1973).
The Superior Court concluded that the statutory provisions impermissibly discriminated on the basis of sex and *485 were therefore void as repugnant to the Constitution. It therefore decided that awards of counsel fees and expenses pursuant to those provisions were invalid and reversed the order of the court of common pleas. Three judges of that court dissented and would have remanded the case to the trial court so that Mrs. Wiegand could be cross-examined about the disposition of her own estate. We allowed this appeal.[3]
The Superior Court by sua sponte deciding the constitutional issue exceeded its proper appellate function of deciding controversies presented to it. The court thereby unnecessarily disturbed the processes of orderly judicial decisionmaking. Sua sponte consideration of issues deprives counsel of the opportunity to brief and argue the issues and the court of the benefit of counsel's advocacy. In sua sponte disposition of attacks upon the constitutionality of statutes, the attorney general is denied the opportunity of appearing and responding to the constitutional challenge. See Pa.R.Civ.P. 235(a). Furthermore, sua sponte determinations raise many of the considerations that led this Court to require without exception that issues presented on appeal be properly preserved for appellate review by timely objection in the trial court. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); cf. Commonwealth v. Clair, ___ Pa. ___, 326 A.2d 272 (1974).
It must therefore be concluded that the Superior Court should not have considered an unpresented issue, but instead resolved the appeal on the basis of the issues raised by the parties.
The order of the Superior Court is reversed and the cause remanded to the Superior Court for consideration of the issues raised at trial and properly preserved for appellate review.
NOTES
[1] Act of May 2, 1929, P.L. 1237, §§ 11 & 46, as amended, 23 P.S. §§ 11 & 46 (1955 & Supp. 1974). Section 11 provides:
"Upon complaint, and due proof thereof, it shall be lawful for a wife to obtain a divorce from bed and board, whenever it shall be judged, in the manner hereinafter provided in cases of divorce, that her husband has:
(a) Maliciously abandoned his family; or
(b) Maliciously turned her out of doors; or
(c) By cruel and barbarous treatment endangered her life; or
(d) Offered such indignities to her person as to render her condition intolerable and life burdensome; or
(e) Committed adultery."
When the Superior Court reached its decision, § 46 provided:
"In case of divorce from the bonds of matrimony or bed and board, the court may, upon petition, in proper cases, allow a wife reasonable alimony pendente lite and reasonable counsel fees and expenses. If at any time, either before or after a final decree has been entered divorcing the parties, the husband is in arrears in the payment of the alimony pendente lite, counsel fees and expenses so allowed, the wife or ex-wife, as the case may be, may, by affidavit of default, upon praecipe to the prothonotary, obtain a judgment for such arrearages: Provided, That no such judgment shall be entered more than one year after a final decree is issued."
This section was subsequently amended. Act of June 27, 1974, P.L. ___, No. 139 (Pa.Legis.Serv. 423 (1974)).
[2] Pa.Const. art. I, § 28.
[3] Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 204(a), 17 P.S. § 211.204(a) (Supp. 1974). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920415/ | 133 N.J. Super. 492 (1975)
337 A.2d 405
ALBERTO CIRELLI, PLAINTIFF,
v.
THE OHIO CASUALTY INSURANCE CO., AND RICHARD C. McDONOUGH, NEW JERSEY COMMISSIONER OF INSURANCE, DEFENDANTS.
Superior Court of New Jersey, Law Division.
Decided April 7, 1975.
*494 Mr. Charles F. Krause, III, for plaintiff (Messrs. Riemenschneider, Krause & Vion, attorneys).
Mr. Elliott Abrutyn for defendant Ohio Casualty Insurance Co., (Messrs. Morgan, Melhuish, Monaghan, McCoid & Spielvogel, attorneys).
Ms. Maureen McGrath for defendant Richard C. McDonough, New Jersey Commissioner of Insurance (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
*495 LARNER, A.J.S.C.
Alberto Cirelli instituted this action seeking a declaratory judgment relating to the nature and extent of the liability of defendant Ohio Casualty Insurance Co. (hereinafter Ohio) under an insurance policy covering the automobile owned by him. The issues were submitted to the court on a stipulation which incorporates the following operative facts.
Alberto Cirelli, the assured under the policy, sustained severe personal injuries while he was a passenger in the insured vehicle operated by his son. He subsequently died as a result of the injuries, and the executrix of his estate was substituted as plaintiff. The accident took place on March 1, 1974 in Clarkestown, New York, as a result of a collision with a vehicle owned by Mary Natelli and operated by Thomas Natelli.
The policy of insurance provided for liability coverage with limits of $15,000/$30,000 and also contained the "Basic Personal Injury Protection Endorsement" (hereinafter P.I.P.) required under the New Jersey Automobile Reparation Reform Act (N.J.S.A. 39:6A-1 et seq., hereinafter referred to as the No Fault Law).
Decedent and his son were residents of New Jersey, the insured vehicle was registered in New Jersey, and the policy was written in New Jersey. The accident took place in New York with a New York vehicle owned and operated by New York residents.
The New York vehicle of Natelli is insured by Boston Old Colony Insurance Company (hereinafter Boston) under a policy which also contains a personal injury protection endorsement required by the State of New York.
Plaintiff intends to institute an action against Natelli for decedent's pain and suffering during his lifetime and for wrongful death.
The initial issue is whether plaintiff is entitled to recover all medical expenses (approximating $120,000) incurred by decedent under the P.I.P. endorsement of the Ohio policy, *496 or whether the recovery is limited to $50,000 which is the P.I.P. limitation under New York law and the endorsement provision of the Boston policy covering the Natelli vehicle.
The additional issue raised by plaintiff seeks a declaration as to the validity and extent of enforceability of a provision in the P.I.P. endorsement which impresses a lien upon any recovery from a tortfeasor to the extent of moneys paid to the assured.
I
The Ohio policy, in accord with the New Jersey No Fault Law (N.J.S.A. 39:6A-4) affords unlimited coverage to the assured for medical expenses without any caveat respecting the place of accident. This unlimited coverage represents a deliberate legislative policy which is implemented by the clear language of the insurance contract.
The carrier contends that the circumstances of the occurrence of the accident in New York brings into play a conflict of laws problem which dictates that a $50,000 P.I.P. limit under the New York no fault law should control. This contention is wholly without merit.
The insurance company is bound by the terms of its policy terms which are enforceable against it regardless of the locus of the accident. The interposition of an issue of conflict of laws is misplaced and has no relevancy to the contractual responsibility of defendant.
It is manifest that the coverage limitation provisions of insurance statutes or regulations are but minimum requirements and that there is no legislative prohibition against an insurance company writing a policy with limits which exceed the statutory minimums. Hence, the mere limitation contained in the New York statute (even assuming its application herein) could not relieve defendant from the consequences *497 of its solemn agreement to provide unlimited coverage for medical expenses.[1]
II
The P.I.P. endorsement of the policy contains the following provision:
5. Reimbursement and Trust Agreement. Subject to any applicable limitations set forth in the New Jersey Automobile Reparation Reform Act, in the event of any payment to any person under this endorsement:
(a) the Company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury because of which such payment is made; and the Company shall have a lien to the extent of such payment notice of which may be given to the person or organization causing such bodily injury, his agent, his insurer or a court having jurisdiction in the matter.
(b) such person shall hold in trust for the benefit of the company all rights of recovery which he shall have against such other person or organization because of such bodily injury, * * *.
By virtue of this policy provision Ohio asserts that if it is obligated to pay all the medical expenses it has a right to be reimbursed to the full extent of its payment out of any recovery plaintiff may obtain from the tortfeasor or his insurance carrier. Plaintiff and the Attorney General, on the *498 other hand, contend that the enforcement of this reimbursement agreement is in contravention of the scheme and policy of the New Jersey No Fault Law and is therefore invalid.
Under this statute the Legislature granted to an insurance carrier which paid P.I.P. benefits a right of subrogation which is circumscribed in two respects: (1) subrogation can only be pursued by intercompany arbitration against the insurer of the tortfeasor, and (2) the right of subrogation is inoperative in connection with a claim arising after January 1, 1975. N.J.S.A. 39:6A-9. Although Ohio's statutory right of subrogation is preserved because the cause of action accrued prior to January 1, 1975, is the policy provision granting full reimbursement to the company enforceable so as to reduce the recovery potential of the assured against the tortfeasor?
It is clear that the statutory pattern of the No Fault Law does not contemplate a subrogative right for P.I.P. benefits through the normal channels of court processes or through the imposition of a lien or reimbursement obligation which would affect the assured's tort recovery. The normal right of subrogation, whether equitable or contractual, is a concept which is foreign to the underlying purpose of the No Fault Law unless the tortfeasor has failed to obtain the coverage required by the act.
In fact, the termination of subrogation rights through intercompany arbitration two years after the effective date of the statute reflects the legislative intent to eliminate subrogation as a continuing remedy, with the interim provision inserted for rate-making purposes only. See discussion in Iavicoli, No Fault and Comparative Negligence in New Jersey, at 115 et seq. (1973).
The rationale of the act involves a plan by which each insurance carrier undertakes the payment of P.I.P. benefits to its assured regardless of fault and, as of January 1, 1975, without the cumbersome and uneconomic shifting of dollars from one insurance company to another through the means of subrogation. Hence, the pre-existing right of subrogation *499 against a tortfeasor was totally eliminated and there was provided the two-year interim remedy limited to intercompany arbitration.
Running parallel with the projected termination of subrogation rights of the paying carrier is the caveat that the assured cannot opt for double recovery since evidence of the damage items included in P.I.P. payments is not admissible in the action brought by the assured against the tortfeasor. N.J.S.A. 39:6A-12.
As a consequence, plaintiff's right of recovery under the survival action will be limited to the pain, suffering and disability of the decedent for the period of survival. Plaintiff's attorney properly conceded at oral argument that his client would not be entitled to double recovery for the medical expenses in an action against the tortfeasor. However, he urges that any recovery for pain and suffering should not be subject to diminution by repayment of the P.I.P. benefits to Ohio in part or in whole by virtue of the reimbursement provision in the policy.
It may be that the introductory paragraph of the Reimbursement agreement contains a contractual understanding by Ohio that the right of reimbursement is subject and subordinate to the provisions of the No Fault Law. It provides: "Subject to any applicable limitations set forth in the New Jersey Automobile Reform Act, in the event of any payment to any person under this endorsement."
Although this is couched in ambiguous terms characteristic of many insurance clauses, appropriate resolution against the scrivener under well settled law would be sufficient in itself to conclude that the reimbursement agreement has very limited application and creates no rights in the company beyond those granted in the statute. See Bryan Const. v. Employers, 60 N.J. 375 (1972); Kievit v. Loyal Protect. Life Ins. Co., 34 N.J. 475, 482; Mazilli v. Acc. & Cas. Ins. Co. of Winterthur, 35 N.J. 1 (1961).
Nevertheless, even if the agreement is construed in its literal terms without giving weight to this introductory *500 clause, it is unenforceable because it is repugnant to the provisions and intent of the very statute which established the right to P.I.P. benefits. Saffore v. Atlantic Cas. Ins. Co., 21 N.J. 300 (1956). The statutory pattern and policy dictates that the assured's recovery for pain and suffering should not be invaded by any subrogative claim of the carrier paying P.I.P. benefits.
In the ultimate, this conclusion may or may not reduce the right of Ohio to recoup its P.I.P. payments in full from the tortfeasor's insurance carrier. This depends upon the view of another tribunal, either in this jurisdiction or in the State of New York, as to the extent of liability of Boston in view of its New York P.I.P. endorsement limit of $50,000, and whether New Jersey or New York law should apply as to the limits of liability on the New York insurance contract, and whether it is enforceable by litigation or by arbitration. Undoubtedly, there are many unresolved problems relating to the potential rights of Ohio against the tortfeasor and his insurance carrier.
However, these problems cannot be determined in this litigation. And, in fact, they are problems which are irrelevant to the declaration of the rights of the plaintiff vis-a-vis Ohio. Whether Ohio may or may not recoup the payments which are due to plaintiff is but a factor characteristic of any subrogation claim, depending upon the liability of the tortfeasor, the limits of his insurance and his financial stability. Regardless of these difficulties facing Ohio, they do not and cannot affect or influence the extent of recovery to which plaintiff is entitled. The No Fault Law under which the P.I.P. payments were made does not guarantee to the company an absolute right to reimbursement of moneys paid to the assured; it only grants to it a circumscribed right to assert a claim against a tortfeasor's carrier through intercompany arbitration. This is a far cry from the creation of a lien on the cause of action which may result in a dimunition of the tort recovery by the assured.
*501 Plaintiff is therefore entitled to pursue her tort claim without being subjected to any claim by Ohio by way of lien, reimbursement or subrogation to any portion of the recovery. This determination, however, is subject to one caveat. In the event that plaintiff, because of the institution of suit in another jurisdiction whose statute does not preclude evidence of medical expenses, succeeds in recovering all or part of the medical expenses paid by Ohio, equitable principles dictate that such recovery be reimbursed to Ohio. In this manner, the avoidance of double recovery inhibited by the New Jersey No Fault Law will be carried out.
III
Without attacking the constitutionality of the No Fault Law in its entirety, Ohio urges that if the No Fault Law is interpreted to compel payment of unlimited medical expenses without guaranteeing it the right to recover the same by way of subrogation and reimbursement, it is being deprived of property wtihout due process of law in violation of the federal constitution.
Although it is difficult to fathom the constitutional argument advanced, it appears that Ohio feels aggrieved because the statute and its interpretation by the court deprives it of a right which existed prior to the adoption of the statute, and that the ultimate result is "unreasonable" or "inequitable."
It is sufficient to observe in this connection that "no person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit." New York Central R.R. v. White, 243 U.S. 188, 198, 37 S.Ct. 247, 250, 61 L.Ed. 667 (1916). See also Pinnick v. Cleary, 360 Mass. 1, 271 N.E.2d 592 (Mass. Sup. Jud. Ct. 1971), and Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (Kans. Sup. Ct. 1974), as to constitutionality of no fault laws.
*502 The argument that the subrogation provisions of the No Fault Law of this State, as applied to the fact situation herein, represents an unconstitutional deprivation of property without due process of law is untenable.
Judgment will be entered declaring that Ohio is obligated to pay to plaintiff all reasonable medical expenses as defined in the statute, without limitation as to amount. Ohio does not have a lien for reimbursement of any part of said payment for medical expenses out of plaintiff's tort recovery for pain, suffering or disability of decedent. In the event, however, that plaintiff recovers any sum from the tortfeasor or his insurance carrier which represents incurred medical expenses, she is obligated to reimburse Ohio to the extent of said recovery.
NOTES
[1] If, perchance the choice of law were a relevant issue in this case, the result would also be contrary to the contention of defendant. The case of Buzzone v. Hartford Accident and Indemnity Co., 23 N.J. 447 (1957), is directly on point. Where the applicable law involves the insurance policy and the statutory impact thereon rather than the rights and liabilities flowing from the tort itself, the controlling law is that of the state where the contract was made, except for other considerations which are not present herein. Hence, New Jersey and not New York law would apply and Ohio would nonetheless be liable for all the medical expenses incurred by the assured. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920425/ | 274 Md. 445 (1975)
337 A.2d 59
NEUBERT
v.
MARYLAND AUTOMOBILE INSURANCE FUND
[No. 123, September Term, 1974.]
Court of Appeals of Maryland.
Decided April 11, 1975.
The cause was argued before MURPHY, C.J., and SINGLEY, SMITH, DIGGES, LEVINE and O'DONNELL, JJ.
John L. Moring, Jr., with whom were Goff & Moring on the brief, for appellant.
John J. Corbley, with whom were William F. Mosner, Thomas G. Bodie and Power & Mosner on the brief, for appellee.
O'DONNELL, J., delivered the opinion of the Court.
We are here again confronted with determining whether a motorist, Jeri A. Neubert, the appellant, used "all reasonable efforts" to ascertain the identity of the owner and operator of a motor vehicle which allegedly caused her *447 to run off a public street and collide with a utility pole with resultant substantial bodily injuries and property damage. The appellee, Maryland Automobile Insurance Fund, the legal successor to the Unsatisfied Claim and Judgment Fund Board, "standing in the shoes" of the unidentified motorist alleged to have caused the harm, contended that all such "reasonable efforts" had not been pursued by Miss Neubert and prevailed in a hearing in the Circuit Court for Baltimore County (before Proctor, J.) upon Miss Neubert's petition to sue the Fund. Aggrieved at that result she urges a reversal.
Miss Neubert testified that at approximately 1 a.m. on April 9, 1973 she left her sister's apartment in Towson, where she had spent the evening, to return to her home located on Southway in Baltimore City; as she drove her Datsun automobile southward, in the lane adjacent to the center line of the York Road, at about 2:45 a.m. and as she was at "about 42nd Street"[1] she noticed a northbound vehicle described by her only as "a large white car" close to the center line and "coming toward her at an angle."[2] Travelling then at about 30 m.p.h. she accelerated to avoid the oncoming vehicle, pulled her steering wheel to the right and struck the pole. Although she had moments of unconsciousness as a result of her injuries, Miss Neubert, in her testimony, acknowledged that she had told an unidentified police sergeant who had come upon the scene immediately following the collision that "someone else was driving" when inquiry was made by him as to whether anyone else accompanied her. She classified this statement as "ridiculous" since she alone was driving the car and "had the steering wheel wrapped around her arm."
The appellant acknowledged that when interviewed at the Union Memorial Hospital where she was attended for her injuries she made no statement to the investigating police officer with regard to any other vehicle being involved in the incident.
*448 When asked during her testimony what she had personally done to locate the unidentified owner or operator of the "large white car" Miss Neubert replied: "I didn't make any efforts, the only thing I know an ad was put in the paper for a week if anyone had seen the accident."
Placed in evidence in the hearing was a copy of an advertisement prepared by the appellant's attorney which was published on the back page of the Baltimore "Morning Sun" on both May 15 and 19, 1973, and which read:
"Anyone witnessing an accident which occurred on Monday, 4/9/'73 at 2 A.M. at York Rd. & 39th St. involving a '72 Datsun license LY 5510 and a large car please call...."
The advertisement listed the name and telephone number of her former attorney.
Officer Wielechowski of the Baltimore City Police Department, who was summoned by his sergeant to take over the investigation, testified that he arrived at the scene at 2:50 a.m. and pinpointed the place of the collision as "in front of the premises known as 4324 York Road."[3] When he arrived Miss Neubert was being removed from her vehicle by an ambulance crew; there were several persons on the scene who had stopped to render her aid, but none of those persons present had actually witnessed the accident. The officer interviewed Miss Neubert in the examination room at the Union Memorial Hospital where she was being treated for her injuries about an hour or an hour and one-half later. He testified that she was extremely emotional, stated that she was "very tired" and "did not know how the accident occurred"; she made no statement to him then or later with regard to any other vehicle being involved in the incident.
Since the police were never notified of the existence of any other vehicle having been involved in the accident, or having caused it, no investigation was carried on by them to *449 ascertain the identity of the motorist who purportedly precipitated Miss Neubert's plight. Upon the hearing of the petition to sue the sole evidence thus submitted in the trial court as to whether "reasonable efforts" had been taken by the appellant was the published advertisement.
Since the appellant's claim arose after January 1, 1973, her petition to sue came within the provisions of Maryland Code (1957, 1972 Repl. Vol., 1974 Cum. Supp.) Art. 48A, § 243H, which provides in pertinent part that a claim such as Miss Neubert's may be made against the Fund "where the identity of the motor vehicle and the operator and owner thereof cannot be ascertained." Art. 48A, § 243H (a)(1).[4] The remedy, however, is subject to certain statutory conditions, the one here involved providing that:
"All reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator thereof and either the identity of the motor vehicle and the owner and operator thereof cannot be established, or the identity of the operator who was operating the motor vehicle without the owner's consent cannot be established." Art. 48A, § 243H (a)(1)(iv).
A number of our prior decisions have considered the requirement of "all reasonable efforts" in cases involving the Unsatisfied Claim and Judgment Fund Board under the provisions of Code (1957, 1970 Repl. Vol.) Art. 66 1/2, § 7-620 (5), and its predecessor, Art. 66 1/2, § 167 (f).[5] Since the intent, as well as the language in the three statutes are, as to the conditions precedent, identical, we find them controlling.
In Hickman v. Unsatisfied Claim and Judgment Fund Board, 255 Md. 267, 257 A.2d 426 (1969), Hickman testified that in his conversation with the investigating police officer *450 he made no reference to another car being involved in the accident and his counsel, having obtained the police report, which was void of information regarding the identity of the other vehicle, believing that any investigative efforts would have been fruitless, did not pursue the matter further, other than to accept Hickman's version that an unidentified vehicle had forced him to run off the road. After pointing out that "it would have been most natural for him to have immediately vented his resentment at one who had injured him," in discussing the case with the police officer, Chief Judge Hammond, for the Court, stated:
"It [(the statute)] does not permit the injured person to be the judge of the need to investigate or of the probability of success. The statute does not grant the right to sue in a `hit and run' case to one who, when faced with the need to seek the facts, becomes fainthearted or completely indolent. At the least, it cannot be assumed that if the investigating officer had been told of the other car at the time of the accident or later, relevant information would not have resulted. Admittedly here the appellant made no identifying effort and we cannot equate `no' with `all reasonable.'" (Emphasis supplied.) 255 Md. at 270, 257 A.2d at 428.
In Grady v. Unsat. C. & J. Fund Bd., 259 Md. 501, 270 A.2d 482 (1970), Grady was a passenger in an automobile which allegedly was forced off the road by an oncoming "phantom motor vehicle." A State Policeman summoned to the scene there conducted an investigation to ascertain the identity of any witnesses. None of those questioned at the scene could supply the trooper with any information and his report so stated. Grady contended that since the State Trooper had made "reasonable efforts" in his investigation, which were unsuccessful, to require him to do anything after a nonproductive police investigation would be a "subservience to technicality."
In finding that Grady had made no "reasonable efforts" to *451 identify the "phantom motorist," Judge Finan, for the Court, stated: "In our opinion, to allow Grady to equate `reasonable efforts,' as required by the statute, with a pro forma negative police report about which he had made no inquiry and with which he was unfamiliar until the day of the hearing some three months after the accident, would be playing fast and loose with the intent of the statute." 259 Md. at 505-06, 270 A.2d at 484.
After pointing out from Grady's testimony that he had "never talked to any police officer about this accident," and citing the holdings in Hickman, supra, he continued for the Court:
"`Reasonable efforts' will differ according to the facts and circumstances of each case, and it is not a term which is easily defined or delineated. Whether it would have been reasonable under the circumstances of this case to require the appellant to place an advertisement in a newspaper in an effort to locate potential witnesses or to personally interview the residents of the homes in the area need not be decided here. [Footnote omitted.] At the very least, reasonable efforts in the case at bar would require the appellant to communicate with the State Police to determine whether or not they had even conducted any investigation, and that was not done. In view of the fact that the appellant failed to take even this initial step, we need not decide whether he should have gone further. As in Hickman, we are not prepared to accept a total absence of any action by the claimant as `reasonable efforts.'" 259 Md. at 506-07, 270 A.2d at 485.
We decided, however, in Jones v. Unsat. C. & J. Fund Bd., 261 Md. 62, 273 A.2d 418 (1971), that the petitioner had complied with the statutory requirement of making "all reasonable efforts" and was entitled to sue the Board. In Jones the driver of a blue Oldsmobile Cutlass ran over him on Independence Day while he was taking an afternoon nap *452 on the grass, about 15-20 feet off the roadway in Druid Hill Park. Although the driver took him to a hospital for emergency treatment he disappeared without identifying himself or furnishing any information to the hospital authorities. Jones reported the incident to the police "sometime between one and three days after the accident," and attributed his inaction to his "great pain." His attorney interviewed hospital personnel, checked the hospital records and then caused to be published in the Afro-American newspaper two advertisements seeking the identity of anyone who "saw [a] car hit man on grass in Druid Hill Park July 4, 1969."
Judge Digges, who wrote the opinion for the Court, after quoting with approval from Annot., Uninsured Motorist Fund Recovery 7 A.L.R. 3d 851, 854 (1966), as an "accurate estimate of the presently articulated case law" and after observing that in Grady, supra, "it was suggested that newspaper advertisements or a door to door canvass of the few homes in the immediate vicinity of the accident would have constituted at least some phase of a reasonable investigation," stated:
"The [police] report that was taken offered no help at all, except to make it clear that it would be unreasonable to expect the police to assist in a metropolitan-wide hunt for a blue Oldsmobile Cutlass. Jones' most logical and promising point of inquiry was to find a witness either at the hospital or among the members of the black community who frequented Druid Hill Park. His attorney, who was contacted promptly, went to work on these clues immediately, inquiring at the hospital and placing two ads in the black community newspaper. Compare, Serkes v. Parsekian, supra, 179 A.2d at 786-87." 261 Md. at 77, 273 A.2d at 426.
Concluding that "both the appellant and his attorney may well have been convinced of the improbability of success, but in spite of this they have made, in our opinion, `all reasonable efforts' to find a needle in a haystack," Judge *453 Digges for the Court, set forth a test of "reasonableness" in such cases when he said:
"We think it fair to say that, at a minimum, vigorous good faith efforts are required to identify the tortfeasor, the same efforts one would expect an injured party to exert if he knew there would be no recovery unless he actually located the driver. In ruling on investigative efforts the trial judge must exercise discriminating judgment, giving due regard to such variable and interrelated factors as credibility, practicality, the law of diminishing returns, a sensible balancing of the anticipated amount of recovery against the cost of particular modes of inquiry, access to investigative resources, the fresh pursuit of promising clues, and, in the long run, the claimant's application of good common horse sense." (Emphasis supplied.) 261 Md. at 76-77, 273 A.2d at 425.
In Jones the Court noted, however, that the annotation, 7 A.L.R. 3d 851, supra, "uses a much more certain tone in advising attorneys on practice pointers" when making such a claim, and quoted it with approval as follows:
"`The lawyer whose client expects to file a claim against an unsatisfied claim and judgment fund because of injuries caused by an unidentified motorist should be sure, before the claim is filed, that sufficient efforts have been made to identify the driver. Conclusory allegations that due and diligent efforts have been made to identify him may be insufficient.
`The lawyer should pursue any information which may lead to identifying the driver. Reporting the accident to the police is a common method of attempting to identify the driver, and a police report indicating that the driver can not be identified may be of considerable weight in establishing the claimant's due diligence, provided the police were notified promptly after the *454 accident. Newspaper advertisements are another judicially recognized exercise of diligence to identify a driver, if they are placed immediately after the accident. The use of private investigators is also advisable in some cases. Of course, the failure to identify a motorist after diligent efforts is often not alone sufficient to maintain a suit against the fund if the motor vehicle itself or its owner can be identified.' 7 A.L.R. 3d 855-56" (Emphasis supplied.) 261 Md. at 74, 273 A.2d at 424.
Again, in Johnson v. Unsat. C. & J. Fund Bd., 262 Md. 90, 277 A.2d 5 (1971), the petitioners were passengers on a bus northbound on Maryland Route 3 when it was struck by a car headed south in the northbound lane. The errant vehicle had departed the scene before its license number could be obtained, although it was apparently pursued by another motorist. When a police officer arrived at the scene and obtained a description of the car which had collided with the bus he broadcast an "all points" alert for the vehicle over the police radio.
Judge Singley, for the Court, in upholding the rights of the petitioners to sue the Board, stated:
"The case before us is wholly unlike Grady and Hickman, where inactivity was the order of the day, and more comparable to Jones, where efforts were made, but without success. Here, there was an abundance of witnesses who saw the collision. The police were at the scene within minutes of the accident. The alert which was broadcast was an effort far beyond the claimants' capabilities. There was nothing further that they could do, and no subsequent follow-up would have helped. In the context of the Act, there were no other `reasonable efforts' which they could have undertaken to establish `the identity of the motor vehicle and the owner and operator thereof.'" 262 Md. at 94, 277 A.2d at 7-8.
*455 Most recently the question of the "reasonableness" of the claimant's efforts to identify a "phantom vehicle" came before this Court in Brown v. Unsat. C. & J. Fund Bd., 270 Md. 377, 311 A.2d 773 (1973). In that case the claimant's vehicle was allegedly struck from the rear at the intersection of Paca and Saratoga Streets in Baltimore City by a "phantom" vehicle which immediately fled the scene. The claimant wrote down what she "thought" was the license number and testified that three persons at the scene also gave her what each thought to be the license number of the vehicle. One of the license tag numbers furnished her by a witness matched the one which she had obtained. This information, together with a description of the driver and the phantom vehicle, was turned over to investigating police. A teletype message was dispatched carrying the following description as furnished by the petitioner:
"`... a yellow station wagon operated by a white male, 35, sandy hair, wearing a brown shirt or sweater. Vehicle should be damaged on the left front and side; might have traces of blue paint on same. Request officer on check, BH 1483, listed on a 1967 Chevrolet station wagon....'"
Investigation disclosed that a 1968 Chevrolet station wagon bearing the tag number furnished by the petitioner was registered to a Baltimore County resident (Jenkins); it was the same model and the same color as described in the teletype. A police officer, ostensibly making an investigation by telephone, phoned the County address and was advised by a male, "who sounded as if he were `older' than 35," that at the time of the accident the car was "`"parked alongside of his house, and had not been removed from that location,"'" and further reported that "at the time of the accident the vehicle was nowhere in Baltimore City." A Baltimore County police officer checked the vehicle and by teletype reported that it was not damaged.
In agreeing with the trial court that all "reasonable efforts" had not been pursued by the claimant, Judge *456 Levine, for the Court, after reviewing our earlier holdings, stated:
"Although we continue to avoid the adoption of a check-list in these cases, any number of steps might readily have been taken to either confirm or disprove the `alibi' relayed by the police. The trial judge ruled, correctly we think, that given the circumstances of this case, the petitioner should simply have sued the owner. As he observed, at the very minimum, this would have led to an adjudication that the Jenkins vehicle was the wrong one, cf. Nicholson v. Unsat. C. & J. Fund Bd., 265 Md. 453, 290 A.2d 384 (1972). In our view, this would have resulted in a compliance with the statutory requirement of `all reasonable efforts.' See Chocko v. Motor Vehicle Accident Indem. Corp., 20 App. Div.2d 728, 248 N.Y.S.2d 170 (1964); Ruiz v. Motor Vehicle Accident Indem. Corp., 19 App. Div.2d 832, 244 N.Y.S.2d 594 (1963); Simmons v. Raiola, 36 Misc. 2d 555, 233 N.Y.S.2d 414 (1962).
We are not to be understood as engrafting upon § 167 (or § 7-620) an absolute requirement that the claimant must first sue anyone who might possibly be identified as the owner or operator of a phantom vehicle, cf. §§ 7-612, 7-613 and 7-615; nor, as we have intimated, do we hold that under similar circumstances, alternative efforts at compliance with the statute could not suffice." 270 Md. at 382-83, 311 A.2d at 776.
It is clear from our decisions that what are "reasonable efforts" will differ "according to the facts and circumstances in each case, and it is not a term which is easily defined or delineated." See Grady, supra, 259 Md. at 506, 270 A.2d at 485. Each case has been decided on its own facts, and has been "evaluated against an unarticulated general standard that has been evolving on a case by case basis." See Jones, supra, 261 Md. at 72-73, 273 A.2d at 423. Although, as pointed out in Brown, supra, we have continued "to avoid *457 the adoption of a check-list in these cases," "at a minimum, vigorous good faith efforts are required to identify the tortfeasor, the same efforts one would expect an injured party to exert if he knew there would be no recovery unless he actually located the driver." See Jones, supra, 261 Md. at 76, 273 A.2d at 425.
Our holdings in Hickman, supra, and in Grady, supra, seem here particularly apposite insofar as they relate to the efforts personally made by Miss Neubert to identify the "phantom vehicle." Like the claimant in Hickman, she never told the investigating officer when interviewed by him that any other vehicle had caused her accident, nor did she, subsequent to that interview, ever report such fact to the police. As we noted in Hickman, "if the investigating officer had been told of the other car at the time of the accident" relevant information might have resulted from such disclosure. At the very least, reasonable efforts in the case would have required the appellant to communicate with the Baltimore City Police to determine whether or not they had ever conducted any investigation to ascertain the identity of the errant motorist. See Grady, supra, 259 Md. at 507, 270 A.2d at 485.
Nor does it appear that her attorney even minimally relied on a "negative police report" as was done in Grady, since the advertisement caused to be published by her attorney factually does not coincide with either the time of the happening of the accident nor its locale, as set forth in the police report.
Concededly, no attempts were made, as suggested in Grady, and in Jones, to attempt by door to door canvass to interview the residents of the 4300 block of York Road to ascertain if any of them might personally be able to supply even a clue in identifying the fugitive motorist.
Although in Jones, a more precise newspaper advertisement had been used in an attempt to locate witnesses who may have been in Druid Hill Park at the time Jones was run over by the unidentified motorist, his "reasonable efforts" were based additionally on the fact that his attorney went to work immediately on the clues, visited *458 the hospital to which the motorist had taken Jones, interviewed the personnel who were then on duty and checked its records. In this case nothing was apparently done other than the publication of an inaccurate newspaper advertisement.
When Judge Proctor denied the appellant leave to sue he pointed out that the subject accident occurred in the 4300 block of the York Road, that the advertisement made reference to an accident some four blocks away, at York Road and 39th Street, and that anyone who may have witnessed the accident in which the appellant had been involved certainly would not construe the advertisement as a solicitation to come forth with information about her accident.
Assuming, without deciding, that an accurate newspaper advertisement, when considered with all the other facts and circumstances in the case, might, in a proper case, supply evidence of such "reasonable efforts" to identify the alleged tortfeasor, we do not think that the advertisement here used by appellant's attorney, directing potential witnesses to a busy east-west intersection, at Greenmount Avenue and 39th Street, at least four blocks distant, and purporting to have occurred 45 minutes before Miss Neubert's untoward incident, resulted in any "reasonable effort" to ascertain the identity of the motor vehicle, or of the owner and operator thereof which allegedly caused her to collide with the utility pole.[6]
We agree, under the test laid down in Jones, supra, that in ruling on the claimant's investigative effort, the trial judge used discriminating judgment, giving due regard to such variable and interrelated factors as the modes of inquiry invoked, access to investigative resources, the fresh pursuit of any promising clues and the claimant's application "of good common horse sense."
As pointed out in Jones, supra, although "we do not think *459 that the claimants before the Fund ought to be subjected to the labors of Sisyphus in measuring their attempts to exhaust all reasonable efforts to identify and locate an elusive defendant," we conclude on the facts here that the petitioner's inefficacious efforts did not constitute any effort, much less establish "all reasonable efforts," as a condition precedent to making a claim upon a Fund preserved for claimants who have exhausted all other sources of recovery.
Order of the Circuit Court for Baltimore County affirmed; appellant to pay costs.
NOTES
[1] Approximately ten blocks northward of her residence.
[2] In the area where the southbound lanes of York Road narrow and the street continues southward as Greenmount Avenue.
[3] Described as being opposite the property of the Arundel Lumber Company.
[4] See Maryland Code (1957, 1972 Repl. Vol., 1974 Cum. Supp.) Art. 48A, § 243G.
[5] See Code Art. 48A, § 243H (b), requiring compliance with Art. 66 1/2, § 7-620, as a condition precedent for a claim against the Fund pending promulgation of rules setting forth procedural requirements as to such claims under the new statute.
[6] By analogy, see Code, Art. 66 1/2, § 7-606 (a), requiring that a claimant upon giving notice to the Fund "shall describe the manner in which the accident occurred, specifying the time and place of occurrence. ..." (Emphasis supplied.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920445/ | 337 A.2d 253 (1975)
STATE of Maine
v.
Harold SHEEHAN.
Supreme Judicial Court of Maine.
May 5, 1975.
Charles K. Leadbetter, Asst. Atty. Gen., Augusta, for plaintiff.
Collins & Crandall, P. A. by Wayne R. Crandall, Rockland, for defendant.
Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.
WEATHERBEE, Justice.
A Knox County grand jury returned an indictment charging the Defendant with criminal responsibility for a fire which had occurred within the walls of the Maine State Prison in which the Defendant was then incarcerated. Prison officials testified as to the circumstances of their discovery of the fire and as to its location and the nature of the area burned. The jury also heard the officers' testimony that they questioned the Defendant after the fire had been extinguished and that he admitted having been the person who had set the fire. After jury trial he was found guilty of arson, second degree.[1] His appeal presents two claimed errors appropriate for our discussion. One of them requires us to sustain his appeal.
*254 The Sufficiency of Proof of the Corpus Delicti
The Defendant now insists that the proof of the corpus delicti was insufficient to justify the jury's receiving evidence that the Defendant had admitted that he started the fire. Since the Defendant made no objection to the admission into evidence of his confession on the basis of the State's failure to prove the corpus delicti and thus raises the issue for the first time here on appeal, we consider only whether there was error of such a prejudicial effect as to constitute manifest error. State v. McKeough, Me., 300 A.2d 755 (1973); M.R. Crim.P., Rules 51 and 52; Glassman, Maine Practice § 51.2.
In order to establish the corpus delicti, the State must adduce
"credible evidence which, if believed, would create in the mind of a reasonable man, not a mere surmise or suspicion, but . . . a really substantial belief. . ."
that someone had committed the crime of arson. State v. Grant, 284 A.2d 674, 676 (1971). See also State v. Atkinson, Me., 325 A.2d 44 (1974): State v. Levesque, 146 Me. 351, 81 A.2d 665 (1951). In the present case, the record shows that prior to the admission of the Defendant's confession, enough evidence to create such a substantial belief had been presented: at 11:20 a. m. prison officials had discovered a fire emanating from a hole in the ceiling in the doorless workshop latrine near the wall which separated the latrine from the locked stockroom; the hole appeared to have been created by the removal of a section of ceiling tile; on entering the stockroom, the officers found that above this ceiling hole was an overhead area of the stockroom from the floor of which two boards had been "knocked out"; crumpled, tightly packed newspapers were packed into the space between the two holes for no apparent non-criminal purpose; the paper was burning in the space between the latrine ceiling and the stockroom storage area floor, as were floorboards of the storage area around the hole; some of the burning paper had fallen over into a box of novelties which the prisoners had manufactured and stored there and these, too, were afire; the hole had not been seen by prison officials prior to discovery of the fire; there were no electrical wires in the hole or in its area.
A reading of this evidence adduced in testimony prior to admission of the Defendant's confession leaves no doubt that there was adequate proof of the corpus delicti prior to and independent of admission of the confession.[2]
The Voluntariness of the Confession
A prison official testified that he and another officer interviewed the Defendant in the segregation unit shortly after the fire and that he read to the Defendant from a printed form an explanation of the Defendant's rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He said he then handed the Defendant the form to read and that the Defendant said that he understood the explanation and that the Defendant signed his name to the form.
At this point the Justice, somewhat belatedly, excused the jury and, in the jury's absence, proceeded to conduct the independent evidentiary hearing pertaining to the voluntariness of the confession and compliance with the Miranda doctrine which we held to be mandatory in State v. Collins, Me., 297 A.2d 620, 636 (1972).
In the jury's absence the officer continued to describe the circumstances under which the officers interrogated the Defendant and the Defendant's apparent capacity to understand the rights explained to him. Appended to the explanation of *255 the Miranda rights was a printed statement to the effect that the recipient of the "warning" understands the rights explained and chooses to waive them. The officer testified that the Defendant had apparently understood the printed explanation and had signed it. The Justice examined the document and remarked that it was the "strongest thing in the case". The Defendant's attorney stated that he did not wish to question the officer further. The County Attorney said he had no further questions on re-direct. The following then transpired:
"THE COURT: Now, call back the jury
MR. HARDING: Just a moment, your Honor. My client has indicated to me that he signed the statement marked State's Exhibit 1 believing at the time he signed it that he was claiming the rights that are set forth in the statement, and for the purpose of the record, I would like to put him on the stand to testify to that for whatever it is worth.
THE COURT: You are protected on the record. You have your objection, your objection is noted. We will proceed. Bring in the jury."
It appears clear that the Justice's misconception of the situation effectively denied the Defendant the right to offer testimony bearing upon the voluntariness of his confession. The error was preserved by counsel and requires reversal of the conviction.
The entry must be:
Appeal sustained.
Remanded to Superior Court for re-trial.
NOTES
[1] 17 M.R.S.A. § 162.
[2] Of course, in so holding we do not mean to suggest that failure to rule that the corpus delicti had not been established was error at all. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920458/ | 107 B.R. 483 (1989)
In the Matter of SHELCO INCORPORATED, Debtor.
ELKTON ASSOCIATES, Plaintiff,
v.
SHELCO INCORPORATED, Defendant.
Bankruptcy No. 89-401, Motion No. 89-138.
United States Bankruptcy Court, D. Delaware.
October 11, 1989.
*484 Vincent A. Bifferato, Bryde, Ament, Evans, Lynch & Carr, Wilmington, Del., and Jay C. Emrey, III, Baker and Thomey, P.A., Elkton, Md., for plaintiff.
Joseph B. Green, Green, Green & Godowsky, Wilmington, Del., for debtor/defendant.
MEMORANDUM OPINION AND ORDER
HELEN S. BALICK, Bankruptcy Judge.
Two motions before the court involve Shelco, Inc.'s lease with Elkton Associates. Shelco seeks to assume that lease for its restaurant business while Elkton Associates has moved for relief from the automatic stay in order to proceed with eviction in state court. This court has jurisdiction in both these matters under 28 U.S.C. §§ 157(b)(2)(A) and 157(b)(2)(G), respectively.
BACKGROUND
Shelco, Inc., t/a Chat-N-Chew Restaurant, operates a family restaurant/pizza parlor with carryout at the Big Elk Mall in Elkton, Maryland. Shelco did not pay its February 1989 rent due, in part, to decreased business because of a winter slump and increased restaurant competition. Elkton Associates subsequently sent default notices to Shelco's president and sole shareholder Stuart Cohen informing him of the arrearages. Despite some initial workout efforts, Elkton Associates filed suit in the Maryland District Court for Cecil County on April 6, 1989, to have Shelco evicted because it was, at this point, three months in arrears of rent. In Maryland District Court on April 18, 1989, Cohen and Elkton Associates agreed to a stipulation whereby Shelco would pay the rent due as follows: $4,000.00 on April 18, $4,062.49 on May 2, $2,650.83 on May 16, and $5,301.66 on May 30. Though Cohen's initial check for $4,000.00 on behalf of Shelco was dishonored by the bank, a second certified check for $4,000.00 was forwarded to Elkton Associates; nevertheless, no other subsequent payments were received by Elkton Associates. Consequently, Glenn Weinberg, manager of the Mall and agent for Elkton Associates, wrote Cohen on May 26, 1989 advising him that based on back rent of $10,176.56 due Elkton Associates, "Landlord hereby elects to terminate the Lease, as permitted by Section 39.A of the Lease." Section 39.A provides:
If Tenant shall violate either (a) the covenant to pay rent and shall fail to comply with said covenant within five (5) days after the time such rent is due and payable to Landlord, or (b) any other covenant, except (a) above, made by it in this Agreement and shall fail to comply or commence compliance within five (5) days after being sent written notice of such violation by Landlord, Landlord may reenter the premises and declare this Lease and the Tenancy hereby created terminated; Landlord shall be entitled to the benefit of all provisions of applicable laws respecting the speedy recovery of lands and tenements held over by Tenant or proceedings in forcible entry and detainer.
*485 Shelco did not vacate the premises after Cohen received this letter. Through its Maryland counsel, Shelco renewed its workout efforts by proposing to assign the proceeds of a Pennsylvania liquor license (belonging to another business controlled by Cohen, Stedi, Inc.) to bring the rent current. This workout attempt failed. Elkton Associates renewed its request to the Maryland District Court to oust Shelco under Md. Real Prop. Code Ann. § 8-401. On July 11, 1989, Shelco filed a Chapter 11 petition which stayed the Maryland eviction proceedings scheduled that very day. Therefore, a final judgment of eviction never issued.
The parties dispute the effect of Elkton Associates' May 26 letter to Shelco. Elkton views it as an exercise of its right of reentry pursuant to section 39.A of the lease and thus a termination of the leasehold. In contrast, Shelco argues that the letter was merely an election to terminate the lease and had in itself no legal force or effect. Another dispute hinges on the likelihood of Stedi, Inc.'s liquor license sale going through so that the proceeds would be available to Shelco to pay off the back rent.
Only one contingency exists with respect to the sale of Stedi's liquor license to Baldino's Restaurant, Inc., namely, approval by the Pennsylvania Liquor Control Board which depends, in part, on constructional improvements being made to Baldino's Restaurant. The contract provides for a consideration of $150,000.00 for the license and set settlement within 14 days following the PLCB's approval. November 19, 1989 is the latest date for settlement. Yet, Stedi, Inc. is encumbered by unsecured debts of about $100,000-$120,000. In addition, Shelco owes Maryland retail sales tax of approximately $2,000.00 as well as $30,000.00 of federal withholding tax. Furthermore, Mr. Cohen's separation from his wife also complicates the situation. Elkton Associates maintains that the availability of these funds for Shelco's use is highly speculative.
The lease under which Shelco is in possession was first entered into in 1975 and has been amended several times. Shelco made no rental payments since January 1989. There is a pre-petition arrearage of $15,478.22 representing rent, late charges, maintenance fees, and water and sewer charges. Post-petition debt on the lease was over $6,000.00, but Shelco made one post-petition payment on the hearing date which does not affect either parties' legal rights as to the instant motions. The original lease as amended on December 12, 1986, extended Shelco's leasehold to October 31, 1991 and gave Shelco a five-year option to extend the lease until October 31, 1996.
ISSUE
The question central to whether Shelco may assume the lease between it and Elkton Associates or whether Elkton Associates should be granted relief from stay to proceed with Shelco's eviction from the premises is Did Shelco as of the filing date of its Chapter 11 case have any interest in the leasehold?
DISCUSSION
If Shelco had no interest in the leasehold, then there is no property which became part of the estate and Elkton Associates' motion for relief from stay should be granted. Conversely, if Shelco retained an interest in the lease, then its motion to assume the lease should be considered in conjunction with Shelco's ability to provide adequate assurance to cure default and maintain future rent payments. 11 U.S.C. §§ 365(b)(1), 365(b)(3). If adequate assurance is found, Shelco as debtor-in-possession may assume the unexpired lease. 11 U.S.C. §§ 365(a), 1107(a).
In deciding whether Shelco may assume the lease, this court must first determine whether the lease terminated under applicable state law prior to the filing of the bankruptcy petition. 11 U.S.C. § 365(c)(3). See Kopelman v. Halvajian (In re Triangle Laboratories, Inc.), 663 F.2d 463, 471 (3d. Cir.1981). If the lease in fact terminated pre-petition, the next question is whether the termination could have been reversed under a state anti-forfeiture provision or other applicable state law. City of Valdez v. Waterkist Corp. (In re Waterkist), 775 F.2d 1089, 1091 (9th Cir.1985). *486 This approach prevents the debtor-in-possession from abusing the bankruptcy process by attempting to assume a lease which would be otherwise unassumable absent bankruptcy proceedings; still, it allows the debtor-in-possession the same opportunities to avoid forfeiture of a lease that would have been available in state court. City of Valdez, supra, at 1091. In the present proceeding, this court is bound by Maryland law in answering these questions since the subject property is located in Maryland and the lease itself states the Maryland law governs its construction. See Butner v. United States, 440 U.S. 48, 55, 99 S. Ct. 914, 918, 59 L. Ed. 2d 136, 141-42 (1979) ("Property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding.").
Turning to the question of lease termination, Elkton Associates contends that its letter of May 26 effectively terminated the lease by exercising its right of reentry under Section 39.A of the Lease. Under Maryland law, a right of reentry may be made by a landlord for the breach of a covenant in a lease, and it is not necessary that the landlord resort to legal process. Toy Fair, Inc. v. Kimmel, 177 F. Supp. 129 (D.Md. 1959). Specifically, a tenant's breach of a covenant which gives the landlord a power of termination coupled with written notice exercising this power unilaterally terminates the tenancy. See Cabana, Inc. v. Eastern Air Control, Inc., 61 Md.App. 609, 487 A.2d 1209, cert. denied, 302 Md. 680, 490 A.2d 718 (1985). In 20251 Century Associates Ltd. Partnership v. Opus Corp. (In re Opus), 89 B.R. 9 (Bankr.D.Md. 1988), the bankruptcy court applied Maryland law to hold, upon facts similar to those at bar, that the landlord's written notice to the debtor to terminate based on default of rent exercised its legal right under the lease and, therefore, the lease terminated pre-petition by the landlord's actions. Indeed, numerous other bankruptcy decisions have found under applicable state law that such notice based on a right of reentry provision in a lease is effective termination. See, e.g., In re Scarsdale Tires Inc., 47 B.R. 478 (S.D.N.Y.1985); Lifshutz v. Trang (In re Trang), 58 B.R. 183 (Bankr.S.D.Tex. 1985).
Applying this strict construction of the lease terms to the present facts, it is apparent that Elkton Associates terminated the lease by exercising its right of reentry through its May 26 letter to Shelco. This right arose under Section 39.A of the Lease when Shelco failed to pay rent February and thereafter. Even though Shelco made one $4,000.00 payment according to the April 18 stipulation, it still was significantly in arrears for rent. Thus, Elkton Associates did not waive its rights by accepting a part of Shelco's back rent. As a result, Shelco had no legal rights under the lease. It only retained possession pending the outcome of the eviction proceeding as well as any equitable interest under state law to revive the lease.
Turning to the issue of redeeming the lease, it is clear that forfeiture of leases are not favored under Maryland law. Where circumstances warrant, a court of equity will grant equitable relief from a lease forfeiture. Dreisonstok v. Dworman Bldg. Corp., 264 Md. 50, 284 A.2d 400 (1970); Wylie v. Kirby, 115 Md. 282, 80 A. 962 (1911). In Wylie, the Maryland high court addressed the question of whether a lessee could seek the aid of a court of equity to restrain forfeiture in light of a right of reentry in the lease. The court held that:
Where a lease contains a condition that the lessor may re-enter and put an end to the lessee's estate, or even that the lease shall be void, upon the lessee's failure to pay the rent at the time specified, it is well settled that a court of equity will relieve the lessee and set aside a forfeiture incurred by his breach of the condition, whether the lessor has or has not entered and dispossessed the tenant. This rule is based upon the notion that such condition and forfeiture are intended merely as a security for the payment of money.
*487 115 Md. at 287, 80 A. at 964 (quoting 1 Pomeroy's Eq. Jur. § 453). Consequently, Maryland law clearly permits revival of a lease where the termination of the lease constitutes a forfeiture. See also Md. Real Prop.Code Ann. § 8-401(c)(5) and 8-401(e) (anti-forfeiture statute). Yet, this policy is subject to the "fair dealing" rule which mandates the tenant to comply with fundamental principles of fair dealing in order for equitable relief to be granted. Dreisonstok, 284 A.2d at 404. Here, Shelco's breach does not appear willful nor grossly negligent, but due to financial difficulties which prompted its Chapter 11 filing. Furthermore, Shelco has been a tenant at the Big Elk Mall for over 13 years, and no evidence was presented by the landlord to indicate prior defaults or continued delays in payments prior to last February. Still, as a tenant seeking equitable relief to avoid forfeiture, Shelco must do equity which usually means tendering all rent, late charges, interest and costs due under the lease. Streeter v. Middlemas, 240 Md. 169, 213 A.2d 471 (1965).
In the bankruptcy setting, there can be no termination of a commercial lease within the context of Sections 365(c)(3) or 541(b)(2) of the Code so long as it is subject to reinstatement under the terms of the lease or applicable law. Traditionally, lease forfeiture clauses are liberally construed in favor of the bankrupt lessee, especially in reorganization cases. See Finn v. Meighan, 325 U.S. 300, 65 S. Ct. 1147, 89 L. Ed. 1624 (1945); In re Fleetwood Motel Corp., 335 F.2d 857 (3d Cir.1964). Though Maryland law makes it easy for a landlord to exercise a right of reentry on a leasehold (which does not require an ejectment action as is necessary for reentry of freehold estates), Maryland policy abhors forfeiture and allows redemption of leases where circumstances warrant. In Opus, supra, the court applied its equitable powers to allow the debtor a limited time frame to get current with its rent. Opus, 89 B.R. at 10-11. The Opus court's application of Maryland law and the Code will be followed here.
Therefore, Shelco may assume the lease under Section 365 of the Code provided that it cures all pre-petition defaults by November 30, 1989 and is current on its post-petition obligations by November 9, 1989. (i.e., 60 days from Shelco's Chapter 11 filing to September 9 plus 60 additional days on Shelco's motion to extend the period to assume or reject.)
Elkton Associates' motion for relief from stay must be denied at this stage of the proceedings and the stay conditionally extended. Shelco needs its leasehold to stay in business. Since it has no secured debt, has made cutbacks in its expenses, has a liquor license for the premises, is revamping its format to off-set competition, and anticipates receiving the proceeds of sale of Stedi, Inc.'s liquor license on or before the end of November, there is a realistic possibility of an effective reorganization. Cf. In re Park Timbers, 58 B.R. 647 (Bankr.D. Del.1985). This is sufficient not only to provide adequate protection but also the adequate assurance requirement necessary to the assumption of the lease.
An order in accordance with this Memorandum Opinion is attached.
ORDER
AND NOW, October 11, 1989, for the reasons stated in the attached Memorandum Opinion,
IT IS ORDERED THAT:
1. Shelco Incorporated's motion to assume the lease between it and Elkton Associates is GRANTED provided it is current on its post-petition obligations by November 9, 1989 and it cures all pre-petition defaults by November 30, 1989.
2. The motion of Elkton Associates for relief from the automatic stay provisions of 11 U.S.C. § 362(a) to proceed with eviction proceedings is DENIED; however, in the event Shelco fails to comply with the provisions of ¶ 1, supra, relief will be granted without further hearing 10 days following the filing *488 and serving of an affidavit of default. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920477/ | 133 N.J. Super. 526 (1975)
337 A.2d 632
JOHN M. PILLSBURY, PLAINTIFF,
v.
THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF MONMOUTH AND RICHARD T. O'CONNOR, DEFENDANTS.
BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF MONMOUTH, PLAINTIFF,
v.
JOHN M. PILLSBURY, DEFENDANT.
Superior Court of New Jersey, Law Division.
Decided April 11, 1975.
*528 Mr. Robert V. Carton for plaintiff and defendant John M. Pillsbury (Messrs. Carton, Nary, Witt & Arvanitis, attorneys).
Mr. Robert I. Ansell for defendant and plaintiff Board of Chosen Freeholders of Monmouth County (Messrs. Anschelewitz, Barr, Ansell & Bonello, attorneys).
*529 Mr. Richard T. O'Connor, pro se (Messrs. Cerrato, O'Connor, Mehr and Saker, attorneys).
HORN, A.J.S.C.:
Cross-actions in lieu of prerogative writs were instituted by the above-named parties, John M. Pillsbury (Pillsbury) and the Board of Chosen Freeholders of Monmouth County (board). Richard T. O'Connor is named a party defendant in the action brought by Pillsbury.
Because the actions are interrelated and involve common questions of law as well as fact, they were consolidated by consent, and also by consent the venue thereof was transferred to Atlantic County.
The primary issue which emerges from a review of each of the complaints is whether a county counsel whose three-year term of office has not expired may be compelled, without more, to terminate his services simply because a majority of the members of the freeholder board assert they have no confidence in him as county attorney.
An outgrowth of the controversy is whether the board may transfer the duties and responsibilities of the office of county counsel to another without legally terminating the term of the incumbent.
Upon the return of respective orders to show cause the arguments of counsel indicated there were no substantial factual questions. For all practical purposes the return was treated as though there were cross-motions for summary judgment.
The complaints and affidavits reveal that Pillsbury's three-year term as county counsel will not expire, according to the resolution appointing him, until October 19, 1976. His appointment was made pursuant to N.J.S.A. 40A:9-43, which specifically directs that the term of office of the county counsel shall be three years.
On January 2, 1975 the board adopted two resolutions. By one, Richard T. O'Connor was appointed special counsel *530 "to serve the County of Monmouth" for a term of one year. The duties of the special counsel were defined as follows:
* * * to review and approve all contracts, deeds, instruments and documents prior to the execution thereof by or on behalf of the County, and to serve as legal advisor to the various departments of the County unless otherwise specified, and to perform such other legal services as directed by the Board of Chosen Freeholders from time to time.
The second resolution requested county counsel Pillsbury to report to the board in writing on or before January 20, 1975 a detailed list concerning all matters then outstanding in which the county was involved, including, but not limited to, information as to each matter. Such a report was submitted to the board on or about January 20, 1975.
On January 21, 1975 the board adopted a motion directing Pillsbury to turn over all records and files to special counsel and further requested that he submit his resignation. Pillsbury declined both requests.
On February 4, 1975 the board enacted another resolution directing Pillsbury to turn over all records, materials and files to the director of the board, in order that it could review same
* * * and assign the legal work in its discretion as it deems necessary and desirable with a view toward avoiding expensive litigation, yet providing most efficient and thorough professional legal services to the County. The Board shall assign the legal work with due regard to the status of the matter and the nature of the work to be performed.
This resolution also provided that Pillsbury "need no longer appear at the Workshop or Public meetings of this Board."
Pillsbury countered, advising the director of the board that he would not permit actions that would relieve county counsel of all legal work and thereby result in that office becoming an empty shell. Shortly thereafter these actions were instituted.
*531 Pillsbury's complaint, after recounting substantially what is stated above, asserts that Mr. O'Connor has usurped the office of county counsel, taken upon himself the privileges thereof, and since January 2, 1975 has interfered with Pillsbury's performance of his duties as county counsel.
The relief sought by Pillsbury is: (1) a judgment determining and establishing the duties of county counsel; (2) enjoining and restraining the board from interfering with or denying the exercise by him of the full and complete duties and privileges of said office, and (3) restoring to him as such all rights, duties and privileges inherent in said office.
The complaint filed in behalf of the board asserts that Pillsbury has refused to turn over the files held by him as county counsel for review by the board and that Pillsbury has failed to supply information concerning certain particular legal matters. It seeks judgment directing Pillsbury to turn over all files and records in the county in his possession for review by the board and ancillary relief.
It has been established that county counsel is an office (as distinguished from a position) and that a board of chosen freeholders is powerless to remove the occupant thereof, in the absence of cause, prior to the expiration of the statutory term for which the incumbent is appointed. Murphy v. Hudson Cty. Freeholders, 92 N.J.L. 244, 247 (E. & A. 1918). The court stated, in passing:
* * * [I]t may not be amiss to say that the resolution [of dismissal] is particularly vicious in the present case, because it is based upon the assumed power of the board of chosen freeholders to dismiss a man from office who is apparently in the possession of it for a fixed term, and that without any charges laid against him, without any opportunity afforded to him to be heard, and without any suggestion of the basis upon which the action of the board was rested.
A similar holding was made by our former Supreme Court in Gallaher v. Camden Cty., 129 N.J.L. 290 (Sup. Ct. 1942). In that case the court reviewed two resolutions *532 adopted by the board of chosen freeholders. One of the resolutions removed plaintiff from the position of county counsel and the other resolution appointed another person to that position for a fixed term. At the time of the adoption of the resolutions plaintiff (like Pillsbury in the instant case) was an incumbent of the office of county counsel for a term of three years, which had not as yet expired.
Citing Murphy v. Hudson Cty. Freeholders, supra, the court likewise held that both resolutions were without authority the first because there was no statutory authorization for removal, and the second because there was no vacancy in the office and no statutory provision authorizing the appointment of more than one person to the office.
Even before Murphy and Gallaher, implicit in the holding of State, Hoxey, pros., v. Paterson, 40 N.J.L. 186 (E. & A. 1878), was a similar holding. There the city charter authorized the board of aldermen to annually appoint certain officers, including city counsel, to hold their several offices for one year, unless sooner removed for cause upon a two-third vote. The ordinances prescribed the duties of city counsel.
The specific issue was whether the city had the right under its charter to employ and pay for legal services rendered by one other than the person who for the time being held the office of city counsel.
The court held that the corporate authorities would have the power under the charter provisions to employ associate counsel in defending suits brought against the corporation, or in which the city was interested; that the board of aldermen were the judges of the necessity of such employment in any particular case, and that the exercise of that discretion was not a question for review in a court of law.
However, the court went on to say:
* * * [T]he power of the corporation to employ associate counsel does not involve the right, on the part of the city authorities, under *533 the guise of such employment, to withdraw and take out of the hands of the city counsel any particular case or class of cases and to confide their management to others. [at 180]
* * * * * * * *
* * * If the board of aldermen, or any committee of the board, can withdraw part of the law business of the corporation from the control of the city counsel, they can, in like manner, dispose of the whole; and if they possess this power in relation to the duties of the city counsel, they have the same power in relation to the duties of every city officer. Neither the consent of the officer nor his incompetency or neglect of duty, could form any valid excuse for the action of the city authorities; while holding the office he cannot voluntarily relieve himself of the obligations to perform all of the duties; and for incompetency or unfaithfulness, the only remedy is the amotion of the officer pursuant to the provisions of the charter.
See also, Byrne v. Wildwood, 95 N.J.L. 287 (Sup. Ct. 1920).
Essentially, the board's contention is that the statute, N.J.S.A. 40A:9-43, providing for a mandatory term of office for county counsel, is incompatible with the rule-making power of the Supreme Court and is therefore unconstitutional, or at least must be subject to the rules of that court.
The asserted incompatibility arises from the fact that it is said that the statutory fixed-term requirement collides with the unique attorney-client relationship which traditionally permits the client to discharge his attorney at any time. This contention relies on DR2-110(B)(4), which provides that a lawyer shall withdraw from employment if he is discharged by his client.
The parties here do not make a point of the failure of the board to have adopted a resolution actually discharging Pillsbury. The board urges that N.J.S.A. 40A:9-43 must give way to the disciplinary rule under Winberry v. Salisbury, 5 N.J. 240 (1950). Winberry held that under the N.J. Const. (1947), Art. VI, § II, par. 3, the rule-making power of the Supreme Court is not subject to overriding legislation.
*534 It is conceded that the courts (i.e., Supreme Court) have the inherent power to decide who shall practice law and that attorneys are officers of the court, not of the State. State v. Rush, 46 N.J. 399, 410-411 (1966).
To declare an act of the Legislature to be unconstitutional is an extreme pronouncement and should not be done unless there is no possible legal accommodation between the force of the statute and the conflicting rule. Ahto v. Weaver, 39 N.J. 418 (1963); WHYY, Inc. v. Glassboro, 50 N.J. 6 (1967), rev'd o.g., 393 U.S. 117, 21 L.Ed.2d 242, 89 S.Ct. 286; Harvey v. Essex Cty. Bd. of Chosen Freeholders, 30 N.J. 381 (1959).
I find no incompatibility between N.J.S.A. 40A:9-43 and DR2-110(B)(4) in the context of an appropriate interpretation of the intent and purpose of the latter.
At first blush it seems that a public body should have the right to select its own counsel, who should serve at its pleasure. But N.J.S.A. 40A:9-43 evinces a specific legislative policy. When read in the context of the other sections of the chapter it may be inferred that the Legislature sought to guarantee an appointee at least three years in office. This may possibly be an attempt to attract better-qualified attorneys to accept the position, since they would be required to curtail their practice insofar as it may conflict with their duties as county counsel.
It may also be inferred that since county counsel may be a part of the policy-making of the county (dissenting opinion of Justices Jacobs and Schettino, Ahto v. Weaver, supra, 39 N.J. at 433) it is purposefully intended to eliminate or at least diminish political considerations, as expressly stated in N.J.S.A. 40A:9-25: "No officer or employee shall be removed from his office or position for political reasons."
Notwithstanding the vouchsafed right of clients to select other counsel, or perhaps, as put in DR2-110(B)(4), to discharge their attorneys, that rule did not indicate nor *535 can it be assumed that it contemplated a situation such as is before me.
Ordinarily private clients and their counsel confer privately, with resulting protections, such as confidential communications. In such cases, except for the contravention of laws generally, the State has no interest in the advice or the representation of the attorney. But the representation by a publicly retained attorney is on a different plane. It is true he is answerable for all the derelictions that privately retained counsel are answerable for. However, he is in addition subject to special laws affecting public officers with respect to malfeasance, misfeasance or nonfeasance.
He is also subject to the Right to Know Law, N.J.S.A. 47:1A-1 et seq., which appears to make his records open to public scrutiny unless inimical to the public interest.
As a practical matter, county counsel's advice to the members of the board relate to public business, not their private affairs. The confidential phase of the relationship is altogether different from that between a private client and his attorney.
Nor can Perella v. Jersey City Bd. of Ed., 51 N.J. 323 (1968), be accepted as a precedent for the board's contention on this point. The court in that case held only that under the Civil Service laws the Veterans' Tenure Act did not apply to the chief administrative counsel and the assistant counsel to the Board of Education of Jersey City. The court merely construed the applicable statutes. No statute similar to N.J.S.A. 40A:9-43 was involved in that case. The court's remarks[1] as to the relationship between counsel and boards of education, though to some *536 degree applicable to the instant case, were never intended to constitute a declaration repugnant to the statutory mandate by which Pillsbury was appointed.
Accordingly, I must reject the board's position, urging that it has the right to remove Pillsbury on the thesis that the statute authorizing his appointment, N.J.S.A. 40A:9-43, must fall before the superior right of a client to discharge his attorney. In denying the validity of the board's position, I observe that under appropriate circumstances a board of chosen freeholders is not powerless to remove its counsel.
N.J.S.A. 40A:9-25 authorizes county counsel's removal for cause if written charges are preferred and a hearing is afforded.[2] No such charges have been instituted. This is understandable in the light of the statement of Board Director Gumbs, who said at the meeting of January 2, 1975: "We are not casting aspersions on the work of Mr. Pillsbury. I feel and other members of the Board feel, that we should look into our Legal Department, and we should have confidence in our County Counsel * * *."
Freeholder Kramer said: "There is no doubt Mr. Pillsbury did a good job for the previous board, and the new Board, by its resolution [requesting Pillsbury to report to the board a detailed list of outstanding legal matters] is not casting any aspersions on him."
Yet, before having received the list or even asking for it at its very first organization meeting the board was taking steps calculated to remove Pillsbury or at least to turn his office into a mere name, with nothing to do but perhaps collect his salary.
This is further indicated by (1) the appointment of assistant county counsel on January 21, 1975 to serve before the Juvenile and Domestic Relations Court and "such other assignments as the Board * * * may make from time *537 to time," at a daily rate of compensation of $200; (2) notification on January 10, 1975 to department heads to submit to O'Connor all contracts for his review and approval; (3) notification to the prosecutor on January 16, 1975 to refer legal actions to O'Connor; (4) resolution of January 21, 1975 asking Pillsbury to resign; (5) resolution of February 4, 1975 inviting Pillsbury not to appear at the workshop or public board meetings.
The board next contends that even if it may not remove Pillsbury, it has the right, by law and by necessary implication that the duties and responsibilities of the board create, to appoint special counsel and assistants, not only in whom it has confidence and trust but through whom it may revamp the legal department for improvement.
It is conceded by Pillsbury that the board has the right to appoint assistant counsel where needed to assist in carrying out the duties of county counsel. N.J.S.A. 40A:9-9; Ahto v. Weaver, supra 39 N.J. at 424.
It likewise cannot be disputed that under appropriate circumstances a board may even appoint special counsel for specific and probably extraordinary legal matters. But, as stated, this authority is circumscribed in that it may not be done as a guise to obscure the real intention to strip the duly and regularly appointed counsel of his powers and responsibilities as counsel. State, Hoxey, pros., v. Paterson, supra; Byrne v. Wildwood, supra.
Succinctly stated, the board urges that it has the authority to organize the office of county counsel in a manner which recognizes and effectuates the inherent dichotomy between traditional legal representation of continuous, standing, organized county institutions and agencies on the one hand, and creative, judgmental legal advice to the ultimate policy-making tribunal on the other hand. It states that this power must be found in the N.J. Const. (1947), Art. IV, § VII, par. 11, which mandates that the provisions of the Constitution and of any law concerning counties shall *538 be liberally construed in their favor, and also in N.J.S.A. 40:20-1, which commits the property, finances and affairs of every county to the management, control and government of its board of chosen freeholders. These provisions, and also the general power to appoint such other officers, agents and employees in addition to those specifically provided for by law (N.J.S.A. 40A:9-9), are said by the board to grant the necessary power "to organize the county administration in such a way that those tasks not expressly given to statutorily mandated officers or those tasks which cannot be adequately or appropriately performed by them can nonetheless be met by the county government."
The fact that specific duties of county counsel are not detailed by statute is said to indicate, along with the broad grant of organizational power to the board, that it has the authority to determine the interstices of the office.
I cannot agree with this rationalization. To carry it out to its ultimate spells a conclusion that it may so define the office to its destruction. That is not an acceptable thesis in the face of the statute and other factors.[3]
Nor is the constitutional mandate for liberal construction of laws in favor of counties a license to extend the scope of a statute beyond that expressly provided or reasonably to be implied, but it calls for broad interpretation to advance the Legislature's declared policy within prescribed limits. Fedi v. Ryan, 118 N.J.L. 516 (Sup. Ct. 1937). That mandate does not connote an extension of the boundaries delineated by the statutory phraseology as commonly used, Grogan v. DeSapio, 11 N.J. 308 (1953), and it does not warrant illegal actions on the part of a *539 municipality. Id. See also, Union Co. Bd. of Freeholders v. Union Cty. Park Comm'n, 41 N.J. 333 (1964).
The board urges the court to realistically appraise the situation in the light of the breadth of the statutes granting power to the board to govern and the constitutional mandate to construe laws favorably for the county, as well as the fact that the Legislature has failed to specifically define the duties of county counsel. Thus, it says that an overlapping of elections and terms of offices has left political adversaries in the unhappy position of conflict in a relationship which requires the utmost in trust and confidence. It cites the friction prevailing between the board and Pillsbury as hampering the board in performing its responsibilities.
This argument overlooks several facts. First, a fair reading of N.J.S.A. 40A:9-43 in its context with the other sections of Title 40A, chapter 9 of the Revised Statutes evidences the intention of the Legislature that county counsel's term should continue notwithstanding political changes. As already observed, the law expressly forbids removal of county officers for political reasons. N.J.S.A. 40A:9-25. Second, if the sole basis of removal or rendering the office of county counsel a sterile one is alleged mistrust, it can reasonably be anticipated that every time there is a change in the political complexion of the board there will be a mistrust, with consequent removal of county counsel or the stripping of his prerogatives. Third, the actions of the board from their inception, without any disclosed factual basis and even with acknowledgment of the competency of Pillsbury, were calculated to unseat him. This naturally produced a defensive reaction on his part. It may be assumed that when the present controversy terminates and the parties are aware of their legal positions they will relax their respective antagonistic stances, the frictions will disappear and they will all proceed with their respective obligations to further the interests of the public.
*540 The board's avowed purpose, as stated above, is to organize the legal department in a manner which recognizes and effectuates the inherent dichotomy between traditional legal representation of continuous, standing, organized county institutions and agencies on the one hand, and creative, judgmental legal advice to the ultimate policy-making tribunal on the other. This avowed purpose does not require the removal of present counsel. The suggestion was not even broached to him, apparently. The board, as an artisan, has attempted to use a hammer where the appropriate tool should have been one less forceful and which would be less likely to inflict damage on the subject matter.
There is nothing before me to indicate that an attempt to amicably effectuate the board's plan would not have succeeded. The board has suggested a method of diversion of the legal duties among the county counsel's legal staff. Briefly, it consists of separating the everyday work of reviewing contracts, advising department heads and appearing in court in various county matters, from the other work of meeting with the board and advising on judgment matters. Actually, the plan is nothing more than an attempt to dislodge Pillsbury from his duty to advise the board.[4]
Unlike some instances where the duties of municipal counsel have been defined in whole or in part (State, Hoxsey, pros., v. Paterson, supra; Byrne v. Wildwood, supra; Evanko v. Duff, 63 N.J. Super. 548, 556 (Law Div. 1960)), the duties of county counsel are not defined.[5]
N.J.S.A. 40A:9-43 also authorizes the appointment of and fixes the term of county engineers. Their duties likewise are not prescribed specifically. Cf. also, N.J.S.A. *541 40A:9-139, municipal attorneys, and N.J.S.A. 40A:9-140, municipal engineers, whose duties likewise are undefined. On the other hand, the duties of county treasurer, N.J.S.A. 40A:9-27; county comptroller, N.J.S.A. 40A:9-28; county auditor, N.J.S.A. 40A:9-28; county purchasing agent, N.J.S.A. 40A:9-30; general storekeeper, N.J.S.A. 40A:9-31; county supervisor, N.J.S.A. 40A:9-38; county administrator, N.J.S.A. 40A:9-42, as well as morgue keepers, N.J.S.A. 40A:9-52, are described.
The lack of statutory description of counsel's duties is understandable. Traditionally such duties have been defined in the phrase "practice of law." This consists generally of conducting litigation in courts, and the rendition of legal service to another or legal advice as to his rights and obligations under the law calling for a degree of legal knowledge or skill, usually for a fee including the pursuit, as advocate for another, of a legal remedy within the jurisdiction of a quasi-judicial tribunal. N.J. State Bar Ass'n v. Northern N.J. Mtg. Associates, 32 N.J. 430 (1960); Tumulty v. Rosenblum, 134 N.J.L. 514 (Sup. Ct. 1946).
Thus, N.J.S.A. 2A:170-78 and 79 provide simply that any person not licensed as an attorney and who engages in the practice of law is a disorderly person. Businesses and practices excepted are stated in N.J.S.A. 2A:170-81.
I view the failure of the Legislature to define county counsel's duties to be the result of its knowledge that the practice of law is already fairly well determined. I am obliged to hold that his duties are coincident with representing the county and advising in all matters which only a licensed attorney may do.
As county counsel the incumbent is the law officer of the county, with the power, duty and responsibility of managing all legal matters for the county. As already stated, he does not represent the members of the board individually, *542 but only collectively when acting as a board. See Evanko v. Duff, supra.
The assistant counsel, as related, may be appointed by the board or, if authorized by the board, may be appointed by county counsel. N.J.S.A. 40A:9-9. But no matter who appoints, such assistants are subject to the supervision and direction of the law department head the county counsel. Ahto v. Weaver, supra 39 N.J. at 430.
Even if the board had the power to "legislate" the office of county counsel, as contended by it, to the extent of defining its duties, it may not then usurp the function of counsel to supervise and direct assistants with respect to the matters to be entrusted to them, respectively.
But such definition does encroach upon the statutorily assigned duties of Pillsbury. He is the head of the county law department, so that question arises as to whether such direction contained in the resolution appointing O'Connor and later directives to department heads are valid. I do not believe that they are, since said resolution and later directives appear to be clear attempts to remove from the supervision of county counsel those duties assigned to O'Connor, none of which is justified under the theses enunciated in State, Hoxsey, pros. v. Paterson, supra; Byrne v. Wildwood, supra, or in Osborne v. Murphy, 119 N.J.L. 65 (Sup. Ct. 1937).
Certainly the board has some control over county counsel. It must have, since it is responsible for the overall county government. County counsel is responsible to the board to see to it that if given the necessary help his office properly performs its functions. As stated, county counsel, as a public officer, is subject to prosecution for malfeasance, misfeasance or nonfeasance.
Consequently, the board has a right to review the legal files for that purpose in a reasonable fashion, but not for an unlawful purpose, such as depriving county counsel of same or assigning specific duties or files to its appointed *543 assistants, such as was attempted in the appointment of assistant county counsel at $200 a day, "to serve before the Juvenile and Domestic Relations Court * * * and such other assignments as the Board * * * may make from time to time."
It causes one to wonder what expertise the board enjoys to determine that this assistant was more qualified, more knowledgeable and more experienced to serve in this particular assignment than county counsel.
NOTES
[1] The court said, inter alia, that a member of the bar as counsel to a public body has a position of trust and confidence born in the confidence the public body, rarely of permanent status, has in the ability, honestly and personality to the individual selected. Also the relationship is simply that of attorney and client, basic to which, from time immemorial, has been the desirability of personal selection of the attorney by the client.
[2] See quotation from Murphy v. Hudson County Freeholders, supra.
[3] This theme was expressed in State, Hoxsey, pros., supra, 40 N.J.L. at p. 190, when the court said: "If the board * * *, can withdraw part of the law business of the corporation from the control of city counsel, they can, in like manner, dispose of the whole; and if they possess this power in relation to the duties of the city counsel, they have the same power in relation to the duties of every city officer."
[4] Possibly it could have been accomplished by requesting a specific assistant for this purpose.
[5] A statute relating to admissions of certain persons to public institutions, but which is confined only to that, provides: "County counsel includes the chief legal officer or advisor of the board of chosen freeholders * * *." N.J.S.A. 30:4-23. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/880732/ | 797 P.2d 183 (1990)
STATE of Montana, Plaintiff and Respondent,
v.
William Jack HALL, Defendant and Appellant.
No. 89-331.
Supreme Court of Montana.
Submitted May 10, 1990.
Decided August 20, 1990.
*184 Daniel A. Boucher, Altman & Boucher, Havre, for defendant and appellant.
Marc Racicot, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, David G. Rice, Hill County Atty., Patricia Jensen, Deputy County Atty., Havre, for plaintiff and respondent.
SHEEHY, Justice.
A jury in the Twelfth Judicial District, Hill County, found defendant William Jack Hall guilty of sexual assault. He now appeals his conviction. We affirm.
The defendant raises four issues on appeal:
1. Whether the District Court erred in denying defendant's motion to dismiss for lack of a speedy trial.
2. Whether the District Court properly admitted defendant's statement concerning his acts at the scene of the crime.
3. Whether the District Court properly refused defendant's proposed jury instruction concerning eyewitness identification.
4. Whether the District Court improperly allowed expert testimony.
On July 21, 1988, six-year-old D.B. went to Havre-Hill County Public library with her mother and two brothers. After walking downstairs with the children to the children's section so that D.B. and her brothers could choose some books to check out for themselves, D.B.'s mother went upstairs to attend a meeting.
While D.B. was looking at books in the children's section, defendant approached D.B. and asked her to follow him into a periodical storage room. While inside the room, Hall had D.B. sit down on a chair. *185 Hall then showed his penis to D.B. and touched D.B.'s leg with his penis. Hall asked D.B. to pull down her pants, but she refused. Defendant than reached his hand up inside D.B.'s shorts and touched her vagina and buttocks.
That evening D.B. told her mother about the incident in the library. D.B.'s mother reported the incident to officer Ross Magnuson of the Havre Police Department the following day. Magnuson examined the periodical room and found three hairs and a dried substance on the floor.
On July 30, 1988, Magnuson interviewed Hall. Hall initially stated that he had not been in the library for quite a while. When Magnuson informed Hall of the hair evidence found at the scene and that the police had obtained a search warrant to collect samples of his hair to compare with the evidence at the scene, Hall changed his story. He explained that he had been in the library the day before the incident, had gone into the same periodical storage room, and became aroused by a picture he had found in a magazine. Hall stated that he then masturbated in the storage room. Subsequent analysis by both the F.B.I. and Hall's expert determined, however, that hairs found in the periodical storage room could not match Hall's hair sample.
On August 1, 1988, the State charged Hall, by complaint, with felony sexual assault. Section 45-5-502(1), MCA. The Justice of the Peace initially set bail at $7,500. After receiving leave to file an information, on August 19, 1988, the State filed an information alleging Hall sexually assaulted D.B. On August 26, 1988, Hall was arraigned in District Court, at which time the court reduced his bail to $4,000. Hall was unable to post bail and remained incarcerated.
Subsequent to Hall's arraignment, the District Court set the trial for October 26, 1988. On October 6, 1988, the State moved to continue the trial date because the results of the trace evidence had not yet been received and Hall's expert would have insufficient time to examine the evidence. The court granted the State's motion. Later, the District Court reset the trial for December 12, 1988. Next on December 8, 1988, the parties entered a stipulation to continue the December 12, 1988 trial date. The stipulation was based on two grounds: 1) Hall's expert had recently suffered serious heart ailments and was temporarily unavailable and 2) the State had recently endorsed an expert witness for which there had not been any opportunity for exchange of discovery. Once again, on January 5, 1989, the District Court rescheduled the trial for February 22, 1989.
On January 26, 1989, Hall filed a motion in limine with the District Court requesting prohibition of the use of statements by Hall to officer Magnuson. The District Court granted Hall's motion, and ordered that the State could introduce evidence of defendant's presence in the library but not of defendant's acts as admitted in his statement. The District Court reasoned that evidence of those acts had little probative value, and were inflammatory and prejudicial.
Next, on February 16, 1989, Hall filed a motion to dismiss, based upon a failure to provide a speedy trial. The District Court denied Hall's motion.
The trial commenced on February 22, 1989. At trial D.B. and her brother J.B., age nine, identified Hall as the offender. Hall chose not to testify at trial. On February 25, 1989, a Hill County jury found Hall guilty as charged. Hall now appeals his conviction.
I.
Whether the District Court erred in denying defendant's motion to dismiss for lack of a speedy trial.
The right of any defendant to a speedy trial is guaranteed by the federal and Montana Constitutions. U.S. Const., Amend. VI; Art. II, § 24, Mont. Const.; State v. Fife (Mont. 1981), 632 P.2d 712, 714.
The United States Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117, established a four-pronged balancing test to determine speedy trial claims. In Montana, when a speedy trial issue is presented *186 to the District Court, the court must resolve the issue by applying the balancing test of Barker. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64. The four factors to be evaluated and balanced are:
1) length of delay;
2) reason for delay;
3) assertion of the right by defendant; and
4) prejudice to the defendant.
Barker, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L.Ed.2d at 117; Briceno, 568 P.2d at 164.
In speedy trial analysis, the length of delay acts a "triggering" mechanism and the other above enunciated factors need not be examined unless presumptive prejudicial delay is present. State v. Wombolt (1988), 231 Mont. 400, 402, 753 P.2d 330, 331; State v. Armstrong (1980), 189 Mont. 407, 424, 616 P.2d 341, 351; State v. Harvey (1979), 184 Mont. 423, 433, 603 P.2d 661, 667. If the court finds the delay to be presumptively prejudicial, the State has the burden of rebutting the presumption by providing a reasonable explanation for the delay and showing that the defendant was not prejudiced. Wombolt, 753 P.2d at 331; State v. Curtis (Mont. 1990), 787 P.2d 306, 313, 47 St.Rep. 277, 283.
From the date of arrest on July 30, 1988, to the trial of February 22, 1989, amounts to a delay of 207 days. The State argues that we should deduct time attributable to Hall before considering whether the delay was long enough to establish a presumption. In Curtis, 787 P.2d at 313, we expressly overruled this method of calculating the length of the delay:
... The parties' briefs exhibit some confusion concerning at what point delay attributable to the defendant should be considered. Some confusion is not surprising considering the recent case law. Some cases deduct time attributable to the defendant before determining whether the delay was long enough to establish a presumption of prejudice. Other cases did not consider such delay until after the presumption of prejudice had been established and dealt with it under the second analytical element, the reason for the delay.
We believe that the second procedure is more appropriate. The length of delay is considered twice in speedy trial analysis. In the first instance, it acts merely as a trigger to determine whether further inquiry is warranted. If further inquiry is warranted, the length of the delay is again considered as an inextricable component of the second element, the reason for delay. See Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L. Ed. 2d at 117; United States v. Colombo (1st Cir.1988), 852 F.2d 19, 24.
In this case, the delay of 207 days is sufficient to raise a presumption of prejudice and require further inquiry. Fife, 632 P.2d at 714-15. (194 days). The State now has the burden of providing a reasonable explanation for the delay and to show that the defendant was not prejudiced by the delay. Curtis, 787 P.2d at 314; Wombolt, 753 P.2d at 331.
We next examine the reasons for the delay. Hall contends that the 207 days of delay should be credited against the State. We disagree with Hall's contention. The District Court set Hall's original date for October 26, 1988. On October 6, 1988, the State moved to continue the trial date because the State had not received the results of the trace evidence test. The District Court reset the trial for December 12, 1988. The State, therefore, is responsible for the delay up to December 12, 1988. Next, on December 8, 1988, the State stipulated to Hall's motion to continue the December 12, 1988 trial date. The parties' stipulation was based on two reasons:
1) Hall's expert witness suffered serious heart ailments and had been unable to complete his evaluation of the physical evidence.
2) The State had recently endorsed an expert witness for which there had not been any opportunity for exchange of discovery.
The District Court granted the motion, and vacated the December 12, 1988, trial date. Later, the District Court reset the *187 trial for February 22, 1989. While the State is responsible for the first delay of 135 days, both parties bear responsibility for the delay caused by the December 8, 1988, stipulation.
The State concedes that Hall satisfied the third element by moving to dismiss on speedy trial grounds on February 16, 1989.
The last factor relating to the right to a speedy trial is the degree of prejudice suffered by the defendant. The degree of prejudice is determined by considering the oppressiveness of the pretrial incarceration, the anxiety and concern of the defendant, and the impairment of the defense. State v. Shurtliff (1980), 187 Mont. 235, 240, 609 P.2d 303, 306.
Hall has alleged as prejudice that he was the victim of oppressive pretrial incarceration, suffered anxiety and concern, and his defense was impaired by the delay. The State's motion on October 6, 1988, vacated the original trial date of October 26, 1988. The District Court rescheduled the trial for December 12, 1988. Obviously, the State's actions resulted in extending the incarceration of Hall prior to trial. The blame for vacating the next trial date, however, falls on Hall's shoulders. The parties stipulated to a continuance of the December 12, 1988, trial date. The continuance allowed Hall's expert to recover from a serious heart ailment, and allowed both parties the opportunity for exchange of discovery. In balance, therefore, we find Hall was not the victim of oppressive pretrial incarceration by the State.
Next, nothing in the record substantiates Hall's claim of suffering from "anxiety and concern." Even if Hall had presented some evidence of anxiety, the anxiety he suffered was not uncommon. Curtis, 787 P.2d at 316. "A certain amount of anxiety and concern is inherent in being accused of a crime." Curtis, 787 P.2d at 316; State v. Waters (1987), 228 Mont. 490, 494, 743 P.2d 617, 620; State v. Chavez (1984), 213 Mont. 434, 444, 691 P.2d 1365, 1371. Nor has Hall shown any factors which show his defense was impaired. Thus, we find the defendant was not prejudiced by the delay.
Of the four factors we have considered, "[n]o single factor is determinative. Each facet of the analysis is weighed in light of the surrounding facts and circumstances." Waters, 743 P.2d at 619. Considering these four factors and the record as a whole, we find no excessive delay in bringing this case to trial. Thus, we find no violation of Hall's right to a speedy trial.
II.
Whether the District Court properly admitted defendant's statement concerning his acts at the scene of the crime.
When officer Magnuson confronted Hall with the fact that hairs had been recovered at the scene of the assault, Hall gave a statement to the officer in which he admitted going to the library the day before the assault, entering the periodical storage room, and masturbating. On January 26, 1989, Hall filed a motion in limine to prohibit the State from using the statement.
The District Court ruled that the State could introduce evidence of defendant's presence in the library but not of defendant's acts as admitted in his statement. However, the District Court noted in its order that the acts of the defendant may become relevant and admissible to rebut evidence offered by the defendant.
During the State's direct examination of officer Magnuson, the State introduced Hall's admission that he had been in the library periodical storage room the day before the assault. The officer properly avoided any mention of Hall's acts while in the room. During cross examination, however, Hall's counsel questioned officer Magnuson extensively about Hall's statement and his reasons for focusing the investigation solely on Hall. In particular, Hall's counsel challenged the officer's failure to investigate other possible suspects and gather other hair samples for comparison. Following the cross-examination the State asked the District Court to reconsider its earlier ruling and permit officer Magnuson to testify fully about his reasons for suspecting Hall, which included Hall's masturbation story. After hearing arguments from both parties, the court realized that *188 its earlier order had prevented the officer from fully answering Hall's counsel's questions concerning the investigation. The court then concluded that Hall's story was relevant to the questions raised concerning the focus of the investigation. After the court stated that it would permit redirect examination concerning the masturbation story, the court granted Hall's counsel permission to reopen his cross-examination and bring the previously excluded story to the jury's attention himself. The District Court then gave the following cautionary instruction to the jury concerning the evidence of masturbation.
... ladies and gentlemen, you are instructed that any act of masturbation that may have been admitted to by the defendant is not admitted into evidence to prove that the defendant is guilty of the offense that he is charged with. You are not to infer guilt of the present charges from such evidence. Such evidence is not admitted to prove the character of the defendant. You must not allow such evidence to prejudice you against the defendant. Such evidence is admitted solely for the purpose of explaining officer Magnuson's conduct in his investigation of this case and to aid you in any way that it may or may not bear on any issue of knowledge, identity or absence of mistake in this case ...
Now Hall contends that the District Court's ruling was improper because the evidence had no probative value and was obviously prejudicial and inflammatory, based upon Rule 402, M.R.Evid. (excluding irrelevant evidence) and Rule 403, M.R. Evid (allowing the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.)
It is well established that the District Court has latitude of discretion in passing on the admissibility of evidence. State v. Oman (1985), 218 Mont. 260, 263, 707 P.2d 1117, 1119; State v. Gray (1983), 202 Mont. 445, 449, 659 P.2d 255, 257; State v. Pendergrass (1978), 179 Mont. 106, 112, 586 P.2d 691, 694; State v. Rollins (1967), 149 Mont. 481, 484, 428 P.2d 462, 464. The District Court's determination of the admissibility of evidence is subject to review only for abuse of discretion. Oman, 707 P.2d at 1119; State v. Stokes (1981), 195 Mont. 321, 325, 637 P.2d 498, 500; State v. Medicine Bull (1968), 152 Mont. 34, 45, 445 P.2d 916, 922. Rule 402, M.R.Evid. states in pertinent part: "Evidence which is not relevant is not admissible."
Also, Rule 401, M.R.Evid., defines relevant evidence:
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Relevant evidence may include evidence bearing upon the credibility of a witness or hearsay declarant.
The Commission states this test of relevance:
The test of relevance is whether an item of evidence will have any value, as determined by logic and experience, in proving the proposition for which it is offered... .
Usually, whatever naturally and logically tends to establish a fact in issue is relevant and that which fails to qualify is not relevant. Oman, 707 P.2d at 119. Monaco v. Cecconi (1979), 180 Mont. 111, 119, 589 P.2d 156, 161. Again, the District Court has broad discretion to determine whether or not the evidence is relevant. Without a showing that the District Court has abused its discretion, this Court will not overturn the District Court's determination of relevancy. McConnel-Cherewick v. Cherewick (1983), 205 Mont. 75, 79, 666 P.2d 742, 744.
Hall's own counsel, by challenging officer Magnuson's failure to investigate other possible suspects and gather other hair samples during the investigation, made Hall's masturbation story a relevant fact. The masturbation story explained the basis for the investigating officer's focused suspicions and placed Hall at the scene of the assault. Thus, we find no evidence in the record to determine that the District *189 Court abused its discretion in determining the offered evidence was relevant.
Next, we must determine whether the above otherwise relevant evidence is to be excluded because its probative value is outweighed by the danger of unfair prejudice. Rule 403, M.R.Evid. Under Rule 403, the determination of admissibility is within the discretion of the trial judge and will not be disturbed unless there is manifest abuse of discretion. Krueger v. General Motors Corp. (Mont. 1989), 783 P.2d 1340, 1346, 46 St.Rep. 2114, 2120; Zeke's Distributing Co. v. Brown-Forman Corp. (Mont. 1989), 779 P.2d 908, 911; 46 St.Rep. 1678, 1681. Here, the probative value of the evidence substantially outweighs the danger of unfair prejudice. Introduction of Hall's statement to the police was necessary after the cross-examination to explain why the Havre police department focussed their investigation solely on Hall and no other suspects. Furthermore, the District Court properly tempered the prejudicial effect of Hall's testimony with a cautionary instruction to the jury. The District Court did not abuse its discretion in allowing this evidence.
III.
Whether the District Court properly refused defendant's proposed jury instruction concerning the eyewitness identification.
The District Court rejected Hall's proposed jury instruction no. 16 concerning eyewitness identification. Hall contends the following instruction should have been given:
One of the most important issues in this case is the identification of the defendant as the perpetrator of the crime. The State has the burden of providing identity beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of his statement. However, you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.
Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make the reliable identification later.
In appraising the identification testimony of a witness, you should consider the following:
(1) Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender?
Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had occasion to see or know the person in the past.
(2) Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.
If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care. You may also consider the length of time that lapsed between the occurrence of the crime and the next opportunity of the witness to see defendant, as a factor bearing on the reliability of the identification.
(3) You may take into account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with his identification at trial.
(4) Finally, you must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he had the capacity and opportunity *190 to make a reliable observation on the matter covered in his testimony.
I again emphasize that the burden of proof on the State extends to every element of the crime charged, and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime with which he stands charged. If, after examining the testimony, you have a reasonable doubt as to the accuracy of the identification, you must find the defendant not guilty.
Hall cites for support and drew the above proposed instruction from United States v. Telfaire (D.C. Cir.1972), 469 F.2d 552. In Telfaire, a single eyewitness was the only incriminating evidence against the defendant. In the present case, two witnesses identified Hall as the perpetrator of the assault.
Moreover, this Court in the past has not elected to adopt the Telfaire instruction on eyewitness credibility. State v. Hart (1981), 191 Mont. 375, 393-94, 625 P.2d 21, 31, cert. den. 454 U.S. 827, 102 S. Ct. 119, 70 L. Ed. 2d 102. In Hart, we rejected the Telfaire instruction for the following reasons: 1) The substance of the defendant's proposed instruction was adequately covered by other instructions; and 2) The instruction is not appropriate when there is more than a single eyewitness' unsubstantiated testimony which identifies the offender.
The same reasoning we used in Hart, applies in this case. First of all, the District Court correctly observed that the substance of the instruction was adequately covered by other instructions. The court instructed the jury concerning the credibility of witnesses (Instructions Nos 1 and 7), the State's burden of proving defendant's guilt (Instruction No. 6), the competency and credibility of child witnesses (Instruction No. 11), the effect of prior inconsistent statements on believability and weight to be given the testimony of a witness (Instruction No. 13), the elements of the crime (Instruction No. 14), and the proof required to convict defendant of sexual assault (Instruction No. 18). If the instructions, reviewed as a whole, fully and fairly present the law to the jury, the jury has been properly instructed. State v. Graves (1981), 191 Mont. 81, 93-4, 622 P.2d 203, 210-11. We determine that the jury was properly and adquately instructed on the credibility of the witnesses.
We also believe that the circumstances of this case do not mandate the allowing of Hall's proposed instruction. "Such an instruction may be proper, if not mandatory, in certain cases. The necessity of this type of instruction is especially clear when there is only a single eyewitness' unsubstantiated testimony which identifies the offender." Hart, 625 P.2d at 31. In this case before us, there is more than a single eyewitness identification of Hall. Two witnesses identified Hall as the perpetrator of the crime. Accordingly, we find no error in the District Court's refusal to give Hall's proposed Instruction No. 16.
IV.
Whether the District Court improperly allowed expert testimony.
On February 9, 1989, the State filed a pretrial memorandum in support of the admissibility of the expected testimony of Dr. Lawrence Jarvis and Dr. Janet Hossack, two clinical psychologists who had evaluated and treated D.B. On February 22, 1989, the first day of trial, Hall's counsel made a motion in limine to exclude the testimony of Drs. Jarvis and Hossack. The District Court denied Hall's motion, and allowed the testimony of the doctors.
Now, Hall argues his case was unfairly prejudiced by the admission of the psychologists' testimony concerning D.B.'s credibility. In particular, Hall complains that Dr. Hossack should not have been permitted to testify that D.B.'s account of the assault was "a consistent coherent story" or to offer an expert opinion on the ability of children to be accurate eyewitnesses. Hall also argues that Dr. Jarvis should not have been permitted to testify that he thought D.B. was telling her story "as it occurred to her" and that D.B. "could pick out that individual that offender her."
*191 In allowing the expert testimony of Drs. Hossack and Jarvis, the District Court relied upon our decisions in State v. French (1988), 233 Mont. 364, 760 P.2d 86; and State v. Geyman (1986), 224 Mont. 194, 729 P.2d 475. In Geyman, we held that expert testimony is admissible "for the purpose of helping the jury to assess the credibility of a child sexual assault victim." Geyman, 729 P.2d at 479. In French, we reaffirmed Geyman and held that the District Court did not abuse its discretion by admitting a school counselor's opinion as to whether the eight-year-old victim was telling the truth. French, 760 P.2d at 89.
Hall acknowledges our past decisions but argues that they may be distinguished from his case on the basis that in his case the identity of the offender rather than the occurrence of the offense was at issue. In support of his argument, Hall relies on our decision in State v. J.C.E. (1988), 235 Mont. 264, 270, 767 P.2d 309, 313, where we said:
The identity of the alleged perpetrator in this case is not a question requiring an expert opinion. Whether S was the victim of incest is a question that might be clarified by an expert opinion on her physical or mental state. However, whether the evidence adduced by the State establishes J.C.E. as perpetrator requires only the common logic that is indeed well within the capacity of a lay jury.
In J.C.E., the victim did not testify as to the identity of her assailant, instead, the State attempted to have their expert identify the defendant as perpetrator of the incest. This we found unacceptable. In this case, neither Dr. Hossack nor Dr. Jarvis attempted to identify Hall as the perpetrator of the sexual assault. D.B. herself, unlike the victim in J.C.E., identified Hall as her assailant. As the District Court properly noted, Hall's counsel challenged D.B.'s credibility with respect to her identification of Hall, raising questions concerning her ability to identify and the possibility of undue influence. The doctors were then allowed to testify, not to the identity of the defendant, but whether D.B. was capable of identifying her offender. The ultimate issue of identity of Hall still came from D.B.'s testimony and not the testimony of the doctors. Thus, we find the District Court did not err in admitting the expert testimony in this case.
In weighing the admissibility of expert testimony in child molestation cases, the courts face an intrinsic problem in the conflict between the evidence offered and the right of a defendant to have the jury decide the guilt or innocence of the accused. The test to be applied by district courts when faced with the problem, and by this Court when it comes here, can be found in the Montana Rules of Evidence. The doctors here are experts in their fields, trained in psychology. As experts, their testimony is admissible if it will help the jury to understand the evidence, or to determine a fact in issue. Rule 702, M.R.Evid. The fact in issue in this case was the identity of the transgressor. No party disputes that the child was assaulted by somebody. A subissue of the identity issue was the ability of a child of tender age to be accurate in identification. Expert testimony on the subissue was especially valuable here, as a matter helpful to the jury to understand the evidence, and to determine a fact in issue, that is, the identity of the transgressor. The testimony here eminently qualifies under Rule 702.
We affirm.
TURNAGE, C.J., and HARRISON, BARZ and McDONOUGH, JJ., concur. | 01-03-2023 | 06-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920455/ | 245 Pa. Super. 507 (1976)
369 A.2d 743
Rose McAVENUE, Appellant,
v.
BRYN MAWR HOSPITAL.
Superior Court of Pennsylvania.
Argued September 14, 1976.
Decided November 22, 1976.
*509 S. Regan Ginsburg, Philadelphia, with him Leonard F. Markel, Jr., Norristown, for appellant.
Ralph L. Hose, Ardmore, for appellee.
Before JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
HOFFMAN, Judge:
This is an appeal from the denial of a new trial, following a jury verdict in favor of appellee hospital.[1] Appellant contends that the lower court committed reversible error in its charge to the jury.[2] We affirm the order of the lower court.
*510 It is necessary to outline appellant's pre-existing condition in order to understand the accident in question. Appellant sustained a fracture of the left hip in May, 1965. A doctor performed an open reduction of the hip, which required the use of pins to unite the bones. In March, 1967, Dr. Hal E. Snedden performed corrective surgery on the fracture. Subsequently, in June of 1968, Dr. Snedden again operated on appellant's hip. In the second operation he removed the head of the femur because it had died and was fragmenting, causing severe pain to appellant. Appellant is an elderly woman whose activity is limited as a result of her disability, and whose bones have softened due to a lack of calcium. Thus, recovery was slow. By July of 1969, appellant was able to use a walker to move about. At that time, Dr. Snedden recommended that she begin physical therapy three times a week in order to learn to walk with a cane. The therapy consisted of abduction exercises and gait training[3] at the physical therapy room of the Bryn Mawr Hospital, Montgomery County.
Mrs. MacPherson, the chief physical therapist at Bryn Mawr Hospital, functioned as appellant's therapist. During the treatment, appellant walked through parallel bars, and practiced with a cane in gait therapy. By August 25, 1969, appellant could walk alone with the cane.
On August 25, 1969, appellant fell at the Bryn Mawr Hospital while in the therapy room. She fractured her left leg and arm. The testimony of appellant and appellee's agent on the events of that day is conflicting. Appellant arrived at Bryn Mawr Hospital for therapy. Mrs. MacPherson first instructed appellant to walk through the parallel bars several times. Appellant stated *511 that she then took several steps outside the parallel bars using her cane. Appellant also stated that at the time of the fall, Mrs. MacPherson was fifteen feet away, in the doorway of the room and was conversing with another person. Mrs. MacPherson testified that appellant only walked back and forth in the parallel bars prior to the fall, and that she was within four or five feet of appellant at the time of the fall.
Appellant called Dr. Snedden as a witness at trial as her treating physician. He testified on cross-examinaiton that in his opinion, the fracture of appellant's leg was a stress or spontaneous fracture. He stated that because of appellant's loss of calcium, her bone spontaneously fractured causing her to fall.
Appellant filed a complaint in trespass on April 15, 1970, alleging that Bryn Mawr Hospital through its agent, Mrs. MacPherson, negligently performed its duty to appellant. After a jury trial in May, 1975, a verdict was returned in favor of appellee. The court en banc of Montgomery County heard argument on appellant's motion for a new trial; it denied the motion. This appeal followed.
Appellant argues that the lower court erred in its instruction to the jury on the standard of care to be used in judging appellee's acts.[4] The objection to the charge is directed only at the following sentence: "There is no responsibility for error of judgment unless it is so gross as to be inconsistent with the duty, in this case of the physical therapist, to possess."
*512 The trial court in the instant case carefully reviewed the facts and the legal principles involved. In the charge it stated, inter alia, ". . . you have heard counsel say, have used the word negligence time and time again. What is Negligence? Negligence is the want of due care under the circumstances. Now, there is no fixed rule or duty applicable in all cases which can be established. The course of conduct which is justly regarded as resulting from the exercise of ordinary care under some circumstances would exhibit the grossest negligence under other circumstances. The opportunity for deliberation and action, the degree of danger, and many other considerations of a like nature affect the standard of care which may be reasonably required in a particular case. The general test of liability is whether the injury could be foreseen by an ordinary intelligent man as the natural and probable outcome of the act complained of. . . . Negligence is the want of due care under the circumstances. The sole test of negligence is whether the conduct of the person under scrutiny conforms to the standard of a reasonably prudent person. . . . In testing the conduct of Mrs. MacPherson, the licensed physical therapist in this case, you must resolve the question of whether she acted as a reasonably prudent person would have acted under the circumstances. If she did then she is not negligent, and her superior the hospital would not be negligent. If she did not act as a reasonably prudent person then she was negligent, and in making this determination you must decide whether Mrs. MacPherson, the physical therapist, employed such reasonable skill and diligence as is ordinarily exercised in the general locality by those engaged as physical therapists giving due regard to the advanced state of the profession at the time of the treatment in August, 1969."
In the instant case, the objectionable sentence was made in the following context: "Where a physician or a hospital exercises ordinary care and skill, that hospital is *513 not liable for the result of the mere mistake of judgment. There is no responsibility for error of judgment unless it is so gross as to be inconsistent with the degree of skill which it is the duty, in this case of the physical therapist, to possess."[5]
Initially, we note that on appeal, in evaluating a trial court's charge to the jury, it is our duty to read the instructions in their entirety in order to determine whether there was any prejudicial error. McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972); Little v. Jarvis, 219 Pa.Super. 156, 280 A.2d 617 (1971). Further, "[i]n determining whether a court's instructions to the jury are erroneous we must consider that charge as a whole, and if it is not misleading, we will not reverse, even though there be some inaccuracies or misstatements. Error cannot be predicated upon isolated excerpts if, when read with the remainder of the charge, a true and correct charge is revealed." Sherman v. Manufacturers Light and Heat Co., 389 Pa. 61, 67, 132 A.2d 255, 259 (1957); see also Black v. A.E. Troutman, 385 Pa. 138, 122 A.2d 201 (1956).
The sentence to which appellant objects does not establish gross negligence as the standard of care for the therapist. It states that when a therapist is exercising ordinary care and skill, he will not be held liable for a mere mistake in judgment. The trial court did not elaborate on the word gross or in any other way mislead the jury. In reading the charge as a whole, it is clear that the trial judge carefully articulated the appropriate standard of care in the instant case. Appellant has, unfortunately focused on an isolated portion of the charge and ignored the effect and language in its entirety. In considering *514 all of the statements by the trial court relating to appellee's standard of care, we must hold that the charge, as a whole, was certainly not prejudiciously erroneous.
Judgment affirmed.
WATKINS, President Judge, absent.
NOTES
[1] Although appellant is suing to recover for the negligence of the physical therapist, Mrs. MacPherson, she named only the Bryn Mawr Hospital as a defendant.
[2] Appellant also contends that the lower court erred in "holding" that she failed to establish that the proximate cause of the injury was the fall. This contention is devoid of merit. The case was submitted to the jury with proper instructions from the trial court on causation. The jury decided this issue and returned a verdict for appellee. The lower court did not hold as a matter of law, that appellant failed to establish proximate cause.
[3] Abduction exercises are performed to increase muscular strength in the leg and hip. Gait training is the teaching of a particular gait or rhythm to a patient to enable him to use a cane. The person first walks through parallel bars; then he walks through the bars using a cane. Finally, he walks unaided with the cane.
[4] Although appellant objects to the standard used by the trial court, she introduced no testimony on the standard of care for a physical therapist who is performing gait training and abduction therapy. The average layman is not familiar with physical therapy or the specific functions of such a specialist. In order to judge the acts of a therapist, expert testimony is required to establish the appropriate standard of care. The failure to introduce such testimony could have resulted in a compulsory nonsuit. See Baur v. Mesta Machine Co., 405 Pa. 617, 176 A.2d 684 (1961); Donaldson v. Maffucci, 397 Pa. 548, 156 A.2d 835 (1959); Hodgson v. Bigelow, 335 Pa. 497, 7 A.2d 338 (1939).
[5] This portion of the charge is a direct quotation from Hodgson v. Bigelow, 335 Pa. 497, 7 A.2d 338 (1939). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920461/ | 246 Pa. Super. 7 (1977)
369 A.2d 783
COMMONWEALTH of Pennsylvania, Appellant,
v.
Milton G. HOWE.
Superior Court of Pennsylvania.
Argued September 16, 1976.
Decided February 18, 1977.
*9 Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for appellant.
Charles A. Haddad, Reading, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
PRICE, Judge:
On May 13, 1976, the lower court issued an order against the Commonwealth suppressing a statement given by appellee to the police. The Commonwealth has appealed, as is its right. Commonwealth v. Deren, 233 Pa. Super. 373, 337 A.2d 600 (1975).
At 1:30 a.m. on February 26, 1976, Patrolman Byron C. Burns of the Spring Township Police Department responded *10 to a call from a citizen by proceeding to the Weller's Tavern parking lot in Reading, Pennsylvania. There, he met the complainant, Durrell Chappell. After a discussion with Chappell, Burns began an investigation of the parking lot and eventually discovered the appellee sitting inside one of the parked automobiles. Appellee was busily attempting to install a tape deck into the dashboard of the car.
Patrolman Burns observed in plain view, several other consumer electronic devices inside the car. Some of these items were identified by Mr. Chappell as belonging to him. Burns read appellee his rights from a card and appellee indicated his understanding of them. Appellee was then placed under arrest. At this time, Burns noticed that appellee's breath smelled of alcohol. His speech was slurred and he had to be helped to the patrol car.
Appellee's car was impounded and towed to the stationhouse. There, Burns prepared an affidavit for a search warrant and a warrant was issued. Appellee was told that his car was going to be searched and he then, for the first time, volunteered to give a statement. Before the search was conducted, Donald W. Schlegel, chief of the Spring Township Police, took appellee's statement in which appellee confessed to the theft in the Weller's Tavern parking lot and also to other previous thefts, one of which is the subject of the present prosecution.[1]
The lower court suppressed the statement for the purposes of this prosecution, relying on three grounds. First, the court held that Commonwealth v. Collins, 436 Pa. 114, 259 A.2d 160 (1969), requires that a defendant be informed of the nature of the crimes which are being investigated. At the time that appellee gave the statement, *11 he was not informed that the Beef and Beer theft was being investigated. The statement was taken in relation solely to the Weller's Tavern theft. Therefore, according to the lower court, the statement must be suppressed.
The lower court's second ground, though inartfully expressed, seems to be that the statement is "fruit of the poisonous tree." The search warrant issued for the impounded automobile was subsequently determined to be invalid. Since the items could not have been identified without a search, appellee would not have implicated himself in the present crime if he had not believed that the car would be validly searched. In fact, the statement was not signed by appellee until after the search had been made.
Finally, the lower court held that appellee's intoxication may have precluded a voluntary statement. According to the lower court's opinion, its decision was not based on any one of the above three grounds, but on the totality of the circumstances taking into account those three factors.
I
In Commonwealth v. Collins, supra, the defendant was convicted of murder. On appeal, he contended that the trial court had erred in failing to suppress his oral statement because, prior to giving the statement, he had not been informed of the crime which was being investigated. A plurality of the Supreme Court justices agreed. The Commonwealth contends that Collins has been substantially weakened by Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974), and Collins v. Brierly, 492 F.2d 735 (3d Cir. 1974). In the latter case, the Third Circuit Court of Appeals specifically disagreed that a defendant must be informed of the nature of the charges in order to make a valid waiver of his rights.
*12 Commonwealth v. Richman, supra, is the latest in a line of decisions in which the Supreme Court has interpreted its decision in Collins. Regrettably, the language in Collins could have been interpreted to place an affirmative duty on investigating officers to inform a subject of the nature of the charges against him. Subsequent cases have clearly eliminated the possibility of that interpretation.
In Commonwealth v. Cooper, 444 Pa. 122, 278 A.2d 895 (1971), the defendant gave a statement to the police admitting his role in the killing of a hotel proprietor. On appeal, he contended that the statement should have been suppressed, relying on Collins. The Supreme Court affirmed because "the defendant was aware of the crime for which he was being investigated in fact he had telephoned the police and informed them that he had shot and killed the victim." 444 Pa. at 124-25, 278 A.2d at 897.
In Commonwealth v. Jacobs, 445 Pa. 364, 284 A.2d 717 (1971), the defendant confessed guilt to charges of first degree murder and aggravated robbery. He appealed the introduction into evidence of that confession on the ground that the police had failed to inform him of the crime with which he was charged. The Supreme Court affirmed the judgment of sentence, holding that "the facts show that appellant was fully aware of the charges against him, and why he was being questioned. He did not mistakenly think he was about to be questioned concerning another offense. In such circumstances, he cannot establish that his waiver of counsel and the privilege against self-incrimination was not intelligently made." 445 Pa. at 367, 284 A.2d at 719.
In Commonwealth v. Richman, supra, the Supreme Court interpreted its decision in Collins to mean only that, "the accused in order to make a valid waiver of the right to counsel should at least know the general nature of the transaction giving rise to the charges." 458 Pa. *13 at 175, 320 A.2d at 355. Therefore, it is no longer accurate to state that a defendant must be informed of the nature of the crimes leading to the investigation in order to make a valid waiver of his rights. Clearly, all that must appear is that the defendant was aware of the nature of the charges.
Obviously, the present case can be distinguished from Collins and its progeny. In those cases, the allegation was that the defendant was not informed of the nature of the charges leading to the investigation. A confession given totally without a point of reference was the evil to be prevented. See Commonwealth v. Jacobs, supra. In this case, while perfectly aware of the crime for which he was being investigated, appellee made statements about another. Appellee knew the general nature of the transaction which was being investigated, and, therefore, the purpose of the rule, as interpreted in Richman, has not been violated.
Furthermore, there are practical reasons for refusing to broaden the Collins rule to encompass the present situation. It would be impossible for the police to comply with the rule as interpreted by appellee. In this case, the police were not even aware of the other crimes. Therefore, they could not have informed appellee of the nature of them at the time that his statement was taken.
II
The court's second ground is no more solid. It is true that appellee's statement was given with the prospect of a legal search in mind. However, at the time that the police told appellee of their intent to search, a legal search could have been made. The search was invalidated due to technical deficiencies in the warrant. To hold that appellee's prior statement is tainted because induced by the prospect of a legal search which was not legally executed is to lose all sight of the purposes behind the exclusionary rule.
*14 In order to determine whether evidence must be excluded due to illegal police activities, it must be determined "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441 (1963).
What we must determine, then, is whether the evidence in this case was obtained by exploitation of the illegal search. The word "exploitation" is important, for it implies a causal connection between the illegality and the evidence in question. Indeed, one of the major exceptions to the exclusionary rule occurs when it can be said that the connection between the illegal police conduct and the challenged evidence has "become so attenuated as to dissipate the taint." Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 268, 84 L. Ed. 307 (1939).
Therefore, we must analyze the connection in this case between the illegal search and appellee's prior statement. Appellee contends that the illegal search was one of the factors inducing him to make a statement. This characterization is not entirely accurate, however, for no search had been made when appellee confessed. Appellee was not confronted with illegally seized evidence, nor was he confronted with the fact that the police had searched his automobile. Thus, it was the prospect of a search, or appellee's anticipation of a legal search, which led him to confess.
At the time of appellee's confession, the police had done nothing illegal. It was not illegal to tell appellee that a search was to be made because the police could legally have executed such a search and the police intended legally to execute such a search. Only after appellee had given his statement did any police illegality occur. *15 Therefore, no illegality was exploited to obtain appellant's confession.[2]
III
The lower court's final ground of decision was that appellee may have been under the influence of intoxicating liquor. Both Patrolman Burns and Chief Schlegel testified that appellee was lucid at the time he gave the statement. The detail and clarity of the answers in the statement seem to reflect sobriety. On the other hand, Burns testified that appellee's speech was slurred and his mobility impaired at the time of the arrest, and the statement was given only one and one-half hours later.
The lower court judge did not specifically find that appellee's intoxication rendered him incapable of knowingly and intelligently waiving his rights. He found instead that intoxication was one of the totality of circumstances leading him to conclude that the Commonwealth had not met its burden of proving that the statement was voluntary.
Of course, we cannot substitute our view of the facts for that of the lower court, and, if the lower court had found upon sufficient evidence that the degree of intoxication was independently enough to make appellant's statement involuntary, we would affirm. However, the lower court did not do so. It regarded intoxication as one of three factors in its decision, and, as the preceding discussion demonstrates, two of those three *16 factors were erroneous. Thus, whether the suppression order was proper depends on whether appellee's intoxication, alone, was sufficient to prevent appellee from voluntarily giving a statement. This is a question of fact to be decided by the suppression court. Therefore, this case must be remanded for such a determination.
The order of the lower court is vacated and the case is remanded for consideration in light of this opinion.
NOTES
[1] The prosecution which is the subject of this appeal arises from thefts occurring in the parking lot of the Beef and Beer Restaurant in Reading. Thus, the Weller's Tavern theft, which led directly to the statement in question, is not involved in this appeal.
[2] This does not imply that a search, subsequently determined to be illegal, could never bar the admission of a prior statement. For example, if the police, knowing that they could not employ a legal search, induced a statement with the threat of an illegal search, the evidence would probably be inadmissible.
In those circumstances, however, it can be said that the primary illegality is the false threat, not the search itself. Even if the search is regarded as the primary illegality, the deceptive conduct of the police would supply the nexus allowing us to say that the evidence was obtained by exploiting the illegality. In this case, there simply was no nexus between the evidence and the illegality. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920470/ | 117 N.H. 53 (1977)
STATE OF NEW HAMPSHIRE
v.
YVES TARDIFF
No. 7513.
Supreme Court of New Hampshire.
January 31, 1977.
*54 David H. Souter, attorney general, and Edward N. Damon, assistant attorney general (Mr. Damon orally) for the state.
Kevin F. Sullivan, of Nashua, by brief and orally, for the defendant.
BOIS, J.
The defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor, second offense, RSA 262-A:62 (Supp. 1975). The defendant having agreed to findings of operation while under the influence and to the prior conviction as charged, the trial was limited to the question of whether the defendant was operating "upon any way" as required by statute.
The undisputed findings of the trial court show that the defendant operated a motor vehicle while intoxicated upon a privately owned and maintained road in a trailer park. The road in question is the main service road, and has been open to all vehicular traffic within or servicing the park for more than twenty years. The court found the evidence insufficient to warrant findings "that the road was a public highway laid out in the mode prescribed by statute; constructed on land conveyed to the Town ...; dedicated to the public use or accepted by the Town ...; used for public travel for twenty years; a way provided and maintained by public institution to which state funds are appropriated for public use; or a public *55 or private parking lot which was maintained primarily for the benefit of paying customers."
At the close of the evidence, defendant's motion to dismiss for failure to prove an essential element of the case was denied and exception noted. After conviction, defendant's motion to set aside the verdict was denied and exception noted. The District Court (Harkaway, J.) transferred all questions of law raised by these exceptions.
The question posed is whether the district court was correct in finding that the trailer park road constituted a "way."
[1] In construing the meaning of "way" as used in RSA 262-A:62 (Supp. 1975) we must refer to the statutory definition in RSA 259:1 XXXV (Supp. 1975). This definition is made applicable by RSA 259:1 (Supp. 1975) "unless a different meaning is clearly apparent from the language or context, or is otherwise inconsistent with the manifest intention of the legislature." We have previously relied upon the statutory definition of way. State v. Crockett, 116 N.H. 324, 358 A.2d 414 (1976); State v. Rosier, 105 N.H. 6, 191 A.2d 526 (1963); State v. Cardin, 102 N.H. 314, 156 A.2d 118 (1959); see State v. Gallagher, 102 N.H. 335, 156 A.2d 765 (1959). RSA 262-A:84 evidences that the legislature has a clear awareness of the general applicability of the statutory definition of way to the various provisions (including the prohibition of driving while intoxicated) which make up the "Rules of the Road." State v. Gallagher supra.
The statute defines "way" as: "[A]ny public highway, street, avenue, road, alley, park or parkway, or any private way laid out under authority of statute, and ways provided and maintained by public institutions to which state funds are appropriated for public use, or any public or private parking lot which is maintained primarily for the benefit of paying customers." RSA 259:1 XXXV (Supp. 1975). While conceding, in view of the trial court's findings, that the road in question does not amount to a "public highway" as that term is defined in RSA 230:1 (Supp. 1975), the state argues that it amounts to a "public ... road." It contends that under elementary rules of statutory construction every word of RSA 259:1 XXXV (Supp. 1975) must be given effect, and that the term "public road" cannot be equivalent to the term "public highway" nor can "highway" be construed merely as a more general and more inclusive word than "road." The state would have us hold that "public road" includes the trailer park road here.
*56 [2] We agree that, if possible, every word of a statute should be given effect. We would be prepared to hold that the legislature in reciting the various types of thoroughfares in the definition of way, intended to include all the distinctions therein enumerated (as, for example, the distinction between a road and a street.) See 1 W. Elliott, Roads and Streets §§ 1-14 (1926); 39 Am. Jur. 2d Highways, Streets and Bridges §§ 1-12 (1968). The difficulty is with the question whether or not the road in question is "public" in nature. The court found the road was privately owned and maintained, and that it had not been used for public travel for twenty years. The state relies on the finding that it has been open to all vehicular traffic within or servicing the park for more than twenty years and further that RSA 205-A:2 IV (Supp. 1975) guarantees residents access to those delivering or otherwise supplying goods or services. The question is whether these elements are sufficient to make this otherwise private road public in nature.
[3] "If [a road] is free and common to all the citizens, then... it is a public road." 1 W. Elliot, Roads and Streets § 13, at 14-15 (1926); see O'Sullivan v. Brown, 171 F.2d 199 (5th Cir. 1948); Robinson v. Faulkner, 163 Conn. 365, 306 A.2d 857 (1972); Dayton Township v. Brown, 445 S.W.2d 322 (Mo. 1969); White Mountain Co. v. Levesque, 99 N.H. 15, 104 A.2d 525 (1954). The court found the road had not been used by the public for twenty years and rights of use are limited to the residents of the park and those servicing the residents. Under these circumstances, we conclude that the road has maintained its private character.
[4] The state argues that this conclusion is not sound, inasmuch as "[c]onsiderations of public safety apply equally or more forcefully within the confines of a privately owned trailer park as on the main roads and highways...." This argument has merit but the fact is that it is for the legislature, not the courts, to determine the needs of public safety and to legislate accordingly. "The growing practice of banks, supermarkets, and amusement centers and other organizations to maintain large parking facilities for public convenience although privately owned, is an added reason why the statute should not be restricted in scope in the absence of a clear legislative intent to do so. It is as necessary to public safety that an accident occurring on private property used by a large number of individuals be reported as in the case of an accident on a public way." State v. Gallagher, 102 N.H. 335, 338, 156 *57 A.2d 765, 768 (1959). The legislature may wish to reexamine this question. We hold that under the statute as presently worded, the state has failed in its proof of an essential element of the offense.
Exception sustained.
DOUGLAS, J., did not sit; the others concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588731/ | 32 P.3d 151 (2001)
136 Idaho 257
George PORTER, Petitioner-Appellant,
v.
STATE of Idaho, Respondent.
No. 26645.
Supreme Court of Idaho, Idaho Falls, May 2001 Term.
August 14, 2001.
Rehearing Denied September 28, 2001.
*152 Andrew Parnes, Ketchum, argued for appellant.
Hon. Alan G. Lance, Attorney General; L. Lamont Anderson, Deputy Attorney General, Boise, for respondents. L. Lamont Anderson argued.
WALTERS, Justice.
NATURE OF THE CASE
This is a first degree murder case in which George Porter was accused of violently beating his former girlfriend to death. The Court is asked on appeal to review the district court's dismissal of Porter's second application for post-conviction relief. For the reasons stated below, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
George Porter was convicted of first degree murder for the death of his former girlfriend Teresa Jones. Responding to a report that Jones had not been seen for several days, police found Jones' body in the bedroom of her residence, naked and covered with a sleeping bag, on December 26, 1988. One of the officers testified that Jones had been severely beaten in the face, head, and lower body. Officers also testified that they found several clumps of human hair near the body which were of the same length and color as that of the victim. The pathologist who performed Jones' autopsy later testified that there were between three and six areas on Jones' scalp where the hair appeared to have been pulled out in large clumps.
Approximately eleven days before Porter's trial, the State disclosed that it intended to call several of Porter's former girlfriends to testify that Porter had, while beating them, also pulled out clumps of their hair. The State presented testimony of Lewis County Sheriff Don Fortney and Deputy Sheriff Randal Wadley, as well as an investigator for the Idaho Attorney General's Office, as an offer of proof regarding whether, in their experience with domestic violence crimes, they had found the act of pulling out clumps of hair unusual. After hearing this testimony, the district court, although declining to rule on its admissibility, informed Porter's counsel that he should be prepared to meet the evidence regarding Porter's prior misconduct.
During trial and over objection from Porter's counsel, the State introduced evidence that Porter had previously battered several of his girlfriends and, in the course of those beatings, pulled out clumps of their hair. The district court concluded that the evidence of Porter's hair pulling was admissible as demonstrating a particular signature or modus operandi. On January 26, 1990, the jury found Porter guilty.
On September 6, 1990, the district court granted Porter's trial counsel's motion to withdraw and appointed new counsel for purposes of litigating Porter's post-trial motions, petition for post-conviction relief, and direct appeal. On October 16, 1990, through his new counsel, Porter filed his first petition for post-conviction relief. Porter later amended his petition on April 25, 1994, and again on or about November 28, 1994. After an evidentiary hearing, the district court denied relief in March of 1995.
Porter timely filed notices of appeal, challenging his conviction, sentence, and the district court's denial of post-conviction relief. On August 27, 1997, this Court affirmed *153 Porter's conviction, sentence, and the district court's denial of post-conviction relief.[1]
After this Court issued its decision, Porter applied for a stay of execution and began habeas corpus proceedings in the U.S. District Court by filing a statement of issues regarding his habeas petition on May 11, 1998. On May 13, 1998, the federal court entered an order appointing the Capital Habeas Unit of the Federal Public Defenders of Eastern Washington to represent Porter in federal court. Porter filed a petition for writ of habeas corpus on December 11, 1998, and amended his petition on February 12, 1999.
On May 18, 1999, Porter filed his second post-conviction petition with the district court. Asserting that Porter's second post-conviction was barred by the operation of I.C. § 19-2719, the statute governing post-conviction procedures in capital cases, the State filed a motion to dismiss on October 18, 1999. In May of 2000, the district court, concluding that Porter had failed to present a prima facie case under I.C. § 19-2719, granted the State's motion. Porter appealed the district court's ruling, and the case is before this Court on the State's motion to dismiss the appeal.
DISCUSSION
A. Standard of Review
The expedited procedure for post-conviction review in capital cases is contained in I.C. § 19-2719. The statute provides a defendant with one opportunity to raise all challenges to the conviction and sentence in a petition for post-conviction relief, except in those unusual cases where it can be demonstrated that the issues were not known and reasonably could not have been known within the time frame allowed by the statute. See I.C. § 19-2719(5); Fields v. State, 135 Idaho 286, 17 P.3d 230 (2000); State v. Rhoades, 120 Idaho 795, 820 P.2d 665 (1991). A claim that reasonably could be known immediately upon the completion of the trial and can be raised in a post-conviction petition but is not raised in the first post-conviction petition is deemed waived. See Fields, 135 Idaho at 290, 17 P.3d at 234; Rhoades, 120 Idaho at 797, 820 P.2d at 667. Any successive petition for post-conviction relief not within the exception of subsection (5) of the statute shall be dismissed summarily. See I.C. § 19-2719(11).
B. Porter's Claims
1. Ineffective Assistance of Appellate Counsel
Porter first alleges in his second application for post-conviction relief that he received inadequate representation on appeal. Porter cites numerous errors that were not raised as issues on appeal and argues that his appellate counsel's ineffectiveness entitles him to post-conviction relief.[2] As a basis to dismiss these claims of *154 ineffectiveness, the district court concluded that the alleged errors had been waived pursuant to I.C. § 19-2719(5), as they were known or reasonably could have been known well before the filing of Porter's successive post-conviction petition for relief. We agree.
Claims not raised by a capital defendant within the forty-two day deadline of I.C. § 19-2719(4) are deemed waived if post-conviction relief claims were known or reasonably should have been known. See I.C. § 19-2719(5). Claims that were not known or could not have reasonably been known within forty-two days of judgment must be asserted within a reasonable time after they are known or reasonably could have been known. See Paz v. State, 123 Idaho 758, 760, 852 P.2d 1355, 1357 (1993). In Paz, the Court held that issues raised by appellate counsel were known at the time of the filing of the appellate brief and that claims asserted four years thereafter were not filed within a reasonable time. See id. More recently, in Fields v. State, the Court held that a two-and-one-half-year span from the date of the first appellate brief to the assertion of claims is an unreasonable length of time for the pursuit of post-conviction relief. See Fields, 135 Idaho at 290, 17 P.3d at 234.
Porter's initial appellate brief was filed on April 10, 1996. Porter's successive application for post-conviction relief, however, was not filed until May 18, 1999, more than three years from the time his appellate brief was filed. In addition, we note that Porter's second post-conviction petition was filed more than one year after the Federal Defenders' office was appointed to represent Porter for purposes of his federal habeas corpus petition and more than five months after Porter's habeas petition containing identical claims was filed in the U.S. District Court. We do not conclude that Fields per se bars consideration of Porter's claims because his application was filed more than two-and-one-half-years from the filing of the first appellate brief. However, following the principle in the Paz and Fields decisions that the issues raised or not raised by appellate counsel were known at the time of the filing of the first appellate brief, we hold that the three-year span from the date of Porter's first appellate brief to the assertion of his current claims is an unreasonable length of time for the pursuit of post-conviction relief.
2. Brady Claims
Porter next raises five claims regarding the State's failure to disclose "material exculpatory and impeaching evidence" by the prosecution at trial. Specifically, Porter contends that the State withheld: (1) evidence showing that Lewis County Sheriff Don Fortney and Deputy Sheriff Randal Wadley were not trained in domestic violence investigation; (2) evidence showing that Deputy Wadley "grossly overstated" his experience in investigating domestic violence incidents in Lewis County; (3) evidence showing that Sheriff Fortney "overstated the extent of his experience" investigating domestic violence incidents in Lewis County; (4) evidence showing that there were no reports to the Lewis County Sheriff's Office of "domestic violence incidents in Lewis County" in the years 1984 through 1989; and (5) evidence showing that there were 165 aggravated assaults in Lewis County from 1978 through 1990.
Porter asserts that the prosecution obtained its conviction based on the identification of Porter through his unique "signature"hair pulling during the course of a domestic battery. He contends that the trial court admitted evidence of Porter's hair pulling as a prior bad act based on the accuracy of the testimony by Sheriff Fortney and Deputy Wadley. Without their testimony, Porter argues, the evidence of his prior bad acts would not have been admissible. But for the failure of the prosecution to disclose the exculpatory information regarding the lack of training and experience of these two witnesses, Porter contends that the evidence of the prior bad acts would not have been admissible, and it therefore is "reasonably likely that [Porter] would not have been convicted of first degree murder by torture and would not have been sentenced to death." We disagree with Porter's arguments.
The due process guarantees of the Fifth and Fourteenth Amendments to the United States Constitution mandate that the prosecution disclose exculpatory evidence in *155 the government's possession to an accused person. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963); State v. Dopp, 129 Idaho 597, 605, 930 P.2d 1039, 1047 (Ct.App.1996); State v. Owens, 101 Idaho 632, 638, 619 P.2d 787, 793 (1979). The duty to disclose is irrespective of good or bad faith on the prosecution's part. See Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L.Ed.2d at 218.
The defendant's right to due process is violated where the prosecution fails to disclose exculpatory evidence that is material either to guilt or punishment. See Dopp, 129 Idaho at 606, 930 P.2d at 1048; California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413, 419-20 (1984). Evidence is material for purposes of due process analysis "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985); see also Dopp, 129 Idaho at 606, 930 P.2d at 1048. Whether evidence is material for purposes of due process analysis is a question of law, over which this Court exercises free review. See Dopp, 129 Idaho at 606, 930 P.2d at 1048.
In McKinney v. State, however, the Court noted that even if the State violated a petitioner's right to due process by withholding evidence, the petitioner was required to raise this issue, like other constitutional issues, within the time frame mandated by I.C. § 19-2719. See McKinney, 133 Idaho at 706-07, 992 P.2d at 155-56. Thus, the Court initially examines whether the information alleged by Porter to be exculpatory reasonably should have been known at the time of Porter's first post-conviction petition. We conclude that it was.
The information upon which Porter relies was readily available at the time of his trial and during the four years Porter litigated his first post-conviction relief case. For example, Porter's counsel explains in an affidavit attached to Porter's second post-conviction petition that in order to obtain the information regarding the officer's training and experience, he merely wrote a letter and personally spoke with Sheriff Fortney.
Porter also relies upon the domestic violence and aggravated assault statistics obtained from the Idaho Department of Law Enforcement. But Porter's counsel acknowledges that to obtain this information, he merely called the Department and obtained three pages of Lewis County crime statistics by facsimile the same day. Porter's argument is even less convincing considering the district court's statement that on December 22, 1989, it instructed Porter's trial counsel to be prepared to meet the testimony of the officers on the prior bad acts issue and authorized trial counsel to hire a second investigator to prepare to meet this evidence.
We also note that Porter's use of the statistical information from the Department of Law Enforcement, as well as the affidavit submitted by Porter's counsel, is somewhat misleading. The affidavit indicates that there were no "domestic violence incidents" reported in Lewis County from 1984 to 1989. As the district court observed, however, "domestic violence" did not exist as a crime in Idaho from 1984 through 1989. See I.C. § 18-918 (enacted in 1993 and defining new crimes of domestic battery and assault). This serves to explain the lack of "domestic violence incidents" reported in Lewis County during that time. In addition, the Department of Law Enforcement statistics submitted by Porter's counsel cover only "aggravated assault" to the exclusion of other crimes as simple battery, simple assault, and aggravated battery. Moreover, as the district court recognized, while the affidavit submitted by Porter's counsel states that Lewis County officer training records "do not include any training denominated as relating in any way to domestic violence," there is nothing attached to the affidavit which provides competent evidence that the officers in question did not have adequate "on the job" training or experience in domestic violence cases, as they testified to at trial.
In sum, Porter alleges that because the State did not provide him with the above information at the time of trial, it was not possible for him to have reasonably known of its existence. However, despite the fact that this information was not discovered until well *156 after the litigation over Porter's first post-conviction petition had been completed, we hold that the information regarding the officers' domestic violence experience and training, as well as the Lewis County crime statistics, could reasonably have been known to either Porter or his counsel at the time he filed his first petition for post-conviction relief.
3. Constitutional Claims
Porter also challenges the constitutionality of I.C. § 19-2719. That issue, however, was not raised in the lower court. The Court adheres to the principle that it will not consider issues that are raised for the first time on appeal. See Row v. State, 135 Idaho 573, 580, 21 P.3d 895, 902 (2001). The exception to this rule is that constitutional issues may be considered for the first time on appeal if such consideration is necessary for subsequent proceedings in the case. See id. Because it does not appear that there are any subsequent proceedings in this case, we hold that the exception does not apply and therefore decline to consider the constitutional arguments raised by Porter for the first time on appeal.
CONCLUSION
Because the claims raised by Porter were known or reasonably should have been known well prior to the filing of the second amended petition, the order of dismissal is not appealable, and we grant the state's motion to dismiss. Accordingly, the appeal is dismissed.
Chief Justice TROUT and Justices SCHROEDER, KIDWELL and EISMANN, CONCUR.
NOTES
[1] See State v. Porter, 130 Idaho 772, 948 P.2d 127 (1997), cert. denied, 523 U.S. 1126, 118 S. Ct. 1813, 140 L. Ed. 2d 951 (1998).
[2] Specifically, Porter claims that appellate counsel committed the following errors:
"(a) Failing to raise the issue that disparate resources unfairly result in the arbitrary and capricious application of the death penalty; (b) Failing to challenge the lack of constitutionally adequate notice of the intent to seek death, the aggravating factors upon which the State would rely, and the evidence upon which the State would rely in aggravation; (c) Failing to argue or ensure that the Idaho Supreme Court fulfilled its statutory responsibilities on automatic review; (d) Failing to develop, submit, and argue residual doubt as a mitigating factor sufficient to make the imposition of the death sentence unconstitutional; (e) Failing to raise on appeal that facts supporting aggravating factors had been double counted in violation of [State v. Osborn,] 102 Idaho 405, 631 P.2d 187 (1981); (f) Failing to challenge the constitutionality of the revised death penalty scheme; (g) Failing to support with argument and authority the argument that Idaho Code § 18-4003 "torture murder" statute is unconstitutionally vague and ambiguous; (h) Failing to fully and adequately brief and argue issues of proportionality, excessiveness and passion and prejudice required to be automatically considered by the Idaho Supreme Court, I.C. § 19-2827; (i) Failing to raise the issue that the trial court failed to comply with Idaho Code § 19-2523 in its consideration of Petitioner's mental illness; (j) Failing to argue a violation of the Sixth and Fourteenth Amendments to the United States Constitution by the [S]tate's calling of the defense investigator as a witness for the [S]tate; (k) [F]ailing to raise the trial court's consideration of nonstatutory aggravation in violation of I.C. § 19-2515 and due process under Hicks v. Oklahoma." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/461780/ | 779 F.2d 38
Randazzov.U.S.
85-2144
United States Court of Appeals,Second Circuit.
10/3/85
1
E.D.N.Y.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2588704/ | 32 P.3d 609 (2001)
Elsie Bernice CHAVEZ, Plaintiff-Appellee,
v.
PARKVIEW EPISCOPAL MEDICAL CENTER, Defendant-Appellant.
No. 00CA739.
Colorado Court of Appeals, Div. I.
June 21, 2001.
*610 Lee N. Sternal, P.C., Lee N. Sternal, Pueblo, CO, for Plaintiff-Appellee.
Pryor Johnson Montoya Carney & Karr, P.C., Elizabeth C. Moran, Englewood, CO, for Defendant-Appellant.
Salmon, Lampert & Clor, P.C., Brian J. Lampert, Englewood, CO, for Amicus Curiae Colorado Trial Lawyers Association.
Opinion by Chief Judge HUME.
Defendant, Parkview Episcopal Medical Center (Parkview), appeals the judgment entered on a jury verdict in favor of plaintiff, Elsie Bernice Chavez, on her negligence claim against Parkview. We affirm.
Plaintiff received an over-infusion of Demerol, a narcotic, following shoulder surgery at Parkview in 1995. The over-infusion occurred when the Demerol escaped from the syringe in a Patient Controlled Analgesia (PCA) pump, an apparatus which permits the patient to self-administer intravenous pain medication. As a result of this event, plaintiff, a licensed practical nurse, suffered mild global brain damage and is unable to continue in her occupation or in her training to become a registered nurse.
Baxter Healthcare Corporation (Baxter) manufactured both the PCA pump and the plastic tubing extension set used in the incident. Although Baxter produced several models of extension sets that incorporated anti-siphon valves, the model Parkview purchased did not possess that feature.
Plaintiff sued both Parkview and Baxter, but entered into a settlement agreement with Baxter. Parkview then designated Baxter as a nonparty at fault. Parkview also later attempted to designate the syringe manufacturer, Becton Dickinson (B-D), as a nonparty *611 at fault, but the court denied the motion as untimely and lacking merit.
At trial, plaintiff proceeded on the theories that the Parkview nurse incorrectly loaded the syringe and that Parkview negligently failed to utilize an extension set with an antisiphon valve. The jury found for plaintiff, awarding past and future noneconomic damages totaling $325,000 and past and future economic damages totaling $475,000. The jury apportioned fifty-five percent fault to Baxter and forty-five percent fault to Parkview, resulting in the judgment against Parkview for the principal amount of $360,000 plus prejudgment interest and costs.
I.
Parkview argues that the trial court erred by denying its request to designate B-D as a nonparty at fault and also by granting plaintiff's motion in limine to exclude any evidence that the over-infusion was caused by a defective syringe. We perceive no error.
Parkview concedes that evidentiary rulings are reviewed on an abuse of discretion standard and are reversible only if they are manifestly arbitrary, unreasonable, or unfair. Hock v. New York Life Ins. Co., 876 P.2d 1242 (Colo.1994).
A.
Section 13-21-111.5(3)(a), C.R.S.2000, allows evidence of nonparty fault to be considered, providing that the following requirements set forth in § 13-21-111.5(3)(b), C.R.S.2000, are met.
Negligence or fault of a nonparty may be considered if the claimant entered into a settlement agreement with the nonparty or if the defending party gives notice that a nonparty was wholly or partially at fault within ninety days following commencement of the action unless the court determines that a longer period is necessary. The notice shall be given by filing a pleading in the action designating such nonparty and setting forth such nonparty's name and last-known address, or the best identification of such nonparty which is possible under the circumstances, together with a brief statement of the basis for believing such nonparty to be at fault. Designation of a nonparty shall be subject to the provisions of section 13-17-102.
Here, the trial court determined that Parkview was untimely in attempting to designate B-D as a nonparty some seven months after the case was initiated and that it also failed to provide a brief statement describing the basis for fault. In addition, the court found that the information concerning B-D's potential fault was previously available to Parkview and that Parkview had discarded the syringe following the incident. Although Parkview argues on appeal that plaintiff's changing theory of liability justified its late designation of B-D, the trial court found that plaintiff's amended complaint did not justify the late designation, because Parkview conceded that it contained no new allegations. Given these facts, we perceive no error in the court's determination.
B.
Nonetheless, Parkview contends that, even if the trial court properly denied its motion to designate B-D as a nonparty, the court erred by refusing to admit evidence that a failure of the syringe manufactured by B-D may have caused plaintiff's over-infusion. We do not agree.
We note initially that Parkview destroyed the syringe involved in this incident without inspecting it, but did inspect the same model syringe, which had been used in a later siphoning incident involving the same nurse, and found nothing wrong with it. Further, no Parkview expert stated that syringe failure was a probable cause of the siphoning. See CRE 702; Thirsk v. Ethicon, Inc., 687 P.2d 1315 (Colo.App.1983)(medical opinion is admissible if founded on reasonable medical probability). Thus, it does not appear that there was evidence of syringe failure.
Although Parkview relies upon Thirsk v. Ethicon for the proposition that a defendant may present evidence of other possible causes of the plaintiff's injury in order to counter the plaintiff's causation evidence, that case was decided before the General Assembly enacted § 13-21-111.5(3)(a). Nor *612 does Staley v. Bridgestone/Firestone, Inc., 106 F.3d 1504 (10th Cir.1997), persuade us otherwise, because there the Tenth Circuit merely approved the trial court's discretionary ruling allowing evidence that a nondesignated nonparty was the purported sole cause of the injury.
Here, even if evidence of syringe failure existed, plaintiff also alleged that Parkview was negligent in failing to use anti-siphon tubing, and Parkview actively sought apportionment of negligence or fault among itself, Baxter, and B-D. Furthermore, the record indicates that the trial court stated that it would allow Parkview to provide evidence of a sole cause other than its own negligence. Thus, Parkview was not entirely foreclosed from presenting evidence of other causes.
In Thompson v. Colorado & Eastern Railroad Co., 852 P.2d 1328, 1330 (Colo.App. 1993), a division of this court held that
a court may not allow the finder of fact to consider the negligence or fault of a nonparty unless such issue has been properly raised by the defendant in a pleading which complies with the requirements of § 13-21-111.5(3), C.R.S.....
Following that rule, and under these circumstances, we perceive no abuse of discretion in the court's decision to exclude the evidence.
II.
Parkview also argues that the trial court erred in excluding evidence of a notice Baxter sent in January 2000 reporting siphoning incidents and directing that only anti-siphon extension sets be used with the PCA pump. Again, we perceive no reversible error.
Under CRE 407, evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct, but it may be offered for another legitimate purpose. White v. Caterpillar, Inc., 867 P.2d 100 (Colo. App.1993).
Parkview argues that the evidence was offered to counter plaintiff's contention that it should have known in 1995 that only anti-siphon sets should be used with the PCA pump. However, the trial court excluded the evidence as a subsequent remedial measure under the rule and also concluded that the notice was irrelevant as to Parkview's negligence when the incident occurred. Further, the jury heard about the contents of the notice on cross-examination of plaintiff's expert. Consequently, we perceive no reversible error resulting from the trial court's ruling in this instance.
III.
Nor do we perceive any error in the court's refusal to reduce plaintiff's noneconomic damages to $250,000, pursuant to § 13-64-302, C.R.S.2000, before apportioning damages between Parkview and Baxter.
Section 13-64-302(1), C.R.S.2000, provides a cap on damages, including noneconomic damages, recoverable against a health care professional or institution:
The total amount recoverable for all damages for a course of care for all defendants in any civil action for damages in tort brought against a health care professional... or a health care institution . . . whether past damages, future damages, or a combination of both, shall not exceed one million dollars, present value per patient, including any derivative claim by any other claimant, of which not more than two hundred fifty thousand dollars, present value per patient, including any derivative claim by any other claimant, shall be attributable to noneconomic loss or injury, as defined in section 13-21-102.5(2)(a) and (2)(b), whether past damages, future damages, or a combination of both....
The statute was enacted to contain the "increasing costs of malpractice insurance for medical care institutions and licensed medical care professionals" and to prevent the "exodus of professionals from health care practice." Section 13-64-102, C.R.S.2000.
Here, the jury awarded plaintiff past and future noneconomic damages of $325,000. Because Baxter is not a health care institution, the trial court did not reduce the amount to $250,000 prior to apportioning Parkview's forty-five percent fault at *613 $146,250, well below the statutory cap for health care institutions.
In our view, § 13-64-302 plainly limits recovery only against a health care professional or a health care institution. Because Baxter is neither of those, we conclude that the court correctly refused to reduce the noneconomic damages award to the statutory limit prior to apportioning fault. See Evans v. Colo. Permanente Med. Group, P.C., 902 P.2d 867 (Colo.App.1995) (statute applies in civil claim for medical malpractice when all defendants meet definition of health care professional), aff'd in part & rev'd in part, 926 P.2d 1218 (Colo.1996).
IV.
Lastly, we reject Parkview's contention that the trial court abused its discretion by awarding plaintiff the full amount of her costs, including costs associated with her expert.
The trial court has broad discretion in awarding costs to prevailing parties. See § 13-16-104, C.R.S.2000; Cherry Creek School District # 5 v. Voelker, 859 P.2d 805 (Colo.1993). We perceive no abuse of discretion in the trial court's award here.
The judgment is affirmed.
Judges METZGER and ROY concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621668/ | 13 So.3d 466 (2007)
H.E.K.
v.
STATE DEP'T OF HUMAN RES. AND F.W.C.
No. 2061114.
Court of Civil Appeals of Alabama.
September 17, 2007.
Decision of the Alabama Court of Civil Appeals without published opinion. Transferred to Chilton Cir. Ct. for trial de novo pursuant to Rule 28(D), Ala.R.Juv.P. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920436/ | 461 Pa. 615 (1975)
337 A.2d 573
COMMONWEALTH of Pennsylvania
v.
Ronald H. ROBSON, Appellant.
Supreme Court of Pennsylvania.
Argued December 3, 1974.
Decided May 13, 1975.
*616 *617 *618 James S. Kilpatrick, Jr., Ardmore, for appellant.
Milton O. Moss, Dist. Atty., William T. Nicholas, First Asst. Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appellate Div., Norristown, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
ROBERTS, Justice.
Appellant was convicted in a jury trial of voluntary manslaughter and sentenced to pay the costs of prosecution and to serve a term of five to ten years imprisonment. In this direct appeal,[1] he contends that (1) he *619 was placed twice in jeopardy by being retried after the declaration of a mistrial, (2) the evidence was insufficient to sustain a conviction of voluntary manslaughter, and (3) he was prejudiced by various trial errors. We affirm.
I.
The facts on which appellant's double jeopardy claim is based are these. On May 16, 1973, appellant's first trial on the charge of which he was convicted began. On May 23, before the completion of the Commonwealth's case and during a recess, the trial judge became ill and the trial was continued by the president judge until May 29 in order to ascertain whether the original judge would be able to promptly resume the trial. When informed of the need for this delay, appellant's counsel orally moved for a mistrial to avoid the danger of prejudicing the jury. Action on this motion was deferred until May 29.
At the hearing on May 29, appellant's counsel sought to withdraw the oral motion for a mistrial. The president judge, however, stated that he had granted the motion for a mistrial before reading the motion to withdraw it. He also observed that it would be several weeks before the original judge could resume his duties[2] and concluded that it would be unfair to both parties and to the jury to continue the proceedings any further. The motion to withdraw the motion for a mistrial was formally denied and a mistrial declared. Subsequently appellant was retried and convicted of voluntary manslaughter. The claim that the second trial subjected appellant to double jeopardy has been asserted at all appropriate stages of the proceedings.
*620 The Commonwealth asserts that any double jeopardy problem is obviated by the fact that the mistrial was granted in response to a motion by appellant. See Commonwealth v. Schaffer, 447 Pa. 91, 101, 288 A.2d 727, 733 (1972); Commonwealth v. Wright, 439 Pa. 198, 201, 266 A.2d 651, 653 (1970). In the circumstances of this case, however, we do not believe that it can realistically be said that the mistrial was granted at the request of appellant. The one sentence motion to withdraw the request for a mistrial was before the court when the May 29 hearing commenced. No reason was advanced for denying that motion and we attach no significance to the fact that the court acted without reading the motion first.
Our conclusion on this point is bolstered by United States ex rel. Russo v. Superior Court, 483 F.2d 7 (3rd Cir.), cert. denied, 414 U.S. 1023, 94 S. Ct. 447, 38 L. Ed. 2d 315 (1973). In that case, the defendant moved for a mistrial at the end of the first day of jury deliberations on the ground that the jury was deadlocked. This motion was denied, but a mistrial was declared after the jury had deliberated for several hours the next day, the trial court expressing the view that the jury was exhausted and that forcing it to continue deliberations risked an unjust verdict. No new motion for a mistrial was before the court, but it asserted that it was "in effect" agreeing to the motion made the previous day. The Third Circuit held that a second trial would violate the double jeopardy clause. In disposing of the contention that retrial was proper because defendant had moved for a mistrial, that court wrote:
"Appellant's assessment of his chances with the jury could easily have changed after his request for a mistrial. We see no reason to lock him into a motion once it is made."
Id. at 17.
*621 While the instant case differs from Russo in that the motion there had been denied, we think that appellant adequately informed the court of his change of position. Consequently, we conclude that the mistrial was not declared at the request of appellant.
Appellant then argues that it was improper for the court to declare a mistrial sua sponte, relying on Commonwealth v. Lauria, 450 Pa. 72, 297 A.2d 906 (1972). However, in Lauria, no opinion commanded a majority of the Court. Moreover, it has been superseded by Commonwealth v. Stewart, 456 Pa. 457, 317 A.2d 616 (1974). While there was some disagreement in Stewart regarding the effect of Pa.R.Crim.P. 1118(b), 19 P.S. Appendix[3] upon the power of a trial court to declare a mistrial because of events prejudicial to the defendant, the result in this case is the same under any of the views expressed in Stewart. The mistrial here resulted, not from an event prejudicial to the defendant, but from the practical inability of the original tribunal to complete the trial. A rule requiring a motion by the defendant for declaration of a mistrial in this type of case would entail total abandonment of the prosecution rather than merely its completion before an arguably imperfect tribunal. As the trial court in this case observed, "If a judge dies, and if the defendant has to be the one to make the motion for a mistrial, he would never come to trial."
It is well settled that a defendant may be retried after an earlier proceeding has terminated in a mistrial if there was "manifest necessity" for the mistrial. Illinois v. Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973); Gori v. United States, 367 U.S. 364, 81 *622 S.Ct. 1523, 6 L. Ed. 2d 901 (1961); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824). No rigid rule for determining what constitutes "manifest necessity" for a mistrial has been established. Rather the Supreme Court has adhered to the principle expressed by Justice Story, writing for the Court in Perez, supra, at 580, 6 L. Ed. 165:
"We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office."
While this standard fails to provide specific guidance for determining what constitutes "manifest necessity" for a mistrial, the outlines of that concept become apparent from consideration of the facts in those cases where the question has been decided. We think it clear that illness of the judge preventing continuation of the trial for a period of several weeks at the least constitutes "manifest necessity" for the declaration of a mistrial. See Illinois v. Somerville, supra (discovery of a defect in the indictment depriving the trial court of jurisdiction *623 constitutes "manifest necessity"); Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834, 93 L. Ed. 974 (1949) (tactical requirements of army in the field constitute "manifest necessity" for discharge of court martial); Logan v. United States, 144 U.S. 263, 12 S. Ct. 617, 36 L. Ed. 429 (1892) (inability of jury to agree after 40 hours of deliberation constitutes "manifest necessity"); United States ex rel. Gibson v. Ziegle, 479 F.2d 773 (3rd Cir. 1973) (heart attack which prevents key prosecution witness from completing testimony constitutes "manifest necessity"); Commonwealth v. Davis, 266 Pa. 245, 110 A. 85 (1920) (discovery that juror is suffering from influenza which might infect other jurors and epilepsy which caused momentary lapses from consciousness without visible evidence of that condition constitutes "manifest necessity").
Because the illness of the judge rendered completion of the trial by the original tribunal effectively impossible, there was no method by which appellant's "valued right to have his trial completed by a particular tribunal," United States v. Jorn, 400 U.S. 470, 484, 91 S. Ct. 547, 557, 27 L. Ed. 2d 543 (1971) (plurality opinion) (Harlan, J.), could be reconciled with the public interest in obtaining the adjudication of guilt or innocence. It is this factor which distinguishes the present case from those where insufficient weight was assigned to the former consideration when the mistrial was declared. E.g., Jorn, supra; Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963); United States v. Kin Ping Cheung, 485 F.2d 689 (5th Cir. 1973); United States ex rel. Russo v. Superior Court, 483 F.2d 7 (3rd Cir. 1973); Commonwealth v. Schaffer, 447 Pa. 91, 288 A.2d 727 (1972); Commonwealth v. Culpepper, 221 Pa. Super. 472, 293 A.2d 122 (1972).
Appellant places primary reliance on three cases: Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973); Commonwealth v. Ferguson, 446 Pa. 24, 285 A. *624 2d 189 (1971); Commonwealth v. Brooks, 225 Pa.Super. 247, 310 A.2d 338 (1973). However, none of these cases are in point.
In Wideman, a mistrial had been declared by a visiting judge when he discovered that the trial would extend beyond the period he had been assigned to preside in that court. There we held that "a trial judge's convenience does not constitute `manifest necessity'" for a mistrial. 453 Pa. at 122, 306 A.2d at 895. Here, the mistrial resulted from the inability of the judge to preside because of serious illness, not mere personal "convenience."
In Ferguson, the mistrial was declared because one of the prosecution's witnesses had become ill. There the defense suggested that the trial proceed on those charges as to which the ill witness was not necessary or that there be a brief continuance to obtain a medical diagnosis of the witness's illness and an estimate of its probable duration. These suggestions were rejected and a mistrial declared. We held that in the absence of more definite information on the nature of the illness or any effort to protect the defendant's "valued right to have his trial completed by a particular tribunal" there was no "manifest necessity" for declaration of a mistrial. Here, in contrast, there was a medical prognosis that the original judge would be unable to resume his duties for several weeks at least. No proceedings could be conducted in his absence unless a mistrial were declared.
In Brooks, there had been two mistrials before the trial in which the defendant was convicted. One of these was declared because of illness of the prosecuting attorney and the other because the jury had been unable to agree after nine hours of deliberation. The Superior Court held that each of the mistrials had been improper. Appellant seeks to analogize the illness of the prosecuting attorney in Brooks to the facts of this case. However, the opinion of the Superior Court does not indicate the nature of that illness, if indeed this was determined *625 by the trial court. The Superior Court's reliance on Ferguson suggests that the factual pattern may have been similar. Moreover, it may have been possible for another prosecuting attorney to assume control of the Commonwealth's case and complete the trial, whereas it would not have been possible for another judge to have completed the trial in progress at the time of the mistrial. (The Superior Court's failure to elaborate on the precise factual pattern surrounding the first mistrial doubtless resulted from the obvious error in declaring the second mistrial after a relatively brief period of jury deliberation.)
We find appellant's claim that he was placed twice in jeopardy for voluntary manslaughter without merit.
II.
Appellant next contends that the evidence was insufficient to support his conviction of voluntary manslaughter. We cannot agree.
Voluntary manslaughter is the intentional, though non-malicious, killing of another person without justification or excuse. Commonwealth v. Campbell, 451 Pa. 465, 468, 304 A.2d 121, 122 (1973); Commonwealth v. Edwards, 448 Pa. 79, 83, 292 A.2d 361, 363 (1972); Commonwealth v. Conner, 445 Pa. 36, 38 n. 2, 282 A.2d 23, 24 n. 2 (1971). The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Boyd, 461 Pa. 17, 22, 334 A.2d 610, 613 (1975); Commonwealth v. Murray, 460 Pa. 605, 609, 334 A.2d 255, 257 (1975).
The decedent, Francis Carney, died of five stab wounds. Appellant admits that he inflicted these wounds but contends that he did so in self-defense.
*626 The only direct evidence of the circumstances of the killing was appellant's statement to the police, which he reaffirmed and elaborated upon at trial. According to appellant's statement he had been hitchhiking home after an evening of drinking in the early morning hours of December 9, 1972, when he was picked up by an unidentified male, who offered to have a friend drive appellant home. They proceeded to a nearby bar where appellant was introduced to the decedent, who agreed to drive him home. After they had entered the decedent's vehicle, decedent said that it would be necessary for him to stop at his house to obtain money for gas before taking appellant home. When they arrived at the decedent's house, he invited appellant in for a drink while he got the money. Appellant accepted.
After pouring appellant a drink and chatting briefly, the decedent went upstairs and, after a few minutes, called to appellant to join him. Appellant went to the second floor and found it darkened, except for a light in the bathroom. He moved toward the bedroom and, as he entered the doorway, decedent grabbed him in the groin. Appellant struck the decedent and ran downstairs, hoping to find an exit. He found none, for all of decedent's doors were equipped with burglar locks," requiring a key to open from either side.
Decedent then appeared at the top of the steps, nude and waving a pistol. (This was in fact a starter's pistol, capable only of firing blanks, but appellant claims not to have known this.) A room-to-room chase through the house then ensued. Decedent fired two (blank) shots and appellant grabbed two kitchen knives to defend himself. Appellant, at various points in the encounter, inflicted several wounds on decedent, including the five fatal stabbings three in the chest and two in the back. Appellant then escaped through a window, taking with him the gun, the knives, the glass from which he had drunk, and the keys to decedent's car.
*627 It is appellant's contention that the homicide was justified or excusable because he was acting in defense of his life, see Commonwealth v. Daniels, 451 Pa. 163, 301 A.2d 841 (1973), and to prevent the forcible perpetration of a felony, sodomy, upon his person. See Commonwealth v. Harris, 444 Pa. 515, 281 A.2d 879 (1971); Commonwealth v. Emmons, 157 Pa. 495, 43 A.2d 568 (1945).
However, as we recently said in Commonwealth v. Murray, 460 Pa. 605, 609, 334 A.2d 255, 257 (1975):
"It is the province of the trier of facts to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Smith, 457 Pa. 638, 641, 326 A.2d 60, 61 (1974); Commonwealth v. Pacquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973); Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972).
The fact-finder is free to believe all, part, or none of the evidence. Commonwealth v. Smith, supra; Commonwealth v. Roots, 452 Pa. 535, 541, 306 A.2d 873, 877 (1973); Commonwealth v. Williams, 450 Pa. 158, 162, 299 A.2d 643, 645 (1973); Commonwealth v. Oates, 448 Pa. 486, 490, 295 A.2d 337, 339 (1972)."
On the basis of these principles, a claim substantially identical to that presented by appellant was rejected in Commonwealth v. Harris, 444 Pa. 515, 519, 281 A.2d 879, 881-82 (1971).
This standard of appellate review is especially pertinent in a case such as this where other evidence tends strongly to contradict portions of appellant's account of events. Frederick Quay, the individual who introduced appellant to the decedent, testified that after he picked appellant up they performed mutual fellatio upon one another and that the agreed purpose of introducing the deceased, who was known to Quay as a homosexual, *628 to appellant was to provide appellant with a place to stay for the night rather than a ride home. Moreover, public hairs which were clearly not those of decedent and similar in all respects to those of appellant were found on the bed and on a towel in the bedroom. Further, the presence of parasitic eggs on both the hairs found in the bedroom and the hairs taken from appellant renders it quite unlikely that the hairs found in the bedroom came from another person. These facts support an inference that appellant actually did have homosexual relations with the deceased, contrary to his account. Furthermore, foreign coins were scattered on the floor of the bedroom near an open bureau drawer, suggesting that someone had rummaged through the drawers. Finally, appellant's actions subsequent to the killing in attempting to destroy or dispose of evidence could have been interpreted by the jury as evidencing consciousness of guilt.
The jury was not obligated to believe appellant's exculpatory account of the circumstances surrounding his admitted killing of Carney. The evidence was clearly sufficient to support the conviction of voluntary manslaughter.
III.
Finally, appellant alleges three errors in evidentiary matters. These concern (1) failure to suppress pubic hair samples which appellant claims were unconstitutionally seized, (2) the admission of expert testimony regarding those pubic hair samples, and (3) failure to declare a mistrial when a Commonwealth witness mentioned certain other indictments to which appellant had pleaded guilty but as to which no judgments of sentence had been imposed. We find no merit in any of these contentions.
The pubic hair samples were taken by a pathologist pursuant to a warrant issued after appellant had been taken *629 into custody. Appellant contends that there was no probable cause for the seizure of the samples. The magistrate was informed of the following facts: The decedent's nude body had been found in a pool of blood in the kitchen of his house and various quantities of blood were found in the other rooms of the house. The bed in the second floor bedroom had apparently been used and the condition of the house indicated a protracted struggle between the decedent and another person. The doors remained locked. Appellant had been arrested, pursuant to a warrant, for the homicide.[4]
On the basis of these facts, authority was sought to take samples of appellant's blood and his pubic, body, and head hair. Appellant contends that there was no basis for believing that a sample of his pubic hair would have evidentiary value. However, the fact that the doors were all locked strongly suggested that the assailant had been freely admitted by the decedent. This, coupled with the nudity of the body and the apparently used condition of the bed gave probable cause to believe that sexual activity had occurred. From the fact that appellant had been arrested for the homicide pursuant to a warrant, the magistrate could properly assume that there was probable cause to believe him the assailant.[5] Consequently, there was probable cause to believe that a sample of appellant's pubic hair would provide evidence concerning the crime. The seizure was thus entirely proper.
*630 Appellant also objects to the expert testimony regarding the identification of the hair samples. He argues that it was improper to admit expert opinion as to the origin of particular hair samples rather than having the expert testify only as to the method of comparison and the characteristics of the samples, leaving the jury to draw its own conclusions. However, the only objections presented at trial dealt with (1) the allegedly inadequate state of the art to form a basis for expert testimony and (2) the alleged impropriety of allowing the witness to testify that it was quite unlikely that the pubic hairs came from someone other than appellant rather than simply that the hairs could have come from appellant. Never did appellant suggest, as he does now, that expert testimony was improper because the jury was capable of forming its own opinion without expert testimony. Consequently, this contention is unavailable on appeal. Commonwealth v. Johnson, 457 Pa. 554, 559 n. 5, 327 A.2d 632, 635 n. 5 (1974); Commonwealth v. Agie, 449 Pa. 187, 189, 296 A.2d 741 (1972).
Appellant's last assignment of error is the trial court's failure to declare a mistrial after one of the Commonwealth's witnesses referred to an indictment against appellant as to which he had pleaded guilty but had not yet been sentenced. Because appellant had testified, the Commonwealth wished to introduce evidence of appellant's plea of guilty to an indictment for burglary in another county to impeach his credibility. It therefore called the deputy clerk of courts of that county as a witness. After establishing his name and official position, the following colloquy occurred:
"Q. What records or documents were you asked to bring with you, sir?
"A. Indictments, number 586 et cetera, December, 1969, and the defendant is Ronald Robson.
.........
"Q. What do the records indicate?"
*631 An objection was then interposed and a sidebar conference was held.
Appellant urged that evidence of conviction of other crimes is admissible for the purpose of impeachment only when there is a judgment of conviction; a plea of guilty upon which no judgment has yet been entered does not suffice. See Commonwealth v. Finkelstein, 191 Pa.Super. 328, 156 A.2d 888 (1959); Commonwealth v. Socci, 177 Pa.Super. 426, 428-29, 110 A.2d 862, 863 (1955). The trial court sustained this objection but rejected appellant's motion for a mistrial based on the testimony already heard by the jury. Appellant urges that denial of the mistrial was error.
The Commonwealth urges two alternate theories for affirmance. First, it contends that evidence of a plea of guilty should be admissible even though no judgment of sentence has yet been entered upon the plea. Second, it argues that the error, if any, was cured by the vigorous corrective measures taken by the trial court. Because we agree with the latter position, we have no occasion to consider the former.
At the end of the sidebar conference, the witness was excused and the trial court instructed the jury as follows:
". . . the jury is directed to completely disregard anything the witness John Glenn has said to you. It has no probative value, it has nothing to do with the case, and if it enters your thinking about the case you will be doing an injustice to the defendant, and it seems to me all of us want to be fair and just to the defendant as well as to the Commonwealth and so you will completely disabuse your mind of any impression you may have gotten from the witness, John Glenn."
Moreover, in its charge to the jury the court instructed:
". . . that the defendant does not have a criminal record, any part of the testimony which indicated *632 or suggests to you, to your mind that he may have a criminal record is unlawful as well as erroneous testimony and must be carefully and completely disregarded by you when you go into the question of his credibility or guilt in this case."
In light of the minimal information conveyed to the jury and the immediate and emphatic curative instructions, we do not believe that it was error to refuse a mistrial. See Commonwealth v. Senk, 412 Pa. 184, 193-94, 194 A.2d 221 (1963), vacated on other grounds, 378 U.S. 562, 84 S. Ct. 1928, 12 L. Ed. 2d 1039 (1964).
Judgment of sentence affirmed.
NIX, J., filed a concurring opinion.
NIX, Justice (concurring).
While I do not agree with the Majority that the illness of a trial judge where trial is with jury, is necessarily "manifest necessity", see, Commonwealth v. Brooks, 225 Pa.Super. 247, 310 A.2d 338 (1973), I do however, believe the result is correct in view of defense counsel's original oral motion for a mistrial.
NOTES
[1] Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, § 202(1), 17 P.S. § 211.202(1) (Supp. 1974).
[2] At the time the mistrial was declared, the medical prognosis was that the judge would be unable to resume his duties for at least two weeks and probably longer. In fact it was eight weeks before he did return to the bench and then he engaged in service less arduous than conduct of criminal jury trials for some further period.
[3] Rule 1118(b) provided:
"A motion to declare a mistrial shall be made when the prejudicial event is disclosed. In all cases only the defendant or the attorney for the defendant may move for a mistrial." (The rule was substantially amended on June 28, 1974, effective September 1, 1974.)
[4] The Commonwealth represents in its brief that the magistrate was also told of Quay's statements that the decedent was known to Quay as a homosexual and that appellant and Quay had performed mutual fellatio upon one another shortly before Quay introduced appellant to the decedent. While there was a passing reference to this at the suppression hearing, the Commonwealth's evidence at trial showed that these statements were not made until two days after issuance of the search warrant. We therefore do not consider them in evaluating probable cause.
[5] At no point in this case has appellant challenged the validity of this arrest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920450/ | 369 A.2d 1146 (1977)
COMMUNITY SCHOOL, INC.
v.
ZONING BOARD OF APPEALS OF the TOWN OF CAMDEN and Town of Camden.
Supreme Judicial Court of Maine.
February 28, 1977.
Strout, Payson, Pellicani & Cloutier by Arthur E. Strout, James W. Strong, Rockland, for plaintiff.
Paul L. Gibbons, Camden, for defendants.
Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.
WERNICK, Justice.
This is an appeal by the defendant Zoning Board of Appeals of the Town of Camden (Board) from a judgment entered in the Superior Court (Knox County) reversing a decision of the Board which had refused to grant authority, as requested, to plaintiff Community School, Inc., (Community) to engage in a use allowed as an "exception" under the Town's Zoning Ordinance.
We deny the appeal.
The facts are these.
Community operates a home and school for teenage children and, by approval of the Maine Department of Education, grants high school diplomas. For two years Community housed its activities at 20 Cross Street, Camden, in the area designated by the Zoning Ordinance as the "Residential 2" Zone. Because this use existed at the time the Zoning Ordinance was enacted, Article 1 of SECTION III "excepted [it] from the regulations in all Zones."
*1147 Early in 1975, Community decided to increase its enrollment to a maximum of eight students. To that end, it leased a house at 79 Washington Streetalso in the "Residential 2" Zoneand began renovations. As occurring after the effective date of the Zoning Ordinance, this use was subject to the regulations applicable to the "Residential 2" Zone, which, as here pertinent, were:
"The intent of the Residential 2 Zone is to encourage moderate standard residential development with one, two and three family homes and as exception certain other facilities residential in character or serving the neighborhood.
* * * * * *
"b. Uses permitted as exceptions: Multi-family dwellings; church; non-profit club; community facility; cemetery; one sign pertaining to the premises and measuring not more than 4 square feet; expansions of existing commercial establishments within present land boundaries; rooming house; nursing home; convalescent home; tourist home; hospital or clinic; funeral home; neighborhood store; community facility; school; nursery." (emphasis supplied)
"Uses permitted as exceptions" are more explicitly regulated under Article 10 of SECTION I of the Ordinance, as follows:
"An exception may be granted only if the Zoning Board of Appeals has established that the proposed modification is desirable for the development of the town and that it will not depart from the intent of the comprehensive plan and this ordinance, and that the proposed location is not undesirable for the proposed use; and that it will not abuse the character of the neighborhood, and that it will not create unreasonable demands for municipal services. The Board of Appeals may prescribe reasonable additional requirements as conditions for an exception if necessary to meet the above requirements."
On January 29, 1975 Community applied to defendant Board to have its proposed relocation at 79 Washington Street authorized as a "permitted use exception." After a public hearing on February 11, 1975, the Board denied Community's request, finding: first, the proposed use would not meet the requirements of Article 10 of SECTION I of the Ordinance (above-quoted) governing allowance of uses to be permitted as exceptions, in that: (a) the proposed relocation of Community School would be "undesirable for the development of the Town"; (b) such relocation would "depart from the intent of the comprehensive plan" of the Ordinance; (c) the Washington Street property would be "undesirable for the proposed use" and (d) the proposed relocation would "abuse the character of . . . [the] neighborhood"; second, Article 3 of SECTION III, applicable to all Zones, would be transgressed because the proposed use would be "injurious, bad and otherwise offensive to the surroundings";[1] and, third, Article 4 of SECTION III, applicable to all Zones, would be violated in that the proposed use would (a) "significantly depreciate the value of adjacent real estate";[2] and (b) violate Article 10 of SECTION III of the Ordinance, as applicable to all Zones, because it "would not be provided with adequate off-street parking."[3]
*1148 Community sought judicial review of the Board's decision by proceeding in the Superior Court in accordance with Rule 80B M.R.C.P. On June 13, 1975, the Justice presiding in the Superior Court granting in favor of Community its motion for summary judgment based on the pleadings and the transcript of the February 11, 1975 Board hearingordered entry of judgment reversing the decision of the Board and allowing Community's request for a permitted use as an exception.[4]
The rationale of the presiding Justice's decision was as follows. The Justice concluded that all of the Board's findings concerning Community's inability to meet the requirements of Article 10 of SECTION I (delineated above as "first, (a), (b), (c) and (d)") were errors of law because the asserted sources of the violationsthe ostensible "standards" of Article 10 of SECTION Iwere inadequate to fulfill constitutional mandates governing legitimate legislative delegations to administrative bodies. See: Waterville Hotel Corp. v. Board of Zoning Appeals, Me., 241 A.2d 50 (1968).
However, ruling further that this constitutional infirmity of Article 10 of SECTION I did not destroy the entire Ordinance, the presiding Justice considered the other findings of the Board based on other Articles of the Ordinancethe findings above-designated as "second", "third" and "fourth"and held them also erroneous as a matter of law, for the following reasons.
The Justice viewed Article 3 of SECTION III (the source of Board finding "second" above-designated) as prohibiting any use constituting a nuisance at common law, and concluded that Community's proposed project could not be thus characterized on the evidence adduced at the Board hearing. With regard to the Board's finding based on Article 4 of SECTION III of the Ordinance (finding "third" above-designated), concerning impermissible depreciation of neighboring real estate, the Justice ruled that the record failed to establish that the relocation of Community School "would significantly depreciate" local values. Finally, the presiding Justice found the record likewise barren of evidence to support the Board's conclusion, contained in the above-designated finding "fourth", that Community's provision for off-street parking would be inadequate under Article 10 of SECTION III of the Ordinance.
IThe Board's Findings Based on Article 10 of SECTION I of the Ordinance
The purported "standards" of Article 10 of SECTION I relied on by the Board were,
"[1] . . . desirable for the development of the town . . . [2] will not depart from the intent of the comprehensive plan and this ordinance, . . . [3] . . . not undesirable for the proposed use; and . . . [4] will not abuse the character of the neighborhood, . . . ."
The presiding Justice held all of them constitutionally defective because he deemed them inadequate as
"guidelines by which the Board can distinguish between . . . [exceptions] *1149 that are undesirable and will abuse the character of the neighborhood and those which will not."
We need not reach the constitutional issue thus posited by the presiding Justice since we conclude that the Board's findings predicated on Article 10 of SECTION I of the Ordinance were errors of law for other reasonsas delineated in Phillips Petroleum Company v. Zoning Board of Appeals of the City of Bangor, Me., 260 A.2d 434, 436 (1970).
In Phillips, the facts of which are very similar to those before us, the zoning ordinance permitted the operation of gas stations in the "Local Business Zone" as a "conditional use" upon approval by the zoning board of appeals.[5] General guidelines such as those provided by Article 10 of SECTION I of the Ordinance here governed board determinations as to such "conditional uses." As we clarified in Phillips:
". . . by permitting . . . a conditional use within the zone . . . [the ordinance embodies a] legislative determination that such . . . [uses] are not ordinarily detrimental or injurious to the neighborhood within the zone." (emphasis supplied) (p. 435 of 260 A.2d)
It is, therefore, a condition precedent to the Board's right to deny a use which has been given a generalized legislative approval that the record before the Board contain significant evidence to constitute a preliminary showing that the proposed use
". . . would possess any unique or distinctive characteristics which would serve to differentiate it . . . from any other . . . [such use] in the zone." (p. 436 of 260 A.2d)
Hence, our inquiry here becomes directed to whether the record indicates that Community possesses
"any unique or distinctive characteristics which would serve to differentiate it. . . from any other . . . [school] in the [Residential 2] zone." (p. 436 of 260 A.2d)
In its findings concerned with Article 10 of SECTION I of the Ordinance the Board merely parroted the Ordinance language, concluding that the use sought to be authorized was "undesirable for the development of the Town", would
"depart from the intent of the comprehensive plan of . . . [the] Ordinance",
was "undesirable for the proposed use", and would "abuse the character of. . . [the] neighborhood." As we made clear in Phillips, such ultimate characterizations are meaningless, where the Ordinance itself recognizes the use as generally permissible, absent a showing of "unique or distinctive characteristics" distinguishing the use which the Board would deny in the particular instance from that deemed generally permissible by the Ordinance. Here, the Board's merely conclusory findings provide no such indication, and we find no evidence in the record which could support the requisite finding of "unique or distinctive" circumstances.
Plainly, the size of the Community School (eight students maximum) is not so unmanageable as to be "unique or distinctive" especially in light of the record showing that the proposed location is within one block of a public school which serves approximately 1,000 pupils. Community's plan contemplates renovation of an existing dwelling and thus raises none of the special issues sometimes attendant upon new construction. The record does contain vague insinuations that students at *1150 the present location had misbehaved on past occasions, but no concrete evidence differentiates the discipline problems of Community School from those familiar to all schools.
We therefore hold the Board's finding as embodied in the above-designated "first" (a), (b), (c) and (d), and predicated on Article 10 of SECTION I of the Camden Zoning Ordinance, erroneous as a matter of law because unsupported by evidence.
IIThe Board's Findings Based on Articles other than Article 10
In finding "second" (above-designated) the Board asserted a violation of Article 3 of SECTION III because the Board deemed the proposed relocation "injurious, bad and otherwise offensive to the surroundings." The presiding Justice, however, reasoning that the language of the Ordinance described a common law nuisance, concluded that the evidence was insufficient to show such nuisance.
We agree with the presiding Justice. As explained in Phillips, supra, that the Ordinance permits a school as an "exception" usei. e., the "conditional use" dealt with in Phillipsconnotes an advance legislative determination that a school generally is not "injurious, bad and otherwise offensive to the surroundings" of its zone. Thus, Board finding "second" (above-designated) can be upheld only if it is supported by evidence showing "unique or distinctive characteristics" requiring that Community's particular proposed school use be denied as a nuisance. There is no such factual foundation in the record.
Relying on Article 4 of SECTION III of the Ordinance, the Board concluded in finding "third" (above-designated) that Community's requested use "would significantly depreciate the value of adjacent real estate." Underscoring the word "significantly", the presiding Justice held the record lacking in evidence proving devaluation to that extent.
We agree. Whatever the purported application of Article 4, SECTION III (applicable to all zones) to "exceptions" such as the school before us,[6] we find the evidence totally inadequate to sustain the burden of establishing "significant" depreciation. (emphasis supplied) One witness vaguely asserted that Community's project "would . . . have a negative effect on the value of existing nearby real estate." Another speculated that the proposed "exception" would "diminish the market value of properties in that area." Whether such inexplicit testimony would buttress a finding of some devaluation is questionable; that it fails to support a conclusion of significant depreciation is plain.
In its finding "fourth" (above-designated) the Board asserted that Article 10 of SECTION III of the Ordinance would be violated because Community's proposed use would lack provision for "adequate" off-street parking. Once again, the presiding Justice ruled this finding unsupported by the evidence before the Board, and we concur. Various statements at the hearing which may have led to the Board's conclusion described factors more imaginary in their impact than real. Officials for Community testified that the school owned but *1151 one vehicle, and permitted the students none. Patently, then, Community's proposed use of its Washington Street property involved no necessity for special parking arrangements since Community's parking needs would be no more, and even less, than those of other dwellings authorized as of right in the Zone.[7]
All of the Board's findings being erroneous as a matter of law, the presiding Justice acted correctly in reversing the decision of the Board and ordering summary judgment in favor of Community.
The entry is:
Appeal denied.[8]
All Justices concurring.
NOTES
[1] Article 3 of SECTION III provides:
"Uses or structures judged to be dangerous, noxious, injurious, unsightly, noisy, bad smelling, dirty, dusty, sooty or otherwise offensive to the surroundings or the community as a whole are prohibited."
[2] Article 4 of SECTION III reads:
"In no zone shall a use or structure be permitted for which it can be established that it would significantly depreciate the value of adjacent real estate."
[3] Article 10 of SECTION III states:
"Every new structure and use shall be provided with adequate off-street parking facilities. In case of extension of a use or alteration of a use, the extension or the entire alteration shall be provided with adequate parking. The Planning Board shall establish reasonable proportionate standards."
[4] Since the proceedings in the Superior Court did not occasion an evidentiary hearing, we need not reach the question of the scope of Superior Court review of zoning board action (above-described) as precipitated by the interplay of 30 M.R.S.A. § 2411(3) (F) and Lippoth v. Zoning Board of Appeals, City of South Portland, Me., 311 A.2d 552 (1973). We may note, however, as a guide to practice, that we view § 2411(3) (F), applicable in the Lippoth case but not there cited, as a legislative restatement of the interpretation given its predecessor, 30 M.R.S.A. § 4954, in Moyer v. Board of Zoning Appeals, Me., 233 A.2d 311 (1967); and Lovely v. Zoning Board of Appeals of the City of Presque Isle, Me., 259 A.2d 666 (1969). Thus, under § 2411(3) (F), which specifies that the Superior Court hearing shall be "a trial de novo without a jury", the presiding Justice is limited to review of issues litigated before the Board and the reasonableness of Board action.
[5] We view the word "exception" in the instant Ordinance as the equivalent of the word "conditional use" in the Bangor ordinance.
[6] As has heretofore been developed, we view the conferring of "permitted-use-as-an-exception" status as legislative recognition of per se compliance in general, with the guidelines of Article 10 of SECTION I and Article 3 of SECTION III. Phillips, supra. It may well be that a provision prohibiting some depreciation of neighboring land would require similar treatment, since it could be inferred from the allowance of "exceptions" that the enactors contemplated some permissible fluctuation in values. See, for example, the "conditional use" guidelines of the Cape Elizabeth ordinance before this Court in Moyer v. Board of Zoning Appeals, supra, at 315, 316. We need not reach that issue, however, since Article 4 of SECTION III prohibits significant devaluation, thus providing a more specific criterion outside the scope of the Phillips principle. Likewise, the provision of Article 10, SECTION III regarding off-street parking, as discussed below, requires Board inquiry into questions of municipal safety in any particular instance.
[7] Besides the many "permitted uses as exceptions" in the Residential 2 Zone the Camden Ordinance allows as of right, two- and three-family dwellings. Article 2(a) of SECTION IV.
[8] The parties stipulated at oral argument that neither wished to present evidence in the Superior Court additional to the transcript of the hearing before the Board of Zoning Appeals. Hence, we need not now be concerned with whether, before ordering summary judgment, the Justice presiding in the Superior Court should have allowed the parties opportunity to present additional evidence in the Superior Courtas might have been open to them under the procedures delineated in 30 M.R.S.A. § 2411(3) (F) and the clarification in Lippoth v. Zoning Board of Appeals, City of South Portland, supra. See, n. 4, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621586/ | 13 So. 3d 53 (2007)
EX PARTE RICKEY TROY BRIDGES.
No. 1060588 (CR-05-1875).
Supreme Court of Alabama.
June 15, 2007.
Decision without published opinion. Certiorari denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1299461/ | 276 S.C. 42 (1981)
274 S.E.2d 918
The STATE, Respondent,
v.
Johnny HUMPHERY, Jr., Appellant.
21390
Supreme Court of South Carolina.
February 5, 1981.
*43 Public Defender Henry Herlong, Edgefield, and Deputy Appellate Defender Vance J. Bettis, S.C. Commission of Appellate Defense, Columbia, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Kay G. Crowe and Nan L. Black, Columbia, and Sol. Donald V. Myers, Edgefield, for respondent.
February 5, 1981.
NESS, Justice:
Appellant Johnny Humphrey, Jr., was convicted of housebreaking and grand larceny. We affirm.
Appellant first asserts the trial court abused its discretion in allowing the State to reopen its case and present evidence that the value of the property taken exceeded $50.00 after he had moved for a directed verdict. We disagree.
It is within the sound discretion of the trial judge to allow the State to reopen its case and prove an essential element of the offense charged. State v. Hammond, 270 S.C. 347, 242 S.E. (2d) 411 (1978); State v. Harrison, 236 S.C. 246, 113 S.E. (2d) 783 (1960). The trial court did not abuse its discretion in allowing the State to reopen and prove value an essential element of grand larceny. See: State v. Smith, S.C. 266 S.E. (2d) 422 (1980).
Appellant next asserts the trial court erred because it inadvertently failed to charge the jury that they must find the value of the property taken was $50.00 or more. We disagree.
Appellant neither objected to the charge nor requested additional instruction. State v. Todd, 264 S.C. 136, 213 S.E. (2d) 99 (1975) is dispositive of this exception. In Todd, supra, at 139, 213 S.E. (2d) 99, we stated:
*44 "... [T]he failure of a defendant to object to the charge as made or to request additional instructions, when the opportunity to do so is afforded, constitutes a waiver of any right to complain of errors in the charge."
Moreover, Mr. Talbert (the owner) testified the value of the goods taken was approximately $500 to $600. There was no other testimony concerning value. Appellant did not cross-examine Mr. Talbert nor did he present any evidence in rebuttal concerning the value of the property. Error, if any, resulting from the trial court's failure to charge the jury on value was harmless. See 52A C.J.S., Larceny, § 147, where it is stated:
"... [W]here, in a prosecution for grand larceny, the undisputed evidence fixes the value incontestably above the amount necessary to constitute the offense charged the court is not required to instruct the jury concerning the necessity for the proof to show a value above that amount." Cited in State v. Kirk, 205 Kan. 681, 472 P. (2d) 237 (1970).
We affirm appellant's conviction of housebreaking and grand larceny.
Affirmed.
LEWIS, C.J., and GREGORY and HARWELL, JJ., concur.
LITTLEJOHN, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621779/ | 851 F. Supp. 15 (1994)
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of New Bank of New England, N.A., Plaintiff,
v.
Richard M. GREENBERG and A. Frederick Greenberg, Defendants.
Civ. A. No. 92-30045-MAP.
United States District Court, D. Massachusetts.
April 29, 1994.
*16 *17 Martine B. Reed, Barbara J. Sweeney, Alice E. Zaft, Cooley, Shrair, Alpert, Labovitz & Dambrov, Springfield, MA, for plaintiff.
Lawrence S. Berkowitz, New York City, Carolyn L. Burt, Mark W. Siegars, Kamberg, Berman, P.C., Springfield, MA, for defendants.
MEMORANDUM REGARDING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
(Docket No. 44)
PONSOR, District Judge.
I. INTRODUCTION.
Plaintiff, the Federal Deposit Insurance Corporation ("plaintiff" or "FDIC"), as receiver of New Bank of New England, N.A., ("Bank") has filed this action against defendants Richard and Frederick Greenberg ("defendants" or "Greenbergs") to recover monies due on defaulted loans. It has now moved for summary judgment. In ruling on this motion, the court must decide whether, in an action brought by the FDIC in its capacity as receiver of a bridge bank, the D'Oench Duhme doctrine precludes a borrower from asserting an affirmative defense based on an oral agreement made with the bridge bank. For the reasons set forth below, the court will hold that the D'Oench Duhme doctrine does preclude evidence of this type of agreement. The FDIC's motion for summary judgement will therefore be allowed.
II. FACTS.
The court will view the facts, as it must when ruling on a motion for summary judgment, in the light most favorable to the non-moving party, here the defendants.
On June 8, 1990, defendants entered into an agreement with the Bank of New England-West, N.A. ("BNE-West") to finance two automobile dealerships in Lawrence and Northampton, Massachusetts. At the time the Greenbergs entered into this agreement, they both executed a limited guaranty of the loans in the amount of $1,500,000. See Amended Complaint ("Complaint") at ¶¶ 4-6. *18 On June 20, 1990, defendant Richard Greenberg entered into another modification of the agreement and executed an additional limited guaranty of $292,000.
On January 6, 1991, the Comptroller of the Currency, pursuant to the provisions set forth in 12 U.S.C. §§ 191 and 1821(c), declared the BNE-West insolvent and appointed the FDIC as the receiver of the failed institution. See Plaintiff's Exhibit A. On the same day, pursuant to 12 U.S.C. § 1821(n)(1)(A), the FDIC appointed the New Bank of New England, N.A. as the so-called "bridge" bank. The nature and purpose of a bridge bank is explained below.
The bridge bank existed from January 6, 1991 until July 11, 1991, when the FDIC dissolved it pursuant to 12 U.S.C. § 1821(n)(12). The FDIC was then appointed Receiver of the bridge bank's assets and liabilities. See Plaintiff's Reply Exhibit C.
Prior to the FDIC establishing a bridge bank, the defendants defaulted on their loans. Following the establishment of the bridge bank, the Greenbergs allege they had certain conversations with the bank's officials that provide them with a defense against the FDIC's claims. Nevertheless, the FDIC has filed this action to recover the monies owed based on defendants' personal guaranties. The FDIC has rejected the Greenbergs' defenses, pointing out that the outstanding loans exceed the defendants' guaranties by over $7,000,000. Plaintiff seeks $1,798,000 plus interest, the amount of defendants' personal guaranties. Complaint at ¶ 9.
III. DISCUSSION.
The motion for summary judgment is straightforward. In essence, the FDIC claims that it is entitled to judgment as a matter of law, because it is undisputed that defendants signed personal guaranties and that these loans are now in default. See Plaintiff's Exhibit B, Interrogatories of Richard Greenberg at 5; Plaintiff's Exhibit C, Interrogatories of Frederick Greenberg at 5.
In opposition to the motion for summary judgment, defendants argue that sometime in April 1991, after the BNE was declared insolvent, the FDIC induced them to procure buyers for the automobile dealerships.[1] According to defendants, an agreement was reached with the FDIC that, if they procured buyers, the FDIC would relieve them of their personal guaranties. Defendants also claim the FDIC agreed to discharge a second mortgage on a New York apartment held by Richard Greenberg. See Affidavit of Richard Greenberg (R. Greenberg Aff.) at ¶ 2. Relying on these verbal assurances, defendants claim to have expended a substantial amount of money preserving the automobile dealerships to facilitate their sale at the highest possible price. See R. Greenberg Aff. at ¶¶ 3-5.
As evidence of this agreement, defendants point to conversations and a letter dated April 11, 1991, from Richard Greenberg to bank representative Richard Driscoll referring to an understanding that defendants' procurement of buyers for the automobile dealerships would relieve them of liability. The Greenbergs claim that after they met their end of the bargain and produced a buyer for the Lawrence dealership and several offers to purchase the Northampton dealership, the FDIC reneged on its original agreement to relieve them of their personal guaranties.
The FDIC counters that evidence of any such oral agreement is precluded by the D'Oench Duhme doctrine. The FDIC notes that the defendants' discussions and agreement, if any, were with the bridge bank, not with the FDIC itself and as such fall within the reach of D'Oench Duhme. The issue here is whether evidence of a secret agreement between the defendants and the bridge bank should be excluded under the D'Oench Duhme doctrine and its statutory counterpart, 12 U.S.C. § 1823(e).
Finally, defendants also argue that summary judgment should not be granted because the FDIC cannot establish damages with sufficient certainty.
*19 A. The D'Oench Duhme Doctrine
In D'Oench Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 457, 62 S. Ct. 676, 679, 86 L. Ed. 956 (1942), the Supreme Court recognized a "federal policy to protect [the FDIC] ... against misrepresentations as to the ... assets in the portfolios of the banks which [the FDIC] insures ..."
The D'Oench Duhme doctrine operates to bar defenses or claims against the FDIC that are based on unrecorded or "secret agreements" between the bank and the guarantors. The doctrine applies whether the FDIC is acting in its corporate capacity or as receiver, Timberland Design, Inc. v. First Serv. Bank for Sav., 932 F.2d 46, 49 (1st Cir.1991), and bars affirmative defenses and claims whether they sound in tort or contract law. In re 604 Columbus Ave. Realty Trust, 968 F.2d 1332, 1344 (1st Cir.1992).
Congress enacted the Federal Deposit Insurance Act, 12 U.S.C. §§ 1811 et seq. codifying the D'Oench Duhme doctrine in § 1823(e), which provides in part:
No agreement which tends to diminish or defeat the right, title or interest of the [FDIC] in any asset acquired by it under this section or section 1821 of this title, either as security for a loan or by purchase as a receiver of any insured depository institution shall be valid against the [FDIC] unless such agreement
(1) is in writing,
(2) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the depository institution,
(3) was approved by the board of directors of the depository institution or its loan committee ..., and
(4) has been, continuously, from the time of its execution, an official record of the depository institution.
12 U.S.C. § 1823(e).
Section 1823(e), however, does not afford carte blanche protection for the FDIC. For example, in Federal Deposit Ins. Corp. v. Blue Rock Shopping Center, Inc., 766 F.2d 744 (3d Cir.1985), the court stated that "we have found nothing to demonstrate that the section was designed to protect the FDIC against the consequences of its own conduct with respect to the asset after acquiring it ..." Id. at 753.
From a practical standpoint, the D'Oench Duhme doctrine and § 1823 enables the FDIC quickly and accurately to ascertain the failed bank's value. Bateman v. F.D.I.C., 970 F.2d 924, 928 (1st Cir.1992). The Bateman court explained
[s]ince the FDIC must try quickly to sell the "received" bank's assets and accompanying liabilities to a solvent bank (called a "bridge bank") while the FDIC itself retains (in its corporate capacity) unsalable assets and liabilities, it is important that FDIC officials, examining the insolvent bank's documents, feel they can rely, for valuation purposes, upon the bank's documents as meaning what they say. (citations omitted) An FDIC official, looking through an insolvent bank's books the day of its collapse, and coming across a paper that says, for example, "John Doe promises to pay the Bank $5 million" must know (and know quickly) whether the Bank is $5 million richer, or whether some side-agreement with Doe means that Doe has to pay the bank only $1 million, not $5 million. That is why the statute says that any such side-agreement must be (1) in writing and (2) executed by the bank and (3) approved by the bank's board of directors, and (4) have been kept continuously in the bank's records. 12 U.S.C. § 1823(e).
Id. at 928.
Congress has afforded bridge banks the same protection as the FDIC under the D'Oench Duhme doctrine. In other words, an oral or "secret" agreement between a borrower and a failed bank institution is unenforceable as a defense to an action by the bridge bank brought against the borrower unless it meets the same non-secrecy requirements mandated in § 1823. See Texas Refrigeration Supply, Inc. v. Federal Deposit Ins. Corp., 953 F.2d 975, 980 (5th Cir. 1992).
*20 B. Role of FDIC and Bridge Banks when a Federally Insured Depository Institution is Rendered Insolvent.
In an attempt to avoid the impact of the D'Oench Duhme doctrine, defendants offer two arguments. First, defendants state that the D'Oench Duhme doctrine does not apply in this situation because the oral agreement was made after BNE-West was rendered insolvent and the FDIC appointed receiver. Second, defendants suggest that D'Oench Duhme is inapposite in this situation because the FDIC was acting as the "alter ego" of the bridge bank. Therefore, defendants argue, D'Oench Duhme should not be extended to protect the FDIC for what was, in essence, the FDIC's own conduct.
In order to analyze defendants' legal theories properly, it is important to understand clearly the respective roles of the FDIC and the bridge bank during insolvency proceedings.
When a bank is rendered insolvent, the FDIC takes on a dual role, acting as receiver of the failed institution and, in its corporate capacity, as insurer of the deposited funds. As receiver, the FDIC is responsible for managing the assets and liabilities on behalf of the bank's creditors and shareholders. Generally speaking, the FDIC is faced with two options: liquidation or purchase and assumption. In Timberland Design, Inc. v. First Serv. Bank for Savings, 932 F.2d 46, 48 (1st Cir.1991), the court of appeals provided an excellent description of the FDIC's role in bank failures. The FDIC's options were described as follows:
The liquidation option is the easiest method, but carries with it two major disadvantages. First, the closing of the bank weakens confidence in the banking system. Second, there is often substantial delay in returning funds to depositors.
The preferred option when a bank fails, therefore, is the purchase and assumption option. Under this arrangement, the FDIC, in its capacity as receiver, sells the bank's healthy assets to the purchasing bank in exchange for the purchasing bank's promise to pay the failed bank's depositors. In addition, as receiver, the FDIC sells the "bad" assets to itself acting in its corporate capacity. With the money it receives, the FDIC-receiver then pays the purchasing bank enough money to make up the difference between what it must pay out to the failed bank's depositors, and what the purchasing bank was willing to pay for the good assets that it purchased. The FDIC acting in its corporate capacity then tries to collect on the bad assets to minimize the loss to the insurance fund. Generally, the purchase and assumption must be executed in great haste, often overnight.
Id. at 48 (internal citations omitted).
In the preferred purchase and assumption scenario one important goal of the FDIC is to purchase the failed institution and reopen it without interrupting regular banking operations. This is where the bridge bank fits in. A bridge bank is an institution organized by the FDIC to acquire the assets and assume the liabilities of a failed bank. See Texas Refrigeration Supply, Inc. v. Federal Deposit Ins. Corp., 953 F.2d 975, 979 n. 5 (5th Cir.1992). A bridge bank is frequently needed because it is often impossible for the FDIC to arrange immediately for a receiver of the failed institution. See Note, An FDIC Priority of Claims Over Depository Institution Shareholders, 41 Duke L.J. 329, 336 (1991). In this situation, the FDIC sets up a bridge bank to take over the failed bank temporarily while the FDIC prepares a purchase and assumption. Despite its short life, a bridge bank is a full-service national bank established on an interim basis to assume the deposits, certain liabilities, and substantially all of the assets of the failed bank. Id.
The FDIC is authorized to create bridge banks out of financial institutions that it deems to be in default or that it anticipates will be in default. Jones v. Resolution Trust Corp., 7 F.3d 1006, 1016 (11th Cir.1993).
Bridge banks are creatures of statute. A bridge bank serves as a vehicle to smooth the transition of a failed institution so that the FDIC need not immediately put an institution into receivership and pay out on insured deposits if there is a possibility *21 that a buyer for the assets may emerge. It is a temporary institution.
Id.
The bridge bank assumes the liabilities and assets of the failed institution and is terminated on the merger or consolidation of the bridge bank with another bank, the sale of the stock of the bridge bank to another bank, the passage of two years from the date of creation (with an option to renew for three successive one-year periods), or the assumption of all of the deposits and liabilities by another bank. Id. at n. 5 (citing 12 U.S.C. § 1821(n)).
1. Application of D'Oench Duhme Doctrine
Defendants offer two arguments in support of their position that the D'Oench Duhme doctrine does not apply in this situation. First, defendants contend that D'Oench Duhme applies at the moment the bank is rendered insolvent, rendering all prior oral agreements of the insolvent bank unenforceable against the bridge bank or the FDIC. It does not apply on the facts of this case because the agreement was made after the bank was declared insolvent and the FDIC was appointed receiver. This argument can be addressed rather quickly by analyzing the plain language of 12 U.S.C. § 1823(e).
The plain language of 12 U.S.C. § 1823(e) supports the conclusion that the D'Oench Duhme doctrine applies not only when the Comptroller of the Currency renders the financial institution insolvent but also when the FDIC acts as receiver of the assets and liabilities of the bridge bank. Section 1823(e) provides that no agreement tending to "diminish or defeat the interest of the [FDIC] 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 [FDIC]" unless the non-secrecy requirements set forth are met. The statute itself does not differentiate between oral agreements made before the bank is rendered insolvent and those made after the FDIC is appointed.
In this case, on January 6, 1991, the Office of the Comptroller of Currency rendered the BNE insolvent and appointed the FDIC as the receiver of BNE pursuant to 12 U.S.C. § 1821(c)(2)(ii). In turn, the FDIC immediately chartered the bridge bank, New Bank of New England, N.A., pursuant to 12 U.S.C. § 1821(n) and assigned substantially all of BNE's assets to the bridge bank. The bridge bank was in existence from January 6, 1991 until July 11, 1991, when the FDIC dismantled it pursuant to 12 U.S.C. § 1821(n)(12)(B). This section provides that upon certification by the Board of Directors of the FDIC of its intent to dissolve the bridge bank, the Comptroller of the Currency shall appoint the FDIC receiver for the bridge bank. Acting as receiver for the bridge bank, the FDIC receives all of the rights, powers, and privileges once held by the bridge bank.
Here, pursuant to the provisions of 12 U.S.C. § 1821, the FDIC dissolved the bridge bank and received all of the assets and liabilities held by the bridge bank, including the personal guaranties signed by the defendants. Section 1823(e) clearly states that when the FDIC is acting in this capacity (as receiver of assets acquired under § 1821) any oral agreements must be in writing to be enforceable against the FDIC.
Application of the D'Oench Duhme doctrine in this instance is supported by the central purpose underlying the doctrine. The aim of the law is to protect depositors and creditors of a failed bank, who cannot protect themselves, over a borrower who can. Timberland Design, Inc. v. First Serv. Bank for Savs., 932 F.2d 46, 48 (1st Cir.1991). Borrowers, such as defendants here, who enter into special arrangements with banking officials, have the ability to memorialize the terms of their agreements in writing. As the First Circuit noted in Federal Deposit Ins. Corp. v. Caporale, 931 F.2d 1 (1st Cir.1991),
as among borrowers, thrift regulators, depositors, and creditors, the borrower is in the best position to protect himself and must therefore suffer the risk of loss if he fails to ensure that his agreement is properly recorded.
Id. at 2. It is undisputed the Greenbergs failed to have the agreement they offer as a defense here reduced to writing.
*22 In his affidavit Richard Greenberg argues that it was FDIC representatives, not the bridge bank officials, who agreed to modify the conditions of the loan. If evidence existed in the record to support this contention, summary judgment of course would be inappropriate. However, the undisputed facts of record do not support this allegation.
In their initial response to the FDIC's motion for summary judgment, defendants argued that it was the FDIC who agreed to forgive defendants' personal guaranties if the defendants secured buyers for the dealerships. In their submissions, defendants pointed to a letter dated April 11, 1991, to bank representative Richard Driscoll, which referred to a conversation relating to the procurement of buyers for the two automobile dealerships. In his affidavit and deposition testimony, Richard Greenberg stated that these conversations were with the FDIC and that Driscoll and several others were acting on behalf of the FDIC when making these promises. See Aff. of R. Greenberg at ¶ 2.
The undisputed facts show that the bridge bank, not the FDIC, was responsible for the day-to-day operations of the failed institution. It is undisputed that the conversation and alleged oral agreement occurred sometime in April of 1991. At this time the defendants were dealing with the bridge bank, not FDIC. The record contains no evidence which would support the conclusion that the defendants met with FDIC representatives and not agents of the bridge bank. In fact, the letter submitted by the defendants cuts against the argument that it was the FDIC who agreed to modify the loan. The FDIC was not a party to the side agreement allegedly made with the bridge bank.
The defendants seem to recognize this reality in as much as their reply brief focuses on the bridge bank as the "alter ego" of the FDIC. Their argument can be expressed as follows. The bridge bank is organized by the FDIC for the purpose of arranging a purchase and assumption transaction. Under the provisions of the statute, the bridge bank receives operating funds from the FDIC, and the FDIC can decide to dissolve it if certain conditions are met. Therefore, defendants argue, the bridge bank is merely an instrumentality of the FDIC and is acting on behalf of the FDIC. Under existing case law, the FDIC cannot assert the D'Oench Duhme doctrine to preclude evidence that the FDIC itself entered into an oral agreement with the borrower to modify the terms of a loan. See Federal Deposit Ins. Corp. v. Blue Rock Shopping Center, 766 F.2d 744 (3rd Cir. 1985). Because the FDIC had such pervasive control over the bridge bank, the bridge bank and the FDIC should be treated as the same entity. The FDIC should not be able hide behind D'Oench Duhme to deny the existence of an oral agreement made by the bridge bank.
It is noteworthy that neither the parties nor the court could find any district court or court of appeals decision directly addressing a defense arising from an oral agreement with a bridge bank. While defendants' position is not without some merit, a careful review of the statutory language and case law supports the conclusion that, despite the FDIC's considerable control, the bridge bank is not the "alter ego" of the FDIC.
First, the plain language of the statute provides that "[a] bridge bank is not an agency, establishment, or instrumentality of the United States." 12 U.S.C. § 1821(n)(6)(A). Even though the FDIC exerts control over the bridge bank, the statute explicitly makes the bridge bank a separate entity.
Second, the Eleventh Circuit recently addressed a somewhat similar issue in Jones v. Resolution Trust Corp., 7 F.3d 1006 (11th Cir.1993). Although Jones did not involve a claim that an oral agreement by a bridge bank modified the borrower's existing loan, it did involve claims against the FDIC based on the conduct of the bridge bank. In Jones, plaintiff argued that the federal authorities exerted such pervasive control over the bridge bank that they should be held liable for the bridge bank's negligence. The court of appeals disagreed, stating that this conclusion was inconsistent with the statutory exclusion of liability under 12 U.S.C. § 1821(n)(6)(A). The court reasoned that, despite having virtually complete control of the bridge bank and complete control and *23 approval powers over all major decisions, "12 U.S.C. § 1821(n)(6)(A) states unequivocally: `A bridge bank is not an agency, establishment, or instrumentality of the United States.' In other words, the bridge bank is not an extension of the FDIC...." Jones v. Resolution Trust Corp., 7 F.3d 1006, 1016-17 (11th Cir.1993) (footnote and citations omitted). The bridge bank steps into the shoes of the failed bank, not the FDIC.
To conclude, because the statute clearly provides that the bridge bank is not the "alter ego" of the FDIC and because the statute provides for the assertion of the D'Oench Duhme doctrine in situations where the FDIC acts as receiver of assets under § 1821, evidence of the oral agreement between defendants and the bridge bank offered to modify the terms of the loan is barred.
In rendering this decision, the court recognizes that some unfairness may result. As defendants point out, if a borrower is precluded from raising an affirmative defense against the FDIC based on the conduct of the bridge bank, many borrowers will be remediless because the bridge bank is by definition a temporary institution. It will usually not be present to respond to claims. The FDIC will not be liable for actions taken by the bridge bank even though it controls virtually every aspect of the bridge bank's operation including its creation and ultimate dissolution.
While this may be true, the potential for unfairness in this situation is no different, in kind, from the problems for defendants created by the doctrine generally. The plain language of the statute, the relevant case law, and the underlying rationale of the D'Oench Duhme doctrine require its application here.
In addition, the economic realities of the banking industry suggest that D'Oench Duhme protection should be extended to the FDIC in this situation. The purpose of the bridge bank is to take over the failed bank temporarily while the FDIC prepares it for purchase and assumption rather than liquidation. Private institutions as well as newly created financial institutions can serve as bridge banks. The use of bridge banks by the FDIC to smooth out the transition and arrange a purchase and assumption would be greatly hampered if the court were to allow a borrower to introduce evidence of an oral agreement with a bridge bank in an action later brought by the FDIC. It would be risky for the FDIC to create a bridge bank or to arrange for a private institution to take over the insolvent bank during the interim period. Because most purchase and assumption arrangements cannot be made overnight, the FDIC would be forced to liquidate the assets of a failed banking institution. As a result, many banks would simply be forced to shut their doors, ultimately weakening confidence in the banking system. This is not what Congress envisioned in creating 12 U.S.C. § 1823.
2. Knowledge of FDIC
Next, defendants argue that the D'Oench Duhme doctrine should not be applied in this case because the FDIC had actual knowledge of the bridge bank's oral agreement not to collect on the loan.
In Timberland Design v. First Serv. Bank for Sav., 932 F.2d 46 (1st Cir.1991), plaintiff claimed that D'Oench Duhme should not apply because the FDIC had knowledge of the alleged oral agreement by the bank to loan the plaintiff 3.9 million dollars. Id. at 50. The First Circuit rejected this argument, stating that the proper focus under D'Oench Duhme was not whether the FDIC had knowledge of the secret agreement but "whether the agreement, at the time it was entered into, would tend to mislead the public authority ... Thus several courts have noted that the FDIC's actual knowledge of the agreement at the time it acquires the note is irrelevant." Id. at 50 (citations omitted). For the reasons stated by the First Circuit in Timberland, the court rejects defendants' argument that D'Oench Duhme should not be applied because the FDIC had knowledge of the alleged oral agreement defendants and the bridge bank. Accord Langley v. Federal. Deposit Ins. Corp., 484 U.S. 86, 108 S. Ct. 396, 98 L. Ed. 2d 340 (1987).
*24 C. Abuse of Process
Finally, defendants present a brief argument that, even if D'Oench Duhme precludes evidence of the side agreement, their defense that the FDIC's conduct constituted an "abuse of process" survives. In New Bank of New England, N.A. v. Callahan, 798 F. Supp. 73 (D.N.H.1992), the court held that abuse of process, breach of fiduciary duty, and breach of the covenant of good faith and fair dealing claims were not barred by D'Oench Duhme because these defenses were not based on any agreement. Id. at 77.
Defendants base their abuse of process claim on a letter from an attorney for the bridge bank to his own client, bridge bank Vice-President Kurt Matthews. See Defendants' Exhibit E. In the letter, the attorney discussed litigation strategies as to the defendants. The attorney suggested that the bank consider filing suit against the defendants in Springfield and stated that
[b]y extending the "supply lines" resulting from suit in Springfield, we might very well cause substantial inconvenience to the Greenbergs and impede the defenses, as well as any counterclaims against the Bank and others which are sure to follow.
In order to assert a claim of abuse of process under Massachusetts law, defendants must show that
the process was used to accomplish some ulterior purpose for which it was not designed or intended, or which was not the legitimate purpose of the particular process employed.
Beecy v. Pucciarelli, 387 Mass. 589, 595-96, 441 N.E.2d 1035 (1982) (citations omitted). Defendants' claim that the statement found in the bank attorney's letter that filing suit against defendants will cause them "substantial inconvenience" and would impede their defenses is sufficient to state a claim of abuse of process. The court disagrees.
The filing of the present action by the FDIC to enforce the terms of the personal guaranties signed by defendants cannot be characterized as groundless. An abuse of process claim is not the appropriate remedy where the FDIC has filed a legitimate suit to recover on defendants' personal guaranties. The fact that the bank's attorney stated that filing of this action in Springfield would cause defendants substantial inconvenience does not affect the validity of FDIC's suit to recover the defaulted loans.
A review of the record shows that defendants reside in New York. Therefore, as the bank attorney noted, a lawsuit filed by the FDIC in Springfield rather than New York could very well cause inconvenience to defendants. The appropriate remedy, if any, is for the defendants to move for a change of venue. See 28 U.S.C. § 1406.
In short, summary judgment must be granted on defendants' abuse of process claim.
D. Damages
In a final attempt to avoid the entry of summary judgment, defendants contend that the FDIC has failed to offer sufficient evidence of damages to entitle it to judgment. A review of the submissions, however, conclusively demonstrates otherwise.
In its motion for summary judgment, the FDIC has attached the affidavit of Brian Smith, Vice-President of RECOLL Management Corporation. See Plaintiff's Exhibit A, Affidavit of Brian Smith ("Smith Aff."). In his affidavit, Smith states that he personally reviewed the loan documents between defendants and the Bank. It is not disputed that the total amount due on the defaulted loans, including principal and interest, is approximately $9,841,381. It is immaterial that the exact amount owed on the outstanding loan is uncertain because the FDIC is seeking to recover an amount totalling $1,798,000.00 in principal plus interest, which is both indisputably owed and indisputably less than the amount outstanding on the defaulted loans.
IV. CONCLUSION.
For the reasons stated above, the court hereby ALLOWS the plaintiff's motion for summary judgment. The clerk is ordered to *25 enter judgment in favor of the plaintiff in the amount of $1,798,000.00, plus interest.
NOTES
[1] As will be seen, the conversations defendants claim to have had with officials of the FDIC were, indisputably, with officials of the bridge bank. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622142/ | 2007 WI 6
In the Matter of Disciplinary Proceedings Against Kristin J. Gernetzke, Attorney at Law:
Office of Lawyer Regulation, Complainant,
v.
Kristin J. Gernetzke, Respondent.
No. 2006AP2629-D.
Supreme Court of Wisconsin.
Opinion Filed: January 19, 2007.
¶ 1 PER CURIAM.
We review the stipulation filed by Kristin J. Gernetzke and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12,[1] wherein Attorney Gernetzke admits to the facts and misconduct alleged by the OLR as set forth in the parties' stipulation. The misconduct giving rise to this disciplinary matter involved improper and undocumented billings that Attorney Gernetzke submitted to the Office of the State Public Defender (SPD).
¶ 2 We adopt the stipulated facts and conclusions of law. We agree that Attorney Gernetzke's misconduct warrants suspension of her license to practice law for a period of six months, and we further agree that restitution is appropriate as discussed herein. The parties do not seek to impose the costs of this proceeding upon Attorney Gernetzke and we accede to that recommendation.
¶ 3 Attorney Gernetzke was admitted to practice law in Wisconsin in 2002. She has no previous disciplinary history.
¶ 4 From September 2002 until May 7, 2005, Attorney Gernetzke was an associate attorney with the offices of Skemp & Associates in La Crosse. From May 7, 2005, until her termination on October 20, 2005, she was an associate attorney with the firm of O'Flaherty, Heim & Egan, Ltd., ("O'Flaherty firm") also in La Crosse. Throughout this period, Attorney Gernetzke was certified to work as a public defender by the SPD and undertook a number of cases in that capacity.
¶ 5 While practicing with Skemp & Associates, Attorney Gernetzke began to utilize a billing entry described as "develop legal theory" on bills she submitted to the SPD. This type of entry requires certain documentation in the file to be acceptable. Attorney Gernetzke, however, submitted numerous billings under the category "develop legal theory" without creating proper documentation. In some cases, no work had been done on the file or the entries were made as a result of Attorney Gernetzke "thinking" about the case. Eventually, the O'Flaherty firm terminated Attorney Gernetzke's employment because of her use of the "develop legal theory" entries on bills submitted to the SPD, and filed a grievance with the OLR.
¶ 6 The OLR investigators reviewed 26 of the files Attorney Gernetzke worked on for the SPD and determined that Attorney Gernetzke was paid $5120 for time described as "develop legal theory." Additional billings totaling $2698 submitted under this category were pending at the time of the OLR investigation. The SPD conducted an additional review of its files and independently demanded Attorney Gernetzke return additional monies paid to her for billing entries designated as "develop legal theory."
¶ 7 The parties stipulated that the entries Attorney Gernetzke designated and billed as "develop legal theory" were without support, improper, inflated, and constituted conduct involving dishonesty, fraud, deceit or misrepresentation in violation of SCR 20:8.4(c).[2]
¶ 8 The parties further stipulated that restitution was appropriate. At the time the stipulation was executed, Attorney Gernetzke had made restitution to the SPD in the amount of $5000 and had waived claims from additional billings submitted to the SPD in the amount of $8716.87. This court is advised that Attorney Gernetzke is in the process of negotiating a plan to repay her remaining obligations to the SPD. The stipulation indicates that restitution to her former law firm may also be appropriate.[3]
¶ 9 We accept the parties' stipulation and recommendations regarding discipline. Cf. In re Disciplinary Proceedings Against Glasbrenner, 2005 WI 50, 280 Wis. 2d 37, 695 N.W.2d 291. Consistent with the parties' stipulation, we will not impose the costs of this proceeding upon Attorney Gernetzke.
¶ 10 IT IS ORDERED that the license of Attorney Kristin J. Gernetzke to practice law in Wisconsin is suspended for a period of 6 months, effective March 2, 2007.
¶ 11 IT IS FURTHER ORDERED that Attorney Kristin J. Gernetzke shall comply with the requirements of SCR 22.26 pertaining to activities following suspension.
NOTES
[1] SCR 22.12 provides in relevant part that "(1) The director may file with the complaint a stipulation of the director and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee."
[2] SCR 20:8.4(c) provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
[3] The parties' stipulation did not expressly set forth the amount of restitution, if any, that Attorney Gernetzke still owes the SPD or her former law firms. Therefore, we do not impose a specific order regarding restitution at this time. Attorney Gernetzke is reminded that a petition for reinstatement requires the petitioner to demonstrate that she has made restitution to or settled all claims of persons injured or harmed by petitioner's misconduct, including reimbursement to the Wisconsin Lawyers' Fund for Client Protection for all payments made from that fund, or, if not, the petitioner's explanation of the failure or inability to do so. See SCR 22.29(4m). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2346572/ | 822 A.2d 478 (2003)
150 Md. App. 479
SUPERIOR OUTDOOR SIGNS, INC., et al.
v.
ELLER MEDIA COMPANY, et al.
No. 2545, Sept. Term, 2001.
Court of Special Appeals of Maryland.
April 30, 2003.
*482 Hugh Cropper, IV (Anderson Coe & King, LLP, on brief), Ocean City, for appellants.
Paul D. Wilber (Cynthia Brubaker MacDonald, Webb, Burnett, Jackson, Cornbrooks, Wilber, Vorhis & Douse, LLP, on brief), Salisbury, for appellees.
Argued before SONNER, DEBORAH S. EYLER and MARVIN H. SMITH (Ret'd, Specially Assigned), JJ. *479 *480
*481 DEBORAH S. EYLER, J.
The Board of Zoning Appeals of the Town of Willards ("Board") granted variances to Eller Media Company ("Eller") and E. Dean W. Richardson, the appellees, allowing them to replace two existing non-conforming billboards and to erect two new billboards on property on Route 50 ("the Subject Property"), in Wicomico County. In the Circuit Court for Wicomico *483 County, Superior Outdoor Signs, Inc. ("Superior"), and Scott P. Gregory, the appellants, brought an action for judicial review of the Board's decision. The court affirmed the decision.
On appeal, the appellants contend the court's ruling was in error because there was no showing of unwarranted hardship, as required by the Town of Willards's zoning ordinance. The appellees have moved to dismiss the appeal for lack of standing. Alternatively, they contend the Board's decision should be upheld because it was supported by substantial evidence, including evidence of unwarranted hardship.
For the following reasons, we shall grant the appellees' motion to dismiss the appeal.
FACTS AND PROCEEDINGS
The Subject Property, which is owned by Richardson and others, is a 400-feet-wide strip of land, occupying 25.11 acres, that is bordered on the north by the easterly lanes of Route 50 and on the west by Bent Pine Road. The Subject Property is in the Town of Willards, on the edge of town.[1] It is zoned Commercial.
Eller Media Company leases the Subject Property from its owners for the placement and maintenance of billboards that are visible from the easterly lanes of Route 50. Two billboards have been situated on the Subject Property for decades, since before the Town of Willards enacted a zoning ordinance.
Under section 12 of the Town of Willards's zoning ordinance, "outdoor advertising structures," i.e., billboards, are permitted uses in the Commercial Zone, with certain restrictions for setback, spacing, structure type, sign area, distance from residential district, lighting, and height. Pursuant to section 22(B)(2) of the zoning ordinance, the Board may grant variances from these restrictions. Under section 19 of the zoning ordinance, the billboards that have been situated on the Subject Property are legal, non-conforming uses.
The appellees applied for building permits to replace the original billboards with monopole billboard structures. Because the replacement structures were considered upgrades to a non-conforming use, which require approval by the Board under section 19 of the zoning ordinance, the permits were denied. In addition, the appellees applied for building permits to erect two new billboards and allow all four billboards on the Subject Property to vary from the setback, spacing, and sign area restrictions required by the zoning ordinance. Those building permits also were denied. The appellees then filed applications for variances with the Board.
The Board held a public hearing on the appellees' application for variances. After hearing from those in favor of the application and those opposed, the Board members deliberated and voted to grant the variances for the existing billboards and to grant some of the other requested variances, so as to permit construction of two new billboards.
In an action for judicial review in the Circuit Court for Wicomico County, the appellants argued that the Board's decision was not supported by substantial evidence of an unwarranted hardship so as to justify its granting the variances. As we shall discuss below, the appellees moved to dismiss the action on the ground that the appellants lacked standing. They also responded on the merits by arguing that the Board's decision was supported by substantial evidence and was made in accordance with the town's zoning ordinance.
*484 The circuit court held a hearing and found that the Board's decision was supported by substantial evidence. It issued a written order and entered judgment in favor of the appellees. The appellants then noted a timely appeal to this Court.
We shall include additional pertinent facts in our discussion.
DISCUSSION
The appellees have moved to dismiss this appeal on the ground that Superior and Gregory lack standing. They contend that Superior and Gregory can have standing to appeal to this Court only if at least one of them had standing to bring the action for judicial review in the circuit court, and that neither had standing to bring that action.
The Town of Willards is a municipal corporation. Among its enumerated express powers is the power to "provide reasonable zoning regulations subject to the referendum of the voters at regular or special elections." Md.Code (2001), art. 23A, section 2(b)(30). Under Md.Code (1998 Repl.Vol., 2001 Supp.), art. 66B, which governs land use, i.e., planning, zoning, and development, except in chartered counties,[2] a local legislative body, including the elected body of a town, see section 1(f), is further authorized to adopt planning, zoning, and development ordinances and regulations. Art. 66B, § 4.01(a) and (b). Pursuant to section 4.07(a)(1), each local legislative body must provide for the appointment of a board of appeals which has, among its general powers, that of authorizing in specific cases variances from the terms of the local jurisdiction's zoning ordinance. Art. 66B, § 4.07(d)(3).
Appeals to the circuit court from the decision of a local board of appeals, including boards of local jurisdictions and municipalities other than Baltimore City, and appeals thereafter to this Court, are governed by article 66B, section 4.08.[3] That statute states, in relevant part:
(a) Who may appeal; procedure.(1) Any of the following persons may, jointly or severally, appeal a decision of a board of appeals ... to the circuit court of the county:
(i) A person aggrieved by the decision...;
(ii) Any taxpayer; or
(iii)Any officer, department, board, or bureau of the local jurisdiction....
* * * * * *
(e) Decision of circuit court; appeal to the Court of Special Appeals; costs.(1) After deciding an appeal under this section, the circuit court shall file a formal order embodying its final decision. (2)(i) A party may file an appeal from the decision of the circuit court with the Court of Special Appeals, during the period and in the manner prescribed by the Maryland Rules....
Thus, under section 4.08(a), a person may bring a circuit court action for judicial review of the decision of a board of appeals if he is "aggrieved" by it, or he is "any taxpayer," or if he is within the category of persons listed in subsection (iii) (which is not at issue here). Boulden v. Mayor & Comm'rs, 311 Md. 411, 535 A.2d 477 (1988); Stephans v. Bd. of County Comm'rs, 41 Md.App. 494, 397 A.2d 289, rev'd on other grounds, 286 Md. 384, 408 A.2d 1017 (1979); Clise v. Phillips Coal, *485 Inc., 40 Md.App. 609, 392 A.2d 1177 (1978). And under section 4.08(e), a person may appeal the circuit court's decision in an action for judicial review if he was a party, i.e., a proper party, to the circuit court action. Clise, supra, at 613, 392 A.2d 1177.
A.
Facts Pertinent to the Issue of Standing
There is no mention of Superior in the agency record.
The agency record reveals that Gregory attended the hearing before the Board. He signed the attendance sheet, "Scott Gregory Property Owner (Willards), [telephone number], Bishopville." He briefly testified, identifying himself as "a property owner of Delaware Sign Company" and stating his opposition to the application for variances. Testimony by others established that Delaware Sign Company, Inc. ("DSC"), owns a parcel of land in the Town of Willards adjacent to and west of the Subject Property, across Bent Pine Road. Like the Subject Property, DSC's parcel is zoned Commercial, borders on the easterly lanes of Route 50, and contains several billboards.
The petition for judicial review filed in the circuit court is captioned:
IN THE CIRCUIT COURT FOR WICOMICO COUNTY PETITION OF SUPERIOR OUTDOOR SIGNS, INC. AND SCOTT GREGORY 1305 S. SALISURY BOULEVARD SALISBURY, MARYLAND 21801 FOR JUDICIAL REVIEW OF THE DECISION OF THE BOARD OF ZONING APPEALS, TOWN OF WILLARDS, WICOMICO COUNTY, ... DATED JUNE 19, 2001 REGARDING ELLER MEDIA COMPANY/DEAN RICHARDSON, ET AL.
It is entitled, "Notice of Appeal," and is one paragraph long. The petition does not give an address for Gregory, other than to include him in the Salisbury address given for Superior. (The docket entries post Superior's address as the Salisbury address in the caption and post no address for Gregory.) The petition states: "Appellants were parties to the agency proceeding."[4]
In the appellants' Rule 7-207 memorandum, Gregory included himself among those who had opposed the application for variances before the Board. He did not set forth any statement or allege any facts about his aggrievement status, if any, or his taxpayer status, if any.
The appellees filed a Rule 7-207 memorandum that included a motion to dismiss for lack of standing. They took the position that neither Superior nor Gregory was a party to the proceeding before the Board and that neither had made an allegation, either before the agency or in a circuit court petition, about being in any way aggrieved or being "any taxpayer."[5]
The appellants did not file a reply memorandum or a response to the motion to dismiss for lack of standing.
During the hearing before the circuit court, the appellants' lawyer acknowledged in response to a question from the bench that Superior was not a proper party to the action for judicial review. He asserted that Gregory had standing to bring the action, however, because he is a taxpayer living in Worcester County and working in Salisbury who "drives by there," that is, the Subject Property. When the court *486 made known that it was unimpressed by those proffered bases for standing, the appellants' lawyer further proffered that Gregory owns DSC, which in turn owns the land next to and west of the Subject Property. The appellees' lawyer objected to the proffer, saying, "I think John Howard Burbage is the owner of Delaware Sign Company."[6] The appellants' lawyer then moved on to the merits of the appeal.
When counsel for the appellees addressed the court, he discussed the issue of standing as follows:
An aggrieved party is someone who has suffered ... a special damage to a property right or a personal right is the way the language in the cases read.
And the record is devoid of any testimony from Mr. Gregory that he is aggrieved in any way, shape, or form. I think his testimony is he had a hard time getting his variances on all the string of signs to the west of [the Subject Property], but as far as him being aggrieved in any way, shape or form, there is no evidence in this record at all. He is not a tax payer in the Town of Willards and nor is Superior Signs a tax payer in the Town of Willards to the best of our information.
That being the case, there is no standing for either Mr. Gregory or Superior Signs to maintain this appeal. In that Bryniarski [v. Montgomery County Bd. of Appeals, 247 Md. 137, 230 A.2d 289 (1967),] case that we have cited in our memo, a statement there is a person whose sole reason for objecting to the Board's action is to prevent competition with his established business is not a person aggrieved.
Even though he didn't make any statement about how he was aggrieved, if you wanted to infer how he thinks he was aggrieved, I think Eller Media would be regarded as his competitor. He has the signs to the west of Bent Pine Road. Eller has the signs to the east of Bent Pine Road.
He then repeated his request to the court to dismiss the case for lack of standing.
After counsel for the appellees had concluded his argument on the merits, counsel for the appellants on rebuttal pointed to a reference in the Board's hearing transcript in which Richardson, responding to Gregory's brief remarks, called him a "neighbor."
The court did not make an express ruling on the motion to dismiss. After remarking, "I think there is a real issue as to the standing," the judge went on to conclude that there was substantial evidence to support the Board's decision to grant the variances, and affirmed the decision on that basis.
In this Court, in support of their motion to dismiss, the appellees have filed an affidavit by Gloria Smith, the Secretary of the Town of Willards, attesting that she maintains the town's real property tax records, that she has reviewed them, and that neither Superior nor Gregory owns real property within the town.
In their reply brief, the appellants have submitted an affidavit by Gregory in which he attests, inter alia, that he is a 50% owner of DSC; that DSC's property in the Town of Willards is adjacent to the Subject Property, and the Subject Property and the billboards on it are visible from the DSC property; that he manages the *487 DSC property and "derive[s] a substantial portion of [his] livelihood from income generated by that property"; and that, because he either is present next to the Subject Property or drives past it on a daily basis, additional billboards on the Subject Property will have an effect on him personally and on DSC different than their effect on members of the public at large. Gregory acknowledges in his affidavit that he lives and pays real property taxes in Bishopville, in Worcester County.
B.
Standing of Superior
The appellants concede that Superior did not have standing to bring the circuit court action for judicial review of the Board's decision and therefore lacks standing to bring this appeal. There are no facts in the record to show that Superior has "aggrieved person" or "any taxpayer" status. In their reply brief in this Court, in which they respond to the motion to dismiss, the appellants do not argue that Superior has standing. Finally, at oral argument, counsel for the appellants candidly acknowledged to this Court that Superior does not have standing.[7]
C.
Standing of Gregory
Whether this appeal is properly before us, then, depends upon whether Gregory has standing. A party's standing to appeal either to this Court or to a circuit court from the decision of a zoning board is a question of law, which we decide de novo. See generally Lucas v. People's Counsel, 147 Md.App. 209, 224-25, 807 A.2d 1176 (2002); Eller Media Co. v. Mayor of Baltimore, 141 Md.App. 76, 83, 784 A.2d 614 (2001); E. Outdoor Adver. Co. v. Mayor & City Council, 128 Md.App. 494, 514, 739 A.2d 854 (1999).
Gregory contends he had standing to bring the circuit court action, either as an "aggrieved person" or as "any taxpayer," under art. 66B, section 4.08(a), and hence he has standing to appeal to this Court. As a preliminary matter, Gregory asserts that, because the issue of standing was not decided by the circuit court, we should not address it; and that the issue was waived by the appellees because they did not file a cross-appeal.
(i)
Preservation of the Standing Issue
Maryland Rule 8-131(a) provides that, ordinarily, this Court will not address an issue that was not raised in or decided by the circuit court. As the chronology of proceedings we have set forth makes plain, the appellees raised the issue of standing in the circuit court. Their having done so preserved the issue for appellate review, notwithstanding that the court did not expressly rule on it. Moreover, it was not necessary for the appellees to note a cross-appeal on the issue of standing for this Court to address the question of standing that was raised below. We so held in Sipes v. Board of Municipal Zoning Appeals, 99 Md.App. 78, 635 A.2d 86 (1994), a case having a similar procedural posture to this one.
In Sipes, certain community associations and public interest groups ("organizations") and an intervenor taxpayer sought appellate review of a circuit court decision affirming a decision by a Baltimore City *488 zoning board granting an application to change an existing conditional use. The applicant moved to dismiss the circuit court action on the ground that the plaintiffs lacked standing. The court did not rule on the motion. Instead, it permitted the intervenor to join the case as a party, even though the motion to intervene was untimely.
On appeal, the applicant and the zoning board challenged the organizations' standing to bring the circuit court action, but did not file a cross-appeal. We explained that it was not necessary for them to take a cross-appeal to raise that issue:
Although the issue of standing may not be jurisdictional in nature, it does go to the very heart of whether the controversy before the court is justiciable. If the controversy is nonjusticiable, it should not be before the court, and therefore must be dismissed. The failure of a party to file a notice of cross-appeal does not prevent an appellate court from considering whether the lower court had, or the appellate court has, jurisdiction over the case. By the same token, it should not prevent us from considering the issue of standing in this case, especially where the appellees raised the issue in the circuit court.
Id. at 87-88, 635 A.2d 86 (citations omitted).
With that, we shall turn to the merits of the standing argument.
(ii)
"Aggrieved Person" Standing
In Maryland-National Capital Park & Planning Commission v. Smith, 333 Md. 3, 633 A.2d 855 (1993), the Court of Appeals explained the meaning of "aggrieved person" standing:
The rule for determining who is aggrieved in administrative appeals is well settled. In DuBay v. Crane, [240 Md. 180, 185, 213 A.2d 487 (1965)], we said:
In zoning cases, the rule in this State is that for a person to be aggrieved by an adverse decision of the administrative agency, and thus entitled to appeal to the courts, the decision must not only affect a matter in which the protestant has a specific interest or property right but his interest therein must be such that he is personally and specifically affected in a way different from that suffered by the public generally.
333 Md. at 3, 633 A.2d 855 (emphasis in original; footnote omitted). See also Bryniarski v. Montgomery County Bd. of Appeals, supra, 247 Md. 137, 230 A.2d 289 (same, addressing standing to appeal to circuit court from a decision of the board of appeals of a chartered county, under art. 25A, section 5U). Thus, the "aggrieved person" standard is a two-part test in which the plaintiff first must show that he has a personal or property interest that will be adversely affected by the zoning decision and then must show that the harm to that interest from the zoning decision is distinct from the harm to the general public from the zoning decision. Cylburn Arboretum Ass'n v. Mayor & City Council, 106 Md.App. 183, 188-89, 664 A.2d 382 (1995) (same, addressing standing to appeal to circuit court from a decision of the Baltimore City Board of Municipal and Zoning Appeals, under art. 66B, section 2.09(a)).
Gregory rests his claim of "aggrieved person" status on one property interest and two personal interests. His claimed property interest is in DSC's real property, which, as noted, is adjacent to the Subject Property. Gregory maintains that he is a 50% owner of DSC and therefore is a 50% owner of DSC's real property. He asserts that Richardson's having called him a "neighbor" during the agency hearing *489 lends support for his having a property interest in DSC's land.
Gregory's claimed personal interests are in maintaining the income he derives from the DSC property (apparently from leasing the billboards on it) and in maintaining a daily visual exposure to less, rather than more, billboards when he is on DSC's grounds and the billboards on the Subject Property are in view and when he is driving by the Subject Property.
Gregory's Claimed Property Interest
It is well established that the owner of property adjacent to property that is the subject of a zoning decision is prima facie an "aggrieved person," within the meaning of those statutes conferring standing to appeal, such as art. 66B, section 4.08(a). In Bryniarski v. Montgomery County Bd. of Appeals, supra, 247 Md. 137, 230 A.2d 289, the Court summarized the general principles governing "aggrieved person" standing in appeals under provisions of zoning ordinances, stating, inter alia, that
[a]n adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved. The person challenging the fact of aggrievement has the burden of denying such damage in his answer to the petition for appeal and of coming forward with evidence to establish that the petitioner is not, in fact, aggrieved.
Id. at 145, 230 A.2d 289.
To be sure, as the owner of property adjacent to the Subject Property, DSC was prima facie "aggrieved" by the Board's zoning decision within the meaning of section 4.08(a). DSC did not bring an action for judicial review of the decision, however, and so was not a party in the circuit court and is not a party on appeal. In the circuit court, Gregory did not present any evidence that he is an owner of DSC (50% or otherwise). When his lawyer proffered that Gregory is the owner of DSC, the appellees objected, their counsel voicing the view that another person owns that company.
As noted, in this Court, Gregory has submitted an affidavit attesting that he is "the 50% owner of [DSC]." Whether he had standing in the circuit court, and hence whether that court should have granted the appellees' motion to dismiss, was a function of the evidence in the record then, not now, and as an appellate court, it is not our role to accept evidence in any event. When the issue of standing depends on the resolution of disputed facts, it is proper practice for the circuit court to take evidence on the issue from the parties and make the factual findings necessary to the decision. Town of Somerset v. Montgomery Cty. Bd. of Appeals, 245 Md. 52, 63, 225 A.2d 294 (1966) (holding that, "[w]hen the issue of standing of an appellant to appeal is raised in the court in which review of the administrative action is asked, we have approved the practice of trial judges in permitting testimony on the point to be taken before them.... The question is not one of taking additional testimony on the merits of the substantive issues decided by the Board..., but of determining whether the appellants have the requisite standing to have those issues reviewed.") (citations omitted).
In this case, notwithstanding the court's comment suggesting that the proceeding before it was not one in which evidence properly could be taken, the court could have permitted that to occur, either then, if the parties were present, or at a later time if they were not.[8] If the *490 resolution of the dispute over Gregory's ownership interest vel non in DSC were determinative of Gregory's aggrieved person status issue, we would remand the case to the circuit court to take evidence and make a finding. We conclude, however, that, even if Gregory were an owner of DSC, that does not mean he has an ownership interest in DSC's land; and therefore that would not give him aggrieved person status for purposes of section 4.08(a)(i).
A corporation is a legal entity separate from its shareholders. See U.S. v. Brager Bldg. & Land Corp., 124 F.2d 349 (4th Cir.1941) (applying Maryland law). When a corporation takes title to real property, it holds that property in its own name and right. Dates v. Harbor Bank, 107 Md.App. 362, 370, 667 A.2d 1007 (1995). A corporation's shareholders do not hold title to its real property, and therefore do not own it. Accordingly, even assuming that Gregory is an owner, i.e., a shareholder, in DSC, that does not mean he is an owner of DSC's real property, including the property adjacent to the Subject Property.
In Menges v. Township of Bernards, 4 N.J. 556, 73 A.2d 540 (1950), the Supreme Court of New Jersey held that the president and principal stockholder of a corporation that owned land alleged to have been injuriously affected by a zoning action of the township did not own the corporation's real property and hence did not have aggrieved person standing as a property owner. The court expressly rejected as "insubstantial" the argument that "in so far as the injury affects the property of the corporation it affects the stockholders' interest therein and as such the plaintiffs... will suffer special injury beyond that which will affect them in common with the remainder of the public." Id. at 558, 73 A.2d 540.
In short, Gregory is not an "aggrieved person" by virtue of ownership of DSC's real property adjacent to the Subject Property because he does not own DSC's real property.
Gregory's Claimed Personal Interests
As noted, Gregory maintains that he has a personal interest that will be affected adversely by the zoning decision in this case because he is a part owner of DSC, manages the company, and depends upon the success of the company for his personal financial well-being.[9] He also claims as an affected personal interest that he is present on the DSC property, next to the Subject Property, on a daily basis, and drives by the Subject Property daily.
There are limits on the nature of the requisite affected interest of a protestant for purposes of being "aggrieved" by a zoning decision. The prevention of competition is not a proper element to be considered in zoning decisions. Kreatchman v. Ramsburg, 224 Md. 209, 219, 167 A.2d 345 (1961). Accordingly, a person is not "aggrieved" for standing purposes when his sole interest in challenging a zoning decision is to stave off competition with his established business. Id. at 220, 167 A.2d 345 (commenting that, "[i]n appeals from zoning boards, a competitor is usually not regarded as an `aggrieved party.' "); Bryniarski, supra, 247 Md. at 145, 230 A.2d 289. See also Aspen Hill Venture v. Montgomery County Council, 265 Md. 303, 314, 289 A.2d 303 (1972); Eastern Serv. Ctrs., Inc. v. Cloverland Farms *491 Dairy, Inc., 130 Md.App. 1, 9, 744 A.2d 63 (2000) (dismissing appeal on ground that gas station company's sole motive in challenging the issuance of a zoning construction permit to another gas station company one block away was to prevent competition).
It is not the function of county zoning ordinances to provide economic protection for existing businesses. Neither the fact that the parties may suffer reduced incomes or be put out of business by more vigorous or appealing competition, nor the fact that properties on which such businesses are operated would thus depreciate in value, give rise to a standing to sue.
Swain v. County of Winnebago, 111 Ill. App.2d 458, 467, 250 N.E.2d 439 (1969) (citing, inter alia, Kreatchman v. Ramsburg, supra, 224 Md. at 220, 167 A.2d 345 (internal citations omitted)).
DSC and the appellees are competitors in the same business. DSC leases its property on Route 50 for the placement of billboards for profit; the appellants own and use the Subject Property to operate a like business, also for profit. The zoning decision in this case permitted the appellees to lease more billboards than DSC and may give them a competitive advantage. Gregory's concern is that any such increased competitive advantage will result in a decrease in the income he derives from DSC (whether as its owner, allegedly, or as an employee/manager). Plainly, Gregory's claimed personal interest in the zoning action for the Subject Property is precisely the sort of interest in eliminating competition that zoning laws are not meant to protect, and is not a basis for "aggrieved person" status standing under section 4.08(a)(i).
The other personal interests Gregory cites also do not afford a basis for "aggrieved person" standing. For an affected interest to furnish a basis for aggrieved person standing, the interest must be legally protected. Thus, just as an impact on a person's property interest affords a basis for standing, an impact on a person's interest arising out of contract, protected from tortious invasion, or founded on a statute that confers a privilege likewise provides a basis for standing. Cf. Comm. for Responsible Dev. v. Mayor & City Council, 137 Md.App. 60, 72, 767 A.2d 906 (2001) (addressing standing to bring a declaratory judgment action).
Gregory does not own property adjacent to or near the Subject Property and does not reside adjacent to or near the Subject Property. For the reasons we have explained, Gregory's anti-competitive interest in there being no more than two billboards on the Subject Property is not protected by the zoning laws. Gregory's claimed interest in limiting the number of billboards visible from his employer's property is not contractual, tort-based, or based on a statutory right or privilege. Accordingly, that claimed interest is not a ground for standing to challenge the Board's zoning decision respecting the Subject Property. For the same reason, his status as a person who drives by the Subject Property daily does not implicate a personal interest sufficient to confer standing to challenge the Board's zoning decision. (Even if it didwhich it does not he could not show that his interest was specially affected beyond any such interest of members of the general public.)
(iii)
"Any Taxpayer" Standing
Gregory argues that, even if he is not an "aggrieved person" for standing purposes, he has "any taxpayer" standing, under art. 66B, section 4.08(a)(ii), on two separate bases: first, as a 50% owner of DSC, he *492 "pays property taxes" on DSC's real property in the Town of Willards; and second, he pays property taxes on real property he owns in Bishopville in Worcester County. We disagree that Gregory has standing as "any taxpayer" within the meaning of the controlling statute.
As explained above in our discussion of "aggrieved person" standing, Gregory did not present evidence to the circuit court to show that he is an owner of DSC. Had he done so, however, that evidence would not have provided a proper basis for "any taxpayer" standing.
In ascertaining the meaning of "any taxpayer" standing under section 4.08(a)(ii), we apply the well-established rules of statutory construction. The cardinal rule is to ascertain and effectuate legislative intent. Gillespie v. State, 370 Md. 219, 804 A.2d 426 (2002). To that end, we must begin our inquiry with the words of the statute. Ordinarily, when the statutory language is clear and unambiguous, we end our inquiry there, giving the words their plain and ordinary meaning. Dyer v. Otis Warren Real Estate Co., 371 Md. 576, 581, 810 A.2d 938 (2002). When the words of a statute are plain, we may neither add nor delete language so as to reflect a legislative intent that the language does not reflect. Id. When the statute to be interpreted is part of a statutory scheme, we read it in context, together with the other statutes on the same subject, harmonizing them to the extent possible. Mid-Atlantic Power Supply Ass'n v. Pub. Serv. Comm., 361 Md. 196, 204, 760 A.2d 1087 (2000).
The common-sense meaning of the term "any taxpayer" in section 4.08(a) encompasses taxpayers that are individuals and those that are entities, such as corporations. It is undisputed that DSC is a corporation and that it owns the real property adjacent to the Subject Property. As discussed supra, it is fundamental that DSC, not Gregory, is the owner of DSC's real property. Accordingly, DSC, not Gregory, is legally responsible for paying the property taxes on the property. See Md.Code (2001 Repl.Vol.) section 10-401 of the Tax-Property Article (stating that, "[e]xcept as otherwise provided in this subtitle, the owner of property on the date of finality is liable for property tax that is imposed on that property for the following taxable year").
Whether Gregory owns one share of DSC stock or a controlling interest in the company, he cannot disregard the corporate entity for purposes of claiming taxpayer status. While, as we shall explain, DSC's status as a property taxpayer in the Town of Willards most certainly would afford it "any taxpayer" status for purposes of section 4.08(a)(ii), that status does not afford Gregory or any other stockholder of the company such status.
As noted, the record of the agency contains facts showing that Gregory's address is in Bishopville, in Worcester County. Before the circuit court, Gregory's counsel proffered that Gregory owns the property on which he lives, and pays property taxes on that property; and the proffer was accepted. Thus, the record contains facts showing that Gregory pays property taxesbut not to the Town of Willards.[10]
*493 In Boulden v. Mayor & City Council, supra, 311 Md. 411, 535 A.2d 477, the Court of Appeals clarified that, under section 4.08(a), a person who is "any taxpayer" automatically has standing to appeal; in other words, taxpayer status alone, without aggrievement, confers standing to appeal. Id. at 414, 535 A.2d 477 (approving Stephans v. Bd. of County Comm'rs, supra, 41 Md.App. at 498, 397 A.2d 289, and Clise v. Phillips Coal, Inc., supra, 40 Md.App. 609, 613, 392 A.2d 1177). In Boulden, the party whose standing was in question was a taxpayer by virtue of his ownership of real property in the municipality whose zoning action he was challenging. There was no question but that, as a taxpayer of the local jurisdiction, he qualified as "any taxpayer" under section 4.08(a). See also Stocksdale v. Barnard, 239 Md. 541, 212 A.2d 282 (1965) (holding that owners of property in Baltimore County had taxpayer status standing to challenge zoning action by the county's board of zoning appeals); Windsor Hills Improvement Assoc. v. Baltimore, 195 Md. 383, 73 A.2d 531 (1950) (recognizing that president of homeowners' association who himself owned property in Baltimore City had taxpayer status standing to challenge zoning action by City's board of zoning appeals).
By contrast, in the case at bar, Gregory does not own real property in the Town of Willards and does not pay real property taxes to the town. Rather, he owns real property inside Maryland but outside the Town of Willards, and pays real property taxes to governmental entities other than the Town of Willards. Gregory takes the position that the phrase "any taxpayer" in section 4.08(a)(ii) should be read broadly to cover a real property taxpayer in any jurisdiction in Maryland, not just a property taxpayer in the local jurisdiction in which the board is authorized to act. Thus, to have "any taxpayer" standing to challenge a zoning decision or action by a local municipality under that statute, a person need not be a taxpayer of that municipality. To be sure, a literal reading of the words "any taxpayer" would cover not only any taxpaying entity (individual, corporate, etc.), but also any property taxpayer wherever the property or the taxpayer might be located. Indeed, as Gregory's counsel acknowledged in response to questions from the bench in oral argument in this Court, a literal reading of "any taxpayer" also would include payers not only of property taxes, but of any kind of taxsales, income, estate and gift, etc.
Our function, however, is to determine what the General Assembly meant by the words "any taxpayer" in section 4.08(a). That section must be interpreted in its context. It is part of art. 66B, which governs land use in non-chartered local jurisdictions, including municipalities. And it is pursuant to the express power granted municipalities under art. 23A, section 2(b)(30) of the Code, to reasonably regulate zoning and development, and to art. 66B, that the local legislative body of the Town of Willards enacted the zoning ordinance applicable to real property within the town limits, including the Subject Property.
Section 4.08 is a standing statute. Standing "is a practical concept designed to insure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." 4 Arden H. Rathkopf, et al., Rathkopf's, The Law of Zoning and Planning, § 63:3 n. 1 at 63-65 (4th ed.2001) (quoting DiBonaventura v. Zoning Bd. of Appeals, 24 Conn.App. 369, 373-74, 588 A.2d 244 (1991), in turn quoting Bd. of Pardons v. *494 Freedom of Info. Comm'n, 210 Conn. 646, 649, 556 A.2d 1020 (1989)).
The essential purpose of section 4.08, therefore, is to define the world of people and entities who have an affected interest in a zoning decision by a local board of appeals, including the board of appeals of a municipal corporation, and therefore may lodge a judicial challenge to it. By definition, under the two-part test for aggrievement discussed above, one who is "aggrieved" by such a zoning decision has an interest in it. As explained, aggrievement requires an additional showing that the person's interest is specially affected by the decision. While under section 4.08(a), the world of interested people and entities is not limited to those who are aggrieved, as the Court made plain in Boulden, it is implicit that "any taxpayer" in that statute means a taxpayer who, because of his status as such, has an interest that could be affected by the zoning decision. The taxpayer need not show that his interest is specially affected, however.
The type of taxpayer who has an interest that could be affected by the zoning decision of a local board of appeals is a property taxpayer within that jurisdiction. Municipalities have the power to tax, as conferred by Article XI-E of the Maryland Constitution and subject to certain statutory limitations, art. 23A, section 2(b)(33), of the Code, see Griffin v. Anne Arundel County, 25 Md.App. 115, 126, 333 A.2d 612 (1975); and the power of a municipality to levy a real property tax is expressly granted pursuant to section 6-203 of the Tax-Property Article. It is fundamental that zoning concerns the regulation of land use; and it is the policy of this State that such regulation will occur at the local level. See art. 23A, section 2(b)(36)(ii) (stating that "[i]t has been and shall continue to be the policy of this State that planning and zoning controls shall be implemented by local government."). Because local jurisdictions have the power to regulate land use, and to levy real property taxes, the real property taxes assessed against a property owner in the local jurisdiction may be affected by land use decisions and actions taken by the jurisdiction. Thus, in a general way, such a taxpayer has an interest in the zoning decisions of the local jurisdiction. One who pays property tax to another local jurisdiction, and not to the jurisdiction making the zoning decision, does not have such an interest.
When read in its proper statutory context, the phrase "any taxpayer," in section 4.08(a)(ii), means any person, including an entity, who pays real property taxes to the local jurisdiction whose zoning action is being challenged on appeal. Accordingly, Gregory's status as a payer of real property taxes outside the Town of Willards did not afford him "any taxpayer" standing under the controlling statute.
APPEAL DISMISSED.
COSTS TO BE PAID BY THE APPELLANTS.
NOTES
[1] The Subject Property was annexed by the Town of Willards in 1999.
[2] Section 1.02 of article 66B provides that the article applies to chartered counties in some limited situations.
[3] Appeals of decisions by the Baltimore City Board of Municipal and Zoning Appeals are governed by art. 67B, section 2.09.
[4] In fact, as noted above, the record shows that Superior was not a party to the agency proceeding.
[5] In this appeal, the appellees have abandoned the argument that Gregory was not a party to the Board proceedings.
[6] At that point in the proceedings, counsel for the appellants moved to substitute DSC as a party, under Md. Rule 2-213, on the basis of misjoinder, representing that DSC had participated as a party in the proceeding before the Board. The circuit court denied the motion and that ruling is not challenged on appeal.
[7] In their reply brief, the appellants moved this Court, pursuant to Md. Rule 2-341(c)(4), to amend what they say was a misnomer, i.e., that Superior was named in the petition for judicial review instead of DSC. Their counsel withdrew that motion during oral argument. This Court would not have the authority to grant such a request in any event.
[8] The fact that one of the appellees referred to Gregory as a "neighbor" during the hearing before the Board certainly was not competent evidence to prove that Gregory was an owner of DSC or its property. "Neighbors" need not be property owners.
[9] To some extent, this interest could be characterized as a property interest, as it is economic. How it is characterized does not affect our analysis.
[10] It was not necessary for the appellees to submit an affidavit to this Court to show that Gregory does not pay property taxes to the Town of Willards. As noted above, we are an appellate court, and do not take evidence and make findings. In the proceedings below, however, Gregory did not put forth any evidence to show that he pays taxes to the town. Moreover, that issue was undisputedneither party contended that Gregory pays real property taxes (or any taxes) to the Town of Willards. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/604932/ | 991 F.2d 663
Larry Joe JOHNSON, Petitioner-Appellee, Cross-Appellant,v.Harry K. SINGLETARY, Jr., Secretary of the FloridaDepartment of Corrections, Respondent-Appellant,Cross-Appellee.
No. 93-2497.
United States Court of Appeals,Eleventh Circuit.
May 7, 1993.Certiorari Denied May 8, 1993.113 S. Ct. 2049.
Mark C. Menser, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, FL, for petitioner-appellee.
Martin J. McClain, Capital Collateral Representative, Office of the Capital Collateral Representative, Tallahassee, FL, for respondent-appellant.
Appeals from the United States District Court for the Northern District of Florida.
Before FAY, HATCHETT and BLACK, Circuit Judges.
PER CURIAM:
1
Petitioner, Larry Joe Johnson, a Florida death row inmate, filed a third federal petition for a writ of habeas corpus after the Governor of the State of Florida had signed a fourth death warrant. The district court granted the writ and stayed Johnson's execution. Respondent, Harry K. Singletary, filed a Notice of Appeal and a Motion to Vacate Stay of Execution and Writ of Habeas Corpus. In his motion the Respondent asserts that Petitioner's third petition for habeas corpus should not have been granted by the district court because all of the claims are procedurally barred and constitute either an abuse of the writ or an improper successive petition. The district court granted the writ because it found that a claim, which had been brought previously, should be redetermined based upon an intervening change in the law. For the reasons stated below, we reverse.
I. PROCEDURAL HISTORY
2
The petitioner, Larry Joe Johnson, was convicted of first-degree murder and robbery with a firearm for the robbery of a convenience store and the murder of the store clerk. On November 17, 1983, the Florida Supreme Court affirmed both convictions and sentences, and on January 16, 1984, it denied rehearing. Johnson v. State, 442 So. 2d 185 (Fla.1983). The United States Supreme Court denied Johnson's petition for certiorari. Johnson v. Florida, 466 U.S. 963, 104 S. Ct. 2181, 80 L. Ed. 2d 563 (1984). On January 23, 1985, the Circuit Court for the Third Judicial Circuit of Florida denied without hearing Johnson's Rule 3.850 motion for post-conviction relief. The Florida Supreme Court affirmed the denial on January 28, 1985, also denying Johnson's petition for a writ of habeas corpus. Johnson v. Wainwright, 463 So. 2d 207 (Fla.1985). The same day, Johnson filed a federal habeas corpus petition and a motion for stay of execution in the United States District Court for the Northern District of Florida. On January 29, 1985, the district court denied the writ but granted a certificate of probable cause. This Court affirmed the district court's denial of the petition. Johnson v. Wainwright, 778 F.2d 623 (11th Cir.1985), cert. denied, 484 U.S. 872, 108 S. Ct. 201, 98 L. Ed. 2d 152 (1987).
3
After the Governor signed a second death warrant on January 29, 1988, Johnson filed a petition to the Florida Supreme Court for relief pursuant to Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987). The Florida Supreme Court denied relief and refused to grant a stay of execution. Johnson v. Dugger, 520 So. 2d 565 (Fla.1988). On March 3, 1988, Johnson filed his second Rule 3.850 motion, which was summarily denied. The Florida Supreme Court affirmed, holding that all of the claims were procedurally barred. Johnson v. State, 522 So. 2d 356 (Fla.1988). Johnson then filed his second federal habeas corpus petition; the district court denied relief on all counts and found an abuse of the writ. This Court affirmed the district court's denial of the writ. Johnson v. Dugger, 932 F.2d 1360 (11th Cir.), cert. denied, Johnson v. Singletary, --- U.S. ----, 112 S. Ct. 427, 116 L. Ed. 2d 446 (1991).
4
The mandate was returned on November 18, 1991. Governor Chiles signed a third death warrant on January 7, 1993. The warrant period began at noon, Tuesday, February 2, 1993, and was to expire at noon, Tuesday, February 9, 1993; the execution was scheduled for 7:00 a.m. on Wednesday, February 3, 1993. On Thursday, January 21, 1993, Johnson filed an Application for Stay of Execution and a Rule 60(b) Motion for Relief from Judgment in the United States District Court for the Northern District of Florida. He filed a Petition for Extraordinary Relief and for a Writ of Habeas Corpus with the Florida Supreme Court on Monday, January 25, 1993. On Friday, January 29, 1993, the Florida Supreme Court denied Johnson's petition, but the next day the Governor issued a stay of execution of indefinite duration.
5
On April 15, 1993, the Governor signed Johnson's fourth death warrant, to run from noon, Tuesday, May 4, 1993, until noon, Tuesday, May 11, 1993. The execution was scheduled for 7:00 a.m. on Wednesday, May 5, 1993. On April 28, 1993, Johnson filed a petition for writ of certiorari in the United States Supreme Court. On April 28, 1993, he also filed, in the Florida Supreme Court, a Motion to Recall the Mandate and for Stay of Execution and an Emergency Application for Stay of Execution Pending the Filing and Disposition of a Petition for Writ of Certiorari. On April 30, 1993, the Florida Supreme Court denied all relief. On May 3, 1993, the United States Supreme Court denied Johnson's petition for a writ of certiorari and his application for a stay of execution.
6
On April 29, 1993, Johnson filed his third federal habeas corpus petition. On May 4, 1993, the district court granted Johnson's third petition, vacated his death sentence, and stayed the execution. Respondent filed a Notice of Appeal and a Motion to Vacate Stay of Execution and Writ of Habeas Corpus on May 5, 1993. On May 6, 1993 the Petitioner filed a Motion to Dismiss Respondent-Appellant's Motion to Vacate Stay of Execution and Writ of Habeas Corpus and a Notice of Cross-Appeal.
II. DISCUSSION
7
Petitioner, Larry Joe Johnson, raised three issues in his third petition for federal habeas corpus relief, pursuant to 28 U.S.C. § 2254. All of the grounds were based on the alleged invalidity of various aggravating factors, either considered by the jury or found by the sentencing judge. First, Johnson argued that because he was convicted of first-degree felony murder, the use of the statutory aggravating factors: "in the course of a felony" and "for pecuniary gain," did not channel the jury's discretion as required by the Eighth Amendment.1 Second, he contended that the statutory aggravating circumstances were facially vague and overbroad, and that vagueness was not cured by adequate narrowing instructions in this case. Finally, Johnson asserted that the recommendation of a death sentence by the sentencing jury was tainted by the consideration of invalid aggravating circumstances.
8
The district court granted the writ on the first ground raised and stayed Johnson's execution. The district court held that the second and third claims, which were never raised on the previous petitions, were procedurally barred. The district court further held that the Petitioner had not shown cause for the procedural default and that there was no other justification to reach the merits of those claims. We agree and affirm the denial of the writ on those two grounds based upon the reasoning in the district court's opinion.
9
On the Petitioner's first claim, the district court found that it was not barred by state procedural rules but that it was raised on a previous federal petition and determined on the merits. The district court held that because the claim was a successive petition, it need not reach the merits of the claim unless the Petitioner showed cause and prejudice or the ends of justice required redetermination of the previously decided issue. The district court further found that the Petitioner had failed to show cause for his repetitious claim and that he could not satisfy the "actual innocence" standard of Sawyer v. Whitley, --- U.S. ----, 112 S. Ct. 2514, 120 L. Ed. 2d 269 (1992). See also, Johnson v. Singletary, 938 F.2d 1166 (11th Cir.1991) (en banc).
10
Pursuant to this Court's holding in Martin v. Dugger, 891 F.2d 807 (11th Cir.1989), however, the district court held that the ends of justice standard could be met even where there was no colorable showing of actual innocence. In this case, the district court held that the ends of justice required it to reach the merits of the successive claim because there was an "intervening change in the law." 891 F.2d at 809 (quoting Sanders v. United States, 373 U.S. 1, 17, 83 S. Ct. 1068, 1078, 10 L. Ed. 2d 148 (1963)).
11
In particular, the district court summarily concluded that the Supreme Court's holding in Stringer v. Black, --- U.S. ----, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992), rendered the prior holding in Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988), inapplicable to a weighing state, such as Florida. According to the district court, the previous disposition of Johnson's claim by this Court2 that applied Lowenfield to a weighing state is not consistent with Stringer.3 Accordingly, the district court concluded that Stringer is the type of intervening change in the law that the ends of justice require the court to reach the merits of this repetitious claim.
A. ENDS OF JUSTICE
12
The district court reached the merits of the Petitioner's first claim notwithstanding the fact that the same claim had been raised in the previous petition and had been rejected on the merits, notwithstanding the fact that the district court found that the Petitioner could not show cause for the repetitious filing, and notwithstanding the fact that this claim did not amount to a colorable showing that the Petitioner was "actually innocent" of the death penalty. Relying on Martin v. Dugger, 891 F.2d 807 (11th Cir.1989), the district court held that the "ends of justice" required that it reach the merits of the claim because of an intervening change in the law.
13
To the extent that Martin defined the "ends of justice" exception in the context of abusive petitions to allow a court to reach the merits of an abusive or successive petition without cause and prejudice or a colorable showing of actual innocence, that decision was clearly overruled by the Supreme Court's decision in Sawyer v. Whitley, 505 U.S. ----, 112 S. Ct. 2514, 120 L. Ed. 2d 269 (1992), and this Court's en banc decision in Johnson (Marvin) v. Singletary, 938 F.2d 1166 (11th Cir.1991), which was cited with approval in Sawyer.
14
In Sawyer v. Whitley, the Supreme Court held that
15
[u]nless a habeas petitioner shows cause and prejudice, a court may not reach the merits of: (a) successive claims which raise grounds identical to grounds heard and decided on the merits in a previous petition; (b) new claims, not previously raised which constitute an abuse of the writ; or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims.
16
505 U.S. at ----, 112 S. Ct. at 2518, 120 L.Ed.2d at 279 (citations omitted). The only exception to this rule is that "a federal court may hear the merits of the successive claims if the failure to hear the claims would constitute a 'miscarriage of justice.' " Id.
17
Similarly, this Court in Johnson (Marvin) clearly stated that there are only two exceptions to procedural default bars. Those two exceptions are "cause and prejudice" and "a narrow second exception: 'in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.' " 938 F.2d at 1174 (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397 (1986).
18
The "miscarriage of justice exception would allow successive claims to be heard if the petitioner 'establish[es] that under the probative evidence he has a colorable claim of factual innocence.' " 505 U.S. at ----, 112 S. Ct. at 2519, 120 L.Ed.2d at 280. Although the Court went on to state that it is possible to show a colorable claim of factual innocence of the death penalty, the Petitioner in this case has failed to make that showing.
19
As explained in Smith v. Murray, 477 U.S. 527, 537, 106 S. Ct. 2661, 2667, 91 L. Ed. 2d 434 (1986), the "concept of 'actual,' as distinct from 'legal,' innocence does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capital offense."4 "The phrase 'innocent of death' is not a natural usage of those words." Sawyer, 505 U.S. at ----, 112 S. Ct. at 2520, 120 L.Ed.2d at 281. The Sawyer Court held that the test for actual innocence of the death penalty must "focus on those elements which render a defendant eligible for the death penalty." 505 U.S. at ----, 112 S. Ct. at 2523, 120 L.Ed.2d at 285. The petitioner must show "by clear and convincing evidence that but for constitutional error at his sentencing hearing, no reasonable juror would have found him eligible for the death penalty" under state law. 505 U.S. at ----, 112 S. Ct. at 2525, 120 L.Ed.2d at 287.
20
To understand this rule in the context of Florida's death penalty statute we turn to the "eligibility" rule enunciated by this Court in Johnson (Marvin) v. Singletary, 938 F.2d 1166 (11th Cir.1991) (en banc), and specifically endorsed by the Sawyer Court. 505 U.S. at ----, 112 S. Ct. at 2523, 120 L.Ed.2d at 285. Under Florida law, the jury must find at least one statutory aggravating circumstance in order to recommend a death sentence. In Johnson, the Court held, that in order to make a showing of actual innocence of the death penalty, the petitioner must demonstrate that "an alleged constitutional error implicates all of the aggravating factors found to be present by the sentencing body. That is, but for the alleged constitutional error, the sentencing body could not have found any aggravating factors and thus the petitioner was ineligible for the death penalty." 938 F.2d at 1183 (emphasis in original). In other words, even if the petitioner can show that but for the constitutional error the weighing of the factors might have been different, this is not enough to make a colorable showing of actual innocence.
21
In this case, Johnson's petition challenges two of the three aggravating factors found by the sentencing judge, and another factor considered by the jury but explicitly not found by the sentencing judge. Since Johnson is not challenging all of the aggravating factors and since he would still be eligible for the death sentence even if his challenge were upheld, we hold that Johnson has not made a colorable showing of actual innocence of the death penalty pursuant to the rule announced in Johnson and endorsed in Sawyer. Accordingly, we hold that the district court erred in reaching the merits of Petitioner's claim.
B. APPLICABILITY OF LOWENFIELD
22
Although our decision is not based upon the merits of whether an intervening change in the law occurred, in the interest of completeness we address the Lowenfield issue. The district court held that the Supreme Court's decision in Stringer v. Black, 503 U.S. ----, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992), undermines this Court's analysis of Petitioner's first claim when it was raised in his previous habeas corpus petition. The district court's Order does not explain how Stringer undermines the applicability of Lowenfield to this case. We, therefore, begin this discussion with a summary of Lowenfield.
23
In Lowenfield, the petitioner had been convicted of, inter alia, three counts of first degree murder. An essential element of those convictions was that the petitioner intended " 'to kill or inflict great bodily harm upon more than one person.' " 484 U.S. at 233, 108 S.Ct. at 548 (quoting La.Rev.Stat.Ann. § 14:30 A(3) (West 1986)). After a separate sentencing hearing, the jury returned death sentences on all three first-degree murder verdicts. The jury found the statutory aggravating circumstance of " 'knowingly creat[ing] a risk of death or great bodily harm to more than one person.' " Id. at 235, 108 S.Ct. at 549 (quoting La.Code Crim.Proc.Ann. art. 905.4(d) (West 1984)). The Supreme Court held that the duplicative nature of an element of the underlying conviction and the sole aggravating circumstance did not violate the Eighth Amendment. "To pass constitutional muster, a capital sentencing scheme must 'genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.' " Id. at 244, 108 S.Ct. at 554 (quoting Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983)).
24
In Johnson's previous appeal, we held that "[t]he Florida sentencing scheme as applied in Johnson's case 'genuinely narrows the class of persons eligible for the death penalty.' The sentencing court's individualized 'consideration of mitigating circumstances and ... exercise of discretion' were sufficient to satisfy the requirements of the Eighth and Fourteenth Amendments." 932 F.2d at 1369-70 (footnotes omitted). We rejected Johnson's argument holding that the fact that an element of the underlying conviction and one of the aggravating factors was duplicative did not invalidate that aggravating factor. The district court's Order granting the writ is based upon its belief that Stringer somehow undermines this analysis.
25
In Stringer v. Black, 503 U.S. ----, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992), the Supreme Court held that when a sentencing jury, in a weighing state, considers a constitutionally invalid aggravating factor, the appellate courts "may not assume it would have made no difference if the thumb had been removed from death's side of the scale." 503 U.S. at ----, 112 S. Ct. at 1137, 117 L.Ed.2d at 379. The issue in Stringer was the jury's consideration of the "heinous, atrocious, and cruel" aggravating factor. Nothing in Stringer indicates that there is any constitutional infirmity in the Florida statute which permits a defendant to be death eligible based upon a felony murder conviction, and to be sentenced to death based upon an aggravating circumstance that duplicates an element of the underlying conviction.
26
Stringer stands for the proposition that if Johnson's jury had considered an invalid aggravating factor, we must assume that that factor affected their weighing process. It does not hold that the consideration of the felony murder aggravating factor in this case is invalid. We hold that Stringer v. Black is not an intervening change in the law, which undermines the previous decision in this case, and that Johnson's successive claim constitutes an abuse of the writ.
27
Accordingly, we REVERSE the district court's Order granting the writ of habeas corpus, DISMISS the cross-appeal, VACATE the stay of execution, and instruct the district court to dismiss Johnson's petition. The Clerk is instructed to issue the mandate in this matter at 4:00 p.m. on Friday, May 7, 1993.
1
The Petitioner also contends that the Supreme Court's grant of certiorari in the case of Tennessee v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992), cert. granted, --- U.S. ----, 113 S. Ct. 1840, 123 L. Ed. 2d 466 (1993), supports his claim that the duplication of an element of the offense and an aggravating factor violates the Eighth and Fourteenth Amendments. The grant of certiorari is not an intervening change in the law
2
Johnson v. Dugger, 932 F.2d 1360 (11th Cir.), cert. denied, --- U.S. ----, 112 S. Ct. 427, 116 L. Ed. 2d 446 (1991)
3
Johnson is not the only case in this Circuit to apply Lowenfield to a weighing state. See Bertolotti v. Dugger, 883 F.2d 1503, 1527-28 (11th Cir.1989)
4
[The] standard for determining actual innocence was articulated in Kuhlmann as: "[T]he prisoner must 'show a fair probability that, in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial, the trier of facts would have entertained a reasonable doubt of his guilt.' "
Sawyer v. Whitley, 505 U.S. ----, ---- n. 5, 112 S. Ct. 2514, 2519 n. 5, 120 L. Ed. 2d 269, 280 n. 5 (1992) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 455, 106 S. Ct. 2616, 2627, 91 L. Ed. 2d 364 (1986) (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970))). | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1300322/ | 691 S.E.2d 767 (2010)
HALLMAN
v.
NORTH CAROLINA DEPT. OF CORRECTIONS.
No. COA09-1049.
Court of Appeals of North Carolina.
Filed March 2, 2010.
Certification Date March 22, 2010.
Case Reported Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/32518/ | United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2003
Charles R. Fulbruge III
Clerk
No. 03-50062
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXIS RONALDO ALVA-CARVAJAL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-02-CR-488-01-WWJ
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Alexis Ronaldo Alva-Carvajal appeals the sentence imposed
following his guilty plea conviction of being found in the United
States after deportation/removal in violation of 8 U.S.C. § 1326.
Alva-Carvajal contends that 8 U.S.C. § 1326(a) and 8 U.S.C.
§ 1326(b) define separate offenses. He argues that the prior
conviction that resulted in his increased sentence is an element
of a separate offense under 8 U.S.C. § 1326(b) that should have
been alleged in his indictment. Alva-Carvajal maintains that he
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-50062
-2-
pleaded guilty to an indictment which charged only simple reentry
under 8 U.S.C. § 1326(a). He argues that his sentence exceeds
maximum terms of imprisonment and supervised release which may be
imposed for that offense.
In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that the enhanced penalties in
8 U.S.C. § 1326(b) are sentencing provisions, not elements of
separate offenses. The Court further held that the sentencing
provisions do not violate the Due Process Clause. Id. at 239-47.
Alva-Carvajal acknowledges that his argument is foreclosed by
Almendarez-Torres, but asserts that the decision has been cast
into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
He seeks to preserve his argument for further review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted). The judgment of the district court is
AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that an appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED. | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/741921/ | 116 F.3d 102
32 UCC Rep.Serv.2d 1101, Prod.Liab.Rep. (CCH) P 14,986John M. MARTIN, Sr., Plaintiff-Appellant,v.AMERICAN MEDICAL SYSTEMS, INCORPORATED, Defendant-Appellee.
No. 96-1627.
United States Court of Appeals,Fourth Circuit.
Argued April 9, 1997.Decided June 19, 1997.
ARGUED: David Michael Deutsch, David M. Deutsch, Co., L.P.A., Dayton, Ohio, for Appellant. Barbara Ann Williams, Wright, Robinson, Osthimer & Tatum, Richmond, Virginia, for Appellee. ON BRIEF: Mark D. Brynteson, David & Brynteson, P.C., Chesapeake, Virginia, for Appellant.
Before HALL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Vacated and remanded by published opinion. Judge K.K. HALL wrote the opinion, in which Judge MURNAGHAN and Senior Judge BUTZNER joined.
OPINION
K.K. HALL, Circuit Judge:
1
John M. Martin appeals a summary judgment entered for defendant American Medical Systems in Martin's personal injury suit. In light of a recent controlling decision of the Supreme Court, we vacate the judgment and remand.
I.
2
Martin suffers from erectile dysfunction. He consulted a urologist about his problem, and the urologist recommended that he use an inflatable penile prosthesis. He gave Martin some literature and a videotape about defendant American Medical Systems' prostheses. After reviewing these materials, Martin chose to use defendant's "Dynaflex" product.
3
On June 2, 1993, the Dynaflex was surgically implanted. Soon thereafter, Martin developed a severe infection. On June 25, his urologist prescribed intravenous antibiotics, but to no avail. Martin then underwent a second surgery to remove the Dynaflex.
4
The infection raged on, however. He was again treated with intravenous antibiotics in August. From November 29, 1993, through May 13, 1994, he was hospitalized five times for surgery, including debridement of dead tissue, skin grafts, removal of a cyst and an abscess, and subtotal phallic reconstruction. His penis is now disfigured and shortened.
5
Martin filed this personal injury suit in state court in Chesapeake, Virginia. He alleged several tort and warranty theories against American Medical Systems, the gravamen of all of which was that the defendant failed to ensure that the Dynaflex would be sterile and hence safe for implantation in the human body. The defendant removed the case to district court based on diversity of citizenship.
6
After limited discovery, American Medical Systems moved for summary judgment. It argued that Martin's claims were preempted by the Medical Device Amendments of 1976, 21 U.S.C. § 360. The district court held that all claims were preempted except breach of express warranty. On that claim, it held that Martin could not show that he relied on the express "Limited Warranty" American Medical made to his urologist.1 To the extent that Virginia law precluded manufacturers from limiting warranties to those in privity of contract, the district court held that it, too, would be preempted. Summary judgment was entered for the defendant.
7
Martin appeals.
II.
8
Martin first attacks the district court's holding that his tort and implied warranty claims are preempted. This issue dominates Martin's brief, but, in its response, American Medical Systems concedes that under the Supreme Court's decision in Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996), Martin is right: the Medical Device Amendments of 1976 do not preempt his common-law claims.
9
For context's sake, we will briefly describe what this issue was all about. Before 1976, the Food and Drug Administration (FDA)'s rigorous premarketing approval did not extend to medical devices. The Dalkon Shield disaster, among others, prompted Congress to change that. Today, the maker of a new "Class III" device--the most potentially dangerous--must apply for FDA approval and must cool its heels while the FDA thoroughly investigates the device's effectiveness. 21 U.S.C. § 360e(d)(2). The Dynaflex is a Class III device.
10
Because the 1976 amendments so abruptly changed the status quo, Congress was compelled to take the existing market into account. Any device on the market at the time was permitted to stay on the market until and unless the FDA, after conducting a review like that for new devices, ordered otherwise. 21 U.S.C. § 360e(b)(1)(A).
11
This grandfather clause took care of assuring the continued availability of necessary equipment; on the other hand, it locked up market power in the current manufacturers, and it posed a risk that, if the manufacturer of some device went out of business, a much-needed product might be unavailable during the time it would take a new manufacturer to go through the FDA premarket approval process. Accordingly, Congress also exempted from premarket approval "substantially equivalent devices" to those on the market in 1976. 21 U.S.C. § 360e(b)(1)(B). Under this exemption, a manufacturer need only notify the FDA of its intent to market a device. If the FDA concludes that the device is "substantially equivalent," it notifies the manufacturer, which is then free to market its product. This limited FDA review is called "510(k)" after its section number in the original act.2 The Dynaflex reached the market in this way.
12
In assuming federal responsibility for the safety of medical devices, Congress expressly preempted the power of the states:
13
Except [where the FDA has exempted a particular state requirement], no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement--
14
(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and
15
(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.
16
21 U.S.C. § 360k(a). Manufacturers of medical devices have argued that requirements imposed by state tort law are among the things preempted. This court, in Duvall v. Bristol-Myers-Squibb Co., 65 F.3d 392 (4th Cir.1995), agreed. The district court relied on Duvall in granting the summary judgment here.
17
Subsequently, the Supreme Court decided Medtronic. In that case, the Court held that, as regards 510(k) devices, state-law claims are not preempted. The Court reasoned that the 510(k) process does not constitute FDA approval of the safety or effectiveness of the device, but was rather merely the preservation of the pre-1976 status quo, which included potential liability under state law.3
18
Thus, an intervening decision of the Supreme Court requires that we set aside the summary judgment on all of Martin's claims except the one for breach of express warranty. On the latter claim, to which we now turn, the summary judgment did not rest solely on Duvall, and American Medical Systems contends that it can be affirmed notwithstanding Medtronic.
III.
19
Under Duvall, some warranty claims could be brought against the manufacturer of a 510(k) device. Because the Medical Device preemption provision relates to state laws that add safety and quality requirements in excess of FDA premarket approval, we reasoned that a manufacturer could voluntarily make claims about its product and thereby incur contractual liability; an obligation freely assumed by contract is not one required by general state law.
20
Here, the district court correctly held that Martin's warranty claim was not preempted per se. However, the court held that summary judgment for the defendant was appropriate, because (1) Martin was unaware of the Limited Warranty when he got the implant, and (2) language in the Limited Warranty restricting it to the direct purchaser and disclaiming liability for consequential damages was effective, notwithstanding contrary Virginia law. On this second point, the court reasoned that any warranty coverage for Martin would be on account of state law, not American Medical Systems' voluntary undertaking, and so the state law was preempted.
21
Medtronic overturned this analysis; Martin is entitled to rely on state law concerning the scope and validity of the defendant's warranty. Va.Code § 8.2-318 states:
22
Lack of privity between plaintiff and defendant shall be no defense in any action brought against the manufacturer or seller of goods to recover damages for breach of warranty, express or implied, or for negligence, although the plaintiff did not purchase the goods from the defendant, if the plaintiff was a person whom the manufacturer or seller might reasonably have expected to use, consume, or be affected by the goods[.]
23
Obviously, American Medical Systems knows that the direct purchaser of its Dynaflex prosthesis--a surgeon or hospital--is not the ultimate user. It therefore cannot rely on language in its "Limited Warranty" restricting coverage to the direct purchaser.
24
Likewise, Virginia law prohibits the exclusion of consequential damages where such an exclusion is unconscionable. Va.Code § 8.2-719(3). The statute explicitly provides that such an exclusion for "injury to the person in the case of consumer goods is prima facie unconscionable." There is nothing in the current record to rebut the prima facie unconscionability of this exclusion.
25
Having concluded that Virginia law applies and would extend any express warranty to Martin, we turn to whether an express warranty was even made. The district court pointed out that Martin did not know of the express warranty that the prosthesis was sterile until this litigation began; therefore, he could not have relied upon it.
26
Clear Virginia authority is to the contrary. Any description of the goods, other than the seller's mere opinion about the product, constitutes part of the basis of the bargain and is therefore an express warranty. It is unnecessary that the buyer actually rely upon it. Daughtrey v. Ashe, 243 Va. 73, 413 S.E.2d 336 (1992). In Daughtrey, a jeweler had described a gem as being of higher quality than it actually was. In a subsequent breach of warranty suit, the jeweler asserted that the buyer had not been aware of the description and had not relied upon it. The Virginia Supreme Court held that it did not matter. The express warranty inquiry focuses on what it is that the seller agreed to sell, and, absent clear proof that the parties did not intend their bargain to include the seller's description of the goods, that description is an express warranty. 413 S.E.2d at 338-339.
27
The facts of this case militate even more strongly in favor of an express warranty than in Daughtrey. In both cases, the seller described the goods, but the buyer was unaware of the description. Here, though, unlike in Daughtrey, Martin surely did rely on and expect the fact warranted to be true: i.e. the implant was sterile. Martin may assert a claim for breach of express warranty.
28
The judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion.
29
VACATED AND REMANDED.
1
The relevant warranty is "The AMS Dynaflex Penile Prosthesis ... [is] delivered to the hospital prefilled and sterile."
2
"510(k)" is codified at 21 U.S.C. § 360(k)
3
The Court later vacated Duvall v. Bristol-Myers Squibb Co., --- U.S. ----, 116 S.Ct. 2575, 135 L.Ed.2d 1090 (1996), and remanded it for our reconsideration. For our decision on remand, see Duvall v. Bristol-Myers-Squibb Co., 103 F.3d 324 (4th Cir.1996) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/741924/ | 116 F.3d 115
Jerry R. WILLIAMSON, Plaintiff-Appellant,v.Stephen MARK, Doctor; Russell Hunt, Esq., Defendants-Appellees.
No. 96-50818.
United States Court of Appeals,Fifth Circuit
June 5, 1997.
1
Appeal from the United States District Court for the Western District of Texas.
2
Jerry R. Williamson, Coleman, FL, pro se.
3
Before WIENER and PARKER, Circuit Judges, and LITTLE, District Judge.*
ORDER
BY THE COURT:
4
Plaintiff-Appellant, Jerry R. Williamson, a federal prisoner, filed a motion to proceed in forma pauperis (IFP) in the above captioned appeal. This court, by order of January 21, 1997, instructed Williamson to comply with the Prison Litigation Reform Act of 1995 (PLRA), either by paying our appellate filing fee of $105 or by filing an affidavit and certified statement of his trust fund account. Williamson complied by submitting such an affidavit and statement.
5
Before an initial partial filing fee was assessed for Williamson and payment of the balance of the filing fee ordered as required by the PLRA, however, we decided Morgan v. Haro.1 In that case we held that (1) a prisoner who seeks to proceed IFP on appeal must obtain leave to do so even if he has proceeded IFP in the district court, and (2) the financial screening and assessment procedures of the PLRA regarding appellate filing fees are nevertheless to be conducted by the district court.
6
IT IS ORDERED, therefore, that this appeal be held in abeyance and that only the preliminary issue of Williamson's request to proceed IFP in this court be remanded to the district court to permit it to rule on Williamson's appellate IFP application and, if granted, to order payment of the proper appellate filing fee pursuant to 28 U.S.C. § 1915(b); this panel retaining jurisdiction of Williamson's appeal for all other purposes. After such a determination is made by the district court, it shall return the case to this court for further proceedings by this panel.
7
In the event that (1) further proceedings should eventuate, (2) this panel should ultimately determine that we have jurisdiction over Williamson's appeal, and (3) we should find merit in the sole matter of substance in that appeal, i.e., Williamson's contention that the district court's calculation of the initial district court filing fee payable under the PLRA upon the filing of his original complaint was erroneous, we shall continue to retain appellate jurisdiction but order another limited remand to the district court for the purpose of (1) affording the district court the opportunity to re-assess the correct district court filing fees due from Williamson under the PLRA, and (2) allowing Williamson to continue prosecuting his complaint, assuming that he is still inclined to do so and that he timely remits the appropriate new district court filing fee assessment.
8
IT IS FURTHER ORDERED that if Williamson thus proceeds in district court but is ultimately dissatisfied with the final ruling or rulings of that court and desires to prosecute his appeal therefrom in this court, he will be permitted to do so upon his timely filing a new notice of appeal under the same appellate docket number as this one and without being required to remit a second appellate filing fee.
9
REMANDED with instructions, and with appellate jurisdiction retained by this panel.
*
District Judge of the Western District of Louisiana, sitting by designation
1
112 F.3d 788, 789 (5th Cir.1997) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/8304718/ | HOWELL, J.
This is a suit for damages for false arrest and malicious prosecution filed by the plaintiff, Paul Streetman, against the defendants, O. C. Eichardson, Edward Mayes and L. L. Thaden.
The declaration alleges that in August 1951, the defendant O. C. Eichardson was the owner of a used car lot in Nashville and doing business as Eich’s Auto Town, that the defendants L. L. Thaden and Edward Mayes were employed by defendant Eichardson at this used car lot; that on August 28, 1951, the defendant Thaden maliciously and without probable cause swore out a States Warrant against the plaintiff charging- him with the offense of fraudulently obtaining property by means of a worthless check for $77.00; that the defendant Mayes appeared before the Grand Jury and as a result the plaintiff was indicted and that upon his trial before a Judge and jury in the Criminal Court he was acquitted by the jury. It is further alleged that C. C. Eichardson and Edward Mayes testified at the trial in the Criminal Court. The declaration further alleged that the prosecution of him in *526the Criminal Court was malicious, wanton and wilful upon the part of the defendants Richardson, Thaden and Mayes and was instituted solely for the purpose of embarrassing and humiliating the plaintiff and forcing him to pay a sum that he did not owe the defendants. It is further alleged that as a result of this prosecution, the plaintiff suffered great embarrassment and humiliation and was forced to spend large sums for counsel fees and bonds and was also greatly damaged in his employment and reputation.
The defendants Thaden and Mayes did not make any defense and a default judgment was rendered against them.
The defendant Richardson filed a plea of not guilty.
Upon the trial in the Circuit Court before the Court and a jury the defendant did not offer any proof, and the case was beard upon the pleadings and exhibits and the testimony of the plaintiff and his witnesses.
The jury returned a verdict against all three of the defendants for $7,500.00, which was approved by the trial Judge.
By proper procedure the defendant Richardson has appealed in error to this Court and has assigned errors.
There is no merit in the assignment of error that there is no evidence to support the verdict against the defendant Richardson. He was the owner of the business and the other two defendants were his employees.
The statement of plaintiff’s attorney upon the trial that the defendant Richardson testified before the Grand Jury did not materially affect.the result of the case. He did testify upon the trial in the Criminal Court.
The next assignment is that the verdict is excessive. We find that there is merit in this assignment.
*527Since the passage of Chapter 253 of the Acts of 1949', it is not necessary for the Court to find that a verdict is so excessive as to indicate passion, prejudice, corruption, partiality, or unaccountable caprice on the part of the jury. The Court may only consider whether or not the verdict “should be reduced.”
In this case the plaintiff was not confined by reason of the indictment and his expenses in connection with his trial and his loss of1 time on account of it amounted to less than $300.00. He did suffer embarrassment and humiliation and is entitled to recover therefor.
We are therefore of the opinion that the amount of $7,500.00 is excessive for the damages sustained and that the sum of $3,000.00 would amply compensate the plaintiff. We therefore suggest a remittitur of $4,500.00 reducing the judgment to $3,000.00. In the event this remittitur is accepted by the plaintiff within twenty days from this date, a judgment will be entered against the defendant Richardson for $3,000.00 and the costs. If however, the remittitur is not accepted within the above mentioned time the judgment will be reversed and the case remanded to the Circuit Court of Davidson County for a new trial and all costs of the appeal will be adjudged against the plaintiff in the trial Court, the defendants in error here.
Modified and affirmed:
Felts and Hickerson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3033653/ | FILED
UNITED STATES COURT OF APPEALS FEB 23 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
OMNI HOME FINANCING, INC., A No. 08-56431
California Corporation; KEITH W.
MURPHY, An Individual; ANTHONY A. D.C. No. 3:06-cv-00921-IEG-JMA
GAGLIONE, An Individual; DAVID A. Southern District of California,
BANCROFT, An Individual; OMNI San Diego
HOME FINANCING, INC. 412(I)
DEFINED BENEFIT PLAN, An
Employee Benefits Plan Under ERISA, ORDER
Plaintiffs - Appellants,
v.
HARTFORD LIFE AND ANNUITY
INSURANCE COMPANY, A Delaware
Corporation; PAUL BANNOCK, An
Individual,
Defendants - Appellees.
Before: THOMAS and SILVERMAN, Circuit Judges, and BEISTLINE, * Chief
District Judge.
Pursuant to stipulation by the parties, and for good cause shown, this case is
dismissed with prejudice. Each party shall bear their respective costs and
*
The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
attorneys’ fees. A certified copy of this order sent to the district court shall
constitute the mandate. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/741882/ | 115 F.3d 1312
I/N KOTE, an Indiana general partnership, Plaintiff-Appellant,v.The HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY,a Connecticut corporation, Defendant-Appellee.
No. 96-2052.
United States Court of Appeals,Seventh Circuit.
Argued Nov. 8, 1996.Decided June 11, 1997.Rehearing and Suggestion for Rehearing En Banc Denied July 11, 1997.
Louis R. Hegeman, Barry S. Hyman, Gould & Ratner, Michele Odorizzi (argued), Mayer, Brown & Platt, Chicago, IL, for Plaintiff-Appellant.
Mark N. Senak, Thomas B. Keegan, Edward W. Gleason, Susan M. Griesgraber, Charles L. Philbrick, Richard B. Allyn, Terrence R. Joy (argued), Robins, Kaplan, Miller & Ciresi, Minneapolis, MN, for Defendant-Appellee.
Before EASTERBROOK, MANION and ROVNER, Circuit Judges.
MANION, Circuit Judge.
1
I/N Kote and Hartford Steam Boiler Inspection and Insurance Company dispute the meaning of an exclusion to coverage contained within a policy Hartford issued to Kote. The dispute presents us with the question of whether revolving cylinders known as "rolls" which extend through a "furnace" are part of the "furnace." The district court concluded that the affected rolls were part of the furnace; thus Hartford was not obligated to cover substantial losses resulting from heat damage to the rolls. Because we conclude that Hartford's furnace exclusion does not clearly nor unmistakably exclude from coverage the rolls extending through the furnace, we reverse and remand.
I.
2
Between 1989 and 1991, I/N Kote, a general partnership between subsidiaries of Inland Steel Corporation and Nippon Steel Corporation, built a half-billion dollar state-of-the-art galvanizing facility in New Carlisle, Indiana. The facility includes both an electro-galvanizing line as well as a hot dip continuous galvanizing line. This case concerns the latter, which was completed in November of 1991 and went on line sometime in December 1991 or January 1992.
The I/N Kote Continuous Galvanizing Line
3
I/N Kote's facility includes a highly automated Hot Dip Continuous Galvanizing Line1 ("CGL") which applies zinc to the surface of a continuous length of steel. The CGL anneals (a process of heating and slowly cooling hard steel to soften it and render it flexible and formable) and galvanizes (a process of coating steel with zinc to retard oxidation) a continuous strip of steel substrate. The CGL consists of a series of operations, each contained in a separate section along the length of a very long building. The process begins in the "entry section" where steel substrate arrives in 45-ton coils which are uncoiled and welded together, end to end. The now-continuous strip of steel passes through an alkaline and electrolytic "cleaning section," which feeds into the "entry looper" storage section. The entry looper stores up a sufficient stock of steel coming out of the welder so that the steel can be carried through the rest of the line at a steady, regulated speed unaffected by the uncoiling and welding of the incoming steel.
4
After exiting the entry looper, the steel band enters the annealing furnace, a ten-story-high enclosure where it passes through four zones, each also called a "furnace": first it enters the "radiant tube furnace," after which it passes through the "soaking furnace"; from there the steel strip is carried through the "slow cooling furnace" and the "jet-cooling furnace." The radiant tube furnace employs gas-fired radiant tubes to raise the steel to a temperature between 825 to 900 degrees Celsius; the soaking furnace maintains this temperature with electrical radiant tubes; the slow cooling furnace uses water-cooled heat exchangers and fans to slowly lower the temperature of the steel; and the jet-cool furnace plunge cools the steel to roughly 500 degrees Celsius, the correct temperature for immersion in the molten zinc in the next stage of the line. The four "furnaces" contained within the annealing furnace section of the line are pressurized enclosures containing a hydrogen and nitrogen atmosphere to prevent oxidation of the steel substrate during annealing which might interfere with the galvanizing process. There is no open combustion; the heat is generated either by gas combustion inside tubes which then radiate the heat and warm the steel, or by electric radiant tubes. No heat is applied during the latter two phases, the slow cooling furnace phase, and the jet-cool furnace phase; instead heat is extracted during these operations.
5
From the annealing furnace section, the steel passes into the "pot," a ceramic tank containing molten zinc. Exiting the "pot," the steel passes through a holding zone where the temperature is moderated and the steel is subject to a nitrogen gas blanket to provide for proper adhesion of the zinc. The strip is further cooled in an "atomized water fog cooler." From there the strip passes through an "air jet cooler" and then into a "galvannealing furnace" where the cooling and heating zones are controlled to create a proper finish on the steel. The strip next passes through a water quench tank, and then a "skim pass mill" to provide a smooth finish. The steel enters a "delivery looper" which plays the same function, in reverse, as the entry looper, holding excess steel in order to assure the continuous strip moves through the critical stages of the line at a uniform speed. From the delivery looper the steel is sheared back into lengths and recoiled onto reels.
6
Because each stage of the line performs a constant function and maintains a uniform temperature, the process of annealing and galvanizing occurs by moving the steel substrate through the stages at a rate which exposes any given section of the steel to each of the steps in the process for an exact period of time. As any section of steel is connected to the next, in one continuous length, the entire strip of steel must be moved at a steady and carefully controlled rate. The speed and tension are controlled by the facility's robotics, which consist primarily of 600 large roller mechanisms, which are referred to as "rolls": revolving cylinders shaped roughly like rolling pins, over and around the barrel of which the steel is transported. The speed and tension of the continuous steel strip are dependent on the speed at which the rolls rotate; their rotation is controlled by computers and motors that were purchased from Melpac and General Electric. These controls operate independently from those that control the function of the various steps, such as the radiant tube temperature, the cooling jets, or the molten zinc temperature. For example, unlike the roll mechanisms, their motors, and computers, the annealing furnace is regulated by a Yamatake control system which monitors and regulates the atmosphere, combustion system, and waste gasses.
7
While the barrels of the rolls (the part of the roll that actually carries the steel strip) are all approximately the same width, size, and weight, and while the rolls all perform essentially the same function of controlling speed, tension, and position of the steel as it passes through the various steps of the process, not all the rolls are identical. Some rolls are located in areas subject to extreme conditions such as heat, corrosion (the sink roll is submerged in molten zinc in order to assure the steel's passage through and coating by the liquid metal), or moisture (the rolls in the quenchers are immersed in water and therefore the barrels are constructed of stainless steel). At issue in this case are the 33 rolls contained in the area of the line identified as the "annealing furnace." Because these barrels extend through the area of the "furnace" subject to extreme temperatures, they are constructed of a special centrifugally cast alloy and each roll costs approximately $75,000, compared to the roughly $20,000 cost of a common production roll. (The sink roll costs $85,000 and an "NSC top roll" costs $100,000.) Only the barrel of the roll extends into the high temperature of the annealing furnace. The balance of the roll mechanism, the shafts, the bearings, power couplings, drive shaft, gear box, and motor are all located on the outside of the annealing furnace walls and remain at ambient temperature. According to the schematics in the record, the end bells, which are located on either end of the barrel, connecting the barrel to the shafts, apparently are subject to the furnace temperatures on their barrel side but not so on their shaft side.
I/N Kote's Loss
8
On January 30, 1992, tension readings began to fluctuate and an unusual noise emanated from inside the annealing furnace. I/N Kote shut down the line and found a broken roll inside the annealing furnace at position 26. The roll was "blanked" by removing it from the furnace and welding steel plates over the holes on either side of the furnace through which the roll had passed. I/N Kote began to bring the system back on line with the steel strip passing directly from roll 25 to roll 27. Because of the missing roll, I/N Kote engineers slowed the speed at which the steel strip passed along and through the line and adjusted the temperatures of the various operations. In this manner, the line could continue to anneal and galvanize the steel strip but at a lower speed and lower output. On February 3, while in the process of bringing the operation back on line, I/N Kote discovered another broken roll inside the annealing furnace at position 2.
9
I/N Kote viewed this second event as an "alarming trend" and shut down the line in order to inspect the remaining rolls. I/N Kote discovered that 29 of the 31 remaining unbroken rolls were cracked. The cracked rolls were all temporarily mechanically repaired with "collars" and the broken rolls replaced with spare rolls also fitted with "collars." The line resumed operation on April 1, 1992 and continued to operate until June 15, 1992 when it was again shut down until July 1 while engineers replaced the broken and cracked rolls with newly fabricated rolls.
Insurance
10
I/N Kote carried insurance on its CGL through Hartford Steam Boiler Inspection and Insurance Company. Both while the CGL was under construction as well as after it went into production, I/N Kote had it insured with monthly binders from Hartford (the final policy was not completed and signed until after the incident at issue in this litigation). The policy provided coverage for losses, including consequential damages such as business interruption in the event of an accident resulting in damage to a covered "object." An endorsement titled "Object Definition No. 7" sets out what is and is not a covered "object." With respect to what is covered, the endorsement provides in section 1(a):
11
"Object" means any:
12
(1) Boiler, fired vessel, unfired vessel normally subject to vacuum or internal pressure other than weight of its contents, refrigerating and air conditioning vessels, and any piping and its accessory equipment, and including any boiler or pressure vessel mounted on mobile equipment.
13
(2) Mechanical or electrical machine or apparatus used for the generation, transmission or utilization of mechanical or electrical power including but not limited to:
14
(a) Fiber Optic cable;
15
(b) Robotic equipment....
16
The endorsement also provides for exclusions, among them section 1(b), which explains:
17
"Object" does not mean any:
18
... (6) Oven, stove, furnace, incinerator, pot or kiln;....
19
The question of coverage thus centers on whether the rolls were an "object" covered by the Hartford policy. I/N Kote first notified Hartford of the problem with the rolls on February 6. On May 5, 1992, Hartford formally denied coverage for the direct and indirect costs associated with the broken rolls. This litigation followed. The parties do not dispute that the CGL rolls, generally, are covered under section 1(a)(2) of the policy. The dispute arises over whether those rolls carrying steel through the annealing furnace section of the line are excluded by the section 1(b)(6) exclusion for "furnaces." Hartford maintains that because the 33 broken or cracked rolls are located inside that portion of the CGL identified as the "annealing furnace," they are part of the furnace and thereby are excluded under "Object Definition" 1(b)(6). I/N Kote argues the rolls are neither a "furnace" nor even part of a furnace, but rather are part of the robotics which the policy explicitly covers. At best, I/N Kote argues, the policy is ambiguous with regard to whether the term furnace encompasses the rolls, and must be construed in favor of coverage.
The District Court Decision
20
Both parties presented the district court with motions for summary judgment on the issue of whether or not "Object Definition No. 7" excludes liability for the broken rolls inside the annealing furnace. After reviewing the submissions, the district court denied I/N Kote's motion and entered judgment for Hartford. The court concluded, initially, that Object Definition No. 7 controlled the answer to the question, despite the fact that the incident occurred before the final policy was issued, because each of the binders Hartford had issued to I/N Kote explicitly mentioned the endorsement's applicability. The court then addressed the legal question of the correct construction of the insurance policy. In doing so, it declined to decide whether Illinois or Indiana law controlled, noting that the "applicable legal standards are the same under both states' laws," a position that both parties maintain on appeal. "[T]he critical question," the court noted, "was whether a reasonable person would have understood the term 'furnace,' as used in subsection (b)(6) of Object Definition No. 7--the furnace exclusion--to include the rolls which position and direct steel strip as it passes through the various annealing furnace zones."
21
Answering this question in the affirmative, the court relied on several analyses which we discuss further below. Because it determined that the rolls were "unquestionably" part of the furnace, and because they were thereby excluded from coverage under the "plain and unambiguous meaning" of Object Definition No. 7, the court declined to examine extrinsic evidence that the parties did or did not intend to provide coverage to the entire line when they agreed to the insurance binders.
II.
A. Standard of Review
22
We review a district court's entry of summary judgment de novo. General Acc. Ins. Co. of America v. Gonzales, 86 F.3d 673, 675 (7th Cir.1996). Summary judgment is appropriate where the record demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The district court declined to determine whether Illinois or Indiana law controlled this case because it determined that both states employ similar rules of insurance policy construction. If the policy language is clear and unambiguous, it is given its plain and ordinary meaning. Tate v. Secura Insurance, 587 N.E.2d 665, 668 (Ind.1992); National Union Fire Ins. Co. v. Glenview Park Dist., 158 Ill.2d 116, 198 Ill.Dec. 428, 431, 632 N.E.2d 1039, 1042 (1994). If the policy is ambiguous, a question of law, then the court must construe the policy in favor of coverage. Tate, 587 N.E.2d at 668 ("If there is an ambiguity, the policy should be interpreted most favorably to the insured. It should be construed to further the policy's basic purpose of indemnity."); Economy Fire & Casualty Co. v. Kubik, 142 Ill.App.3d 906, 97 Ill.Dec. 68, 70, 492 N.E.2d 504, 506 (1986) ("Ambiguous provisions in which an insurer seeks to limit its liability are construed most strongly against the insurer with the insurer having the obligation to show that the claim falls clearly within the exclusion.").
B. Analysis
23
Based on the briefing as well as oral argument, contrary to the district court's determination, we conclude reasonable minds may well disagree over whether the term "furnace," as used in the endorsement, encompasses the damaged rolls. See General Acc. Ins. Co. of America, 86 F.3d at 675 (applying Indiana law: "an insurance policy is ambiguous if reasonable persons may honestly differ as to the meaning of the policy language"); Outboard Marine v. Liberty Mut. Ins. Co., 154 Ill.2d 90, 180 Ill.Dec. 691, 699, 607 N.E.2d 1204, 1212 (1992) ("if the words in the policy are susceptible to more than one reasonable interpretation, they are ambiguous").
24
1. Whether the "annealing furnace" is a "furnace."
25
The word "furnace" is not defined in the endorsement, nor in the final version of the policy. At oral argument, neither party was able to provide the court with a clear definition of "furnace." This is somewhat distressing; both parties seek this court's determination of whether the object that broke down at I/N Kote was part of a "furnace" but neither can tell us what a "furnace" is. How one defines furnace in turn defines whether or not this object, called a "furnace," was a furnace, and also where that object begins and ends. This in turn defines what is inside and what is outside, and perhaps, we hope, what is part of and not part of the furnace. Steeped in the facts of this controversy as they are, if neither party can define a furnace, it is difficult to imagine how a "reasonable person" would define it. Or, more accurately, how we can determine a reasonable person might do so.
26
I/N Kote argues that what they refer to as an "annealing furnace" is not a "furnace" but rather is an "unfired vessel under pressure." Unfired vessels under pressure are covered by Object Definition No. 7, which explicitly includes as an object any "unfired vessel normally subject to ... internal pressure." The I/N Kote annealing furnace is an enclosure pressurized with a hydrogen and nitrogen atmosphere in which no combustion occurs, as the term is commonly used. The steel is heated by electric and gas-fired radiant tubes. The gas-fueled fire that makes the radiant tubes hot is isolated from the pressurized enclosure inside the tubes. The heat radiates from the tubes to heat the steel. Thus, I/N Kote maintains, while the tubes are furnaces because they produce heat through combustion, the pressurized enclosure into which that heat radiates and through which the steel passes is not a furnace. Under I/N Kote's construct, only the heat-producing part of the annealing furnace is a furnace. Under this construction, the rolls do not extend through the "furnace" and thereby risk being considered part of that "furnace"; they extend only through the unfired vessel under pressure which is not the furnace.
27
So far so good. Hartford is willing to concede that the annealing furnace is an unfired vessel under pressure but it contends that because the annealing furnace is also a furnace it falls under Object Definition No. 7's exclusions. Hartford argues for a broad meaning of the term "furnace," generally relating it to function. In other words, an object that performs the function of a furnace is a furnace. By defining a furnace by its function, Hartford seeks to encompass the rolls into the definition, as without them this annealing furnace would be unable to function as it was designed to. But Hartford cannot tell us whether a furnace produces heat or makes use of heat. The distinction is important to the extent that both unfired vessels under pressure and boilers are explicitly included in the Object Definition. If the exclusion for things that are furnaces excludes objects that make use of heat, then it would exclude not only the annealing furnace under I/N Kote's construct, but also boilers. And The Hartford Steam Boiler Inspection and Insurance Company which by its very name is in the business of insuring them, maintains that boilers are clearly covered under the Object Definition. So Hartford's undeveloped definition based on function provides us little guidance.
28
We also have rules of interpretation to contend with. Absent some indication that they are to be understood in a technical sense, we interpret insurance policies using the plain meaning of their words--the meaning to a layperson procuring the insurance. See General Acc. Ins. Co. of America, 86 F.3d at 677 (7th Cir.1996)(applying Indiana law, stating rule); cf. Coley v. State Farm Mut. Ins. Co., 178 Ill.App.3d 1077, 128 Ill.Dec. 200, 202, 534 N.E.2d 220, 222 (1989) ("Unless it is obvious that the language in a policy is used in a technical connotation, the language is accorded the meaning which common experience imparts.") A layperson is "one not belonging to some particular profession or not expert in some branch of knowledge or art." Hermitage Corp. v. Contractors Adjustment Co., 166 Ill.2d 72, 209 Ill.Dec. 684, 694, 651 N.E.2d 1132, 1142 (1995) (Freeman, J. dissenting) (quoting Webster's Third New International Dictionary 1281 (1993)). But when employing a plain meaning analysis, the meaning must not be reduced to that which would be understood by an uninformed layperson. If it were, it would be impossible to write insurance policies covering technical or complex facilities. We must consider the language as an intelligent layperson would. As the district court noted in Occidental Chemical Corp. v. American Manufacturers Mutual Ins. Co.: "Turning to the language of the Policy, an obstacle arises in that a 'layperson' would be unlikely even to know what a 'trunnion assembly' is. It is appropriate to examine the language of the Policy as would a layperson who is knowledgeable about kilns and trunnion assemblies; what is to be guarded against is addressing the issue from the standpoint of one peculiarly knowledgeable about insuring such items or litigating such coverage." 820 F.Supp. 74, 76 (S.D.N.Y.1993) (applying California law). The Supreme Court of Indiana has addressed this problem similarly while citing Black's Law Dictionary for the meaning of a policy term: "Black's Law Dictionary is exactly the type of source that an intelligent layperson might rely on when entering into a contract, including an insurance policy." American States Ins. Co. v. Kiger, 662 N.E.2d 945, 948 n. 2 (Ind.1996).
29
In the absence of language in Object Definition No. 7 giving furnace a technical definition, employing this intelligent layperson test we conclude that such a person would make some attempt to understand what the term meant in relation to industry generally if not to metallurgy specifically. Webster's Third New International Dictionary (1981) provides us with some understanding of the term "furnace": "an apparatus for the production or application of heat," "an enclosed structure for ... heat treating metal by the application of intense heat produced typically by full combustion." We derive further understanding from two encyclopedias that are more specialized than a general encyclopedia but nonetheless explain technical words in lay terms. The New Illustrated Science and Invention Encyclopedia explains that a "furnace" is "a closed structure in which heat is applied to a load or charge." 8 H.S. Stuttman, Inc., The New Illustrated Science and Invention Encyclopedia 1066 (1987). The McGraw-Hill Encyclopedia of Science & Technology describes a "furnace" as "an apparatus in which heat is liberated and transferred directly or indirectly to a solid or fluid mass for the purpose of effecting a physical or chemical change." 7 McGraw-Hill Encyclopedia of Science & Technology 503 (7th ed.1992). Either of these explanations describes the annealing furnace at I/N Kote's facility. Even narrowly construed, as are exclusions, the term "any furnace" covers the pressurized enclosure in which heat is applied by both gas fired and electric radiant tubes to steel substrate. Whatever an "unfired vessel under pressure" is, and whether or not the annealing furnace is such a vessel, under the plain meaning of Object Definition No. 7, the annealing furnace itself is excluded because it is a furnace.
30
2. Whether the rolls are part of the furnace.
31
Determining that the pressurized enclosure in which steel is annealed is a furnace, however, does not answer the pivotal question here: are the rolls part of the furnace? The more technical McGraw-Hill Encyclopedia of Science and Invention provides three pages detailing "furnace construction" without describing the mechanical processes for moving a load or charge into and out of the furnace. The more general New Illustrated Science and Invention Encyclopedia explains that there are two types of furnace, those designed for intermittent (batch) operation and those designed for continuous use. The latter, which could describe I/N Kote's facility, "generally consists of a number of zones, preheat, firing, and cooling, and the charge is pushed through the zones on cars using a hydraulic ram which operates from the entrance." This does not tell us that the cars are part of the furnace. Indeed, since they pass into and out of the furnace, we would expect not. Yet they are necessary to make the furnace do to the charge what it is designed to do.
32
Our critique of the district court opinion helps form our own view on this matter. The district court adopted the analysis employed in Occidental Chemical Corp. v. American Manufacturers Mutual Ins. Co., 820 F.Supp. 74 (S.D.N.Y.1993). In Occidental Chemical, the United States District Court for the Southern District of New York, applying California law to an insurance claim arising from a damaged rotary kiln located in North Carolina, determined for a number of reasons that the trunnions located outside of a rotary kiln were part of the kiln for purposes of a "kiln" exclusion. Whether or not the analysis was appropriate for the kiln in Occidental Chemical, for the reasons discussed below with reference to the I/N Kote facility, we do not believe it is sufficient to reach the conclusion that the only reasonable interpretation in this case is that the 33 damaged rolls are part of the object that is a furnace.
33
The district court reasoned that the 33 rolls that carry steel through the annealing furnace were part of the furnace because they, like the furnace, were supplied by Stein Heurtey, which oversaw the construction of the annealing furnace and installation of the rolls at the New Carlisle facility. Further, the rolls fell within the specifications for the annealing furnace equipment, the primary portion of each roll was located inside the furnace environment, and the rolls were qualitatively different from other rolls because they were designed to operate at higher temperatures. Finally, "although technically operable without the rolls," the court reasoned that the furnace "would be effectively useless for its designated purpose if the 33 furnace rolls were removed."
34
We find this reasoning unconvincing in several respects. First, the fact that the same subcontractor supplied and installed both the furnace and the rolls speaks to the subcontract bidding process rather than that the two items are part of the same unit. Had Stein Heurtey also provided and installed other portions of the line, the electrolytic cleaning section for instance, we would not infer that that unit was part of the furnace. We would find similarly little merit in a hypothetical argument that the rolls were not part of the furnace because they had been supplied and installed by a subcontractor other than Stein Heurtey.2 In a facility as immense, complex, and interconnected as this, which company designed, manufactured, or installed which component cannot define for insurance purposes the limits of an exclusion. For similar reasons it is not significant that the specifications for the rolls fell within those for other aspects of the furnace. Because the rolls must extend through the furnace walls with tolerances apparently tight enough to maintain the pressurized hydrogen nitrogen atmosphere inside, and because they must be designed to withstand the various temperatures at each different zone, we would be surprised if the specifications between furnace and rolls were not interconnected. But we would also expect to see related specifications for automobile axles, bearings, brake discs, and wheels; the interconnected specifications do not blur the distinctions between the objects. The rolls are undisputedly part of the robotics, which include the independently controlled 600-roll mechanism designed to transport, position, and tension the steel substrate through the facility. Hartford insists that in addition to being part of the robotics, the 33 rolls carrying the steel through the furnace are also part of the furnace. That the 33 rolls controlling these functions as the steel passes through the annealing furnace were designed in relation to the annealing furnace does not lead us to the conclusion that they are necessarily part of the furnace.
35
The district court's determination that "the primary portion" of the rolls was located inside the furnace environment is not compelled by the structure of the facility. Even isolating a single roll mechanism from the other 599, we are left with a complex unit that consists of dozens, if not hundreds of parts, only one of which, the barrel of the roll, extends into the interior of the furnace chamber. The roll itself consists of a barrel, two end bells, and two stub shafts. It is connected to a mechanism that is integral to its function: a power coupling, a drive shaft, a gear box, a motor, supports, and a control mechanism independent from that of the furnace. To conclude that the primary portion of the roll was inside the furnace requires that one's measurement be by mass rather than by number of component parts, an arbitrary measurement at best. And although the barrels extending through the furnace were of a different composition than production rolls located in other parts of the line, this would not compel a conclusion that they are thereby part of the furnace. At a number of stages along the line the roll barrels are metallurgically more complex than the "common" production rolls used generally throughout the line.
36
To isolate each roll and describe it as part of its location removes the entire robotic mechanism from coverage. Under such an analysis, the rolls in the entry looper are only covered because the entry looper is covered; likewise for the rolls in each other section of the plant. Under this construction coverage exists for the robotics only indirectly through their location: if that location is covered so are the robotics; if the location is not covered, the robotics are not covered. The problem with this reasoning is that the coverage Hartford agreed to provide was for the continuous galvanizing line, the unique feature of which is the robotic transport system. Object Definition No. 7 specifically covers robotics. The binder specifically states that "robotics considered as production equipment." To thereafter interpret the policy only to cover various operations within the plant along with appurtenant robotic mechanisms essentially converts the policy coverage for the robotics into illusory coverage. The diagram of the plant indicates that a substantial portion of the robotics carrying the steel substrate are inside parts of the facility identified as "furnaces." Indeed, at oral argument Hartford explained that 20-25 percent of I/N Kote's line was not covered under its construction of the policy, despite the "Extended Comprehensive Coverage" issued by Hartford which explicitly covered I/N Kote's "Continuous Galvanizing Line," including, also explicitly, "robotics."
37
Finally, Hartford contends, and the district court agreed, the rolls are part of the furnace because without one or more of them the furnace cannot perform its function of annealing steel. This analysis relies on defining the furnace operation not as one of producing or applying heat but of annealing a continuous strip of steel. Thus, the argument goes, because a broken roll prevents the steel strip from passing through the various steps of the furnace, and that in turn prevents the furnace from annealing the steel, the rolls are an integral part of the furnace. Obviously the rolls are an integral part of the process because unless the steel can move through the annealing furnace in a controlled manner, the precise annealing process will not occur and the furnace cannot perform its function of annealing steel. But under such reasoning any of the 600 rolls on the line become part of the furnace. The steel passing through the annealing furnace is merely a section of a continuous strip that also passes at the same rate through each of the other sections of the facility from the entry looper to the delivery looper. The rolls are critical to transporting the steel along the entire line. A broken roll anywhere along the line, depending upon its location, could cause the steel to stop moving. If the steel is not moving, of course the annealing furnace cannot perform its function of raising and then reducing the temperature of the steel. Thus, under Hartford's broken roll analysis, any critical roll along the entire line (without which the steel will not move) is part of the furnace, because absent that one roll the furnace cannot perform its function as an annealing furnace. In this complex, interconnected machine called the continuous galvanizing line, an analysis contingent on whether a furnace can perform its annealing function without certain rolls is much too broad. The steel transport mechanism by necessity incorporates the rolls into each of the of the operations along the line. If a roll extending through the furnace breaks and stops the steel from moving, the molten zinc pot also will stop performing its function of coating the steel with zinc. Under such an analysis the broken rolls in question here would also be part of the molten zinc pot. Such a broad construction will not work. It incorporates the entire line into the determination of what is included in any one operational zone along the line and is contrary to the rule of insurance contract construction which mandates that exclusions be construed narrowly.3
38
But whether or not the furnace can anneal steel is the wrong focus. Whether the furnace is annealing steel depends upon whether there is steel present and moving through its various zones. If no steel is present, the annealing furnace is still a furnace and can perform the function of a furnace: producing or applying heat to a "load" or "charge." See supra p. 1318. While the ultimate function of the furnace can assist us in determining what is and what is not part of the furnace, that in the absence of the load (here the steel) the furnace does not "perform its function" does not indicate that the load, or the mechanism that holds or transports the load, is part of the furnace. For example, a bread oven's function is to bake bread. Absent bread, it does not perform this function. That does not make the bread or the pans that hold the bread part of the oven, nor does the bread oven cease to be an oven in the absence of bread. The oven can still heat and cool as it is manufactured to do, it just does so without a charge or a load. Its status as an oven has not changed.
39
Because insurance policy exclusions are to be construed narrowly, we believe the correct focus on what parts of this facility are parts of the furnace must be confined to what makes that "object" function as a furnace qua furnace, not whether at some given moment it cannot perform its ultimate function of annealing steel. The purpose of the entire facility is to anneal and galvanize steel. The purpose of the furnace portion of the facility is to produce, contain within an enclosure, and apply heat to a charge or load. The charge or load is not a part of the furnace merely because the heat is applied to it. Whether or not the mechanism that holds or transports the charge or load is part of the furnace depends on its relation to the furnace. And that depends upon how broadly or narrowly one construes "furnace." But because "any furnace" is part of the exclusion, the rules of insurance policy construction require that we construe it narrowly. The same rules require that we construe inclusions broadly. How these two rules interact where the roll mechanisms intersect the furnace requires that we take another look at the roll mechanism.
40
There is no question that the failed roll barrel was part of the roll mechanism. And each of the 33 roll mechanisms were part of the overall 600-roll mechanism that operated independently of any section of the line such as the furnaces. There is no question that these robotics were covered by the policy. The binder explicitly states that robotics are part of production equipment and Object Definition No. 7 explicitly covers "any mechanical or electrical machine or apparatus ... including ... robotic equipment." There is no dispute over whether those rolls that carry steel outside of the objects called furnaces are covered. Without specifically excluding certain of the rolls an insured would very plausibly assume that all rolls are covered. Hartford contends that the only thing that keeps these 33 rolls from being covered is that they are part of the furnace. But as described earlier, only the roll barrel and the end caps extend inside the furnace. The bulk of a roll mechanism lies outside the walls of the furnace. Hartford has not argued that those portions of these roll mechanisms that lie outside the furnace are part of the furnace, only that the roll barrels are. Under this argument the roll only becomes part of the furnace to the extent it lies inside the furnace. Interestingly, while the roll passes through the furnace, it is not connected to the furnace; it must be free to rotate and the parts of the mechanism that actually hold and rotate the roll are located outside the furnace.
41
While it is clear that the rolls are part of the roller mechanism, perhaps one can argue, as Hartford has and as the district court concluded, that the rolls, at least their barrels, are part of the furnace as well. But they are more a part of the roller mechanism than they are a part of the furnace. The furnace can function as a furnace without them. But a roll mechanism cannot function at all without a roll barrel. The barrel is integral to the roll mechanism as a roll mechanism. It is not integral to the furnace as a furnace. Because of their location in the policy, we must read "any part of the robotics" broadly and "any part of the furnace" narrowly. Where the robotics pass through the furnace and their status becomes ambiguous within the terms of the policy, this rule of construction leads to coverage. Thus, the barrels and end caps of the roll mechanisms must be construed as part of the covered robotics rather than as part of the excluded furnace.
42
No doubt we could suggest ways that Hartford could specifically exclude certain rolls from coverage, but we are not permitted nor inclined to rewrite ambiguous insurance policies. See American Nat. Fire Ins. Co. v. Rose Acre Farms, 107 F.3d 451, 457 (7th Cir.1997) (applying Indiana rules of construction).
III.
43
Under Indiana law "[a] condition or exclusion in an insurance contract ... must clearly and unmistakingly bring within its scope the particular act or omission that will bring the condition or exclusion into play. Coverage will not be excluded or destroyed by an exclusion or condition unless such clarity exists." Sur v. Glidden-Durkee, 681 F.2d 490, 496-97 (7th Cir.1982) (quoting Huntington Mut. Ins. Co. v. Walker, 181 Ind.App. 618, 392 N.E.2d 1182, 1185 (1979) (internal citations omitted)). As set out in the policy Hartford issued to I/N Kote, the furnace exclusion neither clearly nor unmistakably excluded the rolls extending through the annealing furnace. Indiana would thus have us construe the policy in favor of coverage. Id. Illinois would do the same. National Union Fire Ins. Co. v. Glenview Park Dist., 158 Ill.2d 116, 198 Ill.Dec. 428, 431, 632 N.E.2d 1039, 1042 (1994).
44
Accordingly, we reverse the district court's entry of summary judgment for Hartford. We remand with instructions to enter summary judgment for I/N Kote on the issue of whether the rolls fall into the "furnace" exclusion and proceed in a manner consistent with this opinion.
1
"Line" in this context refers to "an arrangement of manufacturing or assembling operations designed to permit sequential occurrence on various stages of production." Webster's Third New International Dictionary, 1991
2
According to I/N Kote, the rolls were in fact designed by Nippon Steel, supplied by both Stein Heurtey and Nippon Steel, and to the extent supplied by Stein Heurtey, were manufactured by Pose-Marre Construction. I/N Kote also argued in the district court that the rolls were installed, not by Stein Heurtey, but by Gray and I/N Kote. The district court ignored this argument as waived because it was contrary to portions of Hartford's 12(M) statement to the effect that Stein Heurtey had manufactured and installed the rolls with which I/N Kote had neither objected nor sought clarification. This ruling is not under challenge here and we abide by the district court's exclusion of this evidence
3
Interestingly, Hartford's argument also runs up against the hard evidence that the furnace could in fact perform its function of annealing steel with at least one roll missing. When roll number 26 broke, I/N Kote removed it, sealed the holes in the furnace wall through which it passed, and brought the facility back on line (or was in the process of doing so when a second roll began exhibiting damage as well). Because the furnace could arguably anneal steel without roll 26, then under Hartford's broken roll analysis, roll 26 would not necessarily be part of the annealing furnace. One or two of the 33 rolls might not be part of the furnace under this analysis, depending upon where they were located and whether the steel could still move without them. But collectively, all the rolls would become part of the furnace were they all damaged--at that point the steel clearly could no longer move through the furnace. If one isolated broken roll is not inherently part of the furnace, does it become part of the furnace when more than one, or several, are broken? Can it be part of the furnace collectively but not individually? We need not answer these metaphysical questions because, as discussed below, the inquiry is misplaced | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2749486/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00749-CR
IN RE Steven Mitchell GARY
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: November 5, 2014
PETITION FOR WRIT OF MANDAMUS DENIED
Relator Steven Mitchell Gary filed this pro se petition for writ of mandamus on October
27, 2014, complaining of the trial court’s failure to rule on pending motions in the underlying
criminal proceeding. Relator has been appointed trial counsel to represent him in connection with
the criminal charges pending against him. We conclude that any original proceeding on the issue
raised should be presented by relator’s trial counsel. Relator is not entitled to hybrid representation.
See Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995). The absence of a right to hybrid
representation means relator’s pro se mandamus petition will be treated as presenting nothing for
this court’s review. See id.; see also Gray v. Shipley, 877 S.W.2d 806, 806 (Tex. App.—Houston
1
This proceeding arises out of Cause No. 2014CR2945, styled The State of Texas v. Steven Mitchell Gary, pending in
the 175th Judicial District Court, Bexar County, Texas, the Honorable Mary D. Roman presiding.
04-14-00749-CR
[1st Dist.] 1994, orig. proceeding). Accordingly, relator’s petition for writ of mandamus is denied.
See TEX. R. APP. P. 52.8(a).
PER CURIAM
DO NOT PUBLISH
-2- | 01-03-2023 | 11-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1621774/ | 13 So. 3d 1067 (2009)
STAFFORD
v.
STATE.
No. 4D09-331.
District Court of Appeal of Florida, Fourth District.
August 31, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/101604/ | 281 U.S. 673 (1930)
BRINKERHOFF-FARIS TRUST & SAVINGS COMPANY
v.
HILL, TREASURER AND EX-OFFICIO COLLECTOR OF HENRY COUNTY, MISSOURI.
No. 464.
Supreme Court of United States.
Argued May 1, 1930.
Decided June 2, 1930.
CERTIORARI TO THE SUPREME COURT OF MISSOURI.
*674 Mr. Roy W. Rucker, with whom Messrs. John Montgomery, Jr., and Lee Montgomery were on the brief, for petitioner.
Mr. Lieutellus Cunningham, with whom Messrs. Stratton Shartel, Attorney General of Missouri, N.B. Conrad, Frederick F. Wesner, and Charles A. Calvird, Jr., were on the brief, for respondent.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
In 1928, the Brinkerhoff-Faris Trust & Savings Company, acting as trustee for its shareholders, brought this suit in a Missouri court against the Treasurer of Henry County, Missouri, to enjoin him from collecting or attempting to collect a certain part of the taxes assessed against them for the year 1927 on the shares of its stock; and, pending decision in this suit, to restrain the prosecution of an action already brought by him against the plaintiff for that purpose.
The bill alleged that the township assessor had intentionally and systematically discriminated against the shareholders by assessing bank stock at full value, while intentionally and systematically omitting to assess certain classes of property and assessing all other classes of property at 75 per cent or less of their value. It asserted that, to the extent of 25 per cent, the assessments were void because such discrimination violated the equal protection clause of the Fourteenth Amendment. And it recited that the plaintiff had tendered, and was continuing to tender, payment of the 75 per cent of the taxes assessed, which amount it conceded was due. As grounds for equity jurisdiction, the bill charged that relief could not be had at law, either by way of defense in the pending action brought by the Treasurer or by paying the tax in full under protest and suing for a refund of 25 per cent thereof; and that no administrative remedy for the relief *675 sought was, or ever had been, provided by law either by appeal or otherwise to or from the County Board of Equalization or the State Board of Equalization.
The defendant's answer denied all the allegations of discrimination and further opposed relief in equity on the grounds that the plaintiff had not pursued remedies before the County or State Board of Equalization pursuant to Articles 3 and 5 of Chapter 119 of the Missouri Revised Statutes of 1919; and that the plaintiff was guilty of laches in not so doing. The trial court refused the injunction and dismissed the bill, without opinion or findings of fact.
The Supreme Court of Missouri held, on appeal, that relief from the alleged discriminatory assessment could not be had in any suit at law; that this bill in equity was the appropriate and only remedy, unless relief could have been had by timely application to some administrative board; and that neither of the boards of equalization was charged with the power and duty to grant such relief. But, without passing definitely upon the question of discrimination, it concluded that if the plaintiff had "at any time before the tax books were delivered to the collector, filed complaint before the State Tax Commission, that body, in the proper exercise of its jurisdiction, would have granted a hearing, and would have heard evidence with respect to the valuations complained of, and, if the charges contained in the complaint had been found to be true, the valuations placed on its property would have been lowered, or that on other property raised, the property omitted from the assessment roll would have been placed thereon, and the discrimination complained of thereby removed. The remedy provided by the statute is adequate, certain, and complete." Compare First National Bank of Greeley v. Weld County, 264 U.S. 450. The court held, therefore, that, because plaintiff had this adequate *676 legal remedy, it was not entitled to equitable relief, and because plaintiff had not complained to the Tax Commission, "it was clearly guilty of laches in not so doing." On these grounds, the Supreme Court affirmed the judgment of the trial court. 323 Mo. 180.
The powers and duties of the State Tax Commission are prescribed by Article 4 of Chapter 119 of the Revised Statutes of 1919. Six years before this suit was begun, those provisions had been construed by the Supreme Court of Missouri in Laclede Land & Improvement Co. v. State Tax Commission, 295 Mo. 298. There, the court had been required to determine whether the Commission had power to grant relief of the character here sought. The Commission had refused, on the ground of lack of power, an application for relief from discrimination similar to that here alleged. The Laclede Company petitioned for a mandamus to compel the Commission to hear its complaint. The Supreme Court denied the petition, saying that it was "preposterous" and "unthinkable" that the statute conferred such power on the Commission; and that if the statute were thus construed, it would violate section 10 of article 10 of the constitution of Missouri. That decision was thereafter consistently acted upon by the Commission; and it was followed by the Supreme Court itself in later cases.[1]
*677 No one doubted the authority of the Laclede case until it was expressly overruled in the case at bar.[2] While the defendant's answer asserted that the plaintiff had not availed itself of the administrative remedies under Articles 3 and 5 of Chapter 119 by application to the boards of equalization and was guilty of laches in not so doing (contentions which the state court held to be unsound), the answer significantly omitted any contention that there had been a remedy by application to the State Tax Commission, whose powers are dealt with in the intervening Article 4. The possibility of relief before the Tax Commission was not suggested by anyone in the entire litigation until the Supreme Court filed its opinion on June 29, 1929. Then it was too late for the plaintiff to avail itself of the newly found remedy. For, under that decision, the application to the Tax Commission could not be made after the tax books were delivered to the collector; and this had been done about October 1, 1927.
The plaintiff seasonably filed a petition for a rehearing in which it recited the above facts and asserted, in addition to its claims on the merits, that, in applying the new construction of Article 4 of Chapter 119 to the case at bar, and in refusing relief because of the newly found powers of the Commission, the court transgressed the due *678 process clause of the Fourteenth Amendment. The additional federal claim thus made was timely, since it was raised at the first opportunity. Missouri ex rel. Missouri Ins. Co. v. Gehner, ante, p. 313. The petition was denied without opinion. This Court granted certiorari, 280 U.S. 550. We are of opinion that the judgment of the Supreme Court of Missouri must be reversed, because it has denied to the plaintiff due process of law using that term in its primary sense of an opportunity to be heard and to defend its substantive right.
First. It is plain that the practical effect of the judgment of the Missouri court is to deprive the plaintiff of property without affording it at any time an opportunity to be heard in its defense. The plaintiff asserted an invasion of its substantive right under the Federal Constitution to equality of treatment. Greene v. Louisville & Interurban R.R. Co., 244 U.S. 499; Sioux City Bridge Co. v. Dakota County, 260 U.S. 441. If the allegations of the complaint could be established, the Federal Constitution conferred upon the plaintiff the right to have the assessments abated by 25 per cent. In order to protect its property from being seized in payment of the part of the tax alleged to be unlawful, the plaintiff invoked the appropriate judicial remedy provided by the State. Second Employers' Liability Cases, 223 U.S. 1, 55-57.
Under the settled law of the State, that remedy was the only one available. That a bill in equity is appropriate and that the court has power to grant relief, even under the new construction of the statute dealing with the Tax Commission, is not questioned.[3] And it is held by the state court in this case that no other judicial remedy is open to the plaintiff and that no administrative *679 remedy, other than that before the State Tax Commission, has been provided. But, after the decision in the Laclede case, it would have been entirely futile for the plaintiff to apply to the Commission. That body had persistently refused to entertain such applications; and the Supreme Court of the State had supported it in its refusal. Thus, until June 29, 1929, when the opinion in the case at bar was delivered, the Tax Commission could not, because of the rule of the Laclede case, grant the relief to which the plaintiff was entitled on the facts alleged. After June 29, 1929, the Commission could not grant such relief to this plaintiff because, under the decision of the court in this case, the time in which the Commission could act had long expired. Obviously, therefore, at no time did the State provide to the plaintiff an administrative remedy against the alleged illegal tax; and in invoking the appropriate judicial remedy, the plaintiff did not omit to comply with any existing condition precedent. Montana National Bank v. Yellowstone County, 276 U.S. 499, 505.
If the judgment is permitted to stand, deprivation of plaintiff's property is accomplished without its ever having had an opportunity to defend against the exaction. The state court refused to hear the plaintiff's complaint and denied it relief, not because of lack of power or because of any demerit in the complaint, but because, assuming power and merit, the plaintiff did not first seek an administrative remedy which, in fact, was never available and which is not now open to it. Thus, by denying to it the only remedy ever available for the enforcement of its right to prevent the seizure of its property, the judgment deprives the plaintiff of its property.
Second. If the result above stated were attained by an exercise of the State's legislative power, the transgression of the due process clause of the Fourteenth Amendment *680 would be obvious. Ettor v. Tacoma, 228 U.S. 148.[4] The violation is none the less clear when that result is accomplished by the state judiciary in the course of construing an otherwise valid (First National Bank of Greeley v. Weld County, 264 U.S. 450) state statute. The federal guaranty of due process extends to state action through its judicial as well as through its legislative, executive or administrative branch of government.[5]
It is true that the courts of a State have the supreme power to interpret and declare the written and unwritten laws of the State; that this Court's power to review decisions of state courts is limited to their decisions on federal questions;[6] and that the mere fact that a state court has rendered an erroneous decision on a question of state law, or has overruled principles or doctrines established by previous decisions on which a party relied, does not give rise to a claim under the Fourteenth Amendment or otherwise confer appellate jurisdiction on this Court.[7]
*681 But our decision in the case at bar is not based on the ground that there has been a retrospective denial of the existence of any right or a retroactive change in the law of remedies. We are not now concerned with the rights of the plaintiff on the merits, although it may be observed that the plaintiff's claim is one arising under the Federal Constitution and, consequently, one on which the opinion of the state court is not final; or with the accuracy of the state court's construction of the statute in either the Laclede case or in the case at bar. Our present concern is solely with the question whether the plaintiff has been accorded due process in the primary sense, whether it has had an opportunity to present its case and be heard in its support. Undoubtedly, the state court had the power to construe the statute dealing with the State Tax Commission; and to reexamine and overrule the Laclede case. Neither of these matters raises a federal question; neither is subject to our review.[8] But, *682 while it is for the state courts to determine the adjective as well as the substantive law of the State, they must, in so doing, accord the parties due process of law. Whether acting through its judiciary or through its legislature, a State may not deprive a person of all existing remedies for the enforcement of a right, which the State has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it.[9] Compare Postal Telegraph Cable Co. v. Newport, 247 U.S. 464, 475-6.
Third. The court's finding of laches was predicated entirely on the plaintiff's failure to apply to the State Tax Commission. In view of what we have said, this ground is not sufficient independently to support the judgment. And, as the Supreme Court of Missouri did not decide whether the allegations of the plaintiff's bill were sustained by the proof, we do not inquire into the merits of the plaintiff's claim under the equal protection clause. The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.
Reversed.
MR. JUSTICE McREYNOLDS did not hear the argument and took no part in the decision of this case.
NOTES
[1] In Boonville National Bank v. Schlotzhauer, 317 Mo. 1298, where the taxpayer was represented by the same counsel who represent the plaintiff here, relief was sought by bill in equity from like discrimination, without prior application to the State Tax Commission. The Supreme Court of Missouri was required to decide whether the taxpayer had invoked the appropriate remedy; and it held, in an elaborate opinion which did not mention the Tax Commission, that the remedy pursued was the appropriate one and that the taxpayer was entitled to relief thereby, if the facts alleged were proved. See also Jefferson City Bridge & Transit Co. v. Blaser, 318 Mo. 373; Columbia Terminals Co. v. Koeln, 3 S.W. (2d) 1021; State v. Baker, 9 S.W. (2d) 589, 592-93; State v. Dirckx, 11 S.W. (2d) 38.
[2] The reason which prompted the Supreme Court to reexamine and overrule the Laclede case is thus stated in its opinion: "It is doubtful whether the evidence in this case warrants a finding that the local assessor intentionally and systematically undervalued real estate and personal property listed with him, other than bank stock; but there can be no question but that his failure to assess sucking animals and poultry was both intentional and pursuant to system. . . . If the owners of bank stock are entitled to an abatement of a portion of their taxes because other property was undervalued, it would appear on principle that all taxpayers of the state should be entirely relieved, so far as the taxes for 1927 are concerned, because the owners of poultry were not taxed at all. It seems necessary that we rechart our course." 323 Mo. 180; 19 S.W. (2d) 746, 749.
[3] Equitable relief was denied solely on the equitable doctrines that the plaintiff had an adequate legal remedy by application to the Commission and was guilty of laches in not pursuing it.
[4] Compare Turner v. New York, 168 U.S. 90, 94; Saranac Land & Timber Co. v. Comptroller, 177 U.S. 318, 325; Crane v. Hahlo, 258 U.S. 142, 147; Atchafalaya Land Co. v. F.B. Williams Cypress Co., 258 U.S. 190, 197.
[5] Ownbey v. Morgan, 256 U.S. 94, 111. Compare Pennoyer v. Neff, 95 U.S. 714; Standard Oil Co. v. Missouri, 224 U.S. 270, 281; Frank v. Mangum, 237 U.S. 309, 326, 335; Moore v. Dempsey, 261 U.S. 86.
[6] Kryger v. Wilson, 242 U.S. 171, 176; Mount St. Mary's Cemetery Ass'n v. Mullins, 248 U.S. 501, 503; Quong Ham Wah Co. v. Industrial Accident Comm., 255 U.S. 445, 448; Fox River Paper Co. v. Railroad Comm., 274 U.S. 651, 655.
[7] Central Land Co. v. Laidley, 159 U.S. 103, 112; Patterson v. Colorado, 205 U.S. 454, 461; Willoughby v. Chicago, 235 U.S. 45, 50; O'Neil v. Northern Colorado Irrigation Co., 242 U.S. 20, 26-7; Dunbar v. City of New York, 251 U.S. 516, 519; Rooker v. Fidelity Trust Co., 261 U.S. 114, 118; Tidal Oil Co. v. Flanagan, 263 U.S. 444, 450; American Railway Express Co. v. Kentucky, 273 U.S. 269, 273. For "a long line of decisions" holding "that the provision of § 10, Article 1, of the Federal Constitution, protecting the obligation of contracts against state action, is directed only against impairment by legislation and not by judgments of courts," see Tidal Oil Co. v. Flanagan, 263 U.S. 444, 451, note 1. Likewise, with reference to ex post facto laws. Kring v. Missouri, 107 U.S. 221, 227; Ross v. Oregon, 227 U.S. 150, 161; Frank v. Mangum, 237 U.S. 309, 344.
[8] The process of trial and error, of change of decision in order to conform with changing ideas and conditions, is traditional with courts administering the common law. Since it is for the state courts to interpret and declare the law of the State, it is for them to correct their errors and declare what the law has been as well as what it is. State courts, like this Court, may ordinarily overrule their own decisions without offending constitutional guaranties, even though parties may have acted to their prejudice on the faith of the earlier decisions. The doctrine of Gelpcke v. Dubuque, 1 Wall. 175, and Butz v. Muscatine, 8 Wall. 575, like that of Swift v. Tyson, 16 Pet. 1, is, if applied at all, confined strictly to cases arising in the Federal courts. Fleming v. Fleming 264 U.S. 29, 31; Tidal Oil Co. v. Flanagan, 263 U.S. 444, 451; Moore-Mansfield Const. Co. v. Electrical Installation Co., 234 U.S. 619, 624-26; Bacon v. Texas, 163 U.S. 207, 220-24; Central Land Co. v. Laidley, 159 U.S. 103, 111-12.
[9] Had there been no previous construction of the statute by the highest court, the plaintiff would, of course, have had to assume the risk that the ultimate interpretation by the highest court might differ from its own. Likewise, if the administrative remedy were still available to the plaintiff, there would be no denial of due process in that regard. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1642471/ | 4 So.3d 699 (2009)
Frank KILLINS, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-2561.
District Court of Appeal of Florida, Fourth District.
February 18, 2009.
Rehearing Denied April 6, 2009.
Frank Killins, Arcadia, pro se.
No appearance required for appellee.
PER CURIAM.
Affirmed. See Jackson v. State, 985 So.2d 679 (Fla. 4th DCA 2008).
FARMER, TAYLOR and HAZOURI, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/59438/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 8, 2008
No. 07-11010 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-80139-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADOLFO SANTILLAN LOPEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 8, 2008)
Before BIRCH, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Adolfo Santillan Lopez appeals his 120-month sentence imposed
after he pled guilty to conspiracy to possess with the intent to distribute at least 5
kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A). On
appeal, Lopez first argues that the district court erred by finding that his sentence
warranted a two-level enhancement because he was a mid-level supervisor,
pursuant to U.S.S.G. § 3B1.1(c). Second, Lopez argues that the statutory
minimum sentence provisions of 21 U.S.C. § 841(b)(1)(A) are unconstitutional
under the Due Process and Equal Protection Clauses of the U.S. Constitution and
violate his Eighth Amendment right to be free from cruel and unusual punishment.
Based on our review of the record and the parties’ briefs, we vacate and remand for
resentencing as to the first issue and affirm as to the second.
I. Aggravating-Role Enhancement
We review a district court’s determination of a defendant’s role in an offense
for clear error. United States v. Jiminez, 224 F.3d 1243, 1250-51 (11th Cir. 2000).
“[T]he ultimate determination of role in the offense is also a fundamentally factual
determination entitled to due deference.” United States v. Rodriguez De Varon,
175 F.3d 930, 938 (11th Cir. 1999) (en banc). “The government bears the burden
of proving by a preponderance of the evidence that the defendant had an
aggravating role in the offense.” United States v. Yeager, 331 F.3d 1216, 1226
(11th Cir. 2003). “The findings of fact of the sentencing court may be based on
2
evidence heard during trial, facts admitted by a defendant’s plea of guilty,
undisputed statements in the presentence report, or evidence presented at the
sentencing hearing.” United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.
1989).
Section 3B1.1(c) of the Sentencing Guidelines provides, “If the defendant
was an organizer, leader, manager, or supervisor in any criminal activity [that
involved fewer than 5 participants and was not otherwise extensive], increase by 2
levels.” The commentary elaborates, “To qualify for an adjustment under this
section, the defendant must have been the organizer, leader, manager, or supervisor
of one or more other participants.” U.S.S.G. § 3B1.1, comment. (n.2). A
“participant” is “a person who is criminally responsible for the commission of the
offense, but need not have been convicted.” U.S.S.G. § 3B1.1, comment. (n.1).
An undercover law enforcement officer is not a participant. U.S.S.G. § 3B1.1,
comment. (n.1). “‘[P]articipation’ under the aggravating and mitigating role
guidelines implies criminal liability and intent, that the individual be an actual
member of the plan or conspiracy.” United States v. Costales, 5 F.3d 480, 484
(11th Cir. 1993). We have held that “a mere buyer/seller relationship is inadequate
to link individuals to a conspiracy.” United States v. Revel, 971 F.2d 656, 660
(11th Cir. 1992).
3
In order to warrant an enhancement under U.S.S.G. § 3B1.1(c), a defendant
must have “control over another participant in the criminal activity.” United States
v. Harness, 180 F.3d 1232, 1235 (11th Cir. 1999). The “assertion of control or
influence over only one individual is enough to support a § 3B1.1(c)
enhancement.” Jiminez, 224 F.3d at 1251. A district court errs if there is no
evidence or findings of fact that would support the conclusion that a defendant
organized, led, managed, or supervised one or more participants who engaged in
the criminal activities. See Harness, 180 F.3d at 1235.
Here, we conclude from the record that the district court clearly erred by
finding that Lopez warranted an aggravating-role enhancement under U.S.S.G.
§ 3B1.1(c) because there is no evidence to support the finding that Lopez
controlled another participant in the criminal offense.
II. Constitutionality of 21 U.S.C. § 841(b)(1)
We review de novo whether a statute is constitutional. United States v.
Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000). Section 841(b)(1) of Title 21
provides, in part, that “any person who violates subsection (a) of this section
involving . . . 5 kilograms or more of a mixture or substance containing a
detectable amount of . . . cocaine . . . shall be sentenced to a term of imprisonment
which may not be less than 10 years or more than life . . .” 21 U.S.C.
4
§ 841(b)(1)(A)(ii)(II).
We have upheld the constitutionality of 21 U.S.C. § 841(b)(1)’s mandatory
minimum sentencing provisions against due process, equal protection, and Eighth
Amendment challenges. See United States v. Holmes, 838 F.2d 1175, 1177-78
(11th Cir. 1988) (holding that § 841(b)(1)’s mandatory minimum provisions were
rationally related to the objectives of protecting public health and welfare); United
States v. Willis, 956 F.2d 248, 251 (11th Cir. 1992) (holding that the mandatory life
sentence provisions of 21 U.S.C. § 841(b)(1) do not violate Eighth Amendment).
Because we previously have held that the mandatory minimum sentence
provisions in 21 U.S.C. § 841(b)(1) are constitutional, Lopez’s argument that they
are unconstitutional fails.
In conclusion, because no evidence supports the finding that Lopez
controlled another participant in the criminal offense, we vacate Lopez’s sentence
and remand this case for resentencing. Because we have held that the mandatory
minimum sentence provisions in 21 U.S.C. § 841(b)(1) are constitutional, we
affirm as to the second issue.
VACATED AND REMANDED in part, AFFIRMED in part.
5 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/71753/ | Case: 09-20224 Document: 00511039533 Page: 1 Date Filed: 03/02/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 2, 2010
No. 09-20224
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SALVADOR ALMAZAN-MARTINEZ, also known as Salvador Martinez
Almazan, also known as Ciro Diaz Arrellano, also known as Fernando Diaz, also
known as Ciro Ordonez Diaz,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CR-685-1
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Salvador Almazan-Martinez pleaded guilty to violating 8 U.S.C. § 1326 by
illegally reentering the United States. Finding that Almazan-Martinez had a
prior Texas conviction for burglary of a habitation, the district court enhanced
his base offense level because he had been convicted of a felony crime of
*
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.
Case: 09-20224 Document: 00511039533 Page: 2 Date Filed: 03/02/2010
No. 09-20224
violence.1 The court sentenced Almazan-Martinez to a below-guidelines term of
48 months’ imprisonment.
In the district court, Almazan-Martinez contended that the enhancement
was improper because Texas’s definition of habitation was broader than the
generic concept of dwelling encompassed by the guidelines and thus his
conviction was not for a crime of violence. Almazan-Martinez has not reiterated
that argument on appeal; he instead contends that his Texas crime was not even
burglary. He asserts the government did not show that he did not consider
himself an invitee on the premises or that he intended to take anything other
than items belonging to him.
Because the arguments Almazan-Martinez now advances were not first
presented to the district court, our review is for plain error only.2 To
demonstrate plain error, Almazan-Martinez must show a forfeited error that is
obvious and that affects his substantial rights.3 If the he makes such a showing,
this court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.4
The guidelines provide for an increase of 16 levels in the offense level for
unlawfully entering or remaining in the United States if the defendant was
previously convicted of a crime of violence.5 The commentary specifically
enumerates several offenses that qualify as crimes of violence, including the
burglary of a dwelling.6 Under Texas law, a person commits burglary if he
1
See U.S.S.G. § 2L1.2(b)(1)(A)(ii).
2
See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), cert.
denied, 130 S. Ct. 192 (2009).
3
See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
4
Id.
5
§ 2L1.2(b)(1)(A)(ii).
6
§ 2L1.2 cmt. n.1(B)(iii).
2
Case: 09-20224 Document: 00511039533 Page: 3 Date Filed: 03/02/2010
No. 09-20224
enters a building closed to the public, or a habitation, without the consent of the
owner and with the intent to commit a felony, theft, or an assault.7 Burglary of
a habitation under Texas law qualifies as a crime of violence as defined in the
guidelines.8
In determining whether a prior offense is a crime of violence, we look to
the elements of the offense as defined by statute rather than to the facts of the
defendant’s conduct.9 In making that determination, we may consider certain
adjudicative records, such as the state indictment and the state court judgment
of conviction.10
Almazan-Martinez’s Texas indictment charged that he had “unlawfully,
with intent to commit theft, enter[ed] a habitation owned by” another and
without that person’s consent. This matches the language used to define the
Texas crime of burglary of a habitation—a crime of violence—which proscribes
entry into “a habitation, or a building (or any portion of a building) not then open
to the public, with intent to commit a felony, theft, or an assault.” 11 Further, at
rearraignment Almazan-Martinez admitted the truth of the Government’s
recitation of the factual basis for his plea, which included a description of his
Texas conviction for the offense of burglary of a habitation with intent to commit
theft.
7
See TEX . PENAL CODE § 30.02(a)(1).
8
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005).
9
United States v. Carbajal-Diaz, 508 F.3d 804, 807-08 (5th Cir. 2007), cert. denied, 128
S. Ct. 1731 (2008).
10
See United States v. Garcia-Arellano, 522 F.3d 477, 480-81 (5th Cir. 2008), cert.
denied, 129 S. Ct. 353 (2008).
11
T EX . PENAL CODE § 30.02(a)(1).
3
Case: 09-20224 Document: 00511039533 Page: 4 Date Filed: 03/02/2010
No. 09-20224
The district court did not commit error, much less plain error, in imposing
Almazan-Martinez’s sentence.12 The judgment is AFFIRMED.
12
See Puckett, 129 S. Ct. at 1429.
4 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/178119/ | Case: 10-30135 Document: 00511276169 Page: 1 Date Filed: 10/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 27, 2010
No. 10-30135
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK ROBERTSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
No. 3:09-CR-111-1
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Frederick Robertson appeals the 24-month sentence imposed following the
revocation of his term of supervised release. He argues that the sentence, which
*
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.
Case: 10-30135 Document: 00511276169 Page: 2 Date Filed: 10/27/2010
No. 10-30135
exceeds the guideline range of 8-14 months, is procedurally and substantively
unreasonable.
This court has not yet determined what standard of review applies to sen-
tences imposed on revocation of supervised release in the wake of United States
v. Booker, 543 U.S. 220 (2005). United States v. Jones, 484 F.3d 783, 791-92 (5th
Cir. 2007). Because, however, Robertson did not object to the sentence in the
district court, and because he failed to raise there the specific claims of procedur-
al error that he argues on appeal, review is for plain error only. See id.; United
States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
To show plain error, Robertson must first show an error that is clear or ob-
vious and that affects his substantial rights. See United States v. Baker, 538
F.3d 324, 332 (5th Cir. 2008). Robertson contends that the district court erred
in basing its sentence on allegations that, in separate incidents, he assaulted his
daughter and his girlfriend with a firearm and that the court erred by failing
properly to explain its upward variance. Contrary to Robertson’s argument, the
allegations in question were not unsubstantiated.
The district court’s finding that Robertson assaulted his daughter and his
girlfriend with a handgun was based on the probation officer’s testimony at the
revocation hearing. To the extent that the probation officer’s testimony was
based on statements made by the victims, it may have been hearsay, but the
court committed no procedural error by considering such evidence in determin-
ing Robertson’s sentence. See United States v. West, 58 F.3d 133, 138 (5th Cir.
1995). The testimony of Robertson’s mother contradicted the probation officer’s
testimony regarding the altercation between Robertson and his daughter, but
the court implicitly resolved the conflict in favor of the probation officer’s testi-
mony by finding that Robertson had committed the alleged violation. Because
the factual determination was plausible in light of the entire record, it was not
clearly erroneous. See United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).
Robertson appears to contend that the district court’s failure to explain its
2
Case: 10-30135 Document: 00511276169 Page: 3 Date Filed: 10/27/2010
No. 10-30135
upward variance from the guideline range, in terms of the sentencing factors of
18 U.S.C. § 3553(a), renders his sentence unreasonable. But the court was not
required to mention the § 3553(a) factors explicitly when pronouncing sentence.
See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
The court’s consideration of the statutory factors, specifically § 3553(a)(1),
the nature of the offense and the history and characteristics of the defendant, is
implicit in the court’s discussion of the assaults, the lengthy criminal history,
and the previous revocation of a term of supervised release. Robertson has not
shown error, plain or otherwise, with respect to the procedural aspects of his
sentencing.
Robertson’s argument that the sentence is substantively unreasonable is
largely premised on his contention that it was error for the court to base its up-
ward variance on the allegations regarding his assaults. As the previous discus-
sion illustrates, there was no reversible procedural error in the factual findings
as to these allegations or in the court’s consideration of the assaults in determin-
ing the sentence.
On revocation of supervised release, the district court may impose any sen-
tence that falls within the statutory maximum term. See Whitelaw, 580 F.3d at
264. Revocation sentences exceeding the guideline range but not exceeding the
statutory maximum have been upheld as a matter of routine against challenges
that the sentences were substantively unreasonable. See id. at 265. Because the
sentence does not exceed the statutory maximum, it is not plain error. See id.
AFFIRMED.
3 | 01-03-2023 | 10-27-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/8304759/ | On Petition to Rehear.
BEJACH, J.
This Court has heretofore delivered its opinion in this case on June 15, 1954. Pursuant to that opinion, a decree was entered in this Court in favor of the original complainant, Don Huntington, and against the original defendant, John Lumpkin in the sum of $627.34.
Subsequent to the entry of the said decree for $627.34, the original defendant, John Lumpkin, the appellee in this Court, has filed a petition to re-hear, claiming that the judgment should have been for $277.34 instead of for $627.34. The basis of the contention asserted in the petition to rehear is that this Court failed to allow a credit of $350 which is clearly indicated by the first report of the Clerk and Master in the Chancery Court of Shelby County, Tennessee, exceptions to which report of the Clerk and Master were overruled by the Chancellor. So-lictors for the original complainant, Don Huntington, *167have filed an answer to the petition to rehear, contending that the credit should not be allowed because the suit in this cause was on a promissory note for $627.34 given in settlement of the building contract on the Hamilton St. project. This objection is without merit in the instant ease, where the note in question is still in the hands of the original holder, although it would be well taken if the note in question were in the hands of a holder in due course suing on same. The very basis of the Chancellor’s reference in the first instance was that since the suit was on notes purporting to have been given in settlement of building contracts and said notes were still in the hands of the original holders, that a reference was proper, and same was accordingly ordered at that time. The Master’s report on the first reference in this cause, found as a fact that there was a contract for the building of a house on Hamilton St., the contract price of which was $4,910 and that the complainant had paid out on same for labor and material, the total sum of $5,547.34. Subtracting $4,910 from $5,547.34, the amount so paid by complainant, the difference is $637.34, not $627.34. The same report found as a fact, in response to a query on that subject, that there were alterations in the original specifications for the construction of the house on Hamilton St., the cost of the changes in the floor plans and blueprints, amounting to $350'. (Record p. 271.)
This item of $350 was simply overlooked by this Court in its opinion heretofore delivered. Obviously, the cost of making changes and alterations in a contract should be added to the contract price. Adding this $350, then, to the contract price of $4,910, the revised or amended contract price becomes $5,260. This is the sum which should be subtracted from the amount found by the Master to have been paid out by complainants, namely, *168$5,547.34, thus making the net amount due from defendant, John Lumpkin, to the complainant, Don Huntington, $278.34. This revision simply amounts to correction of a clerical error.
Apparently, there were two errors. The noté purporting to have been taken for the difference, instead of being taken for $637.34 was taken for $627.34. The credit of $350 which is allowed by the granting of this petition to rehear, however, should be credited not on the note, but on the contract price of $4,910 plus the $350 representing the cost of alterations, making the net balance due complainant, $287.34.
The petition to rehear is granted and the decree for $627.34 heretofore entered in this Court in this cause will be reduced to the sum of $287.34. In all other respects, the opinion of this Court in this cause, and the decree entered here, pursuant to said opinion, will remain unchanged.
Avery, P. . (W. S.), and Carney, J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1621907/ | 942 S.W.2d 748 (1997)
Roy Burton PALACIOS, Appellant,
v.
The STATE of Texas, Appellee.
No. 14-95-00612-CR.
Court of Appeals of Texas, Houston (14th Dist.).
March 27, 1997.
Rehearing Overruled April 24, 1997.
*749 Renato Santos, Houston, for appellant.
Julie Klibert, Houston, for appellee.
Before ROBERTSON, DRAUGHN and ELLIS, JJ.[1]
OPINION
ELLIS, Justice (Assigned).
Roy Burton Palacios appeals his conviction for voluntary manslaughter. He was originally charged with the offense of murder with two enhancement paragraphs for the offenses of auto theft and possession of a controlled substance. The State reduced the charge to voluntary manslaughter with one enhancement and appellant pled guilty to that charge without an agreed recommendation as to punishment. He was sentenced to fifteen years imprisonment. Appellant appeals this conviction raising two points of error challenging the legal and factual sufficiency of the evidence supporting the judgment. We affirm.
Appellant shot and killed his brother, Raymond. The two had spent the evening at a club with a small group of friends, which included appellant's girlfriend and one of her friends. Everyone was drinking. After leaving the club, the group went to a bar, had another round of drinks, and ate. Then, the appellant and the two women went to his aunt's home where he and Raymond lived. Raymond had remained at the bar. When Raymond arrived home later, he was very intoxicated and obnoxious. Initially, appellant attempted to calm his brother and told him to go to sleep. However, Raymond continued to argue with appellant in an attempt to get him to return to the bar to fight another man. He cursed at appellant's girlfriend and threatened to kill everyone if appellant did not go with him. Then, he went into the bedroom and threw a coffee table at his aunt's bed. Appellant entered the bedroom and the two continued arguing. Raymond, who was unarmed, walked toward appellant, and appellant shot him in the stomach. Appellant then took the gun and left with the two women. Raymond died as a result of the shooting.
Article 1.15 of the Texas Code of Criminal Procedure states that when a defendant waives his right to a jury trial and enters a plea, the State must "introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as a basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same." Although appellant signed a judicial confession and an agreement to stipulate evidence which were filed and approved by the court, this evidence was not formally introduced at the plea hearing. *750 Appellant argues that because the State failed to introduce sufficient evidence to support the judgment, he is entitled to a new trial.
We have no jurisdiction to review whether the evidence in this case was factually or legally sufficient to support the trial court's judgment because appellant has waived the alleged error. When a defendant enters a knowing and voluntary guilty plea without benefit of an agreed recommendation as to punishment, he waives all nonjurisdictional defects occurring prior to entry of the plea. Jack v. State, 871 S.W.2d 741, 742-44 (Tex.Crim.App.1994). The sufficiency of the evidence to support a conviction is a nonjurisdictional error. Davis v. State, 870 S.W.2d 43, 47 (Tex.Crim.App.1994). Thus, the relevant issue here is whether the alleged error occurred prior to or after the entry of the plea.
In this case the transcript contains a copy of appellant's judicial confession which was filed and accepted by the trial court. The statement of facts from the plea proceeding indicates that the judge had the judicial confession in front of her prior to the entry of appellant's plea. The judge specifically referenced the document when she directed the following statements to appellant: "You signed here on the bottom of page 1. By signing this, you're telling me that you did indeed commit the offense of voluntary manslaughter, on August 18, 1994. Did you understand that?" Appellant's response was "Yes, ma'am." This exchange indicates that, although the judicial confession was not formally introduced and admitted into evidence, it clearly was filed with the papers of the case before appellant entered his plea. Compare Richardson v. State, 921 S.W.2d 359, 360-61 (Tex.App.Houston [1st Dist.] 1996, no pet.). On these facts, a challenge to the sufficiency of the evidence is a defect occurring prior to the entry of appellant's plea that is nonjurisdictional in nature. As a result, we have no jurisdiction to address the alleged error. Id.
Nevertheless, we add that where the record indicates a judicial confession and agreement to stipulate evidence were filed and approved by the trial court and relied upon by the court in its acceptance of the defendant's plea, those documents constitute sufficient evidence to sustain the plea whether properly introduced into evidence or not. See Rexford v. State, 818 S.W.2d 494, 495-96 (Tex.App.Houston [1st Dist.] 1991, pet. ref'd). Accordingly, appellant's first and second points of error are overruled.
We affirm the judgment of the trial court.
NOTES
[1] This panel consists of justices sitting by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621926/ | 942 S.W.2d 201 (1997)
EMERGICARE SYSTEMS CORPORATION, Appellant,
v.
Lynn BOURDON, M.D., et al., Appellees.
No. 11-96-131-CV.
Court of Appeals of Texas, Eastland.
March 20, 1997.
Rehearing Overruled April 24, 1997.
*202 William A. Hicks, Kory G. Robinson, McMahon, Surovik, Suttle, Buhrmann, Hicks, & Gill, Abilene, for appellant.
James W. Morris, Jr., Kenneth R. Aslakson, E. Eldridge Goins, Goins, Underkofler, Crawford, & Longdon, Dallas, for appellees.
Before ARNOT, C.J., and DICKENSON and WRIGHT, JJ.
OPINION
DICKENSON, Justice.
Emergicare Systems Corporation sued Lynn Bourdon, M.D. and Metroplex Emergency Physicians, P.A. Emergicare alleged that Dr. Bourdon breached a covenant not to compete and that Metroplex tortiously interfered with its contractual agreement with Dr. Bourdon. Following a nonjury trial, judgment was rendered on February 15, 1996, that Emergicare take nothing from these defendants.[1] Emergicare appeals. We affirm the judgment of the trial court.
Background Facts
Emergicare provided emergency room physicians to the Longview Regional Hospital for several years, and Dr. Bourdon was one of those physicians. On October 23, 1991, Emergicare Systems Corporation (ESC) sent a letter to Dr. Bourdon confirming that its contract with Longview Regional Hospital would terminate on November 8, 1991, and that "pursuant to your agreement for professional services with ESC, that agreement terminates coincidentally." Dr. Bourdon then talked to the hospital administrator and to Metroplex. Arrangements were made for him to continue his work at the emergency room as an employee of Metroplex.
Findings of Fact and Conclusions of Law
The trial court made findings of fact and conclusions of law pursuant to TEX. R.CIV.P. 297. The trial court's fact findings have the same force and effect as a jury's verdict upon special issues. See, e.g., Jackson *203 v. McKenney, 602 S.W.2d 124, 126 (Tex. Civ.App.-Eastland 1980, writ ref'd n.r.e.). Relevant portions of those findings and conclusions read as shown:
1. Lynn Bourdon, M.D. was hired by Emergicare Systems Corporation in 1988 to work as an independent contractor for Emergicare in the emergency room of Longview Regional Hospital.
4. The 1991 contract [between Emergicare and Dr. Bourdon] included the following provisions:
[Paragraph 8] The Physician hereby agrees to the following:
(A) Neither he/she, nor any professional association, partnership, or practitioner of medicine with whom the Physician is currently or may in the future associate, will open, own, operate or otherwise participate in, any emergency center, emergency clinic, general or family or any similar practice within five (5) miles of any such emergency clinic or emergency center operated by ESC or any of its affiliates.
(B) The Physician hereby agrees not to contract to provide services (or otherwise accept employment) with any facility which has had a contract for the provision of emergency room services with ESC, or any affiliate of ESC, for a period of one (1) year following termination of such contract at the facility.
The Physician acknowledges and agrees that the covenant contained in this Paragraph 8 is reasonable and does not impose a greater restraint than is necessary to protect the goodwill or other business interests of ESC.
The Physician shall abide by the aforementioned terms unless first having paid Fifty Thousand ($50,000.00) cash as liquidated damages and not as penalty to ESC. In the event litigation is necessary to recover this payment, Physician agrees to pay ESC all costs of said litigation, including, but not limited to, attorneys' fees, court costs, witness fees and the like. Additionally, in the event of an actual or threatened breach of this covenant, pending full payment of the $50,000.00 liquidated damages hereunder, ESC shall be entitled to an injunction restraining the Physician from further violation of this covenant.
[Paragraph 13] The Physician understands that the enforceability of this Agreement is contingent upon ... the existence of a valid contract between ESC and the facility or facilities in which the Physician may be providing professional services. In the absence of a contract or in the event of contract termination between ESC and any facility in which the Physician is or may be providing services, either party hereto shall have the right to terminate this contract (without liability to the other) upon ten (10) days written notice, provided ESC and Physician cannot agree upon suitable reassignment. (Emphasis added)
5. In a letter dated October 23, 1991, Emergicare confirmed previous conversations with Bourdon that Emergicare and Longview would terminate their relationship effective November 8, 1991. It additionally stated that "therefore, pursuant to your [Bourdon's] agreement for professional services with ESC, that agreement terminates coincidentally."
6. Bourdon wrote a letter to Emergicare dated October 30, 1991 [which] referred to a conversation on October 15, 1991 stating that he was attempting to remain at Longview and had talked with its new contractor, Metroplex Emergency Physicians, P.A.
7. Emergicare replied to Bourdon in a letter dated October 25, 1991 that his continued employment at Longview would violate the covenant not to compete in the 1991 contract and that positions in Lufkin, Tyler, and Longview might be available.
8. In a letter dated October 31, 1991, Bourdon gave thirty (30) days notice to Emergicare of his desire to terminate his contract.
9. Metroplex began providing staff services to Longview on November 8, 1991.
10. Bourdon was signed [sic] an employment contract with Longview on November 6, 1991. He began work at the Longview emergency room on November 8, 1991.
*204 11. At the end of 1991, Emergicare was not doing business with any hospitals or clinics.
Conclusions of Law
1. The services agreement between Dr. Lynn Bourdon and Emergicare Systems Corporation is not an at-will employment relationship. Bourdon was paid monthly at a rate specified in the contract; and both parties could terminate the contract only after providing thirty days written notice during which time contractual obligations would remain in force.
2. The covenant not to compete is ancillary to an otherwise enforceable agreement as there have been no allegations or evidence that the employment agreement for the duration of one year between Bourdon and Emergicare was otherwise invalid.
3. The time limitation in the covenant not to compete is unreasonable. The basis of the time limit is the contract between Emergicare and the facility which could last for decades.
4. The covenant not to compete is unreasonable in scope because to prevent Bourdon from continuing to serve the public as an emergency doctor is a greater restraint than necessary to protect Emergicare's interests.
5. The covenant not to compete is unenforceable as a matter of law. The court may reform the covenant not to compete, but pursuant to TEX.BUS. & COM.CODE § 15.51(c), no damages may be awarded.
6. Because the covenant not to compete is an unreasonable restraint of trade, it cannot form the basis of an action for tortious interference. (Emphasis added)
Points of Error
Appellant argues five points of error. In its first four points, appellant claims that the trial court erred in making Conclusions of Law Nos. 3, 4, 5, and 6. In its last point, appellant argues that the trial court erred in overruling its objection to a question asked during the cross-examination of its president. The objection was that counsel was asking appellant's president about his "understanding" of the meaning of Paragraph 8(B) of the contract which is quoted above under Finding of Fact No. 4. There is no challenge to any of the trial court's Findings of Fact. Appellees present one cross-point, arguing that the trial court erred in denying them the recovery of their attorney's fees.
This Court's Ruling
All of the points of error and the cross-point have been considered and overruled. We agree with the trial court that the covenant not to compete (Paragraph 8 of the Agreement for Professional Services dated December 18, 1990) is unreasonable as written and that it is not enforceable without reformation. Since appellant did not seek reformation, the trial court did not err in rendering its judgment that appellant take nothing.
First, we note that the enforceability of Paragraph 8 is conditioned upon the provisions of Paragraph 13. That paragraph specifically provides that, "in the event of contract termination between ESC and any facility in which the Physician is or may be providing services [including Longview Regional Hospital], either party hereto shall have the right to terminate this contract." The contract then states that the termination is "without liability to the other" if the parties cannot agree upon a suitable reassignment. The record is clear that there was no agreement for reassignment.
Next, we note that the covenant purports to restrict the doctor from working within five miles of "any" clinic operated by ESC, whether the doctor ever worked in that clinic or not. Also, the covenant purports to restrict the doctor from working in any emergency room where ESC provides emergency room physicians for one year "following termination of such contract." This could be at some indefinite future date, more than one year following the doctor's termination of employment by ESC.
The law in Texas as to covenants not to compete was discussed by our supreme court in Weatherford Oil Tool Company v. Campbell, 340 S.W.2d 950, 951 (Tex.1960):
An agreement on the part of an employee not to compete with his employer after *205 termination of the employment is in restraint of trade and will not be enforced in accordance with its terms unless the same are reasonable.... [T]he test usually stated for determining the validity of the covenant as written is whether it imposes upon the employee any greater restraint than is reasonably necessary to protect the business and good will of the employer.
TEX.BUS. & COM.CODE ANN. § 15.51 (Vernon Supp.1997) provides that, if a covenant not to compete contains "limitations as to time, geographical area, or scope of activity to be restrained that are not reasonable," the trial court can reform the covenant "to the extent necessary to cause the limitations... to be reasonable." This section also provides that the court cannot award "damages for a breach of the covenant before its reformation and the relief granted to the promisee shall be limited to injunctive relief." Emergicare did not seek injunctive relief; it sought liquidated damages.
See and compare General Devices, Inc. v. Bacon, 888 S.W.2d 497 (Tex.App.-Dallas 1994, writ den'd), and Hospital Consultants, Inc. v. Potyka, 531 S.W.2d 657 (Tex.Civ. App.-San Antonio 1975, writ ref'd n.r.e.). The Dallas Court of Appeals said in Bacon, supra at 504:
The covenant prohibits [the employees] from accepting employment from [the employer's] clients for thirty days after [the employer] and its clients' association ends. The relationship between [the employer] and its clients could exist indefinitely.... Because it is not sufficiently limited as to time and territory, the covenant is not reasonable. (Emphasis in original)
The San Antonio Court of Appeals said in Potyka, supra at 663:
In the absence of special circumstances, a covenant which has as its sole purpose the elimination of competition is not reasonable.
* * * * * *
It is true that there are cases, such as those involving sale of a business or goodwill, where a restrictive covenant has been enforced although its sole objective is the elimination of competition. But a restrictive covenant in connection with the sale of a business or goodwill is quite different from a post-employment restriction.
The trial court was also correct in rendering the take nothing judgment on appellant's claim against Metroplex. See Juliette Fowler Homes, Inc. v. Welch Associates, Inc., 793 S.W.2d 660, 665 (Tex.1990), where the supreme court held:
We now hold that covenants not to compete which are unreasonable restraints of trade and unenforceable on grounds of public policy cannot form the basis of an action for tortious interference.
The trial court did not err in permitting the cross-examination of appellant's president as to his "understanding" of the meaning of Paragraph 8(B). In this nonjury trial, we presume that the trial court interpreted the paragraph as written in the agreement. We presume that the trial court did not consider any evidence which was not admissible. This court agrees with the trial court that Paragraph 8(B), as written, purports to bind the physician "for a period of one (1) year following termination of [ESC's] contract at the facility." This could be much later than the end of the physician's term of employment. General Devices, Inc. v. Bacon, supra.
Cross-Point of Error No. 1 is also overruled; appellees have not shown that the trial court erred in denying them a recovery of their attorney's fees. Appellees rely upon Section 15.51(c) for their claim that the trial court erred in denying them a recovery of their attorney's fees. We note that this statute provides that "the court may award ... reasonable attorney's fees ... in defending the action to enforce the covenant." (Emphasis added) This statute is permissive, not mandatory. There is no showing that the trial court abused its discretion in refusing to award attorney's fees.
The judgment of the trial court is affirmed.
NOTES
[1] The other defendants, Longview Regional Hospital, Inc. and Health Trust, Inc., settled their disputes with Emergicare; and those claims were dismissed prior to trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920416/ | 921 So. 2d 1030 (2006)
SUCCESSION OF Michael N. ALLEN.
No. 2005-CA-0745.
Court of Appeal of Louisiana, Fourth Circuit.
January 4, 2006.
*1031 Charles A. Snyder, Sheila L. Moragas, Milling Benson Woodward L.L.P., New Orleans, LA, for Appellant.
Robert Angelle, Baton Rouge, LA, and Michael G. Gaffney, New Orleans, LA, for Appellee.
(Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS JR., Judge LEON A. CANNIZZARO JR.).
TERRI F. LOVE, Judge.
This appeal arises from a Rule to Determine Status of Property hearing, wherein the trial court ruled that the double located at 2820-22 St. Thomas Street was the separate property of Michael Allen. For the reasons stated below, we affirm the judgment of the trial court.
STATEMENT OF CASE AND PROCEDURAL HISTORY
Decedent, Michael Allen ("Allen") and Appellant, Barbara Washington ("Washington"), lived together prior to marrying on May 17, 1974. Three days prior to the marriage, Allen purchased a double located at 2820-22 St. Thomas Street in New Orleans. Washington was not involved in the purchase of the property. Allen and Washington resided in one side of the double and their daughter, Appellee, Michele Allen Perkins ("Perkins") resided in the other side of the double. Allen died on August 8, 2001 and a Petition for Probate of Notarial Testament was filed on December 12, 2001. The last will and testament bequeathed an undivided one-third interest to Washington and the couple's two daughters, Perkins and Jacqueline Allen Braxton, with a life usufruct to Perkins.
On November 10, 2004, Perkins filed a Rule to Determine Status of Property. Washington argued that the double was community property and all payments on the mortgage were paid with community funds. Further, she argued that the closing cost and security deposit were borrowed from a family member and repaid with community funds and that she later contributed money that she inherited toward improvements to the property. Perkins asserted that there was no evidence in the record to establish the nature of funds utilized to pay either the down payment or mortgage.
After a hearing on the matter, the trial court determined that the double was Allen's separate property and this appeal followed.
STANDARD OF REVIEW
The trial court's legal conclusion that the double was Allen's separate property is reviewed on appeal de novo. A de novo review requires this Court to examine the entire record and render a judgment on the merits. In re Succession of Moss, 2000-62 (La.App. 3 Cir. 6/21/00), 769 So. 2d 614.
LAW AND ANALYSIS
La. C.C. art. 2325 defines the matrimonial regime as "a system of principles and rules governing the ownership and management of the property of married persons as between themselves and toward third persons." Further, "[a] matrimonial regime may be legal, contractual, or partly legal and partly contractual." La. C.C. art. 2326. There is a presumption in the law that all married persons living in Louisiana are under the legal regime of acquets and gains (community property).
*1032 However, married persons are also given the opportunity to establish another regime other than the legal regime of acquets and gains during the first year after moving into and acquiring a domicile in this state. Spouses may enter into a matrimonial agreement without court approval. Spouses are also free to establish by matrimonial agreement[1] a regime of separation of property or modify the legal regime as provided by law. La. C.C. art. 2328. Moreover, spouses may enter into a matrimonial agreement before or during marriage for all matters that are not prohibited by public policy. La. C.C. art. 2329
Under Louisiana law, property is characterized as either community or separate. La. C.C. art. 2335. Property acquired during the existence of the community is presumed to be community, but either spouse may rebut the presumption and prove the separate nature of the property. La. C.C. art. 2340. The classification of property as separate or community is fixed at the time of its acquisition. Robinson v. Robinson, 99-3097 (La.1/17/01), 778 So. 2d 1105; Smith v. Smith, 95-0913 (La.App. 1 Cir.12/20/96), 685 So. 2d 649.
Pursuant to La. C.C. art. 2338, community property is comprised of:
property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.
Conversely, La. C.C. art. 2341 provides a person's separate estate is comprised of:
property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime.
La. C.C. art. 2343.1 establishes how separate property becomes community property:
The transfer by a spouse to the other spouse of a thing forming part of his separate property, with the stipulation that it shall be part of the community, transforms the thing into community property. As to both movables and immovables, a transfer by onerous title must be in writing and a transfer by gratuitous title must be made by authentic act.
In Jones v. Jones, 611 So. 2d 193 (La. App. 4th Cir.1992), Jones purchased a piece of property prior to marrying Seidler. Seidler petitioned for a partition of the community. In particular, Seidler argued that the property purchased by Jones prior to their marriage had become *1033 community property as she had invested her community labor and funds into the property. This Court found that the record supported a finding that the property "changed classification from separate property to community property as a result of a pattern of commingling and treating the property as a community asset throughout the marriage." Id. The Jones record included evidence that Seidler rendered architectural services and provided other labor associated with renovating the property. Moreover, Jones conceded that he treated the property as partially Seidler's because she planned to marry him and live in the house and there was a joint account established after the parties married that was used for the property.
The Jones case was replete with evidence of commingling separate and community funds. Conversely, the record in the case at hand is absent evidence establishing a pattern of commingling. More importantly, there were not any documents in the record to support Washington's assertions that the mortgage was paid with community funds and the borrowed money for the closing costs and security deposit was repaid with community funds. Thus, without any evidence of commingling of funds or a transfer by title, the property purchased by Allen before the marriage was his separate property.
Lastly, Washington argued that she contributed funds to the down payment and that later she used money she inherited to make improvements to the property.[2]
DECREE
For the abovementioned reasons, the judgment of the trial court is affirmed.
AFFIRMED.
CANNIZZARO, J., concurs in the result with reasons.
CANNIZZARO, J., concurs in the result with reasons.
I concur with the majority, but I write separately to state that I would not distinguish Jones v. Jones, 611 So. 2d 193 (La. App. 4th Cir.1992), from the case at bar. The Jones case is an anomaly that was, apparently, decided on an equitable basis, and I do not think that it is an accurate statement of the law. See 16 La. Civil Law Treatise Matrimonial Regimes §§ 3.49 and 7.16, n. 3 (2d ed.1997). As the majority correctly states, the classification of property as separate or community is fixed at the time of its acquisition. Robinson v. Robinson, 99-3097 (La.1/17/01), 778 So. 2d 1105. To change the status of separate property to community property, there must be a written transfer. La. C.C. art. 2341.1. There is no such transfer in the instant case, and the property acquired prior to marriage by Mr. Allen remained his separate property until his death.
NOTES
[1] Matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime. La. C.C. art. 2328.
[2] As the trial Judge noted, Washington may have a claim for reimbursement from Allen's separate estate. However, that issue is not before this Court | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621798/ | 13 So. 3d 475 (2009)
RAKOVICH
v.
ARSENAULT.
No. 2D09-994.
District Court of Appeal of Florida, Second District.
July 24, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621840/ | 733 So. 2d 764 (1999)
HIS WAY HOMES, INC.
v.
MISSISSIPPI GAMING COMMISSION.
No. 98-CC-00690-SCT.
Supreme Court of Mississippi.
February 18, 1999.
*765 Tommy Eugene Furby, Jackson, Attorney for Appellant.
Office of the Attorney General by Joan Myers, Attorney for Appellee.
EN BANC.
SMITH, Justice, for the Court:
STATEMENT OF THE CASE
Statement of the Facts
¶ 1. Appellant His Way Homes, Inc. ("HWH") is a charitable organization licensed by the Mississippi Gaming Commission ("MGC") to conduct bingo games under Mississippi's Charitable Bingo Law, Miss.Code Ann. §§ 97-33-50 et seq. (Rev. 1994 & Supp.1998). Under the statute, "bingo" is not limited to the traditional oral bingo games, but also includes video bingo as well as "pull-tabs," when they are made available as a companion game to bingo and played on the premises of a licensed charitable bingo organization. Miss.Code Ann § 97-33-53(a) (1994). In addition to conducting traditional bingo, HWH maintains ten video pull-tab and bingo machines which are offered for play.
¶ 2. HWH offers video pull-tab and bingo machines for play as many as 35 to 40 hours per week beyond their regular session hours of play. On September 10, 1996, an enforcement agent of MGC found that HWH was paying additional compensation to workers involved in the extended hours operation of these video machines. MGC had previously discovered HWH's practice in 1995, and warned the Executive Director of HWH that such additional compensation violated the statute in MGC's opinion. Nevertheless, HWH continued paying the additional compensation.
¶ 3. MGC then filed a Disciplinary Complaint against HWH charging a violation the statute. The Complaint alleged that HWH paid compensation for the previous two-week period for persons involved in the holding, operating or conducting of licensed games of chance, as follows:
*766
Date Compensation
June 4, 1996 $7,437.50
June 18, 1996 $7,731.00
July 2, 1996 $7,738.75
July 16, 1996 $7,721.00
July 31, 1996 $7,752.75
Aug. 12, 1996 $7,708.15
Aug. 27, 1996 $7,833.50
Sept. 10, 1996 $7,676.25
Sept. 26, 1996 $7,468.50
By paying these amounts, the Complaint alleged that HWH had exceeded the maximum compensation allowed under Miss. Code Ann. § 97-33-69(3).
¶ 4. The Complaint alleged that since Section 97-33-69(3) provides that a charitable bingo licensee "may pay as compensation for all persons involved in the holding, operating or conducting of any licensed game or games of chance, an amount not to exceed Four Hundred Dollars ($400.00) per session," and since Section 97-33-67(1)(a) provides that "[n]o licensee shall hold, operate or conduct any bingo game ... more often that eight (8) sessions in any one (1) week," then it followed by simple multiplication ($400 × 16) that the maximum allowable compensation for any two-week period would be $6,400.00. For each two week pay period listed, HWH had exceeded the maximum amount.
¶ 5. HWH did not dispute that it paid the amounts alleged in MGC's Disciplinary Complaint. However, HWH did deny that it violated the statute, because it interprets the statute as not prohibiting such compensation.
Procedural History
¶ 6. On October 25, 1996, MGC filed its Disciplinary Complaint against HWH alleging, among other things, that HWH had violated the $400.00 per session compensation limitation of Miss.Code Ann. § 97-33-69(3) (Supp.1998). A hearing was held on the Disciplinary Complaint on February 3, 1997, and the Hearing Examiner rendered his decision on April 30, 1997, finding that HWH had violated Miss.Code Ann. § 97-33-69(3) and levied a fine of $1,000 against HWH for that violation.
¶ 7. HWH appealed the decision of the Hearing Examiner to MGC on May 19, 1997. MGC sustained the ruling of the Hearing Examiner at its June 26, 1997 regular monthly meeting. Having exhausted its administrative remedies, on July 25, 1997, HWH then filed a Petition for Writ of Certiorari in the Circuit Court of Hinds County, Mississippi, First Judicial District, seeking judicial review of the adverse decision. The Writ of Certiorari was issued over MGC's Motion to Dismiss the Petition on January 27, 1998. The Circuit Court rendered its Opinion and Order on March 6, 1998 affirming the decision of the MGC.
¶ 8. Aggrieved, HWH now appeals the decision of the Circuit Court to this Court and raises the following contentions on appeal:
I. THE FOUR HUNDRED DOLLAR ($400.00) SESSION PAY LIMITATION DOES NOT INCLUDE COMPENSATION PAID TO WORKERS CONDUCTING OUT-OF-SESSION PLAY PURSUANT TO MISS. CODE ANN. § 97-33-67(1)(A) (SUPP.1998).
II. HWH CLEARLY DID NOT PAY MORE THAN FOUR HUNDRED DOLLARS ($400.00) IN ANY SESSION AND THEREFORE DID NOT VIOLATE MISS. CODE ANN. § 97-33-69(3) (SUPP.1998).
STANDARD OF REVIEW
¶ 9. The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency's scope or powers; or violated the constitutional or statutory rights of the aggrieved party. Sprouse v. Mississippi Employment Security Comm., 639 So. 2d 901, 902 (Miss. 1994); Mississippi Comm. on Environmental Quality v. Chickasaw County Board of Supervisors, 621 So. 2d 1211, 1215 (Miss.1993); Melody Manor Convalescent Center v. Mississippi State Department of Health, 546 So. 2d 972, 974 (Miss.1989). *767 There is a rebuttable presumption in favor of the agency's decisions; the burden of proving to the contrary is on the challenging party. Sprouse, 639 So.2d at 902; Chickasaw County, 621 So.2d at 1216.
¶ 10. Appellate review of an agency decision is limited to the record and the agency's findings. Chickasaw County, 621 So.2d at 1216; Mississippi Employment Security Commission v. PDN, Inc., 586 So. 2d 838, 840 (Miss.1991). The reviewing court cannot substitute its judgment for that of the agency or reweigh the facts of the case. Sprouse, 639 So.2d at 902; Chickasaw County, 621 So.2d at 1216; Mississippi Public Service Commission v. Merchants Truck Line, Inc., 598 So. 2d 778, 782 (Miss.1992). Chancery and circuit courts are held to the same standard as this Court when reviewing agency decisions. Chickasaw County, 621 So.2d at 1215. When this Court finds that the lower court has exceeded its authority in overturning an agency decision, we will reverse and reinstate the agency's decision. Chickasaw County, 621 So.2d at 1215; Merchants Truck Line, 598 So.2d at 782.
¶ 11. Unless the agency's interpretation is repugnant to the plain meaning of the statute thereof, the court is to defer to the agency's interpretation. Mississippi State Tax Comm'n v. Lady Forest Farms, Inc., 701 So. 2d 294, 296 (Miss. 1997). See also Kerr-McGee Chem. Corp. v. Buelow, 670 So. 2d 12, 16 (Miss.1995); Tower Loan of Mississippi v. Mississippi State Tax Comm'n, 662 So. 2d 1077 (Miss. 1995); Mississippi State Tax Comm'n v. Dyer Inv. Co., 507 So. 2d 1287, 1289 (Miss. 1987). Further, the interpretation given the statute by the agency chosen to administer it should be accorded deference. Williams v. Puckett, 624 So. 2d 496, 499 (Miss.1993); Gill v. Mississippi Dep't of Wildlife Conservation, 574 So. 2d 586, 593 (Miss.1990).
LEGAL ANALYSIS
I. THE FOUR HUNDRED DOLLAR ($400.00) SESSION PAY LIMITATION DOES NOT INCLUDE COMPENSATION PAID TO WORKERS CONDUCTING OUT-OF-SESSION PLAY PURSUANT TO MISS. CODE ANN. § 97-33-67(1)(A) (SUPP.1998).
and
II. HWH CLEARLY DID NOT PAY MORE THAN FOUR HUNDRED DOLLARS ($400.00) IN ANY SESSION AND THEREFORE DID NOT VIOLATE MISS. CODE ANN. § 97-33-69(3) (SUPP.1998).
¶ 12. The facts are not in dispute. Before this Court is a rather straightforward question of statutory interpretation. However, this is an issue of first impression as these specific code sections have not been addressed previously by this Court. At issue are specific provisions of the Charitable Bingo Law, as amended, found at Miss.Code Ann. § 97-33-50 et seq. (1992). Appellant HWH contends that MGC's interpretation of these code sections is unreasonable and burdensome to the point of being arbitrary and capricious. Furthermore, the Circuit Court as well as the Hearing Examiner previously ruled that MGC acted within its authority.
¶ 13. Specifically, HWH contends that the circuit court erroneously interpreted Section 97-33-67(1)(a), which reads as follows:
No licensee shall hold, operate or conduct any bingo game more often than for two (2) sessions within one (1) day and more often than eight (8) sessions in any one (1) week. Any licensee who holds no more than one (1) session per week shall be entitled to conduct one (1) six-hour session per week. Notwithstanding the provisions of this paragraph, pull-tabs, video pulltabs or video bingo games may be played for up to eighty (80) hours per week. *768 Miss.Code Ann. § 97-33-67(1)(a) (Supp. 1998) (emphasis added). A "session" is defined as "any five-hour time period within one (1) day or six-hour time period within one (1) week." Miss.Code Ann. § 97-33-53(i) (Rev.1994).
¶ 14. The circuit court said that "[t]he statutory language of Miss.Code Ann. 97-33-67(1)(a) (Supp.1996) is clear and unambiguous that no additional compensation can be paid beyond the amount of $400.00 per session." HWH argues that this ruling is erroneous, because Section 97-33-67(1)(a) says nothing about "the amount of $400.00 per session." Clearly, the circuit court was discussing Section 97-33-67(1)(a) as it relates to Section 97-33-69(3), which reads, in pertinent part:
... [A]ny licensee may pay as compensation for all persons involved in the holding, operating or conducting of any licensed game or games of chance, an amount not to exceed Four Hundred Dollars ($400.00) per session. Persons who may be compensated from the Four Hundred Dollars ($400.00) per session amount may include the bingo supervisor or alternate supervisor, callers, runners and cashiers....
Miss.Code Ann. § 97-33-69(3) (Supp.1998) (emphasis added).
¶ 15. HWH next contends that the circuit court failed to address the payment of workers "out-of-session." In this regard, HWH is correct, because the code itself fails to specifically address whether Sections 97-33-67(1)(a) and 97-33-69(3) prohibit or allow additional pay to bingo workers "out-of-session." Herein lies the crux of this litigation.
¶ 16. HWH argues that since the code does not specifically allow nor prohibit "out-of-session" pay, then basic principles of statutory construction should apply. HWH argues that a reasonable construction should be given to the statute, and if it is susceptible to more than one interpretation, it must be given one that best effectuates its purposes. Brady v. John Hancock Mutual Life Ins. Co., 342 So. 2d 295, 303 (Miss.1977). Also, HWH states that this Court's goal in interpreting statutes is to adopt that interpretation which will meet "the real meaning" of the statute. See Mississippi Casino Operators Ass'n v. The Mississippi Gaming Comm., 654 So. 2d 892, 894 (Miss.1995).
¶ 17. In contrast, MGC maintains that $400.00 per session is the maximum that can be paid to bingo workers under the code. MGC argues that prior to 1994 the statute made no exception to Section 97-33-67(1)(a)'s limitations of eight (5 hour) sessions or one (6 hour) session per week. When the Legislature amended Section 97-33-67(1)(a) in 1994 to except the play of video bingo and pull-tabs to eighty (80) hours per week, it did not make a corresponding amendment to Section 97-33-69(3). 1994 Miss. Laws Ch. 635 § 8. Thus, the then existent $300.00 per session maximum limit was left in effect despite the amendment.
¶ 18. In 1995, the Legislature amended Section 97-33-69(3) to provide compensation to bingo workers in the now current amount of $400.00 per session. It did not make an exception for compensation for work involved in the additional hours of pull-tabs and video bingo. Since the Legislature did not make such an exception, MGC argues that this Court should not create an exception by construction as suggested by HWH. Roberts v. Mississippi Republican Party State Executive Committee, 465 So. 2d 1050, 1052 (Miss.1985). Furthermore, "Where no exception in positive words is made, the presumption is the legislature intended to make none." State v. Heard, 246 Miss. 774, 151 So. 2d 417, 420 (1963). Therefore, MGC contends that the statute is plain and unambiguous in stating that no additional compensation can be paid beyond the amount of $400.00 per session so there is no need for judicial construction. Forman v. Carter, 269 So. 2d 865, 868 (Miss.1972); see also Peterson v. Sandoz, 451 So. 2d 216, 219 (Miss.1984).
*769 ¶ 19. Simply, it is MGC's position that while Section 97-33-67(1)(a) allows a charity to operate video bingo and pull-tabs out-of-session, the compensation paid to its employees for working during that time must be included in the session pay limitation. HWH suggests that Section 97-33-69(3) deals only with compensation during session play, and MGC cannot add to compensation for session work the compensation paid for out-of-session work in order to charge HWH with violating the limitation.
¶ 20. In essence, HWH is asking this Court to read into Sections 97-33-67(1)(a) and 97-33-69(3) a provision authorizing payment to workers beyond the plain language of the statutes. This Court has said:
"[P]resumptions are indulged against... inadvertent omissions or oversights, or ... against legislation by implication...." 82 C.J.S. Statutes § 316(a) (1953) (noting Seward v. Dogan, 198 Miss. 419, 21 So. 2d 292 (1945)) (other footnotes omitted). In sum, this Court cannot omit or add to the plain meaning of the statute or presume that the legislature failed to state something other than what was plainly stated. Thus, we are not justified in concluding that the legislature intended, but forgot, to include private parties in the list of those who may institute proceedings to enforce zoning ordinances.
City of Houston v. Tri-Lakes Ltd., 681 So. 2d 104, 106 (Miss.1996). Likewise, this Court is not now justified in presuming that the Legislature omitted something in the Charitable Bingo Law. If a problem exists, it is for Legislature to correct. In the meantime, We must apply the statutes as written.
¶ 21. The Legislature has vested the MGC with authority to control the operation of bingo games in accordance with the Charitable Bingo Law and MGC's rules and regulations. Miss.Code Ann. § 97-33-65 (Rev.1994). Furthermore, the Legislature has provided that any person, association or corporation violating any provisions of the Charitable Bingo Law or any rule or regulation of MGC shall be subject to a fine imposed by MGC and to suspension or revocation of its license. Miss. Code Ann. § 97-33-75 (Rev.1994). MGC acted within its statutory authority when it fined HWH.
¶ 22. With regard to the interpretation of statutes by state agencies, this Court has recently said:
... [U]nless the Department's interpretation is repugnant to the plain meaning thereof, the court is to defer to the agency's interpretation. Mississippi State Tax Comm'n v. Lady Forest Farms, Inc., 701 So. 2d 294, 296 (Miss. 1997). See also Kerr-McGee Chem. Corp. v. Buelow, 670 So. 2d 12, 16 (Miss. 1995); Tower Loan of Mississippi v. Mississippi State Tax Comm'n, 662 So. 2d 1077 (Miss.1995); Mississippi State Tax Comm'n v. Dyer Inv. Co., 507 So. 2d 1287, 1289 (Miss.1987).
Further, the interpretation given the statute by the agency chosen to administer it should be accorded deference. Williams v. Puckett, 624 So. 2d 496, 499 (Miss.1993); Gill v. Mississippi Dep't of Wildlife Conservation, 574 So. 2d 586, 593 (Miss.1990).
Ricks v. Mississippi State Dep't of Health, 719 So. 2d 173 (Miss.1998). MGC points to Section 97-33-57(2) which states as follows:
If the commission is satisfied that no commission, salary, compensation, reward or recompense whatever, except as otherwise provided in Section 97-33-69, will be paid or given to any person holding, operating or conducting any bingo game, it may issue a license to the applicant for the holding, operating and conducting of bingo games.
Miss.Code Ann. § 97-33-57(2) (Rev.1994) (emphasis added). Thus, MGC's interpretation cannot be said to be "repugnant" to *770 the plain meaning of the statute[1]. Therefore, MGC's interpretation is given deference by this Court, and the circuit court was correct in affirming the MGC's decision.
CONCLUSION
¶ 23. The Mississippi Gaming Commission's interpretation of the statutes in question was not repugnant to their plain meaning. Accordingly, this Court defers to the state agency which has statutory authority to enforce these code sections. Therefore, the circuit court did not err in affirming the MGC's decision.
¶ 24. The judgment of the Hinds County Circuit Court is, therefore, affirmed.
¶ 25. JUDGMENT AFFIRMED.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, JAMES L. ROBERTS, Jr., MILLS AND WALLER, JJ., CONCUR.
NOTES
[1] HWH was previously warned by the MGC for failure to abide by these code sections and that action could be taken in the future. HWH admits stubbornly refusing to comply while insisting that its interpretation was equally reasonable and logical. In fact, the MGC and HWH tried to settle this dispute prior to any disciplinary action being taken. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621857/ | 13 So. 3d 1241 (2009)
STATE of Louisiana, Appellee
v.
Gregory D. FREEMAN, Appellant.
No. 44,419-KA.
Court of Appeal of Louisiana, Second Circuit.
June 24, 2009.
*1242 Steven A. Hansen, Monroe, for Appellant.
Jerry L. Jones, District Attorney, for Appellee.
Geary S. Aycock, Assistant District Attorney.
Before PEATROSS, DREW and MOORE, JJ.
MOORE, J.
After being arrested for aggravated rape, Gregory Freeman was charged by bill of information with molestation of a juvenile, his nine-year-old stepdaughter, a violation of La. R.S. 14:82.1 C. He pled guilty as charged and was sentenced to 19 years at hard labor, with the order to have no contact with the victim or her family. He now appeals his sentence as excessive. We affirm.
Freeman's Boykin hearing was not transcribed, but the district court fully developed the underlying facts at sentencing. In June 2007, Freeman's wife approached the bathroom of their trailer in Bawcomville. She could see him standing in the doorway with his pants pulled down, masturbating in front of her nine-year-old daughter. After being discovered, Freeman left the trailer; Ms. Freeman called the Ouachita Parish Sheriff's Office. The girl told a sheriff's corporal that Freeman had been "moving her head back and forth," "putting his dick in her mouth" and "rubbing her down there," referring to the vagina.
Ms. Freeman took her three children and moved to North Carolina. There, Child Protective Services interviewed the children. The younger girl and boy reported no abuse, but the nine-year-old described repeated events of misconduct. These included Freeman coming into her bedroom and putting his genitals to her mouth; sticking his penis in her private area; holding the door shut while doing these things; and threatening her if she told her mother. The child's description of adult male anatomy was graphic, and a doctor confirmed "persistent anal dilation" consistent with entry.
Freeman admitted that "this incident occurred at most possibly three times," but denied penetrating the victim, holding the door shut or threatening any of the kids.
As noted, Freeman was arrested for aggravated rape but charged with molestation of a juvenile over whom the offender had control or supervision, R.S. 14:81.2 C. *1243 He pled guilty as charged and received 19 years at hard labor with the order to have no contact with the victim or her family. His motion to reconsider was denied. He now appeals, urging his near-maximum sentence was excessive, given his lack of a felony criminal record and the fact that the other children in the trailer were never harmed. He contests the court's finding of "sadistic gratification" and its reliance on State v. Tate, 543 So. 2d 1093 (La.App. 2 Cir.), writ denied, 551 So. 2d 629 (La.1989), as that case involved much more frequent incidents over a two-year period.
Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall, 94-0461 (La.9/5/95), 660 So. 2d 819; State v. Taylor, 42,627 (La.App. 2 Cir. 10/24/07), 968 So. 2d 1135, writ denied, XXXX-XXXX (La.11/10/08), 996 So. 2d 1063. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lobato, 603 So. 2d 739 (La.1992); State v. Taylor, supra. No sentencing factor is accorded greater weight by statute than any other factor. State v. Taves, XXXX-XXXX (La.12/3/03), 861 So. 2d 144; State v. Quiambao, 36,587 (La.App. 2 Cir. 12/11/02), 833 So. 2d 1103, writ denied, XXXX-XXXX (La.5/16/03), 843 So. 2d 1130.
The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey, 623 So. 2d 1276 (La. 1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528 (La.5/16/00), 769 So. 2d 1158. The sentencing court has wide discretion in imposing a sentence within the statutory limits, and such a sentence should not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams, XXXX-XXXX (La.12/13/04), 893 So. 2d 7.
As a general rule, maximum or near-maximum sentences are reserved for the most serious violations of the charged offense and the worst kind of offender. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So. 2d 665. When the offense to which the defendant pled guilty does not adequately describe his conduct, the court has great discretion to impose the maximum or a near-maximum sentence. State v. Lanclos, 419 So. 2d 475 (La.1982); State v. Johnson, 43,810 (La.App. 2 Cir. 1/14/09), 2 So. 3d 567.
Convicted of molestation of a juvenile over whom he had control or supervision, Freeman faced a maximum of 20 years at hard labor and a fine of $10,000. La. R.S. 14:81.2 C.
The district court held a long sentencing hearing in which it related the details of the PSI, heard testimony from Freeman's mother, and discussed the sentencing factors in extenso. The court noted that Freeman had worked as a welder and provided good financial support for his family. Also, he had no prior felonies, but his four prior misdemeanors, including two DWIs, undercut the claim of a relatively crime-free past. As aggravating factors, the court found serious emotional damage to the victim and no justification for Freeman's conduct. Most importantly, the court noted the enormous benefit accruing *1244 from the plea bargain, which reduced Freeman's exposure from mandatory life to a maximum of 20 years. Compliance with Art. 894.1 was not only adequate but exemplary.
Further, this sentence is not disproportionate to Freeman's conduct. While his acts may not have been as pervasive and prolonged as those in State v. Tate, supra, the district court could find multiple instances of molestation and, contrary to Freeman's denial, anal rape. The sentence appears commensurate with the offense and offender. State v. Ferguson, 44,009 (La.App. 2 Cir. 2/25/09), 4 So. 3d 315. We perceive no abuse of the district court's sentencing discretion. The assigned error lacks merit.
We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, Gregory Freeman's conviction and sentence are affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/60918/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 30, 2008
No. 07-14593 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00042-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN LEROY GREEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 30, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Kevin Green, through counsel, appeals his conviction for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
On appeal, Green argues that (1) the evidence presented at trial was insufficient to
establish that he knowingly possessed a firearm; and (2) the district court abused
its discretion in denying his motion for a new trial based on the weight of the
evidence and newly discovered evidence.
Beginning with the first issue, we review de novo “whether there is
sufficient evidence to support the jury’s verdict.” United States v. Ortiz, 318 F.3d
1030, 1036 (11th Cir. 2003) (per curiam). We will affirm a conviction if we
determine that “a reasonable trier of fact could conclude that the evidence
establishes guilt beyond a reasonable doubt.” Id. (internal quotation marks
omitted). In making this determination, we review the evidence in the light most
favorable to the government, drawing all reasonable inferences and making
credibility choices in the government’s favor. United States v. Garcia-Jaimes, 484
F.3d 1311, 1319-20 (11th Cir.), petition for cert. filed, (U.S. June 11, 2007) (No.
06-11863). Furthermore, “[i]t is not necessary that the evidence exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt . . . .” United States v. Calderon, 127 F.3d 1314,
1324 (11th Cir. 1997).
“To obtain a conviction for being a felon in possession of a firearm, the
2
[government] must prove beyond a reasonable doubt that [Green] was (1) in
knowing possession of a firearm, (2) a convicted felon, and (3) that the firearm
affected interstate commerce.” United States v. Glover, 431 F.3d 744, 748 (11th
Cir. 2005) (per curiam) (internal quotation marks omitted). Green argues only that
the government failed to provide sufficient evidence to prove that he knowingly
possessed a firearm. Because Green stipulated at trial to being a convicted felon,
and he does not contest the sufficiency of the evidence establishing an interstate
nexus, any arguments based on those grounds are waived. See Access Now, Inc. v.
Southwest Airlines, Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (stating that issues
not argued on appeal are abandoned).
A reasonable fact-finder could conclude beyond a reasonable doubt that
Green was in knowing possession of a gun based on the following evidence:
(1) the arresting officer saw Green make movements with his hand and heard a
clicking sound, like metal against stucco, hitting a nearby house; (2) immediately
thereafter, the officer discovered the gun where Green had been standing and
observed that it was marked with stucco residue; and (3) a witness identified the
gun retrieved by the officer as the gun she saw Green brandish earlier that night.1
1
Green contends that the witnesses’ testimony is not worthy of belief, based in part on
his allegations of bias and inconsistencies. We may not, however, review determinations made
by the jury as to the credibility of witness testimony unless such testimony is “incredible as a
matter of law.” Calderon, 127 F.3d at 1325. Testimony is incredible as a matter of law only
3
Next, we turn to Green’s argument that the district court abused its
discretion in denying his motion for a new trial on the basis of the weight of the
evidence and newly discovered evidence.
“We review a district court’s denial of a motion for new trial for abuse of
discretion.” United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en
banc). The broad standard for granting a new trial is whether the verdict must be
set aside “‘in the interest of justice.’” United States v. Vicaria, 12 F.3d 195, 198
(11th Cir. 1994); see Fed. R. Crim. P. 33(a).
We review a district court’s ruling on motion for a new trial based on the
weight of the evidence differently than we review a challenge to the sufficiency of
the evidence. See United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985).
In evaluating a motion for new trial based on the weight of the evidence, the
evidence is not viewed in the light most favorable to the verdict, and the district
court “may weigh the evidence and consider the credibility of the witnesses.” Id.
However, “[t]he court may not reweigh the evidence and set aside the verdict
simply because it feels some other result would be more reasonable.” Id. at 1312-
13. For a court to set aside the verdict, “[t]he evidence must preponderate heavily
when it is “unbelievable on its face” and relates to facts that the witness “physically could not
have possibly observed or events that could not have occurred under the laws of nature.” Id.
(internal quotation marks omitted). Green has failed to show that the testimony of any witness is
incredible as a matter of law.
4
against the verdict, such that it would be a miscarriage of justice to let the verdict
stand.” Id. at 1313. We have noted that motions for new trial based on the weight
of the evidence are not favored and are granted “sparingly and with caution,” only
in “exceptional cases.” Id. (internal quotation marks omitted).
A motion for a new trial based on newly discovered evidence is also “highly
disfavored” and “should be granted only with great caution.” Campa, 459 F.3d at
1151 (internal quotation marks omitted). A new trial based on newly discovered
evidence is warranted only if: “(1) the evidence was in fact discovered after trial;
(2) the defendant exercised due care to discover the evidence; (3) the evidence was
not merely cumulative or impeaching; (4) the evidence was material; and (5) the
evidence was of such a nature that a new trial would probably produce a different
result.” United States v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005) (internal
quotation marks omitted). “The failure to satisfy any one of these elements is fatal
to a motion for a new trial.” Id. (internal quotation marks omitted).
The district court did not abuse its discretion in denying Green’s motion for
a new trial. Even considering the credibility of the witnesses and any
inconsistencies in their testimony, the weight of the evidence does not
preponderate heavily against the verdict. Additionally, the photographs and
videotape, which Green relied on to support his motion on the basis of newly
5
discovered evidence, were disclosed prior to trial, so they were not newly
discovered. Lastly, Green was not prejudiced by the timing of the fingerprint
expert’s examination of the gun because the expert did not find a useable print.
Accordingly, for the above stated reasons, we affirm Green’s conviction.
AFFIRMED.
6 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1622061/ | 942 S.W.2d 167 (1997)
Judy WEAVER, Appellant,
v.
E-Z MART STORES, INC., Appellee.
No. 06-96-00049-CV.
Court of Appeals of Texas, Texarkana.
March 18, 1997.
*168 Monty G. Murry, Murry & Griffin, Texarkana, for appellant.
John R. Mercy, Jeffrey C. Elliott, Atchley, Russell, Waldrop, Texarkana, for appellee.
Before CORNELIUS, C.J., GRANT and ROSS, JJ.
OPINION
Opinion by Justice GRANT.
The trial court granted E-Z Mart Stores, Inc. summary judgment on the grounds of the statute of limitations. Judy Weaver appeals that decision, complaining that the trial court erred in granting summary judgment because E-Z Mart failed to show that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law.
On April 6, 1993, Weaver's son was killed in a car accident in which he was intoxicated. Weaver sued E-Z Mart for negligence in selling alcohol to her minor son. The statute of limitations for a negligence action is two years. Baptist Memorial Hosp. Sys. v. Arredondo, 922 S.W.2d 120, 121 (Tex. 1996).
On April 6, 1995, to preserve the running of the statute of limitations, attorney James Wyly prepared Weaver's original petition as a pro se petition for Weaver, with the understanding that Weaver would then hire another attorney to represent her. According to Weaver, Wyly's secretary told Weaver that she and Wyly would file the petition and take care of everything that needed to be done, and that the filing of the petition would prevent the running of the statute of limitations. The secretary then filed the petition and requested citation. Thus, a suit was filed on the last day before the running of the statute of limitations.
According to Wyly's deposition, several other attorneys contacted him during the next few months considering whether to represent Weaver. Wyly believed that Weaver was trying to find another attorney to represent her and that she was being diligent in her efforts.
In November 1995, Weaver talked with attorney Billy Harrell, who told her that citation needed to be served and referred her to attorney Rick Wilbanks, who did not agree to represent her but had E-Z Mart served with citation in December 1995. The two-year statute of limitations had run on April 6, 1995. Thus, the service of process was approximately nine months after the running of the statute of limitations.
E-Z Mart filed a motion for summary judgment based on the statute of limitations. Weaver then hired an attorney and filed a response. The trial court granted E-Z Mart summary judgment.
A party moving for summary judgment has the burden of establishing both absence of a genuine issue of material fact and the movant's entitlement to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990). A defendant movant can prevail by establishing every element of an affirmative defense. See, e.g., Burns v. Thomas, 786 S.W.2d 266 (Tex.1990). In deciding whether there is a disputed issue of material fact precluding summary judgment, an appellate *169 court views all evidence in the light most favorable to the nonmovant and resolves all doubts in his favor. Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985).
In its motion for summary judgment, E-Z Mart asserted that it was entitled to judgment as a matter of law on the ground that the statute of limitations had run because Weaver failed to exercise due diligence in procuring service of citation on E-Z Mart. When the suit is timely filed, as in the present case, but the defendant is not served until after the limitations period expires, the date of service relates back to the date of filing if the plaintiff exercised diligence in effecting service. Instrument Specialties Co. v. Texas Employment Commission, 924 S.W.2d 420 (Tex.App.-Fort Worth 1996, writ denied). A plea of limitation is an affirmative defense. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.1988). Whether a plaintiff's claim is barred by limitations depends on whether the plaintiff interrupted the running of limitations. See Murray v. San Jacinto Agency, 800 S.W.2d 826, 829-30 (Tex.1990). Generally, the mere filing of a suit does not interrupt the running of limitations unless due diligence is exercised in the issuance and service of citation. Id. at 830.
It is the responsibility of the party requesting service to ensure that service is properly accomplished. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994); Aguilar v. Stone, 901 S.W.2d 955 (Tex.App.-Houston [1st Dist.] 1995, no writ). It is the attorney's duty to ascertain the status and completion of citation. Reynolds v. Alcorn, 601 S.W.2d 785 (Tex.Civ.App.-Amarillo 1980, no writ). Here, because Weaver had no attorney, it was her duty.
Weaver was a pro se litigant during the time period that service of citation was delayed. A party proceeding pro se must comply with all applicable procedural rules. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex.1978); Clark v. Yarbrough, 900 S.W.2d 406 (Tex.App.-Texarkana 1995, writ denied). A pro se litigant is held to the same standard that applies to a licensed attorney. Brown v. Texas Employment Commission, 801 S.W.2d 5, 8 (Tex.App.-Houston [14th Dist.] 1990, writ denied). No allowance is to be made for the fact that a plaintiff is not a lawyer. Bailey v. Rogers and Keyser, 631 S.W.2d 784, 786 (Tex.App.-Austin 1982, no writ).
"To obtain summary judgment on the grounds that an action was not served within the applicable limitations period, the movant must show that, as a matter of law, diligence was not used to effectuate service." Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (quoting Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975)). The existence of diligence is a question of fact and can only be found as a matter of law when no excuse is offered. Valdez v. Charles Orsinger Buick Co., 715 S.W.2d 126 (Tex.App.-Texarkana 1986, no writ).
Summary judgment may be based on the lack of diligence if no excuse is offered for the delay in procuring the service of citation, or if the lapse of time in the plaintiff's failure to act is such as to conclusively negate diligence. Ray v. O'Neal, 922 S.W.2d 314, 317 (Tex.App.-Fort Worth 1996, n.w.h.); De La Torre v. Our Lady of Guadalupe Center, 807 S.W.2d 889, 890 (Tex.App.-Corpus Christi 1991, no writ). If a defendant affirmatively pleads the defense of limitations and shows the failure to timely serve the defendant, "the burden shifts to the plaintiff to explain the delay." Murray, 800 S.W.2d at 830.
The courts have consistently held that delays in obtaining service constitute a lack of due diligence as a matter of law. See Instrument Specialties Co., 924 S.W.2d 420 (six months); Hansler v. Mainka, 807 S.W.2d 3 (Tex.App.-Corpus Christi 1991, no writ) (five months); Allen v. Bentley Laboratories, 538 S.W.2d 857 (Tex.Civ.App.-San Antonio 1976, writ ref'd n.r.e.) (six months).
An excuse of diligence must involve diligence to seek service of process. Ignorance of the law or reliance upon one's own attorney does not constitute such an excuse. While it is true that the attorney involved in the filing of the suit prepared only a pro se petition and did not represent her in the litigation, she nevertheless, according to her *170 affidavit, relied upon the legal expertise of this attorney and his secretary. Weaver cannot rely upon any failure on the part of this chosen attorney as diligence or an excuse for lack of diligence, because the acts of one's attorney is imputed to the client. Petro-Chemical Transport v. Carroll, 514 S.W.2d 240, 246 (Tex.1974). This same principle generally applies to an attorney's secretary, whose action is imputed to the attorney, whose action in turn is imputed to the client. See Agristor Credit Corp. v. Donahoe, 568 S.W.2d 422, 426 (Tex.Civ.App.-Waco 1978, writ ref'd n.r.e.) (citing Traders & Gen. Ins. Co. v. Burton, 272 S.W.2d 166, 169 (Tex.Civ. App.-Fort Worth 1954, writ ref'd n.r.e.).
Weaver's summary judgment proof did not indicate that she checked with either the secretary on whom she supposedly was relying, the clerk's office, the sheriff's office, or anyone else to see if service had been accomplished. Her affidavit states that in November 1995, she contacted Billy Harrell about handling the case, and Mr. Harrell told her that citation had not been served on E-Z Mart and that needed to be done and referred her to another attorney, Rick Wilbanks, who served E-Z Mart "very soon thereafter." Her affidavit also said that E-Z Mart's motion for summary judgment incorrectly said that citation was not requested until December 1, 1995. Weaver's affidavit said that a letter dated April 6, 1995, from Jim Wyly to Billy Fox Branson, showed that citation was requested on E-Z Mart. Although the affidavit said that the letter was attached, it was not in the record. To be competent summary judgment proof, an affidavit must affirmatively show that it is based on personal knowledge. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984). Weaver's affidavit did not show that she had personal knowledge of the letter; therefore, her affidavit is not competent summary judgment proof of the facts stated in the letter.
Weaver's two proffered excuses for delay in serving E-Z Mart with process is her reliance on the statement by an attorney's secretary that the attorney and his secretary would take care of the service of process and Weaver's ignorance of the law. This does not fulfill the requirements for due diligence; therefore, her suit was barred by the statute of limitations. We affirm the trial court's granting of summary judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622065/ | 942 S.W.2d 738 (1997)
Roy Lynn CAMPBELL, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 14-94-01085-CR.
Court of Appeals of Texas, Houston (14th Dist.).
March 27, 1997.
*739 Terry W. Yates, Houston, for appellant.
Sandra J. Pomerantz, Houston, for appellee.
Before MURPHY, C.J., and ANDERSON and O'NEILL, JJ.
OPINION
O'NEILL, Justice.
Appellant, Roy Lynn Campbell, Jr., pled no contest without an agreed recommendation to theft by deception of property valued at more than $20,000 but less than $100,000. Tex. Penal Code Ann. § 31.03(e)(5)(B).[1] The court assessed punishment at ten years confinement in the Texas Department of Criminal Justice, Institutional Division, and found that appellant, if paroled, should make restitution in the amount of $100,000. In four points of error, appellant contends: (1) the evidence was legally and factually insufficient to support a finding of guilt; (2) the restitution ordered by the trial court was *740 excessive and improper; and (3) the trial court erred in ordering the appellant to pay restitution as a condition of parole. We affirm the judgment of the trial court in part, and reverse and remand in part.
Points of Error One and Two
In his first two points of error, appellant contends the evidence was legally and factually insufficient to support his conviction because the State failed to prove he obtained the property in question without the effective consent of the owner. We find that appellant has failed to preserve error on these claims.
When an accused enters a plea and waives his right to trial by jury, the State must introduce evidence proving guilt to authorize a conviction. See TEX.CODE CRIM. PROC. ANN. art. 1.15 (Vernon Supp.1997). In conducting a sufficiency review, an appellate court must review the entire record in a light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979). In the present case, however, appellant waived his right to have a court reporter make a record of the proceedings. Consequently, there is no statement of facts from the plea hearing from which we might assess the sufficiency of the evidence. The burden is on the appellant to ensure that a sufficient record is presented on appeal to show error. Tex.R.App. P. 50 (d).
Without a statement of facts from the plea hearing, we cannot determine whether the evidence included in the transcript constitutes all of the evidence presented to the trial court. For example, it is possible that at the plea hearing the appellant admitted committing the offense, or that other evidence of guilt was presented. "[W]ithout an agreed or complete statement of facts, an appellate court cannot consider the `facts' of the case to determine whether or not sufficient evidence exists to support the conviction." Greenwood v. State, 823 S.W.2d 660, 661 (Tex.Crim.App.1992); Montoya v. State, 872 S.W.2d 24, 25 (Tex.App.Houston [1st Dist.] 1994, pet. ref'd) (holding appellant's waiver of court reporter failed to preserve evidence that would show his plea was not voluntary). By not presenting a complete record, appellant failed to meet his burden under Rule 50(d). See Greenwood, 823 S.W.2d at 661.
Points of error one and two are overruled.
Point of Error Three
In point of error three, appellant claims the amount of restitution awarded is outside the parameters of the offense. In determining whether the amount of restitution was excessive, we must look to the statute defining the offense for which appellant was convicted. Appellant was convicted of second degree theft, which involves theft of property valued at "$20,000 or more but less than $100,000." Tex. Penal Code § 31.03(e)(5)(B) (emphasis added). Appellant claims the trial court was without authority to order restitution in any amount greater than $99,999.99, and that by doing so the court apparently ordered restitution to other parties not named in the indictment.
The decision to order restitution is within the discretion of the trial court. Carroll v. State, 915 S.W.2d 246, 247 (Tex.App. Beaumont 1996, no pet.) (citing Cartwright v. State, 605 S.W.2d 287, 289 (Tex.Crim.App. 1980)). However, due process requires that there be some factual basis in the record for the amount of restitution ordered. Martin v. State, 874 S.W.2d 674, 676 (Tex.Crim.App. 1994); Cartwright, 605 S.W.2d at 289. In addition, the amount of restitution must be within the parameters of the verdict. Green v. State, 880 S.W.2d 797, 802 (Tex.App. Houston [1st Dist.] 1994, no pet.) (citing Hefner v. State, 735 S.W.2d 608, 614 (Tex.App. Dallas 1987, pet. ref'd)). Restitution cannot be ordered as a condition of probation for losses caused by an offense for which the defendant is not criminally responsible. Martin, 874 S.W.2d at 677 (citing Gordon v. State, 707 S.W.2d 626 (Tex.Crim.App.1986)).
Second degree theft, by definition, involves stolen property valued at less than $100,000. However, the trial court ordered restitution in an amount that fell within first degree theft, which occurs if "the value of the property stolen is $100,000 or more." Tex. Penal Code § 31.03(e)(6)(A). By ordering restitution *741 in an amount that exceeded the parameters of the offense, the trial court abused its discretion under the statute. We therefore sustain appellant's third point of error. We must decide, however, whether to modify the judgment or remand the case for a determination of a just amount of restitution. In determining the proper course, we will address a concern raised by the appellant in point of error four.
Appellant claims the restitution order does not comply with Tex.Code Crim. Proc. Ann. art. 42.01 § 1(25), which provides that a judgment ordering restitution should state the amount of restitution, together with the victim's name and permanent mailing address at the time of the judgment.[2] The provision ordering restitution in the present case appears to be a standard form "stamped" at the bottom of the judgment as follows:
The Court further finds ... that the Defendant, if paroled, should make restitution and reparation to the victim of the crime _______________, in the amount of $100,000.
(emphasis added). The portion of the restitution provision emphasized above is crossed out, and no victim's name appears in the blank. Thus, the restitution order does not state to whom restitution is to be made as required by the statute. Accordingly, we must reverse the award of restitution, and remand this cause to the trial court for a determination of the amount(s) to be paid the victim(s) as required by Article 42.01 § 1(25).
We have already determined that the amount of restitution ordered exceeded the parameters of the offense. Although under the circumstances presented we are authorized to modify the amount of restitution to come within the parameters of the offense,[3] we believe the better course is to reverse the order of restitution and remand the case for a hearing so the trial court may determine a just amount of restitution to be paid to each victim of the offense.
Point of Error Four
In his fourth point of error, appellant contends the trial court erred by ordering appellant to pay restitution as a condition of parole. It is true that the authority to set conditions for parole rests with the parole board, not the trial court. Long v. State, 807 S.W.2d 350, 353 (Tex.App.Houston [14th Dist.] 1991, pet. ref'd); Buehler v. State, 709 S.W.2d 49, 51-52 (Tex.App.Houston [1st Dist.] 1986, pet. ref'd). However, the court has the authority to establish an appropriate sum for restitution in the judgment, leaving it to the parole board to determine if such payment should be a condition of parole. Tex.Code Crim. Proc. Ann. art. 42.12 § 15(g) (Vernon 1979), deleted by Acts 1993, Leg., ch. 900 § 4.01 and subject matter recodified at art. 42.18 § 8(g) (effective September 1, 1994). The judgment in the present case provided that appellant "if paroled" should make restitution. The court thus suggested that restitution be a condition of parole, but left the ultimate decision to the parole board.
Point of error number four is overruled.
That portion of the judgment requiring appellant to "make restitution in the amount of $100,000" is reversed and the case is remanded to the trial court to (1) determine a proper amount, within the parameters of the offense, to be awarded as restitution, and (2) identify the victim(s) to whom restitution is *742 to be made; in all other respects the judgment of the trial court is affirmed.
NOTES
[1] The crime for which appellant was convicted was committed before September 1, 1994, the effective date of the revised penal code. See Acts 1993, 73rd Leg., Ch. 900 § 1.01. Therefore, all references to the penal code are to the code in effect at the time the crime was committed.
[2] If the court determines that it is not in the best interest of the victim to include the victim's name and address in the judgment, the court may include in the judgment the name and address of a person or agency that will accept and forward restitution payments to the victim. TEX. CODE CRIM. PROC. ANN. art. 42.01 § 1(25)(B)(Vernon Supp.1997).
[3] If the record reflects a factual basis for the trial court's restitution order, the proper remedy is to modify the amount ordered by the trial court. Garza v. State, 841 S.W.2d 19, 23 (Tex.App. Dallas 1992, no pet.) (citation omitted). Appellant claims there is no factual basis to support an award of restitution in excess of $37, 374.50 because the victims retained the allegedly stolen vehicles, albeit without title, which had some value. Without a complete statement of facts, however, we are unable to review the sufficiency of the evidence to support the award. We note that the transcript does contain a "Restitution Chart and Payment Plan," filed by appellant, which provides that he will pay restitution in the amount of $109,288.88. Thus, there is a factual basis in the record to support the court's award of restitution, and modification of the amount would be a proper course. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920507/ | 921 So.2d 79 (2006)
STATE of Louisiana
v.
Sylvester TRACKLING.[1]
No. 2004-K-3222.
Supreme Court of Louisiana.
January 19, 2006.
Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Attorney, Claire Adriana White, Richard James Richthofen, Jr., Donna R. Andrieu, Assistant District Attorneys, for applicant.
Mary Constance Haynes, Donald Anthony Sauviac, Jr., for respondent.
WEIMER. J.
We granted certiorari to review the court of appeal's determination that attempted sexual battery is not a crime punishable under the laws of the state of Louisiana and that the trial court erred in denying defendant's pre-trial motion to quash the bill of information charging him with that offense. After considering the relevant statutory law and jurisprudence, we hold that attempted sexual battery is a cognizable offense in Louisiana and, for that reason, the trial court did not err in denying defendant's motion to quash. Accordingly, we reverse the decision of the court of appeal overturning defendant's *80 conviction and sentence and remand this case to the court of appeal for consideration of the pretermitted assignments of error.
FACTS AND PROCEDURAL HISTORY
On May 20, 2002, the twelve-year-old victim left her home on Mandeville Street in New Orleans, Louisiana, to run an errand for her mother. As she proceeded down Claiborne Avenue, she was approached by an adult male who began asking her questions. The man sat her down on some nearby steps. After talking to her for a brief period, asking her how old she was and whether she needed anything, the man reached over and grabbed her hands with one of his hands. He then placed his free hand under her shorts and rubbed her vagina twice, but did not reach inside her underwear. When the man released one of her hands, the victim broke free and ran down the street. She encountered an adult friend of her mother who accompanied her home where she related the event to her mother. The victim's mother alerted the police. On the basis of the victim's description, the defendant was located and detained by police. The victim subsequently identified the defendant as the perpetrator.
On July 22, 2002, defendant was charged by bill of information with one count of attempted sexual battery, a violation of LSA-R.S. 14:27(43.1),[2] and one count of sexual battery, a violation of LSA-R.S. 14:43.1. He was arraigned and entered a plea of not guilty. Hearings were conducted on various pre-trial motions filed by defendant, all of which were denied.
On March 20, 2003, the State amended count two of the bill of information (the count at issue in this case), changing it to reflect a charge of attempted sexual battery. Defendant entered a plea of not guilty to the amended bill. On August 26, 2003, the trial court denied a defense motion to quash the prosecution on grounds that the offense charged, attempted sexual battery, is not a valid crime in Louisiana.
The matter was set for trial on October 22, 2003. Prior to trial, the defendant reurged the motion to quash. Following argument on the issue, the trial court denied the motion. Trial commenced, at the close of which a six-member jury returned a verdict of guilty as charged. On January 9, 2004, the defendant was sentenced to serve five years at hard labor without benefit of probation, parole or suspension of sentence. He was ordered to register as a sex offender.
Following the trial court's denial of a motion to reconsider sentence, defendant filed a motion for appeal. The State filed a multiple bill charging defendant as a fourth felony offender; however, the hearing on the multiple bill had not been held as of the time the record was lodged in the court of appeal.
On December 1, 2004, the Court of Appeal, Fourth Circuit handed down its opinion in this matter, reversing defendant's conviction and sentence. The court of appeal held that the trial court erred when it denied defendant's motion to quash because the charged offense, attempted sexual battery, is not a valid crime in Louisiana. State v. Trackling, 04-0759 (La.App. 4 Cir. 12/1/04), 888 So.2d 1169 (unpublished).
The State filed an application for writs in this court. We granted certiorari to address the State's contention that the court of appeal erred in reversing defendant's *81 conviction and sentence on grounds that attempted sexual battery is not a valid, independent crime. State v. Trackling, 04-3222 (La.4/22/05), 899 So.2d 559.
DISCUSSION
The sole issue presented for our review is whether the charged offense, attempted sexual battery, is a valid crime in Louisiana.
For purposes of the present case, LSA-R.S. 14:43.1 defines sexual battery as:
the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender.
LSA-R.S. 14:27(A) defines an attempt:
Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
By definition "[a]n attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt." LSA-R.S. 14:27(C).
In the instant case, the court of appeal examined the language of LSA-R.S. 14:43.1 and determined that the statute defines sexual battery "simply as a battery of a specific portion of the victim's body." Trackling, 04-0759 at 13. Noting that LSA-R.S. 14:36 defines assault as "an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery," the court reasoned that an attempt to touch "a specific portion of the victim's body" intentionally (i.e., to commit a sexual battery) would, by definition, constitute an assault, and that, as a result, the crime charged, attempted sexual battery, is not a valid offense.
In reaching this conclusion, the court of appeal relied on two previous decisions of this court. In State v. Mayeux, 498 So.2d 701 (La.1986), the defendant was charged with two counts of aggravated battery, a violation of LSA-R.S. 14:34. At the request of defense counsel, the jury was instructed that a responsive verdict of guilty of attempted aggravated battery could be returned. The jury returned a verdict of guilty of attempted aggravated battery on both counts. The State did not object to the verdicts. On appeal, the Court of Appeal, Third Circuit found the verdict of attempted aggravated battery was invalid because it was not one of the responsive verdicts for aggravated battery listed in LSA-C.Cr.P. art. 814(A)(14). The court additionally found that the verdict indicated the State had failed to prove the essential elements of the aggravated batteries, reversed the convictions and sentences, and entered judgments of acquittal. The State sought review in this court, which ultimately held that the jury verdict, in addition to being unresponsive to the crime charged, purported to convict the defendant of an offense not specifically designated as a crime in Louisiana. This court went on to find that the verdict was "wholly invalid," amounted to conviction of *82 a "non-crime," and therefore could operate neither as a conviction nor an acquittal for purposes of double jeopardy. Mayeux, 498 So.2d at 703-705.[3]
More recently, in State v. Johnson, XXXX-XXXX (La.5/31/02), 823 So.2d 917, this court relied on Mayeux in considering the possible responsive verdicts to LSA-R.S. 14:34.2(B)(2), battery on a police officer while the offender is in the custody of a correctional facility. Ultimately concluding that the valid responsive verdicts were (1) guilty as charged; (2) guilty of battery on a police officer (misdemeanor grade); (3) guilty of simple battery; and (4) not guilty, we reasoned:
The court of appeal correctly found in the present case that simple battery, defined in La. R.S. 14:35 as the use of force against the person of another, is a lesser and included offense of simple battery on a police officer. The court thought that an additional responsive verdict of simple battery on a police officer, when the offender is not under confinement in a correctional facility, was a "misnomer" because only one crime "is defined in the statute, though it is listed in a misdemeanor and a felony grade." [State v.] Johnson, 33,791 at 8 [(La.App. 2 Cir., 10/20/00)], 771 So.2d [798,] at 804. However, different grades of the same offense may be listed as separate responsive verdicts. See, e.g., La.C.Cr.P. art. 814(26) (theft); La. C.Cr.P. art. 814(A)(36) (aggravated criminal damage to property). Although simple battery of a police officer, when the offender is not confined in a correctional facility, and simple battery, are both six-month misdemeanor offenses, the former is a more severely punishable offense, as the offender must serve at least 15 days in jail and any term imposed must run without benefit of suspension of sentence. La. R.S. 14:34.2(B)(1). The offense of simple battery is therefore a lesser included offense of simple battery of a police officer, and both crimes comprise subset elements of the charged crime when it occurs within a correctional facility.
On the other hand, simple battery of a police officer producing injury that requires medical attention was not a proper responsive verdict to the charged offense in the present case because evidence sufficient to support conviction for the latter crime is not necessarily sufficient to support conviction for the former. In addition, despite the broad language of La. R.S. 14:27(C) that attempt "is a separate but lesser grade of the intended crime," attempted battery is not a proper responsive verdict to a charged offense of battery because it is not a separate offense in Louisiana. State v. Mayeux, 498 So.2d 701, 703 (La.1986). [Emphasis added.]
Johnson, XXXX-XXXX at 4-5, 823 So.2d at 921.
Drawing upon Johnson and Mayeux, the court of appeal in the instant case concluded that "there can be no legal conviction for a charge of `attempted' battery, even when that battery has specific additional elements," thereby "foreclos[ing] a prosecution for violating La. R.S. 14:27 (43.1)." Trackling, 04-0759 at 15. Because it found that defendant had not been charged with a "valid crime," the court of appeal held that the trial court erred when it denied the motion to quash, and reversed *83 defendant's conviction and sentence. Id.
In this court, the State takes issue with the conclusion of the court of appeal, arguing that it erroneously relied on case law dealing with responsive verdicts (i.e., Johnson and Mayeux) to determine whether the defendant was, in the first instance, charged with and convicted of a valid offense. In addition, the State asserts that the court of appeal's characterization of the crime of sexual battery "simply as a battery of a specific portion of the victim's body," Trackling, 04-0759 at 13, is an incomplete description of the offense that fails to take into account the sexual component that is the gravamen of the crime and that renders the proscribed conduct more egregious than a simple battery. The State's arguments in this regard are well taken.
In State v. Schenck, 513 So.2d 1159 (La. 1987), this court examined LSA-R.S. 14:43.1 in the context of a sufficiency of the evidence challenge to the defendant's conviction of sexual battery. After examining the history and language of the statute, we noted that sexual battery is a responsive verdict under LSA-C.Cr.P. art. 814(A)(8), (10), and (12) where aggravated rape, forcible rape or simple rape is charged, "evidencing a legislative scheme that envisions sexual battery as encompassing conduct falling short of actual rape but which is sexually intrusive and more egregious than a simple battery." Schenck, 513 So.2d at 1162. Reviewing the facts of the case, we found that the evidence was not sufficient to support a conviction for sexual battery because there was no evidence to show that the victim had been compelled to submit to the sexual touching by being placed in fear of receiving bodily harm, an element of the offense at the time. We then considered what lesser offenses, if any, the defendant had committed, ultimately concluding that the defendant was guilty of a simple battery. In the process, we declined to reduce the sexual battery conviction to a conviction for attempted sexual battery. However, we did so, not because we found the existence of such a crime problematic, but because we found the evidence insufficient to support a conviction for either the completed or attempted offense. Schenck, 513 So.2d at 1164 ("There is no evidence to support a conclusion that the defendant here intended to engage in a sexual act by compelling the victim to submit by placing her in fear of receiving bodily harm, nor that he intended anything more than what in fact he accomplished.").
Relying on Schenck, in State v. Ponsell, 33,543, pp. 7-8 (La.App. 2 Cir. 8/23/00), 766 So.2d 678, 683-684, the Court of Appeal, Second Circuit rejected the defendant's contention that attempted sexual battery is a non-existent crime under the laws of Louisiana and found that a 1991 conviction for attempted sexual battery was a responsive verdict and hence a crime recognized under Louisiana law that could be used to enhance the defendant's sentence under the habitual offender statute. The court determined that attempted sexual battery is a lesser included grade of the crime of sexual battery and that all of the elements of attempted sexual battery are elements in sexual battery.
In the instant case, the court of appeal acknowledged the decisions in Schenck and Ponsell, but ultimately dismissed them, finding that the statute under consideration in Schenck was subsequently amended to delete the compulsion element,[4]*84 thereby reducing the offense to no more than a battery of a specific portion of the victim's body. Although the crime of sexual battery no longer includes the element of compulsion that it did at the time Schenck was decided, that change does not, as the court of appeal opined, render the offense simply a "battery of a specific portion of the victim's body;" nor does the change undermine this court's characterization of the crime as conduct "falling short of actual rape but which is sexually intrusive and more egregious than a simple battery." Schenck, 513 So.2d at 1162.
To the contrary, although the offense of sexual battery does not require a specific intent to arouse or gratify the sexual desire of either the defendant or the victim, the intentional and non-consensual touching of the specified body parts unquestionably establishes a sexual component to the crime not necessarily addressed by an offense (such as simple battery) defined in terms of intentional use of force against the person of another. In fact, while commission of the offense may require no more than a battery to a specific portion of the victim's body, the possible punishments are far more severe, precisely because of the sexual nature of the offense. See and compare, LSA-14:43.1 (imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years) and LSA-R.S. 14:35 (fine of not more than five hundred dollars, or imprisonment for not more than six months, or both).
Further, sexual battery and simple battery occupy different subparts of Part II, Crimes against the Person, in the Criminal Code. The offense of simple battery is located in Subpart B (Assault and Battery) while sexual battery is found in Subpart C (Aggravated Rape and Sexual Battery). The difference is reflected in the responsive verdicts for aggravated rape provided by LSA-C.Cr.P. art. 814(8). Sexual battery is responsive; simple battery is not, although it is a lesser included offense. This disparate treatment reflects a legislative scheme that characterizes sexual battery, as we recognized in Schenck, as a crime "falling short of actual rape but which is sexually intrusive and more egregious than a simple battery." Schenck, 513 So.2d at 1162. Statutorily, sexual battery is an offense more akin to rape than simple battery.
Recognizing the substantive differences between the offenses and the conduct they proscribe, we note that unlike simple battery, which has a companion offense for cases in which an attempt to commit the crime has occurred (LSA-R.S. 14:38, simple assault[5]), sexual battery has no companion for cases in which the defendant's effort to touch the victim's anus or genitals is ultimately frustrated. The fact that aggravated assault (LSA-R.S.14:37) and simple assault (LSA-R.S.14:38) are both designated as offenses in Louisiana lends support to the conclusions in Mayeux and Johnson that attempted aggravated battery and attempted simple battery are not separate, cognizable offenses. As regards the crimes of aggravated battery and simple battery, separate statutes criminalize the attempt. However, there is no statutory provision proscribing sexual assault. As a result, it appears that there is no *85 logical or legal impediment to charging a defendant with attempted sexual battery.[6]
Attempted sexual battery is a cognizable offense in the same way that attempted first degree murder and second degree murder are cognizable offenses; not because the legislature has specifically denominated the crimes, but because the definitions of the completed offenses in LSA-R.S. 14:30 and 14:30.1 coalesce with the general attempt statute, LSA-R.S. 14:27, to produce that result.
All crimes in Louisiana are statutory. There can be no crime which is not defined and denounced by statute. In this instance, sexual battery is a crime denounced and defined by statute, LSA-R.S. 14:43.1. Another statute, LSA-R.S. 14:27, makes an attempt to commit a crime an offense. These two provisions coalesce, with the result that the offense charged, attempted sexual battery, is a crime denounced and defined to be such under the statutory laws of this state.
The court of appeal erred in concluding that attempted sexual battery, LSA-R.S. 14:27(43.1), is not a valid, cognizable crime in Louisiana.
CONCLUSION
For the reasons assigned, the decision of the court of appeal is reversed. This matter is remanded to the court of appeal for consideration of the defendant's remaining assignments of error.
REVERSED AND REMANDED TO THE COURT OF APPEAL.
NOTES
[1] Retired Judge Phillip C. Ciaccio, sitting ad hoc for Justice Catherine D. Kimball, not on panel.
[2] The first count pertained to a different incident involving a different victim. The two counts were eventually severed for trial, and on August 27, 2003, defendant was acquitted of the first count. As a result, this count is not relevant to the present proceeding.
[3] For the sake of completeness, we note Mayeux was subsequently retried and his conviction was affirmed. See State v. Mayeux, 526 So.2d 1243 (La.App. 3 Cir.), writ denied 531 So.2d 262 (1988). However, he was granted federal habeas corpus relief. Mayeux v. Belt, 737 F.Supp. 957, 961 (W.D.La.1990).
[4] At the time Schenck was decided, LSA-R.S. 14:43.1 proscribed the intentional touching of the anus or genitals of either the victim or the offender where the victim was not the spouse of the offender and where the offender compelled the victim to submit to such touching by placing the victim in fear of receiving bodily harm. The statute was amended by 1991 La. Acts No. 654 to delete the compulsion language, substituting the present lack of consent language in its stead.
[5] As stated in State v. Nazar, 96-0175, p. 2 (La.App. 4 Cir., 5/22/96), 675 So.2d 780, 781, there is no such crime as attempted simple battery in Louisiana. "An attempted simple battery is a simple assault."
[6] While not dispositive of the issue, we note that appellate courts in Louisiana have repeatedly referenced the offense without questioning its validity as a crime in Louisiana. See, State v. Peloquin, 04-667 (La.App. 3 Cir. 11/17/04), 888 So.2d 393, writ denied, 04-3170 (La.4/8/05), 898 So.2d 1280 (affirming defendant's conviction of attempted sexual battery); State v. Bertrand, 03-2069 (La.App. 4 Cir. 4/28/04), 874 So.2d 905 (affirming defendant's conviction of attempted sexual battery but remanding for re-sentencing); State v. Howard, 37,603 (La.App. 2 Cir. 10/31/03), 859 So.2d 936 (using prior conviction of attempted sexual battery as a predicate offense for sentencing as a multiple offender); State v. Barling, XXXX-XXXX, XXXX-XXXX (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-0838 (La.2/1/02), 808 So.2d 331 (affirming defendant's conviction of attempted sexual battery); State v. Wilson, 561 So.2d 889 (La. App. 2 Cir.1990) (affirming defendant's sentence upon pleading guilty to attempted sexual battery); State v. Grimes, 527 So.2d 1079 (La.App. 1 Cir.1988), writ denied, 533 So.2d 15 (La.1988) (affirming defendant's sentence upon pleading guilty to attempted sexual battery); State v. Anderson, 526 So.2d 499 (La. App. 1 Cir.1988), writ denied, 537 So.2d 1160 (1989) (affirming defendant's conviction of attempted sexual battery). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621940/ | 725 N.W.2d 423 (2006)
2006 WI App 221
WISCONSIN POWER AND LIGHT COMPANY, Petitioner-Appellant,
v.
PUBLIC SERVICE COMMISSION OF WISCONSIN, Respondent-Respondent,
Madison Gas and Electric Company, Interested Party-Respondent.
No. 2005AP3092.
Court of Appeals of Wisconsin.
Submitted on Briefs August 23, 2006.
Opinion Filed September 20, 2006.
*424 On behalf of the petitioner-appellant, the cause was submitted on the briefs of Thomas L. Shriner, Jr. and Stephan J. Nickels of Foley & Lardner, L.L.P., Madison.
On behalf of the respondent-respondent, the cause was submitted on the brief of David J. Gilles, general counsel, and Edward S. Marion, assistant general counsel, of Public Service Commission of Wisconsin, Madison.
On behalf of the interested party-respondent, a response was submitted by Richard K. Nordeng and Barbara A. Neider of Stafford Rosenbaum, L.L.P., Madison.
Before BROWN, NETTESHEIM and ANDERSON, JJ.
¶ 1 ANDERSON, J.
Wisconsin Power and Light Company appeals from a circuit court order dismissing its petition for judicial review of an adverse ruling of the Public Service Commission of Wisconsin. The circuit court dismissed WPL's petition because it was served after the expiration of the thirty-day limitation period provided in WIS. STAT. § 227.53(1)(a)2. (2003-04).[1] The circuit court measured the thirty days from the date the PSC served the parties by mail. WPL claims that the PSC did not trigger the thirty-day limitation period until it properly filed its decision, which WPL contends did not occur until one day after the PSC mailed the decision. We conclude that the PSC filed the decision on the same day it served the parties by mail. The circuit court correctly calculated the time within which WPL had to serve its petition for judicial review. We affirm.
Facts
¶ 2 We begin with some background on the PSC's filing procedures. According to the records management program supervisor for the records management unit of the PSC, in December 2003, the PSC adopted the Electronic Records Filing system and changed the process for filing documents. Under this new system, the PSC records management unit stamps a PSC decision with the date the document is mailed to the parties. At that time, the decision is available to anyone who requests it. In addition, the records management unit stamps the decision with the date and time it was uploaded into the ERF. This date may differ from the mailing date because the records management unit has forty-eight hours to include the records in the ERF.
¶ 3 In this particular case, in May 2004, WPL filed a petition for a declaratory ruling with the PSC. The case involved an electric service territory dispute between Madison Gas and Electric Company and WPL. The merits of the parties' claims are not at issue in this appeal.
¶ 4 On May 17, 2005, the secretary to the PSC signed the ruling dismissing *425 WPL's petition for a declaratory ruling. The PSC mailed its decision to WPL on May 18, as indicated by the stamp reading, "DATE MAILED May 18, 2005." The PSC uploaded the decision into its electronic database on May 19, 2005. The PSC's notation reads, "Public Service Commission of Wisconsin RECEIVED: 05/19/05, 11:59:38 AM." On June 17, WPL filed its petition for judicial review with the circuit court. On June 20, WPL served the PSC with its petition for judicial review.
¶ 5 MG & E and the PSC filed motions to dismiss, as untimely, WPL's petition for judicial review. They reasoned as follows. The PSC served its decision on the parties by mail on May 18. Thus, for WPL's petition to be timely, it had to serve and file its petition for judicial review within thirty days after May 18 or no later than June 17. Although WPL filed its petition with the circuit court on June 17, it did not serve the petition on the PSC until June 20.
¶ 6 WPL responded that the appropriate date from which to measure the thirty days was May 19, which was the date it claimed the PSC had filed the decision. WPL explained that if the thirty days began to run on May 19, then it had until June 18 to serve the petition on the PSC. Because June 18 fell on a Saturday, the petition did not have to be served until Monday, June 20.
¶ 7 The circuit court agreed with MG & E and the PSC and dismissed WPL's petition for judicial review. WPL appeals.
Standard of Review
¶ 8 This appeal requires us to construe and apply WIS. STAT. ch. 227 and WIS. ADMIN. CODE § PSC 2.06 (June 2002).[2] The interpretation of a statute and its application to undisputed facts are questions of law that we review independently. Garcia v. Mazda Motor of Am., Inc., 2004 WI 93, ¶ 7, 273 Wis. 2d 612, 682 N.W.2d 365. Likewise, we interpret administrative rules independent of the circuit court. State ex rel. Sprewell v. McCaughtry, 226 Wis. 2d 389, 393, 595 N.W.2d 39 (Ct.App. 1999). Further, when interpreting administrative regulations, we use the same rules of construction and interpretation applicable to statutes. State v. Busch, 217 Wis. 2d 429, 441, 576 N.W.2d 904 (1998).
Discussion
¶ 9 WPL argues, as it did before the circuit court, that it timely served its petition for judicial review. We, like the circuit court, are not persuaded by WPL's reasoning.
¶ 10 WISCONSIN STAT. § 227.48 outlines the requirements for service of an agency decision. Pursuant to the statute, "Every decision when made, signed and filed, shall be served forthwith by personal delivery or mailing of a copy to each party to the proceedings or to the party's attorney of record." Sec. 227.48(1).
¶ 11 WISCONSIN STAT. § 227.53(1) establishes the procedural requirements for filing and serving a petition for judicial review of an agency decision. Subsection (1)(a)2. provides:
[P]etitions for review under this paragraph shall be served and filed within 30 days after the service of the decision of the agency upon all parties under s. 227.48. . . . The 30-day period for serving and filing a petition under this paragraph commences on the day after personal service or mailing of the decision by the agency.
Thus, the thirty-day limitation period is triggered only by WIS. STAT. § 227.48 service *426 of the decision upon the parties. Hedrich v. Board of Regents of the Univ. of Wis., 2001 WI App 228, ¶ 25, 248 Wis. 2d 204, 635 N.W.2d 650. Service occurs on the date the decision is mailed to the parties, not the various dates of receipt. Evans v. Bureau of Local and Reg'l Planning, 72 Wis. 2d 593, 593, 241 N.W.2d 603 (1976). Once the time limitation is triggered, strict compliance is required. See Currier v. DOR, 2006 WI App 12, ¶ 23, 288 Wis. 2d 693, 709 N.W.2d 520. The failure to comply with the mandatory time limitation results in the loss of the circuit court's competency to proceed and the petition must be dismissed. Id.
¶ 12 WPL contends that WIS. STAT. ch. 227 establishes three prerequisites that have to be satisfied before a decision is validly served and the thirty-day period will begin to run. According to WPL, under the plain language of WIS. STAT. § 227.48, an agency can only serve a decision after it is made, signed and filedin that precise order. WPL asserts that the PSC did not file its decision until the records management unit date and time stamped the decision as "RECEIVED" when it was uploaded onto the ERF on May 19. Therefore, § 227.48 service of the decision did not occur until May 19 and the thirty-day limitation period did not close until June 20.
¶ 13 WPL relies on the definition of "file" provided in the PSC regulations. WISCONSIN ADMIN. CODE § PSC 2.06(1) states:
A person shall file any paper authorized or required to be filed by this chapter with the records management unit of the commission between the hours of 7:45 a.m. and 4:00 p.m. on a working day. Papers are not considered filed until they are date and time stamped by the records management unit.
WPL contends that "person" includes the PSC. See WIS. ADMIN. CODE § PSC 2.02(11) (stating that "person" has the same meaning as that provided in WIS. STAT. § 990.01(26), which includes governmental entities).
¶ 14 WPL's reliance on WIS. ADMIN. CODE § PSC 2.06(1) is misplaced. First, when § PSC 2.06(1) is read in conjunction with the other subsections, it becomes clear that § PSC 2.06 is not meant to apply to documents originating within the PSC. See Town of Sheboygan v. City of Sheboygan, 150 Wis. 2d 210, 213, 441 N.W.2d 752 (Ct.App.1989) (commenting that in determining the meaning of any single phrase or word in a statute, it is necessary to look at it in light of the whole statute). Rather, § PSC 2.06 is meant to apply to third parties filing documents with the PSC. For example, subsection (2) provides that "a person shall file the original and 20 copies of all papers filed with the commission." As MG & E aptly states, "It would make no sense to require the [PSC] to file 20 copies of its decisions with itself." While, as WPL suggests, § PSC 2.06 may embrace filings by third-party governmental entities, it is illogical for it apply to the PSC's own decisions.
¶ 15 Second, WPL's interpretation poses a potential conflict between WIS. ADMIN. CODE § PSC 2.06 and WIS. STAT. § 227.48(1). See County of Milwaukee v. Superior of Wisconsin, Inc., 2000 WI App 75, ¶ 21, 234 Wis. 2d 218, 610 N.W.2d 484 (stating that statutes and administrative regulations on the same subject matter must be construed in a manner that harmonizes them in order to give each full force and effect). Section PSC 2.06(3)(a)2. provides, "The filing of any paper required to be served constitutes a certification by the person making the filing that a copy of such paper has been served." If, as WPL suggests, the PSC is a "person" and a PSC *427 decision must be date and time stamped before it may be filed and therefore served under § 227.48(1), the PSC could not possibly comply with § PSC 2.06(3)(a)2., which plainly requires the opposite. For these reasons, we conclude that § PSC 2.06 does not dictate when a PSC decision is filed for purposes of § 227.48 service.
¶ 16 We agree with the PSC and MG & E that the proper definition for "file" for purposes of WIS. STAT. § 227.48 can be found in Currier. There, we considered how to define the term file for purposes of WIS. STAT. § 227.49 petitions for rehearing of an agency decision. Currier, 288 Wis. 2d 693, ¶ 14, 709 N.W.2d 520. We applied the general principle that, in absence of a relevant statutory definition, the legislature is presumed to intend the common usage of a term, which can be established by its definition in a recognized dictionary. See id., ¶ 17 (citing Hoffman v. Rankin, 2002 WI App 189, ¶ 8, 256 Wis. 2d 678, 649 N.W.2d 350). Our review of dictionary definitions and case law applying those definitions led us to the conclusion that in order to file a petition, the petition had to be physically delivered to and received by the relevant authority. See Currier, 288 Wis. 2d 693, ¶¶ 14-17, 709 N.W.2d 520 (citing dictionary and case law definitions of the term). We see no reason why we should not apply this general rule of statutory construction and read the same definition into § 227.48, a related statute. See Logerquist v. Board of Canvassers for Nasewaupee, 150 Wis. 2d 907, 913, 442 N.W.2d 551 (Ct.App.1989) (statutes relating to the same subject matter should be construed consistently).
¶ 17 Applying this definition, the PSC filed the decision with the records management unit on May 18, which is the date the records management unit physically received the decision. The record management unit's physical receipt by that date is evidenced by the date mailed stamp. Further, at that point, the decision was available to anyone who requested it. Thus, even assuming, as WPL suggests, that there is a precise sequence to follow for WIS. STAT. § 227.48 service, by May 18 the PSC had complied with that sequencethe decision had been made, signed, filed and then mailed. Accordingly, the PSC triggered the thirty-day limitation period on May 18.[3] WPL failed to serve its petition for judicial review within those thirty days. The circuit court correctly dismissed WPL's petition as untimely.[4]
Order affirmed.
NOTES
[1] All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
[2] All references to WIS. ADMIN. CODE § PSC 2.06 are to the June 2002 register.
[3] WPL relies on Colby v. Columbia County, 202 Wis. 2d 342, 550 N.W.2d 124 (1996), to argue that the PSC's May 18 attempted service may be disregarded entirely because the PSC violated the statutory sequence for service set forth in WIS. STAT. § 227.48 by not filing its decision until May 19 or one day after it served the petition by mail. Because we conclude that the PSC filed its decision on May 18 and then served it by mail that same day, the PSC did not violate any alleged mandatory sequence and we need not consider the argument further.
[4] To avoid problems in the future, we urge the PSC to clarify its administrative rules so that they reflect the fact that the filing provisions apply only to third-party filings or change its procedures so that its own decisions are date and time stamped when the records management unit physically receives them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621984/ | 851 F. Supp. 54 (1993)
Joseph, Claire, and Anthony VARRONE, Plaintiffs,
v.
M. BILOTTI, et al., Defendants.
No. 92-CV-1290 (JRB).
United States District Court, E.D. New York.
September 22, 1993.
*55 Bernard W. McCarthy, Chadbourne & Parke, New York City, for plaintiffs.
Robert Abrams, Atty. Gen. of the State of New York by Frederic L. Lieberman, New York City, for defendants.
MEMORANDUM-DECISION AND ORDER
BARTELS, District Judge.
The defendants Michael Bilotti, John Matthews, Bert Ross, and Francisco Berrios move under Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings.[1] The defendants seek dismissal of two of three consolidated actions, each brought pursuant to 42 U.S.C. § 1983, on the grounds that the claims asserted therein are barred by the applicable statute of limitations.
By order dated October 26, 1992, this Court consolidated three Section 1983 actions entitled Joseph Varrone v. Bilotti, 92-CV-1290, Claire Varrone v. Bilotti, 92-CV-1408, and Anthony Varrone v. Bilotti, 92-CV-1409. Each of the above-named actions asserted that the defendants violated each of the plaintiffs' civil rights on separate but related occasions.
BACKGROUND
At the time of the events precipitating this consolidated action, the plaintiff Joseph Varrone ("Joseph") was incarcerated at the Arthur Kill Correctional Facility in New York (the "Facility"). On or about March 8, 1989, Joseph's son, plaintiff Anthony Varrone ("Anthony"), and Susan Wight (not a party to this action) spent what prison officials term a "contact visit" with Joseph at the Facility during regular visitation hours. Following their departure, prison officials (presumably including one or more of the defendants) subjected Joseph to a "strip frisk." The defendants apparently contend that such frisks are performed routinely on inmates after contact visits.
Joseph alleges that immediately following the strip frisk defendant Berrios, a correctional officer at the Facility, informed him that he would be placed in the Special Housing Unit ("SHU"), an area of solitary confinement within the Facility, because Berrios suspected Joseph and Anthony of having exchanged certain unidentified contraband during their contact visit. Defendant Berrios admittedly placed Joseph in an SHU "drug watch" cell, where the parties agree that Joseph was held for a period of twenty-seven hours. Plaintiff's SHU confinement thus extended from March 8 through March 9, 1989. While Joseph was confined in the drug watch cell, the defendants inspected his bowel movement, which proved negative for contraband. Joseph asserts that the twenty-seven-hour SHU confinement constitutes a violation of his civil rights under 42 U.S.C. § 1983.
The Section 1983 claim asserted by Joseph's wife, the plaintiff Claire Varrone ("Claire"), is founded upon events occurring on March 9, 1989 when Claire went to visit her husband. Upon Claire's arrival at the Facility, the defendant Bilotti, a correction sergeant assigned to the visiting room of the Facility at the time in question, informed her that before she would be permitted to see Joseph she was required to submit to a strip *56 search. The defendants admit that defendant Johnson, a corrections officer at the Facility, escorted Claire to a private room where she then conducted a strip search that uncovered no contraband. Defendant Johnson then escorted Claire to SHU, where the defendants permitted her a non-contact visit with Joseph. Claire avers that the defendants violated her civil rights by wrongfully subjecting her to the strip search.
The plaintiff Anthony alleges that the defendants violated 42 U.S.C. § 1983 on March 10, 1989 when he again visited his father at the Facility. Upon Anthony's arrival, defendant Matthews, a Facility correction sergeant assigned to the visiting room at the relevant time, informed Anthony that he, too, must submit to a strip search before he would be granted visitation privileges. Anthony admits having signed a Consent to Search form before defendant Matthews escorted him to a private room where a full-body search proved negative for contraband. This strip search serves as the foundation of Anthony's Section 1983 claim.
Although the plaintiffs currently are represented by counsel, at the time they filed their respective complaints, each of the plaintiffs was proceeding pro se. Joseph presented his complaint against the defendants to the pro se office on March 10, 1992, and his complaint thereafter was filed with the Clerk of this Court on March 19, 1992. Similarly, plaintiffs Claire and Anthony presented complaints to the pro se office on March 10, 1992, which subsequently were filed with the Court on March 25, 1992. The present motion challenges only the timeliness of plaintiffs Joseph and Claire's Section 1983 claims.
DISCUSSION
A Rule 12(c) motion for judgment on the pleadings "may be interposed after the answer is filed, as a vehicle for raising defenses enumerated in Rule 12(b)." Viacom Int'l, Inc. v. Time, Inc., 785 F. Supp. 371, 375 n. 11 (S.D.N.Y.1992). Thus, a statute of limitations defense properly is the subject of a Rule 12(c) motion. See, e.g., Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir.1989); Viacom Int'l, Inc., 785 F.Supp. at 375 n. 11.
The federal courts generally "`have followed a fairly restrictive standard in ruling on motions for judgment on the pleadings,'" McNeill v. New York City Housing Authority, 719 F. Supp. 233, 256 (S.D.N.Y.1989) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1368, p. 689 [1969]), granting such motions only "where material facts are undisputed and ... judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.1988). On Rule 12(c) motions, the court is compelled to accept as true "all of the well pleaded facts alleged" by the nonmoving party, Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61 (2d Cir.1985), and must draw all reasonable inferences therefrom in his favor. DeSantis v. United States, 783 F. Supp. 165, 168 (S.D.N.Y.1992). Where, as here, defendant alleges that the plaintiff's claims are untimely, dismissal is improper unless it "appears beyond doubt" that the plaintiff's claim is barred by the applicable statute of limitations. Egelston v. State University College, 535 F.2d 752, 754 (2d Cir.1976).
The parties do not dispute that the three-year statute of limitations provided in Section 214(5) of the New York Civil Practice Law and Rules applies to actions brought under 42 U.S.C. § 1983. Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989); Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985). The Second Circuit has applied this limitations period strictly. See Day v. Morgenthau, 909 F.2d 75, 79 (2d Cir.), amended on reh'g, 17 Fed. R. Serv. 3d 1420 (2d Cir.1990). The parties also agree that the plaintiffs' Section 1983 claims accrued for limitations purposes at the time that each of the plaintiffs knew or had reason to know of the injury forming the basis of his or her action. Cullen v. Margiotta, 811 F.2d 698, 725 (2d Cir.), cert. denied, 483 U.S. 1021, 107 S. Ct. 3266, 97 L. Ed. 2d 764 (1987). Thus, the parties concur that for plaintiffs Joseph and Claire's civil rights claims, the statute began to run, at the very *57 latest, on March 9, 1989.[2]
Although the parties dispute whether the plaintiffs Joseph and Claire's actions were commenced on March 19, 1992 and March 25, 1992, respectively (the dates upon which the plaintiffs filed their complaints with the Court), or whether, as the plaintiffs contend vehemently, the actions were deemed commenced on March 10, 1992 upon their presentation to the pro se office, the Court finds it unnecessary to resolve this issue because, in either case, the plaintiffs' claims are untimely.
The plaintiffs' opposition to the present motion centers exclusively on their appeal to this Court to grant them leniency and to apply a less stringent standard to the plaintiffs as pro se litigants. This Court is sympathetic to the plight of the unrepresented and is mindful of the clearly announced principle that encourages the federal courts to accord pro se litigants greater leniency with respect to certain procedural requirements more easily fulfilled by members of the bar. See, e.g., Mount v. Book-of-the-Month Club, Inc., 555 F.2d 1108, 1112 (2d Cir.1977) ("A layman representing himself ... is entitled to a certain liberality with respect to procedural requirements"); Stewart v. United States Postal Service, 649 F. Supp. 1531, 1535 (S.D.N.Y.1986) ("the law downplays the strict application of harsh procedural rules when a party is pro se"). Moreover, the Court has given careful consideration to the general rule that where, as here, "pro se papers implicate the vindication of civil rights or civil liberties," they are to receive a particularly liberal construction. Stewart, 649 F.Supp. at 1535. Accord Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991); Williams v. King, 796 F. Supp. 737, 739 (E.D.N.Y.1992).
However, the net effect of the principles cited above does not require that the courts disregard completely procedural requirements or rules of substantive law whenever a pro se litigant alleges a civil rights violation. Rather, although the courts have "an obligation to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights ... `[t]he right of self-representation does not exempt a party from compliance with the relevant rules of procedural and substantive law.'" Clarke v. Bank of New York, 687 F. Supp. 863, 871 (S.D.N.Y.1988) (internal citation omitted) (quoting Birl v. Estelle, 660 F.2d 592, 593 [5th Cir.1981]). See also Michelson v. Merrill Lynch Pierce, Fenner & Smith, Inc., 619 F. Supp. 727, 741-42 (S.D.N.Y.1985) ("pro se litigants ... like all parties to a litigation, cannot rely upon [their] pro se status as a shield from all mistakes but must at some point bear the consequences of [their] procedural errors").
The plaintiffs correctly note that the courts of this Circuit generally have accorded pro se litigants latitude with respect to meeting procedural requirements. One way in which this liberal approach has manifested itself is in the development of the principle that a pro se complaint filed beyond the statutory bar may be considered commenced timely if received by the pro se clerk's office when the statute of limitations has not yet expired. See, e.g., Toliver v. County of Sullivan, 841 F.2d 41, 42 (2d Cir.1988). However, even granting the plaintiffs the latitude they request and according them the benefit of this approach does not render their claims timely, as both Joseph and Claire's complaints were not presented to the pro se clerk's office until March 10, 1992, one day beyond the statutory bar. Thus, because the plaintiffs failed to present their complaints to the pro se clerk before the expiration of the limitations period, application of the commencement rule articulated in Toliver, supra, is unavailing.
The plaintiffs have failed to demonstrate circumstances warranting greater judicial leniency than that already afforded them under the law. Accordingly, the Court finds that the plaintiffs Joseph and Claire's Section 1983 claims are barred by the applicable statute of limitations.
*58 The Court must address one final issue regarding dismissal of the Section 1983 claims asserted by Joseph, Claire, and Anthony Varrone against one of the defendants, Cynthia Johnson. Because the plaintiffs never effected service of the summons and complaint upon the defendant Johnson within 120 days of the filing thereof, pursuant to Rule 4(j) of the Federal Rules of Civil Procedure, the Court, upon its own initiative, dismisses without prejudice this consolidated action as against defendant Johnson.
CONCLUSION
For the reasons set forth above, the defendants' motion for judgment on the pleadings dismissing the claims asserted by plaintiffs Joseph and Claire Varrone hereby is GRANTED, and all of the claims asserted by the plaintiffs Joseph, Claire, and Anthony Varrone against the defendant Cynthia Johnson hereby are DISMISSED without prejudice pursuant to Fed.R.Civ.Pro. 4(j).
SO ORDERED.
NOTES
[1] The defendant Cynthia Johnson does not join in the present motion.
[2] Because the parties are in agreement that Joseph's confinement ended and defendant Johnson conducted the strip search of plaintiff Claire on March 9, 1989, and because both parties apparently calculate the three-year limitations period from this date, for purposes of this motion the Court will treat March 9, 1989 as the accrual date of the plaintiffs' Section 1983 claims. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621992/ | 851 F. Supp. 27 (1994)
Kevin DONAHUE, Plaintiff,
v.
Donna E. SHALALA, Secretary of Health & Human Services, Defendant.
Civ. No. 2:92-850 (AHN).
United States District Court, D. Connecticut.
March 21, 1994.
*28 Sheldon A. Mossberg, Willimantic, CT, for plaintiff.
Alan M. Soloway, Deidre A. Martini, Asst. U.S. Atty., Bridgeport, CT, for defendant.
NEVAS, District Judge.
After review and absent objection, the Magistrate Judge's Recommended Ruling is approved, adopted & ratified. SO ORDERED.
*29 MAGISTRATE JUDGE'S OPINION
THOMAS P. SMITH, United States Magistrate Judge.
This is an action brought under § 205(g) of the Social Security Act [hereinafter "the Act"], 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services [hereinafter "Secretary"] that denied plaintiff's application for Social Security benefits. Presently before the court are the parties' cross-motions for judgment. For the following reasons, the defendant's motion should be denied, the plaintiff's motion should be granted, and this matter should be remanded to the Secretary solely for the purposes of calculating and awarding benefits.
I. FACTS & PRIOR PROCEEDINGS
Plaintiff was born on May 13, 1948. He attended secondary school, but he did not go further than the eighth grade. (Transcript of Record [hereinafter "Tr."] at 36). He did, however, obtain a G.E.D., and he attended Worcester State College in Massachusetts for a year. (Tr. at 36). Plaintiff has a varied work history, including experience as an electrician's apprentice, an automobile salesperson, and a census taker, but, for purposes of this claim, the Secretary concluded that plaintiff has no relevant past work. (Tr. at 15).
Plaintiff served in an infantry unit of the U.S. Marine Corps during the Vietnam War. While in the Marine Corps, he earned the rank of lance corporal. He was decorated with the National Defense Service Medal, the Vietnam Service Medal, the Good Conduct Medal, and was discharged honorably. (Plaintiff's Memorandum at 3). Plaintiff alleges that, as a result of his service in Vietnam, he began to experience nightmares, a concomitant loss of sleep, outbursts of anger, hyper vigilance, and other symptoms. (Id.). These symptoms allegedly reached a point in the late 1970's, when plaintiff became a virtual recluse, that they precluded him from engaging in any substantial gainful activity. In 1988, plaintiff was diagnosed as suffering from post traumatic stress disorder (PTSD), delayed. (Id,).
Plaintiff filed an application for disability benefits on August 15, 1990, asserting that he was disabled since December 1, 1980, due to heart murmur, gastrointestinal problems, tendinitis of both shoulders, PTSD, asthma, and arthritis. (Tr. at 96, 164). The application was denied at both the initial and reconsideration levels of review. (Tr. at 115-117, 134-136). Plaintiff appealed the decision denying benefits to an Administrative Law Judge [hereinafter "ALJ"], who held a hearing at which the plaintiff and his wife testified.
At the hearing the plaintiff testified about the horrifying experiences in Vietnam that gave rise to his subsequent mental impairment. He stated that he began to have nightmares, which became more frequent and bizarre around 1979. (Tr. at 64). The nightmares were so intense that he was unable to sleep for days at a time. (Tr. at 67-68). He also testified about his volatile temper and the trouble it had brought about. (Tr. at 40-41). When asked why he could not work, he answered "I don't get along with other people at all. I ... hide at home all the time. ... I'm afraid to go out a lot." (Tr. at 39).
Plaintiff's wife testified about plaintiff's difficulty sleeping, his reclusive behavior, and his problems with his temper. (Tr. at 82). She stated that when they married in 1979 plaintiff "had real problems." (Tr. at 80). She also testified that it was only in the last year, since plaintiff began receiving treatment, that she noticed any improvement. (Tr. at 81).
Although he conceded that, as of the date plaintiff was last insuredJune 30, 1983 plaintiff had PTSD, the ALJ found that plaintiff was not disabled within the meaning of the Act on or before that date. The Appeals Council declined to review the ALJ's determination, and plaintiff sought review in this court.
II. SCOPE OF REVIEW
In reviewing a denial of disability benefits, the court may not make a de novo determination of whether the plaintiff is disabled. 42 U.S.C. § 405(g); Wagner v. Secretary of Health & Human Services, 906 F.2d *30 856, 860 (2d Cir.1990). The function of the court is to ascertain whether the Secretary applied the correct legal principles in making the determination and whether the determination is supported by substantial evidence.[1]Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987). Absent legal error, this court may not set aside the decision of the Secretary if it is supported by substantial evidence. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982). Moreover, if supported by substantial evidence, the Secretary's finding will be sustained even where substantial evidence may support the plaintiff's position and despite that the reviewing court, had it heard the evidence de novo, might have found otherwise. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.1982), cert. denied, 459 U.S. 1212, 103 S. Ct. 1207, 75 L. Ed. 2d 447 (1983); Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980).
III. STATUTORY & REGULATORY PROVISIONS
Title II of the Social Security Act provides for the payment of insurance benefits to persons who have contributed to the program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1)(D). In order to qualify for Title II benefits, a claimant must have been disabled within the meaning of the Act on or prior to the last date on which he was insured. There is no dispute that for the plaintiff this date is June 30, 1983. Thus, to receive benefits, plaintiff must establish that, on or before that date, he was unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1). The impairment must be of such severity that the person
is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A).
The burden of establishing disability rests with the plaintiff. Aubeuf v. Schweiker, 649 F.2d 107, 111 (2d Cir.1981). In order to determine disability, the facts that must be considered are "(1) objective medical facts; (2) diagnosis or medical opinions based on those facts; (3) subjective evidence of pain and disability testified to by claimant and other witnesses; and (4) the claimant's background, age, and experience." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir.1988). See also Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983). The standards for finding disability are "to be applied in light of the fact that `the ... Act is a remedial statute, to be broadly construed and liberally applied.'" Gold v. Secretary of Health, Educ. & Welfare, 463 F.2d 38, 41 (2d Cir.1972) (quoting Haberman v. Finch, 418 F.2d 664, 667 (2d Cir.1969)).
The Secretary has established a five-step sequential evaluation process for determining whether a person is disabled. See Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 2290-2292, 96 L. Ed. 2d 119 (1987). First, the Secretary considers if the claimant is presently working in substantial gainful activity. If not, the Secretary next considers if the claimant has a medically severe impairment.[2] If the severity requirement is met, the third inquiry is whether the impairment is listed in Appendix 1 of the regulations or is *31 equal to a listed impairment. See 20 C.F.R. Pt. 404, Subpt. P. App. 1 (1993). If so, disability is granted. If not, the fourth inquiry is to determine whether, despite the severe impairment, the claimant's residual functional capacity allows him or her to perform any past work. If a claimant demonstrates that no past work can be performed, the Secretary then has the burden of proving that the claimant "still retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy." Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982); Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980)).
IV. DISCUSSION
Following the Secretary's five-step scheme, the ALJ found that the plaintiff had not engaged in substantial gainful activity, and that the plaintiff had a severe impairment, although not one listed or equal to one listed in the Regulations. The ALJ also found that the plaintiff had no past relevant work. The resolution of this case, therefore, depends upon the last step in the sequential evaluation, and the issue that must be determined is whether the Secretary carried the burden of proof with respect to the question of whether plaintiff retained the capacity to perform alternative work as of the date he was last insured.
The ALJ found that plaintiff was not disabled as of his date last insured. He concluded that plaintiff was capable of engaging in substantial gainful activity, although plaintiff "probably had some degree of limitation dealing with others such that he would have been limited to employment not requiring close dealings with other people." (Tr. at 17). Plaintiff claims the ALJ's findings are not based on substantial evidence, and that the ALJ applied erroneous legal standards in resolving plaintiff's claim. Because the court agrees with each assertion, the final decision of the Secretary cannot stand.
It is clear from an examination of the entire record that the ALJ misapprehended the law in evaluating plaintiff's claim. The comments and observations that the ALJ made during the hearing reveal that the ALJ erroneously believed that he could not find the plaintiff disabled unless there was a clear and unambiguous statement by a physician that described the plaintiff as "disabled" prior to the date last insured.[3] To be sure, such a statement may well provide the basis for a finding of disability;[4] but its absence from the record is not sufficient reason for denying a claim where, as here, the evidence as a whole amply established that plaintiff was disabled within the meaning of the Act before the expiration of his Title II insured status.[5]
In this case, contrary to the opinion of the ALJ, there was strong evidence establishing both the nature and degree of plaintiff's impairment during the relevant period of time. With respect to the nature of plaintiff's impairment, *32 there are numerous reports in the record that corroborate plaintiff's claim that he suffered from PTSD during the relevant time period.[6] It is not necessary, however, to examine them in detail because the ALJ found that, as of the date last insured, "claimant had a post-traumatic stress disorder and a neurotic character disorder." (Tr. at 17). Thus, it was only the alleged degree of plaintiff's impairment that the ALJ found questionable.[7]
It is the Secretary's function to appraise the credibility of witnesses, including the plaintiff, Carroll v. Secretary of Health & Human Services, 705 F.2d 638, 642 (2d Cir. 1983), and, where the correct legal standard is applied, the court must defer to the credibility determination of the ALJ, who had the opportunity to observe the demeanor of the witness. "The ALJ has discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the [disability alleged] by the claimant." Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979).
In this case, the ALJ based his determination of credibility on the "objective and other evidence." (See Tr. at 18).[8] To the extent the ALJ equated "objective evidence" with "medical evidence," he erred as a matter of law. Moreover, the time-relevant medical evidence before the ALJ, although sparse, does not support the inferences drawn by the ALJ. For instance, Dr. Liepman's first letter states:
[Plaintiff] suffers from a chronic anxiety disorder ([PTSD]) which first became apparent in 1966-67. ... [U]pon his return to the U.S., he was able to function to some degree until 1976-77 when he began to become reclusive. ... [His symptoms have] resulted in marked difficulties in maintaining social function and repeated episodes of decompensation in work settings in which he withdrew from the situation. Altogether, I believe [t]his has impaired [his] functions to an extent that he cannot reasonably support himself and his family.
(Tr. at 253). The ALJ understood Dr. Liepman's opinion as a
mere[] state[ment] that the claimant suffered from a chronic anxiety disorder which first became apparent in 1966 to 1966, and was able to function to some degree until 1976 to 1977, which [sic] he began to become reclusive. Dr. Liepman does not indicate that the claimant's condition was of disabling severity at the time of his date last insured on June 30, 1983.
(Tr. at 16). The ALJ's understanding of Dr. Liepman's assessment is inherently illogical. The ALJ took Dr. Liepman's assessment to mean that plaintiff could "function to some *33 degree until," which necessarily implies that, after the "until," plaintiff could no longer function. Instead, the ALJ concludes that there was no opinion with regard to the disabling severity of the condition. The Secretary presented absolutely no medical evidence that plaintiff's condition improved subsequent to the "until" date.[9] The only logical conclusion, therefore, is that plaintiff's condition continued.
Dr. Liepman's second letter buttresses this conclusion.[10] He states:
I find it hard to believe that the [Secretary] could believe that [plaintiff's] current level of dysfunction began suddenly. [PTSD] is chronic. While I did not know nor examine [plaintiff] prior to 30 June, 1983, I am convinced that his function was impaired then as well as now.
(Tr. at 259). Dr. Liepman then goes on to list the symptoms that plaintiff indisputably manifested during the relevant time period in order to support his conclusion. Dr. Liepman's letters, if not the first taken alone, certainly meet the speculation tolerance level of Dousewicz v. Harris, 646 F.2d 771 (2d Cir.1981).
This, however, does not end the inquiry. Although he apparently accepted the retrospective diagnosis of PTSD, the ALJ determined that the degree of plaintiff's impairment did not meet the statutory criteria. "While [retrospective] medical opinions are not conclusive, `a circumstantial critique by non-physicians, however thorough or responsible, must be overwhelmingly compelling, in order to overcome a medical opinion.'" Rivera v. Sullivan, 923 F.2d 964, 968 (2d Cir. 1991) (quoting Wagner v. Secretary of Health & Human Services, 906 F.2d 856, 862 (2d Cir.1990)). Since it has already been determined that the ALJ's assessment of the medical evidence was internally inconsistent, illogical, and, hence, not based on substantial evidence, all that is left to the Secretary's "circumstantial critique," which can be equated to the credibility determination, is the "other evidence."
By "other evidence," the court assumes that the ALJ is referring to the record as a whole. This blanket justification will not suffice. As the finder of fact, the ALJ was free to accept or reject the testimony of the plaintiff, but a "finding that the witness was not credible must nevertheless be set forth with sufficient specificity to permit intelligible plenary review of the record." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir.1988) (citing Carroll v. Secretary of Health & Human Services, 705 F.2d 638, 643 (2d Cir.1983)). On this record, intelligible review of the ALJ's credibility determination is impossible.[11]
The ALJ's critique of Dr. Liepman's retrospective opinion as to the extent of plaintiff's impairment is hardly thorough or responsible, and it is definitely not compelling. It therefore fails to meet the standards set forth in Wagner, supra, 906 F.2d at 862.
The Secretary must assess all of the evidence in light of the objective medical facts and diagnoses. Williams ex rel. Williams v. Bowen, 859 F.2d 255, 261 (2d Cir.1988). In *34 this case, the testimony given by plaintiff and Mrs. Donahue is consistent with the objective medical evidence and the opinions of the experts. The failure of the Secretary to present any medical evidence in conjunction with the failure to make an intelligible determination of the credibility of the witnesses defeats the Secretary's contention that there is substantial evidence to support the ALJ's determination.
In a case such as this, where the Secretary failed to present any medical evidence in contravention to that presented by the plaintiff and where the evidence in the record established that plaintiff is entitled to benefits, the case should be reversed rather than remanded. See Parker v. Harris, 626 F.2d 225, 235 (2d Cir.1980) (holding reversal appropriate "when the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose").
V. CONCLUSION
For the above-mentioned reasons, the ALJ erred in the determination of whether the plaintiff was disabled as of his date last insured. Accordingly, defendant's motion for judgment (filing # 11) should be DENIED, the plaintiff's motion (filing # 10) should be GRANTED, and an order should issue remanding this matter to the Secretary solely for the purposes of calculating and awarding benefits.
Either party may seek review of this report and recommendation as provided in 28 U.S.C. § 636(b) (written objections to recommended ruling must be filed within 10 days of service of same); Fed.R.Civ.P. 6(a), 6(e), & 72; and Rule 2 of the Local Rules for United States Magistrate Judges.
NOTES
[1] Substantial evidence has been defined as "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971)). "It is more than a mere scintilla or a touch of proof here and there in the record." Id.
[2] Disability will be denied if the medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on a claimant's ability to do work. Bowen, 482 U.S. at 154 n. 12, 107 S.Ct. at 2297-2298 n. 12.
[3] At several points during the course of the hearing the ALJ remarked upon the absence of a time-relevant medical opinion of disability. (Tr. at 87-88, 89, 92, 93). For example, at one point, the ALJ suggested: "why don't you send this guy down to your favorite psychiatrist, have him examined, get me an opinion saying, what do we think of this guy back in '79 or '80." (Tr. at 88).
[4] 20 C.F.R. § 1527 (1993). See Schisler v. Sullivan, 3 F.3d 563 (2d Cir.1993) (upholding Secretary's regulations supplanting Second Circuit's treating physician rule).
[5] The ALJ's understanding of the law would result in a particularly hard burden for a claimant to meet in cases alleging a mental impairment similar to plaintiff's. According to plaintiff, the condition itself prevented him from seeking treatment during the relevant time period:
Q. Well, one of the questions that comes up ... was why the heck did you wait so long to get treatment?
A. Because I didn't want to be committed and I didn't want somebody to think I was nuts.
(Tr. at 69-70). This aspect of plaintiff's condition was confirmed by Dr. Liepman, one of plaintiff's treating psychiatrists. (Tr. at 259). Thus, contemporaneous observation by competent professionals is lacking, and a retrospective opinion as to the degree of the impairment would seem to be necessarily speculative. Once plaintiff did seek treatment, he was diagnosed as suffering from PTSD. To put a burden on the plaintiff to come forward with a retrospective diagnosis of extent of disability, rather than a retrospective diagnosis of a medical condition, would be unfair. As will be discussed, however, plaintiff met even this stringent, unnecessary burden.
[6] For example, plaintiff was treated at the Massachusetts Rehabilitation Commission from 1981 to 1983. His Rehabilitation counselor, Ms. Carolyn Langevin, stated:
Although I do not recall the exact diagnosis ... I am certain it was of a psychiatric/characterological nature. I recall that he was a Vietnam veteran with many problems related to this as well as to his premorbid characterological defects.
(Tr. at 231). Dr. Malcom Sills, a psychiatrist to whom plaintiff was referred by Ms. Langevin, stated in a report dated July 1, 1981, that plaintiff "drifted from job to job" since his discharge fourteen years earlier. Dr. Sills noted plaintiff's problems with his uncontrollable temper and his trouble sleeping. He diagnosed plaintiff with neurotic character disorder and concluded that plaintiff was not "a good candidate for vocational guidance or training at this time as he must hold on to his independent image and would rebel against the student or trainee roll [sic]." (Tr. at 250).
Other reports include those of Dr. Alan Sooho, dated September 8, 1990 (Tr. at 214-16) and January 29, 1991 (Tr. at 227-230); letters from Dr. Michael Liepman dated September 25, 1991 (Tr. at 252-53) and January 22, 1992 (Tr. at 259); and even the consultative examination by Dr. Yunus Pothiawala (Tr. at 217-19).
[7] In Finding 3, the ALJ states that, as of the date last insured, "claimant had a post-traumatic stress disorder and a neurotic character disorder, but that he does [sic] not have a [listed] impairment or combination of [listed] impairments." (Tr. at 17). Finding 4, however, states that "claimant's subjective complaints of severe disabling physical and mental conditions ... are not credible or supported by the objective and other evidence." (Tr. at 18).
[8] It should be noted that the ALJ failed to make a credibility determination with respect to Mrs. Donahue, the plaintiff's wife, whose testimony supported plaintiff's contention that his impairment was of a disabling severity in 1979.
[9] The ALJ cited plaintiff's marriage in 1979 and his statement to Dr. Sills that he hoped to open a used-car business as evidence that plaintiff "experienced improvement in his condition subsequent to 1977 and was able to function in society." (Tr. at 16). In Dousewicz v. Harris, 646 F.2d 771 (2d Cir.1981), the Second Circuit held that a presently treating physician's testimony that the claimant was "probably" disabled six years prior was controlling where not contradicted by specific medical evidence to the contrary. See also McBrayer v. Secretary of Health & Human Services, 712 F.2d 795 (2d Cir.1983). Since the ALJ's observations do not amount to medical evidence, they do not so establish an improvement.
[10] On appeal, the Secretary takes issue with the presence in the record of the second letter from Dr. Liepman because it was not before the ALJ. Since this letter explicitly was considered by the Appeals Council, see Tr. at 4-5, ignoring the presence of the letter in the record would be contrary to the statutory obligation of this court to examine "the evidence upon which the findings and decision complained of are based." 42 U.S.C. § 405(g).
[11] The ALJ's failure to make a sufficiently detailed finding on the issue of credibility constitutes an independent basis on which the decision of the Secretary should be reversed. See Williams, 859 F.2d at 261 (holding failure to make credibility determination regarding critical testimony "fatally undermines the Secretary's argument that there is substantial evidence adequate to support [the] conclusion that the claimant is not under a disability"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622164/ | 725 N.W.2d 80 (2006)
272 Mich. App. 323
Estate of Sandra WOLFE-HADDAD, Plaintiff-Appellant,
v.
OAKLAND COUNTY and Oakland County Probate Court, Defendants-Appellees.
Docket No. 260478.
Court of Appeals of Michigan.
Submitted September 6, 2006, at Detroit.
Decided September 28, 2006, at 9:00 a.m.
Released for Publication December 27, 2006.
Allan Falk, P.C. (by Allan Falk), and Harvey Chayet, Okemos, Southfield, for the plaintiff.
Keith J. Lerminiaux, Deputy Corporation Counsel, for the defendants.
*81 Before: MURRAY, P.J., and SMOLENSKI and SERVITTO, JJ.
SMOLENSKI, J.
In this action challenging defendants' collection of probate fees under MCL 600.871, plaintiff appeals as of right the trial court's grant of summary disposition in favor of defendants. We affirm.
This Court reviews de novo the trial court's decision to grant summary disposition. Hamade v. Sunoco, Inc. (R & M), 271 Mich.App. 145, 153, 721 N.W.2d 233 (2006). Likewise, statutory interpretation is an issue of law that is reviewed de novo.[1]Shinholster v. Annapolis Hosp., 471 Mich. 540, 548, 685 N.W.2d 275 (2004). This Court's primary task in construing a statute is to "discern and give effect to the intent of the Legislature." Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999). "This task begins by examining the language of the statute itself." Id. If the language of the statute is not ambiguous, this Court will not construe it, but will enforce it as written. Macomb Co. Prosecutor v. Murphy, 464 Mich. 149, 158, 627 N.W.2d 247 (2001). Further, "a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself." Roberts v. Mecosta Co. Gen. Hosp., 466 Mich. 57, 63, 642 N.W.2d 663 (2002).
The only issue on appeal is whether the probate fee mandated by MCL 600.871(1) is properly assessed against the full value of all assets of the estate without regard to any security interests held in the assets. Plaintiff contends that, under a plain reading of MCL 600.871(1), the value of an asset must be reduced by the amount of any debt that the asset secures. We do not agree.
Under MCL 600.871(1), whenever a decedent's estate is probated, the probate court is required to collect a fee for the expense of administering the estate, which fee is assessed "on the value of all assets" as of the date of the decedent's death. Because the fee is based on the "value" of all assets held by the estate, resolution of this issue depends on the meaning of the term "value" as used in the statute. In construing statutory language, it has long been the rule in this state that courts will normally give the words used in a statute their plain and ordinary meaning. Green v. Graves, 1 Doug 351, 354 (Mich., 1844); Koontz v. Ameritech Services, Inc., 466 Mich. 304, 312, 645 N.W.2d 34 (2002). Because the word "value" has not acquired a technical meaning in the law and has not been defined by the statute, it must be assumed that the Legislature intended it to have its plain and ordinary meaning. MCL 8.3a.
The common understanding of the word "value," as used in the phrase "the value of all assets," refers to monetary value, i.e., the amount of money that a ready, willing, and able buyer would pay for the asset on the open market, which is essentially synonymous with "fair market value." See Detroit/Wayne Co. Stadium Auth. v. Drinkwater, Taylor & Merrill, Inc., 267 Mich.App. 625, 633, 705 N.W.2d 549 (2005) (defining "fair market value"). Although this understanding of the ordinary meaning *82 of the word is so obvious as to defy the need to resort to dictionaries, it is also fully supported by dictionary definitions.[2]Random House Webster's College Dictionary (1997) defines "value" as "monetary or material worth, as in commerce," "the worth of something in terms of some medium of exchange," "equivalent worth in money, material, or services," and "estimated or assigned worth." Hence, the ordinary sense of the word "value" refers to the fair market value of the property rather than the fair market value minus the amount of any security interests held by creditors.[3]
Nevertheless, plaintiff contends that the "value" of an asset to the estate must be ascertained by determining the worth of the asset to the beneficiaries of the estate. Plaintiff explains that an asset whose fair market value is $100,000 would have a value of $25,000 relative to the beneficiaries of the estate if the asset is subject to a mortgage for $75,000. However, plaintiff fails to explain why this assessment of valueas determined by reference to one of many potentially interested parties should control the valuation of an asset for purposes of calculating the probate fee.[4] It would be just as logical to value the asset on the basis of its relative worth to the creditor who holds the security interest in the asset. Furthermore, plaintiff's assumption that an asset has no value to an estate or its beneficiaries to the extent that it secures a debt is invalid. Even an asset that secures a debt that exceeds the asset's fair market value will benefit an estate. This is because the money raised by the sale of the asset will retire a portion of the debt that would otherwise be unsecured.[5] This leaves a correspondingly greater portion of the remaining assets available to pay other creditors or to pass to the beneficiaries of the estate. Thus, assets that secure debts benefit the estate to the full extent of their fair market value.[6]
This ordinary understanding of the term "value" is also, contrary to plaintiff's contention, *83 consistent with the purpose of the statute. In Foreman v. Oakland Co. Treasurer, 57 Mich.App. 231, 239, 226 N.W.2d 67 (1974), the Court held that MCL 701.17[7] did not levy a tax, but assessed a fee for probate services. In coming to this conclusion, the Court noted that the "services required from a court in probate proceedings are, in the main, in proportion to the appraised value of the estate; that the more valuable the estate, the greater the time required of the court in the probate thereof, and consequently the respective higher statutory fee scheduled." Id. Thus, the purpose of the statute is to assess a fee that approximately corresponds to the amount of work that the probate court will have to perform to administer the estate.
Plaintiff's definition of "value" reduces the fair market value of the estate's assets, which accordingly reduces the amount of the fee assessed, even though the assets whose values are reduced must still be administered by the probate court. Hence, plaintiff's interpretation reduces the probate fee without a corresponding reduction in the probate court's workload. This result can best be illustrated by an example. Suppose that there are two estates and that each has one asset worth $500,000 and creditors whose claims far exceed the value of the asset. Assume also that the first estate has one creditor who holds a security interest in the asset for the amount of $475,000, but the creditors of the second estate are all unsecured. Under plaintiff's interpretation of MCL 600.871(1), the "value of all assets" of the first estate would be $25,000 and the "value of all assets" of the second estate would be $500,000. Hence, the second estate would pay a substantially higher probate fee based on the soleand somewhat arbitrarydifference that the only asset of the first estate was used to secure a debt of $475,000.[8] This is despite the fact that the estates will likely require the same amount of work and expense on the part of the probate court. This anomalous result does not occur when the term "value" is given its ordinary meaning. In that case, the "value of all assets" is the same for both estates (i.e., $500,000), and both estates will pay the same probate fee. Thus, plaintiff's understanding of the term "value" is not only contradicted by the plain and ordinary sense of the word, but also is inconsistent with the purpose of the statute.
Finally, we note that MCR 5.307(A) was recently amended to state, in relevant part, that "[i]n calculating the inventory fee, deductions shall be allowed for secured loans on property listed on the inventory, but no other deductions shall be allowed." See 474 Mich. lxxv. As a result, MCR 5.307(A) now requires probate courts to permit a deduction contrary to the statutory command that the probate courts "charge and collect" a fee "on the value of all assets. . . ." However, our Supreme Court has stated that "[i]f a particular court rule contravenes a legislatively declared principle of public policy, having as its basis something other than court administration . . . the [court] rule should yield." McDougall v. Schanz, 461 Mich. 15, *84 30-31, 597 N.W.2d 148 (1999), quoting Joiner & Miller, Rules of practice and procedure: A study of judicial rule making, 55 Mich. L.R. 623, 635 (1957). With MCL 600.871(1) the Legislature unambiguously stated that probate courts must collect a fee based "on the value of all assets" in an estate. This represents a clear policy choice on the part of our Legislature and does not involve court administration. Therefore, to the extent that MCR 5.307(A) permits deductions not permitted by the statute, the court rule must yield. McDougall, supra at 31, 597 N.W.2d 148.
MCL 600.871(1) requires probate courts to collect a fee based on the total value of all assets held by an estate that is subject to probate. The statute does not define the term "value" to exclude security interests in the assets and does not otherwise provide for deductions based on security interests held in the estate's assets. Because this statute is not ambiguous, it must be enforced as written, Macomb Co Prosecutor, supra at 158, 627 N.W.2d 247, and without reading into the statute deductions that are not "within the manifest intent of the Legislature as derived from the words of the statute itself." Roberts, supra at 63, 642 N.W.2d 663. Therefore, plaintiff's claim based on a contrary reading of MCL 600.871(1) must fail as a matter of law. The trial court properly granted summary disposition in defendants' favor.
Affirmed.
CHRISTOPHER M. MURRAY and DEBORAH A. SERVITTO, JJ., concur.
NOTES
[1] We disagree with defendants' contention that the Oakland County Probate Court's interpretation of this statute is entitled to any particular deference. In support of this contention, defendants rely on cases that reiterate that courts will give "great deference to the construction placed upon a statute by the agency legislatively chosen to enforce it." Breuhan v. Plymouth-Canton Community Schools, 425 Mich. 278, 282-283, 389 N.W.2d 85 (1986). However, probate courts are courts of record and not administrative agencies. MCL 600.801.
[2] This Court may consult dictionary definitions to ascertain the ordinary meaning of a term not defined in a statute. People v. Perkins, 473 Mich. 626, 639, 703 N.W.2d 448 (2005).
[3] We reject plaintiff's contention that the references to "an estate of value" in MCL 600.871(1)(a) through (g) somehow alter the meaning of the word "value" as used in MCL 600.871(1). The plain language of these subsections indicates that the fee is to be determined by reference to the value of the estate as determined under MCL 600.871(1). MCL 600.871(1) states that the probate court shall collect a fee based "on the value of all assets, as of the date of death of the decedent. . . ." Hence, the value of an estate is determined by totaling the value of all assets held by the estate. This total value is then applied using MCL 600.871(1)(a) through (i) to determine the applicable fee.
[4] It is irrelevant to a determination of the costs of administering an estate that the assets will largely or even wholly be distributed to creditors. The probate court must still ensure that the estate is properly administered on behalf of all interested persons.
[5] Generally, the personal representative of an estate must pay all unsecured claims before distributing assets to the beneficiaries of the estate. See MCL 700.3805; MCL 700.3807; MCL 700.3815.
[6] We further disagree with plaintiff's contention that the requirement that the personal representative prepare an inventory that lists both the fair market value of all assets and the type and amount of any encumbrance that may exist with reference to each listed item, see MCL 700.3706(1), indicates that "value" means fair market value minus encumbrances. The function of the inventory list is to summarize all the information about the assets of an estate. This requirement is not inconsistent with the assessment of the probate fee based on the total value of all assets without regard to any security interests held in the assets.
[7] Former MCL 701.17 was the predecessor of MCL 600.871(1).
[8] We note that, because the assets of both hypothetical estates are insufficient to pay the estates' creditors, relative to the decedent's devisees and legatees, the estates essentially have no value. Nevertheless, even under plaintiff's understanding of the meaning of the word "value," the first estate would have a value of $25,000. This further illustrates the difficulty with assigning a value based on the relative worth of an asset to a particular interested party rather than the objective fair market value. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621845/ | 733 So. 2d 1097 (1999)
Charles Michael BUTTS, Appellant,
v.
STATE of Florida, Appellee.
No. 98-546.
District Court of Appeal of Florida, First District.
May 19, 1999.
*1098 William J. Sheppard and D. Gray Thomas, of Sheppard and White, P.A., Jacksonville, for Appellant.
Robert A. Butterworth, Attorney General, and Sherri Rollison, Assistant Attorney General, Tallahassee, for Appellee.
KAHN, J.
Appellant, Charles Michael Butts, seeks review of his conviction and sentence for second degree murder. Appellant challenges two evidentiary rulings by the trial court and also urges that the evidence was insufficient to sustain a conviction. Although the evidence in this case, viewed in a light most favorable to the prosecution, was sufficient to withstand a motion for judgment of acquittal, appellant is entitled to a new trial because the trial court impermissibly infringed upon his right to cross examine one of the State's expert witnesses.
The murder charge in this case arose from the death of appellant's girlfriend and roommate, Glorea Barnes. On November 27, 1996, appellant and the victim lived together in Jacksonville. On that day, Glorea Barnes' mother, Vera Barnes, went to appellant's house to pick up her daughter to take her to work. When Vera Barnes entered, she saw the victim lying on the floor with her head against the bottom of a night stand. Glorea was breathing but was unresponsive. She later died in a local hospital.
In statements to the police, appellant said he found the victim on the bedroom floor at around 6:45 or 7:00 a.m. He saw blood spots on her shirt, a red spot on her cheek, and dried blood on the back of her head. Appellant also described blood on the sheets, pillow and blanket on the bed near where the victim was found but was unable to offer any explanation of why a bloodstain appeared in another bedroom of the house.
During its case in chief, the State presented the testimony of a Duval County Jail inmate, Charles Kohn. Kohn testified that appellant, while also at the Duval County Jail, told him about a fight between appellant and Glorea Barnes. According to Kohn, appellant said he was *1099 upset because Glorea sold a television set to buy drugs. Kohn testified that appellant admitted that Glorea suffered a fractured skull during the fight.
Also during the case in chief, the State presented testimony of three witnesses pursuant to Williams v. State, 110 So. 2d 654 (Fla.1959), and section 90.404(2)(a), Florida Statutes (1995). These witnesses testified that, on prior occasions, appellant had struck or slapped Glorea Barnes. After a motion hearing, the trial court overruled objections to this testimony. Defense counsel did not renew the objections before the trial testimony of these witnesses.
For evidence of the cause of death, the State called Dr. Margarita Arruza, the medical examiner who performed an autopsy on the victim. Dr. Arruza described a skull fracture and classified the manner of death as "homicidal." According to Dr. Arruza, the victim's injury showed multiple points of impact and would not be explainable by a single fall. The doctor did acknowledge, however, that even had the injury resulting in the skull fracture occurred first, there existed the possibility (although unlikely) that the victim could have retained sufficient consciousness to have walked around and potentially fallen again before losing consciousness for the last time. The trial court limited defense counsel's cross examination of Dr. Arruza regarding alternative scenarios for the fatal injury.
In the defense case, appellant called Dr. Stephen Dunton, a forensic pathologist. In Dr. Dunton's opinion, the victim's skull fracture was consistent with her having fallen and struck her head on a corner of the night stand. Dr. Dunton also believed that the victim could have remained conscious for a time after suffering that injury. He classified the death as "undetermined" rather than "homicide" because, in his opinion, other scenarios existed that could be consistent with observations at the hospital and on autopsy. Dr. Dunton believed the injuries could have been the result of an accidental fall.
Appellant testified in his own defense. He described the victim's history of drinking and cocaine use. The victim used crack cocaine frequently and had hallucinations and other adverse reactions. According to appellant, the victim would on occasion leave the house through a bedroom window in order to get outside to buy drugs. Appellant testified that on the morning in question he found the victim on the bedroom floor unconscious. Her jeans were pulled down around her knees and she had a urine-like smell about her. He was changing clothes to take her to the hospital when Vera Barnes arrived at the house. Appellant and Vera Barnes together dressed the victim and wrapped her in a blanket, and appellant drove her to the hospital. Appellant further testified that on the same day a television was missing from the house, and he theorized that the victim must have sold it the previous night in order to purchase crack. He admitted that he had met Charles Kohn in jail, but said that he had never talked to Kohn about this case.
The trial court did not err by admitting testimony of appellant's prior bad acts concerning the victim. The testimony was relevant and admissible to rebut the defense theme that the victim's death was accidental. See Ledlow v. State, 453 So. 2d 892 (Fla. 1st DCA 1984). Moreover, appellant failed to renew his objection to the similar fact testimony at trial. See Correll v. State, 523 So. 2d 562, 566 (Fla. 1988) ("Even when a prior motion in limine has been denied, the failure to object at the time collateral crime evidence is introduced waives the issue for appellate review."); see also Lindsey v. State, 636 So. 2d 1327 (Fla.1994); Morrow v. State, 717 So. 2d 93 (Fla. 1st DCA 1998).
This case must be retried, however, because the trial court applied the wrong evidentiary standard to certain inquiries made by appellant on cross examination of *1100 Dr. Arruza and, in so doing, impermissibly limited appellant's right to cross examine an adverse witness. Appellant's argument here focuses upon the following bit of testimony:
Q. [Mr. Eler, defense counsel] Okay. But back to my question though, basically, you cannot exclude the possibility, Doctor, can you, that she fell or this trauma occurred and she wasn't immediately rendered unconscious she got up walked around and had a second fall?
MS. COREY-LEE (Assistant State Attorney): I object to the form of the question in that it used the word possibility. I think he has to use it in the term of the reasonable medical certainty.
THE COURT: Sustained.
BY MR. ELER:
Q. Based on a reasonable degree of medical certainty you cannot say that didn't happen to Glorea Barnes on November 27th?
A. I cannot excludecan you repeat the question?
Q. Yes. Based on a reasonable degree of medical certainty you cannot exclude from the range of scenarios that could have occurred to sustained a skull fracture which did not render her unconscious and walked around and fell again?
A. You see, every time you put that word exclude, to me means well, is there a remote possibility that something can happen and it's like, yes. I mean what is the more likely scenario, that she didn't walk. That is the more likely scenario. Is it possible that she did something different? It is a possibility, but it's not likely.
Q. But of course you can't sequence any of these injuries, can you?
A. No, I cannot sequence these injuries.
Q. Okay.
THE COURT: Excuse me, Doctor, that's why we don't deal with possibilities. We deal within reasonable medical probability, not possibility, so try to frame the response in that light.
THE WITNESS: But then he gives me an exclusion.
THE COURT: Within reasonable medical probability.
BY MR. ELER:
Q. Okay.
A. Okay. So I am going to answer the Judge. Excluding within reasonable medical probability or possibility, it's legal terms, can Ican I excludeyes. I will say that, yes, I can excludeshe does have a severe head injury, severe bleeding inside the brain and, no, you do not expect her to be walking around after sustaining that injury.
Q. Sojust so I understand your testimony, okay, you can exclude that possibility that she sustained this skull fracture and that did not render her unconscious. Is that what you are saying?
MS. COREY-LEE: I object to the form of that question, Judge.
THE COURT: Mr. Eler, you keep wanting to throw in possibilities. We are not dealing with possibilities. We are dealing with probability.
MR. ELER: I would like her to repeat what she said because she testified she could exclude that possibility that Ms. Barnes fell, cracked the skull and got up again. I thought that's what she said.
MS. COREY-LEE: Except she didn't use the word possibility and Mr. Eler keeps using it.
THE COURT: Mr. Eler uses possibilities.
MR. ELER: I apologize, Your Honor.
BY MR. ELER:
Q. Can you exclude that scenario?
THE COURT: Within reasonable medical probability. You can answer the question. Please answer.
THE WITNESS: Can I exclude her from walking around? Yes. I can exclude her. She is not walking around.
*1101 Following repeated limitations of medical testimony concerning the cause of death to "reasonable medical probability," the doctor essentially stated that Glorea Barnes could not have walked around after the initial skull fracture.
Contrary to the view taken by the trial court, neither the prosecution, nor the defense, in a murder case is required to limit testimony concerning cause of death to "reasonable medical certainty." As a threshold for admissibility, expert opinion testimony must be relevant, see section 90.401, Florida Statutes, and must meet the standard generally applied to scientific, technical, or other specialized knowledge under section 90.702, Florida Statutes. It is nevertheless the case, however, that "expert medical testimony as to the cause of death need not be stated with reasonable certainty in a homicide prosecution and is competent if the expert can show that, in his opinion, the occurrence could cause death or that the occurrence might have or probably did cause death." Buenoano v. State, 527 So. 2d 194, 197-198 (Fla.1988). This rule of admissibility has all the more positive force when applied to the defendant's cross examination of a state witness in a murder prosecution. One of the purposes of cross examination of an expert is to suggest the existence of a hypothesis contrary to that adopted by the expert.
A more thorough exposition of the rule concerning admissibility of expert opinion testimony on causation in a homicide prosecution appears in Delap v. State, 440 So. 2d 1242 (Fla.1983). The defendant in Delap argued that a prosecution medical expert could only present opinion testimony regarding cause of death when such testimony was expressed in terms of reasonable medical certainty. The supreme court, however, rejected this argument and stated the applicable rule of competence:
Such testimony is competent if the expert can show that, in his opinion, the occurrence could cause death or that the occurrence might have or probably did cause death.
* * *
To be admissible, a medical expert's opinion as to the cause of an injury or death does not have to be expressed in terms of reasonable medical certainty. Such evidence is admissible, but the weight to be given it is a matter to be determined by the jury.
Id. at 1253 (citations omitted).
If testimony of the type discussed by the court in Buenoano and Delap is admissible for the prosecution during the case in chief against a murder defendant, then the same type of testimony could not possibly be inadmissible during cross examination of the State's expert. The concession sought by the defendant during cross examination of Dr. Arruza did not literally involve an opinion on the cause of death. Instead what appellant sought, as is quite typical in cross examination, was to demonstrate that the State's expert, having stated her opinion, could not exclude the possibility that the defense hypothesis of innocence might have applied. Following the reasoning of the trial court, a defendant, when seeking to rebut the hypothesis of guilt relied upon by the State in a circumstantial evidence case, would be required to present testimony that the defense hypothesis of innocence is not merely reasonable, but is actually more likely than not. Such would be inconsistent with the standard of reasonable doubt that applies in criminal cases.
In a somewhat sparse opinion, the court, in State v. Manno, acknowledged implicitly the principle urged by appellant here. 550 So. 2d 31 (Fla. 3d DCA 1989). In Manno, the jury convicted the defendant of vehicular homicide. Manno moved for a new trial alleging that the trial court erred in failing to instruct the jury on the charge of reckless driving as requested by the defense. The State conceded that reckless driving is a necessarily lesser included offense of vehicular homicide, but nevertheless argued that the instruction was not *1102 required because the cause of death was undisputed. The appellate court affirmed a grant of new trial pointing out that defense counsel's cross examination of the medical examiner "was positively directed at the possibility that the victim's death was caused by hospital doctors' negligent treatment of the victim." Id. The appellate court then observed that a defendant is entitled to instructions on a theory of defense "where it is supported by the evidence." Id. For purposes of the present case, the teaching of Manno is that cross examination concerning a possible cause of death, other than that alleged by the prosecution, is a viable theory of defense.
We have not overlooked the fact that the defendant was able to broach the subject of possible explanations of the death at other points during Dr. Arruza's testimony and also during direct examination of the defense witness, Dr. Dunton. This did not rectify the court's error. On at least two occasions, the trial court went beyond merely upholding the objection, and pointed out to the jury what, in the trial court's view, was the fallacious approach taken by the defense. At one point the trial judge explained to Dr. Arruza: "[W]e don't deal with possibilities. We deal with medical probability, not possibility, so try to frame the response in that light." At another point, the trial court rebuked counsel: "Mr. Eler, you keep wanting to throw in possibilities. We are not dealing with possibilities. We are dealing with probability." In effect, then, the jury was instructed that it should ignore any testimony concerning possible causes of death other than that theorized by the prosecution's expert.
REVERSED and REMANDED for a new trial.
ERVIN, and LAWRENCE, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621842/ | 725 N.W.2d 56 (2006)
272 Mich. App. 151
Leonard DAVIS, Petitioner-Appellee,
v.
STATE EMPLOYEES' RETIREMENT BOARD, Respondent-Appellant.
Docket No. 259559.
Court of Appeals of Michigan.
Submitted July 12, 2006, at Detroit.
Decided August 24, 2006, at 9:10 a.m.
Released for Publication November 22, 2006.
*58 Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Larry F. Brya, Assistant Attorney General, for the respondent.
Before: JANSEN, P.J., and MURPHY and FORT HOOD, JJ.
MURPHY, J.
Respondent appeals by leave granted the circuit court's order reversing its denial of petitioner's application for nonduty disability retirement benefits under MCL 38.24. Respondent had denied the application for benefits on the basis of amended statutory language requiring the filing of an application within one year of termination from state employment, which requirement the petitioner had not satisfied. The circuit court, however, found that the amendment was prospective only and not applicable to petitioner. We conclude that the amendment of MCL 38.24 in 2002, pursuant to 2002 PA 93, applies prospectively only. Because the one-year application deadline set forth in MCL 38.24, as amended, operates in a manner comparable to a statute of limitations, and because statutes of limitations enacted by the Legislature operate prospectively only unless the legislation clearly manifests an intent to the contrary, which is not the case with MCL 38.24, the amended statute should not be applied retroactively. We also find support for our position, outside the context of the statute of limitations analogy, in Pohutski v. City of Allen Park, 465 Mich. 675, 641 N.W.2d 219 (2002), and Tarnow v. R. Express Agency, 331 Mich. 558, 50 N.W.2d 318 (1951). Accordingly, the circuit court properly reversed respondent's denial of petitioner's application for nonduty disability retirement benefits relative to the issue of failure to comply with the one-year application deadline. We affirm.
This Court reviews a circuit court's ruling on an administrative appeal to determine whether the circuit court "`applied the correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency's factual findings.'" Hinky Dinky Supermarket, Inc. v. Dep't of Community Health, 261 Mich.App. 604, 605, 683 N.W.2d 759 (2004), quoting Boyd v. Civil Service Comm., 220 Mich.App. 226, 234, 559 N.W.2d 342 (1996). We review the circuit court's legal conclusions de novo and the court's findings of fact for clear error. Hinky Dinky, supra at 605, 683 N.W.2d 759. Questions regarding statutory construction and whether a statute or amended statute should be applied retroactively or prospectively only are reviewed de novo. Frank W. Lynch & Co. v. Flex Technologies, Inc., 463 Mich. 578, 583, 624 N.W.2d 180 (2001); Bloomfield Charter Twp. v. Oakland Co. Clerk, 253 Mich.App. 1, 9-10, 654 N.W.2d 610 (2002).
It is important to recognize the time line of events that occurred in this action as viewed in relation to MCL 38.24 and the amendment of the statute. Petitioner, a state employee for approximately 25 years, was terminated from state employment in October 2000, after earlier going on medical leave in the fall of 1997. At the time of the termination, MCL 38.24 provided:
Subject to the provisions of sections 33 and 34, upon application of a member [of the state employee retirement system], or his department head, or the state personnel director, a member who has been a state employee at least 10 years becomes totally and permanently incapacitated for duty as the result of *59 causes occurring not in the performance of duty to the state, may be retired by the retirement board: Provided, The medical advisor after a medical examination of such member, shall certify that such member is mentally or physically incapacitated for the further performance of duty, and such incapacity is likely to be permanent and that such member should be retired.
This language does not contain any time limits or deadlines within which a state employee or member must submit the application for benefits; petitioner was not precluded from applying for benefits more than one year after his termination. And without consideration of the amendment, petitioner's application in August 2002 would have been deemed timely. The 2002 amendment of the statute, made effective March 27, 2002, incorporated a one-year deadline, requiring the filing of an application for benefits no later than one year from the date of a member's termination from state employment. An applicant can also seek benefits within two years from the date of termination where there exists good cause for the delay in not filing within the first year following termination. Specifically, MCL 38.24 now provides:
(1) Except as may otherwise be provided in sections 33 and 34, a member who becomes totally incapacitated for duty because of a personal injury or disease that is not the natural and proximate result of the member's performance of duty may be retired if all of the following apply:
(a) The member, the member's personal representative or guardian, the member's department head, or the state personnel director files an application on behalf of the member with the retirement board no later than 1 year after termination of the member's state employment.
(b) A medical advisor conducts a medical examination of the member and certifies in writing that the member is mentally or physically totally incapacitated for further performance of duty, that the incapacitation is likely to be permanent, and that the member should be retired.
(c) The member has been a state employee for at least 10 years.
(2) Upon appeal to the retirement board, the retirement board, for good cause, may accept an application for a disability retirement allowance not later than 2 years after termination of the member's state employment.
At the time the amendment of MCL 38.24 became effective, March 27, 2002, more than one year had elapsed since petitioner's termination; therefore, even had petitioner filed an application the day the legislation became effective, he still would have failed to comply with the one-year deadline relative to applications. Compliance by petitioner with the amended statute on or after its effective date was impossible. As indicated above, petitioner actually filed an application in August 2002, outside the one-year application deadline, but within the two-year alternative period, necessitating the establishment of good cause, assuming application of the amended statute.
The change from a nonexistent deadline to apply for benefits to a one-year deadline following termination is analogous to the Legislature enacting a statute of limitations where one did not previously exist with regard to a cause of action, or where one did exist but was of longer duration than the amended version. Just as failure to file an application within one year of termination now precludes a state employee from recovering benefits, the failure by a plaintiff to commence a lawsuit *60 within the applicable limitations period also precludes recovery. Through use of this sound analogy, we find that the amendment of MCL 38.24 cannot be made retroactive. We begin with the general principles that guide the analysis in determining whether a statute or amended statute should be applied retroactively or prospectively only.
Statutes and statutory amendments are presumed to operate prospectively. Pohutski, supra at 698, 641 N.W.2d 219; Selk v. Detroit Plastic Products, 419 Mich. 1, 9, 345 N.W.2d 184 (1984); Brooks v. Mammo, 254 Mich.App. 486, 493, 657 N.W.2d 793 (2002); Tobin v. Providence Hosp., 244 Mich.App. 626, 661, 624 N.W.2d 548 (2001); Thompson v. Merritt, 192 Mich.App. 412, 417, 481 N.W.2d 735 (1991). Indeed, statutes and amended statutes are to be applied prospectively unless the Legislature manifests an intent to the contrary. Selk, supra at 9, 345 N.W.2d 184; Schumacher v. Dep't of Natural Resources, 256 Mich.App. 103, 108-109, 663 N.W.2d 921 (2003); Rossow v. Brentwood Farms Dev., Inc., 251 Mich. App. 652, 662, 651 N.W.2d 458 (2002); Tobin, supra at 661, 624 N.W.2d 548. The Legislature's expression of an intent to have a statute apply retroactively must be clear, direct, and unequivocal as appears from the context of the statute itself. Chesapeake & O.R. Co. v. Pub. Service Comm., 382 Mich. 8, 23, 167 N.W.2d 438 (1969) (Adams, J.); Briggs v. Campbell, Wyant & Cannon Foundry Co., 379 Mich. 160, 164-165, 150 N.W.2d 752 (1967); In re Davis' Estate, 330 Mich. 647, 651-652, 48 N.W.2d 151 (1951); Rossow, supra at 662, 651 N.W.2d 458; Olkowski v. Aetna Cas. & Surety Co., 53 Mich.App. 497, 503, 220 N.W.2d 97 (1974), aff'd 393 Mich. 758, 223 N.W.2d 296.[1] The rule that legislative intent governs the determination regarding statutory retroactivity controls the analysis, and "`[a]ll other rules of construction and operation are subservient to this principle.'" Lynch, supra at 583, 624 N.W.2d 180, quoting Franks v. White Pine Copper Div., 422 Mich. 636, 670, 375 N.W.2d 715 (1985). Our Supreme Court in Lynch, id. at 583-584, 624 N.W.2d 180, stated:
We agree with defendants that there is nothing in the language of the [statute] suggesting a legislative intent that this statute be applied retroactively. . . . Most instructive is the fact that the Legislature included no express language regarding retroactivity. See, e.g., Chesapeake & O.R. Co. v. Public Service Comm., 382 Mich. 8, 22-23, 167 N.W.2d 438 (1969) (Adams, J.). We note that the Legislature has shown on several occasions that it knows how to make clear its intention that a statute apply retroactively. See, e.g., MCL 141.1157; MSA 5.3188(257) ("This act shall be applied retroactively . . ."); MCL 324.21301a; MSA 13A.21301a ("The changes in liability that are provided for in the amendatory act that added this subsection shall be given retroactive application"). [Parenthetical omission in original.]
The fact that a statute relates to antecedent eventshere, for example, employment historydoes not require a finding that the statute operates retroactively. In re Certified Questions (Karl v. Bryant Air Conditioning Co.), 416 Mich. 558, 570-571, 331 N.W.2d 456 (1982); Selk, supra at 9, 345 N.W.2d 184.
A careful review of the latest version of MCL 38.24 reflects no language whatsoever, much less clear, direct, and unequivocal language, suggesting that the amended *61 statute, including the one-year deadline provision, is to be applied retroactively to members whose state employment had been terminated before the effective date of the amended statute, let alone employees who ceased employment more than one year before the effective date. In fact, to the contrary, the express language of the amended statute suggests that it applies only to members who become incapacitated after the effective date. MCL 38.24(1) provides, in part, that "a member who becomes totally incapacitated for duty because of a personal injury or disease that is not the natural and proximate result of the member's performance of duty may be retired. . . ." (Emphasis added.) The statute then sets forth the one-year deadline requirement for such a member. Given the use of the language "who becomes," which is strictly in the future tense, as opposed to or coordinated with the use of "who was," "who is," or "who became," and taking into consideration the statute's effective date of March 27, 2002, the only logical conclusion is that the Legislature specifically intended the amendment to apply only to situations in which total incapacitation based on nonduty injuries or diseases first arose on or after March 27, 2002. Only those members whose incapacitation arose after the effective date of the amendment would need to comply with the one-year deadline in order to receive benefits under a plain reading of the statute. Petitioner's alleged incapacitation occurred before the amendment.[2]
A statute may not be applied retroactively if it abrogates or impairs vested rights, creates new obligations, or attaches new disabilities concerning transactions or considerations occurring in the past. Doe v. Dep't of Corrections (On Remand), 249 Mich.App. 49, 61, 641 N.W.2d 269 (2001).[3] The amendment of the statute here certainly created a new obligation, i.e., a member must apply for benefits within one year of termination, and it must be observed that the presumption against statutory retroactivity is not restricted to actions involving vested rights. Landgraf v. USI Film Products, 511 U.S. 244, 275 n. 29, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).
There is an exception to the general rule that newly enacted statutes are presumed to apply prospectively, which exception provides that no such presumption exists where the statute is remedial or procedural in nature, as long as it does not deny vested rights. Brooks, supra at 493, 657 N.W.2d 793; Aztec Air Service, Inc. v. Dep't of Treasury, 253 Mich.App. 227, 233, 654 N.W.2d 925 (2002).[4] "A statute is remedial or procedural *62 in character if `it is designed to correct an existing oversight in the law or redress an existing grievance[.]'" Id. (citation omitted). While remedial or procedural statutes are generally held to operate retroactively, this does not hold true and the exception is inapplicable if the Legislature manifested an intent that the statute apply prospectively only. See Franks, supra at 672, 375 N.W.2d 715; Garvie v. Owens-Illinois Inc., 167 Mich. App. 133, 139, 421 N.W.2d 602 (1988).
In a general sense, statutes of limitations are regarded as procedural in nature. People v. Russo, 439 Mich. 584, 595, 487 N.W.2d 698 (1992), citing Lothian v. Detroit, 414 Mich. 160, 166, 324 N.W.2d 9 (1982), and Forest v. Parmalee, 402 Mich. 348, 359, 262 N.W.2d 653 (1978). However, the Supreme Court has warned against using general characterizations in analyzing the exception to the presumption of prospective application, stating:
Plaintiff relies on the so-called "exception" to the general rule of prospective application providing that "statutes which operate in furtherance of a remedy or mode of procedure and which neither create new rights nor destroy, enlarge, or diminish existing rights are generally held to operate retrospectively unless a contrary legislative intent is manifested." Plaintiff argues that the [statute] is remedial because no new cause of action is created. Instead, according to plaintiffs, the act merely supplements and furthers remedies otherwise available. However, we have rejected the notion that a statute significantly affecting a party's substantive rights should be applied retroactively merely because it can also be characterized in a sense as "remedial." In that regard, we agree with Chief Justice Riley's plurality opinion in White v. General Motors Corp., 431 Mich. 387, 397, *63 429 N.W.2d 576 (1988), that the term "remedial" in this context should only be employed to describe legislation that does not affect substantive rights. Otherwise, "[t]he mere fact that a statute is characterized as `remedial' . . . is of little value in statutory construction." Again, the question is one of legislative intent. [Lynch, supra at 584-585, 624 N.W.2d 180 (citations omitted; omission and alteration in original).]
In the context of the "procedural" exception, statutes of limitations, while generally coined as procedural, necessarily affect substantive rights where causes of action can be lost entirely because the action is time-barred. This would explain why there exists a plethora of cases extending over 100 years of jurisprudence that provide that statutes of limitations enacted by the Legislature are to be applied prospectively absent a clear and unequivocal manifestation of a legislative preference for retroactive application. In re DeBancourt's Estate, 279 Mich. 518, 529, 272 N.W. 891 (1937); McKesson v. Davenport, 83 Mich. 211, 215, 47 N.W. 100 (1890); Harrison v. Metz, 17 Mich. 377, 378-379 (1868); Great Lakes Gas Transmission Co. v. State Treasurer, 140 Mich.App. 635, 650-651, 364 N.W.2d 773 (1985); Pryber v. Marriott Corp., 98 Mich.App. 50, 55, 296 N.W.2d 597 (1980), aff'd 411 Mich. 887, 307 N.W.2d 333 (1981), citing Davis Estate, supra at 652, and 20 Michigan Law & Practice, Statute of Limitations, § 3, p. 546 ("Statutes of limitations operate prospectively unless an intent to have the statute operate retrospectively clearly and unequivocally appears from the context of the statute itself."); Int'l Business Machines Corp. v. Dep't of Treasury, 75 Mich. App. 604, 612-614, 255 N.W.2d 702 (1977). In Farris v. Beecher, 85 Mich.App. 208, 213-214, 270 N.W.2d 658 (1978), this Court, in determining that the statute at issue applied prospectively only because there was no indication that the Legislature intended otherwise, stated:
However, were we to find MCL 600.5838; MSA 27A.5838 [statute of limitations], as amended, applicable to this case, clearly plaintiff's action would be barred. In order to resolve this question, what we must determine is whether or not this particular amended provision will operate prospectively only or reach back retroactively to affect plaintiff's suit. The Michigan Supreme Court has noted in prior decisions that statutes of limitation are to be construed to operate prospectively only unless their terms clearly indicate a contrary intent.
Therefore, with respect to statutes of limitations, despite the categorizing or characterization of such statutes as procedural in nature, the general remedial-procedural exception to prospective application has not been applied.[5] Because MCL 38.24, as amended, contains no clear and unequivocal manifestation suggesting that the Legislative intended retroactive application, and because, in the context of this issue, we see no meaningful difference between a standard statute of limitations and the one-year limitation period or deadline to apply for benefits, the case law cited above controls our inquiry and requires us to rule that MCL 38.24 and its one-year limitation period is to be applied prospectively only. Moreover, as discussed above, the language of the amended statute reflects an intent that it be applied prospectively *64 only, and thus, even were we to assume that the procedural exception to prospective application encompasses statutes of limitations, the exception is inapplicable with respect to MCL 38.24 because the legislation conveys an intent directly contrary to retroactive application.[6]
The principle that statutes of limitations are to be applied prospectively parallels an accompanying well-accepted principle that "[t]he pertinent statute of limitations is the one in effect when the plaintiff's cause of action arose." Chase v. Sabin, 445 Mich. 190, 192 n. 2, 516 N.W.2d 60 (1994), citing Winfrey v. Farhat, 382 Mich. 380, 389-390, 170 N.W.2d 34 (1969); see also Rzadkowolski v. Pefley, 237 Mich.App. 405, 411, 603 N.W.2d 646 (1999); Casey v. Henry Ford Health Sys., 235 Mich.App. 449, 451 n. 1, 597 N.W.2d 840 (1999); Totzkay v. DuBois (After Remand), 140 Mich.App. 374, 382, 364 N.W.2d 705 (1985); Roberts v. Golden, 131 Mich.App. 615, 617, 345 N.W.2d 924 (1984). Here, as indicated earlier, we are not speaking directly of a cause of action, but of petitioner's right to nonduty disability retirement benefits under the applicable statutes. Under both versions of MCL 38.24, a member is entitled to those benefits where the member was a state employee for at least ten years, the member became totally incapacitated for duty as a result of reasons unrelated to performance of his or her duty, and where a medical advisor certifies that the member is mentally or physically totally incapacitated for further performance of duty and that the incapacitation is likely permanent. Just as the pertinent statute of limitations is the one in effect when a cause of action arose, the version of MCL 38.24 that should control petitioner's rights in this action is the preamendment version as it was in effect at the time petitioner had completed ten years of service, had allegedly become permanently mentally or physically incapacitated for duty for reasons unrelated to employment, and had ceased employment.
Outside the context of statutes of limitations, we find support for our position in Pohutski and Tarnow, supra. In Pohutski, supra at 678-679, 641 N.W.2d 219, our Supreme Court, overruling prior case law, held that a trespass-nuisance exception to governmental immunity does not exist in Michigan, but it limited the holding to prospective application. Pohutski involved a suit for damages after raw sewage from Allen Park's sewer system backed up through floor drains and into basements as a result of heavy rains. In the context of the Court discussing whether its decision should be applied prospectively only, the Court referenced 2001 PA 222,[7] which was recently enacted at that time and which provided a remedy against governmental agencies for damages and injuries caused by a sewage disposal system event. Id. at 697-698, 641 N.W.2d 219. The Court, conducting an analysis to determine if the new legislation should be applied prospectively only, stated:
2001 PA 222 does not contain any language indicating it is meant to apply retroactively, but provides only that it is to take immediate effect. Section 19(1) provides that a claimant is not entitled *65 to compensation under the statute unless the claimant notifies the governmental agency of a claim of damage or physical injury, in writing, within forty-five days after the date the damage or physical injury was or should have been discovered. Only two exceptions to the forty-five-day limit are available: if the claimant notified the contacting agency during the forty-five-day period or if the failure to comply resulted from the contacting agency's failure to comply with notice requirements. Given the absence of any language indicating retroactive effect, the forty-five-day notice limit, and the presumption that statutes operate prospectively, we conclude that 2001 PA 222 does not apply retroactively.
Thus, if we applied our holding in this case retroactively, the plaintiffs in cases currently pending would not be afforded relief under [the rejected trespass-nuisance exception] or 2001 PA 222. Rather, they would become a distinct class of litigants denied relief because of an unfortunate circumstance of timing.
Accordingly, this decision will be applied [prospectively] only. . . . [Pohutski, supra at 698-699, 641 N.W.2d 219 (emphasis added).]
It is evident that the Pohutski Court found the legislation to be prospective only on the basis of the 45-day time frame in which parties had to notify governmental agencies of a sewage disposal system event, with which parties obviously could not comply as it was too late and previously unknown, as well as on the basis of the lack of any indication by the Legislature that the legislation was to be applied retroactively. Similarly, in the case at bar, petitioner could not comply with the one-year application deadline on or after its effective date, nor could any member whose employment had terminated a year or more before MCL 38.24 became effective. And there is no indication that the Legislature intended retroactive application; rather there is language suggesting prospective application only was intended by virtue of language speaking of future incapacitation. Petitioner, and others similarly situated, should not "become a distinct class of litigants denied relief because of an unfortunate circumstance of timing." Pohutski, supra at 699, 641 N.W.2d 219.
In Tarnow, supra at 562, 50 N.W.2d 318 the Court explained the situation confronting it:
If the 1943 amendment is applicable, since plaintiff's application for further [worker's] compensation was not filed until 17 months after the expiration of the 500-week compensable period, and the amendment precludes the allowance of compensation for more than 1 year prior to the date of filing such application, plaintiff is barred from recovery because the 1 year retroactive period began 5 months after the expiration of the compensable period.
The Court noted that the law that controlled the payment of compensation was the one in effect at the time the right to compensation sprang into existence. Id. at 563, 50 N.W.2d 318. The Supreme Court then held:
The amendment here in question may not be regarded as wholly procedural in character, as defendant contends. Obviously its effect, if so applied under the facts before us in this case, would result in taking from the plaintiff a right which the statute, in force at the time of his injury, granted to him. There is nothing in the amendment in question here indicating that the legislature intended any such possible result. In other words, there is nothing to overcome the presumption that prospective operation only was intended. It seems obvious that the purpose of the amendment was *66 to limit the amount of recovery in certain cases. Such result must follow in any instance where the statute in its present form is invoked to defeat recovery, partially or wholly, and is applicable. The amendment may not be regarded as relating merely to procedure, nor may it be classed as remedial legislation. Under the general rule followed by this Court in the cases above cited, it should not be given a retroactive effect in the instant case. [Id. at 565-566, 50 N.W.2d 318.]
Likewise, here there should not be retroactive application because the Legislature has not indicated such an intent but an intent to the contrary, and petitioner's substantive rights to benefits under the act were denied for failing to comply with an application deadline that was not in effect at the time of his termination or alleged incapacitation.
Our view is also supported by general principles regarding statutory retroactivity enunciated by the United States Supreme Court in Landgraf, supra. The Landgraf Court stated:
As Justice Scalia has demonstrated, the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. [Id. at 265, 114 S. Ct. 1483.]
Respondent's arguments ignore these basic principles. The Supreme Court emphasized that to give legislation retroactive effect, Congress is required to so indicate in the language of the statute in a manner that is "`so clear and positive as to leave no room to doubt that such was the intention of the legislature.'" Id. at 272, 114 S. Ct. 1483 quoting Chew Heong v. United States, 112 U.S. 536, 5 S. Ct. 255, 28 L. Ed. 770 (1884).[8] The Court declined to give retroactive effect to a section of the Civil Rights Act of 1991 because there was "no clear evidence of congressional intent that [it] . . . should apply to cases arising before its enactment. . . ." Id. at 286, 114 S. Ct. 1483.
In sum, petitioner is not barred from seeking benefits because of a failure to comply with the one-year application deadline in MCL 38.24, as amended. On the basis of legislative intent, as gleaned from a fair reading of the statute, MCL 38.24 cannot be applied retroactively. Accordingly, we affirm the circuit court's ruling.
Affirmed.
KATHLEEN JANSEN and KAREN M. FORT HOOD, JJ., concur.
NOTES
[1] The Legislature's intent to apply an amended statute retroactively can be express or implied. Thompson, supra at 417, 481 N.W.2d 735.
[2] Even if one were to reject our conclusion that the amended statute contains language suggesting that only prospective application was intended, it does not defeat the overriding premise of our analysis that the Legislature did not manifest an intent that the statute apply retroactively.
[3] Due process concerns play a role when considering whether a statute should be applied retroactively. "The Due Process Clause . . . protects the interests in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a statute's prospective application under the Clause `may not suffice' to warrant its retroactive application." Landgraf v. USI Film Products, 511 U.S. 244, 266, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994) (citation omitted).
[4] It is not necessary for purposes of our analysis to determine whether petitioner had "vested" rights under the law. The issue whether statutory rights equate to vested rights is somewhat muddled under Michigan law. On one hand, our Supreme Court has stated that statutory rights, although valuable, do not constitute vested rights because the Legislature may take away what it has given. Lahti v. Fosterling, 357 Mich. 578, 589, 99 N.W.2d 490 (1959). But the Court has also stated, "By the weight of authority, a statutory right of action for damage to person or property, which has accrued, is a vested right and likewise to be protected." Minty v. Bd. of State Auditors, 336 Mich. 370, 391, 58 N.W.2d 106 (1953), quoting Cusick v. Feldpausch, 259 Mich. 349, 353-354, 243 N.W. 226 (1932). As the Supreme Court noted in Wylie v. Grand Rapids City Comm., 293 Mich. 571, 587, 292 N.W. 668 (1940), "Few questions have troubled the courts more than the problem of what are vested rights. What some courts have considered vested, others have considered inchoate." In Doe, supra at 61-62, 641 N.W.2d 269, this Court stated:
In this case, plaintiffs claim a vested right in their cause of action under the PWDCRA [Persons With Disabilities Civil Rights Act, MCL 37.1101 et seq.]. A cause of action becomes a vested right when it accrues and all the facts become operative and known. Plaintiffs' cause of action accrued and all the facts became operative and known before the effective date of 1999 PA 201. Retroactive application of the amended definition of "public service" would impair plaintiffs' cause of action under the PWDCRA, because prisons would be excluded as places of public service prohibited from discriminating on the basis of disability.
Although here we are not speaking of a statutory cause of action, petitioner's claim and asserted right to benefits under MCL 38.24 was based on facts already in existence prior to the amendment, i.e., he had been employed by the state for more than ten years and he allegedly was permanently mentally or physically incapacitated for reasons unrelated to employment. Of course, he had to make an application and prove his case by way of a medical certification, but this is no different than a party in a civil suit filing the complaint and proving his or her case to the trier of fact. But again, assuming that petitioner did not have a vested right to benefits, our conclusion remains unaffected on the basis of legislative intent. We note that MCL 8.4a provides that the repeal of any statute or part of a statute "shall not have the effect to release or relinquish any . . . liability incurred under such statute . . ., unless the repealing act shall so expressly provide, and such statute and part thereof shall be treated as still remaining in force for the purpose of instituting . . . any proper action . . . for the enforcement of such . . . liability."
[5] This is reflected in Rzadkowolski v. Pefley, 237 Mich.App. 405, 411, 603 N.W.2d 646 (1999), wherein this Court, after first acknowledging that statutes of limitations are procedural in nature, immediately proceeded to state that they "operate prospectively unless an intent to have the statute operate retrospectively clearly and unequivocally appears from the context of the statute itself."
[6] We reject respondent's reliance on Ramsey v. Michigan Underground Storage Tank Financial Assurance Policy Bd., 210 Mich.App. 267, 533 N.W.2d 4 (1995). Ramsey is distinguishable because in that case the Legislature, according to the Court, was clear and unequivocal that it wanted the payment of funds for leaks associated with underground storage tanks limited to those cases where tank leaks or releases were discovered or reported after a certain date regardless of prior law. No such clear and unequivocal language exists in our case.
[7] MCL 691.1416 et seq.
[8] "[A] requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness." Landgraf, supra at 268, 114 S. Ct. 1483. "The presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact." Id. at 270, 114 S. Ct. 1483. Respondent's position runs directly contrary to this notion, where it places a burden on petitioner to timely file an application after the fact, in that the burden did not exist before the legislation became effective, and the effective date was more than a year after petitioner's termination. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621851/ | 725 N.W.2d 691 (2006)
272 Mich. App. 394
PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Warren J. PIERCE, Defendant-Appellee.
Docket No. 261805.
Court of Appeals of Michigan.
Submitted October 5, 2006, at Lansing.
Decided October 10, 2006, at 9:10 a.m.
Released for Publication January 5, 2007.
*692 Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Tony Tague, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people.
Jeffrey P. West, Muskegon, for the defendant.
Before: SAWYER, P.J., and WILDER and SERVITTO, JJ.
PER CURIAM.
The prosecution appeals as of right the trial court's order granting defendant's motion to dismiss three counts of being a felon in possession of a firearm, MCL 750.224f, and three counts of possessing a firearm during the commission of a felony, MCL 750.227b. We reverse and remand *693 for proceedings consistent with this opinion.
MCL 750.224f provides in relevant part:
(1) Except as provided in subsection (2), a person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years after all of the following circumstances exist:
(a) The person has paid all fines imposed for the violation.
(b) The person has served all terms of imprisonment imposed for the violation.
(c) The person has successfully completed all conditions of probation or parole imposed for the violation.
(2) A person convicted of a specified felony shall not possess, use, transport, sell, purchase, carry, ship, receive or distribute a firearm in this state until all of the following circumstances exist:
(a) The expiration of 5 years after all of the following circumstances exist:
(i) The person has paid all fines imposed for the violation.
(ii) The person has served all terms of imprisonment imposed for the violation.
(iii) The person has successfully completed all conditions of probation or parole imposed for the violation.
(b) The person's right to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm has been restored pursuant to [MCL 28.424].
* * *
(5) As used in this section, "felony" means a violation of a law of this state, or of another state, or of the Unites States that is punishable by imprisonment for 4 years or more, or an attempt to violate such a law.
(6) As used in subsection (2), "specified felony" means a felony in which 1 or more of the following circumstances exist:
(i) An element of that felony is the use, attempted use, or threatened use of physical force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or the property of another may be used in the course of committing the offense.
(ii) An element of that felony is the unlawful manufacture, possession, importation, exportation, distribution, or dispensing of a controlled substance.
(iii) An element of that felony is the unlawful possession or distribution of a firearm.
(iv) An element of that felony is the unlawful use of an explosive.
(v) The felony is burglary of an occupied dwelling, or breaking and entering an occupied dwelling, or arson.
Defendant was convicted in 1975 of breaking and entering a sporting goods store in violation of MCL 750.110. Defendant applied for and was granted licenses to purchase handguns by the Muskegon County Sheriff's Department and was deemed eligible to purchase long guns from a federally licensed gun dealer. However, defendant did not seek restoration of his right to possess firearms from his local concealed weapons board pursuant to MCL 28.424. Defendant successfully moved the trial court to dismiss the instant charges on the basis that his prior conviction was not a specified felony under MCL 750.224f and, therefore, his right to possess firearms was automatically restored under MCL 750.224f(1) well before his arrest on the instant charges in September 2004.
On appeal, the prosecution contends that defendant's 1975 conviction constitutes a specified felony under MCL 750.224f and *694 that, because defendant failed to have his right to possess firearms restored as required by MCL 750.224f(2)(b), the trial court erred in granting defendant's motion to dismiss. We agree.
This Court has previously determined that breaking and entering a building in violation of MCL 750.110 is a specified felony within the meaning of MCL 750.224f. Tuggle v. Dep't. of State Police, 269 Mich.App. 657, 663, 712 N.W.2d 750 (2005). That the Legislature also chose to separately identify breaking and entering an occupied dwelling as a specified felony, MCL 750.224f(6)(v), does not negate this conclusion. Id. at 664, 712 N.W.2d 750. Nor can this conclusion be avoided by judicial construction referring to and relying on legislative history. People v. Weeder, 469 Mich. 493, 497, 674 N.W.2d 372 (2004). The plain language of MCL 750.224f(6) clearly and unambiguously includes breaking and entering as a specified felony, because, by its nature, breaking and entering involves the use of physical force, or the substantial risk that physical force may be used, against the property of another in the commission of the offense. Tuggle, supra at 666-667, 712 N.W.2d 750. Therefore, the trial court erred in granting defendant's motion to dismiss.
Defendant also argues that, as applied to him in the instant case, MCL 750.224f is unconstitutionally vague. We disagree. "To determine whether a statute is void for vagueness, a court examines the entire text of the statute and gives the statute's words their ordinary meanings." People v. Piper, 223 Mich.App. 642, 646, 567 N.W.2d 483 (1997). A statute is unconstitutionally vague if persons of ordinary intelligence must necessarily guess at its meaning. People v. Munn, 198 Mich. App. 726, 727, 499 N.W.2d 459 (1993). MCL 750.224f(6)(i) plainly and unquestionably encompasses breaking and entering in violation of MCL 750.110. Tuggle, supra at 666-667, 712 N.W.2d 750. Therefore, defendant cannot establish that the statute is unconstitutionally vague. Stated differently, the ordinary and plain language of MCL 750.224f(6) provides, in clear and understandable terms, that a person who is convicted of a felony involving "the use, attempted use, or threatened use of force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used," is subject to the more stringent requirements for restoration of firearms rights set forth in MCL 750.224f(2). Breaking and entering is a crime that clearly fits within the language. Therefore, the statute provides adequate notice to persons of ordinary intelligence concerning the conduct proscribed. Munn, supra at 727, 499 N.W.2d 459.
Finally, defendant argues that the instant prosecution is barred by the doctrine of entrapment by estoppel because he applied for and received from appropriate governmental authorities licenses to purchase handguns and authorization to purchase firearms. The doctrine of entrapment by estoppel applies to preclude prosecution when a defendant establishes by a preponderance of the evidence (1) that a government official advised the defendant that certain illegal conduct was legal, (2) that the defendant actually relied on the government official's statements, (3) that the defendant's reliance was reasonable and in good faith given the identity of the government official, the point of law represented, and the substance of the official's statements, and (4) that, given the defendant's reliance, prosecution would be unfair. People v. Woods, 241 Mich.App. 545, 558-560, 616 N.W.2d 211 (2000). As the Woods Court explained:
*695 [T]he defense should be utilized only where an earnest, law-abiding citizen attempts in good faith to comply with the law by consulting an appropriate government official, but unfortunately receives misinformation. These are circumstances where prosecution would be so unfair as to violate the citizen's right to due process. However, when the citizen knows or should know better, but attempts to seek immunity by claiming reliance on misinformation obtained from a government employee, prosecution is not unfair and estoppel by entrapment [sic] should have no application. [Id. at 560, 616 N.W.2d 211 (citation omitted).]
When a defendant claims entrapment, including entrapment by estoppel, the proper procedure is for the trial court to hold an evidentiary hearing, at which the defendant bears the burden of proving entrapment by a preponderance of the evidence. Id. at 554, 616 N.W.2d 211.
The trial court held an evidentiary hearing on defendant's motion to dismiss. At that hearing, the trial court was presented with limited evidence relating to defendant's purchase of certain firearms. However, the trial court made clear that the hearing was not for the purpose of determining whether defendant could establish entrapment by estoppel. The trial court made no determination whether defendant relied, reasonably and in good faith, on statements of a government official in acquiring and possessing firearms. Indeed, the trial court specifically declined to consider the testimony presented at the hearing, concluding that it was not pertinent to the question before it, that being whether defendant's breaking and entering conviction constituted a specified felony under MCL 750.224f. Therefore, we remand this matter for the reinstatement of the charges against defendant and for a proper consideration of defendant's assertion of the defense of entrapment by estoppel.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621891/ | 942 S.W.2d 185 (1997)
Juan Jose DIAZ-GALVAN, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-96-00043-CR.
Court of Appeals of Texas, Houston (1st Dist.).
March 20, 1997.
Joseph A. Salinas, III, Houston, for appellant.
Calvin Hartman, Houston, for appellee.
Before TAFT, MIRABAL and WILSON, JJ.
OPINION
TAFT, Justice.
Appellant, Juan Jose Diaz-Galvan was charged with delivery of marihuana weighing more than 50 pounds and less than 2000 pounds. His indictment included an allegation that appellant exhibited and used a deadly weapon during the offense. Without a plea-bargain agreement, appellant entered a guilty plea and requested community supervision. After a pre sentence investigation (PSI) was conducted, the trial court assessed punishment at 10-years confinement. We address whether appellant preserved his constitutional challenge to the cruelty of his punishment when he did not bring a complete record on appeal. We affirm.
Facts
The record reflects a PSI was requested by appellant and granted by the trial court. No copy of a PSI report is contained in the record, however. Appellant's motion for community supervision does state appellant had been convicted of a felony. No statement of facts is before this Court. Without a statement of facts, there is no way of knowing what transpired during the PSI hearing.
Cruel and Unusual Punishment
Appellant's sole point of error contends that his 10-year prison sentence for delivering marihuana constitutes cruel and unusual punishment in violation of Eighth and Fourteenth Amendments to the United *186 States Constitution. Appellant argues that his sentence violates the proportionality requirement.
The Eighth Amendment, which is applicable to the states by virtue of the Fourteenth Amendment, has been recognized as encompassing a narrow proportionality principle. See Thomas v. State, 916 S.W.2d 578, 582 (Tex.App.San Antonio 1996, no pet. h.) (citing Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962)). "Although a sentence may be within the range permitted by statute, it may nonetheless run afoul of the Eighth Amendment prohibition against cruel and unusual punishment." Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009, 77 L. Ed. 2d 637 (1983). In reexamining its Solem analysis, the Court held that punishment will be grossly disproportionate to a crime only when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme. Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). The Court emphasized,
"Only if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to (1) sentences for similar crimes in the jurisdiction and (2) sentences for the same crime in other jurisdictions."
Id., 501 U.S. at 1006, 111 S.Ct. at 2707.
Because a threshold proportionality analysis requires a comparison of the gravity of the crime with the severity of the sentence, it is necessary to have a sufficient record by which to evaluate the relative aggravation or mitigation of the particular facts of the case. Without a PSI or a statement of facts from the guilt or punishment hearing, we have an insufficient record to perform a proportionality review.
It is the appellant's burden on appeal to bring forth a record to show error requiring reversal. TEX.R.APP. P. 50(d); Applewhite v. State, 872 S.W.2d 32, 33 (Tex.App.-Houston [1st Dist.] 1994, no pet.). Because the burden was on appellant to ensure a complete record on appeal, it is presumed that omissions support the trial court's judgment. Id. at 32. We hold that, in the absence of an adequate record, appellant has not preserved his sole point of error for review.
Conclusion
We overrule appellant's sole point of error. We affirm the trial court's judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621888/ | 942 S.W.2d 561 (1996)
STATE of Tennessee, Appellee,
v.
Tyrone G. MEADE, Appellant.
Court of Criminal Appeals of Tennessee, at Jackson.
October 22, 1996.
*562 Randall B. Tolley, W. Otis Higgs, Memphis, for appellant.
Charles W. Burson, Attorney General & Reporter, Ellen H. Pollack, Asst. Attorney General, Nashville, John W. Pierotti, District Attorney General, P. Thomas Hoover, and Judson W. Phillips, Asst. District Attorneys General, Memphis, for appellee.
No Permission to Appeal Applied for to the Supreme Court.
OPINION
PEAY, Judge.
The defendant was indicted for the second-degree murders of Charles Matthews and Lavester Jefferson. The defendant was found guilty of both murders after a jury trial. Following a sentencing hearing, he was sentenced to twenty-five years for each offense, with fifteen years of the sentences to run consecutively and ten years to run concurrently, for an effective sentence of forty years.
The defendant now appeals as of right raising the following five issues:
1. The evidence was insufficient to support his convictions;
2. The trial court should have granted his motion for new trial on the basis that one of the jurors discussed the case with a third party and otherwise failed to follow the court's instructions;
3. The trial court should have granted his motion for new trial on the basis that one of the witnesses gave incomplete testimony at trial due to illness;
*563 4. He received ineffective assistance of counsel at trial; and
5. His sentences are excessive.
After a review of the record, we affirm the defendant's convictions and remand this matter for resentencing.
On January 15, 1992, the defendant shot and killed Charles Matthews and Lavester Jefferson in Memphis, Tennessee. On January 20, 1992, the defendant turned himself in to the police and gave two statements, both of which were admitted into evidence. In his first statement, the defendant claimed that Jefferson had shot Matthews, but admitted that he had shot and killed Jefferson. In his second statement, he admitted to having shot and killed both men.
According to the defendant's second statement, Matthews and Jefferson had come to his house on the night of the murders demanding money. Jefferson had been working for the defendant in his vehicle repair shop. The defendant stated that they were "crazy," "high," and that he thought they had been drinking and "smoking dope." He claimed that both men were insulting him and his girlfriend, Wanda Catt, and that he felt threatened "by the way they were talking and the tone of their voices demanding money." He stated that he told them to leave, but they wouldn't, so he shot Matthews. Jefferson then loaded the body into the defendant's El Camino and they drove into Mississippi and dumped the body.
Wanda Catt testified that she had been parked in her car a short distance from the defendant's house when Matthews was shot. When she looked over to where Jefferson, Matthews, and the defendant had been standing, she saw one man "lying on the ground, [the defendant] was standing about at his head, standing straight up, and the third man was just casually walking towards Third Street." At that point, she testified, the defendant "extended his right hand and fired into the ground." She then left the scene in her car.
The pathologist who performed the autopsy on Matthews testified that Matthews had been shot five or six times and that he had died as a result of multiple gunshot wounds. He further testified that Matthews had been alive at the time each wound was inflicted and that the gunshot wound to the back of Matthew's head was consistent with what is known as an "execution shot." He also testified that Matthews had tested positive for both cocaine and alcohol.
Following the defendant and Jefferson's return to the defendant's house after disposing of Matthews' body, the defendant was in his bedroom and Jefferson was in the living room with the defendant's friend Roy Adams. The defendant kept two shotguns under the couch in the living room. Adams testified that Jefferson had gotten one of the shotguns out from under the couch, and was threatening to kill "some M.F." Adams got the shotgun away from Jefferson but Jefferson then got the other shotgun and "went back to the back bedroom [where the defendant was] with the gun in his hand." At that point, Adams testified, he had heard shots from some gun other than the shotgun and left the house.
According to the defendant's first statement,
[Jefferson] and Roy were in the living room and Roy was telling [Jefferson] `please don't do that, stop.' The next thing I know is I looked up and Roy's back was facing me and [Jefferson] was facing him and the shotgun was between them. Roy was telling [Jefferson] not to do it[,] `put the gun down.' I asked [Jefferson] to let me get out and he wouldn't and I picked the gun up and said `let me out, let me out,' and he wouldn't let me out and I started shooting. When he fell, Roy ran out of the house and I ran out of the house.
The next night the defendant and Adams took Jefferson's body and dumped it at a location in Shelby County, Tennessee. The bodies were later discovered and the appropriate police departments contacted. After the defendant had turned himself in, he took the police to the .38 pistol with which he had shot Matthews and also took them to the heavily wooded location where he had thrown the 9mm pistol with which he had shot Jefferson. This pistol, however, was not found.
The pathologist who performed the autopsy on Jefferson testified that he had been *564 shot multiple times and that he had died as a result of multiple gunshot wounds. He testified that some of the wounds had been caused by shots to the front of Jefferson's body, while others had been caused by shots to the back of his body, including one of the wounds to Jefferson's head. Some of the gunshot wounds were inflicted from a distance of six inches or less, including the wound entering Jefferson's head from the back. He testified that Jefferson had been alive at the time each of the gunshot wounds was inflicted, but that he could not determine the sequence in which the shots hit Jefferson's body. He also testified that Jefferson had tested positive for cocaine, and that his blood alcohol level was forty-one hundreths of one percent, by weight of alcohol. According to the pathologist, this level of alcohol could be described as "severely intoxicated" and was high enough to produce apathy,[1] coma and even death. He also testified, however, that "experienced drinkers" might be able to function while experiencing this level of intoxication.
The defendant put on no proof after the State rested.
When an accused challenges the sufficiency of the convicting evidence, we must review the evidence in the light most favorable to the prosecution in determining whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to afford the State the strongest legitimate view of the proof contained in the record as well as all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Questions concerning the credibility of witnesses, the weight and value to be given to the evidence, as well as factual issues raised by the evidence are resolved by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict rendered by the jury and approved by the trial judge accredits the testimony of the witnesses for the State, and a presumption of guilt replaces the presumption of innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
Second-degree murder is defined as "A knowing killing of another." T.C.A. § 39-13-210(a)(1) (1991 Repl.). "Knowing" is defined as follows: "a person ... acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result[.]" T.C.A. § 39-11-106(a)(20) (1991 Repl.). The killing must also be unlawful. T.C.A. § 39-13-201 (1991 Repl.). The proof in this case is more than adequate to support a finding that the defendant knowingly and unlawfully killed Matthews and Jefferson.
The defendant contends on this appeal that "[t]hese cases are either ones of self-defense or voluntary manslaughter."[2] While the jury was charged with the law on both self-defense and voluntary manslaughter, it obviously rejected both theories. This was the jury's prerogative. With respect to Matthews, the proof established that the defendant shot the victim five or six times, at least once while the victim was lying on the ground. One of these shots was fired to the back of Matthews' head in an execution style. After he shot Matthews, the defendant drove to Mississippi in order to dispose of the body.[3] The only evidence of self-defense *565 and/or adequate provocation was the defendant's own statement to the police that he had felt threatened by Matthews and Jefferson, "by the way they were talking and the tone of their voices demanding money." The evidence was sufficient for the jury to decide that the defendant had shot and killed Matthews knowingly and unlawfully, thereby properly convicting him of second-degree murder.
With respect to Jefferson, the evidence was uncontroverted that Jefferson had approached the defendant while holding a shotgun, and that he had stated he was going to kill "some M.F." However, this evidence did not require the jury to find that the defendant had killed Jefferson in self-defense. Three prerequisites must be met before one is justified in killing another human being under the rubric of "self-defense:" "[1] the defendant must reasonably believe he is threatened with imminent loss of life or serious bodily injury; [2] the danger creating the belief must be real or honestly believed to be real at the time of the action; and [3] the belief must be founded on reasonable grounds." T.C.A. § 39-11-611 Sentencing Commission Comments (1991 Repl.). Given Jefferson's blood alcohol content, the number of times he was shot, the fact that some of the shots entered the back of Jefferson's body, the method by which the defendant disposed of Jefferson's body and the gun with which he shot Jefferson, the jury could, and did, properly find that the defendant had not acted in self-defense. Similarly, the jury had sufficient evidence on which to reject the notion that the defendant had killed Jefferson under the circumstances required for voluntary manslaughter. This issue is without merit.
In his next issue, the defendant contends that the trial court should have granted his motion for new trial on one or both of two grounds: juror misconduct and/or "newly discovered evidence." The gist of the defendant's allegation of juror misconduct is that juror Charles Ward discussed the case with his sister-in-law, Cassandra Conner, prior to its conclusion and intimated that he thought the defendant was guilty even before the State had rested its case. At the hearing on the motion for new trial, however, Mr. Ward repeatedly denied that he had discussed the case with Ms. Conner before it was over. Ms. Conner testified that she had discussed the case with Mr. Ward on the evening of the second day of the four day trial; however, she admitted on cross-examination that she had no personal knowledge of when the trial had actually occurred. Ms. Conner further testified that she had not said anything to influence Mr. Ward about the case. She did not testify that Mr. Ward had told her that he had already made up his mind about the defendant's guilt or innocence. Dora Conner, Ms. Conner's sister-in-law, testified that she and Ms. Conner had discussed Ms. Conner's conversation with Mr. Ward on the second day of the four day trial. However, she admitted on cross-examination that she was a "real good friend" of the defendant's.
The jury in this case was not sequestered. "When the jury is not sequestered, the defendant has the burden of showing something more than mere interactions between the jury and third persons. The defendant must instead establish `that as the result of a juror's contact with a third person some extraneous prejudicial information, fact or opinion was imported to one or more jurors or some outside improper influence was brought to bear on one or more jurors.'" State v. Clinton, 754 S.W.2d 100, 103 (Tenn. Crim. App. 1988) (citations omitted; emphasis in Clinton). Here, the defendant failed to meet this burden of proof. This issue is without merit.
With respect to the defendant's claim that the court below erred in denying his motion for new trial on the grounds of newly discovered evidence, we first note that our standard of review is abuse of discretion. Hawkins v. State, 220 Tenn. 383, 417 S.W.2d 774, 778 (1967). In seeking a new trial based on newly discovered evidence, the defendant must establish (1) reasonable diligence in attempting to discover the evidence; (2) the materiality of the evidence; and (3) that the *566 evidence would likely change the result of the trial. See State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994) (citing State v. Goswick, 656 S.W.2d 355, 358-360 (Tenn. 1983)). In order to show reasonable diligence, the defendant must demonstrate that neither he nor his counsel had knowledge of the alleged newly discovered evidence prior to trial. See Jones v. State, 2 Tenn. Crim. App. 160, 452 S.W.2d 365, 367 (1970).
Here, the "newly discovered evidence" was additional testimony from Roy Adams, who had also testified at the trial of this matter. Adams testified at the new trial hearing that he had been ill with the flu and taking prescribed medication for it on the day of the trial. However, Adams's testimony at the new trial hearing added nothing of substance to what he had testified to at trial. The defendant makes much of Adams' "new" testimony that he thought the defendant had shot Jefferson in self-defense. However, the issue of whether the defendant shot and killed Jefferson in self-defense was for the jury, not for Adams. The jury certainly had before it Adams' testimony that Jefferson was holding a shotgun at the time he approached the defendant. The court below did not abuse its discretion in denying the motion for new trial on this ground. This issue is without merit.
The defendant next contends that he received ineffective assistance of counsel at trial. He did not raise this issue in his motion for new trial and it is therefore waived. T.R.A.P. 3(e).
Finally, the defendant complains that his sentences are excessive. When a defendant complains of his or her sentence, we must conduct a de novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing Commission Comments. This presumption, however, "is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
A portion of the Sentencing Reform Act of 1989, codified at T.C.A. § 40-35-210, established a number of specific procedures to be followed in sentencing. This section mandates the court's consideration of the following:
(1) The evidence, if any, received at the trial and the sentencing hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing and arguments as to sentencing alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to make in his own behalf about sentencing.
T.C.A. § 40-35-210.
In addition, at the time of the defendant's sentencing hearing this section provided that the minimum sentence within the range was the presumptive sentence. If there were enhancing and mitigating factors, the court must start at the minimum sentence in the range and enhance the sentence as appropriate for the enhancement factors and then reduce the sentence within the range as appropriate for the mitigating factors. If there were no mitigating factors, the court may set the sentence above the minimum in that range but still within the range. The weight to be given each factor is left to the discretion of the trial judge. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).
The Act further provides that "[w]henever the court imposes a sentence, it shall place on the record either orally or in writing, what enhancement or mitigating factors it found, if any, as well as findings of fact as required by § 40-35-209." T.C.A. § 40-35-210(f) (emphasis added). Because of the importance of enhancing and mitigating factors under the sentencing guidelines, even the absence of these factors must be recorded if none are found. T.C.A. § 40-35-210 comment. These findings by the trial judge must be recorded in order to allow an adequate review on appeal.
Although the trial court in this case held a sentencing hearing and was provided a presentence report as well as other relevant *567 pleadings and evidence, it made no findings of fact, no findings as to mitigating and/or enhancing factors, and no statement of how it was applying the sentencing principles to the facts of this case. Additionally, the court ordered a portion of the defendant's sentences to run consecutively and the remainder to run concurrently. This is improper. T.C.A. § 40-35-115(a) (1990 Repl.) ("If a defendant is convicted of more than one (1) criminal offense, the court shall order sentences to run consecutively or concurrently") (emphasis added). Accordingly, we remand this matter for resentencing in accordance with the statutory requirements.
For the reasons set forth above, the defendant's convictions are affirmed and this matter is remanded for resentencing.
WELLES, J., and CORNELIA A. CLARK, Special Judge, concur.
NOTES
[1] The pathologist described "apathy" in this context as "general disregard for the environment around one's self... . It's very much like an attitude of I don't care, and the world will go on around you, and you can focus on yourself. So, it's again a reflection of an impairment of alertness or awareness."
[2] Voluntary manslaughter "is the intentional or knowing killing of another in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner." T.C.A. § 39-13-211 (1991 Repl.).
[3] The jury was properly instructed that "Inference of guilt of murder may be drawn from concealment or destruction of [the] body of deceased and, while that inference is by no means strong enough of itself to warrant conviction, it may become one of a series of circumstances from which guilt may logically be inferred." See State v. West, 844 S.W.2d 144, 151 (Tenn. 1992). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621871/ | 942 S.W.2d 176 (1997)
Lisa Marie KNAPP, Appellant,
v.
The STATE of Texas, Appellee.
No. 09-95-083 CR.
Court of Appeals of Texas, Beaumont.
Submitted October 24, 1996.
Decided March 19, 1997.
*177 Frank Blazek, Smith, Martin, Henderson Morgan, DeLong & Blazek, Huntsville, for appellant.
Frank H. Bass, Jr., County Attorney, William L. Pattillo, Assistant County Attorney, Conroe, for state.
Before WALKER, C.J., and BURGESS and STOVER, JJ.
OPINION
WALKER, Chief Justice.
Appellant was convicted by a jury for having committed the misdemeanor offense of *178 driving while intoxicated. The trial court assessed punishment at two years' confinement in the Montgomery County Jail, and a fine of $700. The trial court suspended the imposition of the jail sentence and placed appellant on probation for a period of two years. The record before us reflects the offense date to have been on or about August 10, 1992. The trial commenced on October 24, 1994. Appellant raises nine points of error for our consideration, none of which complain of the legal or factual sufficiency of the evidence to sustain the conviction.
Points of error one and two read as follows:
Point of Error One: The trial court erred by allowing the use of medical records obtained by the use of Grand Jury subpoena in violation of appellant's right of privacy.
Point of Error Two: The trial court erred in allowing the use of medical records obtained in violation of the Medical Practices Act, Vernon's Ann. Civ. St. Art. 4495b.
An examination of the facts elicited at trial indicates that on the night of August 10, 1992, appellant was operating a motor vehicle on a public street in Montgomery County, Texas, when she collided with a tractor-trailer rig loaded with lumber products. Both appellant and a female passenger, Janell Hanson-Zirbel, were seriously injured. The driver of the 18-wheeler was not injured. At the scene of the accident, appellant exhibited a strong odor of alcohol on her breath and was initially very combative with medical personnel who were attempting to safely extricate appellant from her mangled vehicle. Hospital records indicated that appellant's blood alcohol content was determined to be.158 approximately two hours after the accident. The State's expert opined, albeit in response to a hypothetical question posed to him during direct examination, that the blood alcohol content could have been as high as.19 at the time of the accident. A Department of Public Safety trooper investigating the accident testified that he discovered an open bottle of beer inside appellant's vehicle. The trooper detected some beer still in the bottle. He also stated that neither he nor any other law enforcement personnel directed any medical personnel to take blood from appellant at any time. Over appellant's objections at trial, certain selected pages from her medical records were introduced into evidence. In addition to appellant's blood alcohol content, noted in State's Exhibit 10-A, State's Exhibit 10-B contained a notation that appellant may have had "8 beers"; State's Exhibit 10-C listed the time of the blood-work on appellant at "2305;" State's Exhibit 10-D contained the notation "27 y/o wf ... states fell asleep. Admits to `a lot' of ETOH at [around] 2000;" and State's Exhibit 10-E also contained the notation that "Pt fell asleep."
As it was at the trial court level, appellant's contention on appeal is that her privacy rights under the Texas Constitution were violated by the State when it used a grand jury subpoena to obtain the medical records from Hermann Hospital in Houston. Appellant further complains of a violation of TEX. REV.CIV. STAT. ANN. art. 4495b, sec. 5.08(g)(10) (Vernon Pamph.1997), which states that medical records are not discoverable in a criminal case, where the patient is a defendant, until the trial court makes an in camera determination of the relevancy of the records. At trial, appellant's trial counsel expressed to the trial court his belief that his position on this issue would be ultimately vindicated as the Court of Criminal Appeals had granted petition on McBride v. State, No. 01-92-00574-CR (Tex.App.Houston [1st Dist.] September 23, 1993)(not designated for publication), 1993 WL 368897, pet. dism'd, improvidently granted, 920 S.W.2d 318 (Tex.Crim.App.1996). Mirroring the defendant's arguments and authorities in McBride, appellant also relies on State v. Comeaux, 818 S.W.2d 46 (Tex.Crim.App. 1991). In Comeaux, the Court of Criminal Appeals held that the defendant had a legitimate expectation of privacy in the blood sample he gave to the hospital and recognized "society's regard for this expectation, as evidenced by the Texas Medical Practice Act [art. 4495b]...." Comeaux, 818 S.W.2d at 53. In Comeaux, the hospital doctor ordered a blood sample but did not order a blood alcohol test. The police, who suspected Comeaux of DWI, asked the nurse to give them *179 a sample of his blood, but the nurse refused. The police then produced a document falsely stating that Comeaux was required to give a blood sample and ordered her to comply. The nurse provided the sample, the State conducted the test and then charged Comeaux with DWI. The Court of Criminal Appeals in Comeaux found the warrantless search and seizure of Comeaux's blood violated his constitutional protection against unreasonable searches and seizures. Id.
The Court of Appeals in McBride, relying on its decision in Thurman v. State, 861 S.W.2d 96 (Tex.App.Houston [1st Dist.] 1993, no pet.), noted that the section of the Medical Practice Act dealing with the confidentiality of patient's medical records (and upon which the plurality in Comeaux heavily relied) was repealed, being replaced by a rule of evidence, authored by the Court of Criminal Appeals, that totally eliminated the physician-patient privilege in criminal cases. See TEX.R.CRIM. EVID. 509. The Houston Court in McBride then quoted the following from Thurman:
Now that article 4495b, section 5.08 has been repealed in criminal cases, rule 509 shows that society does not consider this expectation reasonable in criminal cases. We conclude that Comeaux does not control this case because no matter how reasonable appellant's subjective expectation of privacy may have been, it is one that society has rejected. The policy choice has been made by the Court of Criminal Appeals: Society can afford the physicianpatient privilege in certain civil cases in order to protect personal privacy, but the need to protect the public from crime requires disclosure of the same information in criminal cases.
Thurman, 861 S.W.2d at 99-100.
Unfortunately for appellant, on April 24, 1996, the Court of Criminal Appeals determined that it had improvidently granted the petition for discretionary review in McBride and dismissed said petition. McBride v. State, 920 S.W.2d 318, 319 (Tex.Crim.App. 1996). Therefore, the holdings and rationales announced in Thurman are still viable and remain good law. Said holdings have been subsequently reaffirmed by Courts of Appeals in Corpus Christi and Austin. See Clark v. State, 933 S.W.2d 332 (Tex.App. Corpus Christi 1996, no pet.); and Corpus v. State, 931 S.W.2d 30 (Tex.App.Austin 1996, pet. filed).
With regard to appellant's complaint of obtaining the records by grand jury subpoena, the Clark case held that there was no seizure involved in that the blood sample in question was drawn and tested for medical purposes at the request of the attending physician, and thereafter the State merely obtained the test results pursuant to the grand jury subpoena. Clark, 933 S.W.2d at 333. As the physician-patient privilege in criminal cases had been repealed, the blood test results were no longer protected. Id. We adopt the holdings and rationales set out in Clark, Corpus, and Thurman as the issues raised are identical to appellant's first two points of error. As such, we overrule points of error one and two.
Point of error three complains of trial court error in the admissibility of appellant's blood test results as appellant's blood "was taken tortiously from appellant without her consent." Other than a civil case that states the general proposition that a surgeon is subject to liability for assault and battery where he operates without the consent of the patient, appellant's lone authority under this point of error is, again, State v. Comeaux, supra, as it recognizes a patient's expectation of privacy in a blood sample. As we held in our discussion of appellant's first two points of error, Comeaux can be distinguished on its facts and on the law relied on. Furthermore, appellant provides absolutely no authority for the contention raised in her written motion to suppress that the commission of a tort by the medical personnel in taking the blood sample would render any results inadmissible under Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon Supp.1997). As such, this specific complaint has been improperly briefed and will not be addressed on appeal. Tex.R.App. P. 74(f); Penry v. State, 903 S.W.2d 715, 760 (Tex.Crim.App.); cert. denied, ___ U.S. ___, 116 S. Ct. 480, 133 L. Ed. 2d 408 (1995). Point of error three is overruled.
*180 In her fourth point of error, appellant alleges trial court error in permitting the admission of State's Exhibits 10-B, 10-C, 10-D, and 10-E in that they were hearsay and violated appellant's right of confrontation and cross-examination.[1] The key to this point of error appears to be appellant's contention that the State "made no offer of any exception to the general hearsay rule that would make these exhibits admissible." As we view the record, appellant's contention is incorrect. When the State tendered appellant's medical records for admission into evidence, a discussion occurred between the parties and the trial court. At one point the attorney for the State remarked, "These records have been admitted into evidence by a self-proving affidavit as to medical records of Lisa Marie Knapp and clearly are her medical records, Your Honor." Counsel for appellant did not take issue with the existence of a self-proving affidavit as mentioned by the State. Indeed, moments later, in response to the State's tender of the medical records in question, trial counsel for appellant asked, "Is that the proffer? Are you relying on the self-authenticated records?" The attorney for the State responded, "Yes. Yes."
Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. TEX. R.CRIM. EVID. 801(d). Although Texas Rule of Criminal Evidence 802 makes hearsay evidence inadmissible at trial, Rule 803 outlines a number of exceptions to Rule 802. Rule 803(6), commonly known as the "business records exception," allows the admission of certain memoranda, reports, records, or data compilations that are (1) made at or near the time of the events they record, by or from information transmitted by a person with knowledge of the events; and (2) made and kept in the course of a regularly conducted business activity. TEX.R.CRIM. EVID. 803(6). The necessary predicate for introduction of a business record may be shown by offering either (1) the testimony of a records custodian or other qualified witness, or (2) an affidavit that complies with Rule 902(10). See TEX.R.CRIM. EVID. 803(6) & 902(10).
In the instant case, both parties acknowledged the existence of the self-authenticating affidavit in connection with appellant's medical records. While said affidavit does not appear in the record before us, we may accept its existence as a fact since there is no challenge made to it by appellant in either the record or in her brief. See TEX.R.APP. P. 74(f). Therefore, under the "business records exception" of Rule 803(6), appellant's medical records were not hearsay and were properly admitted by the trial court. Point of error four is overruled.
Appellant's fifth point of error complains that the trial court erred in refusing a requested instruction be included in the written instructions to the jury limiting the jury's consideration of testimony of appellant's prior drinking habits. The record before us reflects that appellant was permitted by the trial court to elicit from several defense witnesses in her case-in-chief that appellant was a law-abiding citizen. One such defense witness was Bruce Peterson, appellant's boyfriend. Direct examination of Peterson elicited the fact that on the night of the accident he received a telephone call from appellant at about 8:30 or 8:35 p.m. The conversation lasted about a minute to a minute and a half, *181 and Peterson stated that appellant's voice sounded "normal" and not impaired, and that he (Peterson) could determine as to whether or not someone is impaired by how they sound over the telephone.
On cross-examination by the State, Peterson stated he had been dating appellant for about three years. The questioning then turned to appellant's law-abiding nature and continued as follows:
Q.[The State] Okay. So as far as you know she is in your opinion a law-abiding person no matter what happens here today. It doesn't matter to you.
A.[Peterson] Yes. I mean, I don't know how accurate a blood test is or anything like that. But I know she wasn't intoxicated that night. I don't know what point one or one point whatever you are telling me. She was not intoxicated that night.
Q. Do you have any reason to dispute the blood test?
A. I neverWell, no, but I never seen her intoxicated in the three years I have known her.
Q. Okay. Now let's talk about that. You say she was not intoxicated. Right?
A. She didn't seem to me. No. No way.
Q. And you have never seen her intoxicated before?
A. Uh-uh.
Q. I could ask you the question how would you know in that case, but let me shift the focus to this.
A. I wouldn't have, you know, because I have never seen her that way.
Q. You wouldn't know if she was intoxicated because you have never seen her that way?
A. I have seen a lot of intoxicated people, but she wasn't.
Q. You can't tell if she has got specific symptoms or if she has like a high tolerance for alcohol. You don't know any of that because you don't recall ever seeing her intoxicated. True?
A. No, I don't recall ever seeing her intoxicated at all.
Q. Even if they were intoxicated you never reached that conclusion about her. Correct?
A. I never seen her. No.
Q. How often does Lisa drink alcohol?
[Trial Counsel]: Your Honor, I am going to object to that. They are trying to go in and go into her character for drinking. That is not relevant. That is prejudicial and I object to it. Prejudicial value exceeds the probative value.
THE COURT: I am going to overrule that objection.
Q. Mr. Peterson, how often does Lisa drink alcohol?
A. Not too often. I mean maybe on a weekend or something.
Q. What does she usually drink when she drinks?
A. Just beer with me.
Q. What kind of beer does she usually drink?
A. Bud Light.
[Trial Counsel]: May I have a running objection to this?
THE COURT: Yes, you may.
Q. How much does she usually drink at a time?
A. I wouldn't really know. About maybe two or three or four. Just depending on when we get there, you know, or what the occasion is.
Q. On some occasions she will drink more than that?
A. I couldn't say one way or the other. I mean maybe she might have five or something. You know, I don't know. I don't sit there and count her beers.
* * * * * * * * * * * *
Q. So, if she drinks a margarita that would be unusual for her?
A. Well, what do you mean by unusual? Like if we go out to have a Mexican dinner or something like that and she drinks a margarita. Is that unusual?
Q. You said she has done it one (sic) or twice before in the three years you have known her.
*182 A. That is what I am saying. Something like we go out and eat a Mexican dinner I have seen her drink a margarita.
Q. One margarita would be
A. She wouldn't finish it once we got dinner or something.
Q. Two margaritas would be even more unusual?
A. Yes.
Q. Yeah. I mean, that would be unusual for her. That is the kind of alcohol that she wouldn't usually be used to handling. Right?
A. Right.
No limiting instruction is required when an extraneous offense[2] is offered to directly prove one of the main issues in the indicted case. Puente v. State, 888 S.W.2d 521, 528 (Tex.App.San Antonio 1994, no pet.); Payton v. State, 830 S.W.2d 722, 730 (Tex.App.Houston [14th Dist.] 1992, no pet.). In the instant case, Peterson's testimony indicated that he was a fact witness to the issue of appellant's intoxication on the night in question. He further testified that he had never seen appellant intoxicated in the three years they had dated. The State was permitted to fully cross-examine Peterson as to the extent of his knowledge of appellant's drinking habits that may have formed the basis for the opinions he had as to the state of appellant's intoxication on certain occasions, especially on the night in question. It was clearly relevant as to whether appellant was or was not intoxicated shortly before the accident (see TEX.R.CRIM. EVID. 401), and its probative value was not substantially outweighed by its prejudicial effect. See TEX.R.CRIM. EVID. 403.
Furthermore, appellant cannot prevail on this issue as she appears to ignore the fact that a party opposing evidence has the burden of objecting and requesting the limiting instruction at the introduction of the evidence. TEX.R.CRIM. EVID. 105; TEX.R.APP. P. 52(a); Garcia v. State, 887 S.W.2d 862, 878 (Tex.Crim.App.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1368, 131 L. Ed. 2d 223 (1995). Once evidence is received without a proper limiting instruction, it becomes part of the general evidence in the case and may be used as proof to the full extent of its rational persuasive power. Id. Once admitted, the fact that evidence might have been inadmissible for certain purposes if the proper objection had been made does not limit its use. Garcia, 887 S.W.2d at 878-879. As such, the trial court did not err in denying appellant's requested limiting instruction raised for the first time during the discussion of the written jury instructions following the close of all of the evidence. Point of error five is overruled.
Point of error six alleges error by the trial court in failing to provide a proper application paragraph to the jury. The application paragraph contained the following language:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 10th day of August, 1992, in Montgomery County, Texas, the defendant, Lisa Marie Knapp, was then and there intoxicated, by reason of the introduction of alcohol into her body, and while so intoxicated, did drive or operate a motor vehicle in a public place, then you will find the defendant guilty as charged.
Appellant contends that the above instruction may have misguided the jury in that the phrase "was then and there intoxicated, by reason of the introduction of alcohol into her body" may have led a juror to improperly believe that the consumption of any alcohol was sufficient to find intoxication. The jury instructions did contain the correct statutory definition of "intoxication" two paragraphs above the application paragraph. General instructions and definitional instructions *183 need not be applied to the facts of a case. Clark v. State, 929 S.W.2d 5, 10 (Tex.Crim. App.1996), petition denied, ___ U.S. ___, 117 S. Ct. 1246, 137 L. Ed. 2d 328 (1996). Indeed, the abstract or definitional paragraphs have been held to serve as a kind of glossary to help the jury understand the meaning of concepts and terms used in the application paragraph of the charge. Plata v. State, 926 S.W.2d 300, 302 (Tex.Crim.App.1996); Dinkins v. State, 894 S.W.2d 330, 339 (Tex.Crim. App.), cert. denied, ___ U.S. ___, 116 S. Ct. 106, 133 L. Ed. 2d 59 (1995) (omission of culpable mental state from the application paragraph was sufficiently supplied by a definition of the offense given in the abstract portion of charge). In the instant case, appellant does not provide any specific authority holding the language in question to be improper. All statutory terms relating to the offense charged were defined for the jury. The application paragraph properly applied the law to the facts. Point of error six is overruled.
Point of error seven complains of trial court error in denying appellant's motions for mistrial during final argument by the State. Appellant directs our attention to four incidents during the State's closing argument at the guilt/innocence phase of the trial where appellant alleges the State commented on appellant's failure to testify. The record reflects that in each instance the trial court sustained appellant's objection, and instructed the jury to disregard the last remark by the State. However, each of appellant's requests for a mistrial were denied.
Reversible error will result from improper prosecutorial argument only if the argument is extreme, manifestly improper, injects new and harmful facts into the case, or violates a mandatory statutory provision, and is so inflammatory that its prejudicial effect cannot reasonably be cured by a judicial instruction to disregard. Hernandez v. State, 819 S.W.2d 806, 820 (Tex.Crim.App. 1991), cert. denied, 504 U.S. 974, 112 S. Ct. 2944, 119 L. Ed. 2d 568 (1992). The Court of Criminal Appeals has held that only offensive or flagrant error calls for reversal when there has been an instruction to disregard. Cooks v. State, 844 S.W.2d 697, 728 (Tex. Crim.App.1992), cert. denied, 509 U.S. 927, 113 S. Ct. 3048, 125 L. Ed. 2d 732 (1993). The argument must be examined in light of the entire record. Hernandez, 819 S.W.2d at 820; Jones v. State, 863 S.W.2d 254, 257 (Tex.App.Beaumont 1993, pet. ref'd).
Appellant's lone authority on this issue is Norton v. State, 851 S.W.2d 341 (Tex.App. Dallas 1993, pet. ref'd), an aggravated sexual assault case. The Dallas Court of Appeals reversed the defendant's conviction because it found the prosecutor's statement, "There were only two people out there and we heard from one of them," was a direct comment on the defendant's failure to testify and was so inflammatory that the trial court's instruction to disregard did not cure the error. Id. at 346. The apparent basis for this conclusion was the fact that the record indicated the defendant and the complainant were the only two parties present during the time of the alleged offense, and that the defendant's theory of the case was that the complainant consented to the acts alleged in the indictment.
In the instant case, however, we have several sources providing evidence of appellant's intoxicated state on the night in question. In fact, the only element of the offense that was seriously contested by appellant was whether or not she was operating her vehicle while in an intoxicated condition. The presence of eyewitness and medical evidence indicating appellant was indeed intoxicated would certainly lessen the impact of any alleged reference to appellant's failure to testify made by the State. In short, the record before us presents much more than the virtual "swearing match" which was before the Dallas Court in Norton. In the instant case, we cannot say that the four statements in question were so offensive and flagrant, in light of the entire record before us, that the trial court's instruction could not have cured whatever error may have occurred. Point of error seven is overruled.
Point of error eight reads, "The trial court erred in entering a judgment of conviction for Driving While Intoxicated, `Open Container,' when such allegation was not properly plead." The record reflects that *184 the complaint and information initially filed against appellant did not contain any "open container" allegation. The information was amended in April of 1994, and again in June of 1994, with each amendment including an "open container" allegation. Appellant moved to quash said information prior to trial, with said motions being denied by the trial court. Appellant's contention on appeal, citing to Ward v. State, 829 S.W.2d 787 (Tex. Crim.App.1992), is that the amended information were invalid because "amendments can only be accomplished by physically interlineating the changes on the original charging instrument." We feel that appellant's interpretation of Ward is much too strained. We find the basic holding in Ward to be contained in this portion of the Court's opinion:
Certainly, the motion to amend and the trial judge's order granting it serve as notice to the accused of what changes will be made to the pleadings. However, that is not notice of the charge against him. Thus, concluding that "amendment" means an actual alteration to the document charging an offense ensures the accused of his constitutional right to be informed, from the face of the charging instrument, of the nature and cause of the accusation against him.
Ward, 829 S.W.2d at 794.
It would appear that the main concern of the Court in Ward was that an accused have notice of the charges against him, and that he need go no further than the "face of the charging instrument" itself to be informed of said charges. The actual alteration of the charging instrument may be accomplished by handwriting, typing, interlining, striking out, etc. Id. at 793, n. 14. The Court in Ward also discussed the statutory prerequisites for amending a pleading as set out in TEX.CODE CRIM. PROC. ANN. art. 28.10 & 28.11 (Vernon 1989). These include notice to the accused and permission from the trial court. The State's compliance with these prerequisites is not before us in the instant appeal.[3] The appellant's complaint is strictly with the manner in which the State physically altered the charging instrument. The fact that the amended charging instruments were typed with the "open container" allegation added placed said additional allegation in the charging instrument itself. Appellant did not have to rely on other documents or motions by the State to have notice of the complete charges against her. The mandate of Ward was satisfied. Point of error eight is overruled.
Appellant's final point of error complains of the trial court's judgment containing the language "open container ... as found by the Jury" on the grounds that the jury was neither instructed on such issue nor made such a finding. Appellant claims that because the jury instructions made no mention of the "open container" allegations and the jury verdict also made no mention of it, the judgment is unsupported by the pleadings. Appellant provides us with no authority for this contention which, if correct, could possibly render the judgment at least voidable if not void. Ironically, the one case appellant does cite fully discusses the issue and holds unfavorably to appellant's position. See McDonald v. State, 863 S.W.2d 541, 545 (Tex.App.Houston [1st Dist.] 1993, no pet.). The McDonald Court held that litigation of the "open container" issue is properly reserved for the punishment phase of the trial because an "open container" allegation is an enhancement provision, not an essential element of the offense of driving while intoxicated. Id.
Furthermore, the McDonald Court also held that since the defendant chose not to have the jury assess punishment, mirroring appellant's choice in the instant case, it was within the province of the trial court, as trier of fact at the punishment phase, to determine the truth of the allegations in any enhancement paragraphs. Id. We, therefore, find no error contained in the language of the judgment. Point of error nine is overruled. The *185 judgment and the sentence of the trial court are affirmed.
AFFIRMED.
NOTES
[1] With regard to her confrontation cross-examination complaint, appellant makes a cursory citation to the Texas Constitution and to art. 1.05 of the Texas Code of Criminal Procedure. She does not argue how either citation is applicable to the particular facts of her case. We note that this particular area of the law has been heavily litigated over the recent years with a generally recognized test for confrontation clause violations having emerged in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Significant Court of Criminal Appeals cases addressing the issue include Holland v. State, 802 S.W.2d 696 (Tex.Crim.App.1991), and Long v. State, 742 S.W.2d 302 (Tex.Crim.App.1987), cert. denied, 485 U.S. 993, 108 S. Ct. 1301, 99 L. Ed. 2d 511 (1988), overruled on other grounds, Briggs v. State, 789 S.W.2d 918 (Tex.Crim.App.1990); Coulter v. State, 494 S.W.2d 876 (Tex.Crim.App. 1973). Appellant woefully fails to recognize or apply the mountain of case law on this issue. She merely provides conclusory assertions. As we are not required to brief an appellant's issues for her, we overrule this portion of point of error four as having been inadequately briefed. Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex.Crim. App.1995).
[2] We recognize that Bishop v. State, 869 S.W.2d 342, 345 (Tex.Crim.App.1993) held, et al., that TEX.R.CRIM. EVID. 404(b) is not limited to criminal offenses or even misconduct, but intent of said rule is to prevent introduction of evidence to prove character of person in order to show that he acted in conformity with that character, and prohibition applies as equally to evidence of extraneous acts or transactions as it does to evidence of extraneous offenses. Therefore, evidence of appellant's drinking habits would fall under Rule 404(b) if said evidence was intended only to prove her character in order to show she acted in conformity with that character on the evening in question.
[3] Although raised in paragraph 6 of her "Second Motion To Quash Complaint And Information," this issue appears to have been abandoned on appeal as her brief makes no mention of the State failing to obtain leave from the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621859/ | 942 S.W.2d 41 (1997)
The STATE of Texas, Appellant,
v.
Eloy GUZMAN and Blanca Estella Guzman, Appellees.
Nos. 13-95-525-CR, 13-95-527-CR.
Court of Appeals of Texas, Corpus Christi.
February 6, 1997.
Discretionary Review Granted June 18, 1997.
*42 Thomas L. Bridges, District Attorney, Anita O'Rourke, Asst. District Attorney, Sinton, for Appellant.
James D. Granberry, Corpus Christi, for Appellees.
Before SEERDEN, C.J., and DORSEY and CHAVEZ, JJ.
OPINION
DORSEY, Justice.
The State of Texas appeals from a ruling of the trial court suppressing all evidence obtained through a seizure and search of appellees Eloy and Blanca Estella Guzman's[1] truck in the State's case against them for third degree felony possession of marihuana.[2] We affirm.
Appellees were stopped on U.S. Highway 77 north of Sinton, Texas by Department of Public Safety Trooper Jerry Byrd when he noticed that the windows of their truck appeared to be too darkly tinted. Trooper Byrd spoke with Eloy Guzman, the driver of the truck, who told him that Guzman and his family were moving to Houston to find work and to live with Guzman's brother. Mrs. Guzman, the truck owner, told Byrd that she too was unemployed, and that they were going to live with her sister. Trooper Byrd noticed that one of the bolts holding the truck bed onto the frame appeared to have been disturbed. He also learned that the truck had been purchased only days before. Trooper Byrd saw a cellular telephone in Mrs. Guzman's purse and a portable citizensband ("CB") radio on the floorboard of the truck.
Due to the conflict in appellees' stories, the appearance of the bolt, and the presence of both a cellular telephone and a portable CB radio, Trooper Byrd suspected that contraband was concealed in the vehicle. He informed Mr. Guzman of his suspicions and obtained written consent from Mr. Guzman to search the vehicle and its containers and contents. The consent form listed the place of the search as "SO Sinton."[3] Although Mrs. Guzman was listed as the truck owner on the paper "buyer's tag" visible on the vehicle, she was not asked for consent to search. Trooper Byrd looked under the bed of the vehicle and determined that all of the bolts holding the bed to the frame appeared to have been recently disturbed. No other search was performed on the roadway.
Trooper Byrd told Mr. Guzman that he needed to take a closer look at the truck. He confiscated Mr. Guzman's driver's license and instructed the appellees to follow him to the Sheriff's office, some four miles away. Once at the Sheriff's office, Mr. Guzman and Trooper Byrd remained with the vehicle, while the other passengers went inside the Sheriff's office. A K-9 unit arrived, and the dog alerted to the gas tank area of the truck. Trooper Byrd informed Mr. Guzman that he *43 believed there was contraband in the gas tank area of the truck, and that he was going to take the truck to a nearby service station where he could remove the bed and gain entry to the gas tank. While appellees remained at the Sheriff's office, Byrd drove the truck to a nearby service station, where the bed of the truck was removed. Trooper Byrd then noticed a patch of "bondo" on the gas tank of the truck. Using a mallet and chisel, he broke through the patch and discovered thirty-nine pounds of bundled marihuana in a compartment in the gas tank.
Appellees filed a pretrial motion to suppress all evidence seized as a result of the search and seizure, including any written or oral statements they may have made. Appellees argued that the search of their gas tank exceeded the scope of the consent they gave Trooper Byrd. The trial court granted the appellees' motion to suppress.
During the suppression hearing, Trooper Byrd stated that he believed he had probable cause to arrest appellees out on the highway. He stated that "for all intents and purposes" Mr. Guzman was under arrest when they left the highway and drove to the Sheriff's office. Trooper Byrd testified that he found probable cause to arrest in the combination of the conflict in appellees' stories, the fact that they had recently purchased a truck even though they were unemployed, the presence of a cellular telephone and CB radio in the truck, the disturbed bolts in the truck bed, and a change in Mr. Guzman's attitude when he was questioned about drugs.
In its sole point of error, the State argues that the trial court erred in suppressing the evidence because Trooper Byrd had probable cause to believe the vehicle was carrying contraband and the facts indicated that the bed of the truck had recently been removed. The State argues that appellees' consent was superfluous once Trooper Byrd determined that he had probable cause to search the truck. The State notes that, once law enforcement officers have probable cause to search a vehicle at the scene of a traffic stop, they may do so later at the police station without first obtaining a warrant, citing Cardenas v. State, 857 S.W.2d 707 (Tex. App.Houston [14th Dist.] 1993, pet. ref'd). Once Trooper Byrd had probable cause to believe that contraband was secreted in the bed and gas tank area of the truck, the State argues, he had the authority to remove the bed of the truck and subsequently break through the bondo seal on the gas tank in an effort to determine whether contraband was in fact present. The State cites Christopher v. State, 639 S.W.2d 932 (Tex.Crim.App.1982) and McCall v. State, 540 S.W.2d 717 (Tex. Crim.App.1976).
We do not find the State's argument persuasive.
A trial court's ruling on a motion to suppress evidence is reviewed for an abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993); Rivera v. State, 808 S.W.2d 80, 96 (Tex.Crim.App.1991). When reviewing such a ruling, we view the evidence in the light most favorable to the trial court's ruling. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Davis v. State, 829 S.W.2d 218, 220 (Tex.Crim.App.1992); State v. Mireles, 904 S.W.2d 885, 887 (Tex.App.Corpus Christi 1995, pet. ref'd).
The trial court is the sole judge of the credibility of the witnesses and the weight of their testimony at a suppression hearing. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.App.1990). An appellate court should not engage in its own factual review. Banda v. State, 890 S.W.2d 42, 51 (Tex.Crim.App. 1994). Instead, we consider only whether the trial court improperly applied the law to the facts. Id. If the record supports the trial court's findings, we will not disturb those findings. Id. (citing Johnson v. State, 803 S.W.2d 272, 287 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S. Ct. 2914, 115 L. Ed. 2d 1078 (1991)).
In the present case, the trial court issued the following findings of fact and conclusions of law:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
* * * * * *
The Court finds the defendants were occupying a Ford Ranger pickup on May *44 27, 1995, and were stopped in San Patricio County by Officer Jerry Byrd.
The Court finds that the officer making the stop reasonably believed and it was later determined, the defendants were operating a vehicle with illegal window tinting.
This observation by the officer justified the defendants' initial detention.
Through his conversation with the defendants the officer received or observed the following:
1. a mobile telephone in Blanca Guzman's purse.
2. determined Mr. Guzman was employed.
3. determined Mrs. Guzman was unemployed.
4. a portable radio or a portable CB in the vehicle.
5. determined a discrepancy in the defendants' statements concerning where they were going to reside in Houston, Texas.
6. observed a disturbed bolt in the bed of the pickup.
7. observed a noticeable change in the driver's attitude when drugs and drug offenses were mentioned.
After this information came into the officer's knowledge he requested a consent to search the vehicle and its baggage and contents. Mr. Guzman, the operator of the vehicle consented. Mrs. Guzman did not object.
The officer felt he had probable cause to believe the vehicle contained a controlled substance and had the authority to arrest the defendants. The defendants were not made aware of the officer's subjective opinion.
The Court finds the officer did not have probable cause to arrest the defendants at that time, but does not address that issue as the defendants voluntarily agreed to return to the Sheriff's office for a search of their vehicle.
At the Sheriff's Department a drug dog "alerted" to the passenger's side of the vehicle near the gas tank.
No evidence was introduced by the State to establish whether the contents of the pickup bed were still in the truck when the dog alerted. It is therefore unclear to the Court whether the dog alerted to the pickup or the contents in the back of the bed of the pickup.
At the Sheriff's Department the defendant, Eloy Guzman, was advised the bed of the pickup truck would be removed and he made no objection thereto. Mr. Guzman did not escort the officers to the garage where the bed was removed and therefore could no longer consent nor object to the officers activity.
No testimony was ever introduced at the Pre-Trial hearing to establish that the contents of the pickup truck contained any controlled substance.
The Court finds that when the bed of the pickup truck was removed, "bondo" was located on the top of the pickup's gas tank suggesting the presence of a secret compartment therein.
The Court further finds that the officer used a rubber mallet and brass chisel to tear a hole in the top of the vehicles gas tank.
The Court finds that the entry into the gas tank by the officer was occasioned by the probable cause.
The Court further finds, however, that the entry into the gas tank exceeded the scope of the consent authorized by the defendant in that any entry into the gas tank of a vehicle renders a vehicle inoperable and necessitates significant repairs before said vehicle can be safely operated.
Based upon the foregoing the Court finds the officer legally stopped the vehicle, the defendants agreed to return to the Sheriff's Department, the officer had probable cause to search the vehicle but the officer's search exceed [sic] the scope of consent given.
The Court finds that even though the officer possessed probable cause to search the vehicle that Article 1, Section 9 of the Texas Constitution and Fourth Amendment of the United States protects the gas tanks of the vehicle from being torn apart *45 by Law Enforcement Officers unless armed with a search warrant.
The Court finds this search took place on May 27, 1995. Since the search necessitated damaging property and rendering the Defendant's vehicle unsafe and inoperable for an indefinite period of time, a search without a warrant was unreasonable and the fruit of same are suppressed.
Whether a search or seizure is reasonable under the Fourth Amendment is an issue of law that the appellate court reviews de novo. Higbie v. State, 780 S.W.2d 228, 230 (Tex.Crim.App.1989); Gonzalez v. State, 869 S.W.2d 588, 591 (Tex.App.Corpus Christi 1993, no pet.). If a search or seizure is conducted without a warrant, it is presumed to be unreasonable, and the burden shifts to the State to prove its reasonableness. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim.App.1986).
A warrantless search must be strictly circumscribed by the exigencies which justify its initiation. Bass v. State, 732 S.W.2d 632, 635 (Tex.Crim.App.1987). The warrantless search of an automobile hinges on two factors: (1) probable cause and (2) exigent circumstances. See Gauldin v. State, 683 S.W.2d 411, 414 (Tex.Crim.App.1984). We agree with the trial court that Trooper Byrd did not actually have probable cause to search appellees' vehicle on the roadside, his subjective feelings notwithstanding. However, the trial court determined that the Guzmans voluntarily consented to travel to the Sheriff's office and have their vehicle searched there. We will not disturb this fact finding. Once at the Sheriff's office, the K-9 dog "alerted" to the gas tank area of the Guzmans' vehicle. When a peace officer possesses probable cause that a motor vehicle contains contraband or the instrumentalities of a crime, a valid search can be conducted in the area of the vehicle where the facts justify the officer's belief that such evidence is there concealed. See Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); Gill v. State, 625 S.W.2d 307 (Tex.Crim.App.1981); Borner v. State, 521 S.W.2d 852 (Tex.Crim.App. 1975). We agree with the trial court that once the drug dog alerted, Trooper Byrd had probable cause to search the vehicle for contraband, and that the removal of the pickup bed and the appearance of the gas tank gave him probable cause to enter into the gas tank.
However, probable cause is not the sole factor to be considered. In order to conduct a warrantless search, there must be not only probable cause but also exigent circumstances. In general, because a car is mobile, it may be lawfully searched without a warrant if the search is supported by probable cause to believe that the vehicle contains contraband or the instrumentalities of a crime. Chambers, 399 U.S. at 47-52, 90 S.Ct. at 1979-82; Delgado v. State, 718 S.W.2d 718, 722 (Tex.Crim.App.1986); Bustamante v. State, 917 S.W.2d 144, 146 (Tex. App.Waco 1996, no pet.) However, in the present case the car was no longer subject to being moved without the permission of law enforcement personnel. The vehicle was in the "sallyport" area behind the Sheriff's office in Sinton when the drug dog alerted. The Guzmans were not present at the service station when Trooper Byrd removed the truck bed and broke into the gas tank, but were rather at the Sheriff's office. Trooper Byrd testified that the Guzmans were not free to leave, although they were not formally arrested until after the marihuana was discovered. Once the drug dog alerted, Trooper Byrd could easily have obtained a search warrant, but he failed to do so. "[A vehicle] while in police custody could not be subject to the moving vehicle exception of Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925)." Maldonado v. State, 528 S.W.2d 234, 240 (Tex.Crim.App. 1975). We hold that, in the present case, there were no exigent circumstances present allowing Trooper Byrd to break into the gas tank of the vehicle without first obtaining a search warrant.
We do not believe that this case involves a single "continuous happening," as was the case in Borner, 521 S.W.2d at 856-57, and Taylor v. State, 421 S.W.2d 403 (Tex. Crim.App.1967). In both Borner and Taylor, the Court of Criminal Appeals upheld the *46 warrantless post-arrest search of the defendant's vehicle, at a place different from the traffic stop and out of the defendant's control, because the officers involved had probable cause to arrest the defendants for traffic violations and to search the defendants' vehicles at the roadside. See Borner, 521 S.W.2d at 855-56; see also Taylor, 421 S.W.2d at 406-07 (opinion on appellant's motion for reh'g). As stated in Taylor, the arrests were valid "and [were] merely the beginning of the unraveling of the legal ball of twine." Taylor, 421 S.W.2d at 407. In the present case, however, the trial court determined that Trooper Byrd did not have probable cause to arrest the Guzmans at the time of the roadside stop. It was only because of their consent to follow Trooper Byrd to the Sheriff's office in Sinton that probable cause to search the vehicle developed. Once at the Sheriff's office, Mr. Guzman was separated from the vehicle and was no longer able to protest the officers' dismantling of the pickup truck and breaking into the gas tank, rendering it undriveable. We find the case of Maldonado to be more closely on point. In Maldonado, the Court of Criminal Appeals determined that evidence should be suppressed when it was discovered during a general search of the vehicle at a different place from where the defendant was arrested, and while the defendant was in custody. Maldonado, 528 S.W.2d at 239-41. In that case, the Court of Criminal Appeals determined that "[t]he State's failure to obtain a search warrant cannot be excused." Id. at 239. We believe the same to be true in the present case.
Under the present circumstances, we cannot say that the trial court abused its discretion in suppressing the evidence. Appellant's sole point of error is overruled. The trial court's order suppressing the evidence is AFFIRMED.
NOTES
[1] Appellees' cases involve identical facts and questions of law, and are therefore considered in a single opinion. TEX.R.APP. P. 90(a).
[2] TEX. HEALTH & SAFETY CODE ANN. § 481.121 (Vernon Supp.1997).
[3] At the suppression hearing, Trooper Byrd stated that "SO" stands for "sheriff's office," and that it is an abbreviation he typically uses, although other people might think it means something else. However, the trial court found that the Guzmans voluntarily consented to follow Byrd to the Sheriff's office and have their vehicle inspected there. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621894/ | 13 So. 3d 1066 (2009)
BUCHANAN
v.
STATE.
No. 4D08-857.
District Court of Appeal of Florida, Fourth District.
July 29, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622612/ | 569 So. 2d 609 (1990)
STATE of Louisiana, Appellee,
v.
Lorenzo PEREZ, Appellant.
No. 21773-KA.
Court of Appeal of Louisiana, Second Circuit.
October 31, 1990.
*611 Jones, Charles & Gilmore by Arthur Gilmore, Jr., Monroe, for appellant.
William J. Guste, Jr., Atty. Gen., James A. Norris, Jr., Dist. Atty., Marcus R. Clark, John P. Spires, Asst. Dist. Attys., for appellee.
Before FRED W. JONES, Jr. and NORRIS, JJ., and LOWE, J. Pro Tem.
FRED W. JONES, Jr., Judge.
Defendant Perez, found guilty by jury verdict of conspiracy to distribute marijuana, La.R.S. 14:26 and La.R.S. 40:966, and possession of marijuana over 60 but less than 2000 pounds, R.S. 40:966(E)(1), was sentenced to two consecutive ten year terms. He appealed, attacking the sufficiency *612 of evidence upon which he was convicted and arguing the excessiveness of his sentence. Finding substantial evidence to support the jury's verdict, proper consideration and sufficient articulation of La.C. Cr.P. Art. 894.1 guidelines and that the sentence is not unconstitutionally excessive, we affirm.
Factual Context
In 1984-85 Victor Soto, who was incarcerated in a Texas federal penitentiary, met Augie Augustine and the two planned drug transactions to be executed upon their release. After their release, Augustine returned to his native country, Mexico, and Soto returned to New Orleans.
In April 1988 Soto and Augustine arranged a drug transaction. Augustine was to supply Soto with a large quantity of marijuana on a consignment basis with Soto agreeing to perfect the sale of and make payment for the marijuana "within a reasonable time". Pursuant to Augustine's instructions, Soto flew to Tucson, Arizona where he was contacted by Augustine's brother-in-law, defendant Lorenzo Perez. Defendant was in charge of the drug operation on the United States side of the border, being one step below Augustine in the organization's hierarchy. Once a sufficient quantity of marijuana was smuggled into the U.S. from Mexico, Soto, Perez and a third man, Rogillio, weighed and loaded 230 pounds of marijuana into Soto's car. After unsuccessful attempts at selling a portion of the marijuana in Las Vegas, Soto hired a driver, Thomas Sullivan, to pick up the marijuana in Las Vegas and drive it to New Orleans.
On April 25, 1988 while en route to New Orleans, Sullivan was stopped for a traffic violation on I-20 and arrested in Richland Parish. The arresting officer searched Sullivan's vehicle and discovered 96.6 pounds of marijuana in the trunk. Following his arrest Sullivan agreed to assume confidential informant status for the Louisiana State Police.
Feigning illness and inability to travel, Sullivan phoned Soto and successfully lured him to Monroe to pick up the marijuana. On April 26 Soto and an accomplice arrived at Sullivan's Monroe motel room. Soto called Augustine, who was in Mexico, from Sullivan's room, informed him of his driver's illness and advised he would be unable to travel to Mexico that day to meet the organization's required marijuana payment schedule. Then Soto and the accomplice entered the adjacent motel room where the marijuana had been stored and loaded it into Soto's vehicle. They were immediately arrested. Soto agreed to assume confidential informant status and assist law enforcement authorities in arresting higher-ups in the Mexican-American marijuana smuggling organization.
On May 4, under the direction of investigating police officers, Soto traveled to Mexico where he met with Augustine and discussed the money he owed and future narcotic deliveries. Over the next several weeks Soto spoke several times with Augustine and defendant over the phone and succeeded in delaying their collection efforts.
On May 14 Augustine, defendant and Rogillio made a surprise visit to New Orleans. Augustine, apparently concerned that Soto might have cheated them, advised Soto in defendant and Rogillio's presence that he wanted to see the marijuana or be paid the agreed $50,000 immediately. To pacify them Soto, with the assistance of narcotic officers, arranged to show them the marijuana.
On May 15 Sergeant James Cannon and another undercover officer met Soto and defendant in a hospital parking lot in Ferriday. Defendant was given the trunk key of the vehicle in which Sergeant Cannon had been traveling. The trunk contained the 96.6 pounds of marijuana which had been seized from Sullivan and additional marijuana which officers had added to make up the total poundage originally "fronted" to Soto. After inspecting only a portion of the marijuana, but apparently satisfied it was of identical quality and sufficient quantity as previously supplied Soto, defendant indicated he wanted to take the vehicle and marijuana to New Orleans. Because a release of the marijuana would mandate an immediate end to the investigation, *613 Soto and Sergeant Cannon successfully convinced defendant it would be dangerous to drive the marijuana to New Orleans. Defendant agreed to allow Soto additional time to sell the marijuana.
When Soto had not made payment by June 8, defendant informed him he would be picking up the marijuana and transferring it elsewhere for sale.
On June 9 defendant traveled by car to Monroe where Soto had told him the marijuana was being stored. Prior to his arrival, law enforcement officials stored the seized and supplemented marijuana in a mini-warehouse and gave Soto the key. Later that afternoon Soto, defendant and a companion traveled to the mini-warehouse where they were met by Sergeant Cannon. After examining the marijuana, defendant locked the door to the warehouse, put Soto's key in his pocket, and drove Soto to the Monroe airport.
On the afternoon of June 10, Joe Hardeman and Charles Pankey arrived in Monroe. Defendant and Hardeman traveled to the storage facility and loaded the marijuana into a freezer in the back of Hardeman's truck. When defendant and Hardeman arrived at Eastgate Shopping Center, where Pankey and Mauricio Lopez were waiting for them, the four were arrested. The seized and supplemented marijuana was recovered by Louisiana State Police Officers pursuant to a valid search.
On July 25, 1988 a bill of information was filed charging defendant with possession of marijuana in excess of 60 but less than 2000 pounds, and conspiracy to distribute marijuana. Trial commenced on October 23, 1989. The State presented the testimony of Soto, Hardeman, law enforcement officials involved in the operation and a forensic chemist. Exhibits including tapes of recorded telephone conversations and photographs indicating defendant's involvement in the drug organization were also introduced. The defense presented no evidence. The jury returned guilty verdicts on both counts.
Defendant first assigns as error the insufficiency of the evidence to support the jury's verdict on either the conspiracy or possession charge. In assessing the sufficiency of evidence to support a conviction, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier-of-fact could have found defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1977).
Conspiracy To Distribute Marijuana
The bill of information filed against defendant charged that he did willfully and unlawfully conspire with Hardeman, Pankey, Lopez and others between the dates of April 1, 1988 and June 10, 1988 to distribute marijuana. Conspiracy to commit a crime is an inchoate offense separate and distinct from the completed criminal act. The state's burden in proving that defendant committed conspiracy to distribute marijuana is that it must show that an agreement or combination of two or more persons existed for the specific purpose of distributing marijuana and that one or more parties to the agreement did an act in furtherance of the agreement's object. La. R.S. 14:26; State v. Richards, 426 So. 2d 1314 (La.1982); State v. Brown, 398 So. 2d 1381 (La.1981). An overt act need not be an unlawful act; it may be any act, however innocent in itself, accompanying or following the agreement, which is done in furtherance of its object. State v. Richards, supra; State v. Rittiner, 341 So. 2d 307 (La.1976). The elements of conspiracy may be proven by direct or circumstantial evidence. State v. Brown, supra.
Hardeman testified he reached an agreement with defendant to pick up marijuana in Monroe and take it to Texas for distribution. Hardeman stated he went to Monroe on June 10, met with defendant, accompanied him to the warehouse where the marijuana was stored and assisted him in loading it into Hardeman's truck. The two then met Pankey and Lopez who were waiting for them at the Eastgate Shopping Center and were aware of the proposed and ongoing transactions. The testimony of Soto and several surveillance officers as well as photographic exhibits corroborated *614 Hardeman's testimony. This evidence shows beyond a reasonable doubt that defendant conspired with Hardeman, Pankey and Lopez to distribute marijuana and that overt acts were performed in furtherance of the conspiracy.
Defendant correctly argues there could be no criminal conspiracy between himself and Soto as Soto was acting as an agent for the State. State v. Joles, 485 So. 2d 212 (La.App. 2d Cir.1986). However, defendant fails to appreciate the criminal significance of his actions in connection with Soto prior to Soto's agreement to assume confidential informant status following his arrest on April 25, 1988. Soto testified he had met defendant in Tucson, at Augustine's instruction, in early April and procured 230 pounds of marijuana from him. He described how defendant and Rogillio weighed out the marijuana and assisted him in loading it into his vehicle. He stated that the marijuana was given to him on consignment to be paid for after its distribution. Soto agreed to pay defendant for the marijuana in weekly or bi-weekly increments, with payment in full owed within 30 days. Soto divided the marijuana between two drivers who transported it out of Tuscon. He admitted that he unsuccessfully attempted to sell the marijuana in Las Vegas and ultimately had to retrieve 96.6 pounds of it. Because he had originally been provided with 230 pounds, it is reasonable to infer that he distributed approximately 134 pounds of marijuana. The evidence shows beyond a reasonable doubt that an agreement was reached between defendant, Soto, Augustine and Rogillio to distribute drugs and that overt acts were taken in furtherance of that conspiracy prior to Soto's assuming police agent status.
Viewing the evidence in the light most favorable to the prosecution, a reasonable trier-of-fact could have found all essential elements of the crime of conspiracy to distribute marijuana proven beyond a reasonable doubt.
Possession of Marijuana
Defendant argues the evidence is insufficient to sustain the conviction for possession of marijuana over 60 pounds, but less than 2000 pounds. Defendant contends that his possession of the key to the warehouse in which the marijuana was stored is insufficient to constitute possession of the contents of the warehouse. He further argues he was unaware that the substance he removed from the warehouse and loaded onto Hardeman's truck was marijuana.
To prove a violation under La. R.S. 40:966(A), (E)(1), the State must show that defendant knowingly possessed in excess of 60 pounds of marijuana. Possession may be either actual or constructive. Actual possession means having an object in one's possession or on one's person in such a way as to have direct physical contact and control of the object. Constructive possession means having a relationship with an object such that it is subject to one's dominion and control. State v. Sweeney, 443 So. 2d 522 (La.1983). A person may be in constructive possession of a controlled dangerous substance even though it is not in his actual physical custody if he willingly and knowingly shares with another a right to control it. State v. O'Neal, 501 So. 2d 920 (La.App. 2d Cir.1987), writ denied, 505 So. 2d 1139 (La.1987). Guilty knowledge and intent may be inferred from the circumstances of the transaction. State v. Edwards, 354 So. 2d 1322 (La. 1978).
Law enforcement officers testified they placed a substance known to them to be marijuana and weighing approximately 230 pounds into the storage warehouse and locked it inside. The testimony of a forensic chemist and a certificate of analysis established that the substance was marijuana. The chemist's testimony corroborated the marijuana's weight was in excess of 60 pounds.
The evidence shows defendant was in physical possession of the marijuana and was aware of the identity of the substance he possessed. Sergeant Cannon testified that defendant twice examined the marijuana in his presence, even opening one of the bags on at least one occasion. Hardeman testified that he and defendant discussed picking up the marijuana and that he traveled *615 with defendant to the storage warehouse where defendant unlocked the warehouse with a key in his possession and physically handed the bags containing marijuana to Hardeman to be put onto the truck. Sergeant Cannon, Trooper Robert Buckley, Sergeant John Fragala and FBI agent John Tanza testified they observed defendant open the door to the warehouse and assist Hardeman in loading the freezer on the back of Hardeman's truck. Fragala and Tanza specifically stated they saw the bags in defendant's hand. Further, Soto and other officers involved with earlier stages of the investigation and recordations of telephone conversations, confirmed defendant was aware that the substance which he possessed was marijuana.
Viewing the evidence in the light most favorable to the prosecution, a reasonable trier-of-fact could have found all essential elements of the crime of possession of marijuana in excess of 60 pounds proven beyond a reasonable doubt.
By defendant's second and third assignments of error he asserts the excessiveness of his sentence, challenging its constitutionality and the trial court's compliance with La.C.Cr.P. Article 894.1. Defendant was sentenced to 10 years at hard labor for each of his two convictions, with the sentences to run consecutively. The court later amended the sentence in compliance with La.R.S. 40:966(F) by ordering that defendant serve the first five years of his sentence for the possession of marijuana conviction without benefit of probation, parole or suspension of sentence.
In reviewing the sentence imposed by the trial court, this court is obliged to review the trial court's compliance with the provisions articulated in La. C.Cr.P. Article 894.1. State v. Hammonds, 434 So. 2d 452 (La.App. 2d Cir. 1983), writ denied, 439 So. 2d 1074 (La. 1983). Articulation of the factual basis for a sentence is the goal of the article, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed remand is unnecessary even where compliance with La.C.Cr.P. Article 894.1 is incomplete. State v. Lanclos, 419 So. 2d 475 (La.1982). Important elements which should be considered are the defendant's personal history, prior criminal record, likelihood of rehabilitation and the seriousness of the offense committed. State v. Jones, 398 So. 2d 1049 (La.1981); State v. Hudgins, 519 So. 2d 400 (La.App. 2d Cir.1988), writ denied, 521 So. 2d 1143 (La.1988).
In imposing sentence upon the 45 year-old defendant, the trial court stated it had reviewed the presentence investigation report and found as mitigating factors defendant's honorable discharge from the Mexican army and his steady employment record. Defendant, who was divorced and the father of three children, was residing with a female companion who was dependent upon him financially. Defendant is a high school graduate with two years of vocational training. As aggravating factors the court cited defendant's age, his "very poor choice of friends" and the substantial evidence indicating defendant willingly involved himself with the large scale importation of drugs into the United States. Although defendant was a first felony offender, the court determined that the seriousness of the offense mandated incarceration. Compliance with La.C.Cr.P. Article 894.1 was adequate.
A sentence must also be examined for constitutional excessiveness. A sentence violates La. Const. Art. 1 § 20 (1974) if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Bonnano, 384 So. 2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it is so disproportionate as to shock the sense of justice. State v. Hogan, 480 So. 2d 288 (La.1985). The trial court has wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Square, 433 So. 2d 104 (La.1983); State v. Brooks, 431 So. 2d 865 (La.App. 2d Cir.1983). The trial court is *616 not required to render a suspended sentence or probation on a first felony offense and may consider whatever factors and evidence it deems important to a determination of the best interest of the public and defendant. State v. McKethan, 459 So. 2d 72 (La.App. 2d Cir.1974).
In support of his claim that the sentence is constitutionally excessive, defendant refers the court to the sentences of his co-conspirators who received lesser sentences than he. Disparity of sentences between co-defendants involved in the same crime does not render a sentence disproportionate if the nature of defendant's participation or his character or propensities differ significantly from those of his confederates. State v. Burton, 541 So. 2d 329 (La. App. 2d Cir.1989). Although a co-defendant's sentence is a factor to be considered, it is not controlling. State v. Rogers, 405 So. 2d 829 (La.1981); State v. Bridges, 480 So. 2d 926 (La.App. 2d Cir.1985), writ denied, 486 So. 2d 732 (La.1986). Adequate consideration must be given to the individual circumstances of the charged offenses, the varying levels of individual involvement and different judges imposing sentences. State v. Quimby, 419 So. 2d 951 (La.1982).
The evidence indicates defendant's involvement in the drug organization was significantly more substantial than that of his co-conspirators who received lesser sentences. Defendant was the original supplier of the marijuana which was the subject matter of this criminal litigation and had authority to accept payment for and make decisions regarding the marijuana's distribution. Further, as the trial court pointed out, different judges sentenced these defendants.
Defendant faced a total exposure of 30 years imprisonment and $57,500 in fines. Under the circumstances of this case, we cannot say the trial court abused its discretion in imposing the two 10 year prison sentences. See La.C.Cr.P. Article 883; State v. Thompson, 543 So. 2d 1077 (La. App. 2d Cir.1989), writ denied, 551 So. 2d 1335 (La.1989).
Decree
For the foregoing reasons, defendant's convictions and sentences are AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1563340/ | 558 S.W.2d 296 (1977)
STATE of Missouri, Plaintiff-Respondent,
v.
Connie BIVENS, Defendant-Appellant.
No. 38527.
Missouri Court of Appeals, St. Louis District, Division Three.
September 20, 1977.
Motion for Rehearing and/or Transfer Denied November 14, 1977.
*297 Mary Elizabeth Dockery, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
*298 GUNN, Judge.
Defendant was convicted by a jury of first degree robbery with a dangerous and deadly weapon. Section 560.135 RSMo Supp.1975. Under the Second Offender Act the trial court sentenced him to 35 years imprisonment. Defendant's appeal charges that the pretrial identification procedure was so unduly suggestive as to deny him due process of law and that the subsequent in court identification of him was not shown to have an independent basis from the alleged maculated pretrial identification. Defendant also asserts that there was improper prosecutorial cross-examination of one of the defense witnesses. Defendant's charges are devoid of merit; we affirm the conviction.
Defendant was positively identified as the perpetrator of a sawed-off shotgun robbery at a St. Louis office of the Missouri Department of Revenue. In the early afternoon of February 13, 1976, two men armed with sawed-off shotguns entered the crowded Revenue office. The two men, one identified as the defendant, unobtrusively approached the bank of cashiers' windows and in a well synchronized gambit absconded with nearly $6,000 of State funds within a time period lasting from one to four minutes. Due to the celerity with which the robbers performed their evil task, they were able to escape before the long queues of people realized that a crime had been committed. However, at least one customer and three Revenue employees clearly observed the defendant wield and thrust his lethal weapon as he forced cashiers to give money to him.
The three Revenue Department employees, who were the victims of defendant's actions and who had undergone the frightening experience of having defendant's ugly weapon thrust at them, had a clear and unobstructed view of defendant as he performed his unlawful activities. Two employees identified defendant at a police lineup two days after the robbery. The third employee identified defendant at a police lineup about one week after the robbery. Approximately four months after the robbery, the customer was asked by the Circuit Attorney's office to view a photograph of a police lineup composed of five men. Upon seeing the photograph, the customer unhesitatingly and unequivocally identified the defendant as the robber he had observed in the Revenue office.
All four eyewitnesses positively identified the defendant at trial, even though at his counsel's request defendant was seated among the spectators in the courtroom rather than at the counsel table.
Defendant's defense was alibi that he was elsewhere at the time of the robberya defense which the jury refused to believe.
Defendant argues that the trial court erred in denying his motion to suppress identification testimony, because, under the circumstances, the pretrial identification procedures were so unduly suggestive as to deny him due process of law; that the trial court erred in permitting the subsequent in court identifications, because they were the product of the suggestive pretrial confrontations. Defendant asserts as the basis for his charge of undue suggestiveness the following:
"a. There was not a very good or long opportunity to view the robber;
b. The witnesses did not have their attention focused on the person of the robber at the time of the crime;
c. None of the witnesses gave a description of the robber to the police at the scene of the crime;
d. In at least one instance, several months passed between the time of the crime and the confrontation;
e. In all cases witnesses viewed the lineup believing that the line-up would contain the robber."
It is obvious that none of these factors, except the last, is in any way related to the suggestiveness of the lineup procedure. Rather, factors (a) through (d) relate to the opportunity of the identifying witnesses to observe and remember the physical features of the robberthe certainty of the identification. Circumstances relating *299 to the certainty of the identification affect only the credibility of the witnesses' testimony and not the admissibility. State v. Bevineau, 552 S.W.2d 67 (Mo.App.1977); State v. Davis, 529 S.W.2d 10 (Mo.App.1975). Such factors are, however, relevant in determining whether the witnesses' in court identification has an independent basis once it is shown that the pretrial confrontation was unconstitutionally tainted. See Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). State v. White, 549 S.W.2d 914 (Mo.App.1977); State v. Davis, 547 S.W.2d 482 (Mo.App.1976). We must first, therefore, examine the pretrial confrontations to determine if they were so suggestive that an independent basis must be shown to support the in court identifications. State v. Barnes, 537 S.W.2d 576 (Mo.App.1976).
We have reviewed the testimony of the identifying witnesses regarding the circumstances surrounding the pretrial confrontations, as well as the color photograph of the questioned lineup, and we find that there was no undue suggestiveness.
In determining whether a pretrial confrontation between the accused and the identifying witnesses is so tainted by suggestive factors as to violate the accused's right to due process of law, we view the totality of circumstances surrounding the confrontation. Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Macon, 547 S.W.2d 507 (Mo.App.1977); State v. Murphy, 508 S.W.2d 269 (Mo.App.1974). Each case must be judged on its own facts to ascertain if the confrontation was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Neil v. Biggers, supra; State v. Parker, 458 S.W.2d 241 (Mo.1970); State v. Davis, supra.
Defendant makes no claim that the police, the prosecutor or anyone else tried to prompt, cajole or otherwise influence the identifying witnesses at the lineup or at the subsequent photographic viewing by the customer. It is clear from the testimony of the identifying witnesses regarding the circumstances of the pretrial confrontations that such a claim would be totally unavailing. It is evident from ocular examination of the color photograph of the lineup that each participant, though not identical to each other, is very similar in appearance. Each man is of medium build and dressed in casual clothing. Each has facial hair, and three have beards. All appear to be of approximately the same age. It is true that defendant is the shortest of the five participants, however, the disparity in height is neither great nor obvious and affords no basis for relief for defendant. See State v. Proctor, 535 S.W.2d 141 (Mo.App.1976); State v. Jones, 528 S.W.2d 14 (Mo.App.1975).
Mere showing of minor dissimilarities in physical appearance of lineup participants is insufficient to establish impermissible suggestiveness. State v. Gillum, 540 S.W.2d 167 (Mo.App.1976). Persons in a lineup will never be identical to one another. The law does not require exact conformity to ensure an untainted identification procedure. State v. Proctor, supra. The participants in a lineup need only be reasonably similar to one another so that no one individual clearly stands out from the rest. State v. Davis, supra; State v. Dayton, 535 S.W.2d 479 (Mo.App.1976). "Police stations are not theatrical casting offices; a reasonable effort to harmonize the lineup is normally all that is required." United States v. Lewis, 547 F.2d 1030, 1035 (8th Cir. 1976). And here, the individuals comprising the lineup tableau were rather uniform in appearance; the lineup was fair and comported with necessary standards, State v. Davis, supra.
Defendant's claim that the lineup was tainted because "(e) [i]n all cases witnesses viewed the lineup believing that the lineup would contain the robber," does not provide a basis for finding the lineup to be improper. It is only natural that victims of a crime asked to view a lineup would suspect it would contain the criminal. Such suspicion or expectation in the absence of other suggestive factors will not render the *300 lineup constitutionally infirm. See State v. Armbruster, 541 S.W.2d 357 (Mo.App.1976).
Even if we were to assume there had been some undue suggestiveness in the pretrial confrontation, the in court identifications of the four eyewitnesses were shown to be firmly grounded on their observation of defendant at the time of the robbery. Where an in court identification is based on personal observation independent from any pretrial confrontation, such in court identification is proper and admissible. State v. Taylor, 456 S.W.2d 9 (Mo.1970); State v. Johnson, 522 S.W.2d 106 (Mo.App.1975). Each identifying witness had an unobstructed view of the robber for periods ranging from fifteen seconds to over one minute, from a distance of only three feet or less. Under these circumstances there was ample time for the robber's appearance to be impressed upon the witnesses' memory. See e. g., United States v. Mooney, 417 F.2d 936 (8th Cir. 1969) (witness observed criminal for 15 seconds on 14 inch television screen); State v. Young, 534 S.W.2d 585 (Mo.App.1976) (witness observed criminal for 3 seconds at a distance of 30 feet); State v. Davis, 530 S.W.2d 709 (Mo.App.1975) (witness observed criminal for 10 seconds at a distance of 8 feet).
The fact that the victims of the crime were affected emotionally by the robber's assault on their persons with a deadly weapon does not render their identification inadmissible so long as the emotional reaction was not of "such a degree as to impair (their) testimonial competency as a matter of law," State v. Armbruster, supra at 361. The record gives no indication of such impairment, and, in fact, all testimony by the eyewitnesses is to the contrary. Both the pretrial and the in court identifications were properly admitted into evidence.
Defendant's second allegation of error is that the trial court improperly denied his motion for a mistrial after allegedly improper and prejudicial cross-examination of one of his alibi witnesses, Rose Nance. On direct examination, the witness testified that defendant was at her apartment on morning and afternoon of the robbery. On cross-examination the Assistant Circuit Attorney asked if one week prior to the trial she had spoken to his investigator and told him she did not want to testify. Her response was:
"A. I did tell him that. I did not want to be involved, I did not want to testify.
"Q. Did you mention a specific reason?
"A. Yes, because I told him I don't like to be involved in things like that, and when you testify sometimes it causes a lot of trouble, and I don't want to be involved because I have to raise four children.
"Q. Did you tell him that you didn't want to testify because you knew that Connie Bivens was good for this robbery?
"MR. COFMAN: [Defendant's counsel] I will object to that.
"THE WITNESS: No, I didn't."
At this juncture, defendant's counsel moved for a mistrial. His objection to the testimony was sustained, and the jury was instructed to disregard the question. The motion for a mistrial was denied. Immediately prior to the objection the Assistant Circuit Attorney in response to a similar objection explained out of the hearing of the jury that the witness "told my investigator she didn't want to testify because everybody knew he was good for the robbery and she was going to try to avoid it and try to be gone so she wouldn't have to testify." The prosecutor explained that he was offering the testimony to show interest, bias and prejudice and that the testimony was elicited to test the witness' credibility.
Defendant asserts that the logical inference from the line of questioning was that "in light of the witness' earlier statement that she did not want to testify because testifying might cause trouble for herself and her children, was that someone on appellant's behalf had threatened the witness." We believe that such an inference is remote and not the sort of direct, improper *301 and prejudicial comment that would require declaration of a mistrial. See State v. Hicks, 535 S.W.2d 308 (Mo.App.1976).
Judgment affirmed.
KELLY, P. J., and WEIER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622137/ | 853 So.2d 559 (2003)
Douglas PEEBLES, M.D., Gerry Baran, M.D., Alan Ast, M.D., Monte Bernstein, M.D., Robert Chaikin, M.D., Karen Chesire, M.D., Michael Horn, M.D., Neil E. Ross, M.D., Gary Karch, M.D., and Paul Pavilack, M.D., Appellants,
v.
SHERIDAN HEALTHCARE, INC., Mitchell Eisenberg, M.D., Lewis D. Gold, M.D., Jay A. Martus, Esq., Levey & Martus, P.A., and Levey, Martus & Gilbert, P.A., Appellees.
No. 4D02-172.
District Court of Appeal of Florida, Fourth District.
September 3, 2003.
*560 Edna L. Caruso of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, Garry W. O'Donnell of Adorno & Yoss, Boca Raton, and John P. Kelly of Lorusso & Loud, Fort Lauderdale, for appellants.
Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, William Scherer and James F. Carroll of Conrad & Scherer, Fort Lauderdale, for appellees.
ON MOTION FOR CLARIFICATION
KLEIN, J.
We withdraw our opinion filed on July 16, 2003 and substitute the following opinion.
After a group of twenty-five anesthesiologists sold their practice to a management company which retained them as employees, ten of them sued their former president, their lawyer, and others, alleging fraud, breach of fiduciary duty, conspiracy, legal malpractice, and securities violations. Although the jury found for plaintiffs on some of the counts, it did not find any of the defendants guilty of fraud. The trial court then concluded that the counts on which the plaintiffs recovered were barred as a matter of law by the documents plaintiffs signed which included broad releases. The plaintiffs appeal and we affirm.
The physicians were practicing as Southeastern Anesthesia Management Associates, Inc. (SAMA), some of them owning Class A stock and others Class B. Dr. Eisenberg was the president and managed the practice, and Attorney Jay Martus was the general counsel. SAMA was sold through a venture capital firm, T.A. Associates, to a newly created entity, Sheridan Healthcare, Inc. The purchase price was $45 million and, out of the net proceeds of the sale, each Class A shareholder received $1,881,000 and each Class B shareholder received $1,250,000.
The physicians on the whole did not receive stock in the new entity, but did have employment agreements with it. Ten of them brought this lawsuit after discovering that Dr. Eisenberg, Martus, and several others were involved in the management of the new entity, and had received shares of stock in the new entity in varying amounts which totaled 18.5 percent. The essence of their claim was that they had been led to believe by the defendants that everyone was receiving the same deal in the buyout, that all would have the same chance to be involved in management and own stock in the new entity, and that these representations were false. In addition to Dr. Eisenberg and Martus, plaintiffs sued another physician, Lewis Gold and the new owner of the practice, Sheridan.
Count I alleged violations of Florida's Securities and Investment Act, Chapter 517, Florida Statutes. Count II alleged fraud in the inducement. Count III alleged conspiracy. Count IV alleged breach of fiduciary duty, and Count V alleged legal malpractice against Martus. The jury found Dr. Lewis and Sheridan not guilty on all counts. It found Dr. Eisenberg and Martus guilty on Count I, securities violations, Count III, conspiracy, Count IV, breach of fiduciary duty and against Martus on Count V, malpractice. None of the defendants were found guilty on the count alleging fraud in the inducement.
On post trial motions the trial court ruled that the claims on which verdicts were returned for plaintiffs were barred by the documents signed by plaintiffs.
*561 The essence of the court's holding was that, regardless of what plaintiffs had been led to believe prior to the sale of the practice, the documents they signed in order to receive their share of the buyout not only released the defendants, but also made known to them that Dr. Eisenberg and others would be involved in the management of the new company and receive stock.
The stock purchase agreement signed by each of the plaintiffs explained that Dr. Eisenberg would, and others could be involved in the management of, and receive stock in, the new entity:
(b) Each Seller ....(iv) understands and acknowledges that certain members of management of SAMA selected by the Board of Directors of the Company [SAMA Holdings, Inc.] in its sole discretion, which members of management shall include Dr. Mitchell Eisenberg and may include several physicians and non-physician administrators or other professionals currently employed, or engaged in the future, by SAMA, its Subsidiaries or AMSA, PC (each, a "Manager"), are expected to be offered stock, options, incentive compensation and/or other interests in the Company to which the Seller will not be entitled unless he is selected as Manager and are expected to enter into employment agreements on terms that may be substantially different from the terms of the employment agreements referenced in Section 7.01(1) hereof, (v) understands and acknowledges that he has received no guarantee, promise or assurance, and (except for Dr. Eisenberg) has no understanding or expectation, that he will be named as a Manager, and (vi) understands that the prospects of SAMA, its Subsidiaries, AMSA, PC and the Company and the value of SAMA, its Subsidiaries, AMSA, PC and the Company may improve significantly and that he will not participate in any such improvement after the sale of Shares hereunder (unless he is a Manager, in which case the terms of his participation will be as set forth in the Investment Agreement (as defined in Section 7.01(n)) ...
In addition, plaintiffs each acknowledged that they had "not relied upon any representations, warranties or agreements of any person other than those set forth in this Agreement."
And, the releases provided that each plaintiff:
releases and discharges the Company [Sheridan] ... and each of the present and former stockholders, directors, officers, employees, attorneys and agents of the Company, SAMA ... from any and all ... claims and causes of action both in law and in equity ... in connection with the SAMA transaction.
Viewing the evidence in a light most favorable to plaintiffs, and therefore assuming that misrepresentations were made prior to the signing of the releases and other documents, those documents, which are clear and unambiguous, preclude plaintiffs' claims as a matter of law.
In Hillcrest Pacific Corp. v. Yamamura, 727 So.2d 1053, 1056 (Fla. 4th DCA 1999), the plaintiff had purchased a golf course for over $9 million. Plaintiff later sued a real estate broker and others for failing to reveal that the seller was only seeking to net $6.2 million, and had agreed to pay any amount over and above that as finder's fees or commissions. In holding that the complaint did not state a cause of action for fraud in the inducement, breach of fiduciary duty, and conspiracy, we explained:
In this case, the Agreement plainly contradicts the allegations of the complaint and is fatally inconsistent with *562 Pacific's claim of fraud in the inducement. Although Pacific alleges that the appellees misrepresented the "price" of the Property, the price is clearly stated in the Agreement. Furthermore, the Agreement contains an integration clause that expressly extinguishes all prior negotiations and "sales pitches." A party cannot recover in fraud for alleged oral misrepresentations that are adequately covered or expressly contradicted in a later written contract. See Englezios v. Batmasian, 593 So.2d 1077 (Fla. 4th DCA 1992); Greenwald v. Food Fair Stores Corp., 100 So.2d 200 (Fla. 3rd DCA 1958). (Emphasis supplied.)
The claims for security violations, conspiracy, breach of fiduciary duty, and malpractice in the present case are all based on claims which are plainly contrary to the information provided plaintiffs in the stock purchase agreements and are barred for the same reasons that the fraud claim was barred in Yamamura. In addition to knowing who would or could own stock and be in management of the new company, before they agreed to the buyout, plaintiffs also released the corporation and the individuals they sued from the claims they made in this case.
Plaintiffs argued that Martus is not protected by the release because he is an attorney, relying heavily on Kenet v. Bailey, 679 So.2d 348 (Fla. 3d DCA 1996). That case is distinguishable in that there a lawyer, who at no time had any claim to funds being held in his trust account, converted the funds to his own use. The lawyer then claimed that a release, executed when a limited partnership, in which the lawyer and the client had an interest, was dissolved, barred the client's claim to the client's own funds. Not surprisingly the court saw through this subterfuge and held that the release involving the dissolution of the limited partnership had nothing to do with the trust funds. Kenet is accordingly not on point.
The factual basis for the claims against Martus for malpractice and breach of fiduciary duty involved an alleged conflict of interest as a result of his relationship with both the buyer and the seller, nondisclosure of his future position with the buyer, and conspiracy with Dr. Eisenberg to orchestrate a buyout on unfair terms. The release, however, clearly covers all acts by Martus as attorney and agent arising out of his conduct in the transaction. Argyle Capital Mgmt. Corp. v. Lowenthal, Landau, Fischer & Bring, P.C., 261 A.D.2d 282, 690 N.Y.S.2d 256 (N.Y.App.Div. 1999)("agents" identified as released parties under release included counsel to the parties to investment, thus counsel and other agents were shielded by the release from any liability for legal malpractice); Doyle v. Shlensky, 120 Ill.App.3d 807, 76 Ill.Dec. 466, 458 N.E.2d 1120 (1983); see also Cerniglia v. Cerniglia, 679 So.2d 1160 (Fla.1996)(where the language of a release is clear a court cannot entertain evidence contrary to the plain meaning of the release).
This case is distinguishable from cases such as The Florida Bar v. Jordan, 705 So.2d 1387 (Fla.1998) and The Florida Bar v. Nemec, 390 So.2d 1190 (Fla.1980), in which lawyers had improperly attempted to settle malpractice claims directly with clients without advising the clients to seek independent counsel. First, there was no malpractice claim existing in the present case, when the releases were signed. Second, in Jordan and Nemec there were only two parties, the lawyer and the client, while in the present case the parties included five corporations, all of the stockholders of two of the corporations, but the lawyer, Martus, was not a party. In addition, as we noted earlier, the claims asserted *563 against Martus were all inconsistent with the acknowledgments contained in the stock purchase agreements.
In the present case, when plaintiffs signed the documents they knew that Dr. Eisenberg and other physicians, which might not include them, could receive preferential treatment in the new company. They also knew that Martus could have a position with the new company. If this was not acceptable, plaintiffs should not have signed on. They cannot now claim that they relied on prior representations which were contrary to what was plainly explained in the documents.
Affirmed.
SHAHOOD and TAYLOR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622141/ | 853 So.2d 814 (2003)
Christopher Lee BRYANT, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2001-KA-01299-COA.
Court of Appeals of Mississippi.
June 3, 2003.
Certiorari Denied August 28, 2003.
*816 Rex K. Jones, Hattiesburg, attorney for appellant.
Office of the Attorney General by Scott Stuart, attorney for appellee.
EN BANC.
MODIFIED OPINION ON MOTION *817 FOR REHEARING[1]
SOUTHWICK, P.J., for the court.
¶ 1. Christopher Lee Bryant was convicted of burglary, forcible sexual intercourse, and sexual battery by a circuit court jury. On appeal, Bryant argues that the lower court erred in denying the suppression of his confession, that the verdict was contrary to the overwhelming weight of the evidence, and that the State failed to prove the forcible sexual intercourse charge beyond a reasonable doubt. We do not agree with these assertions and affirm.
STATEMENT OF FACTS
¶ 2. On the evening of February 4, 2000, the victim L.B. completed her work-out at the YMCA in Hattiesburg. As she drove home, she noticed in her rear-view mirror a vehicle with unusual headlights, one bright and one dim, speeding past other motorists. When the vehicle got directly behind her, L.B. slowed so it could pass. The vehicle similarly slowed. L.B. pulled off into a familiar neighborhood. The truck, later identified as Bryant's, did not follow.
¶ 3. L.B. went home, ate, and began a bath. While bathing, L.B. heard the front door of her mobile home being kicked in. Bryant entered. He choked her and held her head under water. Bryant then raped L.B., blindfolded her, and forced her to perform oral sex on him. Bryant repeatedly threatened to kill L.B. if she looked at him. Bryant then put L.B. into a closet and left.
¶ 4. L.B. hastily dressed and went to a neighbor's house for safety. Her neighbor called police and the two waited for assistance. L.B. was taken to the emergency room and an examination for evidence of rape was conducted. L.B. gave police a physical description of her assailant.
¶ 5. Bryant was subsequently arrested and confessed to the crimes. At trial, L.B. identified Bryant as her attacker, recalling that he had spoken to her once before as she unloaded groceries in her apartment complex. Bryant was convicted after a three day trial, and sentenced to a total of one-hundred years based on his status as an habitual offender.
DISCUSSION
A. Confession
¶ 6. Bryant contends that the confession that he gave to authorities was improperly allowed into evidence during trial. Bryant submits that despite invoking his right to counsel, police denied him the opportunity to speak with his attorney. Bryant further argues that the waiver and confessions which followed were not voluntary and that the State failed to meet its burden in proving Bryant's voluntariness when it failed to produce one of the investigators as a witness.
¶ 7. When authorities arrived at Bryant's residence, they were operating under a valid arrest warrant for an unrelated traffic violation. Bryant's mother allowed police into the house and escorted them to Bryant's bedroom. Bryant was placed under arrest and handcuffed. Police informed him that he was also a suspect in the sexual assault case. Bryant was then read an explanation of his constitutional rights. Police obtained consent to search both Bryant's bedroom and his vehicle, yielding evidence of the clothes and the unusual headlights described by L.B.
¶ 8. As Bryant was escorted to an officer's car to be taken to the police station, Bryant asked his mother to contact Tracy *818 Klein, his attorney. Investigators heard this exchange. Detective Rusty Keyes told Bryant's mother to have Klein contact him at the station. Bryant's mother called Klein, who informed her that he would not represent Bryant on these charges. Klein said that, as a courtesy to the family, he would contact Keyes to find out "what they had on him." The parties dispute the number and sequence of phone conversations between Klein and Keyes, but it is clear that at some point Klein informed Keyes that he declined representing Bryant, and that Keyes informed Klein that Bryant had "given it up," which was explained to mean that he had confessed.
¶ 9. Bryant had been taken to the police station and secured in a room for several minutes while Keyes participated in a detectives' meeting. Keyes then spoke with Klein before entering the room where Bryant was detained. Keyes testified that he told Bryant that attorney Klein would not represent him. Bryant responded, "Well, there are some things I need to tell you, that I'm responsible for those two rapes of those girls." Keyes again recited the appropriate warnings, and Bryant confessed to the crimes.
¶ 10. Bryant has a constitutional right to counsel:
If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The circumstances surrounding Bryant's confession raise several important questions, which we address separately.
(1) Did Bryant successfully invoke his right to counsel?
¶ 11. The evidence suggests that Bryant did not directly inform the police that he was asserting his constitutional right to counsel. Rather, he directed his mother to contact his attorney, Tracy Klein. An "`assertion' means some kind of positive statement or other action that informs a reasonable person of the defendant's `desire to deal with the police only through counsel.'" Genry v. State, 735 So.2d 186, 196 (Miss.1999) (citing Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)). Here, Detective Keyes admitted overhearing Bryant's directive; indeed, Keyes told Bryant's mother to have Klein contact him at the police station. We find that a reasonable person would understand Bryant's intent to deal with police only through counsel. We therefore find that Bryant successfully invoked his right to counsel. Once this right is invoked, any interrogation "must cease until an attorney is present." Minnick v. Mississippi, 498 U.S. 146, 150, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990).
(2) Was Bryant being interrogated when he supplied his confession?
¶ 12. Part of the necessary review is whether Bryant made a statement while in custody and while being interrogated. Hunt, 687 So.2d at 1159 (citing Miranda, 384 U.S. at 477-78, 86 S.Ct. 1602). Bryant was in police custody from the time of his arrest in his bedroom. He was advised of his rights. The critical time under review begins at the point of Bryant's statement to his mother as he was leaving his residence and ending at the point at the police station when he confessed. The record contains no evidence of police questioning during that interval. Bryant himself testified *819 during the suppression hearing that he was transported to the police station and placed in a small interview room alone for twenty to thirty minutes, then moved to another room with Officer Timothy Jackson for another fifteen or twenty minutes. The two engaged in conversation primarily about Bryant's father. Bryant was then returned to the small room where Keyes informed him that Klein had declined to represent him. Bryant admitted that he was informed of Klein's withdrawal prior to supplying his confession.
¶ 13. "`Interrogation,' as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself." Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Therefore, the Miranda protections extend to "express questioning or its functional equivalent." Id. at 300-01, 100 S.Ct. 1682. The test does not examine the subjective intent of the police; rather, it asks if the officer should "have known his actions or statements were reasonably likely to elicit an incriminating response." Snow v. State, 800 So.2d 472, 497 (Miss.2001). Here, a lower court could properly find that Keyes' statement to Bryant regarding his attorney's withdrawal did not rise to the level of the equivalent of express questioning. The conduct of the Hattiesburg police did not constitute interrogation of Bryant at the time of his offered confession.
(3) Did Bryant knowingly, intelligently, and voluntarily waive his rights?
¶ 14. Once an accused has asserted his right to deal with police through counsel, he "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Interrogation may resume after invocation of the right only if two conditions have been satisfied: (a) the accused initiates discussions; and (b) the accused knowingly and intelligently waives his rights previously asserted. Duplantis v. State, 644 So.2d 1235, 1242-43 (Miss.1994). Here again, the question distills to whether informing an accused of the status of his requested counsel constitutes interrogation. It was not. Bryant's statement that he wanted to talk at that point was at his own initiative. Bryant then executed an express waiver of rights. Bryant's confession was voluntary.
(4) Was Bryant denied the opportunity to meet with counsel?
¶ 15. Bryant suggests that Keyes' statement that Klein had withdrawn as his counsel is analogous to the factual situation in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). There, counsel and accused attempted to establish contact during police interrogation but were blocked by law enforcement. We find no apt similarity with Escobedo. Klein did not represent Bryant at any point. Klein himself admitted that his phone call to the police station was nothing more than a courtesy offered to Bryant's family. Because Klein was not Bryant's attorney, police did not impair Bryant's right to counsel by failing to facilitate contact between the two.
(5) Was Bryant's confession involuntary due to the influence of narcotics?
¶ 16. Bryant further asserts that his confession was involuntary due to the influence of narcotics. Bryant testified at the suppression hearing that he took some LSD laced with heroin and also smoked *820 some marihuana hours before he was taken into custody. He submits that his testimony of drug usage in addition to his mother's corroborating his drug habit are sufficient to support a claim of the involuntariness of his confession.
¶ 17. Voluntariness requires a finding that under the totality of the circumstances, the accused's statement was the result of his "free and rational choice." Porter v. State, 616 So.2d 899, 907-08 (Miss.1993) (citing United States v. Rogers, 906 F.2d 189, 190 (5th Cir.1990)). Detective Keyes, a former narcotics officer, testified at both the suppression hearing and at trial that Bryant did not appear to be under the influence of drugs or alcohol. The court deemed Bryant's confession to be voluntary, a fact-finding that is supported by the evidence.
(6) Did the State fail to meet its burden in proving the voluntariness of Bryant's confession?
¶ 18. Finally, Bryant argues that the State had to present testimony from Detective Scott Lindsey, one of the officers present when Bryant was placed into custody. Bryant relies on older Mississippi case law for the proposition that the State must offer all officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness. E.g., Lee v. State, 236 Miss. 716, 112 So.2d 254, 256 (1959). After the Miranda v. Arizona approach began in 1966, such older case law was largely displaced. A prima facie case of voluntariness is made from testimony by an officer or others with knowledge of the facts, that the confession was "made without threats, coercion, or offer of reward." Greenlee, 725 So.2d at 826 (quoting Chase v. State, 645 So.2d 829, 838 (Miss.1994)). Detective Keyes testified extensively regarding the voluntariness of Bryant's confession. Bryant did not assert that he was threatened or induced by promises to confess, so all the witnesses to the confession did not need to be presented. Agee v. State, 185 So.2d 671, 673 (Miss.1966), as modified by Thorson v. State, 653 So.2d 876, 888 (Miss. 1994).
¶ 19. Bryant's confession was admissible.
B. Weight of the evidence
¶ 20. Bryant also alleges that the jury verdict is against the overwhelming weight of the evidence. We do not set aside a verdict and order a new trial unless to allow the verdict to stand would constitute an "unconscionable injustice." Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Bryant argues that the absence of investigation of other suspects, alleged discrepancies in the victim's identification testimony, the lack of physical evidence in the case, and the vagueness of Bryant's confession cumulatively amount to reasonable doubt.
¶ 21. Bryant first submits that authorities were obligated to develop other potential suspects. We do not find an obligation on the State to present proof of the breadth of its investigation. It is necessary but also sufficient that the State present proof that the defendant committed the crime.
¶ 22. Bryant next contends that L.B.'s identification of Bryant was inconsistent and unpersuasive. Such questions concern the credibility and weight of the evidence, the evaluation of which is within the province of the jury. White v. State, 722 So.2d 1242, 1246 (Miss.1998).
¶ 23. Bryant submits that the prosecution's lack of physical or scientific evidence constituted a failure to connect him with the crime. There was physical evidence admitted, however, specifically *821 Bryant's clothing obtained after his consent to the police search which matched L.B.'s physical description of her assailant. Additionally, L.B. identified Bryant as her attacker. Bryant also confessed, and the confession was admissible and admitted.
¶ 24. Bryant also submits that his confession failed to acknowledge in "express terms" the crimes charged. He relies on Dedeaux v. State, 519 So.2d 886, 889 (Miss.1988). However, the next sentence of the Dedeaux opinion is that "generally speaking, all voluntary statements or confessions of the defendant are admissible when offered by the State for what weight they may have in the case." Id. That applies here.
¶ 25. Bryant argues that because his statement refers to twice raping L.B. rather than raping her once, then forcing her to perform oral sex on him, that this did not constitute an express acknowledgment of the charge of sexual battery. However, Bryant's conviction did not rest on his statement alone. The jury had other weighty evidence to hold down its verdict.
¶ 26. We "accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial." McDowell v. State, 813 So.2d 694, 699 (Miss.2002). We are not convinced.
C. Sufficiency of the evidence
¶ 27. Finally, Bryant contends that he is entitled to a directed verdict on the charge of forcible sexual intercourse due to the prosecution's failure to prove each element of the crime. Specifically, Bryant relies on statutory language requiring the "joining of the sexual organs of a male and female human being in which the penis of the male is inserted into the vagina of the female." Miss.Code Ann. 97-3-65(5) (Rev. 2000). Bryant then attempts to cast doubt on the factual circumstances satisfying the statutory requirement.
¶ 28. In reviewing a trial court's denial of a defendant's request for directed verdict, we consider all evidence in a light favorable to the State, discarding all evidence favoring the defendant. Taylor v. State, 656 So.2d 104, 107 (Miss.1995). We may reverse only if, after such a review, we find that no reasonable, hypothetical juror would find guilt. Tait v. State, 669 So.2d 85, 88 (Miss.1996).
¶ 29. L.B. consistently stated to authorities, to her treating physician, and in her testimony at trial that Bryant penetrated her. Bryant, in his confession, admitted to rape. The evidence proving Bryant's guilt was overwhelming. The motion for a directed verdict was properly denied.
¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY OF CONVICTION OF COUNT I BURGLARY AND SENTENCE OF TWENTY-FIVE YEARS; COUNT II FORCIBLE SEXUAL INTERCOURSE AND SENTENCE OF FORTY-FIVE YEARS; AND COUNT III SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS HEREBY AFFIRMED WITH SENTENCES TO RUN CONSECUTIVELY WITHOUT POSSIBILITY OF PAROLE. COSTS ARE ASSESSED TO LAMAR COUNTY.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.
NOTES
[1] This opinion is substituted for that originally issued. The rehearing motion is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/741965/ | 116 F.3d 319
McMILLIAN/McMILLIAN, INC., Plaintiff-Appellant,v.MONTICELLO INSURANCE CO., Defendant-Appellee,v.David McMILLIAN, Third Party-Appellant.
No. 96-2807.
United States Court of Appeals,Eighth Circuit.
Submitted March 13, 1997.Decided June 17, 1997.
Charles A. Potter (argued), Texarkana, AR, for Appellant.
Brent M. Langdon, Texarkana, TX, argued (J. Hawley Holman and Rodney L. LaGrone, Texarkana, TX, on the brief), for Appellee.
Before FAGG and HEANEY, Circuit Judges, and NANGLE,* District Judge.
FAGG, Circuit Judge.
1
A laundromat owned by McMillian/McMillian, Inc. (M/M) burned down. Believing the fire had been deliberately set, Monticello Insurance Company denied coverage under a policy exclusion for incendiary fires, and M/M sued Monticello for breach of contract. Monticello filed a third-party claim for indemnification against M/M's president, David McMillian, asserting McMillian set the fire himself. After McMillian evaded Monticello's attempts to serve him personally, Monticello served process by warning order, see Ark. R. Civ. P. 4(f)(1), but McMillian never answered the third-party complaint. Monticello secured an entry of default by the clerk of court and then moved for a default judgment. Roused at last, McMillian filed a cross-motion to set aside the entry of default. The district court denied McMillian's motion and entered a default judgment. A few days later, the underlying coverage dispute was tried. The jury was instructed that McMillian had suffered a default judgment, and as a result he could not contest the third-party complaint's assertion that McMillian had set the fire. The case went to the jury on the sole question of whether McMillian was acting as M/M's agent when he burned the laundromat. The jury found in favor of Monticello, and the district court denied M/M's and McMillian's posttrial motions to set aside the default judgment and for a new trial. McMillian and M/M appeal the denial of their posttrial motions. McMillian also appeals from the default judgment itself, assigning error to the denial of his motion to set aside the clerk's entry of default. We affirm.
2
In its default judgment, the district court awarded Monticello "full indemnity from David McMillian for any and all damages that may be awarded against Monticello Insurance Company by way of the underlying suit in this matter." Having prevailed in the underlying suit, Monticello incurred no liability for McMillian to indemnify. Thus, the default judgment entered against McMillian would be a moot issue were it not for the role the judgment played at trial. What McMillian and M/M really want is a new trial, with no default judgment jury instruction adversely determining the key material fact. We will reverse the denial of a motion for a new trial only if the denial " 'represents a clear abuse of discretion or a new trial is necessary to avoid a miscarriage of justice.' " Lamb Eng'g & Constr. Co. v. Nebraska Pub. Power Dist., 103 F.3d 1422, 1430 (8th Cir.1997) (quoting Farmland Indus., Inc. v. Morrison-Quirk Grain Corp., 54 F.3d 478, 483 (8th Cir.1995)). Having reviewed the record and the parties' briefs, we conclude the district court properly denied McMillian's and M/M's new trial motion because the district court acted within its discretion in refusing to set aside both the entry of default and the default judgment. See Canal Ins. Co. v. Ashmore, 61 F.3d 15, 17 (8th Cir.1995) (per curiam); Pretzel & Stouffer v. Imperial Adjusters, Inc., 28 F.3d 42, 44-45 (7th Cir.1994).
3
McMillian contends he showed good cause for the district court to set aside entry of default, see Fed.R.Civ.P. 55(c), because Monticello's service of process on McMillian was defective. According to McMillian, Monticello neglected to enclose a copy of its third-party complaint with the warning order, as it was obliged to do. See Ark. R. Civ. P. 4(f)(1). By affidavit, counsel for Monticello attested he mailed McMillian both the warning order and the complaint. The district court believed counsel for Monticello, and we defer to the district court's credibility assessment. McMillian also complains that M/M's attorney was not notified in June 1995 that the district court had granted Monticello leave to file its third-party complaint. Failure to notify counsel for M/M in 1995 is not good cause to set aside McMillian's default because M/M's attorney did not begin representing McMillian until after the clerk entered the default in April 1996. Because McMillian failed to show good cause for his default as Rule 55(c) requires, the district court did not abuse its discretion when it declined to consider the meritoriousness of McMillian's defense to the third-party complaint or the potential prejudice to Monticello from setting aside the entry of default. See Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th Cir.1996); Pretzel & Stouffer, 28 F.3d at 46. Besides, McMillian's so-called defense was lame. He claimed that injuries he sustained in a severe beating made it physically impossible for him to be present at the scene of the fire the night the laundromat burned. He admitted, however, that he visited the scene the very next morning.
4
M/M and McMillian also contend the district court should have vacated the default judgment and granted a new trial because the default judgment was entered prematurely and thus the jury never should have heard about it in the first place. Relying on Frow v. De La Vega, 82 U.S. (15 Wall.) 552, 21 L.Ed. 60 (1872), McMillian and M/M argue the district court was obliged to wait until the trial was over before entering the default judgment. In Frow, De La Vega sued Frow and thirteen others, claiming they had conspired to defraud him of title to property. The court entered judgment against Frow when Frow defaulted, but then dismissed De La Vega's claims against the rest of the defendants. As a result, conflicting judgments declared De La Vega both had and had not been defrauded of title. To prevent this kind of "absurdity," Frow, 82 U.S. at 554, the Supreme Court held that when defendants are sued as jointly liable, and less than all default, the court may not enter default judgment against the defaulted defendants until the liability of the nondefaulted defendants has been decided. See generally In re Uranium Antitrust Litigation, 617 F.2d 1248, 1256-58 (7th Cir.1980) (explaining Frow ). Frow has no bearing on this case, however. Although McMillian and M/M share closely related interests, they were not codefendants facing lawsuit on a theory of joint liability, where "no one defendant may be liable unless all defendants are liable." 10 James Wm. Moore et al., Moore's Federal Practice § 55.25 (3d ed.1997). McMillian's responsibility for the fire would not have implicated M/M if McMillian had acted on his own and not as M/M's agent. Further, because Monticello sued McMillian for indemnification, McMillian's liability hinged on Monticello's, not M/M's.
5
Finally, although it is unlikely M/M preserved the issue for our review, M/M contends the district court improperly instructed the jury that the default judgment cut off McMillian's right to testify he did not cause the fire. Contrary to M/M's view, when a default judgment has been entered, facts alleged in the complaint--here, that McMillian was responsible for the fire--may not be contested by the defaulted party. See Black v. Lane, 22 F.3d 1395, 1399 (7th Cir.1994).
6
We thus affirm both the district court's default judgment and its judgment on the jury's verdict in favor of Monticello.
*
The Honorable John F. Nangle, United States District Judge for the Eastern District of Missouri, sitting by designation | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/741976/ | 116 F.3d 361
74 Fair Empl.Prac.Cas. (BNA) 188,71 Empl. Prac. Dec. P 44,817, 38 Fed.R.Serv.3d 142
Jacquelyn KRUMWIEDE, Appellant,v.MERCER COUNTY AMBULANCE SERVICE, INC., Appellee.Jacquelyn KRUMWIEDE, Appellee,v.MERCER COUNTY AMBULANCE SERVICE, INC., Appellant.
Nos. 96-3269, 96-3387.
United States Court of Appeals,Eighth Circuit.
Submitted March 12, 1997.Decided June 26, 1997.Rehearing Denied July 31, 1997.
Deborah J. Carpenter, Bismarck, ND, for appellant/cross-appellee.
Daniel L. Hoviland (Scott K. Porsborg, Bismarck, ND, on the brief), for appellee/cross-appellant.
Before WOLLMAN and BEAM, Circuit Judges, and LAUGHREY,1 District Judge.
WOLLMAN, Circuit Judge.
1
Jacquelyn Krumwiede brought this action pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., alleging age discrimination by Mercer County Ambulance Service, Inc. (Ambulance Service). Krumwiede appeals from the district court's2 limitation on the size of the jury and the court's partial grant of judgment as a matter of law (JAML). Ambulance Service cross-appeals from the court's denial of its motion for summary judgment. We affirm.
I.
2
At the time of the events giving rise to this action, Ambulance Service consisted of two full-time employees (coordinator and assistant coordinator) and one part-time employee (bookkeeper). In addition, Ambulance Service utilized the services of forty-seven volunteers.
3
Krumwiede was hired as coordinator for Ambulance Service in July of 1985. Jodee Schwarz was hired as assistant coordinator for Ambulance Service in 1988. The two performed essentially the same duties. In June of 1993, Ambulance Service decided to consolidate the coordinator and assistant coordinator positions in an effort to cut costs. Krumwiede (who was then forty-eight) and Schwarz were terminated on June 30, 1993. Both applied for the consolidated position, along with five others. A committee consisting of five of Ambulance Service's board members interviewed Krumwiede, Schwarz, and one other applicant and voted unanimously to hire Schwarz, who was then under forty.
4
Krumwiede filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that she had been terminated and not rehired on the basis of her age. She subsequently filed suit in the district court, alleging violations of the ADEA. Krumwiede asserted that Ambulance Service's age discrimination is shown by the fact that the other two interviewees were both younger and that Schwarz was hired in her place, despite the fact that Schwarz was less qualified. Krumwiede also pointed to a co-worker's references to her as "granny" or "grandma" and to a co-worker's comments about the ability of two of Ambulance Service's older volunteers' to perform their jobs. Krumwiede alleged that Ambulance Service's assertion of financial problems as the reason for consolidating the two positions was pretextual inasmuch as Ambulance Service was at the time considering purchasing an expensive ambulance and additional equipment.
5
Ambulance Service contended that Krumwiede was an employee-at-will and that her termination was the result of a reduction in force (RIF). Ambulance Service asserted that consolidating Krumwiede's and Schwarz's positions was only one of a number of cost-savings measures it had implemented to cope with its severe financial problems. Ambulance Service's chairman testified that consolidating the positions was a logical place to cut costs since neither Krumwiede nor Schwarz was very busy, they had basically the same duties, and their positions were different in name only.
6
At the close of Krumwiede's case, Ambulance Service moved for JAML, which the court granted with respect to the termination claim. The failure to rehire claim was submitted to a jury, which returned a verdict for Ambulance Service.
II.
7
Krumwiede contends that the district court abused its discretion in denying her demand for a nine-member jury, pointing to Rule 38(c) of the North Dakota Rules of Civil Procedure, which allows a party to demand a nine-member jury. The Federal Rules of Civil Procedure provide that "[t]he court shall seat a jury of not fewer than six and not more than twelve members...." Fed.R.Civ.P. 48. Rule 47.1CV of the Local Rules of the United States District Court for the District of North Dakota provides that "[i]n all jury cases, the size of the jury shall be determined at the discretion of the presiding judge consistent with the language of Fed.R.Civ.P. 48." The district court's decision to limit the jury to six members was thus consistent with the federal and local rules of civil procedure and the Seventh Amendment.
8
Krumwiede argues that the district court erred in granting JAML on her termination claim. She contends that the district court mistakenly applied the standard set forth in Holley v. Sanyo Mfg., Inc., 771 F.2d 1161 (8th Cir.1985), and rejected the standard set forth in Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061 (8th Cir.1988), and in doing so erroneously required that she prove age discrimination through direct evidence. Brooks is inapposite, however, as it was not a RIF case, and Holley remains the law in this circuit in RIF cases. See Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir.1994); Herrero v. St. Louis Univ. Hosp., 109 F.3d 481, 483-84 (8th Cir.1997). See also Ryther v. KARE 11, 108 F.3d 832, 836 n. 1 (8th Cir.1997) (en banc), petition for cert. filed, 65 U.S.L.W. 3694 (U.S. Apr. 4, 1997) (No. 96-1571). Moreover, Krumwiede's assertion that the district court required direct evidence of discrimination is belied by the record, for the district court stated, "[t]here is absolutely no evidence whatsoever in this record, direct or circumstantial, that on the termination there was any age discrimination," and observed that Krumwiede must prove discrimination with "direct or circumstantial evidence."
9
To establish a prima facie case of age discrimination in a RIF context, Krumwiede must: "(1) show that she was within the protected age ... group; (2) show that she met applicable job qualifications; (3) show that she was discharged; and (4) produce some additional evidence that a prohibited criterion such as age ... was a factor in her termination." Herrero, 109 F.3d at 483-84 (citing Bashara, 26 F.3d at 823 (citing Holley, 771 F.2d at 1165)). The district court concluded that Krumwiede failed to satisfy the fourth requirement.
10
Our standard of review for the grant of JAML is the same as that applied by the district court. See Nolte v. Pearson, 994 F.2d 1311, 1315 (8th Cir.1993). Accordingly, we assume that Krumwiede's evidence is true, and we give her the benefit of all inferences that can reasonably be drawn from that evidence. Id. The district court's grant of JAML is proper only if Krumwiede presented insufficient evidence to support a jury verdict in her favor. Id.
11
Krumwiede's bases for alleging that her termination was age motivated were the reference to her as "granny" and the comments about certain of the volunteer workers. The reference to Krumwiede as "granny" was made by a co-worker who had no decision-making authority for Ambulance Service. Moreover, there is no evidence suggesting that Ambulance Service was aware of those comments, as Krumwiede admittedly never asked her co-worker to stop referring to her in that manner, nor did she ever complain to Ambulance Service regarding such comments. Accordingly, such comments do not constitute any evidence of an impermissible motive on the part of Ambulance Service. See Herrero, 109 F.3d at 484 ("Statements may constitute evidence of impermissible motive only when they are made by decisionmakers in the termination process and reflect a discriminatory animus such that a jury could infer it was a motivating factor in the termination process."). For the same reason, the comments made by a co-worker about the volunteer workers do not constitute evidence of age discrimination towards Krumwiede, as they were likewise not made by a decisionmaker and did not even refer to Krumwiede. See id.
12
Krumwiede also argues that Ambulance Service's proffered reason for consolidating the coordinator positions was pretextual because at the same time that Ambulance Service was implementing its RIF it was considering buying a new ambulance and other equipment. There is substantial evidence, however, that Ambulance Service was indeed experiencing financial difficulties at the time Krumwiede was terminated, and we will not review "the wisdom or fairness of the business judgment made by employers, except to the extent that those judgments involve intentional discrimination." Id. at 485 (quoting Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir.1995)). A number of witnesses testified regarding the other cost-saving measures that were implemented during the relevant time period: the elimination of overtime pay and extra office help; the discontinuation of health insurance benefits and volunteers' reimbursements for meals and mileage; and the reduction in the payment to volunteers for transferring patients. Krumwiede's contention that Ambulance Service's alleged financial woes were merely a pretext for terminating her becomes even more unconvincing given her admission that there were legitimate business reasons for implementing the cost-saving measures, that at the time there was a need for Ambulance Service to minimize costs and reduce overhead, and that consolidating the coordinator positions would result in significant savings to Ambulance Service. See Herrero, 109 F.3d at 484 (concluding that RIF was bona fide and not pretextual based on uncontradicted evidence of financial problems, plaintiff's concession that a RIF was necessary, and uncontradicted testimony that RIF was sole reason for termination).
13
In sum, we conclude that the record is devoid of any evidence showing that Krumwiede's termination was age-motivated. Accordingly, the district court did not err in entering JAML for Ambulance Service on the ADEA claim.
The judgment is affirmed.3
1
The HONORABLE NANETTE K. LAUGHREY, United States District Judge for the Eastern and Western Districts of Missouri, sitting by designation
2
The Honorable Dwight C.H. Kautzmann, United States Magistrate Judge for the District of North Dakota, before whom the case was tried by consent of the parties pursuant to 28 U.S.C. § 636(c)
3
In light of our disposition, we need not address the cross-appeal, nor need we address Krumwiede's contention that the district court erred in excluding certain evidence | 01-03-2023 | 04-17-2012 |
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