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https://www.courtlistener.com/api/rest/v3/opinions/1621987/ | 13 So. 3d 56 (2007)
EX PARTE JOHN MILTON HARDY.
No. 1061057 (CR-05-1363).
Supreme Court of Alabama.
June 22, 2007.
Decision without published opinion. Certiorari denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622138/ | 942 S.W.2d 909 (1997)
Cecil Allen BUFORD, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 95-CA-1923-MR.
Court of Appeals of Kentucky.
April 11, 1997.
*910 Kate D. Dunn, Lexington, for Appellant.
A.B. Chandler III, Attorney General, Courtney A. Jones, Assistant Attorney General, Frankfort, for Appellee.
Before BUCKINGHAM, GARDNER and MILLER, JJ.
OPINION
BUCKINGHAM, Judge.
After a trial by jury in the Fayette Circuit Court, Cecil Buford was convicted of two counts of trafficking in a simulated substance in violation of KRS 218A.350 and one count each of trafficking in a controlled substance in the first degree and being a persistent felony offender in the first degree. He was sentenced to six months in the county jail on each of the two counts of trafficking in a simulated substance, and the sentences were ordered to run concurrently with each other and concurrently with the sentence of five years on the charge of trafficking in a controlled substance in the first degree. Buford's sentence was enhanced to 10 years due to his guilty plea to being a persistent felony offender in the first degree. Buford appeals on two grounds, neither of which has merit.
*911 On November 23, 1994, Buford sold four rocks of crack cocaine to an undercover police officer for the sum of $100. The transaction was videotaped, and the tape was shown to the jury as evidence on behalf of the Commonwealth. Buford testified at trial that he did make the transaction but that he thought the substance he sold was "flick," a street name for fake cocaine, and not cocaine. He also admitted in his testimony that he was a convicted felon.
On November 28, 1994, and November 29, 1994, Buford sold "flick" to the same undercover police officer after again representing that the substance was cocaine. He was charged and convicted of two counts of trafficking in a simulated substance in connection with these two transactions. He admitted to having committed these offenses.
Buford's first argument is that his convictions and sentences for two counts of trafficking in a simulated substance in violation of KRS 218A.350 should be vacated on the ground that this statute is unconstitutional because it fails to serve any legitimate government purpose. He alleges that there are other statutes which protect consumers from fraud and that the government has no legitimate interest in creating a law which provides punishment for a person who defrauds a drug user/purchaser by selling to him or her with the representation that the substance is a controlled substance. The Commonwealth contends that the statute is a constitutional exercise of the state's police powers.
The test of the constitutionality of a statute is whether it is unreasonable or arbitrary. Moore v. Ward, Ky., 377 S.W.2d 881, 883 (1964). The statute will be determined to be constitutionally valid if a reasonable, legitimate public purpose for it exists, whether or not we agree with its "wisdom or expediency." Walters v. Bindner, Ky., 435 S.W.2d 464, 467 (1968). The validity of KRS 218A.350 is a matter of first impression in this state. However, similar statutes have been upheld in numerous other states under the police powers theory. Some of the reasons stated by courts in other jurisdictions for upholding their simulated substance statutes are "preventing illegal drug transactions and the attendant social evils," People v. Pharr, 696 P.2d 235, 237 (Colo.1984); avoiding future overdoses as a user would underestimate the effects of an actual controlled substance after only taking a simulated controlled substance thereby causing him or her to take an increased dose of the actual controlled substance, id.; interference with a physician's ability to treat an overdose due to the confusion of the simulated substance with the actual narcotics, State v. Duncan, 414 N.W.2d 91, 95 (Iowa 1987); the fact that youthful counterfeit drug users may not believe any information presented in drug education programs because they will not suffer the side effects warned of in such programs when they consume counterfeit drugs, State v. Thomas, 428 So. 2d 327, 331 (Fla.App. 1 Dist. 1983); and the benefit to organized crime due to the proliferation of the sale of fake drugs by organized racketeering networks. Id. Perhaps the most succinct analysis was found in People v. Shephard, 169 Cal. App. 2d 283, 337 P.2d 214 (1959), when it was stated as follows:
Anything which gives sustenance, solace, comfort or encouragement in the selling of narcotics or in the agreeing to sell narcotics, can be condemned, and properly so, by the legislature. It is clear that the statute in question was aimed at discouraging any traffic in narcotics and is therefore within the police power of the state.
Id. at 216-217.
The legislature has "broad discretion to determine for itself what is harmful to health and morals or what is inimical to public welfare. . . ." Walters, supra, at 467. A strong presumption exists in favor of the constitutionality of a statute. Id. Furthermore, one who seeks to have a statute declared unconstitutional bears the burden of dispelling any conceivable basis which might justify the legislation. Roberts v. Mooneyhan, Ky.App., 902 S.W.2d 842, 844 (1995), citing F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 314-15, 113 S. Ct. 2096, 2101, 124 L. Ed. 2d 211, 222 (1993).
*912 Therefore, given the fact that KRS 218A.350 is valid if any rational reason can be found to support it, given the state's broad discretion in exercising its police powers and the numerous rational reasons given by courts in other jurisdictions to support similar statutes, and taking into account the strong presumption of constitutionality attached to a statute, Buford's argument that KRS 218A.350 is unconstitutional and that his due process rights were violated when the trial court did not declare it so must fail. KRS 218A.350 is not unconstitutional.
Buford also maintains that he was entitled to a directed verdict on the charge of trafficking in a controlled substance in the first degree. He states in this regard that the Commonwealth did not prove that he intended to traffic in a controlled substance. Using the "flick" defense, he maintains that he thought he was selling fake cocaine and not actual cocaine to the undercover officer. We acknowledge that the controlling statute, KRS 218A.1412, requires that the Commonwealth prove Buford knowingly sold cocaine.
The standard of review on a motion for directed verdict on appeal is "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict.. . ." Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991).
In this case, an undercover police officer testified that Buford sold him a substance which was represented to be cocaine and which proved to be cocaine. The transaction was videotaped, and Buford took the witness stand and testified that he made the transaction. The evidence also indicated that in the transaction involving cocaine, Buford obtained the substance from a third party; whereas, in the two transactions involving the simulated substances, Buford had the substances on his person. Furthermore, Buford's credibility was in issue since he admitted that he was a convicted felon. Under the evidence, it was not clearly unreasonable for the jury to find the defendant guilty.
The judgment of the Fayette Circuit Court is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920424/ | 921 So. 2d 348 (2005)
Eric ROBERTSON, Appellant.
v.
STATE of Mississippi, Appellee.
No. 2003-KA-02690-COA.
Court of Appeals of Mississippi.
March 8, 2005.
Rehearing Denied August 2, 2005.
Certiorari Denied February 16, 2006.
*349 Mark Kevin Horan, attorney for appellant.
Office of the Attorney General by Cott Stuart, attorney for appellee.
Before LEE, P.J., GRIFFIS and ISHEE, JJ.
LEE, P.J., for the Court.
PROCEDURAL HISTORY
¶ 1. On November 5, 2003, a jury in the Winston County Circuit Court found Eric Robertson guilty of the sale of cocaine. Robertson was then sentenced to a term of twenty-five years, with twenty to serve in the custody of the Mississippi Department of Corrections and five years supervised probation. Robertson was also ordered to pay a $5,000 fine, a lab fee in the amount of $125 to the Mississippi Crime Lab, and all court costs, fees and assessments. Robertson filed a motion for a judgment notwithstanding the verdict or, in the alternative, *350 a new trial. The trial judge denied the motion on November 24, 2003. Aggrieved, Robertson now appeals to this Court asserting the following issues: (1) the trial judge erred in informing the jury venire that they would hear "both sides" of the issues, thereby negating Robertson's presumption of innocence and right not to testify; (2) the trial judge erred in allowing the case to proceed when the jury was not properly charged and sworn after selection; and (3) he was denied effective assistance of counsel. Finding no error, we affirm.
FACTS
¶ 2. On January 8, 2001, in Louisville, Mississippi, the Mississippi Bureau of Narcotics conducted an undercover drug operation in order to purchase crack cocaine from Robertson. MBN Agents Brent Young and Brandon Moore conducted the undercover operation with the assistance of a confidential informant, Richard Dickerson. Agent Andrew Cotton and Winston County Deputy Joann Mahaffey also helped provide surveillance for the operation.
# 3. Dickerson introduced Robertson to Agent Moore at Robertson's residence. Dickerson was wearing an audio transmitter and Agent Moore had been provided with $150 in official state funds in order to purchase the crack. After discussing the price of the crack, Robertson stated that he would have to leave and obtain the crack from another location. At that point Agent Moore met with Agent Young in order to receive an additional forty dollars. Robertson returned and sold 2.27 grams of crack cocaine to Agent Moore for $190. Robertson also stated that he could obtain an eight ball of crack cocaine the next day and would sell it for $150. Once the sale was completed, Dickerson and Agent Moore left Robertson's residence.
¶ 4. Dickerson identified Robertson as the one who sold him crack that day and Agent Moore also identified Robertson from a photograph. Robertson was arrested four months later due to other ongoing undercover drug investigations in the area.
DISCUSSION OF ISSUES
I. DID THE TRIAL JUDGE ERR IN TELLING THE JURY THAT THEY WOULD HEAR BOTH SIDES OF THE CASE DURING THE TRIAL?
¶ 5. In his first issue, Robertson argues that the trial judge erred in telling the jury that they would hear both sides of the case during the trial. Robertson claims that this opposes his right to remain silent and not to testify as guaranteed under the Constitution. During voir dire, the trial judge, in addressing the jury, stated the following:
Here today you are going to be charged with finding or returning a unanimous verdict. You are going to hear both sides of the case. You are going to get my instructions on the law, and you are going to have the opportunity to consult with your fellow jurors.
¶ 6. At some point later, the trial judge also stated that:
The burden of proof in this case is on the State as it is in all criminal cases. The State must prove the Defendant's guilt beyond a reasonable doubt. The Defendant does not have to prove anything, and he is presumed innocent until such time as the State does proves [sic] his guilt beyond a reasonable doubt. He does not have to testify in his own behalf. If he does not testify, I'm going to give you an instruction that will say that you cannot use the fact that he did not testify as any evidence against him.
*351 ¶ 7. At no point during the statement by the trial judge saying the jury was "going to hear both sides of the case" did Robertson object. It is well stated that failure to make a contemporaneous objection waives that issue for the purposes of an appeal. Smith v. State, 729 So. 2d 1191(¶ 87) (Miss.1998). However, a defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal. Foster v. State, 639 So. 2d 1263, 1288-89 (Miss.1994). Although Robertson admits to his failure to object to the statement, he contends that the trial judge's statement adversely affected his fundamental right to a fair trial and due process of law and, consequently, that we may address this issue as plain error. Having determined that Robertson's claim is barred procedurally, we will nonetheless proceed to determine whether a substantive right was affected and whether that error led to a miscarriage of justice. Gray v. State, 549 So. 2d 1316, 1321 (Miss.1989).
¶ 8. Robertson mainly argues that the phrase "hear both sides," directly opposes his right to remain silent. However, the trial judge was merely trying to note the differences between a grand jury and a trial jury, namely that during grand jury proceedings the defendant's side of the case is not heard. The trial judge never stated that hearing both sides meant that Robertson had to testify. Moreover, the trial judge explicitly stated to the jury that the State had the burden of proof and Robertson was not required to testify. The trial judge further stated that if Robertson did not choose to testify, then that could not be held against him. The trial judge then asked the jury panel a number of different questions to make sure they understood his instructions. No one stated that they were unsure of their duty as jurors.
¶ 9. We cannot find that any Constitutional right of Robertson's was affected, nor can we find that there was a miscarriage of justice. The trial judge was performing his duty and we can find no error in his instructions to the jury. This issue is without merit.
II. DID THE TRIAL JUDGE ERR IN ALLOWING THE CASE TO PROCEED WHEN THE JURY WAS NOT PROPERLY CHARGED AND SWORN AFTER SELECTION?
¶ 10. In his second issue, Robertson argues that the trial judge erred in allowing the case to proceed when the jury was not properly charged and sworn after selection. During voir dire Robertson asked the trial judge whether the jury had been properly sworn in. The trial judge responded in the affirmative but asked the clerk. The clerk responded that the jury had been sworn and that two oaths were given, one to the panel "to answer the questions and the oath to the petit jury." The court reporter also said the jury had been sworn. After this exchange, Robertson's counsel stated "All right." Furthermore, the first and second pages of the trial transcript state that the jury was sworn and the final judgment states that the jury was sworn.
¶ 11. In Bell v. State, 360 So. 2d 1206, 1215 (Miss.1978), the supreme court, in failing to find reversible error where the record did not reveal whether the jury had not been specially sworn, determined that a rebuttable presumption exists that the trial judge properly performed his duties. See also Stewart v. State, 881 So. 2d 919(¶ 13) (Miss.Ct.App.2004); Young v. State, 425 So. 2d 1022, 1025 (Miss.1983). This Court has also found that when the lower court's judgment states that the jury was properly sworn it is presumed that the trial judge performed his duties. Woulard v. State, 832 So. 2d 561(¶ 24) (Miss.Ct.App. *352 2002). In the case at bar, we fail to find that Robertson produced such evidence to overcome the presumption that the trial judge performed his duty in swearing in the jury.
III. WAS ROBERTSON DENIED EFFECTIVE ASSISTANCE OF COUNSEL?
¶ 12. In his last issue, Robertson argues that he was denied effective assistance of counsel. Robertson specifically asserts that his trial counsel erred in allowing hearsay testimony from the MBN agents; failing to object to testimony concerning an alleged subsequent cocaine sale by Robertson; in agreeing to admit into evidence an MBN report; and in failing to promote Robertson's defense of mistaken identity. While looking to the totality of the circumstances, we must determine whether Robertson proved his counsel's performance was deficient and whether this deficiency resulted in prejudice to Robertson. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We must discover if any of the purported errors were "outside the range of professionally competent assistance." Id. at 690.
¶ 13. Robertson states that he was prejudiced when Agent Young testified that Dickerson identified Robertson, since Agent Young had previously stated that he had never seen Robertson. Robertson claims that this constituted hearsay and that his trial counsel should have objected. We cannot find that this failure to object falls outside the range of professionally competent assistance.
¶ 14. Robertson also argues that there was never proof of ownership of the residence where the buy occurred. Robertson claims that the jury had to assume that the residence was his. We are not persuaded by this argument, especially since Dickerson knew Robertson and informed Agent Moore that the buy was at Robertson's house. Robertson states that the testimony concerning Robertson's offer to sell Dickerson and Agent Moore more crack cocaine was prejudicial. However, Robertson fails to state exactly why his trial counsel was ineffective in this instance, and we are disinclined to guess.
¶ 15. Robertson further claims that his trial counsel was deficient in agreeing to admit the MBN report concerning the drug buy. Robertson's trial counsel moved to have this report admitted into evidence after the State referred to this report while questioning Agent Moore. However, Robertson's trial counsel also referred to this report while cross-examining Agent Moore in an attempt to poke holes in Moore's story. Robertson's trial counsel's actions clearly show that he had a particular strategy in mind by allowing this report into evidence. We cannot find that he acted deficiently in this instance.
¶ 16. Robertson's last argument concerns his defense of mistaken identification. Robertson argues that his trial counsel never promoted this defense. However, the record clearly shows many instances where his trial counsel asked questions concerning whether Robertson was properly identified as the seller. We fail to find that Robertson's trial counsel acted deficiently in attempting to bolster their defense of mistaken identity. As we have not found Robertson's trial counsel deficient in his representation, this issue is without merit.
¶ 17. THE JUDGMENT OF THE WINSTON COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE *353 YEARS SUSPENDED, FIVE YEARS' SUPERVISED PROBATION, AND PAY A $5,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
BRIDGES, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2534478/ | 41 So. 3d 425 (2010)
Reginald WAY II, Appellant,
v.
STATE of Florida, Appellee.
No. 1D10-3010.
District Court of Appeal of Florida, First District.
August 5, 2010.
*426 Reginald Way II, pro se, Appellant.
Bill McCollum, Attorney General, Tallahassee, for Appellee.
PER CURIAM.
Appellant seeks review of the trial court's final order summarily denying his motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking post-conviction relief. We conclude that two of the five claims of ineffective assistance of counsel raised by appellant were facially sufficient and not refuted by the portions of the record attached by the trial court to its order. Accordingly, we reverse the denial of those two claims and remand those claims for further proceedings. In all other respects, we affirm without discussion the trial court's order.
Appellant claimed that his trial counsel was ineffective because counsel failed to object when appellant, who was not disruptive, was made to wear leg restraints, which were seen and heard by the jury, during his trial. This claim was facially sufficient. See Torres v. State, 9 So. 3d 746, 748 (Fla. 4th DCA 2009); Jensen v. State, 964 So. 2d 812 (Fla. 4th DCA 2007); Miller v. State, 852 So. 2d 904, 906 (Fla. 4th DCA 2003). The portions of the record attached by the trial court to its order do not conclusively refute this claim. Accordingly, the trial court erred when it summarily denied it.
Appellant also claimed that his trial counsel was ineffective because counsel mentioned in opening statement and closing argument an arrest on an unrelated charge in a neighboring county, and permitted the state to refer to that charge in closing argument as well. This claim was also facially sufficient, see generally Pomposello v. State, 940 So. 2d 500, 501 (Fla. 5th DCA 2006); Haynes v. State, 729 So. 2d 498, 500-01 (Fla. 1st DCA 1999); Johnson v. State, 611 So. 2d 88, 89 (Fla. 2d DCA 1992), and not conclusively refuted by the portions of the record attached by the trial court to its order. Accordingly, the trial court also erred when it summarily denied this claim.
We reverse the trial court's summary denial of the claims that appellant's trial counsel was ineffective because counsel failed to object when appellant, who was *427 not disruptive, was made to wear leg restraints, which were seen and heard by the jury, during his trial, and mentioned in opening statement and closing argument an arrest on an unrelated charge in a neighboring county, permitting the state to refer to that charge in closing argument as well. We remand those claims. Should the trial court again conclude that those claims are conclusively refuted by the record, it shall attach to its order denying relief the pertinent portions of the record; otherwise, it shall hold a hearing. In all other respects, the trial court's order is affirmed.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
HAWKES, C.J., KAHN and WEBSTER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920485/ | 921 So.2d 1130 (2006)
H.H. HANKS, et al., Plaintiffs-Appellees,
v.
ENTERGY CORPORATION, et al., Defendants-Appellants.
No. 40,486-CA.
Court of Appeal of Louisiana, Second Circuit.
February 1, 2006.
*1132 The Boles Law Firm by Walter C. Dunn, Monroe, for Appellants.
Crawford & Anzelmo by Brian E. Crawford, Monroe, Kleinpeter & Kleinpeter by R. Loren Kleinpeter, Baton Rouge, for Appellees.
Before BROWN, CARAWAY and LOLLEY, JJ.
CARAWAY, J.
The owners and insurer of a camp located on Lake D'Arbonne instituted suit against Entergy Louisiana Inc. ("Entergy") seeking reimbursement for insurance proceeds paid and damages which exceeded *1133 insurance coverage as the result of lightning that precipitated a fire and destroyed the camp. The plaintiffs alleged that during a storm, a lightning strike hit near an Entergy service pole adjacent to their camp and caused a high-powered electrical current to traverse the line starting a fire. The plaintiffs contend that a lightning arrester on the service pole failed to ground the strike. Entergy contends that the massive lightning strike, recorded in this case as an extraordinarily large strike, constitutes an Act of God. After a three-day trial, the court ruled in favor of the plaintiffs, finding a defective arrester. Entergy has appealed. We reverse.
Facts
On the morning of April 3, 2000, a thunderstorm occurred near Lake D'Arbonne in Union Parish, Louisiana. Lightning from the storm destroyed the electrical transformer serving plaintiffs' lake home and also caused a fire in the home which destroyed it. According to lightning verification data submitted into evidence,[1] during the storm, at approximately 6:17 a.m., an intense lightning strike measuring 87.9 kiloamps ("KA") occurred. A strike of this magnitude is in the upper 2% range of lightning strikes. The evidence from the lightning data network indicated that the lightning hit within 3/10 of a mile of the lakehouse owned by H.H. Hanks, Jacqueline James Hanks, J.B. Hanks, William Hanks, Lewis Hanks, and Traci Hanks ("the Hanks") and insured by Encompass Insurance Company (formerly CNA Insurance Company). The exact location of the strike, however, is disputed. While other lightning strikes of lesser intensity also occurred, the experts all agree that this massive strike was the probable cause of the damage to the camp.
Electrical service to the camp was provided by Entergy Louisiana, Inc. ("Entergy"), which owned and maintained a transformer and lightning arrester located on a pole 90 feet from the camp and attached to the Entergy distribution lines leading to the camp. The transformer reduces the higher voltage from the distribution line to allow standard (120/240) volt service for the dwelling.
The surge arrester, which is at the center of this dispute, is a large vertical cylindrical porcelain device which is bolted to the side of the transformer and protects it from high voltage surges by diverting the excess voltage to the ground away from the transformer. (See long tubular device on the side of the transformer in the diagram, Plaintiff's Exhibit 4, attached as Appendix I). When voltage greater than threshold voltage is impressed across the arrester, the apparatus acts like a switch and directs the high voltage current to a grounding mechanism extending down the pole to a rod driven in the ground. When the surge ends, the device switches back to the line, isolating it from the ground.
All experts agreed that the 27KV distribution class, silicon carbide lightning arrester (surge suppressor) installed at the location was appropriate for the dwelling. There is no assertion by Hanks that Entergy owed the obligation of installing an arrester with a greater capacity. The expert testimony also showed that lightning arresters are installed with all Entergy transformers because lightning hits nearly all transformers on an average of twice a year in Louisiana. The arresters are also required to work for protection against unexpected surges of power along the distribution system. Causes of arrester failure *1134 include design failures, lack of internal parts, disconnected or loose bottom or ground connections, or depletion of the internal metal oxide of the switching device which results from numerous strikes. The subject transformer had been placed at the dwelling in 1996 and Entergy had received no requests for repairs nor complaints about the device since that time. The evidence also showed that Entergy employees commonly replace arresters and transformers, although no standing instructions as to inspection of the devices exist. Rather, Entergy employees are instructed to visually inspect equipment as they perform their regular duties.
Excerpts from an Entergy engineering manual which was relied upon by both sides became central to the dispute over the location of the lightning strike. The data from the manual were revealed in the report of Entergy's expert, Frederick Brooks. His September 18, 2003 report stated:
The Entergy Engineering Design/Practices Manual states, "A lightning stroke to a power line will usually result in the current being distributed over several paths with current flowing through any single arrester about 1/10 the total stroke current." The paragraph also includes the text, "Very high current lightning strokes or a direct stroke to the arrester could cause destructive currents to flow through the arrester." (Emphasis in original document.)
Entergy employees who visited the location for the first time on April 8, 2000, found significant damage to the transformer. The bottom of the steel tank had been blown out. The experts of both sides agreed that such destruction of the tank by lightning was as great as they had ever witnessed. A photograph taken during that initial site visit showed that the arrester, however, sustained no apparent damage. That photograph (Def.Ex.2) is the only remaining evidence of the arrester preserved for trial. Critically, while the damaged transformer was retained, Entergy failed to physically examine or retain the arrester. This action became the subject of a spoliation of evidence claim by plaintiffs which is addressed below.
In March 2001, the Hanks and Encompass, as subrogee, instituted a suit for damages against Entergy and Howard, the manufacturer of the transformer, alleging that Entergy negligently failed to maintain and inspect the electrical equipment servicing the dwelling. The matter proceeded to trial only on the issue of Entergy's negligence in failing to properly maintain and inspect the surge arrester which allegedly caused the destruction of the Hanks' camp.[2] After reviewing the evidence and testimony, the trial court ruled in favor of the Hanks and Encompass, rejecting claims by the Hanks regarding spoliation of evidence and the application of res ipsa loquitur. The trial court concluded that because of lack of damage to the arrester, it failed to operate resulting in a breach of Entergy's duty to the plaintiffs. This appeal by Entergy ensued.
Discussion
I.
On appeal, the Hanks contend that the trial court erred in concluding that the evidence failed to support a finding of spoliation of evidence. Where a litigant fails to produce evidence available to him and he does not provide a reasonable explanation, the presumption is that evidence would have been unfavorable. That presumption does not apply where the litigant explains the failure to produce the evidence. Small v. Baloise Ins. Co. Of America, 96-2484 (La.App. 4th Cir.3/18/98), 753 *1135 So.2d 234, writ denied, 98-1345 (La.7/2/98), 724 So.2d 733. In rejecting the spoliation of evidence claim, the trial court observed as follows in the reasons for judgment:
The evidence does not support a finding that Entergy spoliated the evidence. Alton Riser, an Entergy employee for many years, testified that the arrester was probably removed from the transformer and discarded in accordance with standard operating procedures of Entergy shortly after the apparatus was removed from the scene on or about April 8, 2000. There is no evidence that Entergy intentionally destroyed the arrester to deprive plaintiffs of its use. At the time the arrester was discarded, no litigation was pending, and Entergy officials probably were not aware of a potential claim.
The trial court further concluded that plaintiffs must bear some responsibility for the loss of the arrester because their own investigator visited the scene prior to Entergy's knowledge of the fire loss claim and took no steps to preserve the arrester. Further, the court observed that Encompass's counsel made no formal request that Entergy preserve the arrester, although it made a request for the transformer.
The conclusions of the trial court are borne out by the evidence before us. Thus, for the reasons expressed by the trial court, we find no error in the rejection of the spoliation of evidence claim.
II.
Entergy's assignments of error focus on the unusual Act of God event which occurred in this case and the failure of the Hanks to establish the cause of the fire loss as being separate from the massive, and allegedly uncontainable, lightning strike.
An Act of God in common law terminology is a concept similar to the civilian doctrine of force majeure, a superior or irresistible force that is, in the legal sense, sufficient to excuse a defendant's neglect of a duty and relieve him of liability to a plaintiff. Caldwell v. Let The Good Times Roll Festival, 30,800 (La.App.2d Cir.8/25/98), 717 So.2d 1263, writ denied, 98-2489 (La.11/25/98), 729 So.2d 566. This concept, or defense, which excuses a defendant from liability, has been defined as a providential occurrence or extraordinary manifestation of the forces of nature which could not have been foreseen and the effect thereof avoided by the exercise of reasonable prudence, diligence and care or by the use of those means which the situation renders reasonable to employ. Id.
An injury caused by an Act of God is an injury due directly and exclusively to natural causes which could not have been prevented by the exercise of reasonable care and foresight. Id. The party pleading an affirmative defense has the burden of proving it by a preponderance of the evidence. Abadie v. Markey, 97-684 (La.App. 5th Cir.3/11/98), 710 So.2d 327.
In this case, there is clearly a substantial body of undisputed evidence regarding this 87.9-KA strike. The evidence indicates that this was a positive strike which, unlike a negative lightning strike, was probably a single stroke connecting to ground with high current, approaching in magnitude the greatest lightning strikes which are experienced in thunderstorms. The blown out bottom of the steel transformer evidenced a destructive force from the lightning's current which had rarely been seen by the experts. The strong current, or overvoltage, experienced by the transformer was the same overvoltage event that was visited upon the home as the large charge from the strike sought to be grounded by the opposing electrical force from earth.
*1136 In its written opinion, the trial court recognized, as the evidence showed, the possibility that lightning of this strength "was of such a force and magnitude that the capacity of the arrester was overwhelmed rendering the arrester incapable of performing its intended function." Likewise, the Hanks did not assert that Entergy owed the obligation to equip the pole for the service drop to their home with an arrester capable of withstanding a direct hit by an 87.9-KA strike. Instead, the Hanks sought to establish that a direct hit did not occur on the pole or in such close proximity thereto so as to overwhelm a properly functioning arrester. The Hanks' expert, Lacie Smith, placed the location of the strike beyond the pole on the distribution lines so that the full current, or Act of God force, was dissipated along the distribution system away from the Hanks' property and transformer.
From this initial overview of the dispute, there are three undisputed points which cannot be overlooked. First, an overwhelming Act of God strike did occur in this case and at least a portion of the current from the strike caused the loss of the home. Next, while the exact location of the strike determines the magnitude of electrical force visited upon the arrester, there is no direct evidence demonstrating where the current from the sky made contact with the current from the ground. There was no charring of the utility pole, as with a tree struck by lightning, allowing the Entergy experts to clearly point to that location. Likewise, there was no injury to the distribution lines that allowed the plaintiffs to establish a clear location for their view of the occurrence. Third, because of the size of the strike, the evidence indicates that a direct strike near the subject utility pole would not protect the transformer or prevent the additional surge of current through the home, regardless of whether the arrester was in its proper working condition. These factors, which are beyond dispute, presented the Hanks a formidable task of proving causation distinct from this force of nature.
Under Louisiana law, most negligence cases are resolved by employing a duty/risk analysis. The determination of liability under this analysis usually requires proof of five elements: (1) proof that the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (2) proof that the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (4) proof that the defendant's substandard conduct was the legal cause of the plaintiff's injures (the scope of liability element); and (5) proof of actual damages (the damage element). Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606. If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable. Id. Proof is sufficient to constitute a preponderance of the evidence when the entirety of the evidence, both direct and circumstantial, establishes the fact or causation sought to be proved is more probable than not. Cay v. State, Department of Transp. and Development, 93-0887 (La.1/14/94), 631 So.2d 393. Circumstantial evidence is evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654 (La.1989), citing W. Prosser & W. Keeton, The Law of Torts, § 39, at 242 (5th Ed.1984). Use of circumstantial evidence and the deductions and inferences arising therefrom is a common process for establishing liability in negligence cases. Cangelosi v. Our Lady of the Lake Regional Medical Center, supra. However, the inferences drawn from the *1137 circumstantial evidence must cover all the necessary elements of negligence, and the plaintiff must still sustain the burden of proving that his damages were more likely than not the result of the defendant's negligence. Id. If a plaintiff relies on circumstantial evidence to prove his case, that evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty. Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 04-1058 (La.12/1/04), 893 So.2d 1. This does not mean, however, that the circumstantial evidence must negate all other possible causes. Id.
The jurisprudence has established two levels of duty of care owed by power companies. Pillow v. Entergy Corp., 38,384 (La.App.2d Cir.9/18/02), 828 So.2d 83, writ denied, 02-2575 (La.12/13/02), 831 So.2d 987. When the risk involves electrocution, the duty is of utmost care; in cases which involve accidents other than electrocution, that occur on the property of the customer and are allegedly caused by some action or inaction on the part of the electric utility company, the utility company's duty is to use reasonable care in the installation, operation and maintenance of their electric lines. Id.[3] An electric company is not the insurer of the property of its customers, and is not legally bound to safeguard against occurrences that cannot be reasonably expected or contemplated. Schulze v. Louisiana Power and Light Co., 551 So.2d 22 (La. App. 4th Cir.1989), writ denied, 556 So.2d 1280 (La.1990); Vincent v. Beauregard Elec. Co., Co-op., Inc., 536 So.2d 798 (La. App. 3d Cir.1988), writs denied, 546 So.2d 164 (La.1989).
Whether the defendant's conduct was a substantial factor in bringing about the harm, and, thus, a cause-in-fact of the injuries is a factual question to be determined by the factfinder. Perkins v. Entergy Corp, supra. A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Id. In order to reverse a trial court's determination of fact, an appellate court must review the record in its entirety. On review, the appellate court must be cautious to not re-weigh evidence or to substitute its own factual findings just because it would have decided the case differently. Id. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id.
The evaluation and resolution of conflicts and expert testimony are factual issues to be resolved by the trier of fact. Thus the court has discretion as to the admissibility and weighing of expert testimony Lasyone v. Kansas Southern R. R., 00-2628 (La.4/3/01), 786 So.2d 682.
Plaintiffs' expert, Smith, testified that the failure of the lightning arrester caused the failure of the transformer and the fire. Smith confirmed that the path of the strike led from the highest line of the distribution service system down through a line to the arrester, and then through the line called the H1 lead into the top of the transformer tank. As shown by the attached copy of Plaintiff's Exhibit 4, a tubular bushing device *1138 situated directly on top of the tank contained the H1 lead as it entered the tank. This bushing device was blown off the top of the tank by the explosion and is seen hanging from the wires connecting it to the arrester in Defendant's Exhibit 2, the only photograph of the subject arrester taken after the fire.
That photograph taken of the transformer and arrester involved in this incident showed that the arrester had no damage. Smith testified that, with such a large lightning surge and damage to the transformer, damage to the arrester should also have occurred. Thus, Smith concluded that the arrester did not function. Smith presented two possibilities for the non-functioning arrester. He concluded that it did not work because of a defect in its switch device or because its line leading from the arrester to the side of the tank for grounding was not connected. He testified that prior functioning of the switch device which depleted the internal operation of the arrester was the most probable cause of the arrester's failure.
Plaintiffs also submitted Smith's report of findings into evidence. Smith identified photographs therein which, in relevant part, revealed a lack of overheating on a grounding conductor on the side of the transformer pole. Smith testified that had the arrester been properly connected and functional, the large strike would have produced heating on the ground wire. Smith also explained a photo of the connecting clamp on the side of the transformer tank where a ground line connection for the arrester was located. He saw evidence of arcing at that connection indicating to him that the connection to ground was loose. Smith also identified a photograph of the meter base at the Hanks' camp which depicted melting of aluminum service drop conductors that indicated an overload. Nevertheless, he agreed that due to the complete destruction of the home, a specific point of origin of the fire could not be determined.
Smith was present at the destructive testing and analysis of the damaged transformer conducted for the purpose of determining the damage that had occurred to the transformer. He identified photographs of that process which revealed damage to the windings within the transformer and the H1 lead. Smith opined that the surge of electricity which destroyed the transformer entered through the H1 lead. Smith testified that the lightning hit the distribution line near the lightning arrester due to the magnitude of the damage to the transformer. He opined that with the cloud-to-ground strike, the electrical current took a downward path beginning from the H1 lead into the arrester and transformer.
As to the location of the strike, Smith testified as follows on direct examination:
Q. Now, you don't have an opinion about the exact location of where the cloud-to-ground strike took place, whether it was on the line or not, do you? You don't have a specific location on that distribution line, do you?
A. No, sir, I don't. As it says, the StrikeFax reports say it could have been anywhere within 3/10 of a mile of that very point.
Q. But you believe it struck somewhere on the distribution line at or near the transformer lightning arrestor apparatus?
A. I believe it had to hit the transmission line, but that's not even an absolute, but just the magnitude of the damage that I see in the transformer tells me that it probably did.
Based upon information he read in Entergy's design manual quoted above, Smith concluded that such an arrester will generally only receive 10% of a surge of voltage *1139 coming through the distribution line because a dissipation of voltage occurs in both directions. Here, with the dissipation of the 87-KA strike, Smith estimated that the arrester would probably have received 20% or 18-KA and should have performed effectively in this case. Because it did not, Smith testified that in excess of 240 volts flowed into the Hanks' camp at the meter base and through the circuit breaker panel.
On cross-examination, Smith agreed that up to 60% of the surge could have gone through the arrester. He opined, however, that it could have handled that amount of surge as well because of a 65-KA minimum capacity for the arrester. He based this determination of capacity on an Institute of Electrical and Electronic Engineers' ("IEEE") report discussed further below. When questioned regarding the defendants' negative electron theory of lightning physics, Smith offered no view, stating that counsel was "getting beyond my own knowledge of the geophysics involved in creating a lightning strike."
Entergy presented the testimony of Dr. John K. Owens, an electrical engineer. Owens discussed at length the opposing electrical currents that flowed from the ground through the electrical system in the house. Owens testified that the lightning was a positive cloud-to-ground strike, with a negative electron flow from the ground to the cloud. Negative charged electrons flowed from the earth beneath the Hanks' property through the electrical service drop which comprises three wires leading to the transformer. Owens testified that the electron flow was from the ground up from various locations in the camp, including water, gas and electric lines. As the negative electrons flowed, voltage was generated from these ground neutral poles at the camp which produced arcing at various locations in the house. Additionally, negative charged electrons flowed from the earth around the pole where the transformer was mounted. The physical damage to the transformer, according to Owens' observation, proceeded up from the bottom of the tank to the H1 lead, instead of in a downward path.
Owens testified that the lightning struck at the top of the pole and the arrester received the full current of the strike. Owens did not agree that a loose ground clamp on the transformer tank caused the fire because a lightning strike of this magnitude would have arced across any gap in the connection seeking ground at the pole. Thus, he concluded any evidence of arcing around the grounding clamp was irrelevant. The lack of burned wiring on the pole was explained by the short duration of the strike event and the use of copper wiring which would not have had enough time to burn up. Owens saw no evidence that the transformer or arrester were not functional and testified that the lightning strike overwhelmed both devices.
On cross-examination, Owens admitted that the lightning could have hit within 1/4 mile of the pole. He also agreed that if the lightning hit far enough away, there would have been some dissipation. However, due to the damage to the transformer, Owens concluded that the lightning hit close to the transformer.
Entergy's expert, Brooks, concluded that the probable cause of the fire was a large scale lightning strike hitting at or near the transformer pole which created an over-voltage condition in the electrical wiring at the camp. Brooks also concluded that there was no evidence suggesting that the lightning arrester did not work as he did not see any evidence of deficiency in the Entergy equipment. He had never seen anything larger than a 27-KV arrester at a residence. Brooks characterized the subject lightning strike as a positive *1140 lightning strike with electron flow from ground to cloud.
Brooks testified that different grades of arresters have varying capacities to conduct levels of surge energy caused by lightning or otherwise. The distribution-grade arrester employed in this case was the standard of the industry to protect the distribution equipment at that pole. When a surge event occurs and the switch in the arrester is triggered for the grounding of the current, the capacity of the arrester to drain off the excess current can be reached and exceeded. If this happens, the current spills over into the transformer and causes damage. The capacity range for handling a lightning event is dependent not only upon the magnitude of the strike current, but also its duration. With such an event, the arrester has not failed in a strict sense, but it is not able to conduct the energy to ground fast enough.
Brooks offered his explanation of why no explosive damage occurred to the arrester. He stated that it was not unusual to have an undamaged arrester despite damage to a transformer. Damage to the arrester would result because of heat, and the heat is generated by the magnitude of current over time. He described the function of the isolator or end cap device at the bottom of the arrester. The device in the photograph (Defendant's Exhibit 2) was not shown to have been triggered. The device operates like a fuse and disengages by a heat build-up on the line leading to ground. After a surge event, according to Brooks, follow-through current from the distribution system can continue. If the grounding function of the arrester persists for a period of time, heat then builds and the end cap/isolator blows. He stated "if you have a short ... higher-than-normal magnitude of current but of a short time duration with no follow-through current," he would not "expect that the isolator disengaged to ground." He cited the blown H1 connection at the top of the transformer tank as the break in the circuit which prevented follow-through current from flowing through the arrester for any lengthy period.
Brooks concluded that the magnitude of the strike simply overwhelmed and damaged the equipment because the 87.9-KA strike was outside the range of the arrester. With that type of surge, the arrester is not able to conduct enough energy fast enough to limit the voltage rise. He testified that because of the extent of damage to the transformer, he believed the lightning hit close to the pole.
Brooks testified that even under plaintiffs' theory that the arrester did not work and that the lightning hit down the line, with dispersion, the transformer would have received only 10% of the current which would not in his opinion have been enough to blow the transformer. Brooks referred to the Entergy standards in concluding that if lightning hits directly on a facility, that facility might be subject to the entirety of the lightning energy rather than the normal distribution which occurs if the strike is not direct. Thus, Smith's conclusion that the arrester would have seen only 20% of the energy is in error, as all agree this was a very close strike.
Finally, in answer to questions by the trial court over the cloud-to-ground v. ground-to-cloud controversy, Brooks said the ground-to-cloud flow:
"... makes a difference as to a firecause scenario in that you have a charge coming from various points in the area that build up to make the leader that goes up in the air to ultimately connect with a cloud which allows the path for the return stroke and the electrons coming from the ground would include those parts that are connected to the house, so it makes a difference from that standpoint. As far as the arrester function, *1141 the arrester doesn't care which direction the electrons are flowing. It's looking at a voltage difference, and when the voltage builds up above 27,000 volts, it's going to close the switch. It's going to conduct regardless of whether the electrons are flowing from the ground to the cloud or the cloud to the ground that result in a voltage buildup or a voltage gradient across the equipment."
In reviewing the expert testimony, we first observe the lack of a detailed explanation by either side explaining and comparing the capacity of the equipment and the differing amounts of the voltage that may have been generated by the 87.9-KA strike, depending on the different scenarios suggested for the strike's location. Voltage and amperage were mentioned throughout the testimony, but their interrelationship, if any, was never utilized in a specific mathematical explanation of what could have occurred as the result of the strike depending on its various disputed locations. Smith insisted that the IEEE report listed the distribution class arrester in question as having a 65-KA minimum capacity. The defense attempted to dispute this by introducing a copy of a portion of the IEEE report which showed that the more robust, heavy-duty station and intermediate-class arresters had 65-KA capacities. Owens referred to the arrester in question as a 10-KA arrester with a maximum current rating of 65-KA. The portion of the IEEE report admitted into evidence references a listing of the characteristics and specifications for the distribution-class arrester, yet neither side introduced that portion of the IEEE document. Additionally, despite the destructive testing of the damaged transformer, Smith admitted that he made no calculations regarding the amount of voltage that could have caused the damage he observed.
Smith's opinion also utilized the authority of the Entergy engineering design manual, yet that manual was clearly a two-edged sword. Smith asserted the manual's proposition that a lightning strike to a power line "will usually result" in only 10% of the current surge being handled by an arrester. The evidence also showed that the ground relief for lightning along the distribution line occurred only on those poles with the transformer/arrester set-up and not on every pole along the distribution line. Smith's written report expressed the principle that "the fault current generated by a lightning strike seeks the least resistive path to the earth (ground)." The Hanks' utility pole was at a dead-end on the Entergy distribution line. There was no evidence presented regarding the next nearest transformer/arrester location up the line where additional ground relief might have occurred.
On the other hand, the defense view was that the ground relief to the 87.9-KA strike, once it contacted the electrical system near the pole, had to have occurred through both the ground rod at the pole and the ground rod and utility connections at the home. Smith explained, in questioning by the trial court, that he doubled the 10% rule of the Entergy manual to 20% because of the dead-end location of the Hanks' pole. Nevertheless, regarding this location-based choice of 20%, he does not explain why the Entergy manual's caveat, that "very high current lightning strokes or a direct stroke to the arrester could cause destructive currents to flow through the arrester," was not an equally operative event, which, instead of causing a surge of 20% of the strike, might extend the surge upward to 100% of the strike.
From this evidence and expert testimony, Smith's view of the strike location down the distribution line, yet close to the pole, presents a scenario that remains very *1142 close to those locations where a catastrophic event was inevitable. If the location was too remote from the pole, the transformer would not be expected to experience such extreme damage that did in fact occur. If the location is too close, the transformer and house were doomed, with or without the arrester, by the overwhelming force majeure. Also, in placing this strike in such a precise location away from the pole where the reduced force majeure might have been handled by the arrester, the Smith scenario must overcome the inference that the arrester, which had previously operated for four years, could be expected to function.
Third, we do not find that the evidence supports the conclusion that a catastrophic lightning event near the pole would have caused physical damage to the arrester that should have been seen in the Defendant Exhibit 2 photo, after the strike. The trial court's ruling rested upon its conclusion that "[c]ommon sense supports Smith's opinion that an undamaged arrester next to a totally destroyed transformer indicates that the arrester was defective in operation or attachment." The undisputed evidence of the separate functions of the two devices, the configuration of the electrical wiring over which the lightning's current flowed, and Smith's own alternative view of the operation of the arrester demonstrates to us the contrary.
The transformer, as explained in the trial testimony, is composed of massive windings which carry the current through wound electrical coils in a process to reduce the voltage. The high voltage charge from the H1 lead enters the transformer and meets the resistance of the windings. The over-voltage surge in this case, upon meeting such resistance, caused arcing through the transformer and the explosion. On the other hand, the description of the arrester did not include the use of such windings. The current would flow on the wire into and out of the arrester and directly into the transformer unless the switch device operated. Because the lightning's current did not meet with the same resistance in the two devices, a comparison of the massive explosion of the transformer with the lack of explosion in the arrester was not shown by the evidence to be appropriate. Most significant, the configuration of the electrical path which the lightning's current followed demonstrates that the same powerful current that destroyed the transformer flowed through the arrester without apparent damage. Clearly, Smith's view that the problem was possibly a loose connection of the ground wire from the arrester at the clamp on the transformer's tank, admits that the same destructive force of the current which was ultimately visited upon the transformer could have flowed through the arrester without visible damage after the proper operation of the switch device.
With these facts and Brooks' more detailed explanation of why the arrester could survive a catastrophic strike without visible physical damage, the plaintiffs offered inconclusive proof to isolate a cause of the loss that is more probable than the Act of God event which unquestionably occurred near the equipment. The undisputed fact is that a powerful surge from the lightning passed through the wiring of the arrester, causing massive damage to the transformer. Even if the surge was only 20% of the magnitude of the strike, it was a very destructive force which was impressed, to some extent, across the arrester, giving rise to the inference that a catastrophic strike on or near the pole could have left the arrester upon observation in the same undisturbed condition. Thus, the condition of the arrester as seen in the post-accident photo does not establish that the location of the lightning strike was so remote from the utility pole that the arrester could have operated to change the outcome of this force of nature.
*1143 Finally, regarding the defense view of the event, Entergy's experts held to the opinion that there was some grounding of the lightning current at the utility pole. However, the capacity of the ground wire running down the pole was overwhelmed, allowing the current to seek ground down the service drop lines to the house. This view has support in the configuration of ground wiring at the utility pole as explained by Smith. He stated that the pole's ground wire was attached to (i) the arrester, (ii) the steel tank of the transformer, and (iii) the neutral (ground) wire running from the transformer to the house. All three were grounded at the pole. Additionally, Brooks stated that there were two grounding connections on the tank of the transformer, so that Smith's identification of a possible loose clamp for the ground wiring at one of the connections on the transformer does not rule out the conduction of the current to ground at the pole. Thus, even with the lack of a ground function by the arrester as opined by Smith, he offered no explanation why the surge experienced by the transformer, even at only 20% of the lightning's strike, was not grounded entirely at the pole because of the grounding of the transformer itself. The pole was clearly the nearest source to ground for this lightning strike under either side's theory. Thus, with the evidence showing that the current which arced through the windings in the transformer could have been conducted through the ground connections on its steel tank, that undisputed ground source was apparently overwhelmed by the magnitude of the strike.
Conclusion
The evidence in this case did establish that an unusual and massive lightning strike occurred very near the utility pole. Lightning of lesser intensity can be controlled and contained by the utility company's reasonable care with its employment of surge arresters. However, the strike in question was of such magnitude that it could not be prevented from causing damage by the exercise of reasonable care when the location of the strike caused most of its force to be visited upon the electrical equipment in question. The plaintiffs' case, relying on circumstantial evidence for the strike's location, did not exclude the more probable hypothesis that the location of the strike was within the area near the pole where the Act of God force overwhelmed the ability of the equipment to ground the massive charge at the utility pole and prevent the fire. Accordingly, we find that the trial court's conclusion to the contrary was manifestly erroneous and the judgment is reversed. Costs of appeal are assessed to appellant.
REVERSED.
*1144 APPENDIX I
NOTES
[1] These included reports issued by StrikeNet and StrikeFax which the experts explained are generated by the same company under different names. The company sets out a network of antennas and grids around the country to register and pinpoint lightning strikes.
[2] The parties stipulated to damages.
[3] This duty may arguably arise from Entergy's service contract to supply electrical power to the Hanks' camp, the breach of which may give rise to liability in tort. Borden Inc., v. Howard Trucking Co., Inc., 454 So.2d 1081 (La.1983). The duty may also originate in the general duty of reasonable care owed by Entergy to any customer. Stephens v. International Paper Co., 542 So.2d 35, 39 (La.App. 2d Cir.1989), Marvin J., dissenting. Identification of the source of Entergy's duty is unnecessary as each applies the identical standard of care. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920520/ | 921 So.2d 697 (2006)
Bobby MARTIN, Appellant,
v.
STATE of Florida, Appellee.
No. 4D04-2940.
District Court of Appeal of Florida, Fourth District.
February 8, 2006.
Rehearing Denied March 21, 2006.
*698 Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
The defendant appeals his conviction and sentence for attempted robbery with a firearm, possession of a firearm by a convicted felon, and resisting arrest without violence. He argues the trial court erred in denying his motion to suppress and his motion to correct sentence. We find the trial court erred in denying his motion to suppress because the Miranda[1] warnings were inadequate. We find no other error. We reverse and remand the case for a new trial.
The State charged the defendant with burglary of a dwelling with a firearm, attempted robbery, possession of a firearm by a convicted felon, and resisting arrest with violence. The defendant moved to suppress his statement to the detectives, arguing the statement was involuntary because of police brutality, and because the detectives failed to warn him of his right to counsel "during" questioning. The court denied the motion on both grounds. The jury found the defendant not guilty of the burglary, but convicted him of the remaining charges. The court sentenced the defendant to 30 years in prison with a mandatory minimum of 10 years. He now appeals his conviction and sentence.
We follow well-recognized rules when reviewing trial court orders on motions to suppress. First, we accept factual findings that are supported by competent, substantial evidence. Underwood v. State, 801 So.2d 200, 202 (Fla. 4th DCA 2001). Second, we review questions of law de novo. Id.
*699 We find no error in the denial of the motion to suppress based upon the defendant's claim of police brutality because there was competent, substantial evidence to support the trial court's finding that no brutality occurred.
However, our court has previously held that Miranda warnings similar to those given in this case are deficient. See Roberts v. State, 874 So.2d 1225, 1228 (Fla. 4th DCA 2004). In Roberts, we held that warnings failing to advise a defendant of the right to counsel "during" questioning are constitutionally defective. See id.; Bross v. State, 898 So.2d 1027 (Fla. 4th DCA 2005). The warnings given in this case suffer from the same defect. We must therefore reverse the order denying the motion to suppress on this basis and remand the case for a new trial.
We find no error in the State's notice of intent to seek enhanced sentencing. See Washington v. State, 895 So.2d 1141, 1143 (Fla. 4th DCA 2005).
REVERSED and REMANDED.
STEVENSON, C.J., and WARNER, J., concur.
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2534492/ | 49 So.3d 1279 (2011)
DIAZ
v.
STATE.
No. 4D10-1490.
District Court of Appeal of Florida, Fourth District.
January 10, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621994/ | 853 So. 2d 24 (2003)
Douglas FAULKNER and Gloria Faulkner
v.
THE McCARTY CORPORATION, Owens Corning Fiberglas Corporation, Combustion Engineering, Inc., Garlock, Inc., Pittsburgh-Corning Corporation, Rock Wool Manufacturing Company, Anco Insulations, Inc., Acands, Inc., Rapid American, et al.
No. 2002-CA-1337.
Court of Appeal of Louisiana, Fourth Circuit.
June 11, 2003.
Rehearing Denied September 9, 2003.
*26 John F. Dillon, John F. Dillon, PLC, and Frank Swarr, Mickey P. Landry, Landry & Swarr, L.L.C., and Donni E. Young, Scott Galante, Ness, Motley, PA, New Orleans, LA, for Plaintiff/Appellant.
Francine Weaker, New Orleans, LA, and Henry E. Yoes, III, Yoes Law Firm, Lake Charles, LA, and Joseph P. Tynan, Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P., New Orleans, LA, for Defendant/Appellee.
(Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR.).
Judge TERRI F. LOVE.
Plaintiffs filed suit, asserting Douglas Faulkner was exposed to asbestos while working as a longshoreman for various stevedoring companies from 1951 through 1989. The trial was bifurcated, and the Board of Commissioners of the Port of New Orleans ("Dock Board") was the only defendant to opt for a bench trial. The remaining defendants submitted to trial by jury. The jury awarded judgment for the plaintiff, however at the bench trial, the judge entered judgment for the Dock Board. The trial court found that the Dock Board owed no legal duty to Mr. Faulkner to protect him from the injuries he sustained. For the following reasons we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
Plaintiffs, Douglas and Gloria Faulkner, filed suit on March 21, 1996, two of one hundred and fourteen plaintiffs claiming injuries due to asbestos exposure. Defendants named in the original petition were manufacturers, designers, marketers, distributors and sellers of asbestos and asbestos-related products. Plaintiffs later added the Board of Commissioners of the Port of New Orleans "Dock Board"). The case against the Dock Board was decided by the trial judge under La. R.S. 13:5105. The trial was bifurcated and the Board of Commissioner's liability was considered and adjudicated independent of the jury verdict. The instant appeal concerns only the judgment as to the Board of Commissioners for the Port of New Orleans.
Mr. Faulkner worked as a longshoreman from 1951 to 1989, loading and discharging cargo. Mr. Faulkner's exposure to asbestos occurred while working for numerous stevedoring companies, during which time he loaded and unloaded sacks of pure asbestos at the terminal, ways, roads, sheds and warehouses, namely the Cotton Warehouse, at the Port. Mr. Faulkner was never an employee of the Dock Board.
Douglas Faulkner died on August 21, 1998, of a malignant mesothelioma as a result of asbestos exposure. His son Douglas Faulkner, Jr., was substituted in the survival action and asserted a wrongful death claim.
*27 DISCUSSION
In their assignment of error, the plaintiffs assert that the trial court erred as a matter of law in concluding that there exists no legal duty for the Board of Commissioners of the Port of New Orleans. Duty is a question of law; the inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. Perkins v. Entergy Corp., 98-2081, p. 22 (La.App. 1 Cir. 12/28/99), 756 So. 2d 388, 403. As a question of law, duty is a legal question subject to de novo review on appeal. Id. Therefore, this Court will review de novo whether the trial court committed legal error in finding that the Dock Board owed no legal duty to the plaintiffs for Mr. Faulkner's injury.
The plaintiffs sought relief under the theories of negligence and strict liability at trial. However in the plaintiffs' appellate brief, they assert that the Dock Board breached its duty to warn Douglas Faulkner of the alleged unsafe conditions at the Cotton Warehouse. The plaintiffs' did not assert this claim at the trial court level; therefore, this Court will not consider it. [I]ssues not brought before the trial court cannot be considered on appeal. See Wilson v. Head, 97-0992, p. 1 (La.App. 3 Cir. 2/4/98), 707 So. 2d 127, 128.
We will first address the plaintiffs' claims of negligence against the Dock Board.
The plaintiffs argue that the Dock Board owed a legal duty to the plaintiffs under the "public duty doctrine". The "public duty doctrine" states that a plaintiff cannot recover against a governmental entity or public official or their employees or officers unless he can prove facts which show that the defendant owed him a special duty outside of the duty owed to the general public. Boguille v. Chambers, 96-1173, p. 6 (La.App. 4 Cir. 12/11/96), 685 So. 2d 582, 586 (citing Kramer v. Continental Casualty Co., 92-1131 (La.App. 3 Cir. 6/22/94), 641 So.2d 557).[I]n jurisdictions where the "public duty doctrine" is applied, it is subject to the important exception that liability can be founded upon the violation of a duty that would be generally considered to be owed to the public, if the statute or ordinance setting forth the duty indicates, by its language, that the duty is designed to protect a particular class of individuals. Stewart v. Schmieder, 386 So. 2d 1351, 1358 (La.1980). However, our Supreme Court has rejected the "public duty doctrine". In Cormier v. T.H.E. Ins. Co., 98-2208 (La.9/8/99), 745 So. 2d 1, the Court discussed the application of the "public duty doctrine as follows:
At the outset, we reject the application of the Public Duty Doctrine. Although the validity of the Public Duty Doctrine has remained somewhat speculative in the lower courts, this court in Stewart v. Schmieder, 386 So. 2d 1351, 1358 (La.1980), and Fowler v. Roberts, 556 So. 2d 1 (La.1989), rejected the doctrine. Viewing the holdings in Stewart and Fowler together, this court has found that even though the public nature of a duty does not preclude liability on the part of a governmental entity, this does not mean a governmental body will be liable each time a person's injury could have been prevented by a public official's proper performance of his duty. Duty and liability must be decided according to the facts and circumstances of each case. This is accomplished under the duty risk analysis.
Id. 98-2208, p. 5, 745 So.2d at 6.
Since the Supreme Court rejects the "public duty doctrine", the plaintiffs may not employ it to establish a duty on the part of the Dock Board. We are directed *28 by the Supreme Court to perform duty-risk analysis to the facts of this particular case.
The duty-risk analysis is employed on a case-by-case basis. McGuire v. New Orleans City Park Improvement Ass'n., XXXX-XXXX, p. 6 (La.1/14/03), 835 So. 2d 416, 420. Under the duty-risk analysis, the plaintiff must satisfy the following to prove negligence; the plaintiff must prove that: 1) the conduct in question was the cause-in-fact of the resulting harm, 2) the defendant owed a duty of care to the plaintiff, 3) the defendant breached that requisite duty and 4) the risk of harm was within the scope of protection afforded by the duty breached. Id. (citing Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So. 2d 585). If the plaintiff fails to satisfy one of the elements of duty/risk, the defendant is not liable. Pitre v. Louisiana Tech University, (La.1996), 673 So. 2d 585, 589. Duty is a question of law: simply put, the inquiry is whether the plaintiff has any law statutory or jurisprudence- to support his claim. Absent a duty to the plaintiff, there can be no actionable negligence and hence no liability. Polk v. Blanque, 93-1740 (La.App. 4 Cir. 3/15/94), 633 So. 2d 1382. Governmental agencies may be subjected to the imposition of duties by legislation, ordinance or rule of law, the breach of which may result in liability for damages to those injured by a risk contemplated by that duty. Cormier, 98-2208, p. 7, 745 So.2d at 8. The court's role is to determine whether there is any jurisprudential or statutory rule, or policy reason why, under the facts and circumstances of the case, the state would owe a duty to compensate plaintiff for his injuries. Id. 98-2208, pp. 7-8, 745 So.2d at 8.
The plaintiffs presented copious testimony regarding Mr. Faulkner's work experience, whether or not he worked with asbestos, and whether the Cotton Warehouse was properly ventilated. Plaintiffs' expert Frank Parker, III, an industrial hygienist, testified that the Dock Board should have been on notice about the danger of asbestos since 1943 when it hosted the Gulf Coast Safety Conference, where asbestos related issues were discussed. However, he also admitted that the conference was for shipbuilders and that the Dock Board representative was present only as a part of the welcoming committee. Mr. Parker then suggested a ventilation system that, in his opinion, should have been in place in the Cotton Warehouse at the time Mr. Faulkner worked there. Mr. Parker's opinions were directly refuted by the defense expert, Tracy Dodd, an expert in toxicology, environmental safety regulations, and health and risk assessment, who testified that Mr. Parker's ventilation plan would have actually made the Cotton Warehouse more dangerous, not just for the men working there, but for the surrounding neighborhoods. Ms. Dodd also suggested that Mr. Parker was using current knowledge and technology that was not available at the time Mr. Faulkner was injured. Lastly Mr. Parker admitted that traditionally it is the employer who is responsible for making the work conditions safe for its employees.
The plaintiffs failed to present any applicable statutory or jurisprudential rule that establishes the Dock Board owed a duty to the plaintiffs, during the time of Mr. Faulkner's employment, to protect him from the injuries he sustained. As such, since no duty existed, the Dock Board may not be found liable for Mr. Faulkner's injury.
The plaintiffs alternatively argue that the duty owed by the Dock Board to the plaintiffs is the product of the lessor/lessee relationship between the Dock *29 Board and Mr. Faulkner's various employers.
La. R.S. 9:3221 provides:
The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone of the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.
The exception to the rule of La. R.S. 9:3221 is that, even if a property owner contracts away his responsibility for maintaining his premises to his lessee, the owner can still be held liable if he knew or should have known of a defect in the property and failed to remedy it within a reasonable time. Audler v. Board of Comm'rs of the Port of New Orleans, 617 So. 2d 73, 77 (La.App. 4th Cir.1993).
In the instant case we find that the evidence clearly demonstrates that when the Dock Board leased its warehouses, it gave complete control of those warehouses to the lessee. The Dock Board presented ample evidence that it was unaware of particular cargoes being stored at its warehouses. The Dock Board also showed that it was not aware that there was a defect in the ventilation system of its warehouses that it could remedy. The plaintiffs did not establish that the Dock Board knew or should have known about the lack of ventilation in its warehouses, and that the Dock Board, with this knowledge, failed to remedy the defect. The plaintiffs did not present evidence of the industry standard at the time of Mr. Faulkner's employment to show the Dock Board had notice of the defect, nor did the plaintiffs establish the Dock Board was aware that asbestos was being stored in its warehouses. Plaintiffs only posit assumptions and allegations to support their claims. Further, the plaintiffs' own expert admitted that it is the individual employers who would insure the safety of their employees, rather than the Dock Board. Since the plaintiffs did not establish that the instant case falls under the exception of La. R.S. 9:3221; the plaintiffs' assertion of duty under this statute is without merit.
The plaintiffs' claims fail the duty/risk analysis outlined in Cormier because the facts and evidence presented by the plaintiffs do not articulate a legal duty owed to Mr. Faulkner by the Dock Board to protect him from the injuries he sustained. Further, the plaintiffs fail to establish a duty under the lessor/lessee relationship provided for in La. R.S. 9:3221. We therefore find that the trial court was correct in ruling the plaintiffs did not establish the Dock Board owed a duty to Mr. Faulkner to protect him from his injuries.
We will now address plaintiffs strict liability claim. In order to maintain a cause of action for strict liability, plaintiffs must prove:
1) The thing which caused injury must be in the care, custody and control of the defendant;
2) The thing had a vice or defect which created an unreasonable risk of harm;
3) The injuries in question were caused by said defect.
See Borruano v. City of Plaquemine, 720 So. 2d 62, 64 (La.App. 1 Cir.1998).
In Loescher v. Parr, 324 So. 2d 441, 451 n. 7 (La.1975), the Supreme Court defined article 2317 "custody":
The things in one's care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them. This relationship *30 will ordinarily be associated with ownership, but the guardianship will also belong to the bailee, the lessee, the usufructuary, the borrower for use and the repairmen, among others ... The owner may transfer the guardianship by transferring the thing to another who will bear such a relationship to the thing as to himself have the care of it.
To find defendant liable under a theory of custodial liability pursuant to La. C.C. art. 2317, it must be shown that defendant either "owned or had care, custody, or `garde'... and that under the circumstances... presented an unreasonable risk of harm which resulted in the plaintiff's damage." Ledet v. Montgomery Elevator Co. & XYZ, 94-0411, p. 5 (La.App. 4 Cir. 10/13/94), 644 So. 2d 1075, 1078 (citing Rabito v. Otis Elevator, 93-1001, p. 15 (La.App. 4 Cir. 2/11/94), 633 So. 2d 368, 376). The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction. La. C.C. Art. 2322. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise reasonable care. Id.
The plaintiff did not present sufficient evidence at trial to prove the Dock Board knew that asbestos was being stored in their warehouses. Joseph Orlesh, Jr., an employee of the Dock Board since 1973, testified that the Dock Board had no specific knowledge of what cargoes were being stored in its warehouses, and that once vessels cleared U.S. Customs, space that was leased from the Dock Board to load, unload and store cargo was in the sole control of the lessee. The warehouses were only defective with regard to the ventilation system, once asbestos was brought onto the premises. Under La. C.C. art. 2322 this precludes strict liability on the part of the Dock Board. Additionally, the Dock Board gave the lessees complete care, custody, and control over the warehouses, which precludes strict liability under La. C.C. art. 2317. Further, the plaintiffs did not establish that the Dock Board was aware of the danger of asbestos at the time of Mr. Faulkner's employment, such that it created an unreasonable risk of harm, making the Dock Board strictly liable for Mr. Faulkner's injuries.
Therefore, we find that the trial court was correct in finding that the Dock Board was not strictly liable for Mr. Faulkner's injuries.
CONCLUSION
For the foregoing reasons, we find that the trial court was correct in finding that the Dock Board was not negligent because it owed no legal duty of care to Mr. Faulkner, nor can the Dock Board be found strictly liable for Mr. Faulkner's injuries.
AFFIRMED.
CANNIZZARO, J., CONCURS WITH WRITTEN REASONS.
CANNIZZARO, J., CONCURS WITH REASONS.
I respectfully concur in the majority opinion to affirm the trial court judgment dismissing the plaintiffs' suit against the Board of Commissioners of the Port of New Orleans ("Dock Board"). In rendering judgment, the trial court concluded that the Dock Board owed no duty to Douglas Faulkner to protect him from the injuries he sustained, i.e., malignant mesothelioma.
The majority correctly holds that the Dock Board owed no duty to Mr. Faulkner under the "Public Duty Doctrine," as the *31 Louisiana Supreme Court expressly rejected the doctrine in Stewart v. Schmieder, 386 So. 2d 1351, 1358 (La.1980), Fowler v. Roberts, 556 So. 2d 1 (La.1989), and Cormier v. T.H.E. Ins. Co., 98-2208, p. 5 (La.9/8/99), 745 So. 2d 1, 6. Thus, as the Court noted in Fowler, supra, duty and liability must be decided according to the facts and circumstances of each case using the duty-risk analysis. Fowler, 556 So.2d at 7.
The Supreme Court adopted the duty-risk analysis in Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So. 2d 620 (1972). See also Mart v. Hill, 505 So. 2d 1120, 1122 (La.1987). Under this analysis, the plaintiff must prove:
(1) the conduct in question was the cause in fact of the resulting harm;
(2) the defendant owed a duty of care to the plaintiff;
(3) the requisite duty was breached by the defendant; and
(4) the risk of harm was within the scope of protection afforded by the duty breached.
Mundy v. Dept. of Health and Human Resources, 620 So. 2d 811 (La.1993); Faucheaux v. Terrebonne Consolidated Government, 615 So. 2d 289 (La.1993). If the plaintiff fails to satisfy one of the elements of the duty-risk analysis, the defendant is not liable. McGuire v. New Orleans City Park Improvement Ass'n, XXXX-XXXX (La.1/14/03), 835 So. 2d 416. The question of whether a duty exists in a particular set of circumstances is a question of law for the court to decide. Id.; Harris v. Pizza Hut of Louisiana, Inc., 455 So. 2d 1364, 1371 (La.1984). Whether a defendant has breached a duty is a question of fact. Mundy, supra.
The Dock Board's liability to the plaintiffs may arise under a theory of negligence, La. Civ.Code art. 2322[1], or a theory of strict liability, La. Civ.Code art. 2317[2]. Under both articles, liability hinges on whether the defendant has breached his duty to the plaintiff. Hunter v. Department of Transportation and Development, 620 So. 2d 1149, 1151 (La.1993). While the basis for determining the existence of the duty is different in article 2317 strict liability cases and in ordinary negligence cases, the duty that arises is the same. Kent v. Gulf States Utilities Co., 418 So. 2d 493 (La.1982). The distinction between recovery under these theories is that under strict liability a plaintiff is relieved of proving the owner or custodian of the thing that caused the damage knew or should have known of the risk involved. Campbell v. Louisiana Department of Transportation and Development, 94-1052, p. 4 (La.1/17/95), 648 So. 2d 898, 901.
In general, the owner or operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm. Id.; St. Hill v. Tabor, 542 *32 So.2d 499, 502 (La.1989); Harris, 455 So.2d at 1369; Walker v. Union Oil Mill, Inc., 369 So. 2d 1043, 1047 (La.1979). A duty may be imposed by legislation, ordinance or rule of law. Cormier v. T.H.E. Ins. Co., 98-2208 (La.9/8/99), 745 So. 2d 1.
In the instant case, the evidence at trial showed that the Dock Board had leased its warehouses to several stevedore companies for the storage of cargo that they, not the Dock Board, discharged from ships in accord with contracts between them and the vessels' owners and/or steamship agents. It is undisputed that the damage claimed by the plaintiffs, i.e., Mr. Faulkner's mesothelioma, was caused by asbestos, a hazardous material that the stevedore companies transported to and stored temporarily on the Dock Board's premises. It is also undisputed that the stevedore companies, including Mr. Faulkner's employers, had exclusive control over the asbestos cargo.
The plaintiffs put forth no direct evidence at trial that Mr. Faulkner's illness was caused by the ventilation or lack of ventilation or some other defect on the Dock Board's premises. Although the plaintiffs' industrial hygiene expert, Frank Parker, testified that the Dock Board should have had installed a ventilation system in the Cotton Warehouse at the time Mr. Faulkner worked there, the defendants' expert, Tracy Todd testified that Mr. Parker's opinion was based on current technology that was unavailable at the time Mr. Faulkner worked as a longshoreman. Furthermore, the plaintiffs put forth no expert testimony as to the industry standards in effect during the 1950's, 60's, 70's and 80's, the time of Mr. Faulkner's employment, to show that the Dock Board's warehouses were defective or unsuitable for storing asbestos containing cargo. Absent such evidence, the Dock Board cannot be held liable for the plaintiffs' damages based on its negligent failure to safely maintain its premises.
The plaintiffs contend that the Dock Board knew or should have known in the 1940's that asbestos cargo on its premises posed a danger to longshoremen such as Mr. Faulkner. Mr. Parker, the plaintiffs' expert, testified that the Dock Board should have been on notice that asbestos was a potential health hazard no later than World War II, in view of the work done in the maritime industry by the public health service. He further claimed that the Dock Board's attendance at the Gulf Coast Safety Conference in New Orleans in 1943, where asbestos related topics were addressed, provided the board with knowledge of the dangers inherent in the handling and storage of asbestos.
Joseph M. Orlesh, Jr., a witness for the Dock Board, testified that he worked for the board in various positions for thirty years, at one point directing the operations of the Port of New Orleans. Mr. Orlesh explained that the stevedore companies would lease the Dock Board's warehouses long before their cargoes ever entered the port. He further explained that the stevedores' documentation and cargo manifests from the ships, on which the Dock Board calculated its rent, generally were delayed thirty to forty-five days, and thus the board never possessed information regarding the manifest or cargo coming off the ships. Mr. Orlesh denied that the Dock Board had specific knowledge of any individual vessels importing or exporting asbestos. The plaintiffs offered no evidence to controvert Mr. Orlesh's testimony.
As to the Gulf Coast Safety Conference in 1943, the evidence in the record indicated the conference was related entirely to shipbuilding and that a representative of the Dock Board appeared merely as a member of the City's welcoming committee, along with representatives from the *33 Mayor's office, the Chamber of Commerce, and Young Men's Business Club. The plaintiffs put forth no evidence that the Dock Board built ships or vessels of any kind or owned or operated shipyards at any time from which one could reasonably conclude that the board knew or should have known of the dangers that asbestos posed to longshoreman working on its premises.
Because the plaintiffs did not prove by a preponderance of the evidence that a defect in or on the Dock Board's premises posed an unreasonable risk of harm and caused Mr. Faulkner's injury, the Dock Board cannot be held liable for the plaintiffs' damages. In the absence of evidence to show that the Dock Board knew or should have known of the safety hazards asbestos posed to longshoreman working on its premises or that it had custody and control of the asbestos on its premises, the plaintiffs have not established that the Dock Board had a duty to warn and/or protect Mr. Faulkner from the risks associated with handling the asbestos while on its premises.
As to strict liability under La. Civ.Code art. 2317, the plaintiff bears the burden of proving: (1) the thing that caused the plaintiff's injury or damage was in the care, custody and control, or garde, of the defendant; (2) the thing had a vice or defect which created an unreasonable risk of harm; and (3) the injury and/or damage were caused by the vice or defect. Sistler v. Liberty Mut. Ins. Co., 558 So. 2d 1106 (La.1990); Chaplain v. American Empire Surplus Lines Insurance Company, 98-1372 (La.App. 4 Cir. 3/31/99), 731 So. 2d 973.
As previously stated, the plaintiffs have not demonstrated by a preponderance of the evidence that the Dock Board's premises posed an unreasonable risk of harm to Mr. Faulkner. Similarly, they have not shown how the presence of asbestos, a foreign object brought onto the Dock Board's premises of which the stevedore companies had exclusive control, created a defect in the premises for purposes of establishing liability under La. Civ.Code art. 2317. In view of this, the Dock Board cannot be held strictly liable for the plaintiffs' damages.
In addition to arguing the applicability of the Public Duty Doctrine, which has been rejected in this case, the plaintiffs contend that La. R.S. 34:21 A(1)[3] and La. R.S. 34:25 B[4] impose a duty on the Dock Board to be a prudent administrator of its premises. Such a duty, the plaintiffs argue, encompassed providing a safe environment for workers such as Mr. Faulkner who handled asbestos cargo within the Dock Board's warehouses.
In Boguille v. Chambers, 96-1173 (La.App. 4 Cir. 12/11/96), 685 So. 2d 582, this Court expressly stated that La. R.S. 34:21 A(1) and La. R.S. 34:25 B allow the Dock Board to use its discretion when regulating *34 the various facilities under its administration and noted that La. R.S. 9:2798.1(B) grants the Dock Board qualified immunity from liability based upon the exercise or performance or the failure to exercise or perform its discretionary acts. Id., 685 So.2d at 588-89. Thus, in the absence of a nondiscretionary duty imposed on the Dock Board by statute or ordinance to protect third parties from risks encountered in handling hazardous materials on its premises, the trial judge did not err in concluding that the Dock Board was not liable for Mr. Faulkner's injuries.
In summary, the plaintiffs did not prove that the Dock Board owed a duty to Mr. Faulkner under theories of negligence or strict liability to warn and/or to protect him from the risks associated with the handling of asbestos on its premises. Thus, in the absence of a statute or ordinance imposing such a duty on the Dock Board, the trial court did not err in determining the Dock Board was not liable for the damages resulting from Mr. Faulkner's mesothelioma.
NOTES
[1] La. Civ.Code. Art. 2322 provides, in part:
The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise or reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
[2] La. C.C. art. 2317 provides:
We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.
[3] La. R.S. 34:21 A(1) provides:
The [Dock Board] shall regulate the commerce and traffic of the port and harbor of New Orleans in such a manner as may, in its judgment, be best for the maintenance and development thereof.
[4] La. R.S. 34:25 B provides:
The [Dock Board] shall by proper ordinances make rules and regulations for the conduct, management, and control of the port, its commerce, traffic and navigation, the waters and landings within its territorial jurisdiction, the structures and other facilities under its administration, and for the government thereof, which may, in its judgment, be necessary or proper in the exercise of the powers now conferred upon it by the constitution and statutes of the state of Louisiana, and shall, from time to time, enlarge, modify, or change such rules and regulations in its discretion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621997/ | 853 So. 2d 1031 (2002)
Doncey Frank BOYKIN
v.
STATE of Alabama.
CR-01-1394.
Court of Criminal Appeals of Alabama.
June 28, 2002.
*1032 Doncey Frank Boykin, pro se.
William H. Pryor, Jr., atty. gen., and Robin Blevins, asst. atty. gen., for appellee.
COBB, Judge.
After having been indicted for two counts of first-degree robbery, Doncey Frank Boykin pleaded guilty to two counts of second-degree robbery on June 22, 1987. The trial court sentenced him to two concurrent sentences of 15 years in prison. Boykin did not appeal.
On February 22, 2002, Boykin filed a Rule 32, Ala. R.Crim. P., petition. After the State had responded, the circuit court summarily denied the petition. This appeal followed.
We do not address Boykin's claims in his petition or on appeal. Rather, we notice, ex mero motu, a problem involving the jurisdiction of the trial court to accept one of Boykin's guilty pleas. See Ex parte Cole, 842 So. 2d 605, 609 (Ala.2002) ("When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participantan essential element of the offense of second-degree robberythe insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea.").
Boykin has attached to his petition what he alleges are copies of the indictments in these cases. The indictment in question reads as follows:
"[Boykin] did, in the course of committing a theft of Ninety-Five Dollars of the lawful currency of the United States of America, a more particular description and denomination of which is to the grand jury otherwise unknown, the property of Carolyn Snodgrass, threaten the imminent use of force against the person of Carolyn Snodgrass, with the intent to compel acquiescence to the taking of or escaping with the property, while [Boykin] was armed with a deadly weapon or dangerous instrument, to wit: a pistol, in violation of Section 13A-8-41 of the Alabama Criminal Code."
(C. 34.)[1]
"If at these guilty-plea proceedings, the indictment was `amended,' the State was required to comply with Rules 13.5(a) and 13.2(c)[, Ala. R.Crim. P.,] and to confine its `amendment' to lesser offenses necessarily included within the offense of first-degree robbery. In this respect, a defendant charged with first-degree robbery by an indictment that *1033 describes the defendant's conduct as occurring in the presence of another aiding him could plead guilty to second-degree robbery as a lesser-included offense, because robbery in the second degree requires the use of force or the threatened use of force while the defendant is `aided by another person actually present.' § 13A-8-42, Ala.Code 1975...."
"....
"When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participantan essential element of the offense of second-degree robberythe insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea. Had the trial court obtained Cole's consent to amend the indictment charging first-degree robbery by adding the fact that another participant was present, no new offense would have been charged because first-degree robbery is broad enough to include such an element. An indictment so amended, permitting a defendant to plead guilty to second-degree robbery, would not run afoul of Rule 13.5(a). That, however, did not occur here. To treat the proceedings in this case as if the original indictment included that additional fact just because Cole pleaded guilty would disregard the settled principle that one cannot consent to an improper amendment to an indictment."
Cole, 842 So.2d at 608-09.
As in Cole, one of the first-degree robbery indictments in this case apparently "fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participantan essential element of the offense of second-degree robbery...." Id.
We cannot determine from the copy of the indictment attached to Boykin's petition or from the record before us whether the indictment in question is the actual indictment from this case. We also cannot determine whether the indictment was amended with Boykin's consent. Therefore, we remand this cause to the circuit court in order for it to take evidence, if necessary, to determine whether Boykin's plea to second-degree robbery as charged in the indictment quoted above is valid.
If the circuit court finds that the indictment returned against Boykin did not contain facts sufficient to allege second-degree robbery, the plea is not valid, and it shall vacate the plea. However, Boykin's original indictment for first-degree robbery remains valid. Cole, supra. The State may try Boykin on this charge or may reindict Boykin for the proper offense. See Cole, 842 So.2d at 609 ("A reindictment after a conviction that has been held to be void does not constitute double jeopardy because, if a court is without jurisdiction, there can be no valid conviction; hence there is no jeopardy.").
Due return shall be made within 56 days of the release of this decision.
We pretermit discussion of Boykin's other claims until return to remand.
REMANDED WITH DIRECTIONS.[*]
McMILLAN, P.J., and SHAW and WISE, JJ., concur. BASCHAB, J., concurs in the result.
NOTES
[1] The other indictment is similar, but includes the fact that Boykin "aid[ed] and abet[ted] another person whose name is to the grand jury otherwise unknown." (C. 33.) Therefore, that indictment is valid and is not addressed in this opinion.
[*] Note from the reporter of decisions: On January 24, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622015/ | 853 So. 2d 1099 (2003)
Francis JEANTILUS, Appellant,
v.
STATE of Florida, Appellee.
No. 4D03-85.
District Court of Appeal of Florida, Fourth District.
August 13, 2003.
Rehearing Denied September 26, 2003.
Francis Jeantilus, Arcadia, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
FARMER, C.J.
In his motion for post conviction relief under rule 3.850, defendant contends that his trial counsel was ineffective. He alleges eighteen grounds of ineffectiveness, but we conclude that only one is not conclusively refuted by the record portions attached to the trial judge's order denying the motion.[1]
With regard to counsel's alleged failure to challenge the admissibility of his confession, the record shows that Jeantilus read and signed the "Miranda rights" waiver card. He also testified at trial that he was read and understood his rights. His defense to the taped confession was that he was "subtly coerced." He claims detectives told him that he was facing the death penalty or life imprisonment and that he would walk out of jail that day, a free man, if he gave the statement police wanted. Before the second day of trial, there was a "discussion" about the admissibility of the confession, but it was off the record. After, the court ruled the confession admissible.
There is some authority that a confession obtained as a result of a direct or implied promise of benefit or leniency is involuntary and inadmissible. See Wittemen v. State, 735 So. 2d 538, 539 (Fla. 2d DCA 1999); Fillinger v. State, 349 So.2d *1100 714, 716 (Fla. 2d DCA 1977) ("If the interrogator induces the accused to confess by using language which amounts to a threat or promise of benefit, then the confession may be untrustworthy and should be excluded."). The supreme court has held that a confession should be suppressed if:
"the attending circumstances, or declarations of those present, be calculated to delude the prisoner as to this true position, and exert an improper and undue influence over his mind."
Almeida v. State, 737 So. 2d 520, 524 (Fla. 1999) (quoting Simon v. State, 5 Fla. 285, 296 (1853)).
On the other hand, in Traylor v. State, 596 So. 2d 957, 972 (Fla.1992), where the court upheld a trial court finding that a confession was voluntary, the court expressly noted that "[d]efendant had not been offered any hope of reward, better treatment, promise of leniency, or inducement in order to get him to make those statements." To note those factors at all is to imply that "offer[ing] any hope of reward, better treatment, promise of leniency or inducement" to make a confession renders it categorically involuntary.
Without at this point ourselves holding that any hope of reward, better treatment, promise of leniency or inducement renders a confession categorically involuntary, we nevertheless recognize that some such inducements may in fact render some confessions involuntary. Indeed, if as the supreme court itself has noted in another context, "custodial utterances are extraordinarily rich in diversity," Almeida, 737 So.2d at 523, the circumstances inducing them must be equally diverse. The admissibility of such utterances is dependent on their own unique facts and the well-known "totality of the circumstances." Whether this particular incentive, "you can walk right out of here," is an improper inducement overcoming this custodial suspect's free will, thus rendering his confession involuntary, would be greatly influenced by all the surrounding facts and circumstances.
A motion to suppress such a confession is hence of great importance, in order that a full evidentiary hearing may be had to explicate those circumstances. Without such a hearing, the issue cannot be fairly joined.
In this case, we face a critical omission in the record. It appears that the voluntariness of the confession was addressed in some fashion during trial. In a most curious turn of events, however, that confrontation waswithout an explanationoff the record. We have no idea just what defense counsel did or argued or why the judge ruled as he did.
We thus have no hesitancy at this point in holding that the failure of defense counsel to insure a proper record on an issue as crucial as this is facially well below the level expected for competency. There may well prove to be a good reason for such an omission, but we simply cannot say at this point that the record conclusively belies the claim of ineffectiveness. We therefore reverse for an evidentiary hearing on this issue only.
WARNER, J., concurs.
POLEN, J., concurs in result only.
NOTES
[1] All other grounds are sufficiently refuted and are thus affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622003/ | 2007 WI 2
In the Matter of Disciplinary Proceedings Against Richard A. Engelbrecht, Attorney at Law: Office of Lawyer Regulation, Complainant,
v.
Richard A. Engelbrecht, Respondent.
No. 2006AP1045-D.
Supreme Court of Wisconsin.
Opinion Filed: January 5, 2007.
¶ 1 PER CURIAM.
We review the stipulation filed by Attorney Richard A. Engelbrecht and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12, in which Attorney Engelbrecht admits the facts and misconduct alleged by the OLR and agrees to the discipline the OLR seeks. The parties agree that the appropriate discipline is a six-month suspension of Attorney Engelbrecht's license to practice law and to condition his reinstatement on furnishing to the OLR all trust account records not previously provided from January 2001 through December 2005, along with other financial information detailed in the stipulation.
¶ 2 We approve the stipulation and adopt the stipulated facts and conclusions of law. We agree that the seriousness of Attorney Engelbrecht's misconduct warrants the suspension of his license to practice law. We accept the parties' stipulation that a six-month suspension is appropriate and their agreement to condition Attorney Engelbrecht's reinstatement on furnishing to the OLR the trust account records not previously provided.
¶ 3 Attorney Engelbrecht was admitted to practice law in 1974 and practices in Green Bay. He has been subject to disciplinary proceedings on two previous occasions; a private reprimand in 1989 and a 60-day suspension of his license in 2000. The parties stipulate that Attorney Engelbrecht's current misconduct involves two client matters. In the first matter, client B.M. retained Attorney Engelbrecht in May 2002 to represent her in a divorce action and to file a joint bankruptcy action for her and her husband prior to the conclusion of the divorce. For the bankruptcy, B.M. paid Attorney Engelbrecht $840, with $200 representing the filing fee and the balance representing Attorney Engelbrecht's legal fees.
¶ 4 Attorney Engelbrecht filed the divorce petition in August 2002 but did not file a bankruptcy petition for the next one and one-half years. Although the parties reconciled for a period of time, their divorce action resumed in October 2003 with the final judgment entered in January 2004. During the resumption of divorce proceedings, Attorney Engelbrecht requested B.M.'s husband to pay a $200 filing fee and a $600 legal fee for a joint bankruptcy petition. Attorney Engelbrecht did not mention B.M. had already paid him $840. The husband did not pay. Attorney Engelbrecht did not file the joint bankruptcy petition nor pursue an individual bankruptcy action for B.M. Upon her inquiry, Attorney Engelbrecht told her she had not paid him.
¶ 5 In the spring of 2004, B.M. found her receipts for the cash payments she had paid Attorney Engelbrecht. At that point he agreed to proceed with the bankruptcy action. However, in June 2004 the bankruptcy petition had not yet been filed, and a creditor of B.M. obtained a small claims judgment against her.
¶ 6 In July 2004 B.M. filed a grievance. It was not until September 2004 that Attorney Engelbrecht finally filed the bankruptcy action for B.M. Attorney Engelbrecht had not retained in his trust account the funds to cover the filing fee that he received from B.M. over two years earlier. He purchased a cashier's check to cover the bankruptcy filing fee.
¶ 7 In an October 2004 letter, Attorney Engelbrecht provided evasive and untrue information to the OLR regarding the divorce and bankruptcy matters.
¶ 8 Attorney Engelbrecht stipulates to three counts of misconduct arising out of his representation of B.M. Count One states that by failing to deposit and hold in his trust account the $200 bankruptcy filing fee that B.M. paid, Attorney Engelbrecht violated former SCR 20:1.15(a),[1] which is the current SCR 20:1.15(b)(1) (effective July 1, 2004). Count Two states that by failing to file a bankruptcy action for more than two years, Attorney Engelbrecht failed to act with reasonable diligence and promptness, contrary to SCR 20:1.3.[2] Count Three states that by failing to fully respond and by making misrepresentations to the OLR during its investigation, Attorney Engelbrecht violated SCR 22.03(6).[3]
¶ 9 The second client matter involves client M.B. In 2001 M.B. retained Attorney Engelbrecht to file a divorce action and M.B. paid him $600. M.B. claimed he paid an additional $600 to file a bankruptcy petition, but Attorney Engelbrecht denied receiving this payment.
¶ 10 Attorney Engelbrecht never filed either a divorce or bankruptcy petition. He originally told the OLR that he drafted the divorce petition in 2001 but did not file it because M.B. could not provide an address for his wife. Attorney Engelbrecht gave the OLR conflicting information about his efforts to locate her. Public court records confirmed that M.B.'s wife was in the Green Bay area and her address was available during this time.
¶ 11 In December 2003 Attorney Engelbrecht prepared a divorce petition and at Attorney Engelbrecht's request, M.B. paid a $125 check to cover the cost of serving his wife by publication. In July 2004, when M.B. filed a grievance against Attorney Engelbrecht, he still had not commenced the divorce action. After being notified of the grievance, Attorney Engelbrecht returned M.B.'s $600 fee and the uncashed $125 check.
¶ 12 The OLR made repeated requests for copies of Attorney Engelbrecht's 2001 receipt books to establish whether he had received the bankruptcy fee that M.B. alleged he had paid. Attorney Engelbrecht did not comply. In addition, Attorney Engelbrecht did not produce any records for investigators. When asked what account he had used to deposit B.M.'s and M.B.'s advance fees and cost payments, Attorney Engelbrecht represented he did not have a trust account. However, further investigation revealed evidence to the contrary.
¶ 13 The OLR made multiple requests to Attorney Engelbrecht for his trust account records. His responses were incomplete and his statements were inconsistent with previous representations.
¶ 14 Attorney Engelbrecht stipulates to an additional four counts of misconduct arising out of his representation of M.B. Count Four states that by failing to file a divorce action for M.B. for approximately three years Attorney Engelbrecht failed to act with reasonable diligence, contrary to SCR 20:1.3. Count Five states that Attorney Engelbrecht failed to keep records regarding transactions in his client trust account, contrary to current SCR 20:1.15(e) and (f).[4] Count Six states that by failing to provide requested records, and by giving conflicting answers and making misrepresentations, Attorney Engelbrecht failed to provide relevant information and answer questions fully, or furnish documents, contrary to SCR 22.03(6). Count Seven alleges that Attorney Engelbrecht failed to submit full trust account records to the OLR for its inspection, audit and use, contrary to current SCR 20:1.15(e)(7).[5]
¶ 15 Attorney Engelbrecht stipulates that he fully understands the misconduct allegations and the ramifications should the court impose the stipulated level of discipline. He also represents that he understands his right to contest this matter, his right to consult with counsel and that his stipulation is made knowingly and voluntarily. He further represents that he admits all misconduct alleged in the stipulation and agrees to the level and type of discipline sought by the OLR, including the reinstatement condition. He is aware that the imposition of a six-month suspension of his law license results in his suspension until and unless he pursues successfully his petition for reinstatement pursuant to SCR 22.29 through 22.33.
¶ 16 Attorney Engelbrecht specifically agrees to a six-month license suspension as well as to the conditions for reinstatement. The conditions are that he furnish to the OLR all trust account records not previously provided from January 2001 through December 2005, including monthly bank statements, cancelled checks, deposit slips, check stubs, registers, journals, and ledgers used to record transactions in his client trust account. He understands that should he be unable to provide this information he will furnish to the OLR a sworn statement detailing what records were maintained, what efforts were taken to locate them or obtain them from his bank, and why he would be unable to produce them.
¶ 17 We adopt the findings of fact and conclusions of law to which the parties have stipulated concerning Attorney Engelbrecht's professional misconduct. We determine that the seriousness of the misconduct warrants the stipulated six-month license suspension and the agreed upon conditions of reinstatement. In response to this court's order to show cause, the OLR is not seeking restitution at this time.
¶ 18 IT IS ORDERED the license of Richard A. Engelbrecht to practice law in Wisconsin is suspended for six months, effective the date of this order.
¶ 19 IT IS FURTHER ORDERED that reinstatement of Richard A. Engelbrecht's license to practice law is conditioned on him providing to the OLR all trust account records not previously provided from January 2001 through December 2005, including financial records described in the stipulation.
¶ 20 IT IS FURTHER ORDERED that Richard A. Engelbrecht comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.
NOTES
[1] Former SCR 20:1.15 applied to misconduct committed prior to July 1, 2004. It provided in pertinent part:
(a) A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third persons that is in the lawyer's possession in connection with a representation or when acting in a fiduciary capacity. Funds held in connection with a representation or in a fiduciary capacity include funds held as trustee, agent, guardian, personal representative of an estate, or otherwise. All funds of clients and third persons paid to a lawyer or law firm shall be deposited in one or more identifiable trust accounts as provided . . . maintained in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. . . .
[2] SCR 20:1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."
[3] SCR 22.03(6) provides that "[i]n the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."
[4] SCR 20:1.15(e) and (f) provide detailed requirements for maintaining a lawyer trust account. In relevant part:
(e) Operational requirements for trust accounts.
(1) . . . Each trust account shall be maintained in a financial institution that is authorized by federal or state law to do business in Wisconsin and that is located in Wisconsin or has a branch office located in Wisconsin, and which agrees to comply with the overdraft notice requirements . . . .
. . . .
(6) Record retention. A lawyer shall maintain complete records of trust account funds and other trust property and shall preserve those records for at least 6 years after the date of termination of the representation.
. . . .
(8) . . . Each lawyer who receives trust funds shall maintain at least one demand account, other than the trust account, for funds received and disbursed other than in the lawyer's trust capacity, which shall be entitled "Business Account,"" Office Account," "Operating Account," or words of similar import.
(f) Record-keeping requirements for trust accounts.
(1) . . .Complete records of a trust account that is a demand account shall include a transaction register; individual client ledgers; a ledger for account fees and charges, if law firm funds are held in the account pursuant to sub. (b)(3); deposit records, disbursement records; monthly statements; and reconciliation reports . . . .
. . . .
(2) . . .Complete records of a trust account that is a non-demand account shall include all of the following:
a. all monthly or other periodic statements provided by the financial institution to the lawyer or law firm; and
b. all transaction records, including passbooks, records of electronic fund transactions, duplicates of any instrument issued by the financial institution from funds held in the account, duplicate deposit slips identifying the source of any deposit, and duplicate withdrawal slips identifying the purpose of any withdrawal.
(3) . . .A lawyer who receives trust property other than funds shall maintain a property ledger that identifies the property, date of receipt, owner, client or matter, and location of the property. The ledger shall also identify the disposition of all of the trust property received by the lawyer.
. . . .
(4) . . .A lawyer who maintains trust account records by computer shall maintain the transaction register, client ledgers, and reconciliation reports in a form that can be reproduced to printed hard copy.
[5] SCR 20:1.15(e)(7) provides:
(7) Production of records. All trust account records have public aspects related to a lawyer's fitness to practice. Upon request of the office of lawyer regulation, or upon direction of the supreme court, the records shall be submitted to the office of lawyer regulation for its inspection, audit, use, and evidence under any conditions to protect the privilege of clients that the court may provide. The records, or an audit of the records, shall be produced at any disciplinary proceeding involving the lawyer, whenever material. Failure to produce the records constitutes unprofessional conduct and grounds for disciplinary action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622012/ | 853 So. 2d 136 (2003)
Eric FORSHEE, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2002-CP-00217-COA.
Court of Appeals of Mississippi.
May 27, 2003.
Rehearing Denied August 26, 2003.
*137 Eric Forshee, appellant, pro se.
*138 Office of the Attorney General, by Charles W. Maris, attorney for appellee.
Before KING, P.J., MYERS and GRIFFIS, JJ.
KING, P.J., for the Court.
¶ 1. Eric Forshee perfected this appeal from an order denying post-conviction collateral relief entered by the Circuit Court of Monroe County, Mississippi. On October 10, 1994, Forshee pled guilty to two counts of uttering a forgery. He was sentenced to fifteen years on each count, with the sentences to run consecutively.
¶ 2. Forshee, pro se, filed a petition for post-conviction collateral relief on March 27, 2000. His petition was denied by the trial court. On appeal, Forshee raises the following issues:
I. Whether the trial court erred in revoking Forshee's probation based on hearsay testimony by the State's witness regarding charges that were later dismissed and by denying his petition for post-conviction collateral relief.
II. Whether the trial court erred in dismissing Forshee's ineffective assistance of counsel claim.
FACTS
¶ 3. In July 1994, Forshee was indicted for two counts of forgery. On October 10, 1994, Forshee (represented by two attorneys) pled guilty to the charges.
¶ 4. During the guilty plea hearing, the trial judge questioned Forshee extensively to determine whether his pleas were knowingly and voluntarily made. Forshee indicated that he understood the nature of the charges and that he was in fact guilty of the crimes.
¶ 5. The trial judge questioned Forshee to determine if his attorneys had advised him of the charges and the consequences of pleading guilty to the charges. Forshee responded affirmatively. The trial judge also advised Forshee of the maximum and minimum penalties allowable. Forshee acknowledged that he understood that.
¶ 6. The trial judge asked Forshee whether his attorneys had done anything to make him plead guilty, to which he responded, "no, sir." The trial judge asked him if he was satisfied with the legal services and advice provided by the attorneys. Forshee indicated that he was satisfied with their services.
¶ 7. After inquiry, the trial judge determined that Forshee "knowingly, understandingly, freely, and voluntarily entered each of these pleas of guilty." The court accepted his pleas and asked the State if it had a sentencing recommendation. The State indicated that it did not have a recommendation as to sentence, but requested that restitution be required in the amount of $18,327.39, arising from "approximately twenty odd cases that have not been presented to the Monroe County grand jury."
¶ 8. The trial judge indicated that the State had agreed that the pending cases would be retired to the file. The trial judge then sentenced Forshee to a term of fifteen years on count one and fifteen years on count two, to be served consecutively. The trial judge retained jurisdiction of this case for 180 days, and indicated that, if during that period Forshee stayed out of trouble, the court would cause him to be placed in a restitution center.
¶ 9. On August 17, 1995, Forshee's sentence was suspended and he was placed on supervised probation for five years. While on probation, Forshee was suspected of possible fraudulent use of a credit card. The State filed a petition seeking to revoke the probation and to impose the suspended sentences previously ordered.
¶ 10. At the revocation hearing on October 29, 1997, the State presented testimony *139 from James Sherman of the Mississippi Department of Corrections who indicated that on July 24, 1997, Forshee was charged by the Columbus Police Department with a crime, using a credit card without the consent of the cardholder, which occurred on September 7, 1995.
¶ 11. Officer John Pevey of the Columbus Police Department, stated that upon investigating the possible fraudulent use of a credit card at the Sesser Chevrolet dealership in Columbus, he learned from a sales person at the dealership that:
[T]here was an individual who had made an interest in purchasing a vehicle which was through a lease agreement there at Sesser Chevrolet and that this person had filed his intent to lease this vehicle and in doing so had filled out several applications using the name of Eric Forshee by including one application where it had the any other co-leasors had the name of Mary Forshee using the Aberdeen, Mississippi address on Egypt road [sic].
¶ 12. Based on the information, Forshee was arrested and charged with fraud. Officer Pevey was not present when Forshee allegedly used the credit card at Sesser Chevrolet.
¶ 13. After hearing the testimony presented, the trial judge determined that Forshee had violated the terms and conditions of his probation, and revoked his probationary status.
ISSUES AND ANALYSIS
I.
Whether the trial court erred in revoking Forshee's probation based on hearsay testimony by the State's witness regarding charges that were later dismissed and by denying his petition for post-conviction collateral relief.
¶ 14. Forshee asserts that the trial court erred in revoking his probation based solely on the hearsay testimony. He claims that the State failed to present "any physical evidence" in support of the allegations.
¶ 15. At the revocation hearing, Officer Pevey indicated that the salesperson at Sesser Chevrolet positively identified the picture of Forshee and stated that the credit card Forshee used had been reported stolen.
¶ 16. On appeal, a reviewing court should not disturb a lower court's decision to deny a petition for post-conviction relief unless the court's factual findings are clearly erroneous. McClinton v. State, 799 So.2d 123(¶ 4) (Miss.Ct.App. 2001). However, where questions of law are raised the applicable standard of review is de novo. Id.
¶ 17. Minimum due process requirements have been imposed for parole revocation hearings. Morrissey v. Brewer, 408 U.S. 471, 485-87, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). "For a defendant to be guaranteed full protection of the law there must be: (a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a `neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact finders as to the evidence relied on and reasons for revoking [probation or] parole." McClinton v. State, 799 So.2d 123(¶ 5) (Miss.Ct. App.2001).
*140 ¶ 18. Forshee cites to Grayson v. State, 648 So. 2d 1129, 1134 (Miss.1994), which deals with probation revocation hearings, but Forshee has not cited authority that hearsay testimony may not be used in revocation hearings. In fact, the Mississippi Rules of Evidence do not apply to proceedings "granting or revoking probation." Younger v. State, 749 So.2d 219(¶ 9) (Miss.Ct.App.1999). "Therefore, the rule barring hearsay does not apply, and hearsay evidence is properly admittable in such hearings." Id.
¶ 19. Forshee alleges that the charge which served as the basis for the revocation of probation was dismissed. We cannot ascertain the validity of this remark because that information is not in the record provided by Forshee. However, it is immaterial that the charge was dismissed. Even if the charge were dismissed, that is not controlling when the revocation of probation is at issue.
¶ 20. The level of proof required for the revocation of probation is significantly less than that which is required for a conviction. Our supreme court has stated that a conviction is not necessary to revoke probation. Id. at (¶ 12). Probation may be revoked upon a showing that the defendant "more likely than not" violated the terms of probation. Id. A conviction requires proof beyond a reasonable doubt. Russell v. State, 220 So. 2d 334, 338 (Miss. 1969).
¶ 21. Based upon the evidence, the trial judge determined that Forshee "more likely than not" violated the terms of his probation. In so finding, the trial judge stated "the [c]ourt heard testimony that the Petitioner had committed several crimes while he was on supervised probation. The [c]ourt, having reviewed the transcript, finds that there was sufficient cause to find that Petitioner violated the terms and conditions of his probation, and his probation was not unlawfully revoked."
II.
Whether the trial court erred in dismissing Forshee's ineffective assistance of counsel claim.
¶ 22. Forshee asserts that the trial court erred in barring his claim of ineffective assistance of counsel. He claims that the trial court never heard his ineffective assistance of counsel claim which was supposed to have been argued in November 1997 by his attorney at the time. He maintains that he was "never called or appeared at the hearing."
¶ 23. In the order dated August 24, 2001, denying post-conviction collateral relief, the trial court determined that Forshee's claim was procedurally barred pursuant to Miss.Code Ann. Section 99-39-5(2) (Rev.2000), which provides:
(2) A motion for relief under this chapter shall be made within three (3) years after the time in which the prisoner's direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different *141 result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.
(emphasis added). Forshee has not shown that his claim is an exception. Forshee argues that the ineffective assistance of counsel claim is a fundamental right which is not barred.
¶ 24. Having determined that Forshee's claim of ineffective assistance is procedurally barred, we find no error in the trial court's decision.
¶ 25. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT DENYING POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622016/ | 13 So. 3d 525 (2009)
Henry VERGES, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-503.
District Court of Appeal of Florida, Fourth District.
June 24, 2009.
Rehearing Denied August 20, 2009.
*526 Philip L. Reizenstein of Woodward and Reizenstein, P.A., Miami, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
STEVENSON, J.
After police gained entry to Henry Verges's home in connection with an investigation for drugs, they discovered eight pictures depicting child pornography. Verges sought to suppress the pictures, arguing that the police had exceeded the scope of his consent to search and that any consent was not voluntarily given. The trial court denied the motion to suppress and Verges pleaded no contest to eight counts of possession of child pornography, the manufacture of marijuana, and possession of marijuana, reserving his right to appeal. We affirm and write solely to address Verges's arguments concerning the scope of his consent.
In recounting the evidence, we take the view most in accord with the trial court's ruling on the motion to suppress. See Pagan v. State, 830 So. 2d 792, 806 (Fla.2002). Police went to Verges's home to investigate a tip that marijuana was being grown there. Police went through the trash can in front of the residence and found marijuana residue and a marijuana leaf. The officers approached the defendant, who was standing on a walkway between the driveway and the front door, and advised the defendant of the tip. The defendant told police that his son had grown three small marijuana plants for a school project. Police asked for consent to enter the premises to retrieve the marijuana plants and responded affirmatively when the defendant said "all you're going to do is collect the marijuana plants." The defendant agreed to permit the officers to enter.
As the officers were walking toward the kitchen, they observed, in plain view, marijuana plants, sodium vapor lights, and fans in the room across from the kitchen. At about this same time, the defendant grabbed a plastic baggie containing marijuana, a pipe, and some rolling papers from the kitchen table and placed them into a garbage can. One of the officers observed the defendant attempt to conceal some folded papers that were on the kitchen table by pushing them under a newspaper.
At this point, police asked the defendant to sit down and presented him with a Miranda warnings card and a consent to search form. Before signing the consent, the defendant asked to call his wife and his lawyer. Police acquiesced to the request. During the conversation with his wife, and apparently at her request, the defendant asked the officers if they would leave if he asked them to. One of the officers said no.[1] The lawyer the defendant called was a friend and a tax attorney. The attorney spoke with one of the officers and inquired about the officer's intentions. The officer told the attorney about the marijuana they had observed and indicated that they intended to search for additional contraband. During his conversation with police, the attorney did not indicate that any search or consent was limited to marijuana. Thereafter, the defendant signed the consent form that permitted police to search the entire premises and stated that anything *527 found could be used at a subsequent trial.
After the consent form was signed, one of the officers asked the defendant if there was any marijuana in the home in addition to that already observed; the defendant directed police to some closets. The officer who had earlier observed the defendant attempt to conceal the folded papers retrieved those papers after the consent form was signed. The officer discovered that the papers were child pornography. The officer who seized the papers testified that, based on her training and experience, it was reasonable to believe that drugs or drug paraphernalia were inside the folded papers and that this is what she had expected to find.
With this evidence before it, the trial court denied the motion to suppress, indicating the defendant consented to a search of the premises for drugs and drug-related items. In this appeal, the defendant insists his consent was limited to the retrieval of the marijuana plants and, alternatively, even if the consent was sufficiently broad to permit a search for other contraband, it was revoked with respect to the folded papers by his act of pushing them under the newspaper. These arguments are without merit.
There is no question that "[a]n individual may define as he chooses the scope of a consensual search." Jackson v. State, 730 So. 2d 364, 365 (Fla. 4th DCA 1999). Further, once given, consent may be withdrawn "at any time for any reason," see Johnson v. State, 995 So. 2d 1011, 1014 (Fla. 1st DCA 2008). A trial court's determination regarding "the scope of the consent given and whether the search conducted was within the scope of that consent are questions of fact to be determined by the totality of the circumstances." Davis v. State, 594 So. 2d 264, 266 (Fla. 1992); see also Johnson v. State, 613 So. 2d 554, 555 (Fla. 4th DCA 1993).
In insisting that his consent was limited to consent for police to retrieve the marijuana plants, the defendant relies heavily on the conversation that took place between himself and police outside of his home and asserts that the evidence before the trial court was to the effect that police represented to his attorney that they intended only to take the marijuana they had already observed. The defendant's argument ignores the fact that, after the conversation with police outside of the defendant's home, the police entered with the defendant's consent and, upon entry, observed marijuana, grow lights, and fans in the room across from the kitchen and a baggie of marijuana, a pipe, and rolling papers on the kitchen table. It was only after the officers observed all of this contraband in plain view that the defendant was presented with the consent to search form, which plainly was not limited in its terms to the retrieval of marijuana plants. Further, while it is true that there was evidence that police represented to the attorney that they intended to take only the marijuana they had observed, there was contrary evidence that police told the attorney they intended to search for more "contraband." We are constrained to accept this latter view of the evidence. See, e.g., Pagan, 830 So.2d at 806.
As for the defendant's contention that his pushing the papers under the newspaper was a withdrawal of any consent, there is no question that non-verbal actions can amount to the withdrawal of consent. See Jackson, 730 So.2d at 365. Here, though, the defendant pushed the folded papers under the newspaper prior to the defendant being presented with the consent form, prior to police speaking with the defendant's attorney and prior to the defendant signing the consent form. *528 Thus, despite having earlier hidden the papers from view, thereafter, the defendant consented to a search of his home for, at a minimum, drugs and drug-related items.
Having rejected the defendant's claims of error in the denial of his motion to suppress, we affirm his convictions.
Affirmed.
HAZOURI and LEVINE, JJ., concur.
NOTES
[1] At the time the defendant asked police whether they would leave, the officers had already observed marijuana plants, grow lights, a baggie of marijuana, and rolling papers in plain view. The police thus had probable cause to arrest the defendant and were entitled to seize the contraband in plain view. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920528/ | 921 So. 2d 661 (2006)
Theresa Marie GARGANO, Appellant,
v.
LEE COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.
No. 2D04-4799.
District Court of Appeal of Florida, Second District.
January 20, 2006.
*663 Ralf G. Brookes, Cape Coral, for Appellant.
Robert W. Gray, County Attorney, and John J. Renner, Chief Assistant County Attorney, Fort Myers, for Appellee.
ALTENBERND, Judge.
Theresa Marie Gargano appeals an order dismissing her third amended complaint with prejudice. Ms. Gargano's complaint primarily argues that Lee County has failed to adequately maintain the Sanibel Bridge despite receiving ample bridge toll revenue for that purpose. As a portion of her complaint, Ms. Gargano seeks damages and injunctive relief, arguing that the toll for the Sanibel Bridge is an unconstitutional tax and is unreasonable and that the bridge's disrepair has resulted in increased garbage fees. The complaint also attempts to allege a class action.
The trial court dismissed this lawsuit with prejudice for three alternative reasons. It concluded that it lacked subject matter jurisdiction, that Ms. Gargano lacked standing to bring the action, and that the complaint failed to state a cause of action. We conclude that the trial court did have jurisdiction and that Ms. Gargano, as a resident of Sanibel Island, had standing to bring a claim. We agree with the trial court, however, that the third amended complaint is disorganized and deficient. It contains theories that do not state a cause of action, do not authorize the requested remedy, and are not justiciable. On the other hand, we cannot hold that Ms. Gargano's pleading is incapable of amendment to state a claim at least for declaratory relief or injunctive relief concerning the reasonableness of the toll. Although this may be a Pyrrhic victory for Ms. Gargano, we conclude that she should be permitted one additional opportunity to allege a proper claim.[1]
I. THE SANIBEL BRIDGE CONTROVERSY
In the early 1960s, Lee County issued bridge and causeway revenue bonds and built a bridge and causeway between the mainland of Lee County and Sanibel Island. *664 See Sanibel-Captiva Taxpayers' Ass'n v. Lee County, 132 So. 2d 334 (Fla. 1961). The bridge is the only roadway providing access to Sanibel Island and Captiva Island. The County has always charged a toll for use of this facility. The record reflects that the toll for the bridge was set at $3 in 1963 and was never increased or decreased during the following forty years. From an economic perspective, the bridge is a monopoly without any significant competitors. There is no dispute that it has long generated revenues in excess of its basic operating expenses.
Because this action was dismissed on the pleadings, we have limited factual information in the record. It is obvious, however, that as the bridge has aged, a public debate has evolved concerning its maintenance, upgrading, and replacement. Ms. Gargano's complaint alleges that the bridge is no longer adequate to handle larger vehicles, which has made it more difficult and expensive to transport construction materials to the islands and to remove solid waste from the islands. This difficulty has resulted in a garbage surcharge for residents of Sanibel Island.
From discussions at oral argument, this court is generally aware that a lot of water has gone under the bridge since this lawsuit was filed. The County increased the toll in 2005. Decisions have been made concerning replacement of the bridge. These changes may have rendered portions of this lawsuit moot, but they have not rendered moot the issues that we address.
II. THE PLEADINGS
Ms. Gargano and Save Our Bay, Inc., filed this lawsuit against Lee County in January 2004. The record reflects that another, similar lawsuit was filed by the City of Sanibel at the same time, but the lawsuits do not appear to have been consolidated. Ms. Gargano amended her complaint and ultimately filed a third amended complaint in August 2004. Save Our Bay, Inc., is not a party to the third amended complaint.
In the third amended complaint, Ms. Gargano alleges that she lives on Sanibel Island and that she has no access to her home from the mainland except by way of the Sanibel Bridge. She does not allege how long she has lived on Sanibel Island or the amount of the toll when she purchased her property. We assume, however, that the toll for a standard automobile had already been set at $3 when she moved to the island.
The third amended complaint is not a model pleading. The first forty-two paragraphs are not labeled as a separate count and do not conclude with a request for relief. Nevertheless, a heading preceding paragraph 43 states, "Count II. Garbage Surcharge," and the pleading then realleges the prior forty-two paragraphs. Paragraphs 48 through 58 contain class action allegations, describing two classes. Apparently, the first forty-two paragraphs, which generally discuss the gross and net profitability of the bridge between 1977 and 2003 and the limited expenditures on maintenance and repair, are intended as a count alleging a claim for "tolls," and count II is a claim for garbage surcharges. The two proposed classes involve people who have paid these two charges.
The third amended complaint concludes with a request for relief. It asks the court to (1) declare "the excessive and unreasonable toll to be an illegal, unconstitutional tax," (2) require the County to immediately spend "surplus funds collected on the bridge to remedy, repair the bridge," (3) enjoin future unreasonable tolls, (4) order the County to either repay the plaintiffs any "surplus" toll revenue or spend that money on emergency repairs to the bridge, *665 (5) award damages to plaintiffs who paid the garbage surcharge, and (6) award attorneys' fees to the plaintiff's lawyer.
As explained earlier, the trial court dismissed the third amended complaint with prejudice, ruling in the alternative that the court lacked subject matter jurisdiction, that Ms. Gargano lacked standing to bring the lawsuit, and that the complaint failed to allege a cause of action.
III. SUBJECT MATTER JURISDICTION
The trial court decided that it had no jurisdictional authority to review the political decisions of the Lee County Commission, which set the toll for the Sanibel Bridge and decided how best to maintain it. We conclude that the trial court's jurisdiction was very limited, but that it did have jurisdiction.
Article V, section 5(b), of the Florida Constitution provides most of the common jurisdictional authority of the circuit courts. It does not appear to provide express jurisdiction to review the toll and bridge maintenance decisions of the Lee County Commission in this case. However, article V was substantially revised in 1972. Prior to the revision, the Florida Constitution had long contained a provision giving the circuit courts jurisdiction to review "the legality of any tax, assessment, or toll." See art. V, § 6(3), Fla. Const. (1968); see also art. VI, § 8, Fla. Const. (1868); art. V, § 6(3), Fla. Const. (1885).
When article V was revised in 1972, section 20 was created as "Schedule to Article V," primarily to prevent gaps in jurisdiction during the major transitions in jurisdiction required by the amendments to article V. Section 20(c)(3) to article V contains the jurisdictional provision preserving circuit court jurisdiction over the legality of tolls.
Section 20(i) gives the legislature authority to delete "obsolete" items from this schedule. However, the parties have found no statute or legislative resolution that ever deleted as obsolete the provision in section 20 that gives circuit courts jurisdiction over the legality of tolls. Instead, the legislature affirmatively enacted section 26.012(2)(e), which expressly gives the circuit court jurisdiction "in all cases involving [the] legality [of] any tax assessment or toll." See § 26.012(2)(e), Fla. Stat. (2004); ch. 72-404, § 3, Laws of Fla. Thus, to the extent that Ms. Gargano challenges the legality of a toll, we conclude that the trial court erred in ruling that it lacked subject matter jurisdiction.[2]
Although the circuit court has jurisdiction to resolve the "legality" of the Sanibel Bridge toll, there is little statutory or case law to assist the court in this task. Section 338.165, Florida Statutes (2004), authorizes a county to continue to collect tolls on a revenue-producing project after the discharge of any bond indebtedness related to the project and requires revenues to be first used to pay the costs of operation, maintenance, and improvement of the toll project, but it provides no guidelines for the establishment of reasonable tolls or for judicial review of the reasonableness of tolls.
Most public utilities have rates that are the subject of extensive statutory regulation. See, e.g., ch. 364, Fla. Stat. (2004) (regulating telecommunications companies). No similar chapter exists for toll roads or bridges. Although early toll *666 bridges and roads in Florida were often owned by private companies,[3] most have long been owned by the government with rates established by bodies subject to the political process. If circuit courts are to have the authority to monitor the legality of tolls set by political bodies, it might be helpful if the legislature provided some statutory guidelines.
In the absence of statute, there is some case law providing a little guidance to the trial court. In Masters v. Duval County, 114 Fla. 205, 154 So. 172, 174 (1934), the court ruled that circuit courts have "exclusive original jurisdiction" of such cases and emphasized that tolls are not generally regarded as taxes. The court further held that uniform bridge tolls are not illegal. The case, however, did not involve a claim that the toll was unjust or unreasonable.
In Miami Bridge Co. v. Miami Beach Railway Co., 152 Fla. 458, 12 So. 2d 438, 445-46 (1943), the court held that the judicial power was limited to reviewing "existing rates" and that the circuit court had no authority to set a rate. Thus, the court can strike down a rate, but it cannot impose some other rate. The court, however, further held that a circuit court could suggest a maximum reasonable rate to the owner of the bridge and then enjoin the owner if it did not promptly establish a reasonable rate. Id. at 446; see also Miami Bridge Co. v. R.R. Comm'n, 155 Fla. 366, 20 So. 2d 356 (1944).
From the limited case law, one issue seems clear: "legality" incorporates the concept of a reasonable rate. Thus, in evaluating the legality of a toll, the circuit court is empowered to review its reasonableness. The case law at least implies that a reasonable rate would consider not only the annual cost of operation and maintenance, but also the need for a fair return on investment and the need to set aside funds to replace the bridge when it becomes old or obsolete. Section 338.165 would suggest that tolls might be reasonable if used to further improve related roadways. See § 338.165(4), Fla. Stat. (2004); see also McGovern v. Lee County, 346 So. 2d 58 (Fla.1977). One would assume that a court would be obligated to give considerable deference to the decision of the political body setting the rate, but if a rate were so high as to be confiscatory, it would certainly be unreasonable.
We recognize that we provide little guidance to the trial court on the issue of reasonableness, but on remand it will have considerable flexibility to establish appropriate guidelines.
IV. STANDING
If the circuit court has constitutional and statutory jurisdiction to review the reasonableness of tolls, then someone must have standing to challenge the toll. Ms. Gargano owns property and resides on Sanibel Island. She must pay the toll to reach her home from the mainland. If she does not have standing, we are hardpressed to think of a party who would have standing. Ms. Gargano appears to be on equal footing to the Miami Beach Railway Company in the Miami Beach Railway case. 152 Fla. 458, 12 So. 2d 438.
Generally, in order to have standing to bring an action against a public entity, a plaintiff must allege that she has suffered or will suffer a special injury. See Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205, 207 (1917); Godheim v. City of Tampa, 426 So. 2d 1084, 1086-88 (Fla. 2d DCA 1983); Alachua County v. Scharps, 855 So. 2d 195, 198 (Fla. 1st DCA 2003). *667 Ms. Gargano has alleged a special injury as a resident of the island.
We are inclined to believe that the trial court was focusing upon Ms. Gargano's standing to challenge the County's decisions about maintenance and repair of the bridge when it found she lacked standing to bring her claim. As we explain later, she has no right to challenge those political decisions. However, for the limited purpose of challenging the reasonableness of the toll, Ms. Gargano has standing.
V. INJUNCTION TO COMPEL REPAIR
The toll for this bridge has been $3 for a long time. If that toll was not challenged in the 1960s when the minimum wage was $1 and gas cost 25¢ per gallon, it is likely that Ms. Gargano faces an uphill battle to establish that the $3 toll was unreasonable in 2004. It would appear that Ms. Gargano's primary purpose in filing this lawsuit was to obtain a judgment forcing the Lee County Commission to take steps to maintain and repair the bridge. She has alleged no theory that would give her the right to compel this political body to take such steps.
It is well established that decisions concerning the maintenance of and need to construct roadways, bridges, and other similar services are political questions outside the purview of the courts. See, e.g., Partridge v. St. Lucie County, 539 So. 2d 472 (Fla.1989). Even in the context of tort law, Florida has never recognized a duty, much less waived sovereign immunity, concerning such decisions. See Trianon Park Condo. Ass'n v. City of Hialeah, 468 So. 2d 912 (Fla.1985). Accordingly, although we reverse the order of dismissal in this case, we agree with the trial court that the third amended complaint did not state a cause of action entitling Ms. Gargano or any other resident of Sanibel Island to any judicial review of the County Commission's decisions regarding maintenance and repair of the Sanibel Bridge.
VI. GARBAGE SURCHARGE
Just as Ms. Gargano has no entitlement to have the circuit court order the County to improve the maintenance of the Sanibel Bridge, she has no claim for damages arising from the garbage surcharge that allegedly is the result of poor maintenance. It is not clear from the pleadings whether the garbage surcharge is imposed by Lee County or the City of Sanibel, but in any event, there is no allegation that it is an unconstitutional tax. Instead, Ms. Gargano seems to perceive the garbage surcharge as a damage proximately caused by the negligent maintenance of the bridge. As explained in the preceding section, she simply has no theory in tort to recover such damages against a governmental agency.
VII. THE BRIDGE TOLL IS A USER FEE AND NOT A TAX
In her complaint and in the briefing, Ms. Gargano argues extensively that the toll is an unconstitutional tax and not a valid user fee. Because we hold that the circuit court has jurisdiction to review the reasonableness of the toll, it may not be necessary to determine whether the toll could be classified as a tax. On the other hand, we are concerned that the remedies may vary depending upon whether the toll is treated as a tax or a user fee.
We note that the supreme court has twice reviewed this toll and has never treated it as a tax. See McGovern, 346 So. 2d 58; Sanibel-Captiva Taxpayers' Ass'n, 132 So. 2d 334. As the supreme court explained in State v. City of Port Orange, 650 So. 2d 1, 3 (Fla.1994):
User fees are charges based upon the proprietary right of the governing body permitting the use of the instrumentality involved. Such fees share common *668 traits that distinguish them from taxes: they are charged in exchange for a particular governmental service which benefits the party paying the fee in a manner not shared by other members of society, National Cable Television Assn. v. United States, 415 U.S. 336, 341, 94 S. Ct. 1146, 1149, 39 L. Ed. 2d 370 (1974); and they are paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge. Emerson College v. City of Boston, 391 Mass. 415, 462 N.E.2d 1098, 1105 (1984) (citing City of Vanceburg v. Federal Energy Regulatory Comm'n, 571 F.2d 630, 644 n. 48 (D.C.Cir.1977), cert. denied, 439 U.S. 818, 99 S. Ct. 79, 58 L. Ed. 2d 108 (1978)). The above concept of user fees was approved by this Court in City of Daytona Beach Shores v. State, 483 So. 2d 405 (Fla.1985). The City's transportation utility fee falls within our definition of a tax, not our definition of a user fee.
Ms. Gargano argues that the bridge toll is really a tax because she does not pay it "by choice." It is true that anyone who lives on Sanibel Island or Captiva Island and does not own a boat or helicopter must pay this toll to reach their home from the mainland. This is not a situation in which the traveler has other, longer roadways to reach the same location. However, the concept of "choice" for defining user fees is designed to distinguish a tax whose payment can be compelled from charges for services that one can avoid. Ms. Gargano can live elsewhere in Lee County. She can choose to stay on the island and not visit the mainland. The County cannot compel her to use the bridge or pay the fee. As a practical matter, she may not see many available options, but as a legal matter this charge is not a tax.[4]See Masters, 154 So. at 174.
VIII. THE LIMITED REMEDY FOR AN UNREASONABLE TOLL
Ms. Gargano seeks to achieve class action status for her lawsuit in part to obtain refunds of tolls paid in the past. As we read the Miami Beach Railway case, the supreme court did not authorize such relief. The court is only entitled to enter a prospective injunction declaring the current fee unreasonable and to make recommendations regarding what it would consider a maximum reasonable rate. Just as the circuit court cannot set a reasonable fee for the future, it cannot determine a reasonable fee for the past and then order the difference returned to persons who used the bridge.
Especially if user fees must generally be uniform, it is not clear to this court why a class action would be necessary to impose an injunction against Lee County that invalidated a toll for all future users of the bridge. Thus, while we do not prohibit Ms. Gargano from attempting to allege a class action on remand, it is not clear to this court on the basis of the current pleadings that such an action is actually necessary.
Reversed and remanded for further proceedings consistent herewith.
CASANUEVA and LaROSE, JJ., Concur.
NOTES
[1] This case was orally argued by the parties on May 6, 2005. The delay in the release of this opinion is solely the responsibility of the author, who found the opinion difficult to write and, thus, delayed the release of the opinion.
[2] Until this case, this court had believed that all provisions in section 20 of article V had long ago been declared obsolete. It would be a useful venture for some student of the law to analyze all portions of section 20 to determine what provisions continue to have vitality.
[3] For example, the Gandy Bridge in Tampa Bay was originally built by George S. Gandy and opened in 1924. Charlton W. Tebeau, A History of Florida 379 (U. Miami Press 7th ed. 1980). It later became a government-owned bridge without a toll.
[4] Many user fees are similar in that a true choice does not exist. One cannot realistically choose to forego water or sewer service to a home or avoid user fees for garbage pickup. Even in areas with designated water for lawn irrigation, the choice to forego the service may result in the death of one's yard. These realities do not transform the charges for these services into taxes. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920413/ | 921 So. 2d 787 (2006)
M.E.K., Mother of J.L.K., a Child, Appellant,
v.
R.L.K., Maternal Grandmother of J.L.K., a Child, Appellee.
Nos. 5D05-1775, 5D05-2144.
District Court of Appeal of Florida, Fifth District.
February 24, 2006.
*788 Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
Patricia L. Strowbridge, of Patricia L. Strowbridge, P.A., Orlando, for Appellee.
PLEUS, C.J.
The sole issue in this appeal is whether an indigent mother facing involuntary termination of parental rights in an adoption proceeding has a constitutional right to appointment of trial and appellate counsel. We believe she does and therefore reverse the order denying her counsel. We remand with directions to enter an order appointing trial and appellate counsel nunc pro tunc to the date of the mother's motion to appoint counsel.
Procedural History
J.L.K. was born in September 2004. A month later, the Department of Children and Families sheltered J.L.K. with his maternal grandmother and initiated dependency proceedings based on allegations that his mother was unable to care for him. Prior to the adjudicatory hearing, J.L.K.'s grandmother moved to dismiss the dependency proceeding on the ground that she would file a separate adoption proceeding pursuant to Chapter 63 and would seek to have the mother's parental rights terminated as part of the adoption. The dependency court abated the dependency proceeding to allow the adoption to proceed.[1]
In March 2005, the grandmother filed a petition for termination of parental rights pending adoption pursuant to Chapter 63 of the Florida Statutes. The lower court terminated the mother's parental rights by default after the mother failed to file a responsive pleading. She was incarcerated at the time.
Subsequently, the mother's attorney in the dependency action filed a notice of appearance in the adoption action. He also filed an affidavit of indigency, motion to appoint counsel and motion to vacate the final judgment and set aside default.
The mother's appellate attorney appealed the final judgment terminating her parental rights and also filed a motion in the lower court to appoint appellate counsel. The court denied the motions to appoint trial and appellate counsel in the adoption proceeding. The mother appealed this order as well. We consolidated *789 these appeals[2] and temporarily relinquished jurisdiction, after which the lower court approved the parties' stipulation to set aside the final judgment and reinstate the dependency proceedings. Based on this development, we acknowledged dismissal of appeal of the final judgment but agreed to proceed with the appeal of the order denying appointed counsel.
Analysis
In a 1980 appeal of an order terminating parental rights under Chapter 39, the Florida Supreme Court held that an indigent parent has a right, under both the Florida and United States Constitutions, to appointed counsel in "proceedings involving the permanent termination of parental rights to a child." In the Interest of D.B., 385 So. 2d 83, 90 (Fla.1980).
A year later, in Lassiter v. Dep't of Social Serv. of Durham County, N.C., 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981), the U.S. Supreme Court held that the federal due process clause does not require appointed counsel in every state-initiated termination of parental rights proceeding. Instead, it required trial courts to evaluate the need for counsel on a case-by-case basis. Id. at 31-32, 101 S. Ct. 2153. The court noted that it was only determining the minimum due process standard under the federal constitution and that many states have higher standards based on wise public policy. Id. at 33-34, 101 S. Ct. 2153.
In O.A.H. v. R.L.A., 712 So. 2d 4 (Fla. 2d DCA 1998), the second district held that an indigent parent has a constitutional right to appointed counsel in a Chapter 63 involuntary adoption proceeding. It recently reaffirmed that holding in In the Interest of M.C., 899 So. 2d 486 (Fla. 2d DCA 2005). Both O.A.H. and M.C. are similar to the instant case in that they involved indigent parents who did not attend the final hearing in which their parental rights were terminated because they were incarcerated at the time.
In denying the mother's requests for appointed counsel, the lower court declined to follow O.A.H. or M.C., stating:
Ordinarily, the Court would be bound by precedent from another District Court of Appeal in the absence of contrary authority from the Fifth District Court of Appeal. However, the Court in this matter is bound by the U.S. Supreme Court decision in Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 18, 27, 101 S. Ct. 2153, 2159, 68 L. Ed. 2d 640 (1981). Pursuant to Lassiter, because this is a private termination of parental rights action there is no state action and accordingly the Mother is not entitled to Court appointed trial or appellate counsel.
We disagree with this reasoning for the following reasons. First, the lower court erroneously concluded that there was no state action in this private termination of parental rights action. It cited Lassiter in support of its conclusion. Nowhere in Lassiter does it say that a private termination of parental rights action does not involve sufficient state action to trigger due process protection. Even if Lassiter had stated such a proposition, it would be dictum because Lassiter involved a state-initiated termination of parental rights action.
Moreover, in M.L.B. v. S.L.J., 519 U.S. 102, 117 n. 8, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996), the United States Supreme Court noted that whether a parental *790 termination proceeding is brought by a state agency or a private party as a prelude to adoption, "the challenged state action remains essentially the same: ... imposition of an official decree extinguishing, as no power other than the State can, [the] parent-child relationships." The second district relied on M.L.B. in O.A.H. to find that "a contested adoption proceeding involves state action sufficient to invoke due process concerns." 712 So. 2d at 6. We agree with the second district that judicial termination of parental rights in a privately initiated involuntary adoption proceeding is state action that is sufficient to trigger due process protection to an indigent parent.
Second, as noted previously, Lassiter does not control because it involved a state-initiated termination proceeding. This case involves a privately-initiated termination proceeding. On the contrary, both O.A.H. and M.C. involved private termination proceedings and therefore should have controlled the lower court's decision.
Third, Lassiter addressed only the minimum due process requirements under the federal due process clause. The citizens of Florida are also protected by the due process clause in Article 1, section 9 of the Florida Constitution. In our federal system of jurisprudence, the United States Constitution establishes the minimum level of due process protections for all people, but state constitutions and laws may provide additional due process protections. Traylor v. State, 596 So. 2d 957, 961 (Fla. 1992).
In the area of termination of parental rights, the Florida due process clause provides higher due process standards than the federal due process clause. Under the federal provision, Lassiter does not require appointment of counsel in every case. It only requires a case-by-case determination. But under the state due process clause, D.B. requires appointment of counsel in "proceedings involving the permanent termination of parental rights to a child." D.B., 385 So.2d at 90. O.A.H. noted that:
In the years following Lassiter, Florida's supreme court has continued to confirm that D.B. stands for the proposition that a constitutional right to appointed counsel arises when the proceeding can result in a permanent loss of parental rights. See In the Interest of E.H., 609 So. 2d 1289, 1290 (Fla.1992); In re T.W., 551 So. 2d 1186, 1196 (Fla.1989).
O.A.H., 712 So.2d at 6.
For these reasons, the lower court should have followed O.A.H. and M.C. rather than Lassiter. See, e.g., Scottsdale Ins. Co. v. Desalvo, 666 So. 2d 944, 946 (Fla. 1st DCA 1995) (holding that a trial court is obliged to follow binding precedent from another district court in absence of contrary precedent from supreme court or its own district court of appeal).
Alternatively, the grandmother argues that even if the trial court was obligated to follow O.A.H., this Court is free to disagree with it. See Scottsdale, 666 So.2d at 946. She urges us to reject O.A.H., claiming that it disregards the underlying reasons for appointing counsel and because its broad interpretation of state action creates a slippery slope that will obligate the state to provide counsel in many other types of civil cases. The grandmother is wrong on both counts.
In M.L.B., the United States Supreme Court rejected a similar slippery slope argument. M.L.B. involved the right of an indigent parent to have the state pay for a transcript of the hearing in an appeal of a private termination of parental rights case. Justice Thomas argued in dissent that extending due process protections found in criminal cases involving the loss of one's liberty to a civil case involving termination of parental rights would create a dangerous precedent used to extend such protections *791 to other civil cases. M.L.B., 519 U.S. 102, 141-143, 117 S. Ct. 555 (Thomas, J., dissenting).
The majority rejected this argument, noting that termination of parental rights work "unique kind of deprivation" involving the "awesome authority of the State" to permanently destroy legal recognition of the parental relationship. Id. at 128, 117 S. Ct. 555. Therefore, finding certain due process protections applicable in termination of parental rights cases could not be used as precedent to extend such protections to other civil cases. Id. The same analysis is true in the instant case. Finding a right to counsel in a civil termination of parental rights case does not create a dangerous precedent for finding such a right in other civil cases because other civil cases do not involve the same unique deprivation of a fundamental right by the State.
The grandmother also argues that O.A.H. ignores the underlying reasons for appointing counsel. She instead urges us to apply the factors found in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), for determining whether a right to counsel exists.[3] However, D.B. makes clear that in the context of determining whether a right to appointed counsel exists in a case involving the parent-child relationship, Florida courts must weigh the factors enunciated in Potvin v. Keller, 313 So. 2d 703 (Fla.1975), not Mathews. 385 So.2d at 90. Those factors include: (1) the potential length of parent-child separation, (2) the degree of parental restrictions on visitation, (3) the presence or absence of parental consent, (4) the presence or absence of disputed facts, and (5) the complexity of the proceeding in terms of witnesses and documents. The D.B. court further stated that in applying these factors, "counsel will always be required where permanent termination of custody might result, but where there is no threat of permanent termination of parental custody, the test should be applied on a case-by-case basis." Id. at 91. The second district in O.A.H. saw no distinction between state-initiated and privately-initiated termination proceedings as they relate to the appointment of counsel. We do not either.
We also note that the first district recently reached the same conclusion in G.C. v. W.J., 917 So. 2d 998 (Fla. 1st DCA 2005). G.C. followed D.B. and O.A.H. in holding that there is a constitutional right to appointed counsel in a Chapter 63 termination of parental rights proceeding.
We therefore hold, as our sister courts have, that article 1, section 9 of the Florida Constitution mandates that counsel be appointed to an indigent parent in an involuntary termination of parental rights proceeding under Chapter 63. Accordingly, we reverse the order denying appointed counsel and remand directing the trial court to enter an order appointing trial and appellate counsel nunc pro tunc to the date of the mother's motion to appoint counsel.
REVERSED AND REMANDED WITH DIRECTIONS.
SAWAYA and ORFINGER, JJ. concur.
NOTES
[1] The mother appealed the abatement order, which we per curiam affirmed. See M.K. v. Dep't of Children & Families, 910 So. 2d 279 (Fla. 5th DCA 2005) (table).
[2] Our case numbers 05-1775 (final judgment terminating parental rights) and 05-2114 (order denying appointment of counsel).
[3] Those factors are (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 424 U.S. at 335, 96 S. Ct. 893. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622018/ | 853 So. 2d 746 (2003)
STATE of Louisiana, Appellant,
v.
Melissa WALKER, Appellee.
No. 37,493-KA.
Court of Appeal of Louisiana, Second Circuit.
August 20, 2003.
Rehearing Denied September 18, 2003.
*747 McKeithen, Ryland & Champagne, by Dina F. Domangue, for Appellee.
Iley Evans, District Attorney, Kathleen Peterson, Assistant Attorney General for Appellant.
Before BROWN, GASKINS and DREW, JJ.
GASKINS, J.
The state appeals a decision by the trial court granting a motion to quash the bill of information against the defendant, Melissa Walker, charging her with being a principal to the offense of cruelty to the infirm.[1] For the following reasons, we affirm.
FACTS
On May 9, 2001, an employee of the Lakeview Community Group Home, a facility for mentally disabled individuals, noticed bruises on one of the residents. An investigation revealed that another employee at Lakeview, Frederick Broadnax, Jr., inflicted the injuries. On December 12, 2001, a bill of information was filed, charging Broadnax with cruelty to the infirm.
On April 26, 2002, approximately one year after the incident, the bill of information was amended to add Walker as a co-defendant. Walker was also an employee at the facility. The amended bill of information specified that Broadnax took the victim into the victim's bedroom, cursed the victim, and intentionally struck the victim on the buttocks with a long, wooden board, all of which was "witnessed by defendant Walker," which injury caused the victim unjustifiable pain and suffering and/or which conduct amounted to a gross deviation below the standard of care expected to be maintained by reasonably prudent caregivers under like circumstances, in violation of La. R.S. 14:93.3 and La. R.S. 14:24.[2]
On September 10, 2002, Walker filed a motion to quash the bill of information, arguing that she was charged only with "witnessing" the attack by Broadnax on the victim. She argued that merely witnessing a crime is not an offense punishable under a valid statute, and therefore, she was not a principal to the offense of cruelty to the infirm. She also filed a motion to sever the offenses and to hold a preliminary examination.
*748 A hearing on the pending motions was held on October 21, 2001. On December 20, 2002, the trial court granted the motion to quash, finding that Walker was charged only with witnessing the beating and that no prosecutable crime was charged. Regarding the evidence adduced on the preliminary examination, the court found that there was no probable cause to show that Walker committed the offense of cruelty to the infirm or was a principal to that offense. Walker was relieved of her bail obligation.[3] The state appealed the trial court's ruling.
MOTION TO QUASH
The state contends that the trial court erred in granting the motion to quash. It asserts that the amended bill charges Walker with a prosecutable crime, and that it contained enough details by which a trier of fact could determine whether the facts alleged constituted a crime. The state maintains that the charge justifies proceeding to trial, enables Walker to prepare her defense, and protects against double jeopardy from a future prosecution on the same criminal allegation. According to the state, Walker was successful in getting the trial court to rule on the merits of the case without the benefit of trial, by claiming that, as a mere witness, she was not guilty of cruelty to the infirm. Therefore, the state contends that the trial court erred in granting Walker's motion to quash.
The time for testing the sufficiency of an indictment or bill of information is before trial by way of a motion to quash or an application for a bill of particulars. If the indictment does not charge a valid offense, it is a defective indictment and its invalidity may be declared by a ruling on a motion to quash. A motion to quash may be based on the ground that the indictment fails to charge an offense which is punishable by a valid statute. La. C. Cr. P. art. 532; State v. Legendre, 362 So. 2d 570 (La.1978).[4]
The motion to quash is essentially a mechanism by which to raise pre-trial pleas of defense, i.e., those matters which do not go to the merits of the charge. La. C. Cr. P. art. 531-534; State v. Perez, 464 So. 2d 737 (La.1985); State v. Thomas, 28,790 (La.App.2d Cir.10/30/96), 683 So. 2d 1272, writ denied, 96-2844 (La.4/25/97), 692 So. 2d 1081. In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bill of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged. While evidence may be adduced, such may not include a defense on the merits. The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. State v. Thomas, supra.
The court shall order the defendant discharged from custody or bail, as to that charge, when it sustains a motion to quash based upon the ground that the offense is not punishable by a valid statute. La. C. Cr. P. art. 538.
The Louisiana constitution provides that "[i]n a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him." La. Const. art. 1, § 13. In this matter, the defendant was charged with cruelty to the infirm. La. C. Cr. P. art. 465 provides specific *749 indictment forms for some offenses. However, cruelty to the infirm is not listed in those offenses. Therefore, the state was required to follow La. C. Cr. P. art. 463, which sets forth the form for a bill of information:
The information may be in substantially the following form: In the (Here state the name of the court.) on the ____ day of____, 19---. State of Louisiana v. A.B. (Here state the name or description of the accused.). X.Y., District Attorney for the Parish of____, charges that A.B. (Here state the name or description of the accused.) committed the offense of____, in that (Here set forth the offense and transaction according to the rules stated in this Title. The particulars of the offense may be added with a view to avoiding the necessity for a bill of particulars.) contrary to the law of the state of Louisiana and against the peace and dignity of the same.
La. C. Cr. P. art. 464 provides that the indictment or information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. The indictment must contain all the elements of the crime intended to be charged in sufficient particularity to enable the defendant to prepare for trial, to allow the court to determine the propriety of the evidence which is submitted upon the trial, to impose the correct punishment on a guilty verdict, and to afford the defendant protection from double jeopardy. State v. Finch, 31,888 (La.App.2d Cir.5/5/99), 733 So. 2d 716. See also State v. Valentine, 565 So. 2d 511 (La.App. 2d Cir.1990).
Cruelty to the infirm is defined in La. R.S. 14:93.3 which provides in pertinent part:
A. Cruelty to the infirmed is the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirmed, a disabled adult, or an aged person, including but not limited to a person who is a resident of a nursing home, mental retardation facility, mental health facility, hospital, or other residential facility.
B. "Caregiver" is defined as any person or persons who temporarily or permanently is responsible for the care of the infirmed, physically or mentally disabled adult, or aged person, whether such care is voluntarily assumed or is assigned. Caregiver includes but is not limited to adult children, parents, relatives, neighbors, daycare institutions and facilities, adult congregate living facilities, and nursing homes which or who have voluntarily assumed or been assigned the care of an aged or infirmed person or disabled adult, or have assumed voluntary residence with an aged or infirmed person or disabled adult.
Regarding principals, La. R.S. 14:24 provides:
All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.
Only those persons who knowingly participate in the planning and/or execution of a crime are principals. Mere presence at the scene is not enough to "concern" an individual in a crime. Moreover, a person may only be convicted as a principal for the crimes for which he personally has the requisite mental state. State v. Pierre, 93-0893 (La.2/3/94), 631 So. 2d 427.
*750 The elements of cruelty to the infirm include: (1) intentional or criminally negligent mistreatment or neglect; (2) by any person, including a caregiver; (3) whereby unjustifiable pain, malnourishment, or suffering; (4) is caused to the infirm, a disabled adult, or an aged person. To be a principal to a crime, La. R.S. 14:24 requires that an offender be "concerned in the commission" of the crime, (1) whether present or absent; and (2) whether they directly commit the act constituting the offense; (3) aid or abet in its commission; or (4) directly or indirectly counsel or procure another to commit the crime. The bill of information in this case charges the following:
Frederick "Fred" Broadnax, Jr. and Melissa Walker, defendants herein, while employed in the course and scope of their supervisory duties at the Lakeview Community Home, Columbia, Louisiana, a mental retardation facility which is required to be licensed and operated under the laws of the State of Louisiana, committed the offence of cruelty to the infirm, in violation of La. R.S. 14:93.3 and La. R.S. 14:24 to wit:
Defendants Frederick "Fred" Broadnax, Jr. and Melissa Walker, knowingly and intentionally and/or through criminally negligent mistreatment and neglect, committed cruelty upon [victim], D.O.B. 9/27/76, a mentally disabled resident of the facility by defendant Broadnax taking the victim into the victim's bedroom, cursing the victim and intentionally striking the victim on the buttocks with a long, wooden board, all of which was witnessed by defendant Walker, which injury caused the victim unjustifiable pain and suffering and/or which conduct amounted to a gross deviation below the standard of care expected to be maintained by reasonably prudent caregivers under like circumstances, in violation of La. R.S. 14:93.3 and La. R.S. 14:24, contrary to the law of the State of Louisiana and against the peace and dignity of the same.
While the bill of information states that Walker along with Broadnax committed cruelty to the infirm, the statement of essential facts does not set forth that Walker committed any of the essential elements of that offense or that she was concerned in the commission of the offense. The bill of information charges only that the defendant witnessed the offense committed by Broadnax.
The state reasoned that at trial it must show that the defendant possessed the requisite criminal intent to commit cruelty to the infirm. Further, the state acknowledged that an offender's mere presence at the scene of a crime was not sufficient evidence standing alone to make one a principal to the criminal acts of a co-defendant. However, according to the state, it is sufficient if the principal is standing by at the scene of a crime ready to give some aid, if needed, if the principal is actually aware of the co-defendant's intent. The state contended that the bill of information in this case alleges the necessary elements of a crime, which if committed by the defendant, constituted a criminal offense. According to the state, witnessing the beating while possessing the same criminal intent as Broadnax is sufficient.[5]
The trial court was required to determine from the face of the pleadings whether *751 the bill of information charged Walker with conduct constituting a criminal offense. The state charged Walker only with witnessing the offense committed by Broadnax. The charge of simply witnessing an offense by another does not constitute the intentional or criminally negligent mistreatment or neglect of the victim. The prosecution did not allege that the defendant actively participated in the offense, that she had a duty to intervene on behalf of the victim, or a duty to report the abuse, and that she failed in that respect.
In defending against the motion to quash, the state contends that witnessing the offense makes Walker a principal to the offense. The bill of information does not allege that Walker directly committed, aided and abetted, or directly or indirectly procured another to commit the crime of cruelty to the infirm.
Simply stated, the prosecution alleged only that Walker witnessed the offense committed by Broadnax. The act of witnessing an offense is not a crime. The bill of information against Walker in this case does not state the essential facts necessary to describe the offense charged. Based upon the pleadings in this case, the trial court correctly granted the motion to quash the bill of information against Walker due to the state's failure to properly charge her with a criminal offense.[6]
PRELIMINARY EXAMINATION
The state argues that the trial court abused its discretion by finding that, at the preliminary examination, the state failed to produce sufficient evidence linking Walker with the crime of principal to cruelty to the infirm. According to the state, sufficient evidence to establish probable cause was presented and therefore, the trial court should have continued Walker's bond obligation.
Because in this matter we find that the trial court correctly quashed the bill of information charging the defendant with cruelty to the infirm, we pretermit as unnecessary any discussion of the preliminary examination.
CONCLUSION
For the reasons stated above, we affirm the ruling of the trial court granting a motion to quash the bill of information against the defendant, Melissa Walker.
AFFIRMED.
BROWN, C.J., dissents with written reasons.
BROWN, C.J., Dissenting.
The bill of information could have been more clearly written. However, it does charge that "Melissa Walker (while employed in the course and scope of her supervisory duties) ... through ... neglect committed cruelty upon ... a mentally disabled resident ..." by witnessing Broadnax's specified acts.
*752 A supervisor who watches another employee abuse a mentally disabled resident without intervention would be guilty of neglect. I respectfully dissent.
APPLICATION FOR REHEARING
Before BROWN, C.J., GASKINS, CARAWAY, DREW, and MOORE, JJ.
Rehearing denied.
BROWN, C.J., and CARAWAY, J., would grant rehearing.
NOTES
[1] La. R.S. 14:93.3 specifies that the offense is "cruelty to the infirmed." We note that this offense, as "cruelty to the infirm," was added by Acts 1981, No. 850, § 1. In the 1994 amendment, "infirmed" was substituted for "infirm." Acts 1995, No. 841 § 1 and No. 883, § 1 amended the section and "infirm" was substituted for "infirmed." Also in 1995, pursuant to the statutory revision authority of the Louisiana Law Institute, "infirmed" was again substituted for "infirm." Examination of numerous dictionaries indicates that "infirm" is the preferred term.
[2] According to the minutes in this matter, on January 28, 2003, another amended bill of information was filed charging only Frederick Broadnax, Jr. with cruelty to the infirm. On January 29, 2003, he was convicted by a jury of attempted cruelty to the infirm.
[3] The trial court judgment reflects that Walker withdrew her motion to sever.
[4] La. C. Cr. P. art. 532 provides in pertinent part:
A motion to quash may be based on one or more of the following grounds: (1) The indictment fails to charge an offense which is punishable under a valid statute.
[5] Walker argues that, only at the hearing on the motion to quash did the state present the contention that the victim and other residents indicated that Walker was involved in the offense. The trial court also conducted a preliminary examination in conjunction with the motion to quash. At the hearing, an investigator for the prosecution stated that two residents of the facility and the victim said that Walker entered the victim's room with Broadnax and was present while Broadnax beat the victim. They also said that Walker later asked the victim, "How did that feel?" or "Did that feel good?" According to Walker, the statements were not included in the materials furnished by the state during open file discovery, including the notes of the investigator. Walker claimed that this information was first made known at the hearing.
[6] We note that, under La. C. Cr. P. art. 572, the state has four years from the date of the commission of an offense that is punishable with or without hard labor to institute prosecution. Even though we affirm the grant of the motion to quash, under La. C. Cr. P. art. 576, if the prosecution is able to draft a bill of information which validly charges Walker with a crime, it may be possible to reinstitute prosecution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622006/ | 853 So. 2d 485 (2003)
D & M JUPITER, INC., Appellant,
v.
William FRIEDOPFER and Jupiter West, Inc., d/b/a Jupiter Industrial Associates, and William Collins, Appellees.
No. 4D02-3506.
District Court of Appeal of Florida, Fourth District.
July 23, 2003.
Rehearing Denied September 18, 2003.
*486 John J. Shahady and Thomas R. Shahady of Adorno & Yoss, P.A., Fort Lauderdale, for appellant.
Jeremy E. Slusher of Broad and Cassel, West Palm Beach, for appellees.
POLEN, J.
This action arises out of the purchase of commercial property from William Friedopfer and Jupiter West, collectively doing business as Jupiter Industrial Associates (J.I.A.), for $1,850,000. On April 29, 1999, Michael Flora as a principal of D & M Jupiter (D & M) and his wife, as the buyers, and J.I.A., as the seller, entered into a commercial contract for the purchase of the property. Subsequent to their execution of the contract, the Floras assigned their interest therein to D & M. The dispute concerns the propensity of the *487 property to flood. Prior to entering into the contract, J.I.A. provided the Floras a twenty-page Confidential Offering Memorandum, stating in part that "[s]ite drain requirements are met through a French drain retention storm sewer system which collects into the master drainage system of the Jupiter Commerce Park." The bottom of each page in the relevant section of the memorandum contained the language "[t]his confidential information is deemed correct but not guaranteed." Despite such language, the Floras claim to have relied upon the representation that the property has proper drainage. On March 12, 2001, D & M filed a two-count complaint against J.I.A. alleging a cause of action for fraud in the inducement and negligent misrepresentation. J.I.A. filed a motion for summary judgment on June 6, 2002, alleging: (1) no record evidence to support D & M's allegations, (2) D & M's claims are barred by the economic loss rule, and (3) D & M waived its right to bring any claims. The trial court entered final summary judgment in favor of the J.I.A., and we hereby reverse.
In determining the propriety of summary judgment, we must resolve whether there is any genuine issue as to any material fact and if the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c) (2003). Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.2000) (citing Menendez v. Palms West Condo. Ass'n, 736 So. 2d 58 (Fla. 1st DCA 1999)). The record is examined to consider the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any. Fla. R. Civ. P. 1.510(c). All inferences must be drawn in favor of the opposing party, Holl v. Talcott, 191 So. 2d 40, 47-8 (Fla.1966), and if the evidence raises any issues of material fact, is conflicting, or permits different reasonable inferences, then summary judgment is improper. Albelo v. So. Bell, 682 So. 2d 1126 (Fla. 4th DCA 1996).
As a general rule, it is a matter for the jury to determine if an intentional misrepresentation has been made by a seller to a buyer. See Walsh v. Alfidi, 448 So. 2d 1084, 1086 (Fla. 1st DCA 1984). The misrepresentation which was alleged by D & M was the statement in the memorandum which read "[s]ite drain requirements are met through a French drain retention storm sewer system which collects into the master drainage system of the Jupiter Commerce Park." Whether this is a misrepresentation or a true statement is open to interpretation and as such it is surely a material issue of fact, which should be determined by the finder of facts. Here, their representation that the "system drain requirements were met" raises a material issue sufficient to survive a motion for summary judgment. Since there are multiple issues of fact yet to be resolved, final summary judgment was unwarranted.
Furthermore, the economic loss rule does not bar recovery in this case. The Supreme Court has announced "that by recognizing that the economic loss rule may have some genuine, but limited, value in our damages law, we never intended to bar well-established common law causes of action." Moransais v. Heathman, 744 So. 2d 973 (Fla.1999). As such, the economic loss rule does not bar tort actions based on fraudulent inducement and negligent misrepresentation. The test to determine if the economic loss rule applies is to ask if the fraud alleged is in an act of performance or in a term of the bargain. Allen v. Stephan Co., 784 So. 2d 456, 457 (Fla. 4th DCA 2000). When the fraud "relates to the performance of the contract the economic loss doctrine will limit the parties to their contractual remedies." Id. However, when the "fraud occurs in the connection with misrepresentations, statements *488 or omissions which cause the complaining party to enter into a transaction, then such fraud is fraud in the inducement and survives as an independent tort." Id.
The economic loss rule was held not to bar a fraud claim in Allen, where the buyers of a company brought a fraud action against the sellers for failing to accurately disclose the company's tax liability. The company rather than having no tax liabilities which it claimed, in fact owed $100,000 in unpaid taxes. The sellers moved for a directed verdict based on the theory that the economic loss rule barred the fraud claims, but the trial court denied the motion. In affirming the trial court's ruling, this Court said that the misrepresentation was "simply made and relied upon" in inducing the transaction, and also pointed out that the sellers were not required to take any further action based on this contract term and therefore the fraud must be in a term of the bargain and not in an act of performance. Id.
By contrast, the economic loss rule was held to bar recovery in Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So. 2d 74 (Fla. 3d DCA 1997) and Straub Capital Corp. v. L. Frank Chopin, P.A., 724 So. 2d 577 (Fla. 4th DCA 1998). In Hotels of Key Largo, the parties negotiated for continuing action on the part of the seller to provide increased reservation systems and better hotel management services. When the seller failed to deliver the benefits negotiated for, the buyer brought suit. The economic loss rule applied in Hotels of Key Largo and barred any tort recovery because the fraud was clearly in the performance of the bargain since the injury was one which flowed from the failure to perform the heart of the agreement. In Straub Capital Corp., the dispute was centered around the fraudulent failure of a landlord to timely build out and provide the contracted-for space to his tenants. Again, there was a failure to perform the heart of the agreement. We therefore find that the economic loss rule does not bar recovery in this case and the trial court erred to the extent it relied upon the economic loss rule in awarding summary judgment.
J.I.A.'s final ground for summary judgment is that D & M waived its right to bring a tort claim due to "as is" language in the contract. Though a party may waive any right to which he is legally entitled, whether secured by contract, conferred by statute, or guaranteed by Constitution, Gilman v. Butzloff, 155 Fla. 888, 22 So. 2d 263, 265 (1945), such a proposition does not apply where there is an allegation of fraud.
In Oceanic Villas Inc. v. Godson, 148 Fla. 454, 4 So. 2d 689 (1941), a lessee who sought to rescind a 99-year lease, alleged that the lessor procured the execution of the lease by false and fraudulent representations of fact. The lessor, on the other hand, claimed that the lessee was estopped to allege fraud because of an "as is" clause of the lease, which specifically stated that "[l]essee is guided in making this lease by its own judgment and without any influence, representation, fraud or duress of any nature on the part of the Lessors." Id. at 690. The supreme court held that
[i]f the lease was procured by fraud and misrepresentation as to a material fact, the truth or falsity of which was known only to the lessor (and it is so alleged in the bill of complaint), and which misrepresentations, if proved, would be sufficient basis for a decree of rescission, then such fraudulent misrepresentation vitiated every part of the lease contract and the Lessee was not bound by the above quoted clause ... To hold that by the terms of the contract which is alleged to have been procured by fraud, the lessor could bind the lessee in such manner that lessee would be bound by the fraud of the lessor would be against *489 the fundamental principles of law, equity, good morals, public policy and fair dealing. Id.
We take from that holding that where there is fraudulent inducement of a contract, the fraudulent misrepresentation vitiates every part of the contract, including any "as is" clause. However, since the initial determination of whether there was a fraudulent misrepresentation has yet to be resolved, this issue is not ripe for review.
REVERSED and REMANDED for further proceedings consistent with this opinion.
FARMER, C.J., and ANDREWS, ROBERT LANCE, Associate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622050/ | 13 So.3d 965 (2008)
BURLINGTON INSURANCE COMPANY
v.
FLUID SERVICES, INC., d/b/a Pirtek.
2070185.
Court of Civil Appeals of Alabama.
September 12, 2008.
Rehearing Denied January 23, 2009.
*966 Michael Gillion, Mobile; and Scott W. Hunter, Daphne, for appellant.
James B. Pittman, Jr., and Austin E. James of James B. Pittman, Jr., P.C., Daphne, for appellee.
THOMAS, Judge.
Fluid Services, Inc., d/b/a Pirtek ("Pirtek"), purchased a commercial general-liability insurance policy from Burlington Insurance Company. The policy was effective from March 14, 2003, to March 14, 2004. Pirtek paid a $15,000 provisional premium to Burlington. According to the *967 policy, Burlington had the right to examine Pirtek's books and records and recalculate any premium due based on that audit. Upon the expiration of the policy, Pirtek did not renew its policy with Burlington, having found alternative coverage at a more competitive rate. Burlington audited Pirtek and assessed an additional premium of $14,800 for the coverage period. Pirtek refused to pay the additional premium, and Burlington sued Pirtek in April 2005, alleging breach of contract. Pirtek answered and asserted breach-of-contract, fraud, and misrepresentation counterclaims, which Burlington later answered.
Burlington moved for a summary judgment on its breach-of-contract claim, seeking an award of the additional premium; it attached the policy and the audit report as exhibits. The trial court granted Burlington's summary-judgment motion on November 15, 2006; however, the trial court set aside that judgment on Pirtek's timely postjudgment motion. Pirtek then responded to Burlington's motion for a summary judgment and sought to have Burlington's action dismissed on the basis of Ala.Code 1975, § 10-2B-15.02, commonly referred to as the "door-closing" statute, see Casa Inv. Co. v. Boles, 931 So.2d 53, 57 (Ala.Civ.App.2005), because Burlington is a foreign insurance company[1] that does not have a certificate of authority to do business in this state. After Burlington responded and both parties presented evidence in support of their respective positions, the trial court treated Pirtek's motion to dismiss as a summary-judgment motion and entered a judgment on September 10, 2007, declaring that Burlington was barred from bringing its action. In its judgment, the trial court determined that the door-closing statute and Ala.Code 1975, § 27-10-3(a), barred Burlington's action because Burlington was a foreign company lacking a certificate of authority and because the insurance policy Burlington issued to Pirtek did not qualify as a surplus-lines insurance policy because it lacked an endorsement required by Alabama's surplus-lines insurance law. The trial court also determined that the insurance policy was void. The trial court granted Pirtek's motion to dismiss its counterclaims against Burlington on October 10, 2007, which made the summary judgment final. After its postjudgment motion was denied, Burlington appealed.
Burlington argues that the trial court erred in concluding that it was barred from instituting this action by § 10-2B-15.02(a). That statute provides:
"(a) A foreign corporation transacting business in this state without a certificate of authority or without complying with Chapter 14A of Title 40 may not maintain a proceeding in this state without a certificate of authority. All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity."
Burlington first argues that the application of § 10-2B-15.02 to preclude its enforcement *968 of the insurance policy is prevented by the fact that Burlington is engaged in interstate commerce. As Burlington suggests, by virtue of the Commerce Clause, U.S. Const., art. I, § 8, cl. 3, Alabama generally cannot preclude the conduct of interstate business by foreclosing access to state courts by out-of-state companies conducting that business. See Cornwall & Stevens Southeast, Inc. v. Stewart, 887 F.Supp. 1490, 1492 (M.D.Ala.1995); TradeWinds Envtl. Restoration, Inc. v. Brown Bros. Constr., L.L.C., 999 So.2d 875, 877 (Ala.2008); and North Alabama Marine, Inc. v. Sea Ray Boats, Inc., 533 So.2d 598 (Ala.1988). However, "the McCarran Ferguson Act[, 15 U.S.C. § 1011 et seq.,] exempts the insurance industry from Commerce Clause restrictions." Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 880, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1984). As explained by the United States Supreme Court:
"The McCarran-Ferguson Act was passed in the wake of United States v. South-Eastern Underwriters Assn., 322 U.S. 533 (1944), which held that insurance is `commerce' within the meaning of the Commerce Clause. Prior to South-Eastern Underwriters, insurance was not considered to be commerce within the meaning of the Commerce Clause, New York Life Ins. Co. v. Deer Lodge County, 231 U.S. 495 (1913); Paul v. Virginia, 8 Wall. 168 (1869), and thus `negative implication from the commerce clause was held not to place any limitation upon state power over the [insurance] business.' Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 414 (1946) (emphasis added). Believing that the business of insurance is `a local matter, to be subject to and regulated by the laws of the several States,' H.R. Rep. No. 143, 79th Cong., 1st Sess., 2 (1945), Congress explicitly intended the McCarran-Ferguson Act to restore state taxing and regulatory powers over the insurance business to their pre-South-Eastern Underwriters scope. H.R. Rep. No. 143, supra, at 3; see SEC v. National Securities, Inc., 393 U.S. 453, 459 (1969); Maryland Casualty Co. v. Cushing, 347 U.S. 409, 412-413 (1954)."
Western & Southern Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648, 653-54, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981). Thus, Alabama can preclude an insurance company that lacks a certificate of authority from enforcing its contracts in the courts of this state without offending the Commerce Clause.
Burlington further relies on the "equity" provision of § 10-2B-15.02 to urge reversal of the trial court's judgment. According to Burlington, it is not equitable for Pirtek to have received insurance coverage for less than the premium due under the policy. Burlington relies on a statement in Legg v. Fortis Insurance Co., 978 So.2d 776, 781 (Ala.Civ.App.2007), which reads: "[I]t is not `right and just' that an insured receive an extra period of coverage at no cost." We find Legg inapposite here, however, because it did not involve an application of the door-closing statute but instead involved whether an insured should receive coverage for an accident that occurred during the 10-day grace period for renewal when the insured failed to pay the premium payment by the end of that grace period. Legg, 978 So.2d at 781. Application of the door-closing statute in any instance would result in the potential for one side to benefit; thus, we cannot agree that its application in this circumstance is particularly inequitable. Even if we were to find application of the door-closing statute inequitable under these circumstances, Burlington would still not be permitted to bring an action to enforce its policy under Alabama law.
*969 In addition to the general "door-closing statute," Alabama law specifically precludes unauthorized insurance companies from instituting actions on their insurance policies. § 27-10-3(a). Alabama requires that an insurer be authorized to transact business in this state by securing a certificate of authority from the Commissioner of Insurance. Ala.Code 1975, § 27-3-1. An insurer that is not authorized to transact business in this state because it does not possess a certificate of authority is an "unauthorized insurer." Ala.Code 1975, § 27-1-2(10). Section 27-10-3(a) provides that an unauthorized insurer may not institute an action "in this state to enforce any right, claim, or demand arising out of any insurance transaction in this state ...." Burlington argues that, although it does not have a certificate of authority from the commissioner, it is not an "unauthorized insurer" because it meets the requirements of § 27-10-26 and is eligible to provide surplus-lines coverage in Alabama. Indeed, § 27-10-3(b)(2) states that it does not apply to "[s]urplus lines coverages written under this chapter."
"Surplus lines insurance coverage is issued when insurance coverage cannot be procured from authorized insurers on terms acceptable to the insureds; in such an event, certain unauthorized insurers may sell insurance to Alabama citizens through a properly licensed surplus lines broker. See § 27-10-20." Custard Ins. Adjusters, Inc. v. Youngblood, 686 So.2d 211, 213 (Ala.1996). There are several requirements that an unauthorized insurance company and a surplus-lines broker must meet in order for them to be able to provide and to procure, respectively, surplus-lines insurance coverage. See Ala. Code 1975, §§ 27-10-24 and 27-10-26. None of those requirements are at issue in the present case.
Instead, the issue is whether the insurance policy in question is a surplus-lines insurance policy. Pirtek argues that, despite Burlington's eligibility as a surplus-lines insurance provider, it does not fall within the surplus-lines exception to § 27-10-3 because the insurance policy Burlington issued to Pirtek does not contain the endorsement required by § 27-10-22. That section requires the following:
"`Every insurance contract procured and delivered as a surplus line coverage pursuant to this article shall be initialed by, or bear the name and license number of, the surplus line broker who procured it and shall have stamped upon it the following:
"`This contract is registered and delivered as a surplus line coverage under the Alabama Surplus Line Insurance Law.'"
Pirtek argues that the insurance policy issued by Burlington without this required endorsement is not a surplus-lines insurance policy issued "in accordance with this article." Ala.Code 1975, § 27-10-23.[2] Based on this contention, Pirtek argues that Burlington remains an unauthorized insurer and is not entitled to sue for the additional premium it assessed under the policy.
Burlington argues that § 27-10-22 requires the broker to endorse the policy and that, because a surplus-lines broker is considered an agent of the insured in this case, Pirtek Burlington cannot be held responsible for the failure to include the required endorsement. Although Burlington is correct in arguing that, under *970 Alabama law, brokers are often considered agents of the insured, see Ballard v. Lee, 671 So.2d 1368, 1372 (Ala.1995), overruled on other grounds by State Farm Fire & Casualty Co. v. Owen, 729 So.2d 834 (Ala. 1998); and Gulf Gate Mgmt. Corp. v. St. Paul Surplus Lines Ins. Co., 646 So.2d 654, 659 (Ala.1994), it is incorrect in its assertion that § 27-10-22 places the duty to endorse the contract on the broker. The word broker appears in that section only in the context of requiring that the broker's initials or name and license number appear on the surplus-lines insurance contract. The statute does not direct any particular person or entity to make the required endorsement; it only directs that it "shall [be] stamped upon" the contract. Certainly, the broker could make the endorsement; however, the unauthorized insurer who desires to enforce its insurance contracts in Alabama courts has a clear incentive to be certain that the policy includes the required endorsement. "The Legislature adopted the provisions of the `unauthorized insurers and surplus lines' chapter in order to protect Alabama citizens from insurers who are not properly authorized to operate in the state," Youngblood, 686 So.2d at 216, and we see no reason to withdraw that protection by laying the blame for the lack of the endorsement on the insured.[3]
Burlington further argues that the lack of the required endorsement does not void the policy, as the trial court concluded it did. We agree with Burlington that the policy is not void. See Ala.Code 1975, § 27-10-1(c) ("This section shall not be deemed to render invalid, as between the parties thereto, any insurance contract entered into in violation of this section."). However, despite that fact, the lack of the required endorsement renders the trial court's ultimate conclusion that Burlington cannot maintain an action in this state correct.
Because § 27-10-22 uses the word "shall," there is no question that the endorsement is a mandatory requirement of Alabama's surplus-lines insurance law. Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998) ("The word `shall' is clear and unambiguous and is imperative and mandatory."). As explained in Black's Law Dictionary 1375 (6th ed.1990), use of the word "shall" denotes a requirement or an obligation that something be done:
"As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term `shall' is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage means `must' and is inconsistent with a concept of discretion."
Thus, the endorsement of the policy was absolutely required by the statute. The lack of that endorsement, then, prevents the policy from being considered a surplus-lines policy procured in accordance with Alabama's surplus-lines insurance law and renders the policy an insurance policy from an unauthorized insurer. As we have previously explained, § 27-10-3 prohibits an unauthorized insurer from maintaining an action to enforce its insurance contract in this state. We therefore affirm the trial court's judgment.
AFFIRMED.
*971 THOMPSON, P.J., and PITTMAN, J., concur.
BRYAN and MOORE, JJ., concur in the result, without writings.
NOTES
[1] Foreign insurance companies are those insurance companies that are "formed under the laws of any jurisdiction other than this state." Ala.Code 1975, § 27-1-2(7). "Alien insurers" are those insurers "formed under the laws of any country other than the United States of America, its states, districts, territories, and commonwealths." § 27-1-2(8). Foreign insurers also include alien insurers. § 27-1-2(7).
[2] Section 27-10-23 reads: "Insurance contracts procured as `surplus line' coverages from unauthorized insurers in accordance with this article shall be fully valid and enforceable as to all parties and shall be given acceptance and recognition in all matters and respects to the same effect and extent as like contracts issued by authorized insurers."
[3] Based on our decision that we will not impute the lack of the required endorsement to the insured, whom the surplus-lines insurance law was designed to protect, we will not address Burlington's argument, raised in its reply brief, that Pirtek has unclean hands because of the broker's failure to properly endorse the policy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622130/ | 853 So.2d 500 (2003)
CONSOLIDATED RESOURCES HEALTHCARE FUND I, LTD., d/b/a Lakeside Health Center, Appellant,
v.
Deborah FENELUS, as Personal Representative of the Estate of Ruth Spruill, deceased, Appellee.
No. 4D03-563.
District Court of Appeal of Florida, Fourth District.
July 30, 2003.
*501 Scott M. Fischer and Christopher B. Hopkins of Cole, Scott & Kissane, P.A., West Palm Beach, for appellant.
Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, L.L.P., and Craig M. Goldenfarb of Law Offices of Craig Goldenfarb, West Palm Beach, for appellee.
*502 OWEN, WILLIAM C., JR., Senior Judge.
On this non-final appeal from an order denying appellant's motion to compel arbitration, the issue is the validity of a nursing home admission agreement which contained an arbitration clause. The trial court found the agreement invalid because it had not been signed by a representative of the nursing home and was "boiler plate." We reverse.
Appellee, as personal representative of the estate of her mother, Ruth Spruill (the decedent), filed a negligence and wrongful death action against appellant, the operator of the nursing home in which the decedent lived during her last three years. Essentially, the complaint alleged appellant failed to provide the decedent adequate health care, protective services, and support services, causing the decedent various health problems which eventually led to her death.
Appellant filed a motion to compel arbitration based on an "agreement for care" (the agreement) which the decedent's son, Eugene Spruill (Eugene), executed on her behalf as her health care surrogate in connection with the decedent's admission to the nursing home. The agreement, the relevant portions of which were attached to the motion, required the nursing home, among other things, to "[f]urnish room, meals as required by the resident, nursing care, personal care, or custodial care, as may be required for the well-being of the resident." Of particular significance to this case, it also provided, in Paragraph 12, as follows:
12. OPTIONAL ARBITRATION CLAUSE (If the parties to this Agreement do not wish to include the following arbitration provision, please indicate so by marking an "X" through this clause. Both parties shall also initial that "X" to signify their agreement to refuse arbitration.) Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled by arbitration in accordance with the provisions of the Florida Arbitration Code found at Chapter 682, Florida Statutes, and judgement upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The provision was not "X"ed through or initialed.
Although the court held two "evidentiary" hearings on the motion, the only evidence consisted of Eugene's deposition and a deposition of Susan Taylor (Taylor), Director of Admissions and Marketing for the nursing home. The relevant facts developed by the depositions are neither complex nor disputed on material matters. As fifty year old Eugene, himself in poor health, watched his once active seventy-two year old mother begin to mentally decline, he concluded he could no longer care for her by himself. He and his mother then decided that she should move into appellant's nursing facility. Mrs. Spruill was admitted into the nursing home on December 2, 1997, but because Eugene had to work that day he, as her health care surrogate, did not sign the admission paperwork until two days later. The admission packet, which Taylor gave him to read and to sign, contained at least five items, including the agreement. Eugene testified he had a college education and had taught school for eleven years, but that he did not read the documents nor did he ask Taylor to explain them, since he believed he was signing forms simply to admit his mother into the nursing home. Taylor testified she also signed the various documents and that she did so in her capacity as a nursing home representative. The problem here, however, and central to the trial court's ruling, is that Taylor, instead of signing *503 the agreement on the line designated for the nursing home representative's signature, signed on the line designated "witness" to the right of Eugene's signature. When questioned about this, she testified that it was her practice to do so when someone other than the resident himself or herself signed the agreement; otherwise, if the resident signed, then she would ordinarily sign on the line for the nursing home representative.[1]
In its order denying the motion, the court stated its grounds: that no valid contract existed because the nursing home representative signed the agreement only as a witness and not in her capacity as the nursing home representative; that this case is distinguishable from the case on which appellant relied, Integrated Health Services of Green Briar, Inc. v. Lopez-Silvero, 827 So.2d 338 (Fla. 3d DCA 2002), because in that case there was no place for the nursing home representative to sign, whereas in this case there was; and, furthermore, that a valid contract did not exist because the subject contract was a "boiler plate contract."
At the outset, the parties dispute the standard of review, appellant contending that the de novo standard applies as the issue is one of law, while appellee contends that the abuse of discretion standard applies because the trial court, in making its findings, considered the evidence surrounding the execution of the agreement. The trial court undoubtedly did consider the evidence in making its finding that Taylor signed the agreement solely as a witness and not as a representative of the nursing home. The issue here, however, is not whether we accord deference to the trial court's factual finding but whether the finding will sustain the court's legal conclusion based thereon, i.e., that the agreement containing the arbitration clause is thereby rendered invalid. Our review on that issue is de novo.
We disagree that this case is distinguishable from Lopez-Silvero in any meaningful respect. In that case, as in this one, a suit was brought against a nursing home alleging improper care and the nursing home sought to compel arbitration pursuant to its admission contract. The Third District reversed the trial court's denial of the motion, concluding that even though the nursing home did not sign the contract at all, the contract was still binding:
A contract is binding, despite the fact that one party did not sign the contract, where both parties have performed under the contract. See Gateway Cable T.V., Inc. v. Vikoa Contruction [sic] Corp., 253 So.2d 461 (Fla. 1st DCA 1971). As noted in Gateway Cable T.V., Inc. v. Vikoa Contruction [sic] Corp., 253 So.2d at 463, "A contract may be binding on a party despite the absence of a party's signature. The object of a signature is to show mutuality or assent, but these facts may be shown in other ways, for example, by the acts or conduct of the parties." See also Sosa v. Shearform Mfg., 784 So.2d 609 (Fla. 5th DCA 2001) (parties may be bound to the provisions of an unsigned contract if they acted as though the provisions of the contract were in force.)
Here, both the resident and IHS acted as if they had a valid contract. IHS performed under the contract by admitting the resident and providing him with nursing home care for over two months. Moreover, IHS signed five other documents *504 relating to the resident's admission, which were incorporated by reference in the admission contract. Clearly IHS assented to the terms of the admission contract, including its arbitration clause.
Id. at 339. The court reversed and remanded with instructions to grant the motion. Id.
The fact that the contract in the Lopez-Silvero case had no place for the nursing home to sign, whereas the contract in the instant case did, is a distinction without a difference. The Lopez-Silvero case turned on assent by performance, not the presence or absence of a space for a signature. Here, appellant's assent to the contract has been demonstrated by its actions indicating assent, including its performance of the contract for a period of more than three years. See, Lopez-Silvero. It is clear appellant meant to be bound by the contract which it asked Eugene to sign on his mother's behalf.[2] Thus, we hold the trial court erred in concluding that, merely because the document contained no signature purporting to be that of the nursing home representative, no valid contract arose.
Appellee argues that notwithstanding the nursing home's performance, there was not a meeting of the minds with respect to the agreement to arbitrate. Although Eugene testified he did not understand that the agreement contained an arbitration provision, that was simply because, as he also testified, he did not read it. He did not testify that he was forced or coerced to sign it, nor that he was not given an opportunity to read it. In fact, Eugene testified that he signed the agreement willingly. Taylor testified that she allowed Eugene to read the package of documents of which the agreement was a part, and was available to answer his questions; Eugene did not ask any. A party normally is bound by a contract that the party signs unless the party can demonstrate that he or she was prevented from reading it or induced by the other party to refrain from reading it. See Allied Van Lines, Inc. v. Bratton, 351 So.2d 344, 347 (Fla.1977) ("No party to a written contract in this state can defend against its enforcement on the sole ground that he signed it without reading it.").
The trial court also found the agreement to be invalid because it was a "boiler plate contract". Taken literally, such a finding would be of no consequence, since the mere fact that a contract includes boiler plate language is not sufficient to invalidate it. However, we believe, as appellee has suggested in her brief, the trial court intended its use of "boiler plate" as shorthand for a finding that the arbitration clause was unconscionable. Thus considered, the finding should not be given the cursory dismissal its literal reading would permit for, as appellee correctly argues, unconscionable contracts will not be enforced by the courts, see, Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999), rev. denied, 763 So.2d 1044 (Fla. 2000), a case which the parties argued before the trial court.
In the Powertel case, the court explained that a determination of unconscionability required a finding that the contract is both procedurally and substantively unconscionable. Procedural unconscionability relates to the manner in which the contract was entered, including issues such as relative bargaining power and the *505 parties' ability to understand the disputed terms, while substantive unconscionability refers to the fairness of the terms of the agreement itself. The court in Powertel found both requirements met with respect to the arbitration clause added to the cellular telephone contract in question, where the clause was added unilaterally when the telephone company sent it to customers as an insert in the monthly bill and they could not reject the clause and continue to use the plan, in connection with which they had purchased equipment and obtained telephone numbers that worked only with that company's service. The clause was substantively unconscionable in that it limited the company's liability to actual damages, removed its exposure to a class action, and forced customers to waive important statutory remedies.
In this case, appellee argues the court recognized that Eugene was an older manhowever, he was only fifty years old at the time, and there was no evidence that he was lacking in capacitywithout business experience and that he had little bargaining power since his mother had already been admitted to the nursing home, its lawyers had drafted the agreement, and its terms were never explained to him. However, as we have discussed above, Eugene conceded he willingly signed the agreement, Taylor testified he had the opportunity to read it and ask questions before signing it, and the arbitration clause not only did not appear in small print, but it was titled in boldface and could have been refused by "X"ing it out.[3] We hold that appellee did not demonstrate procedural unconscionability by the mere act of appellant's including the arbitration clause in question (and an optional one at that) within the paperwork that Eugene had to sign to admit his mother to the nursing home.
With respect to the substantive prong, appellee argues that the clause would not have been substantively unconscionable had Eugene been given the choice of affirmatively giving up his right to trial, but instead he was deprived of a fundamental right unless he affirmatively indicated otherwise. However, as appellant argues, an arbitration clause need not even be optional in order to be valid; that was just additional evidence that it was fair. We hold there has been no showing of unconscionability sufficient to invalidate the arbitration clause in question.
Finally, appellee argues that the trial court was correct to deny the motion to compel arbitration because there was no agreement that tort claims would be subject to arbitration.[4]Compare Seifert v. U.S. Home Corp., 750 So.2d 633, 642 (Fla.1999) (holding that wrongful death claim against house builder was not subject to arbitration agreement in contract for sale and purchase of house, as the disputethe builder's alleged lack of due care in not designing the home to prevent the air conditioner from pulling in carbon monoxide from the garage and its breach of duty to warn of a known dangerous conditiondid not have a significant relationship to the contract, even though the dispute would not have arisen but for the contract). We find the instant case clearly *506 distinguishable. Here, the agreement containing the arbitration clause obligated appellant to provide appropriate care to the decedent, and the dispute alleges that appellant failed to provide appropriate care. It certainly appears to us that there is a strong nexus between the dispute giving rise to the lawsuit and the contract containing the arbitration clause. That the claim sounds in negligence (failure to exercise reasonable care) rather than breach of contract (failure to fulfill a contractual obligation) does not ipso facto sever an otherwise significant relationship between the contractual obligation and the matter in dispute. The trial court found the dispute to be arbitrable and we do as well.
REVERSED.
WARNER and POLEN, JJ., concur.
NOTES
[1] Since this evidence was by written deposition, the trial court did not have the benefit of viewing the deponent; nonetheless, the trial court expressed the view that she had signed only as a witness to Eugene's signature and not as a representative of the nursing home.
[2] We think it highly unlikely that, after performance for that period, appellant would be heard to disavow any obligation under the contract on the grounds that no nursing home representative had signed on its behalf.
[3] It is not clear what would have happened if Eugene had opted out of the arbitration clause and the nursing home refused to add its own "X"; perhaps the decedent's admission to the nursing home would have been rejected, but there was no testimony to that effect.
[4] While this was not one of the bases on which the trial court denied the motion, neither this court nor the appellee is precluded from sustaining a legally correct judgment by arguments supported by the record. See, Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 645 (Fla.1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622007/ | 853 So. 2d 61 (2003)
STATE of Louisiana
v.
Rodney WALKER.
No. 03-KA-188.
Court of Appeal of Louisiana, Fifth Circuit.
July 29, 2003.
*62 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Nancy A. Miller, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.
*63 A. Bruce Netterville, Gretna, LA, for Defendant-Appellant.
Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
EDWARD A. DUFRESNE, JR., Chief Judge.
Defendant, Rodney Walker, appeals his conviction of possession of cocaine. For the reasons which follow, we affirm his conviction and sentence.
The Jefferson Parish District Attorney filed a bill of information charging defendant with possession of cocaine, a violation of LSA-R.S. 40:967(C). Defendant pled not guilty and subsequently filed a motion to suppress evidence, which was heard and denied by the trial judge. The matter thereafter proceeded to trial before a six person jury which found defendant guilty as charged.
Defendant filed a motion for new trial which was heard and denied by the trial court. After waiving sentencing delays, the court sentenced defendant to four years at hard labor with credit for time served.
The state then filed a multiple offender bill of information alleging defendant to be a second felony offender. Defendant admitted the allegations of the multiple bill and was sentenced, in accordance with the plea agreement, to five years of imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant now appeals.
FACTS
On the night of December 20, 2000, Deputy Kurt Sanderson, of the Jefferson Parish Sheriff's Office, was dispatched to 6160 August Street in reference to a 911 hang up call. Upon arriving at the location, Deputy Sanderson observed two vehicles in the driveway of the home, one a Chevy Lumina and the other, a compact car. As he exited his vehicle, the Lumina backed out of the driveway with its lights off and rapidly accelerated from the location. Deputy Sanderson was told by a woman at the scene that the driver of the Lumina was the "dope man" and possessed crack cocaine inside of his car. Upon hearing that information, Deputy Sanderson notified his backup officer, Deputy Ricky Boudreaux, who was en route to the area.
Deputy Boudreaux testified that, within 10 to 20 seconds of receiving the call, he stopped the vehicle at the intersection of August and Ames. Boudreaux testified that the vehicle did not have functioning headlights when he performed the stop. After making the stop, Boudreaux ordered defendant out of the vehicle and conducted a pat down search and field interview of defendant. During this time, the driver's door of the vehicle was open, and the officer observed, in plain view, a small off-white, rock-like substance on the floorboard of the vehicle. The officer seized the substance. Subsequent tests revealed the rock to be crack cocaine.
Boudreaux then called for a K-9 unit to search the car for possible additional narcotics. Deputy Curtis Roy arrived at the scene with a K-9 dog and a search of the vehicle was conducted. As a result of the search, Boudreaux located and seized a bag containing small rocks of what appeared to be crack cocaine from the center console of defendant's vehicle. Subsequent testing revealed that these rocks were also crack cocaine.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, defendant argues that the trial court erred in denying his motion to suppress evidence.
*64 The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1, as well as by both the federal and state jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Belton, 441 So. 2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S. Ct. 2158, 80 L. Ed. 2d 543 (1984); State v. Hicks, 98-1231 (La.App. 5 Cir. 3/30/99), 733 So. 2d 652. Reasonable suspicion for an investigatory stop is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable suspicion to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Hicks, 733 So.2d at 654-655.
In the present case, defendant asserts that the stop of the vehicle was illegal because the officers lacked reasonable suspicion of criminal activity. He specifically asserts that the sheriff's deputies had "nothing upon which to suspect illegality" and the only information concerning defendant's suspected possession of cocaine came from an unidentified woman. Defendant contends that the tip from the unidentified woman failed to give the investigating officer any information about the identity or address of the driver or any information concerning the make, model, and color of the automobile. We find no merit to this argument. In fact, the issue of whether the citizen's complaint provided reasonable suspicion for the stop is of no consequence because the officers were justified in stopping defendant on other grounds.
The evidence, at both the suppression hearing and the trial, was clear that defendant was driving the vehicle at night without headlights. Driving at night without lighted headlights is a violation of LSA-R.S. 32:301, which requires that every vehicle upon a highway within this state shall display lighted lamps and illuminating devices at any time between sunset and sunrise. LSA-R.S. 32:301(1). It has been held that a traffic violation constitutes reasonable cause for a stop. State v. Curtis, 98-1283 (La.App. 5 Cir. 6/1/99), 738 So. 2d 657; State v. Richards, 97-1182 (La.App. 5 Cir. 4/15/98), 713 So. 2d 514, writ denied, 98-1452 (La.10/9/98), 726 So. 2d 27. Therefore, the police clearly had reasonable cause to stop defendant's vehicle because it was being operated without headlights as required by statute. Additionally, Deputy Boudreaux had the authority to order the defendant out of the vehicle pending the completion of the traffic stop. State v. Curtis, 738 So.2d at 660.
After defendant exited his vehicle, Deputy Boudreaux performed a pat down of defendant and conducted a field interview. Deputy Boudreaux then looked through the open driver's side door and observed a small off-white, rock-like substance. Suspecting the item was crack cocaine, Deputy Boudreaux collected the item. Under the plain view exception to the warrant requirement, if the police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. See, Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990); State v. Stamp, 98-193 (La.App. 5 Cir. 7/28/98), *65 718 So. 2d 531, 533; State v. Perkins, 97-1119 (La.App. 3 Cir. 6/17/98), 716 So. 2d 120, 126. Because the crack cocaine was in plain view, we find that it was lawfully seized. Based on the foregoing discussion, we find that the trial judge did not err in denying defendant's motion to suppress evidence. This assigned error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In his second assigned error, defendant challenges the sufficiency of the evidence used to convict him of possession of cocaine.
The standard for appellate review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypotheses of innocence." The requirement of LSA-R.S. 15:438 does not establish a standard separate from the Jackson standard, but rather provides a helpful methodology for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Guccione, 96-1049 (La.App. 5 Cir. 4/29/97), 694 So. 2d 1060, writ denied, 97-2151 (La.3/13/98), 712 So. 2d 869.
To support a conviction for possession of cocaine under LSA-R.S. 40:967, the state must prove beyond a reasonable doubt that defendant was in possession of the cocaine and that he knowingly possessed it. State v. Ruffin, 96-226 (La.App. 5 Cir. 8/28/96), 680 So. 2d 85. The element of possession may be established by showing that the defendant exercised either actual or constructive possession of the substance. A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. The mere presence of the defendant in the area where a controlled dangerous substance is found is insufficient to constitute constructive possession. However, proximity to the drug, or association with the possessor, may establish a prima facie case of possession when colored by other evidence. State v. Gentras, 98-1095 (La.App. 5 Cir. 3/30/99), 733 So. 2d 113, writ denied, 99-1302 (La.10/15/99), 748 So. 2d 464.
On appeal, defendant contends that the state failed to prove that he possessed the cocaine. He points to the fact that no cocaine was found on his person. He also points out that no evidence was submitted establishing that he owned the vehicle which he was driving.[1]
In the instant case, defendant was stopped driving a vehicle in which crack cocaine was found in plain view on the driver's side floorboard. Additional cocaine was found in the center console of the vehicle. As driver and sole occupant, defendant had custody of the car and the cocaine was within his immediate control.
*66 The possible lack of ownership of the vehicle does not negate defendant's control over the car and its contents.
In State v. Ashlock, 526 So. 2d 511, 512-513 (La.App. 3 Cir.1988), the Third Circuit found that defendant's use of an automobile was sufficient to show he had constructive possession of marijuana found in the automobile, even though it was never established who the registered owner was. Similarly, in State v. Manson, 01-159 (La. App. 5 Cir. 6/27/01), 791 So. 2d 749, this court found that a defendant had constructive possession of cocaine where he was the driver of the vehicle, despite testimony the car belonged to another person. Also, in State v. Williams, 01-644 (La.App. 5 Cir. 11/27/01), 802 So. 2d 909, this court found that a defendant was in constructive possession of cocaine where cocaine was found in plain view within the car he was driving, although the car belonged to another person.
Based on the foregoing discussion, we find that the state proved beyond a reasonable doubt that defendant had constructive possession of the cocaine.
To establish possession of cocaine, the state was also required to show that defendant knowingly or intentionally possessed the cocaine. The element of knowledge and intent are states of mind that need not be proven as facts, but may be inferred from the circumstances. State v. Reyes, 98-424 (La.App. 5 Cir. 12/29/98), 726 So.2d 84,88, writ denied, 99-1474 (La.10/8/99), 750 So. 2d 967. With regard to this element, defendant contends that the "trace amount" of cocaine found, without other relevant circumstantial evidence, was insufficient to establish his guilty knowledge.[2]
Contrary to defendant's arguments, there was additional evidence presented by the state establishing defendant's guilty knowledge. Deputy Sanderson testified that, after he received the call, he proceeded to the origin of the hang up 911 call using his vehicle's lights and siren. When he arrived at the scene, he exited his vehicle and, as he approached the location, a dark colored Chevy Lumina rapidly pulled out from the driveway and began accelerating from the scene with its lights off. Further, when defendant was stopped, he was the sole occupant and driver of the car, and, according to his mother, defendant had possession of the car for approximately two weeks prior to his arrest. Given these circumstances, it can be inferred that defendant had the requisite mental intent.
Based on the foregoing discussion, we find that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that defendant was in constructive possession of cocaine and that he knowingly or intentionally possessed it. This assigned error is without merit.
ASSIGNMENT OF ERROR NUMBER THREE
In his third assigned error, defendant asserts that the sentence imposed was excessive. The appellate court record does not contain a transcript of the sentencing *67 proceedings. This court, on April 28, 2003, ordered defendant to supplement the appellate record with all transcripts of the post-trial/post-verdict proceedings on or before May 7, 2003. Defendant has failed to comply with this order, and therefore, we consider this assignment of error to be abandoned. Moreover, we note that the sentence was apparently imposed pursuant to a plea agreement.
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So. 2d 337 (La.1975); State v. Wetland, 556 So. 2d 175 (La.App. 5 Cir.1990). Our review reveals no errors which require corrective action.
Accordingly, for the reasons set forth herein, we affirm defendant's conviction for possession of cocaine and his sentence to five years imprisonment at hard labor without benefit of probation or suspension of sentence.
CONVICTION AND SENTENCE AFFIRMED.
NOTES
[1] At trial, Deputy Boudreaux testified that, after defendant exited the vehicle, he examined defendant's driver's license, registration, and proof of insurance, and determined that defendant was the owner of the vehicle. However, defendant's automobile registration was ruled inadmissible at trial.
[2] Defendant contends that only a "trace amount" of cocaine was found in the vehicle. Daniel Waguespack testified that the amount of cocaine found was one-tenth of a gram. While such an amount is small, it does not appear to qualify as a "trace amount." In cases discussing "trace amounts" of crack cocaine, the amounts appear to consist of residue contained within or on drug paraphernalia, which is much less that the amount in the present case. See, State v. Daggs, 32,216 (La.App. 2 Cir. 8/19/02), 823 So. 2d 1093, 1098 and State v. Carter, 99-0779 (La.App. 4 Cir. 11/15/00), 773 So. 2d 268, 277. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622008/ | 13 So. 3d 901 (2008)
Steven GREENE et al.
v.
JEFFERSON COUNTY COMMISSION and the General Retirement System for Employees of Jefferson County.
1070300.
Supreme Court of Alabama.
November 14, 2008.
Rehearing Denied January 16, 2009.
*904 William Eugene Rutledge of Rutledge & Yaghmai, Birmingham, for appellants.
James L. Priester and Grace R. Murphy of Maynard, Cooper & Gale, P.C., Birmingham; and Jeffrey M. Sewell, asst. county atty., Birmingham, for appellees.
SEE, Justice.
Steven Greene, Mark Persall, Larry Owen, Charles Horton, James Phillips, and Cassie Bell, on behalf of themselves and all others similarly situated, appeal from a summary judgment in favor of the Jefferson County Commission and the General Retirement System for Employees of Jefferson County. We affirm.
Facts and Procedural History
The General Retirement System for Employees of Jefferson County ("the retirement system") was created in 1965 by the enactment of Act No. 497, Ala. Acts 1965.[1] The retirement system requires that each employee-member contribute six percent of his or her regular gross salary to the retirement system. Employee-members are credited with one year of paid service for each year they are employed by Jefferson County and contribute their six percent to the retirement system. In return for an employee-member's six-percent contribution to the retirement system, Jefferson County contributes six percent in matching funds. However, in order to ensure that the retirement system remains actuarially sound, the retirement system invests the contributed funds to compensate for the difference between the total contributions and the actual pension payouts.[2]
At some point during the 1970s, approximately 238 Jefferson County sheriff's deputies voluntarily ceased participating in the retirement system and withdrew their contributions, with interest. Those employees who opted out of the retirement system had their years of paid service reduced to zero, although they continued to receive one year of unpaid service for each year they continued to work for Jefferson County.
In June 2003, the legislature passed Act No. 2003-343, Ala. Acts 2003 (hereinafter "the Act"), allowing Jefferson County employees *905 who had opted out of the retirement system to opt back in and to receive credit for prior periods of unpaid service rendered to Jefferson County, the Jefferson County sheriff's department, or any municipality in Jefferson County "or other jurisdiction." The Act also allowed Jefferson County employee-members who did not opt out and who were contributing to the retirement system to convert prior periods of unpaid service to paid service.[3] In order to convert unpaid prior service to paid service, an employee-member must contribute six percent of his or her current annual salary for each year the employee-member wishes to convert. The Act then requires Jefferson County to contribute six percent in matching funds and any further contributions that are necessary to ensure that the retirement system remains actuarially sound.
Subsequent to the passage of the Act, two groups of Jefferson County employees filed separate class-action lawsuits to enforce the provisions of the Act. Sheriff Deputy Jimmy Black brought one of the class-action lawsuits against the pension board of the retirement system on behalf of other deputies who had opted out of the retirement system and who were seeking to enforce the provisions of the Act and to rejoin the retirement system. A second subclass in the first class-action lawsuit consisted of employees who had sought a hearing before a special master when Jefferson County did not allow the employees to convert unpaid service to paid service under the Act. Employee-members who had not opted out of the retirement system brought a separate lawsuit seeking to invalidate the Act. The lawsuits were eventually consolidated, and both Jefferson County and the retirement system were named as defendants (the consolidated actions are hereinafter referred to as "the Black litigation").
Judge Jerry Fielding was specially assigned to preside over the Black litigation in the Jefferson Circuit Court. Judge Fielding found that the Act was not unconstitutional on the grounds asserted, and he ordered Jefferson County and the retirement system to implement the provisions of the Act allowing nonparticipating employees to opt back into the retirement system. None of the defendants appealed Judge Fielding's decision.
In response to Judge Fielding's order requiring Jefferson County to implement the provisions of the Act, the County passed Resolution JUN-7-2006-683 ("the resolution"). The resolution provides that eligible employees of Jefferson County who convert unpaid service to paid service under the Act forfeit any claim to retirement benefits under both the Jefferson County Retiree Health Insurance Plan and the Jefferson County Sick Leave Retirement Conversion Program.[4] Jefferson County defended the resolution as a necessary measure to preserve the economic stability of the County. The actuary for Jefferson County estimated that if all eligible employees availed themselves of the provisions of the Act, Jefferson County's obligation to contribute matching funds and to compensate for investment earnings *906 that would have been realized if the employees had been making ongoing contributions to the retirement system would cost the County $64 million. The resolution also stated that one of its express purposes is to allow Jefferson County to "fulfill its statutory financial obligations."
On June 19, 2006, the plaintiffs in the Black litigation moved for supplemental relief in the form of a preliminary injunction enjoining Jefferson County from enforcing the provisions of the resolution. The Jefferson County Commission, the pension board of the retirement system, and the retirement system challenged the motion, arguing, among other things, that the plaintiffs had failed to post an injunction bond. The plaintiffs responded by requesting that the trial court consolidate the hearing on the preliminary injunction with the trial on the permanent injunction.
Judge Fielding denied the plaintiffs' motion for supplemental relief, finding that there was no justiciable issue in the motion because the court could not enjoin the enforcement of the resolution. He held that to do so would violate Article III, § 43, Alabama Constitution 1901.[5] Judge Fielding also found that "the issues presented in the plaintiffs' challenge to the Resolution are completely separate and involve different facts, issues, and theories than the previous action challenging [the Act]." The plaintiffs in the Black litigation did not appeal Judge Fielding's denial of the motion for supplemental relief.
On November 21, 2006, Judge Fielding certified his judgment in the Black litigation as final pursuant to Rule 54(b), Ala. R. Civ. P. The judgment specifically states that "[t]his Final Judgment entered under Ala. R. Civ. P. 54 together with the previous orders entered by this Court in these matters disposes of all claims for relief made by any party." Neither side to the dispute in the Black litigation appealed Judge Fielding's judgment.
On May 18, 2007, Steven Greene, Mark Persall, Larry Owen, Charles Horton, James Phillips, and Cassie Bell,[6] on behalf of themselves and all others similarly situated (hereinafter "the Greene parties"), sued the Jefferson County Commission and the retirement system (collectively "the County") in the Jefferson Circuit Court. The Greene parties sought a judgment declaring that the Jefferson County Commission, by passing the resolution, "retaliated [against] and/or administered unequal treatment" to Jefferson County employees who sought to convert unpaid service to paid service under the Act. The Greene parties also sought a permanent injunction to prevent the County from enforcing the resolution, as well as other equitable relief to eliminate the effects of the resolution. The County moved for a summary judgment, arguing (1) that the Greene parties' claims are barred by the doctrines of res judicata and collateral estoppel; (2) that Art. III, § 43, Ala. Const. 1901, prevents the trial court from hearing the Greene parties' challenge to the resolution; (3) that Alabama law does not recognize an equal-protection challenge; and (4) that the Greene parties' claims are due to be dismissed because the Greene parties did not present their claims to the Jefferson *907 County Commission before commencing their action and, thereby, violated § 6-5-20 et seq., Ala.Code 1975.[7]
Judge Vance of the Jefferson Circuit Court entered a summary judgment in favor of the County. His order states, in its entirety:
"For the reasons stated therein, the defendants' motion for summary judgment is due to be GRANTED. Neither the named class representative nor any member of the putative class may maintain the claims raised in the complaint."
Twenty-two days later in a postjudgment motion, the Greene parties moved Judge Vance to recuse himself because, the Greene parties argued, Judge Vance and counsel for the County had violated § 12-24-2, Ala.Code 1975,[8] by failing to notify the Greene parties that counsel for the County had contributed more than $2,000 to Judge Vance's election campaign. The Greene parties also moved the trial court for a new trial or, in the alternative, to alter, amend, or vacate the judgment or for relief from judgment. Judge Vance denied the Greene parties' recusal motion and also denied the Greene parties' motion for a new trial and other postjudgment relief. The Greene parties now appeal.
Standard of Review
"`We review the trial court's grant or denial of a summary judgment motion de novo.' Smith v. State Farm Mut. Auto. Ins. Co., 952 So. 2d 342, 346 (Ala. 2006) (citing Bockman v. WCH, L.L.C., 943 So. 2d 789 (Ala.2006)). A summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. If the movant meets this initial burden, the burden then shifts to the nonmovant to present `substantial evidence' of a genuine issue of material fact. Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala.1999). Substantial evidence is `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989); see also § 12-21-12(d), Ala.Code 1975. In determining whether a genuine issue of material fact exists, this Court views the evidence in the light most favorable to the nonmovant and resolves all reasonable doubts in favor of the nonmovant. Jones v. BP Oil Co., 632 So. 2d 435, 436 (Ala.1993). `The trial court's ruling on a question of *908 law carries no presumption of correctness, and this Court reviews de novo the trial court's conclusion as to the appropriate legal standard to be applied.' Dunlap v. Regions Fin. Corp., 983 So. 2d 374, 377 (Ala.2007) (citing Ex parte Graham, 702 So. 2d 1215, 1221 (Ala.1997))."
McCutchen Co. v. Media Gen., Inc., 988 So. 2d 998, 1001 (Ala.2008).
Analysis
The Greene parties provide several reasons why, they contend, the trial court erred in entering a summary judgment in favor the County.[9] First, the Greene parties argue that the County failed to carry its summary-judgment burden because, they say, the County failed to include a narrative summary of undisputed facts as required by Rule 56(c)(1), Ala. R. Civ. P. Second, the Greene parties argue that the doctrine of res judicata does not apply in this case because, they argue, the Black litigation involved different parties and issues. The Greene parties further argue that even if the doctrine of res judicata applies in this case, the County should be judicially estopped from asserting that defense because, they say, the County's position in the Black litigation is inconsistent with the position it asserts in this action. Finally, the Greene parties argue that this case does not implicate a separation-of-powers issue under § 43, Ala. Const.1901, because the resolution was not a valid exercise of the County's legislative power.
A. The County's Summary-Judgment Burden
A summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. If the movant meets this initial burden, the burden then shifts to the nonmovant to present "substantial evidence" of a genuine issue of material fact. Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala.1999). The Greene parties argue that the burden never shifted to them to present substantial evidence creating a genuine issue of material fact because, the Greene parties say, the County did not include a narrative summary of undisputed facts with its summary-judgment motion as required by Rule 56(c)(1), Ala. R. Civ. P.[10]
*909 However, the County argues that it did support its summary-judgment motion with a narrative summary of the undisputed facts.[11] The County's brief in support of its summary-judgment motion contains a statement of facts with references to materials that are attached to the brief as exhibits. Those exhibits include the stipulations regarding class certification of the plaintiffs in the Black litigation, the Black plaintiffs' motion for supplemental relief, Judge Fielding's order denying the Black plaintiffs' motion for supplemental relief, Judge Fielding's final judgment, and a memorandum sent by the County to all Jefferson County employees regarding conversion of unpaid service to paid service under the terms of the resolution. The County contends that the statement of facts contained in its brief and the references to the attached exhibits satisfy the requirement of Rule 56(c) that a motion for a summary judgment include a narrative summary of undisputed facts. We agree.
In Cashion v. Torbert, 881 So. 2d 408 (Ala.2003), this Court addressed a similar situation. In Cashion, Torbert moved for a summary judgment based upon the affirmative defense of res judicata. The summary-judgment motion provided "a detailed history relevant to the defense of res judicata, attaching numerous supporting affidavits." Cashion, 881 So.2d at 420. The supporting documents attached by Torbert included copies of "Cashion's report of insolvency filed in the probate court; her brief filed in support of that report"; and a copy of the trial judge's order on final settlement. Cashion, 881 So.2d at 420. This Court held that Torbert's "motion was adequately supported and adequately presented the undisputed issues of fact material to the defense of res judicata." Cashion, 881 So.2d at 420.
In this case, as in Cashion, the County included with its motion a statement of facts relevant to the defense of res judicata and attached to its brief in support of the motion copies of relevant documents that provide the basis for the County's assertion that this claim is barred by the doctrine of res judicata. In the narrative statement, the County refers to, and attaches a copy of, the motion for supplemental relief in the Black litigation, Judge Fielding's order denying that motion, and stipulations regarding class certifications in the Black litigation. These documents form the basis for the County's argument that the Greene parties' claims are barred by the doctrine of res judicata and are cited by the County in its statement of facts in its summary-judgment motion. The County, like Torbert in Cashion, did *910 provide "a detailed history relevant to the defense of res judicata, attaching numerous supporting affidavits." Cashion, 881 So.2d at 420. Therefore, we conclude that the County sufficiently complied with Rule 56(c)(1), Ala. R. Civ. P., insofar as that rule requires that a narrative summary of the undisputed facts be included with a summary-judgment motion.
B. The Doctrine of Res Judicata
The Greene parties contend that the doctrine of res judicata does not apply to bar their action because, they argue, the judgment in the Black litigation was not a final judgment on the merits and the Black litigation and this action are different causes of action involving different issues. The County contends that Judge Fielding's denial of the motion for supplemental relief in the Black litigation and his final order incorporating all of his previous orders in that litigation satisfies the elements of res judicata.
The elements of res judicata are "`(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.'" Chapman Nursing Home, Inc. v. McDonald, 985 So. 2d 914, 919 (Ala.2007) (quoting Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala.1998)).
1. Judgment on the Merits
First, we agree with the County that Judge Fielding's denial of the motion for supplemental relief in the Black litigation is a prior judgment on the merits. In his order denying the plaintiffs' motion for supplemental relief, Judge Fielding stated:
"The Jefferson County Commission has been vested with the responsibility for maintaining a balanced budget for the County and funding and overseeing vital public services for the citizens of the County. In adopting the Resolution, the Commission did not abuse [its] vested discretion, and did not engage in fraud. This Court's inquiry must end there, as the authority to determine the amount of appropriations necessary for the performance of government function is a legislative power, not a judicial power. In re R.B.J., 675 So. 2d 457, 458 (Ala.Civ.App.1996). This Court would infringe upon the boundaries between our State's branches of government delineated in Sec. 43 of the Alabama Constitution if it were to enjoin this Resolution. This Court also find[s] that the issues presented in Plaintiff's challenge to the Resolution are completely separate and involve different facts, issues, and theories than the previous action challenging Act 03-343. Thus, the Court finds that there is no justiciable issue involved in the Plaintiffs' Motion for Supplemental Relief."
Judge Fielding denied the motion for supplemental relief, finding that the resolution was a discretionary legislative act by the Jefferson County Commission that implicated the Commission's obligation to enact and maintain a balanced budget. Judge Fielding found that an injunction preventing the enforcement of the resolution would violate the separation-of-powers doctrine enshrined in § 43 of the Alabama Constitution. This was a judgment on the merits.
On November 21, 2006, Judge Fielding entered his final order, which incorporated all previous orders entered by the trial court, including the order denying the motion for supplemental relief. Under Rule 4(a)(1), Ala. R.App. P.,[12] the plaintiffs *911 in the Black litigation had 42 days from the date of the entry of that final judgment to appeal the denial of their motion for supplemental relief. The plaintiffs did not appeal. Therefore, that judgment became final for res judicata purposes after the time for filing an appeal had elapsed. See Omega Leasing Corp. v. Movie Gallery, Inc., 859 So. 2d 421, 424 n. 1 (Ala.2003) (summarizing Faison v. Hudson, 243 Va. 413, 419, 417 S.E.2d 302, 305 (1992), as "stating that `a judgment is not final for the purposes of res judicata ... when it is being appealed or when the time limits fixed for perfecting the appeal have not expired'").
The Greene parties contend, however, that Judge Fielding's statement that "the issues presented in Plaintiff's challenge to the Resolution are completely separate and involve different facts, issues, and theories than the previous action challenging Act 03-343. Thus, the Court finds that there is no justiciable issue involved in the Plaintiffs' Motion for Supplemental Relief." makes it impossible for the order to be a final judgment on the merits. The Greene parties argue that this is so because, they argue, there can be no final judgment from a dispute that contains no justiciable issues. However, the Greene parties do not cite any authority to support this argument. "`"Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant."'" McCutchen Co., 988 So.2d at 1004 (quoting Henderson v. Alabama A & M Univ., 483 So. 2d 392, 392 (Ala.1986), quoting in turn Gibson v. Nix, 460 So. 2d 1346, 1347 (Ala.Civ.App.1984)).
The Greene parties also argue that Judge Fielding's denial of the motion for supplemental relief in the Black litigation was not a final judgment on the merits because, they say, in denying that motion Judge Fielding denied the plaintiffs' motion for a preliminary injunction. The Greene parties cite EB Investments, L.L.C. v. Atlantis Development, Inc., 930 So. 2d 502, 510 (Ala.2005), in which this Court stated that the trial court's ruling on a motion for a preliminary injunction is not a prior judgment for res judicata purposes because it is "neither a final judgment nor was it rendered on the merits" of the claims involved in the action.
The County, however, responds that in denying the motion for supplemental relief, Judge Fielding was actually denying a request for a permanent injunction rather than a request for a preliminary injunction. The County points out that the plaintiffs in the Black litigation sought to convert their motion for a preliminary injunction into a motion for a permanent injunction because they failed to post a preliminary-injunction bond as required by Rule 65(c), Ala. R. Civ. P.[13]
In their response to the County's motion opposing the motion for supplemental relief, the plaintiffs in the Black litigation stated that their motion for supplemental *912 relief was "due to be granted in the form of a permanent injunction." Thus, we agree with the County that the plaintiffs in the Black litigation sought a permanent injunction and that when Judge Fielding denied the motion for supplemental relief he denied a motion for a permanent injunction. The denial of a motion for a permanent injunction can be a final judgment for res judicata purposes. See 43A C.J.S. Injunctions § 356 (2004) ("[A]n interlocutory judgment granting or refusing an injunction may be res judicata with respect to the right to a permanent injunction, where the judgment on the application for a preliminary injunction was based solely on a question of law, or where the proof at the trial is substantially the same as it was at the interlocutory hearing."). Therefore, Judge Fielding's denial of the motion for supplemental relief was a final judgment on the merits for res judicata purposes.
2. Court of Competent Jurisdiction
Neither side disputes that Judge Fielding's denial of the motion for supplemental relief and his final judgment in the Black litigation was a decision rendered by a court of competent jurisdiction. See AAA Mobile Home Movers, Inc. v. Holmes, 607 So. 2d 236, 238 (Ala.Civ.App.1992) ("Clearly, the Jefferson County Circuit Court, which entered the summary judgment denying the appellant's claims, was a court of competent jurisdiction.").
3. Substantial Identity of Parties
The parties in the Black litigation are substantially identical to the parties involved in this dispute. Our caselaw requires that "there is a substantial identity of parties in the two actions." Ex parte Ford Motor Credit Co., 772 So. 2d 437, 440 (Ala.2000). Substantial identity requires that the "`"parties be identical, sometimes referred to as the mutuality of estoppel requirement."'" Stewart v. Brinley, 902 So. 2d 1, 10 (Ala.2004) (quoting McMillian v. Johnson, 878 F. Supp. 1473, 1520 (M.D.Ala.1995)). "`An exception is made to this requirement for parties in privity with a party to the prior action.'" Stewart, 902 So.2d at 10 (quoting McMillian, 878 F.Supp. at 1520) (emphasis omitted). A party is deemed to be in privity with a party to a prior action when there is "`"an identity of interest in the subject matter of litigation."'" Stewart, 902 So.2d at 11 (quoting Hughes v. Martin, 533 So. 2d 188, 191 (Ala.1988), quoting in turn Issue Preclusion in Alabama, 32 Ala. L.Rev. 500, 521 (1981)).
The County argues that the Greene parties were all class members of one of the subclasses in the Black litigation. In fact, Jim Phillips, one of the Greene parties involved in this dispute, acted as a class representative in the Black litigation for the subclass that filed the motion challenging the validity of the resolution. The remaining Greene parties who were not members of that particular subclass share that same interest in the subject matter of the dispute, namely, invalidating the resolution.
This Court has stated: "`"`A person may be bound by a judgment even though not a party to a suit if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative.'"'" Gonzalez, LLC v. DiVincenti, 844 So. 2d 1196, 1203 (Ala.2002) (quoting Green v. Wedowee Hosp., 584 So. 2d 1309, 1315 (1991), quoting other cases). In the Black litigation, the subclass of Jefferson County deputies and the subclass of Jefferson County employees had an identical interest in seeking the invalidation of the resolution because, under the terms of the resolution, members of both subclasses would have been required to forfeit certain *913 discretionary benefits in order to opt back into the retirement system. Therefore, the third element of res judicata is met in this case because the parties in this case are substantially identical to the parties involved in the Black litigation.[14]
4. Same Cause of Action
The fourth and final element of res judicatathat the same cause of action be presented in both actionsis also met in this case. "`Res judicata applies not only to the exact legal theories advanced in the prior case, but to all legal theories and claims arising out of the same nucleus of operative facts.'" Old Republic Ins. Co. v. Lanier, 790 So. 2d 922, 928 (Ala.2000) (quoting Wesch v. Folsom, 6 F.3d 1465, 1471 (11th Cir.1993)). Two causes of action are the same for res judicata purposes "`when the same evidence is applicable in both actions.'" Old Republic Ins. Co., 790 So.2d at 928 (quoting Hughes v. Martin, 533 So. 2d 188, 191 (Ala.1988)).
In this case, the Greene parties seek a judgment declaring that the sole purpose of the resolution is to punish Jefferson County employees who convert unpaid service to paid service under the Act and a permanent injunction to prevent the County from enforcing the resolution. The plaintiffs in the Black litigation who filed the motion for supplemental relief likewise sought to enjoin the County from enforcing the resolution. Because the claims in this litigation and those in the Black litigation both seek to prevent the County from enforcing the resolution, the claims in the two cases arise out of the same nucleus of operative facts. Additionally, the Greene parties, in seeking to prevent the County from enforcing the resolution, rely on the same evidence and advance many of the same arguments raised in the plaintiffs' motion for supplemental relief in the Black litigation.
The Greene parties insist that this cause of action is not the same as the cause of action in the Black litigation because, they say, Judge Fielding recognized that there was no justiciable dispute before him when he denied the motion for supplemental relief. To support this argument, the Greene parties point to the following language in Judge Fielding's denial of the motion for supplemental relief: "This Court also find[s] that the issues presented in Plaintiff's challenge to the Resolution are completely separate and involve different facts, issues, and theories than the previous action challenging Act 03-343. Thus, the Court finds that there is no justiciable issue involved in the Plaintiffs' Motion for Supplemental Relief." The Greene parties argue that "a claim that is not properly before an earlier court could [not] preclude the claim being properly presented in a subsequent action." Greene parties' brief at 34-35. However, as we noted previously, this was an alternative holding. Judge Fielding based his denial of the motion for supplemental relief on the fact that the granting of injunctive relief would violate the separation-of-powers doctrine as established in § 43 of the Alabama Constitution. Therefore, we agree that the final element of res judicata is met because this cause of action is the same cause of action raised in the motion *914 for supplemental relief in the Black litigation.
The County has demonstrated that there was a prior final judgment on the merits in the Black litigation, that that judgment was rendered by a court of competent jurisdiction, that the parties in the Black litigation and this action are substantially identical, and that the cause of action was the same in both disputes. Thus, the four elements of res judicata are met, and the claims raised by the Greene parties are barred.
C. Judicial Estoppel
The Greene parties argue that even if the doctrine of res judicata would apply to prevent them from raising their claims, the County should be judicially estopped from raising the doctrine of res judicata as an affirmative defense. For judicial estoppel to apply,
"`(1) "a party's later position must be `clearly inconsistent' with its earlier position"; (2) the party must have been successful in the prior proceeding so that "judicial acceptance of an inconsistent position in a later proceeding would create `the perception that either the first or second court was misled'" (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.1982)); and (3) the party seeking to assert an inconsistent position must "derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." [New Hampshire v. Maine,] 532 U.S. [742,] at 750-51, 121 S. Ct. 1808 [(2001)]. No requirement of a showing of privity or reliance appears in the foregoing statement of factors to consider in determining the applicability of the doctrine of judicial estoppel.'"
Middleton v. Caterpillar Indus., Inc., 979 So. 2d 53, 60-61 (Ala.2007) (quoting Ex parte First Alabama Bank, 883 So. 2d 1236, 1244-45 (Ala.2003), citing in turn New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001)).
The County raised three arguments in response to the motion for supplemental relief filed by the plaintiffs in the Black litigation. One of the arguments was that § 43 of the Alabama Constitution deprived the court of jurisdiction to entertain the plaintiffs' motion absent a showing of fraud or abuse of discretion by the County. The second argument was that the trial court had no basis for hearing the motion, because the subject matter of the resolutionthe Jefferson County Retiree Health Insurance Plan and the Jefferson County Sick Leave Retirement Conversion Programwere unrelated to the question of the validity of the Act.[15] The Greene parties argue that the first element of judicial estoppel is met here because, they say, the County has asserted inconsistent positions by successfully arguing "to the court in the Black Litigation that the issue of the Resolution's validity was not even before the court. But, in the instant case [the County] argue[s] the issue was before the Black court and was decided in [the County's] favor." Greene parties' brief at 36.
The County contends that its positions were not inconsistent because, it says, it merely presented several alternative arguments to support the denial of the motion for supplemental relief. The County argues that its "current position in this proceeding that Judge Fielding issued a final judgment on the merits that § 43 [of the Alabama Constitution] bars review of the Resolution is clearly not inconsistent with *915 their prior position that argued for this exact result." County's brief at 39.
We agree with the County. Judge Fielding found that the resolution was a valid exercise of Jefferson County's legislative power and that, in enacting the resolution, Jefferson County did not engage in fraud or abuse its discretion. The County argued for this result in the Black litigation and has maintained this position throughout this action as well. Judge Fielding's second conclusionthat the challenge to the resolution involved different facts, issues, and theories then the challenge of the Actwas an alternative holding that was based upon the County's alternative argument that the challenge to the resolution was not at issue in the Black litigation. The County raised alternative arguments in seeking the denial of the motion for supplemental relief in the Black litigation; however, the County has consistently maintained in both actions the position that judicial review of the resolution would violate separation-of-powers principles. The doctrine of judicial estoppel "`applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted.'" Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So. 2d 844, 846 (Ala.1992) (quoting Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.1988)). See also Astor Chauffeured Limousine Co. v. Runnfeldt Inv. Corp., 910 F.2d 1540, 1548 (7th Cir.1990) (stating that in the context of judicial estoppel "[t]he offense is not taking inconsistent positions so much as it is winning, twice, on the basis of incompatible positions"). Because the County's positions appear to be consistent throughout both the Black litigation and these proceedings, we conclude that the County is not judicially estopped from raising the affirmative defense of res judicata.[16]
Conclusion
We hold that the County's summary-judgment motion was properly supported with a narrative summary of undisputed facts and that the County was entitled to summary judgment on the basis of res judicata. We also hold that the County was not judicially estopped from raising the affirmative defense of res judicata. Therefore, we affirm the trial court's judgment.
AFFIRMED.
COBB, C.J., and WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.
NOTES
[1] Act No. 497 provides: "Except as herein otherwise provided, every person becoming an employee of [Jefferson] County subsequent to the effective date of this Act and occupying a position subject to the civil service system applicable to the County shall become a member of the system on the date he enters the service of the County."
[2] The pension an employee-member receives from the retirement system is tied to the number of years of "paid service" the employee-member has accumulated. This is the number of years the employee-member was employed by Jefferson County and paid into the retirement system. The years an employee works for Jefferson County but does not make contributions into the retirement system are referred to as "unpaid service."
[3] Section 2, subsection (a), of the Act provides that "[c]onversion of unpaid prior service to paid service shall be limited to 20 years."
[4] Jefferson County enacted the Sick Leave Retirement Conversion Program in 1993. This program allows employees of Jefferson County to conserve their paid sick-leave benefits. A retiring employee with at least 15 years of employment with Jefferson County who has opted to save his or her sick-leave time is eligible to receive a credit whereby the retiring employee uses the accumulated sick-leave time to remain on the Jefferson County payroll as an off-duty employee until the employee's actual retirement date.
[5] Section 43 provides: "In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men."
[6] Each of these individuals was a member of one of the several plaintiff subclasses in the Black litigation.
[7] Section 6-5-20(a), Ala.Code 1975, provides:
"An action must not be commenced against a county until the claim has been presented to the county commission, disallowed or reduced by the commission and the reduction refused by the claimant."
[8] Section 12-24-2, Ala.Code 1975, provides, in pertinent part:
"If the action is assigned to ... a circuit judge who has received more than two thousand dollars ($2,000) based on the information set out in any one certificate of disclosure, then, within 14 days after all parties have filed a certificate of disclosure, any party who has filed a certificate of disclosure setting out an amount including all amounts contributed by any person or entity designated in subsection (b), below the limit applicable to the justice or judge, or an amount above the applicable limit but less than that of any opposing party, shall file a written notice requiring recusal of the justice or judge or else such party shall be deemed to have waived such right to a recusal. Under no circumstances shall a justice or judge solicit a waiver or participate in the action in any way when the justice or judge knows that the contributions of a party or its attorney exceed the applicable limit and there has been no waiver of recusal."
[9] In addition to the arguments addressed below, the Greene parties also argue that Judge Vance was required to recuse himself from this case pursuant to § 12-24-2(c), Ala.Code 1975. The Greene parties are precluded from seeking Judge Vance's recusal on this ground, however, because they raised this issue for the first time in their posttrial motion. Alabama courts have held: "If a party has knowledge of a judge or master's partiality and that information may support a recusal, the party may not lie in wait and raise the issue of recusal after learning the outcome of the proceeding." Adams v. Board of Trs. of Univ. of South Alabama, 676 So. 2d 1326, 1328 (Ala. Civ.App.1996). Campaign contributions are a matter of public record; therefore, the Greene parties are deemed to have constructive knowledge of the alleged violation of §§ 12-24-1 and -2. See Ex parte Kenneth D. McLeod Family Ltd. P'ship XV, 725 So. 2d 271, 273 (Ala. 1998) (denying the plaintiff's motion for a new trial because the defendant's campaign contribution "along with all other contributions received by the trial judge in her campaign, was a matter of public record," and therefore the plaintiff was "on notice that grounds for a recusal motion might exist"). See also Brackin v. Trimmier Law Firm, 897 So. 2d 207, 233-34 (Ala.2004) (Brown, J., statement of nonrecusal) (noting that "the fact that it is questionable whether §§ 12-24-1 and -2, Ala.Code 1975, which have not yet obtained `preclearance' from the United States Justice Department under the Voting Rights Act of 1965, are even enforceable has been well documented by this Court").
[10] Rule 56(c)(1), Ala. R. Civ. P., provides that a motion for a summary judgment
"shall be supported by a narrative summary of what the movant contends to be the undisputed material facts; that narrative summary may be set forth in the motion or may be attached as an exhibit. The narrative summary shall be supported by specific references to pleadings, portions of discovery materials, or affidavits and may include citations to legal authority."
[11] The County also argues that the Greene parties have not preserved for appellate review the issue of its failure to provide a narrative summary of the undisputed facts with its summary-judgment motion because, the County says, the Greene parties did not raise this argument in the trial court. In support of this argument, the County cites Copeland v. Samford University, 686 So. 2d 190 (Ala.1996). In Copeland, this Court held that the Copelands did not preserve for appellate review the argument that Samford University's summary-judgment motion did not include a narrative summary of undisputed facts because they "made no objection on this basis at any time before the court ruled on the motion for summary judgment." 686 So.2d at 196. Our decision in Horn v. Fadal Machining Centers, LLC, 972 So. 2d 63 (Ala.2007), however, calls into question whether this aspect of our holding in Copeland remains good law. We need not decide this question because we conclude that the County did include such a narrative summary.
[12] Rule 4(a)(1), Ala. R.App. P., provides, in relevant part:
"Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from ...."
[13] Rule 65(c), Ala. R. Civ. P., provides, in relevant part:
"No ... preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorney fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained."
[14] The Greene parties have also failed to comply with Rule 28(a)(10), Ala. R.App. P., because they have failed to include in their brief any mention of relevant facts or legal authority that could controvert the conclusion that the substantial-identity-of-the-parties requirement is satisfied in this case. "Rule 28(a)(10) requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived." White Sands Group, L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1058 (Ala.2008).
[15] The County's third argument, that jurisdiction was not proper in the Bessemer Division of the Jefferson Circuit Court, is not at issue in the Greene parties' judicial-estoppel argument.
[16] Because we have determined that this action is barred by the doctrine of res judicata, we need not address the § 43 issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1299471/ | 166 Cal. App. 2d 539 (1958)
LOUIS HOZZ et al., Respondents,
v.
VICTOR VARGA et al., Defendants; DON TREVASKIS, as Executor, etc., Intervener and Appellant.
Civ. No. 9413.
California Court of Appeals. Third Dist.
Dec. 23, 1958.
Edward J. Rice for Intervener and Appellant.
Raymond H. Shone for Respondents.
SCHOTTKY, J.
This is an appeal from orders discharging a receiver, directing the payment of all funds in his custody, and approving the receiver's accounts.
Louis Hozz and his wife, Ettie Hozz, were the assignees of the beneficial interest of a deed of trust and the assignees of a note executed by Victor Varga. The deed of trust provided that upon default the beneficiary could personally or through a receiver appointed by the court take possession of the property, operate it, conduct the business (a motel), collect the rents and income and perform such acts as would be necessary to conserve the value thereof. The Hozzes, after an alleged default in the payments due on the note, applied to the superior court for an order appointing a receiver. An order to show cause was issued, and after Varga failed to appear, a Harry Heifetz was appointed receiver on May 7, 1954, and empowered "To take charge of, use, operate, manage and control the property ... to conduct the business thereof, to collect the rents, issues, profits and income thereof, to apply the same to the payment of all unsual (sic) and necessary expenses of said property, including taxes, mortgage payments, management costs and all other regular and necessary costs of the operation of the business operated on said premises." On August 10, 1954, Varga and Henry J. Kleefisch filed a motion to vacate the order appointing a receiver. On November 19, 1954, Kleefisch abandoned his attempt to vacate the order and at the same time, after having received permission of the court, filed a complaint in intervention in which it was alleged that he was a party in interest against the original plaintiffs and Abe Hozz, the son of Louis and Ettie Hozz, who was named a defendant; that when the original note in the amount of $44,000 and the deed of trust were executed only $42,175 was actually due; that Varga was induced to sign a note for an amount $1,825 greater than the amount actually due; that on June 3, 1953, Varga executed a second note in the amount of $42,500 and delivered a deed of trust *541 as security which provided that the trustees could sell the property if a default occurred in the payments of the note; that this second deed of trust and the note were assigned to Abe Hozz; that at the time Ettie and Louis Hozz became the assignees of the first note and deed of trust the payments were in default; that they took the note and deed of trust subject to the set-off of $1,825; that in February, 1954, before any action was commenced, Varga conveyed his interest in the property to the intervener; that Heifetz was appointed a receiver and took possession of the property; that Abe Hozz prepared a notice of default which alleged that the junior obligation was in default because of a failure to pay interest when due; that foreclosure proceedings were had; that the power of sale was exercised and the property sold to the Hozzes, acting through and by Abe Hozz; that the sale was contrary to equity and contrary to and in disregard of law; that the intervener's rights were not divested by the sale; and that the amount in default on the second note, if any, was not a liquidated amount. The intervener asked that the rights of the parties be determined, that it be decreed that his rights were not divested, that the sale be adjudged void, and that his title be determined.
Thereafter, on March 21, 1955, the receiver filed his first account. He asked that the account be approved and that an order be made allowing compensation for his own services and for the services performed for him by an attorney. In the interim Kleefisch died and Don Trevaskis, the executor of his estate, was substituted for him. On December 31, 1956, the receiver filed his second account and petitioned for discharge on the ground that the property for which he had been appointed receiver had been foreclosed; that Louis and Ettie Hozz had become the owners; that there was no longer any reason for the receivership to continue; that his accounts be approved; that attorney's fees be granted; and that the receiver be discharged.
The matter was heard by the court, and the court made an order settling and approving the first and second accounts of the receiver and providing also that "3. The attorney for said petitioner is hereby awarded $250.00 as and for attorney fees, and said Receiver is ordered to pay said attorney said amount," and that "4. The Receiver, Harry Heifetz, be, and he is hereby discharged as such Receiver, together with his surety, upon said Receiver rendering a closing Supplemental Statement of Account." The receiver filed this account, and *542 the court, on May 22, 1957, ordered the receiver discharged and that he turn over any funds in his possession to Louis and Ettie Hozz. The executor of the intervener's estate has appealed from each order.
[1] Appellant's first contention is that the court erred in settling the two accounts of the receiver because none of the various items of account are supported by proper vouchers. In the instant case supporting vouchers were not filed with the accounts and were never formally introduced in evidence at the hearing, although they were admitted for identification and the court declared a recess in order to enable counsel for the appellant to examine them. It is, of course, the usual and better practice for supporting vouchers to be filed, and an account should not be approved unless it is supported by vouchers or other proof. (High on Receivers, 4th ed., 798; 75 C.J.S. Receivers, p. 1040; see also Estate of Rose, 63 Cal. 349; Purdy v. Johnson, 174 Cal. 521 [163 P. 893]; Estate of McCabe, 87 Cal. App. 2d 430 [197 P.2d 35].) The receiver testified as to the correctness of the items in the account, and the court was, no doubt, satisfied with the sufficiency of the proof and that the expenditures listed in the accounts were proper items or it would not have approved the accounts. While the matter might well have been handled by the respective counsel with more particularity, we do not believe that it can be held that the court erred in approving the accounts.
[2] Appellant also contends that the accounts disclose that the receiver disbursed the sum of $1,595.91 for repairs and furniture which appellant alleges the receiver was not empowered to do without a previous application to the court. The order appointing the receiver read that he was to "take charge of, use, operate, manage and control the property herein described and to conduct the business thereof, to collect the rents, issues, profits and income thereof, to apply the same to the payment of all unsual (sic) and necessary expenses of said property, including taxes, mortgage payments, management costs and all other regular and necessary costs of the operation of the business operated on said premises." We believe that the order authorized the receiver to make any repairs and purchase any furniture if such expenditures were necessary for the conducting of the business. The court in the instant case, no doubt, construed its own order appointing the receiver as authorizing the receiver to make such expenditures without further authorization. Furthermore, there is no rule *543 of law that deprives a court of power to reimburse a receiver for expenditures if they are proper and are approved by the court. (42 Cal.Jur.2d, Receivers, 107.) It is clear that the court considered that the expenditures were proper.
Appellant contends also that "The court not only erred but exceeded its power (jurisdiction) and authority in awarding attorney fees to attorney acting for receiver in violation of law."
[3] The attorney who acted as attorney for the receiver was also the attorney who acted as attorney for Louis and Ettie Hozz when they filed the petition which resulted in the appointment of the receiver. Rule 27b of the rules of the superior court forbids a receiver from employing an attorney without the approval of the court, and provides also that the application shall state that the attorney whom the receiver proposed to employ is not an attorney associated with any party to the proceeding. Appellant is correct in stating that the court could not properly, in the instant proceeding allow an attorney's fee to the attorney for the receiver, but it is clear from the record that the court did not make the allowance to the attorney for the receiver but to the attorney who represented the parties who were petitioners in the petition for the appointment of the receiver. Mr. Shone, the attorney for the receiver, stated frankly to the court that he could not be allowed any attorney's fees as counsel for the receiver, but that he was entitled to compensation for services as attorney in procuring the receivership, and the court stated: "On the cases cited I would be disposed to make the order on that basis, that is to say as compensation for procuring the receivership only, and I will do so, subject to checking the case cited." The order read "The attorney for said petitioner is hereby awarded $250.00 as and for attorney fees ...", and we believe that in the light of the court's statement it should be construed as compensation for the work done by Mr. Shone in the proceeding to appoint the receiver. Thus construed it was a proper allowance, for as stated in Winslow v. Harold G. Ferguson Corp., 25 Cal. 2d 274, at page 285 [153 P.2d 714]:
"... The expense incurred by a litigant for legal services in causing the appointment of a receiver is as much an expense of administration as the charge of the receiver's counsel and should have priority to the same extent. (Farmers' Loan & Trust Co. v. Green, 79 F. 222 [24 C.C.A. 506]; Muskegon Boiler Works v. Tennessee Valley I. & R. Co., 274 F. 836; McLane v. Placerville & Sacramento Valley R. R. Co., 66 Cal. *544 606, 622-623 [6 P. 748].) As is stated in Estate of Marre, 18 Cal. 2d 191, 192 [114 P.2d 591]: 'Plaintiffs who have succeeded in protecting, preserving or increasing a fund for the benefit of themselves and others may be awarded compensation from the fund for the services of their attorneys.' "
[4] Appellant also contends that the court erred in discharging the receiver while the complaint in intervention was not determined. As stated in High on Receivers, 4th edition, 974, 975: "... The power of a court of equity to remove or discharge a receiver ... may be regarded as well settled, and it may be exercised at any stage of the litigation. Indeed, it would seem to be a necessary adjunct of the power of appointment, and to be exercised as an incident to or consequence of that power; ..." In this case the receiver was appointed because the note for which the first deed of trust was security was in default. The property was then foreclosed and the Hozzes had the legal title. The reason for the appointment was then over. It would seem that the matter of termination was within the discretion of the trial court even though the complaint of intervention was not determined.
No other points raised require discussion.
The orders are affirmed.
Van Dyke, P. J., and Warne, J. pro tem., [fn. *] concurred.
NOTES
[fn. *] *. Assigned by Chairman of Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622066/ | 2007 ND 2
State of North Dakota, Plaintiff and Appellee
v.
Wayne Zahn, Defendant and Appellant.
Nos. 20060045, 20060046, 20060047
Supreme Court of North Dakota.
Filed January 11, 2007
Robert P. Bennett (argued), Assistant Attorney General, Office of Attorney General, 600 E. Blvd. Ave., Bismarck, ND 58505-0040, for plaintiff and appellee.
TaLisa A. Nemec (argued), P.O. Box 289, Bismarck, ND 58502-0289, for defendant and appellant.
Opinion of the Court by Kapsner, Justice.
Kapsner, Justice.
[¶1] Wayne Zahn appeals from judgments of conviction entered upon jury verdicts for reckless endangerment and seven counts of a violation of a protection order. We conclude a party may not collaterally challenge the validity of a protection order without first raising the issue with the trial court, service of the application for a protection order is not a prerequisite to a criminal conviction for a violation of the order under N.D.C.C. § 14-07.1-06, and there was sufficient evidence to support the jury verdict for reckless endangerment. We affirm.
I
[¶2] Zahn and his brother have had a tenuous relationship for years. In September of 2005, Zahn's brother petitioned the district court for an ex parte temporary protection order. On September 14, 2005, the court issued the temporary order, preventing Zahn from having contact with his brother, excluding Zahn from his brother's residence, and requiring Zahn to surrender his firearms or other weapons. On September 18, 2005, the order was served on Zahn, but a copy of the application for the protection order was not served with it. The protection order was amended and served again on October 5. Again, a copy of the application for the amended protection order was not served on Zahn. While the protection order was in effect, Zahn made several telephone calls to his brother's home in violation of the order.
[¶3] Zahn's brother also complained that Zahn had fired a rifle in the brother's direction while the brother was working in a ditch. Zahn's brother testified he saw Zahn and a passenger drive by him and park approximately 200 yards away. Although Zahn's brother did not see Zahn fire a rifle, the brother testified he heard a whistling noise from what he thought was a bullet traveling overhead, and a rifle report. Shortly after hearing the noises, the brother saw Zahn and the passenger drive off. At trial, Zahn and the passenger disputed his brother's allegation, testifying Zahn did not fire a rifle in his brother's direction. After weighing the conflicting testimony, a jury convicted Zahn of reckless endangerment and seven counts of violating a protection order.
II
[¶4] On appeal, Zahn argues the protection order was invalid because the State failed to serve the application for the order with the temporary protection order, as specified in N.D.C.C. § 17-07.1-03. Zahn concedes he failed to present this argument at the trial court. Zahn also argues the evidence was insufficient to support a jury verdict for reckless endangerment. The State argues the service of an application for the protection order is not required for the validity of the order, and the evidence was sufficient to support Zahn's conviction for reckless endangerment.
III
[¶5] Zahn argues he cannot be held criminally responsible for violating the protection order because he claims it is invalid. Zahn did not challenge the validity of the protection order in the court that issued the order.[1] In essence, Zahn is collaterally attacking the validity of the protection order after failing to present his argument to the trial court.
[¶6] Generally, a defendant cannot raise an argument for the first time on appeal when it was not made at the trial court for its consideration. State v. Myers, 2006 ND 242, ¶ 16; State v. Keller, 550 N.W.2d 411, 412 (N.D. 1996); State v. Woehlhoff, 540 N.W.2d 162, 164 (N.D. 1995); City of Fargo v. Hector, 534 N.W.2d 821, 822 (N.D. 1995); State v. Brown, 420 N.W.2d 5, 7 (N.D. 1988). By statute, a temporary protection order issued under N.D.C.C. § 14-07.1-03 "remains in effect until an order issued under section 14-07.1-02 is served," unless the temporary order is otherwise terminated by the court. N.D.C.C. § 14-07.1-03(3). Further, a court order is presumed to be valid unless the court lacked jurisdiction over the matter. Gruebele v. Gruebele, 338 N.W.2d 805, 810 (N.D. 1983); 56 Am. Jur. 2d Motions, Rules, and Orders § 54 (2006) (providing that orders must be obeyed until reversed, modified, or set aside). "Jurisdiction will be deemed to exist in the face of a collateral attack unless the record affirmatively shows that the tribunal did not have jurisdiction to make the order in question." Gruebele, at 810 (internal quotations omitted). The district court that issued the protection order had jurisdiction over the matter under N.D. Const. art. VI, § 8, N.D.C.C. § 27-05-06, and N.D.C.C. ch. 14-07.1.
[¶7] Here, Zahn had the opportunity to present his argument to the court that issued the protection orders. Both protection orders set hearing dates within fourteen days of their respective issuance dates. Zahn failed to appear at these hearings to challenge the issuance of the orders. Zahn makes no showing the court was without jurisdiction to issue the order. As such, the order was valid and in effect at the time he concededly violated it. Zahn cannot merely claim he was not subject to criminal liability because the order he violated was invalid.
IV
[¶8] Zahn argues, as a matter of law, he cannot be convicted of violating a protection order under N.D.C.C. § 14-07.1-06 unless the State proved the service of the order was accompanied by a copy of the application for the order. In pertinent part, section 14-07.1-06 provides:
Whenever a protection order is granted under section . . . 14-07.1-03 and the respondent . . . has been served a copy of the order, the first violation of any order is a class A misdemeanor and also constitutes contempt of court. A second or subsequent violation of any protection order is a class C felony.
Zahn argues section 14-07.1-06 is ambiguous because it requires the State to only serve a copy of the order, whereas N.D.C.C. § 14-07.1-03(4) requires the State to also serve a copy of the application and notice of a hearing date. Section 14-07.1-03(4) provides:
A full hearing as provided by section 14-07.1-02 must be set for not later than fourteen days from the issuance of the temporary order. The respondent must be served forthwith with a copy of the ex parte order along with a copy of the application and notice of the date set for the hearing.
Zahn argues the State must prove he was served with both the "order" and the "application." Otherwise, he argues, the language referring to the application in N.D.C.C. § 14-07.1-03(4) is surplusage.
[¶9] The primary goal in interpreting statutes is to ascertain the Legislature's intent. State v. Buchholz, 2005 ND 30, ¶ 6, 692 N.W.2d 105 (Buchholz I) (quoting State v. Laib, 2002 ND 95, ¶ 13, 644 N.W.2d 878). "Legislative intent must first be sought from the language of the statute." Adams County Record v. Greater N.D. Ass'n, 529 N.W.2d 830, 833 (N.D. 1995); Burlington N. R.R. v. State, 500 N.W.2d 615, 617 (N.D. 1993). We give the words their plain, ordinary, and commonly understood meaning. Buchholz I, at ¶ 6; N.D.C.C. § 1-02-03. The Court interprets statutes "to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere surplusage." Buchholz I, at ¶ 6 (quoting Laib, at ¶ 13). If possible, we construe statutes on the same subject to harmonize them and to give full force and effect to the Legislature's intent. State v. Higgins, 2004 ND 115, ¶ 13, 680 N.W.2d 645. We construe statutes relating to the same subject matter to give effect to both. Id. If the statute's language is ambiguous, we can consider extrinsic aids to determine the Legislature's intent. Id.; N.D.C.C. § 1-02-39. Ambiguous statutes are construed against the government and in favor of the defendant. Higgins, at ¶ 13.
[¶10] Zahn's argument is analogous to the issue presented in State v. Sundquist, 542 N.W.2d 90 (N.D. 1996). In Sundquist, the defendant argued the failure to attach a copy of the stalking law invalidated a protection order. Id. at 90. The trial court granted Sundquist's motion to dismiss the protection order violation because "the protection order which formed the basis for the criminal charge did not include or have attached to it a copy of [the stalking law]. . . ." Id. Therefore, the trial court reasoned, "the protection order did not conform to the statute under which Sundquist was charged." Id. We reversed and remanded, holding the "State's failure to comply with section 14-07.1-03.1 [did] not deprive the trial court of jurisdiction to hear the charge against Sundquist." Id. at 91. In other words, we held that a technical violation of the service requirement "was procedural rather than jurisdictional. . . ." Id.
[¶11] Contrary to Zahn's position, the requirements of N.D.C.C. § 14-07.1-06 are clear. From the plain meaning of section 14-07.1-06, the Legislature clearly intended for only the service of the protection order as a prerequisite to a criminal action. In other sections in chapter 14-07.1, the Legislature used the phrase "along with a copy of the application" where it intended to do so. Service of the protection order and conduct violating the restraints imposed by the order are the only prerequisites to criminal liability under N.D.C.C. § 14-07.1-06. A copy of the application for the order is not required to be served for criminal prosecution purposes.
V
[¶12] Zahn argues the evidence does not support the guilty verdict on the reckless endangerment charge. Zahn contends that had he fired a rifle at his brother on the date alleged, it would have been disclosed in the amended protection order application, which was filed after the shooting incident. Zahn and his passenger testified he did not fire a rifle in his brother's direction. Zahn's brother, however, testified he heard the shot after he watched Zahn park approximately 200 yards away. The brother also testified he has been a hunter for more than 40 years and knows what a rifle report sounds like.
[¶13] Under our standard of review for "insufficiency of the evidence" claims, Zahn's claim is without merit. As we recently explained in State v. Buchholz, 2006 ND 227 (Buchholz II):
When we review a challenge to the sufficiency of the evidence, we only consider the evidence and reasonable inferences most favorable to the verdict to determine if there is sufficient evidence to warrant a conviction. State v. Bertram, 2006 ND 10, ¶ 5, 708 N.W.2d 913. "' A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt.'" Id. (quoting State v. Noorlun, 2005 ND 189, ¶ 20, 705 N.W.2d 819). We do not weigh conflicting evidence or judge witness credibility. Bertram, at ¶ 5.
Buchholz II, at ¶ 20. Here, the jury was presented with diametrically opposed testimony concerning the rifle shot. That is, the jury was asked to weigh conflicting evidence and judge the credibility of the witnesses. The jury, believing his brother's testimony, found Zahn guilty of reckless endangerment. We do not weigh conflicting evidence. Id. In evaluating the evidence in the light most favorable to the prosecution, the evidence was sufficient to support the jury verdict.
VI
[¶14] We hold a party may not collaterally challenge the validity of a protection order without first raising the issue in the court that issued the order, service of the application for a protection order is not a prerequisite to a criminal conviction for a violation of the order under N.D.C.C. § 14-07.1-06, and there was sufficient evidence to support the jury verdict for reckless endangerment. The judgments of conviction are affirmed.
[¶15] Carol Ronning Kapsner
Mary Muehlen Maring
Daniel J. Crothers
Gerald W. VandeWalle, C.J.
I concur in the result.
Dale V. Sandstrom
NOTES
[1] We do not condone the State's noncompliance with the service requirements of N.D.C.C. § 14-07.1-03(4). A copy of the application must be served to allow the respondent to prepare for the permanent domestic violence protection order hearing. Dismissal of the protection order proceeding may have resulted from the failure to serve the application had Zahn raised this issue before the court issuing the protection order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622574/ | 569 So. 2d 968 (1990)
STATE of Louisiana
v.
Jennell HONORE.
No. 90-K-2019.
Supreme Court of Louisiana.
November 16, 1990.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588761/ | 32 P.3d 1002 (2001)
BOGLE AND GATES, P.L.L.C., a Washington professional limited liability corporation, Appellant,
v.
HOLLY MOUNTAIN RESOURCES, an Idaho corporation, Respondent.
No. 46584-8-I.
Court of Appeals of Washington, Division 1.
September 24, 2001.
Publication Ordered October 4, 2001.
*1003 Michael A. Goldfarb, Rohan, Goldfarb & Shapiro, PS, Seattle, for Appellant.
Frank R. Siderius, Siderius, Lonergan & Crowley, Seattle, for Respondent.
KENNEDY, J.
The former law firm of Bogle & Gates, P.L.L.C., seeks to collect fees for legal services it performed for Holly Mountain Resources, an Idaho corporation. Because we conclude that the agreement to perform services was oral as to Holly Mountain Resources, we affirm the trial court's conclusion that Bogle & Gates' claim against the corporation was barred by the 3-year limitations period.
FACT STATEMENT
In June 1993, John Zapel, David Zapel, and Holly Mountain Resources were named as defendants in an action filed by Peter Rees for trespass to timber. John Zapel, who is the president of Holly Mountain Resources, hired Bogle & Gates to represent him and the other named parties in the Rees litigation. After an initial meeting, Bogle & Gates sent John Zapel a letter memorializing the agreement. The letter, which is dated July 16, 1993, states in part:
We wish to thank you for retaining Bogle & Gates and confirm our agreement to represent you and your brother in the Rees matter. Based upon our meeting, it is our understanding that Bogle & Gates will prepare an answer to Rees' complaint, attempt to negotiate a settlement and, if necessary, defend you in the litigation. We will report to you at Holly Mountain Resources[.]
Clerk's Papers at 128. The letter also contained the hourly rate of the lead attorney for the representation, and referenced the firm's Standard Terms of Representation, a preprinted booklet enclosed with the letter. The Standard Terms of Representation contains a thorough description of the law firm's billing processes and payment terms, scope of representation, retainers and trust accounts, confidentiality, termination of services and the firm's reservation of the right to pursue collection and recover its attorney fees thus incurred, in the event of nonpayment of fees for the representation. The letter encouraged Zapel to read the booklet thoroughly and to contact the firm if he had any questions. "Absent such questions, we will assume that the Standard Terms of Representation, as supplemented by this letter, will apply to our representation". Id.
Bogle & Gates provided legal services to the named parties from July 1993 to some time in 1995. Meanwhile, in October 1993, David Zapel's liability insurer, State Farm, consented to Bogle & Gates' continued representation of David Zapel, and agreed to pay half the legal fees for the overall representation. Ultimately, Bogle & Gates negotiated a settlement that was acceptable to the parties.
Bogle & Gates sent several invoices to Holly Mountain Resources throughout 1994 and 1995, the first of which is dated August 31, 1994. On May 19, 1995, Bogle & Gates sent a final invoice to John Zapel and Holly Mountain Resources, totaling $43,143.46. Deducted from this total were State Farm's one-half share in the sum of $21,089.98, which it had paid, and a payment received from Holly Mountain Resources on January 6, 1995 in the sum of $1,000, leaving *1004 $20,089.98 outstanding. Neither John Zapel nor Holly Mountain Resources paid this outstanding sum. Bogle & Gates filed a notice of intent to withdraw, on June 23, 1995.
Bogle & Gates filed this action on December 10, 1998, alleging breach of contract, quantum meriut, and promissory estoppel. Holly Mountain Resources filed a motion for summary judgment, contending that Bogle & Gates' action was barred by the 3 year statute of limitations (RCW 4.16.080(3)). The trial court concluded that the 3 year statute, rather than the 6 year statute (RCW 4.16.040(1)), governed, and thus dismissed the action against Holly Mountain Resources. Bogle & Gates filed a motion for reconsideration, which was denied. This appeal followed.
DISCUSSION
Statute of Limitations
Bogle & Gates argues that the trial court erred in concluding that the July 16 letter and enclosed Standard Terms of Representation did not constitute a written agreement between the firm and Holly Mountain Resources for purposes of RCW 4.16.040(1).
Summary judgment is available only if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). In reviewing a summary judgment order, we conduct the same inquiry as the trial court and consider all facts and reasonable inferences in the light most favorable to the nonmoving party. Mountain Park Homeowners Ass'n v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994). We review questions of law de novo. Id.
RCW 4.16.040(1) provides a 6 year limitation period on an "action upon a contract in writing, or liability express or implied arising out of a written agreement". RCW 4.16.080(3) provides a 3-year limitation period for non-written contract-based actions.
"The burden of proving a contract, whether express or implied, is on the party asserting it, and he must prove each essential fact, including the existence of a mutual intention." Cahn v. Foster & Marshall, Inc., 33 Wash.App. 838, 840, 658 P.2d 42 (1983) (citing Johnson v. Nasi, 50 Wash.2d 87, 91, 309 P.2d 380 (1957)). "A written agreement for purposes of the 6 year statute of limitations must contain all the essential elements of the contract, and if resort to parol evidence is necessary to establish any essential element, then the contract is partly oral and the 3 year statute of limitations applies." Id. at 840-41, 658 P.2d 42 (citing Ingalls v. Angell, 76 Wash. 692, 695-96, 137 P. 309 (1913); National Bank of Commerce v. Preston, 16 Wash.App. 678, 679, 558 P.2d 1372 (1977)). The essential elements of a contract are "`the subject matter of the contract, the parties, the promise, the terms and conditions, and (in some but not all jurisdictions) the price or consideration.'" DePhillips v. Zolt Constr. Co., Inc., 136 Wash.2d 26, 31, 959 P.2d 1104 (1998) (quoting Family Med. Bldg., Inc. v. D.S.H.S., 104 Wash.2d 105, 108, 702 P.2d 459 (1985)).
Holly Mountain Resources argues that the retention letter and Standard Terms of Representation do not constitute a contract in writing for purposes of RCW 4.16.040(1) because the correspondence fails to specify Bogle & Gates' agreement to represent Holly Mountain Resources, as well as John and David Zapel.[1] In response, Bogle & Gates points to Kloss v. Honeywell, Inc., wherein this court stated that "`[e]x parte writings are sufficient to bring a contract within the 6 year statute of limitations if the writing contains all elements of a contract.'" 77 Wash. App. 294, 298, 890 P.2d 480 (1995) (citations omitted). We concluded that memoranda memorializing an oral employment agreement *1005 between the parties satisfied the writing requirement for purposes of RCW 4.16.040(1), notwithstanding the absence of a compensation term, because a standard of reasonable compensation could be implied into the agreement without resort to extrinsic evidence. Id. at 298-99, 890 P.2d 480.
Kloss is distinguishable from the instant case. In Kloss, the party to be charged wrote the ex parte memoranda that confirmed the oral agreement with the plaintiff. Thus, there was no need to resort to extrinsic evidence to establish the identity of the parties to the agreement. Id. at 296-97, 890 P.2d 480. In this case, the retention letter is addressed to John Zapel alone, and confirms that Bogle & Gates will represent John and David Zapel. Holly Mountain Resources is mentioned only in terms of where the law firm would send correspondence relating to the representation, that being to John Zapel's business address. On the face of the retention letter, there is no indication that an agreement was formed other than between Bogle & Gates and the Zapel brothers in their personal capacities. We are unable to imply an agreement between Bogle & Gates and Holly Mountain without resorting to evidence outside of the correspondence. While the letter and Standard Terms of Representation together satisfy the writing requirement for purposes of the contract between Bogle & Gates and the Zapels in their individual capacities, these writings do not suffice to memorialize the oral agreement that the law firm would also represent Holly Mountain Resources. For this reason, we conclude that RCW 4.16.080(3) applies to bar the action against Holly Mountain, and we affirm the trial court's summary judgment dismissal on this basis.
Bogle & Gates also argues on appeal that under RCW 4.16.040(2), the 6-year limitations period should apply to this case as "[a]n action upon an account receivable incurred in the ordinary course of business." We decline to examine this claim, as this basis was not presented to the trial court. Bogle & Gates argues that waiver of issues not raised below does not apply "when the question raised affects the right to maintain the action." New Meadows Holding Co. v. Washington Water Power Co., 102 Wash.2d 495, 498, 687 P.2d 212 (1984). In New Meadows, our Supreme Court invoked this narrow exception to waiver where one party raised and argued the applicability of a statute in its briefing for summary judgment, but another party failed to appear to contest the summary judgment motion. The Court noted that waiver would not apply to bar the absent party from raising the issue on appeal, because the statute affected that party's right to maintain the action. But the Court also reasoned that the trial court was not deprived of an opportunity to rule on the applicability of the statute because the issue was adequately briefed and argued by a party with interests identical to the absent party. Id. at 498-99, 687 P.2d 212. The narrow exception does not apply here, where the trial court was never able to consider the applicability of RCW 4.16.040(2) because neither Bogle & Gates nor another party raised the issue below.
Attorney Fees
As a final matter, Holly Mountain Resources requests an award of costs and attorney fees. RCW 4.84.330 provides that "[i]n any action on a contract ... where such contract ... specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of such contract[,] ... shall be awarded to one of the parties, the prevailing party ... shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements." In Herzog Aluminum, Inc. v. General Am. Window Corp., 39 Wash.App. 188, 196-97, 692 P.2d 867 (1984), we concluded that RCW 4.84.330 also provided for the award of costs and attorney fees to the party who successfully defended a breach of contract lawsuit by proving the absence of an enforceable contract in that case, the absence of a meeting of the minds. The asserted contract in that case stated that "Herzog shall be entitled to recover any and all costs, expenses and attorney fees incurred arising from or out of any dispute relating to this order." Id. at 191, 692 P.2d 867. Here, Bogle & Gates' Standard Terms of Representation provides that "we reserve the right to withdraw from *1006 the representation and pursue collection of your account, in which case you agree to pay costs of collection including court costs and reasonable attorneys' fees." Clerk's Papers at 137. We conclude that RCW 4.84.330 authorizes the award of attorney fees and costs to Holly Mountain Resources. If Bogle & Gates had successfully proven a written contract as to Holly Mountain Resources and subsequently prevailed on its collection action, it would have been entitled to collect attorney fees and costs pursuant to this same provision. Because Holly Mountain Resources successfully defended against this action, this provision operates bilaterally. We grant reasonable attorney fees and costs to Holly Mountain Resources for defending this appeal.
Affirmed.
COX and APPELWICK, JJ., concur.
APPELWICK, J. (concurring in part, dissenting in part).
I heartily concur with the majority in affirming the trial court's dismissal on summary judgment, in declining to reach the issue of the account receivable claim and in the award of attorney fees.
I must dissent on the interpretation placed on Kloss v. Honeywell, Inc., 77 Wash.App. 294, 890 P.2d 480 (1995). The majority notes: "While the letter and Standard Terms of Representation together satisfy the writing requirement for purposes of the contract between Bogle & Gates and the Zapels in their individual capacity...." Majority opinion at 1005. This statement flows from case law cited on page 1004. "[E]x parte writings are sufficient to bring a contract within the 6 year statute of limitations if the writing contains all of the elements of a contract." Kloss, 77 Wash.App. at 298, 890 P.2d 480 (citing the dissent in Evans v. Yakima Valley Grape Growers Ass'n, 52 Wash.2d 634, 644, 328 P.2d 671 (1958)). But, Evans, 52 Wash.2d at 637, 328 P.2d 671, clearly states that the statute requires a contract in writing or a written agreement, not some ex parte memorandum related thereto.
I do not view the letter and Standard Terms of Representation as creating a written agreement with anyone. Nor do I agree that the letter and Standard Terms of Representation have all of the essential elements of a contract in writing. Nowhere is the promise or assent of the party to be charged evidenced in the writings. The Zapels neither authored, signed, nor acknowledged the writings authored by Bogle & Gates. Without agreement of the client, there is no written instrument or written agreement. The letter itself acknowledges an already existing oral agreement. The letter purports to supplement the clients understanding of what Bogle & Gates does as a standard matter. It does not purport to supercede the oral agreement. It merely memorializes what Bogle & Gates understood it had agreed to the day before. The writings are merely ex parte memoranda related to an oral contract, nothing more.
Kloss on its facts has no application in this case. Honeywell made an oral agreement to employ Kloss if he became a licensed practicing nurse (LPN). No salary was specified. Kloss enrolled in the LPN program. Subsequently, Honeywell determined it would employ registered nurses (RN) rather than LPNs at Harbour Pointe. A written memorandum was circulated internally and copied to Kloss, confirming the change to RNs and stating that Kloss should direct his education to that end. Kloss became an RN. The unilateral writing referencing Kloss becoming an RN changed the terms of the oral agreement that he became an LPN. It was a new, unilateral offer to contract with Kloss. It became an enforceable contract upon Kloss's performance earning an RN license. Kloss, 77 Wash.App. at 300, 890 P.2d 480.
The case before us does not involve a written offer on terms different from the oral contract. It does not involve a unilateral written contract offered by Bogle & Gates and accepted by performance of the client. It does not involve a writing sought to be enforced against the party who drafted or executed it.
Bogle & Gates cannot by the letter and its enclosure unilaterally convert the oral agreement into a written agreement governed by the six-year statute of limitations. Contract law does not allow it.
*1007 The majority concludes Holly Mountain Resources could not be bound by the written contract since the letter was not addressed to Holly Mountain Resources and did not address its representation. I would simply dispose of this issue by noting that the letter and enclosure did not as a matter of law, create a written contract with anyone. Therefore, the three-year statute of limitations applies as to all parties. The trial court properly dismissed the Bogle & Gates claims on summary judgment.
For these reasons, I respectfully dissent.
NOTES
[1] Holly Mountain Resources also contends that there is no sufficient writing because there is no signature binding the corporation and because there is no mention in the writing of the fee arrangement with State Farm. These contentions lack merit. By their very nature, ex parte writings are not signed by all the potential parties that is why they are called ex parte writings. The fee arrangement with State Farm happened several months after the representation commenced and has no relevance to the question of whether the letter and enclosure of July 16, 1993 qualify as a writing for purposes of the 6-year statute of limitations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3070144/ | Order entered July 29, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00854-CV
IN RE GARY EUGENE SIMS, Relator
Original Proceeding from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-00-45450-PS
ORDER
Based on the Court’s opinion of this date, we DENY relator’s petition for writ of
mandamus. We ORDER relator to bear the costs of this original proceeding.
/s/ MICHAEL J. O'NEILL
JUSTICE | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1622077/ | 725 N.W.2d 761 (2007)
STATE of Minnesota, Respondent,
v.
Treva Evon PERRY, Appellant.
No. A05-2459.
Court of Appeals of Minnesota.
January 9, 2007.
*763 Lori Swanson, Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Rochester, MN, for respondent.
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, Minneapolis, MN, for appellant.
Considered and decided by TOUSSAINT, Chief Judge; HALBROOKS, Judge; and HARTEN, Judge.[*]
OPINION
HALBROOKS, Judge.
Appellant challenges her conviction of misdemeanor child endangerment on the grounds that the language of Minn.Stat. § 609.378, subd. 1(b)(2) (2000), requires proof of actual danger to a child's person or health and that the evidence presented at trial was insufficient to support her conviction.[1] Because the state does not have to prove actual danger to a child's person or health under Minn.Stat. § 609.378, subd. 1(b)(2), when a parent, legal guardian, or caretaker knows that a child is present where controlled substances are being sold, we conclude that the evidence was sufficient to support appellant's conviction for child endangerment and affirm.
FACTS
On September 7, 2001, Robert Jarmon, a confidential police informant, went to the home of Gilbert Jordan and Foloshade Oloye to purchase cocaine. Jarmon was working with Rochester Police Officer Daryl Seidel to complete a controlled purchase. Before traveling to Jordan and Oloye's home, Jarmon met with Officer Seidel. At that time, Officer Seidel searched Jarmon and his car, gave Jarmon money to make the drug purchase, and attached a radio transmitting device to Jarmon to enable Officer Seidel to listen to the drug deal. After finding no one home at the Jordan/Oloye residence, Jarmon and Officer Seidel "regrouped" to decide what to do next. Jarmon had previously been told by Oloye that he should go to the home of appellant Treva Perry (Oloye's mother) if he needed drugs and could not find her or Jordan. Officer Seidel instructed Jarmon to go to appellant's home.
After arriving at appellant's residence, Jarmon entered the home and saw two small children, one of whom was not yet able to walk. The children are appellant's grandchildren, whom she was babysitting. Jarmon told appellant that he wanted to buy a quarter ounce of cocaine. Appellant then called Jordan on the phone and, after speaking with him, rode with Jarmon and her two grandchildren to Jordan and Oloye's residence. Because no one was home when they arrived, appellant, the children, and Jarmon returned to appellant's house.
*764 On the way back to appellant's home, appellant used Jarmon's phone to call her other daughter, Lola Oloye. Lola later arrived at appellant's home and was introduced by appellant to Jarmon. Lola sold Jarmon some crack cocaine in appellant's kitchen while appellant was present. Jarmon testified that appellant's two grandchildren were present in the home when the drug transaction occurred. After the buy, Jarmon again met with Officer Seidel and gave him the drugs and remaining money. Officer Seidel debriefed Jarmon and searched Jarmon and his car for any other drugs or money.
Appellant was charged with second-degree controlled-substance crime, conspiracy to commit second-degree controlled-substance crime, fifth-degree possession of a controlled substance, and child endangerment. Appellant waived her right to a jury trial and did not testify or call any witnesses at her court trial. The district court convicted appellant of child endangerment, a gross-misdemeanor offense.[2] The district court found that "[appellant] was present when the sale occurred, and she believed that the substance sold by Lola Oloye was cocaine." The district court also found that "[c]hildren less than 18 years of age were present at the time that the sale of the cocaine occurred," that appellant is the "grandmother of the children, and she was caring for them on September 7, 2001." As a result, the district court concluded
[a]s to the fourth charge of child neglect or endangerment, there is simply no question but that [appellant] knew that a drug deal was happening in her home, that her grandchildren were present, and she did nothing about it. There is absolutely no defense advanced excusing that [appellant] allowed this to happen in the presence of her grandchildren. Her guilt in this regard is established to this Court's satisfaction beyond a reasonable doubt.
The district court stayed imposition of sentence and placed appellant on probation. This appeal follows.
ISSUES
1. Does Minn.Stat. § 609.378, subd. 1(b)(2) (2000), require proof of actual danger to a child's person or health to convict a person of gross-misdemeanor endangerment?
2. Was the evidence presented at trial insufficient to support appellant's conviction of child endangerment?
ANALYSIS
I.
Appellant contends that the language of the child-endangerment statute must be interpreted to require some proof of actual danger to a child's person or health, not just the general inherent dangerousness of drug dealing. Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998); see also O'Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996) (noting that application of a statute to the undisputed facts of a case involves a question of law, and the district court's decision is not binding on this court). "When interpreting a statute, we first look to see whether the statute's language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation." Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quotation and citation omitted). "A statute should be interpreted, *765 whenever possible, to give effect to all of its provisions; `no word, phrase, or sentence should be deemed superfluous, void, or insignificant.'" Id. (quoting Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999)). And "[w]e are to read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations." Id.
Appellant was convicted of child endangerment under Minn.Stat. § 609.378, subd. 1(b)(2) (2000). Minn.Stat. § 609.378, subd. 1(b) provides, in relevant part, that
[a] parent, legal guardian, or caretaker who endangers the child's person or health by:
(1) intentionally or recklessly causing or permitting a child to be placed in a situation likely to substantially harm the child's physical, mental, or emotional health or cause the child's death; or
(2) knowingly causing or permitting the child to be present where any person is selling or possessing a controlled substance . . . is guilty of child endangerment and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.
If the endangerment results in substantial harm to the child's physical, mental, or emotional health, the person may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.
Appellant argues that the statutory language "endangers the child's person or health" in the prefatory section of the statute requires proof of actual danger as an essential element of the offense of child endangerment. The term "endangers" is not defined in Minn.Stat. § 609.376 (2000), the definitional section for section 609.378, subdivision 1(b). In a case of first impression, we conclude that appellant's interpretation of the statute is mistaken.
A statute defining a criminal offense must be strictly construed in favor of the defendant. See State v. Colvin, 645 N.W.2d 449, 452 (Minn.2002). But this court need not adopt the narrowest possible construction. State v. Zacher, 504 N.W.2d 468, 473 (Minn.1993). This court has rejected a narrow reading of subdivision 1(b)(1) that would require a showing of actual harm. State v. Hatfield, 627 N.W.2d 715, 720 (Minn.App.2001), aff'd on other grounds, 639 N.W.2d 372 (Minn. 2002).
The plain language of the statute provides that a person "endangers" a child by either: (1) intentionally or recklessly causing a child to be placed in a situation likely to cause substantial physical, emotional, or mental harm (subdivision 1(b)(1)), or (2) knowingly causing or permitting the child to be present where controlled substances are being sold or possessed (subdivision 1(b)(2)). If the conditions in either of the subdivisions are met, a person "endangers the child's person or health" and is, therefore, guilty of child endangerment. The two ways of endangering a child are independent. Therefore, the showing of potential harm required under subdivision 1(b)(1) does not apply to subdivision 1(b)(2).
Further, the phrase "likely to substantially harm" in Minn.Stat. § 609.378, subd. 1(b)(1), would be superfluous if appellant's interpretation of the prefatory term "endangers" were adopted. Requiring proof of actual danger to a child's person or health as an element of the crime under the terms of the prefatory statement, would necessarily entail proof that a situation is only "likely to substantially harm [a child]" under subdivision 1(b)(1). (Emphasis added.) See Hatfield, 627 N.W.2d at *766 719-20 (rejecting a claim that actual harm was required to support a gross-misdemeanor conviction under Minn.Stat. § 609.378, subd. 1(b)(1), and stating that "the mere potential for substantial harm to children is sufficient to constitute child endangerment").
We conclude that, based on the plain language of Minn.Stat. § 609.378, subd. 1(b), the state does not have to prove actual danger to a child's person or health as an element of the crime when a parent, legal guardian, or caretaker knows that a child is present where drugs are being sold.
II.
Appellant argues that because evidence of actual danger is required under the definition of "endangers" pursuant to Minn.Stat. § 609.378, subd. 1(b), and because the district court did not find that her grandchildren were in actual danger, the evidence that she was home and babysitting her grandchildren when Jarmon purchased drugs from her daughter was insufficient to support her conviction.
In considering a claim of insufficient evidence, this court's review "is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction," is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The reviewing court must assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). This is especially true when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn.2004).
As previously discussed, the language "endangers the child's person or health" in Minn.Stat. § 609.378, subd. 1(b), does not require a showing of actual danger for a conviction under Minn.Stat. § 609.378, subd. 1(b)(2). Instead, the state must prove that (1) appellant knowingly permitted her grandchildren to be present at the time of an illegal sale or possession of a controlled substance, (2) appellant was a legal guardian or caretaker of the children at the time of the sale or possession, and (3) the grandchildren were younger than age 18. Viewing the evidence in the light most favorable to the conviction, there is ample evidence that appellant knowingly permitted her grandchildren, whom she was caring for at the time, and who were well under the age of 18, to remain in her home while her daughter sold drugs to Jarmon. Therefore, the evidence is sufficient to support appellant's conviction for child endangerment.
Appellant also submitted a pro se supplemental brief, alleging that law-enforcement officials altered and tampered with the audio and video-surveillance tapes that were received in evidence at trial. We conclude that these allegations lack merit, as there is no support for them in the record. Moreover, while the evidence on the tapes may have been determinative with regard to the charges that appellant was acquitted of, the tapes were not dispositive of appellant's conviction of child endangerment. Thus, even if the content of the tapes were, in fact, questionable, the significant tapes had no bearing on appellant's conviction of child endangerment.
*767 DECISION
The state does not need to prove actual endangerment of a child's person or health as a separate element of the crime of child endangerment under Minn.Stat. § 609.378, subd. 1(b)(2) (2000), when a parent, legal guardian, or caretaker permits a child to be present when a controlled substance is sold. There was sufficient evidence to convict appellant of child endangerment when appellant knowingly permitted her minor grandchildren, whom she was babysitting, to be present during a drug sale.
Affirmed.
NOTES
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
[1] Minn.Stat. § 609.378, subd. 1(b)(2), was amended in 2002 adding language to prohibit knowingly permitting a child to be present where "manufacturing, possessing immediate precursors or chemical substances with intent to manufacture" occurs. 2002 Minn. Laws ch. 314, § 6, at 514.
[2] The district court acquitted appellant of all other charges. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622084/ | 851 F.Supp. 677 (1994)
Benjamin McCLELLAND, Plaintiff,
v.
HYUNDAI MOTOR AMERICA, Defendant.
Civ. A. No. 93-3399.
United States District Court, E.D. Pennsylvania.
April 26, 1994.
*678 Craig Thor Kimmel, Robert M. Silverman, Kimmel & Silverman, P.C., Blue Bell, PA, for plaintiff.
Bryan D. McElvaine, White and Williams, Philadelphia, PA, for defendant.
ORDER/MEMORANDUM
KATZ, District Judge.
AND NOW, this 26th day of April, 1994, upon consideration of Plaintiff's Petition for Counsel Fees and Court Costs and the other submissions of the parties, it is hereby ORDERED that plaintiff's Petition is GRANTED and the plaintiff is awarded $14,573.45 in attorneys' fees and costs.
The plaintiff in this action brought suit against the defendant for violations of Pennsylvania's Automobile Lemon Law, 73 P.S. § 1951, et seq., the Magnuson-Moss Warranty Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq., Pennsylvania's Uniform Commercial Code, 13 P.S. § 1101, et seq., and Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1, et seq. Following a jury trial, a verdict was returned in favor of plaintiff on his Lemon Law claim and against the plaintiff on his breach of warranty claim. The jury awarded the plaintiff $15,914.00 in damages.[1]
The Lemon Law provides:
Any purchaser of a new motor vehicle who suffers any loss due to nonconformity of such vehicle as a result of the manufacturer's failure to comply with this act may bring a civil action ... and, in addition to other relief, shall be entitled to recover reasonable attorneys' fees and all court costs.
73 P.S. § 1958.
The starting point for determining reasonable attorneys' fees is to multiply the number of hours reasonably expended on the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983).
*679 The plaintiff submitted sufficiently accurate records of the amount of time spent and the manner in which it was spent for this court to assess attorneys' fees without the necessity of a hearing. Gambrill v. Alfa Romeo, Inc., Civ. No. 87-7933, 1989 WL 121929 at *2 (E.D.Pa. Oct. 12, 1989) (citing In re Meade Land & Dev. Co., 527 F.2d 280, 283 (3d Cir.1975)). The plaintiff's counsel spent 130.80 hours working on the case. Pet. Ex. B. The amount of time plaintiff's counsel spent on the case is not unreasonable considering the nature of the case (one and a half day jury trial, after a de novo appeal from an arbitration hearing).
After determining the number of hours reasonably expended, the court must also determine whether the requested hourly rate is reasonable. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990). The court in determining the proper rate must assess the experience and skill of the prevailing attorneys and compare their rates with the prevailing rates in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. Id. The plaintiff's attorneys claim that their hourly fee is $150 an hour. Pet. Ex. D. Given counsels' skill, performance, qualifications, reputation and experience, an appropriate and reasonable rate of compensation in this case is $100.00 per hour. See Baker v. Chrysler Corp., Civ. No. 91-7092, 1993 WL 18100 (E.D.Pa. Jan. 25, 1993).[2]
The court declines to grant a contingency multiplier. Gambrill, 1989 WL 121929 at *4. The court also finds it inappropriate to reduce the attorneys' fees simply because the plaintiff was not successful on his additional and alternative breach of warranty claim. Because the jury's verdict provided the plaintiff with substantial relief, the plaintiff may recover fees for "all hours reasonable expended on the litigation." Hensley v. Eckerhart, 461 U.S. 424, 435-37, 103 S.Ct. 1933, 1940-41, 76 L.Ed.2d 40 (1983); West Virginia Univ. Hosp. v. Casey, 898 F.2d 357, 361 (3d Cir.1990). Therefore, this court finds that appropriate, reasonable attorneys' fees in this case total $13,080.00.
The plaintiff also seeks court costs totaling $1,493.45. Pet. Ex. B. The court finds these costs reasonable and necessary expenses. Cf. Gambrill v. Alfa Romeo, Inc., Civ. No. 87-7933, 1989 WL 121929 at *4 (all reasonable court costs awarded, but expert witness fees limited to $30 a day).[3] Therefore, the court will award $1,493.45 in court costs. See Baker, 1993 WL 18100.
NOTES
[1] By letter dated April 1, 1994, the parties stipulated that in the event of a verdict in favor of the plaintiff, the parties would submit the issues of treble damages and counsel fees to this court for resolution. See Order of April 4, 1994.
[2] In Baker, a "Comparable Fee Awards" case cited to the court by the plaintiff, petitioning counsel were awarded $100 per hour. In Gillespie v. Chrysler Corp., Civ. Action No. 93-1532 (E.D.Pa.), another Lemon Law case cited to the court by plaintiff, petitioning counsel were again awarded $100 per hour by this court. See Order Feb. 4, 1994. In Porter v. Hyundai Motor America, Inc., Civ. Action No. 92-6439 (E.D.Pa.), petitioning counsel sought $100 per hour for 88.6 hours of non-trial work performed between October, 1992 and September, 1993. See Defendant's Ex. P.
[3] The Gambrill court in deciding the expert witness fee issue relied on West Virginia Univ. Hosp. v. Casey, 885 F.2d 11, 32-35 (3d Cir.1989), aff'd, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991). West Virginia Univ. Hosp. was a Section 1988 civil rights case. Section 1988 provides in part: "the court ... may allow the prevailing party ... a reasonable attorney's fee as part of the costs." Section 1988 costs are determined by cross referencing 28 U.S.C. § 1821. Section 1821 provides "Except as otherwise provided by law, a witness in attendance at any court of the United States ... shall be paid the fees and allowances provided by this section."
The plain language of 73 P.S. § 1958 states that the court shall award "all court costs." Expert witness fees are a court cost for this purpose. Additionally, Pennsylvania's Lemon Law should be read broadly, because it is a remedial statute. See Gomez v. Toledo, 446 U.S. 635, 639, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). Moreover, the witness fee limits of Section 1821 do not apply if "otherwise provided by law." Therefore, Pennsylvania's Lemon Law cost provision is distinguishable from Section 1988's cost provision. The "all court costs" provision of the Lemon Law includes all reasonable expert witness fees and the other claimed expenses. See Gillespie v. Chrysler Corp., Civ. Action No. 93-1532 (E.D.Pa.) (Order of Feb. 4, 1994). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622094/ | 13 So.3d 159 (2009)
JETBROADBAND WV, LLC and Jetbroadband VA, LLC, Appellants,
v.
MASTEC NORTH AMERICA, INC., Appellee.
No. 3D08-3057.
District Court of Appeal of Florida, Third District.
June 10, 2009.
*160 Shutts & Bowen and Steven M. Ebner, Miami, for appellants.
Vezina, Lawrence & Piscitelli and Daniel R. Vega, Coral Gables; Carlton Fields and Matthew J. Conigliaro and Stephanie C. Zimmerman, St. Petersburg, for appellee.
Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ.
CORTIÑAS, J.
We review an issue of first impression for Florida courts, that is, whether, pursuant to sections 685.101-.102, Florida Statutes (1989), parties to a commercial contract can, by agreement alone, confer personal jurisdiction on a Florida court. We hold that they can.
This lawsuit arises out of a multi-million dollar contract, whereby appellee, MasTec North America, Inc. ("MasTec") agreed to perform services on certain cable systems in Virginia owned by appellants, Jetbroadband WV, LLC and Jetbroadband VA, *161 LLC, (collectively "Jet").[1] On appeal, Jet argues that the trial court erred in denying its motion to dismiss for lack of personal jurisdiction.
The contract included the following consent to jurisdiction and forum selection clause ("Jurisdiction Clause"):
This agreement is governed by the laws of the State of Florida, without regard to its conflict of laws rules. Contractor and Subcontractor each hereby irrevocably agree and submit to the exclusive jurisdiction of the Circuit Court, Eleventh Judicial Circuit, Miami-Dade County, Florida in the event any action or proceeding is commenced by either party arising from, related to or in connection with this Agreement.
Based on the Jurisdiction Clause, Mas-Tec, a Florida corporation, brought suit in Miami-Dade Circuit Court, alleging in paragraph five of its complaint that:
Venue is proper in Miami-Dade County because the Defendants expressly and irrevocably agreed in the contract subject to this lawsuit that the Circuit Court in and for the Eleventh Judicial Circuit in Miami Dade County, Florida was the exclusive venue and jurisdiction for any action arising from, related to or in connection with the contract....
The jurisprudence of long-arm jurisdiction in Florida has traditionally been based on section 48.193, Florida Statutes. In Venetian Salami, the Florida Supreme Court determined that the acts required by section 48.193 to confer on Florida courts personal jurisdiction over non-resident defendants, were not coextensive with those minimum contacts necessary to satisfy Due Process.[2]See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 500 (Fla. 1989). Rather, to determine whether long-arm jurisdiction exists, two inquiries must be made. First, a court must determine whether "the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of [section 48.193]; and if it does, the next inquiry is whether sufficient `minimum contacts' are demonstrated to satisfy due process requirements." Id. at 502 (quoting Unger v. Publisher Entry Serv., Inc., 513 So.2d 674, 675 (Fla. 5th DCA 1987)).
Generally, an agreement alone is insufficient to confer personal jurisdiction on Florida courts. McRae v. J.D./M.D., Inc., 511 So.2d 540 (Fla.1987). Decided in 1987, McRae addressed only section 48.193 and determined that "[c]onspicuously absent from the long arm statute is any provision for submission to in personam jurisdiction merely by contractual agreement." Id. at 543.
Two years after McRae was decided, the Legislature promulgated sections 685.101-.102, which are contained within the Contract Enforcement Chapter of the Commercial Relations Title of Florida Statutes. Section 685.101, titled Choice of Law, provides in pertinent part, that:
The parties to any contract, agreement, or undertaking ... in consideration of or relating to any obligation arising out of a transaction in the aggregate not less than $250,000 ... may, to *162 the extent permitted under the United States Constitution, agree that the law of this state will govern such contract... whether or not such contract ... bears any relation to this state.
§ 685.101(1), Fla. Stat. (1989). However, there are limits to the reach of section 685.101. Section 685.101 does not apply to any contract, agreement, or undertaking:
(a) Regarding any transaction which does not bear a substantial or reasonable relation to this state in which every party is either or a combination of:
1. A resident and citizen of the United States, but not of this state; or
2. Incorporated or organized under the laws of another state and does not maintain a place of business in this state.
§ 685.101(2), Fla. Stat. (1989). Otherwise stated, section 685.101 "only applies if either 1) the contract bears a substantial or reasonable relation to Florida, or 2) at least one of the parties is either a resident or citizen of Florida (if a person), or is incorporated or organized under the laws of Florida or maintains a place of business in Florida (if a business)." Edward M. Mullins & Douglas J. Giuliano, Contractual Waiver of Personal Jurisdiction Under F.S. § 685.102: The Long-Arm Statute's Little-Known Cousin, 80-May Fla. B.J. 36, 37 (2006).
Related to section 685.101 is section 685.102, titled Jurisdiction, which states that:
Notwithstanding any law that limits the right of a person to maintain an action or proceeding, any person may, to the extent permitted under the United States Constitution, maintain in this state an action or proceeding against any person or other entity residing or located outside this state, if the action or proceeding arises out of or relates to any contract, agreement, or undertaking for which a choice of the law of this state, in whole or in part, has been made pursuant to s. 685.101 and which contains a provision by which such person or other entity residing or located outside this state agrees to submit to the jurisdiction of the courts of this state.
§ 685.102(1), Fla. Stat. (1989).
Read together, the two sections stand for the proposition that, if certain requirements are met, parties may, by contract alone, confer personal jurisdiction on the courts of Florida.[3] To satisfy the statutory requirements, the contract, agreement, or undertaking must (1) include a choice of law provision designating Florida Law as the governing law, (2) include a provision whereby the non-resident agrees to submit to the jurisdiction of the courts of Florida, (3) involve consideration of not less than $250,000, (4) not violate the United States Constitution, and (5) either bear a substantial or reasonable relation to Florida or have at least one of the parties be a resident of Florida or incorporated under its laws. Thus, as long as one of the parties is a resident of Florida or incorporated under its laws, and the other statutory requirements are met, sections 685.101-.102 operate irrespective of whether the underlying contract bears any relation to Florida and notwithstanding any law to the contrary. See §§ 685.101 and 685.102, Fla. Stat.
The language of the statute is clear. By promulgating sections 685.101-.102, *163 the Legislature allowed contracting parties to dispense with the more restrictive Florida long-arm limitations. See Steller Group, Inc. v. Mid-Ohio Mech., Inc., 2004 WL 5685570, at *2 (M.D.Fla. Jan. 28, 2004); E-One, Inc. v. R. Cushman & Assocs., Inc., 2006 WL 2599130, at *6 (M.D.Fla. May 15, 2006) (determining that section 685.102 provided an additional basis for jurisdiction). In section 685.102, the Legislature, by its clear terms, granted parties the very right that McRae and its progeny found conspicuously absent in section 48.193; the right to confer personal jurisdiction by agreement.
Further, we must assume the Legislature knew the existing law when it passed sections 685.101-.102. See Williams v. Jones, 326 So.2d 425, 435 (Fla.1975) ("[T]he Legislature is presumed to know the existing law when it enacts a statute and is also presumed to be acquainted with the judicial construction of former laws on the subject concerning which a later statute is enacted.") (citing Collins Inv. Co. v. Metro. Dade County, 164 So.2d 806 (Fla. 1964)).
However, the Legislature could not, and did not, dispense with the due process requirements of the United States Constitution. Instead, it made the due process requirement the sole inquiry when considering the issue of personal jurisdiction in cases governed by sections 685.101-.102. Therefore, we must still determine whether there are minimum contacts sufficient to justify the trial court's exercise of jurisdiction over defendant. Normally, courts review a number of factors to determine whether minimum contacts exist. However, in the commercial context, "the Supreme Court has held that the minimum contacts standard is met if a forum-selection clause exists that is `freely negotiated' and is not `unreasonable and unjust.'" Steller Group, Inc., 2004 WL 5685570, at *3 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n. 14, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)); Global Satellite Commc'n Co. v. Sudline, 849 So.2d 466, 469 (Fla. 4th DCA 2003); see Desai Patel Sharma, Ltd. v. Don Bell Indus., Inc., 729 So.2d 453, 454 (Fla. 5th DCA 1999) ("Personal jurisdiction, unlike subject matter jurisdiction, may be conferred by agreement.").
Applying the five requirements of sections 685.101-.102 to the facts of this case, we find that Jet's motion to dismiss for lack of personal jurisdiction was properly denied. Here, the contract (1) included a choice of law provision, designating Florida as the governing law, (2) included a provision whereby Jet agreed to submit to the jurisdiction of the courts of Florida, (3) involved consideration well in excess of $250,000, (4) pursuant to Desai and Burger King Corp., created minimum contacts without violating the United States Constitution, and (5) was executed by a party incorporated under the laws of the state of Florida.
Accordingly, under sections 685.101-.102, the parties properly conferred personal jurisdiction over each other in Florida. We affirm all other issues on appeal.
Affirmed.
NOTES
[1] Jet is a Delaware corporation with its principal place of business in New York.
[2] "Long ago, the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), held that in order to subject a defendant to an in personam judgment when he is not present within the territory of the forum, due process requires that the defendant have certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Venetian Salami Co., 554 So.2d at 500.
[3] Even after the Legislature passed sections 685.101-.102, courts still quote with approval the language of McRae: "Conspicuously absent from the long arm statute is any provision for submission to in personam jurisdiction merely by contractual agreement." See Four Star Resorts Bahamas, Ltd. v. Allegro Resorts Mgmt. Servs., Ltd., 811 So.2d 809, 811 (Fla. 3d DCA 2002). These references, however, merely parrot the rule as it relates to section 48.193 and, we believe, have no effect on the impact of sections 685.101-.102. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622096/ | 853 So.2d 85 (2003)
MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE
v.
Jane A. PERDUE.
No. 2002-JP-01430-SCT.
Supreme Court of Mississippi.
August 21, 2003.
*86 Luther T. Brantley, III, Patricia A. Hancock, Jackson, for appellant.
Christopher A. Tabb, Brandon, for appellee.
*87 EN BANC.
CARLSON, Justice, for the Court.
¶ 1. The Mississippi Commission on Judicial Performance (Commission) has recommended that Rankin County Youth Court Referee and City of Pearl Youth Court Judge Jane A. Perdue be suspended for thirty days from all judicial functions, including the use of judicial facilities and office, without pay, and assessed costs of $888.22. While we adopt the Commission's recommendation, we do so only after meticulous consideration of the record before us, and the applicable law, as well as the ramifications of our decision today.
PROCEEDINGS BEFORE THE COMMISSION
¶ 2. All proceedings before the Commission were appropriately conducted in accordance with the Rules of the Mississippi Commission on Judicial Performance. After a Formal Complaint was filed against Judge Perdue on December 11, 2001, she filed a sworn answer to this complaint on January 23, 2002. In due course, the Commission designated a three-member committee (Committee) to conduct a formal hearing, and this hearing was held before the Committee on June 19, 2002, at which time the Commission offered three witnesses and Judge Perdue offered two witnesses. Judge Perdue was represented by counsel, and she testified in both the Commission's case-in-chief as well as in her case-in-chief. On July 31, 2002, the Committee filed its detailed nine-page Findings of Fact, Conclusions of Law and Recommendations, wherein the Committee found and recommended, inter alia:
[T]he Committee concludes that the aforementioned conduct of [Judge Perdue] has violated Section 177A of the Mississippi Constitution of 1890, as amended, and said conduct constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.
* * *
Having considered the foregoing Findings of Fact and Conclusions of Law, and having considered that Respondent has not been subject to any prior disciplinary proceedings before this body, the Committee recommends to the [Commission] that the Commission recommend to the Supreme Court of the State of Mississippi that Jane A. Perdue, be:
a. Publically reprimanded;
b. Fined in the sum of $500.00; and
c. Assessed cost of this proceeding in the sum of $888.22.
¶ 3. Pursuant to Commission Rule 8E, Judge Perdue, on August 11, 2002, filed a written response and objections to the Committee's Findings of Fact, Conclusions of Law, and Recommendations. On August 16, 2002, the full Commission considered the record before it and unanimously accepted and adopted the Committee's findings of fact and conclusions of law and further unanimously decided to recommend to this Court that Judge Perdue, inter alia, be suspended for thirty days. Thereafter, on August 27, 2002, the Commission filed with this Court its Findings of Fact and Recommendation consistent with its actions of August 16, 2002. In its findings of fact and recommendation, the Commission adopted in toto the Committee's findings of fact, but contrary to the Committee's recommendation of a public reprimand, the Commission's recommendation was as follows:
Having considered the foregoing Findings of Fact and Conclusions of Law, and having considered that [Judge Perdue] has not been subject to any prior disciplinary proceedings before *88 this body, the [Commission] recommends to the Supreme Court of the State of Mississippi that pursuant to Section 177A of the Mississippi Constitution of 1890, as amended, that Jane A. Perdue be suspended thirty (30) days, from all judicial functions, including the use of judicial facilities and office, without pay, and assessed costs of this proceeding in the amount of $888.22.
¶ 4. These recommendations are now before this Court.
STANDARD OF REVIEW
¶ 5. This Court conducts a de novo review of judicial misconduct proceedings. Miss. Comm'n on Judicial Performance v. Vess, 692 So.2d 80, 83 (Miss. 1997). We are certainly not bound by the Commission's findings and recommendations; however, when the Commission's findings are based on clear and convincing evidence, they are afforded great deference. Miss. Comm'n on Judicial Performance v. Lewis, 801 So.2d 704, 707 (Miss.2001); Miss. Comm'n on Judicial Performance v. Bishop, 761 So.2d 195, 198 (Miss.2000). While giving great deference to the Commission's findings, we are also charged to render independent judgment. In re Collins, 524 So.2d 553, 556 (Miss. 1987). This Court has the sole power to impose sanctions when based on clear and convincing evidence. Miss. Comm'n Judicial Performance v. Fletcher, 686 So.2d 1075, 1078 (Miss.1996); In re Garner, 466 So.2d 884, 885 (Miss.1985).
DISCUSSION
I. WHETHER JUDGE PERDUE'S CONDUCT CONSTITUTES MISCONDUCT IN VIOLATION OF SECTION 177A OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED, AND/OR CANONS 1, 2A, 3A(1), 3A(4), AND 3B(1) OF THE CODE OF JUDICIAL CONDUCT.
¶ 6. We will set out the facts as revealed in the record as the need arises in our discussion. We start, however, with the findings of fact of the Commission. Although lengthy, these findings of fact, without doubt based on clear and convincing evidence as revealed in the record, are critical to our determination here today, and are thus set out verbatim:
Respondent, Jane A. Perdue, is now and at all times mentioned in the Formal Complaint was the duly appointed and acting Youth Court Referee for the Youth Court of Rankin County, Mississippi. She also served as the duly appointed and acting Youth Court Judge for the Youth Court of the City of Pearl, Mississippi. Although separate dockets are maintained for the two Youth Courts, hearings for both are conducted in the same location.
Honorable Jason T. Zebert, Attorney at Law, Pearl, Mississippi, was at all times mentioned in the Formal Complaint, the duly appointed and acting Youth Court Prosecutor for the Youth Court for the City of Pearl, Mississippi. As such, Mr. Zebert appears regularly before the Respondent in her capacities as Youth Court Judge and as Youth Court Referee.
On September 29, 1999, the Chancery Court of Rankin County, Mississippi entered, in cause number 43,669, its Final Judgment of Divorce Absolute-Irreconcilable Differences forever severing the bonds of matrimony existing by and between Freddie Lewis Tyner and Kim Tyner. The Judgment incorporated the Child Custody and Property Settlement Agreement of the parties. Pursuant to paragraph number 3 of that Agreement, the parties agreed that primary physical and legal custody of their minor child, *89 Trevor Reid Tyner, born January 22, 1998, would be vested in Mrs. Tyner. Certain specified visitation rights were reserved to Mr. Tyner.
In April or May, 200[1], Mrs. Tyner advised Mr. Tyner that she intended to voluntarily admit herself into a rehabilitation center for alcoholism. She requested that Mr. Tyner assume temporary custody of their minor child pending her discharge, to which Mr. Tyner agreed.
On May 15, 200[1], while Mrs. Tyner was still an inpatient resident at the rehabilitation center, Jason T. Zebert, as private attorney for Mr. Tyner, appeared before Respondent Jane A. Perdue, in her capacity as Youth Court Referee for Rankin County, Mississippi, and presented an Order of Temporary Custody. Even though no evidence, sworn or otherwise, was presented in support thereof, Respondent Perdue signed and executed the Order of Temporary Custody effectively removing custody of the minor child in question from Mrs. Tyner, who had been awarded custody pursuant to the Final Judgment of Divorce Absolute-Irreconcilable Differences entered by the Chancery Court of Rankin County, Mississippi, on September 29, 1999, and awarding custody to Mr. Tyner, "until further Order of this Court." Respondent Perdue acknowledges that this Order of Temporary Custody was entered based entirely and solely upon the representations of Attorney Jason T. Zebert that father, Mr. Tyner, might need to get medical attention for the minor child and could not do so without an Order of the Youth Court. [footnote omitted] Respondent Perdue also acknowledges that she has entered similar Orders on prior occasions based entirely upon the representations and statements of private attorneys, with no evidence being received or taken. No prior notice of this proceeding was afforded the custodial parent, Mrs. Tyner. No formal petition was filed and no formal Petition has ever been filed in this Youth Court action. The Order of Temporary Custody does not comply with the requirements of Section 43-21-301(4). The Order was never filed with the Clerk. The Order was not in the usual form routinely utilized in the Youth Court of Rankin County. Further, a copy of the Order was not forwarded to Mrs. Tyner or her attorney until June 20, 2001. [footnote omitted]
On May 21, 2001, Honorable Jason T. Zebert, as private counsel for Mr. Tyner, filed a modification of custody actions (sic) in the Chancery Court of Rankin County, Mississippi, in cause number 43,669. The matter was set for hearing on August 8, 2001. This summons was served upon Mrs. Tyner while she was still an inpatient resident at the rehabilitation center.
Upon her discharge from the rehabilitation center, Mrs. Tyner requested that Mr. Tyner restore custody of the minor child to her. Upon his refusal to do so, Mrs. Tyner retained the services of Honorable John R. Reeves, Attorney at Law of Jackson, Mississippi.
On June 20, 2001, Honorable John R. Reeves, for and on behalf of his client, Mrs. Tyner, filed request for emergency relief in the Chancery Court of Rankin County, Mississippi, seeking restoration of custody of her minor child pursuant to the provisions of the Final Judgment of Divorce-Irreconcilable Differences entered by that Court on September 29, 1999. An Emergency Hearing was scheduled for June 21, 2001. At approximately 5:30 p.m, on the evening of June 20, 2001, Honorable Jason T. Zebert faxed to Mr. Reeves a copy of the May *90 15, 2001, Order of Temporary Custody executed by Respondent in her capacity as Youth Court Referee for Rankin County, Mississippi. This was the first knowledge either Mrs. Tyner or Mr. Reeves had of the existence of this Order.
On the morning of June 21, 2001, Honorable John R. Reeves attempted to inspect and review the Youth Court file containing the Order of Temporary Custody faxed to him the previous evening by Honorable Jason T. Zebert. Mr. Reeves was advised by the custodian of the Youth Court records that no such file existed. Subsequently on July 13, 2001, Ruby Ponder, Deputy Court Clerk, executed a document introduced as Exhibit 3, page 4, advising that:
"....[N]o record exist (sic) in this Court of any hearing on May 15, 2001 and no record exist (sic) in this Court of a hearing on June 10, 2001, in reference to the above-named minor. Furthermore, there is no formal court file and no Department of Human Services complaint or record in this Court as it may pertain to this minor child."
Upon the hearing of Mrs. Tyner's request for emergency relief, Chancellor John Grant determined that inasmuch as the Youth Court of Rankin County, Mississippi, has apparently assumed jurisdiction of the minor, the action in the Chancery Court should be stayed pending resolution of the Youth Court matter. Thus, because of the entry by Respondent of the Order of Temporary Custody on May 15, 200[1], the Chancery Court could not hear her request for emergency relief.
At the request of Honorable John R. Reeves, as counsel for Mrs. Tyner, a review hearing was held in the Youth Court of Rankin County, Mississippi, on July 10, 2001. At this hearing, Mr. Reeves attempted to discover the basis for entry of the Order of Temporary Custody on May 15, 2001, and to present evidence in support of Mrs. Tyner's request that the Order be set aside. However, Respondent refused to give her reasons for entry of the Order, and thus, the reason the Youth Court had jurisdiction of this matter. She refused to allow Mrs. Tyner to present evidence, and she entered the Order Transferring Jurisdiction to Chancery Court which continued in effect the Order of Temporary Custody entered on May 15, 2001, which had, on it (sic) face, long since expired and was of no further force and effect.
In the case sub judice, Respondent testified that, in her opinion, "A Chancery Court Order always overrides a Youth Court Order," that "Chancery Court always takes precedent over Youth Court," and that Mrs. Tyner would have been given a "full hearing" at this review but for the fact that "it [the issue of custody of the minor child] had been filed in Chancery Court." Further, she testified that the Order of Temporary Custody was continued in effect based strictly and solely on the representations of Jason Zebert to the effect that Mrs. Tyner had just been discharged from rehabilitation and "was not ready for custody," even though she would not allow Mrs. Tyner to present any evidence to the contrary. In addition, Respondent testifies "I do not believe, under the circumstances of this case, I do not believe I have done anything that was wrong." Finally Respondent testified that at the July 10, 2001 hearing, she was unaware that no Petition had been filed in this action and she does not recall Mr. Reeves arguing that no Petition had been filed. In her opinion, Respondent has no administrative responsibilities regarding the entry of *91 Orders and the filing of Petitions in Youth Court.
Subsequently, Respondent recused herself from further hearing in this matter and, on July 26, 2001, Rankin County Youth Court Judge Kent McDaniel conducted a review hearing following which he entered an Order Dismissing Case, a copy of which was introduced as Exhibit 3, page 6.
Approximately two and one-half months after entry of the Order of Temporary Custody and after incurring attorneys fees in excess of $13,000.00, custody of the minor child was restored to Mrs. Tyner.[1]
¶ 7. In sum, the relevant facts of the case before us today are that: (1) Judge Perdue entered an ex parte order, in her capacity as Youth Court Referee for the Rankin County Youth Court, as presented by the City of Pearl Youth Court Prosecutor who regularly appeared before her in her capacity as Youth Court Judge for the City of Pearl, but on this occasion the Prosecutor was representing Mr. Tyner (Lewis) as privately retained counsel; (2) Judge Perdue signed this ex parte order awarding Lewis the temporary custody of the Tyners' minor child without a petition being filed, without notice to Mrs. Tyner (Kim) as the custodial parent, without evidence being taken, and without an official court file ever being established; (3) Judge Perdue, upon having the parties and attorneys before her for a review hearing, refused to explain her reasons for the entry of this order and refused to allow evidence to be offered on behalf of Kim; (4) Judge Perdue, on that same day, continued in effect this same order, thus continuing to deprive Kim of the custody of her daughter, although the prior chancery court order awarding her the primary physical and legal custody of her minor child was still in effect; and, (5) Judge Perdue's actions caused Kim to be deprived of lawful custody of her child, which custody was restored to her only after incurring attorney's fees in excess of $13,000.00.
¶ 8. Without question, Judge Perdue's actions cause us to conclude that in accordance with the provisions of Art. 6, § 177A, Miss. Const., 1890, as amended, we are mandated to sanction Judge Perdue because of willful misconduct in office and conduct prejudicial to the administration of justice which brings her judicial office into disrepute in that she has clearly violated various canons of the Code of Judicial Conduct, statutes, and court rules.
¶ 9. Specifically, the record before us reveals that Judge Perdue violated Canons 1, 2A, 3A(1), 3A(4), and 3B(1) of the Mississippi Code of Judicial Conduct.[2] Canon 1 states:
A Judge Should Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code *92 should be construed and applied to further that objective.
Further, Canon 2 A states:
A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities
A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Additionally, Canons 3A(1) and 3A(4) state:
A. Adjudicative Responsibilities.
(1) A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism.
(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law ...
Further, Canon 3B(1) states:
B. Administrative Responsibilities.
(1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.
¶ 10. We cannot and should not view Judge Perdue's actions in a vacuum. We must decide this case not only based on Judge Perdue's actions of May 15, 2001, when she entered the temporary custody order in favor of Lewis, without notice, but also based on the judge's subsequent actions. The brief order of May 15, 2001, is quoted herein, in its entirety:
CAME ON THIS DAY, for hearing in the above styled and referenced cause, a request for temporary custody of the minor child. The Court after due consideration finds as follows:
1. It is in the interest of the above named minor child to have temporary care, custody and control placed with Lewis Tyner, whose address is 336 Mockingbird Lane, Madison, Mississippi 39110.[3]
IT IS THEREFORE ORDERED AND ADJUDGED, that temporary care, custody and control of the above named minor shall be and is hereby placed with Lewis Tyner until further order of this Court.
(emphasis added). That's it. This order was entered only on attorney Jason Zebert's representations that Lewis "might" need to get medical attention for the minor child, and that since Kim was then unavailable, Lewis could not obtain this medical attention for the child without a youth court order. Additionally, the order stated no basis for jurisdiction and further there was no indication of any appearances, testimony, or evidence taken in the matter. The clerk's office did not have a file, petition, copy of the order, or any other document concerning the matter, and no record was made of the hearing. By the very execution of this order, based on the facts and circumstances surrounding its execution, Judge Perdue likewise violated several statutes as will be discussed below.
¶ 11. At the review hearing of July 10, 2001, when presented with a golden opportunity to right the wrong, Judge Perdue refused to even discuss the circumstances of the execution of the May 15th *93 temporary custody order and likewise refused to allow Kim and her attorney the opportunity to offer evidence in an effort to set aside that order. Instead, Judge Perdue entered the order transferring the case to chancery court thereby keeping in effect the previously executed temporary custody order in favor of Lewis. In fact, not only did Judge Perdue not provide Kim and her attorney an opportunity to be heard, but she also kept the temporary custody order in effect based solely on the representations of Lewis's attorney (Jason Zebert) that Kim had just recently been discharged from alcohol rehabilitation and that thus, she "was not ready for custody." Judge Perdue made this decision on the unsworn testimony of Lewis's lawyer while at the same time refusing to allow Kim and her lawyer the opportunity through sworn testimony to refute the unsworn allegations of Lewis's lawyer. Clearly, Judge Perdue violated Canons 1(A Judge Should Uphold the Integrity and Independence of the Judiciary); 2A (A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities); and 3A(1), 3A(4), 3B(1) (A Judge Should Perform the Duties of His Office Impartially and Diligently-Adjudicative and Administrative Responsibilities).
¶ 12. As already noted, Judge Perdue's actions likewise violated several statutes. Miss.Code Ann. § 43-21-301(4) (Rev.2000), a part of the Youth Court Law, states, in pertinent part:
(4) The judge or his designee may order, orally or in writing, the immediate release of any child in the custody of any person or agency. Custody orders as provided by this chapter and authorizations of temporary custody may be written or oral, but, if oral, reduced to writing as soon as practicable. The written order shall:
(c) Except in cases where the child is alleged to be a delinquent child, state that there is probable cause to believe that (i) reasonable efforts have been made to maintain the child within his own home, but that the circumstances warrant his removal and there is no reasonable alternative to custody; or (ii) the circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his own home, and that there is no reasonable alternative to custody.
(emphasis added).
¶ 13. There is nothing in the record to indicate that there were circumstances of an emergency nature sufficient to warrant the change of custody. The underlying facts indicate that prior to checking herself into the alcohol rehabilitation center, Kim had taken the child to Lewis and requested that he assist Kim's mother in caring for the child while she completed the program. Instead, Lewis offered to "keep him (their child) while you're gone." It is obvious from the record that notwithstanding the divorce, Kim and Lewis had a "good working relationship" when it came to child visitation. Judge Perdue testified that she relied on the representations of Lewis's attorney that there may be a need for medical assistance. The contemplation of medical assistance of a child is insufficient reason for the award of temporary custody, especially in light of Miss.Code Ann. § 41-41-3(1)(b) (Rev.2001), which authorizes the minor's parent to seek medical treatment for the child.
¶ 14. The order provided that the "temporary care, custody and control of the above named minor shall be and is hereby placed with Lewis Tyner until further order of this Court." Since Judge Perdue *94 executed the order in her capacity as Rankin County Youth Court Referee (as opposed to in her capacity as the City of Pearl Youth Court Judge), Miss.Code Ann. § 43-21-111(5) (Rev.2000) is applicable. This statute requires that an order entered by a youth court referee shall be immediately mailed to all parties and their attorneys. Also, as noted by the Commission and as revealed in the record, the order was not in the usual form ordinarily utilized in the Rankin County Youth Court. Again, while Judge Perdue's execution of the order was in violation of the Code of Judicial Conduct and the applicable statutes, we also look to her subsequent actions.
¶ 15. After the entry of the May 15th order and while Kim was still in the rehabilitation center, Lewis had sought modification of custody in the chancery court and a hearing was scheduled for August 8, 2001. After completion of the alcohol rehabilitation program in June, Kim sought to regain custody of the minor child by requesting Lewis to return custody of the child to her. After Lewis refused to return their child to her, Kim sought the services of attorney John R. Reeves, who filed for emergency relief with the chancery court. Upon receipt of the emergency motion, Lewis's attorney, Jason Zebert, faxed Kim's attorney a copy of the order entered by Judge Perdue. This was the first time Kim or her attorney knew that such an order existed. Due to the existence of the youth court order, the chancery court declined to hear the emergency motion.
¶ 16. Reeves's inspection of the youth court records revealed that there was no file, no petition, and no original or copy of the May 15th order. Being aggrieved by this temporary custody order, Kim, through her attorney, requested an evidentiary hearing before Judge Perdue; however, Judge Perdue refused to take testimony or other evidence from Kim or her witnesses. Instead, Judge Perdue continued the order of temporary custody and transferred the matter to chancery court.
¶ 17. On July 26, 2001, Rankin County Youth Court Judge Kent McDaniel, after hearing the matter, issued an order of dismissal. Judge McDaniel's order stated that the provisions of the May 15th order did not provide a basis for youth court jurisdiction; that no petition had been filed; that no guardian ad litem had been appointed; that Kim had not received notice; that even if the order were valid when entered that the order had expired "when the procedural and substantive rules and statutes concerning youth court matters were completely ignored;" and, that there was no basis in law for the transfer of the matter to chancery court. Accordingly, Judge McDaniel restored custody of the child to Kim on July 26, 2001.
¶ 18. Admittedly, the fact that the order was entered at the request of an attorney who regularly practices in Judge Perdue's court in and of itself would not raise a legitimate issue of her independence or bias in favor of Zebert or his client. However, Judge Perdue admitted that she granted the order without a hearing or any testimony and without notice to Kim. When viewed in their totality, certainly Judge Perdue's actions legitimately call into question Judge Perdue's independence or, at least, indicate an appearance of impropriety under Canons 1 and 2. Judge Perdue further testified that it was not her responsibility to ensure that a petition was filed or that the court maintained a file on the matter. Although one may look to Zebert's failure to file the petition and to properly "follow[ ]-up" on the matter, the overall administration of the court falls squarely on the shoulders of Judge Perdue, as contemplated by Canon *95 3B(1). Even a cursory review of the court's records would have revealed that there was no petition filed. Certainly, at the review hearing, the actions of Kim and her attorney more than sufficiently put Judge Perdue on notice that something had gone awry.
¶ 19. The actions of Judge Perdue, including the entry of the initial order and the subsequent transfer of the case to chancery court without notice to Kim and without an opportunity for Kim to be heard, violated the already cited canons and statutes. At the hearing before the committee, Judge Perdue testified she did not remember whether Lewis was in the courtroom when Zebert sought the temporary order on May 15, 2001, but that she did recall he did not appear before her. Kim was not at the hearing when the temporary custody order was presented to Judge Perdue, nor was she provided with a copy of the order after its entry.[4] Additionally, because there was no official court file established and maintained in the youth court matter, it was impossible for any subsequent action to have been legitimately taken in the case. On two separate occasions, Judge Perdue refused to hear from Kim, her attorney, or her witnesses. Although several provisions of the Youth Court Law were ignored or violated, Judge Perdue continues to deny that she did anything wrong. The actions of Judge Perdue constitute willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.
II. WHETHER THE MISCONDUCT WARRANTS A THIRTY DAY SUSPENSION AND PAYMENT OF COSTS.
¶ 20. The Commission has recommended that should this Court find that Judge Perdue violated Article 6, § 177A, Miss. Const., 1890, along with various canons of the Code of Judicial Conduct, she should be suspended from all judicial functions, including the use of judicial facilities and office, without pay, for a period of thirty days and assessed with costs of this proceeding in the amount of $888.22. The Commission rejected the Committee's recommendation that Judge Perdue receive a public reprimand, a fine in the amount of $500, and assessed costs in the amount of $888.22.
¶ 21. In Mississippi Commission on Judicial Performance v. Bishop, 761 So.2d 195, 198 (Miss.2000), we set forth mitigating factors we consider when determining appropriate punishment:
(1) The length and character of the judge's public service.
(2) Positive contributions made by the judge to the court and the community.
(3) The lack of prior judicial precedent on the incident in issue.
(4) Commitment to fairness and innovative procedural form on the part of the judge.
(5) The magnitude of the offense.
(6) The number of persons affected.
(7) Whether moral turpitude was involved.
¶ 22. Judge Perdue has served in her capacity as both Youth Court Judge for the City of Pearl and Rankin County Youth Court Referee for eight years and has not been the subject of any previous Commission inquiries. She has practiced *96 law for twenty years and spent a total of thirty years involved with youth court work. The underlying accusations do not involve a charge of moral turpitude. However, Judge Perdue did not respect or comply with the law and she failed to maintain professional competence in the law. Additionally, Judge Perdue failed to discharge her administrative duties and responsibilities.
¶ 23. The findings and recommendations of the Commission align with recent holdings of this Court. In Mississippi Commission on Judicial Performance v. Peyton, 812 So.2d 204 (Miss.2002), Judge Peyton was suspended for 30 days and fined $100 as a result of appointing his daughter as public defender to defend an indigent murder suspect. He then conducted an ex parte bond reduction without notice to the prosecution and set aside a civil judgment sua sponte without giving any reason as to why he did so. Also, Judge Peyton had previously been disciplined by the Commission.
¶ 24. We are convinced from the record that the actions of Judge Perdue were not taken in bad faith. We have held, however, that disciplinary action can be appropriate without evidence of bad faith. Miss. Comm'n on Judicial Performance v. Hartzog, 646 So.2d 1319, 1321-22 (Miss. 1994). Through Judge Perdue's actions, the proper parent was deprived the custody of a minor child for a considerable period of time. Judge Perdue brought the judicial office into disrepute; and therefore, disciplinary action is warranted.
¶ 25. What is especially troublesome is Judge Perdue's failure to acknowledge her wrongdoing, or even that she may have made a mistake. At the hearing before the Committee, Judge Perdue testified that "I do not believe, under the circumstances of this case, I do not believe I have done anything that was wrong." Also troubling is the approach that Judge Perdue takes in her response and brief filed with this Court. She attempts to divert our attention from her actions to Kim's actions:
In April or May 2001 Mrs. Tyner went into Jolimar Treatment Center ("Jolimar") for alcoholism and stayed for 58 days. She had been drinking for 6 months. She was also treated for sexual abuse problems. She went to Jolimar after she appeared at work one morning following a night out drinking. Additionally, she was suspended from work for two days.[5]
This case is not about Kim's actionsit is about Judge Perdue's actions. And when it comes to the imposition of discipline, it is also about how Judge Perdue perceives her actions. The following is an excerpt of Judge Perdue's responses to questions propounded to her by the Commission's counsel at the evidentiary hearing before the Committee:
Q. Was continuing this temporary order correct?
A. Well, that's debatable. I mean, I cannot say yes or no. I don't think any harm was done by continuing it.
Q. You don't think depriving the mother of custody from May the 15th until she could eventually get before [Chancellor] Grant caused any harm?
A. No ma'am. Not when she was the one that brought the child to the father, went into drug and alcohol rehabilitation.[[6]] *97 I do not feel that there was any harm to the child at all.
Q. Do you feel there was any violation of due process or the rights that are provided to a parent being deprived of custody of a child in youth court?
A. No, I do not.
Q. And all this was done on the representation of one attorney?
A. Yes, ma'am.
* * *
Q. So it's just not your responsibility, even when it comes back before you, to ever look at the file and see if everything is there that needs to be?
A. Not under the circumstances of this case. I do not believe I was in any manner whatsoever done anything that was wrong.[7]
In fact, Judge Perdue acknowledged to the Committee that if confronted with similar circumstances again, she would most likely again enter a temporary custody order.
¶ 26. The recommendation of the Commission that Judge Perdue should be suspended from all judicial functions, including the use of judicial facilities and office, without pay, for thirty days and that she be assessed costs of $888.22 is hereby approved and adopted. In adopting the Commission's recommendation as to the imposition of discipline, we are not unmindful of the disconcerting effect today's decision has upon a member of the bar and the judiciary who has devoted a substantial amount of her professional life to caring for our youth. We also emphasize that a very appropriate duty of a judge is the exercise of judicial discretion; therefore, we in no way infer by today's decision that our learned judges are subjecting themselves to judicial performance complaints in exercising judicial discretion, or even when there is a subsequent determination on appellate review that there has been an abuse of judicial discretion. Judicial complaints are not the appropriate vehicle to test a possible abuse of judicial discretion. This case is not about abuse of judicial discretion. This case is about clear violations of our judicial canons and our statutes.
¶ 27. While there may be concern that the very nature of appellate review results in this Court viewing Judge Perdue's actions in the cool light of after-the-fact reflection by way perhaps of second-guessing her judicial actions taken in what she perceived to be an emergency situation, we note that a sitting chancellor presided over the Committee hearing. Additionally when the Commission convened to consider Judge Perdue's case, the Commission meeting was presided over by a sitting circuit judge, and there were also present two sitting county court judges, a sitting chancellor and one other sitting circuit judge. A chancellor made the motion to adopt the Committee's findings of fact, but not to accept the Committee's recommendation for a public reprimand, but instead to recommend to this Court, inter alia, a 30-day suspension. The chancellor's motion was unanimously passed by the Commission. While this Court is the ultimate arbiter of Commission complaints against *98 our judges, we afford deference to the Commission's findings of fact and recommendations when such findings, as here, are supported by clear and convincing evidence; and we also note that in today's case, our learned trial judge-members on both the Committee and the Commission found Judge Perdue's actions to be in violation of our judicial canons and sanctionable.[6]
CONCLUSION
¶ 28. For the reasons herein stated, this Court adopts the Commission's findings that Judge Perdue's behavior constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, in violation of Art. 6, § 177, Miss. Const., 1890, as amended. We likewise adopt the Commission's recommendation and suspend Judge Jane A. Perdue for thirty (30) days from all judicial functions, including the use of judicial facilities and office, without pay, and assess her with the costs of these proceedings in the amount of $888.22.
¶ 29. JUDGE JANE A. PERDUE IS HEREBY SUSPENDED FOR THIRTY (30) DAYS FROM ALL JUDICIAL FUNCTIONS, INCLUDING THE USE OF JUDICIAL FACILITIES AND OFFICE, WITHOUT PAY, AND ASSESSED COSTS OF THESE PROCEEDINGS IN THE AMOUNT OF $888.22.
WALLER AND COBB, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. PITTMAN, C.J., SMITH, P.J., DIAZ AND EASLEY, JJ., NOT PARTICIPATING.
McRAE, Presiding Justice, Dissenting:
¶ 30. The Judicial Performance Commission's recommendation and the holding of the majority which provides for suspension from judicial functions for thirty days without pay and assessment of costs in the amount of $888.22 are not justified. For this reason, I, therefore, dissent.
¶ 31. This Court is not bound by the Commission's findings as we have sole discretion in determining the appropriate discipline for the misconduct so alleged. Miss. Comm'n on Judicial Performance v. Bishop, 761 So.2d 195, 198 (Miss.2000) (citing Miss. Comm'n on Judicial Performance v. Chinn, 611 So.2d 849, 850 (Miss. 1992); Miss. Comm'n on Judicial Performance v. Russell, 691 So.2d 929, 942 (Miss.1997)). When determining the appropriate discipline, we must consider the following mitigating factors:
(1) The length and character of the judge's public service;
(2) Positive contributions made by the judge to the court and the community;
(3) The lack of prior judicial precedent on the incident in issue;
(4) Commitment to fairness and innovative procedural form on the part of the judge;
(5) The magnitude of the offense;
(6) The number of persons affected; and
(7) Whether moral turpitude was involved.
Id. In the end, the sanctions imposed should fit the offense with which the judge is charged. Miss. Comm'n on Judicial Performance v. Hartzog, 646 So.2d 1319, 1322 (Miss.1994) (citing In re Bailey, 541 So.2d 1036, 1040 (Miss.1989)). A lack of *99 improper motive will not preclude discipline, but will be considered as a mitigating factor. Id. (citing Bailey, 541 So.2d at 1040).
¶ 32. With these principles in mind, we have ordered a wide range of discipline depending upon the misconduct alleged. Just a few examples will illustrate why the majority's imposition of a suspension is unwarranted.
¶ 33. In Bailey, we ordered a public reprimand for the misconduct of a Justice Court Judge who committed two separate and unrelated acts of misconduct. 541 So.2d at 1039-40. Judge Bailey, a Justice Court Judge in DeSoto County, "mishandled an eviction and past due rent case ... against Louise Brown .... [and] also interfered or attempted to interfere with a case assigned to another DeSoto County Justice Court Judge by entering an order purporting to grant relief from a temporary protective order previously entered by another judge." Id. at 1039. We found that there was no evidence of malice, personal benefit, or improper motive. Id. at 1039-40. However, we did find that Judge Bailey's "ignorance" would not operate to exonerate him. Id. at 1040 (citing In re William Anderson, 451 So.2d 232, 234 (Miss.1984)).[7] Ultimately, we decided that public reprimand was the appropriate discipline. Id.
¶ 34. In Hartzog, we ordered a public reprimand and assessment of costs for the misconduct of a Justice Court Judge who committed three separate and unrelated acts of misconduct. 646 So.2d at 1320-22. Judge Hartzog, a Justice Court Judge from Jefferson Davis County, mishandled the notarization of a quitclaim deed, signed an order in an unnumbered case that directed a prisoner be returned to the county for a fictitious pending hearing; and executed an instrument for an unnumbered case which authorizing one to remove personal properly. Id. at 1320-21. We found that Judge Hartzog, who had no prior allegations of misconduct, had not acted with malice, bad faith, or personally benefitted from his misconduct. Id. at 1322. We issued a public reprimand and assessed him costs. Id.
¶ 35. In Miss. Judicial Performance Comm'n v. Bishop, we ordered a ninety-day suspension and assessed $1,500 in costs for two counts of misconduct of a Justice Court Judge. 761 So.2d at 196-98. Originally, Judge Bishop was charged with six counts of misconduct which centered around "allegations that Bishop had engaged in sexual relations with a fifteen-year-old minor, that he had intimidated that same minor, and that he had interrogated and intimidated a high school student who had made suggestive remarks to the minor." Id. at 196. A three-member Committee found two of the counts to be supported by the evidence and recommended a ninety-day suspension and assessment of $1,500 in fines and additional costs. Id. After deliberations, the Commission adopted the Committee's findings as to the two counts, but recommended that Bishop by publicly reprimanded, fined $1,500, and assessed costs. Id. The two counts which both the Committee and Commission found to be validated were counts III and V. Id. Count III alleged that "Bishop had conspired with Freddie Varnes, a jailor at the Simpson County Jail and an employee of the Sheriff's department, to `harass and intimidate' the family of the minor who was making the allegations against Judge Bishop ... [by] ... parking his vehicle across from the house of the minor's house in order to intimidate her and her family." Id. Count V alleged that "Bishop had `confronted, interrogated, *100 and intimidated' a male high school student who had made `inappropriate sexual remarks' to the minor female who was the subject of the allegations ... [by] ... interject[ing] himself into a meeting between the male student and the school principal and us[ing] his position as judge to intimidate the student." Id. at 197. Based on the serious nature of the misconduct, we held that the appropriate discipline was a ninety-day suspension from office, a $1,500 fine, and assessment of costs. Id. at 198.
¶ 36. Lastly, in Miss. Comm'n of Judicial Performance v. Peyton, 812 So.2d 204, 205-08 (Miss.2002), we ordered a thirty-day suspension without pay and assessment of costs for three acts of misconduct by a Justice Court Judge. Judge Peyton, a Justice Court Judge from Yazoo County, appointed his daughter Alva Taylor, a Yazoo County Public Defender, to represent a indigent murder suspect who was before his court; initially set a $100,000 bond for a defendant, but without notice to the prosecution lowered the bond amount to $50,000; and set aside a judgment of $2,114 which he had entered just four days earlier. Id. at 205. The Commission recommended a thirty-day suspension without pay and the assessment of costs in the amount of $100. Id. at 206. Judge Peyton had undergone discipline on two previous occasions for improper political activities and ex parte communications with a party involved in pending litigation before him. Id. at 207. We approved of the Commission's findings and ordered a thirty-day suspension without pay and the assessment of costs. Id.
¶ 37. With the applicable law stated and the above cases in mind, it is clear that the appropriate discipline for the misconduct of Judge Perdue, if any, should be a private reprimand. Judge Perdue's acts of alleged misconduct encompass one single transactional event, unlike those of the above mentioned judges. See Peyton, 812 So.2d at 205 (three separate and unrelated acts of misconduct for which suspension and assessment of costs ordered); Bishop, 761 So.2d at 196-97 (two acts of misconduct which amount to "threats and intimidation" for which suspension and fine ordered); Hartzog, 646 So.2d at 1320-21 (three separate and unrelated acts of misconduct for which public reprimand and costs assessed); Bailey, 541 So.2d at 1039 (two separate and unrelated acts of misconduct for which public reprimand ordered). She has never been the subject of discipline. There is no evidence of malice, bad faith, or personal benefit. At worst, her actions can be characterized as interfering with a case or order assigned and issued by another judge. See Bailey, 541 So.2d at 1039. Additionally, mitigating factors weigh in her favor: her character and service as a judge; her positive contributions to the community; her commitment to fairness; and the fact that moral turpitude is not involved. See Bishop, 761 So.2d at 198. She may have been in error in trusting her lawyers. She was right in the subsequent hearing in not deciding it and transferring it to the chancery court. For these reasons, the appropriate discipline, if any, is a private reprimand.
GRAVES, J., JOINS THIS OPINION.
NOTES
[1] As already noted, the Commission adopted in toto the Committee's findings of fact.
[2] By order dated April 4, 2002, this Court adopted a new Code of Judicial Conduct which replaced the former Code. The citations in today's opinion are to the former Code of Judicial Conduct which was in effect on the dates in question. We also remind the reader that our current Code contains gender neutral language wherein the language quoted today from the former Code is not gender-neutral.
[3] Judge Perdue obviously acknowledged in her order that the "petitioner" was not even a resident of Rankin County.
[4] Judge Perdue's assertion that Kim could not be provided with notice or a copy of the temporary custody order because of her being in a treatment facility, and that the youth court was only ratifying through this temporary custody order what Kim had already done by voluntarily relinquishing custody of the child to Lewis while she was at the treatment facility simply does not in any way persuade this Court in the judge's favor.
[5] In her appearance before the Committee, Kim testified that she had no DUIs, that she was not drinking every day, and, that in fact she would consume alcohol only on every other weekend when her child was with Lewis for visitation. Kim's in-patient treatment at Jolimar was not just for an alcohol problem. Kim's testimony on the alcohol issue is unrebutted in the record.
[6] Kim testified at the hearing before the Committee that she did not have a drug problem and did not abuse prescription drugs or use illegal drugs. This testimony is unrebutted in the record.
[7] Because of his inappropriate conduct in the manner in which he secured the temporary custody order from Judge Perdue, Lewis's attorney was sanctioned by Youth Court/County Court Judge Kent McDaniel, who assessed Lewis's attorney $1,702.15 in attorneys fees and expenses due to Kim's attorney under the Litigation Accountability Act of 1988, Miss.Code Ann. §§ 11-55-1 to -15 (Rev.2002).
[6] We also acknowledge the conscientious work of the esteemed lay citizens who serve on the Committee and the Commission.
[7] See also In re Collins, 524 So.2d 553 (Miss. 1987); In re Garner, 466 So.2d 884 (Miss. 1985); In re Lloyd Anderson, 412 So.2d 743 (Miss.1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622106/ | 725 N.W.2d 410 (2006)
272 Neb. 789
In re ADOPTION OF JADEN M.
Ronald L. and Tracey L., appellees,
v.
Brian H., appellant.
Nos. S-05-1527, S-06-073.
Supreme Court of Nebraska.
December 22, 2006.
*411 James R. Walz for appellant.
Sheri A. Wortman, of McHenry, Haszard, Hansen, Roth & Hupp, P.C., and Susan Kubert Sapp, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, for appellees.
HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ., and CARLSON, Judge.
CONNOLLY, J.
Under Neb.Rev.Stat. §§ 43-104.02 and 43-104.05 (Reissue 2004) (biological father registry statutes), a putative father who *412 intends to claim paternity and obtain custody of a child born out of wedlock must file notice with the biological father registry and adjudicate his claim within 30 days. The issue is whether a father who has previously been determined in a paternity action to be the biological father is required to comply with the registry statutes to preserve his rights in a subsequent adoption proceeding.
After Brian H. filed a paternity action in district court, the court determined he was the biological father of Jaden M. The court ordered him to pay child support and granted him visitation. Over 1 year later, with the consent of Jaden's mother, Jaden's stepfather filed for adoption. The county court determined that Brian's consent to the adoption was not required because Brian failed to comply with §§ 43-104.02 and 43-104.05. We reverse, because these statutes do not apply to a putative father who has been previously determined to be the biological father.
BACKGROUND
On July 14, 1999, Jaden was born out of wedlock to Tracey L. and Brian. For the first 3 years of Jaden's life, Brian sporadically visited Jaden.
In April 2002, Brian filed a petition in district court for determination of paternity, visitation, and an order requiring him to pay child support. On February 25, 2003, the district court determined that Brian was Jaden's biological father, awarded legal custody to Tracey, and ordered weekly and holiday visitation. The court also ordered Brian (1) to reimburse Tracey for one-half of the medical expenses she incurred in giving birth to Jaden, (2) to pay $400 per month in child support, and (3) to pay one-half of Jaden's future medical and dental expenses not covered by health insurance. Although he missed some payments, from June 1, 2002, to August, 16, 2004, Brian paid $5,603.40 in child support.
On April 5, 2003, Tracey married Ronald L. On October 14, Tracey's attorney notified Brian by certified mail that Tracey planned to consent to Jaden's adoption by Ronald. The notice informed Brian that Tracey had identified him as Jaden's biological father, that she intended to consent to Ronald's adopting Jaden, and that Brian could contact Tracey's attorney to deny paternity and waive his rights or relinquish and consent to the adoption.
Later in April, Tracey and Ronald filed an adoption petition in county court. Brian appeared with counsel and objected to the adoption. In October, Tracey filed a verified motion to obtain consent from the district court. The district court gave its consent and found that the county court had exclusive jurisdiction over the adoption and allowed the adoption proceedings to commence in county court.
Brian moved to dismiss the adoption petition, but the county court overruled his motion. In case No. S-05-1527, Tracey and Ronald moved for summary judgment, alleging that under Neb.Rev.Stat. § 43-104.22 (Reissue 2004), Brian's consent was not required. Despite the district court's previous order determining paternity and ordering Brian to pay child support and awarding visitation, the county court granted summary judgment. It held that Brian had failed to file, under § 43-104.02, a notice of intent to claim paternity with the biological father registry and that he failed to comply with § 43-104.05 by not filing a petition to have his paternity claim adjudicated within 30 days. The court concluded that because Brian did not comply with these provisions, the only consents needed were from Tracey and the district court, which were both on file.
*413 On December 15, 2005, the county court in case No. S-06-073 entered an adoption decree, and Brian timely appealed. Brian also appealed the county court's order in case No. S-05-1527, which granted Tracey and Ronald's motion for summary judgment, finding that Brian's consent was not required.
ASSIGNMENTS OF ERROR
In case No. S-05-1527, Brian assigns that the county court erred in granting Tracey and Ronald's motion for summary judgment. In case No. S-06-073, he assigns that the county court erred in granting the adoption decree.
STANDARD OF REVIEW
Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Didier v. Ash Grove Cement Co., 272 Neb. 28, 718 N.W.2d 484 (2006). In reviewing a summary judgment, we view the evidence in the light most favorable to the party against whom the judgment is granted and give such party the benefit of all reasonable inferences deducible from the evidence. See National Am. Ins. Co. v. Constructors Bonding Co., 272 Neb. 169, 719 N.W.2d 297 (2006).
Statutory interpretation presents a question of law. When reviewing questions of law, we resolve the questions independently of the conclusions reached by the trial court. See State v. County of Lancaster, 272 Neb. 376, 721 N.W.2d 644 (2006).
ANALYSIS
COMMENT ON JURISDICTION
As noted, Brian appealed both the order granting the motion for summary judgment in case No. S-05-1527 and the adoption decree entered in case No. S-06-073. Without deciding if the order granting the motion for summary judgment was a final, appealable order, we conclude we have jurisdiction because Brian timely appealed the adoption decree.
PUTATIVE FATHER REGISTRY PROVISIONS DO NOT APPLY TO BRIAN
The foundation of Nebraska's adoption statutes is the consent of a biological parent to the termination of his or her parental rights. See In re Adoption of Kassandra B. & Nicholas B., 248 Neb. 912, 540 N.W.2d 554 (1995). Consent for adoption is not required, however, of a parent who:
(a) has relinquished the child for adoption by a written instrument, (b) has abandoned the child for at least six months next preceding the filing of the adoption petition, (c) has been deprived of his or her parental rights to such child by the order of any court of competent jurisdiction, or (d) is incapable of consenting.
Neb.Rev.Stat. § 43-104 (Reissue 2004).
Tracey and Ronald argue that in addition to these exceptions, the consent of any biological father is also not necessary if he fails to comply with §§ 43-104.02 and 43-104.05. Brian counters that the court erred in applying these statutes to him because he is not a putative father. We agree.
Section 43-104.02 requires "a person claiming to be the father of the child" to file notice of his intent to claim paternity and obtain custody with the biological father registry within 5 business days of the child's birth or published notification. Section 43-104.05 requires a "claimant-father" to petition the county court where *414 the child was born to adjudicate his claim of paternity and right to custody within 30 days of filing notice under § 43-104.02.
This court has previously held that § 43-104.02 does not apply to a biological father opposing the adoption of his child who is no longer a newborn when the father had acknowledged and supported his child and established strong familial ties. See In re Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d 272 (1987). In that case, the father lived with the child for 19 months after the child's birth, although his contacts diminished because of conflicts between the mother and father. When the child was 24 months of age, the mother had the child placed with potential adoptive parents without the father's knowledge or consent. After he learned of the placement, the father filed notice of his intent to claim paternity under § 43-103.02, and the placement parents filed a petition for adoption. The trial court held that the father's consent was not necessary, in part, because his filing for paternity under § 43-103.02 was 2 1/2 years too late.
This court reversed, agreeing with the father that the statute was unconstitutional as applied to him. We adopted the reasoning of a decision from the U.S. Supreme Court: "'[W]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child," [citation omitted] his interest in personal contact with his child acquires substantial protection. . . .'" 225 Neb. at 768, 408 N.W.2d at 278, quoting Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).
We reasoned that applying the statute would "allow a mother to singlehandedly sever a relationship between father and child." Id. at 769, 408 N.W.2d at 278. We concluded that such a result would fly in the face of the statute's intended purposeto allow for the rapid placement of newborns in families that could commit to raising them when the mother does not know whether the father will claim his child. See, id.; Shoecraft v. Catholic Social Servs. Bureau, 222 Neb. 574, 385 N.W.2d 448 (1986). See, also, In re Adoption of Kassandra B. & Nicholas B., 248 Neb. 912, 540 N.W.2d 554 (1995) (acknowledging that § 43-104.02 might be inapplicable to father but declining to decide issue based on holding that substitute consent was required even if statute applied).
Similarly, in White v. Mertens, 225 Neb. 241, 404 N.W.2d 410 (1987), we determined that § 43-104.02 did not apply when the mother had acknowledged the father. There, the father had provided some support and arranged for visitation when the child was a little over 1 year old. Shortly thereafter, he filed suit to claim paternity. The mother, in resisting visitation rights, argued that the father had not filed a notice of intent to claim paternity under § 43-104.02 within 5 days. This court stated that the statute "by its very terms has no application in a dispute between the biological father and mother of a child born out of wedlock." 225 Neb. at 246, 404 N.W.2d at 413.
Since these decisions, the Legislature has amended the adoption statutes. These amendments clarify that the mother's representative must use due diligence to contact an actual or possible biological father before an adoption can be decreed regardless of whether the father filed notice with the registry. See 1995 Neb. Laws, L.B. 712. Before the enactment of L.B. 712, § 43-104(3) (Reissue 1993) required the written consent of "(3) both parents if living, the surviving parent of a child born in lawful wedlock, or, subject to sections 43-104.02 to 43-104.06, the mother of a *415 child born out of wedlock." In other words, before 1995, only the mother's consent was required if the biological father did not file notice with the registry.
But the current version of § 43-104(3) omits the reference to "sections 43-104.02 to 43-104.06" (Neb.Rev.Stat. § 43-104.06 (Reissue 1993) was repealed by L.B. 712), and requires the written consent of
(3) both parents of a child born in lawful wedlock if living, the surviving parent of a child born in lawful wedlock, the mother of a child born out of wedlock, or both the mother and father of a child born out of wedlock as determined pursuant to sections 43-104.08 to 43-104.24.
(Emphasis supplied.) These statutes were also added as part of L.B. 712. Most of these sections ensure that the biological father receives proper notification of his possible or actual paternity and an opportunity to assert his rights.
There are exceptions to the notification requirements. See Neb.Rev.Stat. § 43-104.15 (Reissue 1995). Other than those exceptions, unless the biological father has executed "a valid relinquishment and consent . . . or . . . a denial of paternity and waiver of rights," the court may not enter a decree of adoption without determining that proper notification of parental rights has been provided. Neb.Rev.Stat. § 43-104.11 (Reissue 2004).
That notification is not limited to the rights of biological fathers who have complied with § 43-104.02. See Neb.Rev.Stat. § 43-104.13 (Reissue 2004). Thus, while easing the procedures for newborn adoptions, the Legislature has also, through these notification provisions, protected the parental rights of biological fathers from unilateral adoption actions by mothers and not just biological fathers who have the opportunity to protect their rights under § 43-104.02. That conclusion is bolstered by the Legislature's requirement in § 43-104.01(1) that the biological father registry include the names of adjudicated fathers if the father requests registration, as well as the names of claimant fathers.
It is true that § 43-104.22 provides that in a hearing to determine a biological father's parental rights:
[T]he biological father's consent is not required for a valid adoption of the child upon a finding of one or more of the following:
. . . .
(7) Notice was provided pursuant to sections 43-104.12 to 43-104.14 and the father failed to timely file an intent to claim paternity and obtain custody pursuant to section 43.104.02.
We, however, conclude that § 43-104.22(7) does not apply to a father who has been adjudicated the child's father in a paternity action.
Applying § 43-104.22(7) infringes upon Brian's constitutionally protected parental rights. Because he has provided support and established familial ties with his biological child, his interest in personal contact with his child has acquired substantial protection. In re Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d 272 (1987). His rights must therefore be determined under the considerations delineated in § 43-104.22, apart from subsection (7).
As in White v. Mertens, 225 Neb. 241, 404 N.W.2d 410 (1987), Tracey and Ronald's argument fails because Brian is not "a person claiming to be the father of the child" under § 43-104.02 or a "claimant-father" under § 43-104.05he is Jaden's biological father. The court erred in applying the registry statutes to circumvent the need for Brian's consent.
*416 COURT ERRED IN GRANTING DECREE OF ADOPTION IN CASE NO. S-06-073
In the adoption decree proceedings, case No. S-06-073, the court initially noted that in granting Tracey and Ronald's motion for summary judgment, the trial judge (a different trial judge) had found that all the consents required by law had been properly executed. The court then entered the adoption decree.
As detailed in the previous section, the court erred in granting summary judgment. The county court also erred by granting the adoption without Brian's consent. We, therefore, vacate the adoption decree in case No. S-06-073 because it relied on the erroneously granted summary judgment.
CONCLUSION
We conclude that the county court erred in granting Tracey and Ronald's motion for summary judgment in case No. S-05-1527 because the putative father provisions of § 43-104 do not apply to a previously adjudicated father. We also reverse and vacate the adoption decree entered in case No. S-06-073 as it relied on the erroneously granted summary judgment. We reverse the judgments and remand both causes to the county court for further proceedings consistent with this opinion.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
WRIGHT, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920577/ | 274 Md. 646 (1975)
337 A.2d 703
STATE OF MARYLAND
v.
SINCLAIR AND SINWELLAN CORPORATION
[No. 148, September Term, 1974.]
Court of Appeals of Maryland.
Decided May 8, 1975.
The cause was argued before MURPHY, C.J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.
George A. Eichhorn, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and *647 Clarence W. Sharp, Assistant Attorney General, on the brief, for appellant.
Paul H. Spiller, with whom were Morton Richard Kimmel and Kimmel, Spiller & Bradley, P.A. and Fred S. London on the brief, for appellees.
O'DONNELL, J., delivered the opinion of the Court.
In December 1972 the appellee Sinwellan Corp. (Sinwellan) employed Franz Hoogland as the general manager of the Great Oak Lodge operated by it near Chestertown, at a salary of $22,500 per year, payable monthly. On May 7, 1973 the appellee, Philippe A. Sinclair (Sinclair), by check No. 699 drawn upon the Peoples Bank of Elkton and countersigned by Mrs. Rena Matthews, office manager for Sinwellan, issued a corporation check to Hoogland in the amount of $977.50 in payment of the net wages due him for the month of April. When Hoogland deposited the check in his account in the Peoples Bank of Chestertown on May 10, 1973 it was returned to him as dishonored on presentment by reason of being drawn against "uncollected funds," i.e. certain checks had been deposited by Sinwellan to cover checks drawn upon its account but because the deposited checks had not yet "cleared" the bank refused to honor it. Apparently this check was never redeposited and Hoogland conceded it was not left "for collection."
On the afternoon of May 20, 1973, following an argument with Sinclair, Hoogland's services were terminated for certain alleged derelictions. On May 21st another check, No. 804, was similarly issued to Hoogland in the amount of $866.76 representing, upon severance, payment for the services rendered by him during the first 20 days in May. When Hoogland presented the second check, on May 22, 1973, at the Peoples Bank of Elkton for payment he was there informed that the check could not be paid because "we do not have the money here," or "there were uncollected funds in the account." When the check was returned to *648 Hoogland the cashier affixed a slip to it indicating that it was "returned unpaid" due to "uncollected funds." Similarly, this second check was never redeposited or left with the bank for collection. Later that same day Sinclair caused a telegram to be sent on behalf of Sinwellan advising Hoogland, at his residence then in Lodi, New Jersey, that "Inventory shortages have become substantial enough to warrant previous [sic] action on our part. Payment stopped on checks 699 and 804 pending completed inventory."
As a result of the dishonor of both checks the State's Attorney for Kent County on August 29, 1973 filed a criminal information (No. 2136)[1] charging Sinclair and Sinwellan,[2] alternately and separately, with violation of Maryland Code (1957, 1971 Repl. Vol. [1974 Cum. Supp.]) Art. 27, § 140 (with obtaining from F.L. Hoogland, by false pretenses, "services" "of the goods, chattels, moneys and properties" of Hoogland "with intent to defraud"), and of Art. 27, § 144 (with obtaining "goods and services" from Hoogland by means of a check with intent, at the time of giving such check, to stop payment).[3]
During the course of a jury trial on October 9, 1973, in the Circuit Court for Kent County, presided over by Judge James A. Wise, motions for judgments of acquittal made at the close of the evidence presented by the State on behalf of each of the defendants were granted, pursuant to Maryland Rule 755 b, as to each of the counts which charged them with the crime of false pretenses in violation of Art. 27, § 140. By its verdict the jury acquitted both Sinclair and Sinwellan on both the remaining counts (counts one and two) arising from the issuance of check No. 699 on May 7, 1973, but returned guilty verdicts as to each of the appellees for a violation of Art. 27, § 144, with respect to check No. 804, issued on May *649 21, 1973.[4] Following the denial of motions for new trial and from the judgments entered[5] upon the guilty verdicts, Sinclair and Sinwellan seasonably appealed to the Court of Special Appeals. That court, in Sinclair & Sinwellan Corp. v. State, 21 Md. App. 477, 319 A.2d 549 (1974),[6] in reversing the convictions, after first observing that "the mischief the statute seeks to remedy is the wrongful obtention of something of value with a negotiable instrument issued by one, who at the time of issuance, intends to stop payment," pointed out that "it is implicit that, within the aegis of the crime created by § 144, the dishonor or disregard of the instrument by the drawee must have as its cause a stop order or countermand before the presumption [of intent to defraud] may be used against the maker," and that "[i]f the dishonor or disregard by drawee is the result of any other cause, no presumption arises that at the time of issuance the maker intended to stop or countermand payment." (21 Md. App. at 479, 319 A.2d at 550). That court found that the record indicated "conclusively that the check described in the information was dishonored or disregarded for `uncollected funds'" and that, even though the cashier at the drawee bank had subsequently received a stop payment on the check, his testimony nevertheless clearly indicated that "the cause of dishonor or disregard of the check ... was not the stop order or countermand," so that "[a]s a consequence, the presumption [of an intent to cheat and defraud] was not available to relate the intent to countermand back to the initial issuance of the check" without which presumption "the evidence was not sufficient to permit the case to go to the jury."
*650 It was in this posture of the case that we granted the petition of the Attorney General to issue a writ of certiorari. We shall affirm the result reached by the Court of Special Appeals, but on a more fundamental premise the inapplicability of the provisions of Art. 27, § 144, to the facts in the case, since the issue was preserved for our review by the appellees' renewed motions for judgments of acquittal under Maryland Rule 755 b, made at the close of all the evidence. That statute, in pertinent part, provides as follows:
"Every person who shall obtain money, credit, goods, wares or anything of value, of the value of one hundred dollars or more, from another by means of a check, draft or any other negotiable instrument of any kind, with intent at the time of giving such instrument without the consent of such other to stop or countermand the payment of the same or otherwise to cause the drawee thereof to disregard or dishonor or refuse to recognize such instrument, shall be deemed to have obtained such money, credit, goods, wares, or other thing of value with intent to cheat and defraud another and upon conviction, shall be fined or imprisoned or both, as provided in § 140 of this article, at the discretion of the court.... And upon the trial of any person accused of violation of this section, the fact that such person without the consent of such other to stop or countermand the countermanded payment of such instrument, or otherwise caused the drawee to disregard or dishonor the same without returning or tendering the return of the thing so obtained shall be presumptive evidence of such intent to cheat and defraud...." (Emphasis supplied.)
When what is now § 144 was initially enacted by the General Assembly by Ch. 605 of the Acts of 1920 in substantially the same form as now provided, as to the gravamen of the offense it complemented what has come to be known as the Worthless Check Act, originally enacted *651 by Ch. 281 of the Acts of 1914 and now codified as Art. 27, § 142. The Worthless Check Act "in substance provide[d] that money or other things therein named, obtained by the giving of a worthless check or other instrument, as therein stated, shall be deemed to have been obtained by means of false pretenses, where the same was done with the intention to cheat and defraud, and `the giving of the aforesaid worthless check, draft or negotiable instrument shall be prima facie evidence of intent to cheat or defraud,' subject to the provision" that the drawer shall deposit with the drawee of such paper within ten days thereafter funds sufficient to meet the same. Lyman v. State, 136 Md. 40, 49, 109 A. 548, 552 (1920).
As part of the legislative scheme Ch. 605 of the Acts of 1920 repealed and re-enacted in virtually identical language the provisions of the Worthless Check Act. Each of these sections, as enacted, related to the obtention of "money, credit, goods, wares or anything of value by means of a check, draft or any other negotiable instrument of any kind...." Under each of these statutes, the issuance of the check, draft or negotiable instrument, under § 142 where the check was returned as worthless and under § 144 after stopping or countermanding payment, is considered to be presumptive evidence of an intent to cheat and defraud.
Both statutes were enacted to supplement the provisions of the False Pretense Act, now codified as Art. 27, § 140, which proscribes the obtaining from any person, by any false pretense, "any chattel, money or valuable securities" with intent to defraud, and which was first enacted by Ch. 319 of the Acts of 1835.
In a prosecution under the False Pretense Act (§ 140) "the State has the burden of proving that there was `a representation of an existing fact made with intent to defraud, and that the operation of such representation as a deception induced a transfer and the obtaining of the money or property by the person committing the fraud to the loss of another.'" (Emphasis supplied.) Marr v. State, 227 Md. 510, 514-15, 177 A.2d 862, 864 (1962); Willis v. State, 205 Md. 118, 123-24, 106 A.2d 85, 87 (1954).
*652 "It was obviously because of the difficulty so frequently encountered in proving fraudulent intent [under the False Pretense Act] that the Legislature provided in the Worthless Check Act that the giving of a worthless check raises a prima facie presumption of an intent to defraud...." Willis v. State, supra, 205 Md. at 124-25, 106 A.2d at 88.
Under both statutes, however, it is necessary that the evidence show that the victim actually relied upon the false representation. In Levy v. State, 225 Md. 201, 170 A.2d 216 (1961), Judge Henderson, for this Court, after pointing out that the offense of false pretenses under § 140 and the obtaining of money by bad check under § 142 are separate offenses, and an intent to defraud is a necessary ingredient under both, stated:
"However, it seems to be well established that it is essential both in a charge of obtaining money by false pretenses and under the bad check act that the victim actually rely upon the false representation. See 22 Am. Jur. False Pretenses § 25, and 2 Wharton, Criminal Law & Procedure (Anderson's ed.), § 600. The rule that reliance must be shown was stated by this Court in Kaufman v. State, 199 Md. 35, 40, although actual reliance was found to exist in that case. See also Willis v. State, supra, at p. 127." (Emphasis supplied.) 225 Md. at 206-07, 170 A.2d at 218.
Although the Worthless Check Act, and what is now codified as Art. 27, § 144, initially included within the scope of each only "money, credit, goods, wares or anything of value," the Worthless Check Act was subsequently amended to include "services, release from any debt or obligation for services, or for materials or labor in the construction or repair of any building or buildings, wares or anything of value."[7] Article 27, § 144, however, as to the scope of the *653 property within its ambit remains unchanged from its initial enactment.
Where statutes have been held to require proof that the victim parted with money or property in reliance upon the validity of the check tendered it has generally been held that there is no intent to defraud under such statutes if the check tendered is given in payment of a preexisting debt since nothing in exchange for the worthless check has been obtained. See R. Anderson, 2 Wharton's Criminal Law and Procedure, §§ 615-16 (1957).
Professor Perkins, in his respected and oft quoted work on Criminal Law, in the chapter on "False Pretenses Cheating by Check," states:
"Differences in the statutes permit little in the way of generalization. At times a fraudulent check clause is included in the false pretense section itself (footnote omitted), but more frequently it is separate (footnote omitted). If the statute speaks only in terms of money, property or thing of value obtained by such a check it is not violated if nothing was obtained (Currlin v. State, 110 Tex. Crim. 18, 6 S.W.2d 767 (1928); Lochner v. State, 218 Wis. 472, 261 N.W. 227 (1935). Cf. Wis.Stats. § 343.41 (1953).), as for example where it is used to pay a pre-existing debt (Berry v. State, 153 Ga. 169, 111 S.E. 669 (1922); Broadus v. State, 205 Miss. 147, 38 So. 2d 692 (1949).), or to pay an overdue note without taking up the note (Douglas v. State, 80 Ga. App. 761, 57 S.E.2d 438 (1950).)." R. Perkins, Criminal Law at 317 (2d ed. 1969).
In accord see also Clark and Marshall, Crimes, at 825, n. 81 (6th ed. 1958).
Generally, under statutes prohibiting the obtention of "any money, goods or other property of value," by means of a worthless check, with an intent to defraud, it is necessary that the property obtained pass as a direct result of the giving of the worthless check, and the payment of an existing obligation, or pre-existing debt, has been held not to *654 be within the proscription of such statutes. See Phillips v. State, 24 Ala. App. 456, 136 So. 480 (1931) (where the check was given in payment for services rendered to the defendant in selling certain advertisements); State v. Harris, 136 So. 2d 633 (Fla. 1962) (where the check was given in part payment of an existing obligation); Berry v. State, 153 Ga. 169, 111 S.E. 669 (1922) (where the check was given in payment of a loan made to pay a fine); Vasser v. Berry, 85 Ga. App. 435, 69 S.E.2d 701 (1952) (in a suit for malicious prosecution where the plaintiff had given the defendant a worthless check in payment of a pre-existing florist bill owed by her parents); People v. Cundiff, 16 Ill. App. 3d 267, 305 N.E.2d 735 (1973) (where the defendant purchased grain on March 28, 1972, gave the seller a check therefor on April 6th and requested him to hold the check until April 10th, which he did); State v. McLean, 216 La. 670, 44 So. 2d 698 (1950) (where a check was issued three days after delivery of a cargo of bananas); Pollard v. State, Miss., 244 So. 2d 729 (1971) (where the defendant purchased three used cars on September 5, 1968 and requested the seller to hold the check until the following week); Jackson v. State, 251 Miss. 529, 170 So. 2d 438 (1965) (where the defendant gave a check "as a bond" for performance of a contract to remove some buildings from a tract of land in order to clear it); Broadus v. State, 205 Miss. 147, 38 So. 2d 692 (1949) (where a check was given after the defendant had completely removed and departed with some machinery); State v. Jarman, 84 Nev. 187, 438 P.2d 250 (1968) (where the check was given for a past-due grocery bill); Hoyt v. Hoffman, 82 Nev. 270, 416 P.2d 232 (1966) (where a check was given on an open account for meat which had been purchased at wholesale); Norman v. State, 170 Tex. Cr. 25, 338 S.W.2d 714 (1960) (where the check was given in payment of "motel services" incurred while the defendant resided at the motel); State v. Pishner, 72 W. Va. 603, 78 S.E. 752 (1913) (where the check was given in payment of a pre-existing debt incurred at a general store).
The Illinois court, in People v. Cundiff, supra, reasoned as follows:
*655 "The giving of a worthless check in payment of a preexisting debt is generally held not to be within the ban of the statute (Annot., 59 A.L.R. 2d 1159, sec. 2), the reasons being that the party alleged to have been defrauded did not, on the strength of the check, part with anything of value and further the acceptance of a check does not pay a debt. The payment is only conditional upon the integrity of the check in the absence of an agreement to the contrary. The check was a conditional payment and being dishonored the conditional payment was abortive." 16 Ill. App. at 269, 305 N.E.2d at 737-38.
In Phillips v. State, supra, the Court of Appeals of Alabama, after noting that its statute made it an offense to obtain "any money, merchandise, property, services or other things of value" by means of a worthless check, stated: "The gravamen of the offense is the intent to defraud, and, to constitute the offense denounced by the statute, the use of the check must cause the party who claimed to be defrauded thereby to part with something of value." 24 Ala. App. at 456, 136 So. at 481.
In reasoning that the check given by the defendant for his pre-existing debt was not within the protection of the "worthless check statute" that court stated:
"It affirmatively appears, we think, from all the evidence, that the alleged injured party, as a matter of law, has not been, nor could not have been, defrauded in the transaction complained of. The check in question was admittedly given for a past-due debt. The nonpayment of the check did not impair the existing obligation due to her by appellant. As insisted by appellant: `Mrs. Riggins was not deprived of any right she had against the defendant by the acceptance of the check. She could have sued the defendant immediately upon non-payment of the check on the debt for which the check was given, and she could have recovered and the defendant could not have defeated the suit, *656 because he had given the check. She likewise could have sued and recovered on the check. She did not part with anything and she did not lose any right she had by taking the check." 24 Ala. App. at 457, 136 So. at 481.
See also 32 Am.Jur.2d False Pretenses § 78 (1967) and Annot., 59 A.L.R. 2d 1159-60 (1958), "Construction and Effect of `Bad Check' Statute with Respect to Check in Payment of Pre-Existing Debt," noting that the giving of a worthless check for a past-due obligation is not the obtention of "anything of value."
A case factually similar to the case before us is Maggard v. Commonwealth, 262 S.W.2d 672 (Ky. 1953), where the appellant, who operated a coal mine, gave a check in payment of wages previously earned by one Jamerson for loading coal and working in the mine which was dishonored upon presentation. In reversing the appellant's conviction under the Kentucky worthless check statute, virtually identical to ours, that court held, on the authority of Commonwealth v. Hammock, 198 Ky. 785, 787-88, 250 S.W. 85 (1923), that "A necessary element of the offense is an intent to defraud, and it is well settled that when a check is given in payment of a debt without simultaneously obtaining money or property, the offense is not completed." The court concluded that since the case was merely in payment of a debt for Jamerson's wages it was not punishable under the statute.
In Commonwealth v. Hammock, supra, the defendant issued a check in repayment of a loan obtained by the defendant 20 to 30 days before the check was issued and there were insufficient funds for its payment when presented. In holding that no offense was committed under the Kentucky "worthless check act," the Court of Appeals of Kentucky, in upholding the sustaining of a demurrer to the indictment, stated:
"In other words, Hammock had obtained the money 20 or 30 days before the check was given. There was no money passed to him simultaneously with the *657 issual of the check. He did not, therefore, obtain the money, or any part thereof, by reason of the check or its issual or delivery, and did not issue and deliver the check with the intent to obtain such money, but only in payment of a past-due obligation. Appellee Hammock could not, therefore, have issued the check with intent to defraud. Such intention is of the essence of the offense the gravamen. Without intent to defraud no offense is committed." 198 Ky. at 787, 250 S.W. at 86.
In Currlin v. State, 110 Tex. Cr. 18, 6 S.W.2d 767 (1928), in holding that the defendant, who stopped payment of his check given for one month's rent due in advance, did not violate the Texas version of the worthless check act, called "swindling," that court stated:
"Appellant took nothing from Mrs. Walker in exchange for his check. He deprived her of neither money nor property, nor anything of value, such as is referred to in articles 1545 and 1546 of our Penal Code defining the offense of swindling. If he owed her anything for the rent of her property before he gave her the check he still owed it afterwards. Allen v. State, 58 Tex. Crim. 494, 126 S.W. 571; State v. Pishner, 72 W. Va. 603, 78 S.E. 752; Ex parte Wheeler, 7 Okla. Crim. 562, 124 P. 764...." 110 Tex. Cr. at 19, 6 S.W.2d at 768.
Although each of the above cited cases arose under "worthless check" statutes, and all held that a worthless check given in payment for a pre-existing debt did not constitute, within the language of those statutes, the obtention of "any money, goods or other property of value" by means of such a check, we think their holdings and the rationale expressed therein are here particularly apposite inasmuch as Art. 27, § 144, by its express terms, is limited to the obtention of "money, credit, goods, wares or anything of value" by means of a check, draft or other negotiable instrument, with intent at the time of giving such *658 instrument to stop or countermand the payment thereof, and because the stopping of payment or the countermanding of such instrument effectually results in the check being rendered "worthless" with the same detriment to the person who, in reliance upon such a check, parted with "money, credit, goods, wares or anything of value," and to the same extent as if the check upon which reliance was placed by him had been dishonored because of insufficient funds.
Thus, it is palpably clear that when on May 21, 1973 the appellees issued Hoogland a check (No. 804) in the amount of $866.76 representing payment to him for services rendered during the first 20 days of May they did not obtain from him by reliance upon that check any "money, credit, goods, or wares," but rather attempted to make payment to him of an existing obligation.
Nor, as we see it, did the appellees by that check obtain "anything of value" from Hoogland. Under the rule of ejusdem generis, where the general words in a statute, such as "other thing of value," used in § 144, follow the designation of particular things or classes of subjects, such as "money, credit, goods, wares," etc., the general words in the statute will usually be construed to include only those things of the same class or general nature as those specifically antecedently mentioned. This rule is based on the supposition that if the legislature had intended the general words to be considered in an unrestricted sense it would not have enumerated the particular things.[8]See Smith v. Higinbothom, 187 Md. 115, 130, 48 A.2d 754, 761 (1946). See also Culotta v. Raimondi, 251 Md. 384, 387, 247 A.2d 519, 521 (1968). The rule is applied more strictly in the construction of penal statutes such as is Art. 27, § 144 since the rule, in its solicitude for life and liberty, requires that penal statutes be narrowly construed. Smith v. *659 Higinbothom, supra, citing State v. Fleming, 173 Md. 192, 196, 195 A. 392, 393 (1937); and Gooch v. United States, 297 U.S. 124 (1936).
It has been held that the words "other thing of value," used in a statute forbidding any candidate from expending or promising money or other thing of value in consideration of another's vote or support, signify property or something having intrinsic value measurable in money. See Smith v. Higinbothom, supra, citing Roberts v. Sturgill, 257 Ky. 194, 77 S.W.2d 789 (1934); and Van Meter v. Burns, 176 Ky. 153, 195 S.W. 470 (1917). The term "other valuable thing," as used in such statutes has been held to include everything of value provided that it has a physical attribute and does not constitute merely a pecuniary advantage. See State v. Thatcher, 35 N.J.L. 445 (1872); State v. Tower, 122 Kan. 165, 251 P. 401 (1926). See also 35 C.J.S. False Pretenses § 26, at 847 (1960).
In Shelton v. Thomas, 11 S.W.2d 254 (Tex.Civ.App. 1928), the rule of ejusdem generis was applied in construing the Texas worthless check statute, prohibiting the obtention of "any money or other thing of value" with intent to defraud by the giving of a check without sufficient funds to pay the same, in a proceeding brought by an attorney who had given legal advice to Shelton in expectation of a $500 fee and Shelton, as part payment, gave Thomas a check in the amount of $300, on which check payment had been stopped. That court, pointing out that the gist of the offense under the statute was the fraudulent acquisition of "money or other valuable thing" by the use of a worthless check, found that the legal advice given and promised did not constitute personal or movable property or money, as used in the definition of the statute; that it was not an "other thing of value" of the same general kind and class as "money."
Thus, we similarly conclude that the delivery of the May 21st check to Hoogland did not constitute the obtention of "anything of value" to the appellees from Hoogland of the same class or general nature as "money, credit, goods or wares."
*660 Our interpretation of the statute and its lack of applicability to the facts in this case is bolstered by that provision in Art. 27, § 144, which brings into play "presumptive evidence of such intent to cheat and defraud" only where there has not been a return or tender of the return of the "thing so obtained." It is obvious that the appellees could not return or tender the return to Hoogland of the personal services rendered by him during the first 20 days in May as general manager of the Great Oak Lodge.
As early as 1889 in State v. Blizzard, 70 Md. 385, 389, our predecessors held that to constitute the crime of false pretenses something within the definition of the property within the protection of the statute must have been obtained and that an instrument, without assignment or transfer, could not constitute a "valuable security" of which a party had been deprived by false pretenses, when nothing could pass to the defendant more than the bare paper upon which the instrument was written.
No man may be held guilty of violating a statute unless the act with which he is charged comes plainly within both the letter and the spirit of the statute. See Smith v. Higinbothom, supra, citing Mitchell v. State, 115 Md. 360, 365, 80 A. 1020, 1022 (1911); and Cearfoss v. State, 42 Md. 403, 407 (1875). See also Culotta v. Raimondi, supra, 251 Md. at 389, 247 A.2d at 522. In the instant case we cannot find that the facts elicited in the appellees' trial brings the case within the language of the statute (§ 144) or its intent.
Hoogland, upon receipt of the check, parted with nothing of value and the acceptance by him of the check did not discharge the corporation's debt to him for his wages. See People v. Cundiff, supra. The nonpayment of the check did not impair the existing obligation due him by Sinwellan; the check did not discharge any obligation to him for wages due and he could have sued on the debt for which the check was given, and, indeed, could have sued upon the check. See Phillips v. State, supra.
The criminal information filed in this case contained no counts charging a violation of Art. 27, § 143, which makes it a misdemeanor for one, with intent to cheat and defraud *661 another, to obtain services from such other on a promise of payment of wages therefor and who shall fail to pay for said services when payment is due and demanded, and we do not here theorize as to whether or not the facts of this case would have brought it within the scope of that statute. We have no difficulty however, for the reasons we have given, in concluding that the provisions of Art. 27, § 144, were completely inapplicable to the issuance of the check by the appellees on May 21, 1973, purportedly in payment of Hoogland's wages, independent of the issue as to whether or not the check was dishonored upon presentation factually because it was drawn against "uncollected funds," or because payment thereof had been stopped or countermanded.
Judgments of the Court of Special Appeals affirmed; costs to be paid by Kent County.
NOTES
[1] See Maryland Rule 708.
[2] Although Mrs. Rena H. Matthews was one of the cosigners with Sinclair on each of the checks she was not charged.
[3] Each of the checks (Nos. 699 and 804) was the subject of four separate counts in the information which charged Sinclair individually and Sinwellan Corp. separately with violations respectively of Maryland Code (1957, 1971 Repl. Vol. [1974 Cum. Supp.]) Art. 27, §§ 140 and 144.
[4] Counts 5 and 6 of the information.
[5] Sinclair was sentenced to a term of six months imprisonment, three months of which was ordered suspended upon the payment of restitution in the amount of $1,844.77 (the total represented by the two checks); Sinwellan Corp. was fined $1,000, which fine was suspended.
[6] No. 817 involved convictions of the same appellants following a jury trial on October 25, 1973, in the same court, for a violation of Code, Art. 27, § 142, in connection with the issuance of a check on May 20, 1973 to John Diskau, the owner of a television repair business, in the amount of $1,052.20, representing the balance due Diskau on an open account for goods and services antecedently supplied. Those convictions were similarly reversed by the Court of Special Appeals and are not here before this Court.
[7] Chapter 483 of the Acts of 1941 brought within the scope of the section "release from any debt or obligation for materials or labor in the construction of any building or buildings"; Ch. 497 of the Acts of 1963 included "services" within the scope of the statute, as well as "release from any debt or obligation for services."
[8] Compare Maryland Code (1957, 1971 Repl. Vol. [1974 Cum. Supp.]) Art. 27, § 142, encompassing within its original terms the obtention of "money, credit, goods," and by subsequent amendments, "services, release from any debt or obligation for services, or for materials or labor in the construction or repair of any building or buildings, wares or anything of value." See n. 7, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920612/ | 146 N.J. Super. 378 (1976)
369 A.2d 995
STATE OF NEW JERSEY, PLAINTIFF,
v.
ANDREW FOY, DEFENDANT.
Superior Court of New Jersey, Law Division (Criminal).
Decided October 15, 1976.
*383 Mr. John J. Trombadore, First Assistant Deputy Public Defender, for defendant (Mr. Stanley C. Van Ness, Public Defender of New Jersey, attorney).
Mr. Leonard N. Arnold, First Assistant Prosecutor, for the State of New Jersey (Mr. Stephen R. Champi, Somerset County Prosecutor, attorney).
MEREDITH, J.S.C.
This matter presents the important issue concerning the scope of the state prosecutor's power to compel an individual who has been arrested to appear in a lineup for other unrelated crimes. Andrew Foy and Zachery Foy were arrested on September 23, 1976 and charged with the armed robbery of Krauszer's Dairy Store in Franklin Township, New Jersey. While they were in jail on this charge the prosecutor attempted to hold a lineup where victims of five other Franklin Township robberies would have an opportunity to view both individuals. Andrew and Zachery Foy refused to participate in the lineups, claiming that there was no probable cause linking them to these robberies. The prosecutor then filed this motion and oral argument was heard on October 1, 1976. At oral argument he produced an affidavit by Detective Grogan which set forth the State's reasons for holding the proposed lineups. The affidavit is reproduced in the margin.[1] After reading the *384 affidavit, counsel for defendants admitted, and this court agrees, that sufficient justification to place the Foys in a lineup was established for the September 23, 1976 robbery (par. 3), the September 21, 1976 robbery (par. 4), and the September 18, 1976 robbery (par. 6). Defense counsel attacked the allegations in paragraphs 5, 7 and 8 as insufficient to establish a nexus linking either of the Foys to the alleged crimes. The prosecutor countered by asserting, in the alternative, that the requisite nexus was established and, if not, that since the individuals were already incarcerated, albeit on unrelated charges, the fact of custody deprived them from objecting to the lineups.
*385 Because of the importance of the issue involved, the court requested that briefs be submitted and set down October 15, 1976 for further argument. During this period, on October 5, 1976, the court was advised by the prosecutor that Zachery Foy had been released on bail. The prosecutor, recognizing the limited nature of his proofs and the fact that Zachery Foy was now out on the street, withdrew his request to compel Zachery Foy to appear in a lineup for the crimes alleged in paragraphs 5, 7 and 8 of Detective Grogan's affidavit. Andrew Foy, however, was unable to post bail and the prosecutor's motion with respect to the Somerset Farms robbery alleged in paragraph 5 of the affidavit is still before this court.
While the prosecutor admits that he has produced insufficient information to have this court order a lineup where the defendant is not already in custody, he argues that United States v. Anderson, 160 U.S. App. D.C. 217, 490 F.2d 785 (1974), and related cases clearly authorize the State to do so in this instance. In Anderson defendant was arrested in connection with an attempted armed robbery which occurred on April 1, 1972. While in jail on this charge he was placed in a lineup and viewed by victims of a previous robbery. The only similarity between the two robberies was they both took place in the same building. The court, in rejecting defendant's contention that he was made to appear in a lineup without a finding of probable cause, focused on the nature of the Fourth Amendment intrusion. The court held that since the defendant was already in custody, the lineup implicated no additional liberty infringements. Therefore, so long as the lineup itself comported with due process standards, a suspect already in custody could lawfully be placed in a lineup for any number of offenses. Id. at 789.[2] See also, People v. Hodge, 186 *386 Colo. 189, 526 P.2d 309 (Sup. Ct. 1974) (en banc); State v. Fierro, 107 Ariz. 479, 489 P.2d 713 (Sup. Ct. 1971); People v. Hall, 24 Mich. App. 509, 180 N.W.2d 363 (Ct. App. 1970), aff'd, 396 Mich. 650, 242 N.W.2d 377 (Sup. Ct. 1976).
This court agrees that the constitutional prohibition against unreasonable search and seizure would not be violated if the State's motion were granted. The act of having one's facial features viewed does not constitute a search, for the Fourth Amendment extends no protection to what a person "knowingly exposes to the public." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 581 (1967). See also, Cardwell v. Lewis, 417 U.S. 583, 591, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325, 335 (1974); United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67, 79 (1973); United States v. Roders, 475 F.2d 821 (7 Cir.1973); In re Toon, 364 A.2d 1177 (D.C. App., 1976). Nor is the Fifth Amendment's prohibition against self-incrimination implicated. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
*387 This court is also unwilling to rule that the movement of a defendant from his jail cell to the room in which the lineup is conducted constitutes a "seizure" within the meaning of the Fourth Amendment. Incarcerated individuals may validly be subjected to the rules of the prison "so long as the conditions of confinement do not otherwise violate the Constitution." Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451, 459 (1976). If the administrative transfer of an individual from one prison to another without a prior hearing is constitutionally sanctioned, Meachum v. Fano, supra; Rocca v. Groomes, 144 N.J. Super. 213 (App. Div. 1976), then surely temporary intraprison movement is not constitutionally infirm.
The failure of this court to rule favorably on defendant's motion based on Fourth Amendment criteria is not determinative of the issue. "Even though evidence is not within a testimonial privilege, the due process clause protects against the use of excessive means to obtain it." United States v. Doe, 405 F. 2d 436, 438 (2 Cir.1968). Considerations of due process and equal protection greatly concern this court. The equal protection issue is most readily apparent. Although Andrew and Zachery Foy, brothers, were arrested for the same armed robbery charge, only Andrew Foy, or so the prosecutor contends, can still be compelled to appear in a lineup and be viewed by victims of other crimes. The reason for this distinction is not in the heavier quantum of evidence against Andrew Foy, but that Zachery Foy is free on bail. Since Zachery Foy is presently at liberty he may not be temporarily detained except on "articulable facts [sufficient] to permit meaningful evaluation of the reasonableness of the proposed lineup." Wise v. Murphy, 275 A.2d 205, 217 (D.C. App. 1971). Thus, it appears that Zachery Foy is able to be beyond the reach of the State merely because his personal finances exceed those of his brother.
The claim that this result would constitute a denial of equal protection has been raised in a number of jurisdictions *388 and, with the exception of New York, been rejected. United States v. Anderson, 406 F.2d 719 (4 Cir.), cert. den., 395 U.S. 967, 89 S.Ct. 2114, 23 L.Ed.2d 753 (1969); United States v. Evans, 359 F.2d 776 (3 Cir.), cert. den., 385 U.S. 863, 87 S.Ct. 120, 17 L.Ed.2d 90 (1966); Rigney v. Hendrick, 355 F.2d 710 (3 Cir.1965), cert. den., 384 U.S. 975, 86 S.Ct. 1868, 16 L.Ed.2d 685 (1966); State v. Fierro, 107 Ariz. 479, 489 P.2d 713 (Sup. Ct. 1971); People v. Nelson, 40 Ill.2d 146, 238 N.E.2d 378 (Sup. Ct. 1968); People v. Stringer, 129 Ill. App.2d 251, 264 N.E. 2d 31 (App. Ct. 1970), aff'd, 52 Ill.2d 564, 289 N.E.2d 631 (Sup. Ct. 1972); People v. Hall, 24 Mich. App. 509, 180 N.W.2d 363 (Ct. App. 1970), aff'd, 396 Mich. 650, 242 N.W.2d 377 (Sup. Ct. 1976). But see People v. Vega, 51 A.D.2d 33, 379 N.Y.S.2d 419 (App. Div. 1976); Application of Mackell, 59 Misc.2d 760, 300 N.Y.S.2d 459 (Sup. Ct. 1969).
Rigney v. Hendrick, supra, is the leading case holding that there is no denial of equal protection. In Rigney the facts linking the arrested defendant to the unrelated charge were much stronger than those put forth by the prosecutor in the present case. In Rigney the defendant was in jail on a robbery charge. Items belonging to the victim of another robbery were then found in the defendant's apartment. Furthermore, the modus operandi of that robbery was similar to that used by defendant. Despite the apparent availability of a narrower ground for decision, the dissent indicated that the police had probable cause to arrest for the second robbery charge, the court ruled that an incarcerated individual could not object to being placed in a lineup for uncharged crimes. The court disposed of the equal protection argument by concluding that
Admittedly, there is a classification between those who can and those who cannot make bail. The Constitution, however, permits such a classification, and any differences here, arise solely because of the inherent characteristics of confinement and cannot constitute invidious discrimination. [at 715; emphasis supplied]
*389 This court feels that the above cases minimized the dangers inherent in a lineup, regardless of how fairly conducted, and gave insufficient recognition to the status of defendants as pretrial detainees.
There has been widespread recognition both by the courts and by commentators that erroneous identifications of criminal suspects have been a major source of faulty convictions. United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149, 1158 (1967); Levine & Tapp, "The Psychology of Criminal Identification: The Gap from Wade to Kirby," 121 U. Pa. L. Rev. 1079, 1082 (1973); Note, 48 Temple L.Q. 780, 794 (1973). Yet, despite the acknowledged unreliability of eyewitness identifications, such identifications are often the determinative issue at trial. There is "little or no effective appeal from the judgment there rendered by the witness `that's the man.'" United States v. Wade, supra, 388 U.S. at 235-236, 87 S.Ct. at 1937, 18 L.Ed.2d at 1162.
In Wade the Supreme Court provided counsel at post-indictment lineups in an effort to minimize unfair lineup procedures. Other suggestions to guard against the conviction of innocent individuals based on a misidentification include (1) supplying the defense attorney with a copy of the victim's description of the defendant; (2) that there be a minimum of six individuals in the lineup; (3) that all lineup participants wear similar clothing; (4) that only one witness view the lineup at a time, (5) and that a photograph be taken of the lineup. See generally, State v. Earle, 60 N.J. 550, 552 (1972); 31 N.J. Practice § 712 (1976). Note, "Pretrial Identification Confrontation," 45 Miss. L.J. 489, 508-510 (1974). This court believes that an additional factor be added before an individual can be compelled to appear in a lineup as a suspect, there must be some connecting evidence linking him to the crime. See United States v. Allen, 133 U.S. App. D.C. 84, 408 F.2d 1287, 1289 (1969).
*390 Defendant in this matter is a pretrial detainee. He has not been convicted of the robbery charge but is incarcerated pending trial. When such an individual is incarcerated and awaiting trial, the fact of confinement does not allow the State to arbitrarily strip him of his personal liberties. Tyrrell v. Taylor, 394 F. Supp. 9, 19 (E.D. Pa. 1975). The restraints on the liberty of a pretrial detainee must be balanced against the State's sole interest in assuring defendant's presence at trial. Unconvicted detainees are individuals who, "but for their inability to furnish bail, would remain at liberty, enjoying all the rights of free citizens until and unless convicted." Rhem v. Malcolm, 371 F. Supp. 594, 622 (S.D.N.Y.) mod., 507 F.2d 333 (2 Cir.1974); see Inmates of Suffolk Cty. Jail v. Eisenstadt, 360 F. Supp. 676, 686 (D. Mass. 1973) aff'd 494 F.2d 1196 (1 Cir.1974); Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Cal. 1972); Hamilton v. Love, 328 F. Supp. 1182, 1191 (E.D. Ark. 1972); Wilson v. Beame, 380 F. Supp. 1232, 1236 (E.D.N.Y. 1974); Cudnik v. Kreiger, 392 F. Supp. 305, 311 (N.D. Ohio 1974). This limitation of state control over pretrial detainees is grounded upon the presumption of innocence, the enforcement of which "lies at the foundation of the administration of our criminal law." Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481 (1895). See Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951); Note, "Constitutional Limitations on the Conditions of Pretrial Detention," 39 Yale L.J. 941 (1970).
This court disagrees with the underpinning of the Rigney decision where the court rejected the equal protection argument by ruling that any differential treatment of pretrial detainees stemmed from "the inherent characteristics of confinement." Rigney v. Hendrick, supra, 355 F.2d at 715.[3]
*391 The only factor which would legitimately permit a difference in the treatment of those who are free on bond, while awaiting trial, from those who are detained in jails, while awaiting trial, is the assumed risk of non-appearance of the latter. [Hamilton v. Love, 328 F. Supp. 1182, 1192 (E.D. Ark. 1972)]
Compelled appearance in a lineup for an unrelated charge bears no connection to the "assumed risk of non-appearance" of the jailed defendant. Therefore, under circumstances where the State could not detain an individual at liberty for lineup purposes, it may not force a pretrial detainee into a similar lineup. To rule otherwise would permit the State to invidiously discriminate against pretrial detainees, primarily the poor and minorities, thereby denying them the equal protection of the laws guaranteed to all individuals under the Fourteenth Amendment of the United States Constitution and inherent in Article I, Paragraph 1 of the New Jersey Constitution. See People v. Vega, 51 A.D.2d 33, 379 N.Y.S.2d 419 (App. Div. 1976); Application of Mackell, 59 Misc.2d 760, 300 N.Y.S.2d 459 (Sup. Ct. 1969).
This decision will not frustrate legitimate techniques of criminal investigation. Rather, it is in keeping with a long tradition whereby the court stands as a bulwark against arbitrary state action. A prosecutor, unlike a grand jury, does not have the power to order any individual to appear before him. See United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973); In re Toon, 364 A.2d 1177 (D.C. App. 1976). To detain a person for the purpose of conducting a lineup requires, at a minimum, a "well-grounded suspicion" that the individual is the perpetrator of the alleged crime. See e.g., State v. Grijalva, 111 Ariz. 476, 533 P. 2d 533 (Sup. Ct. 1975); Merola v. Fico, 81 Misc.2d 206, 365 N.Y.S.2d *392 743 (Sup. Ct. 1975); Wise v. Murphy, 274 A.2d 205 (D.C. App. 1971). The validity of this "well-grounded suspicion" must be tested by a neutral and detached magistrate; an affidavit by the prosecuting attorney attesting to its existence will not suffice. Wise v. Murphy, supra, 275 A.2d at 217. The affidavit submitted in support of the State's request to compel a lineup fails to meet this standard.
Sound policy reasons underlie this two-step procedure. In every lineup there is a potentiality of misidentification. "It is a fact of life that they entail a risk to a person, no matter how innocent." In re Toon, 364 A.2d 1177 (D.C. App., 1976) (dissenting opinion). Insisting that sufficient evidence linking a suspect to the crime be produced serves to outweigh the inherent suggestibility present in all lineups. United States v. Allen, 133 U.S. App. D.C. 84, 408 F.2d 1287, 1289 (1969). Where the prosecutor is unable to advance any articulable reason to support his motion to compel a lineup, no useful purpose would be served by allowing the prosecutor to place a potential defendant in a lineup as a suspect. Should the prosecutor decide to disclose additional facts to this court to support his belief that Andrew Foy was involved in other crimes, this court will of course consider the additional information. In its absence, the motion is denied.
NOTES
[1] Daniel Grogan, of full age, being duly sworn upon his oath, deposes and says that:
1. I have read the affidavit of First Assistant Prosecutor Leonard N. Arnold, given on September 29, 1976, which affidavit was given in support of an application to compel Andrew Foy and Zachery Foy to participate in a lineup.
2. I am the detective currently responsible for the investigation of the armed robberies referred to in Paragraph 3(a) through 3(e) in Mr. Arnold's affidavit.
3. Andrew Foy and Zachery Foy are currently incarcerated in the Somerset County Jail on a charge of having robbed the Krauszer's Dairy Store, Hamilton Street, Franklin Township, on September 23, 1976. They were arrested shortly after that robbery and were identified by the victims within 10 to 15 minutes after the armed robbery as being the robbers. In addition, Andrew Foy's car, a 1963 Cadillac, New Jersey Registration # 127FCE was positively identified as being used as the getaway car.
4. Andrew Foy and Zachery Foy are currently suspects in the armed robbery of the Krauszer's Dairy Store, Easton Avenue, Franklin Township, on September 21, 1976, because the descriptions given by the witnesses to the armed robbery fit Andrew Foy and Zachery Foy. In addition, two black males were seen running from the store after the robbery and the police were given the following license numbers as being that of the car in which they escaped: New Jersey Registration CFE127 and 127 CFE. In fact, Andrew Foy's car bears Registration No. 127FCE.
5. Andrew Foy and Zachery Foy are linked to the armed robbery of the Somerset Farms Dairy Store which occurred on September 12, 1976, by virtue of the fact that they fit the descriptions of the robbers (although they are slightly older than the ages given by the victims) and a 2" gun was used which is the same type of weapon recovered from their home following their arrest for the robbery of the Krauszer's Dairy Store on September 23, 1976.
6. Andrew and Zachery Foy are linked to the Arthur Treacher's Fish and Chips [robbery], which occurred on September 18, 1976, because the descriptions given by the witnesses fit Andrew Foy and Zachery Foy. In addition, a 2" gun was used in this armed robbery. In addition, in this robbery, as well as the two robberies of the Krauszer's Dairy Stores, referred to above, the robbers forced the victims to the ground at gun point.
7. Zachery Foy is linked to the armed robbery of Robert Kuntz by virtue of the fact that the victim's description of his assailant matches Zachery Foy.
8. On September 16, 1976, James Rigel was robbed at gun point. Mr. Rigel's description of the robber fits Zachery Foy.
/s/ Daniel Grogan
[2] The result reached in Anderson has been criticized by five of the Circuit Judges for the District of Columbia. In United States v. Perry, 164 U.S. App. D.C. 111, 504 F.2d 180 (1974), where a similar lineup issue was raised and denied on the basis of Anderson, Judge McGowan issued a lengthy statement commenting on the denial of a rehearing en banc.
"Anderson also goes well beyond what the Supreme Court has yet defined to be the limits of exposure of arrestees to line-up viewing. * * * To say * * * that a person in lawful custody for one crime may be freely and indiscriminately exposed to line-up viewing in respect of which there neither has been nor will be any scrutiny by judicial authority of reasonableness under the circumstances, is a very long step indeed. It requires rigorous analysis in the context of a fully developed evidentiary record, at least in the absence of more plainly controlling authority than was relied upon in Anderson." [at 184]
The Massachusetts Supreme Judicial Court, in Commonwealth v. Tarver, 345 N.E.2d 671 (1975), indicated that if presented with a situation similar to the one presently before this court, it would adopt the approach of Judge McGowan. Id. at 677. See also, United States v. Jackson, 166 U.S. App. D.C. 166, 509 F.2d 499, 503, 504 (1974).
[3] Other courts which have expressed their disagreement with the Rigney court's characterization of the status of pretrial detainees include Anderson v. Nosser, 438 F.2d 183, 190 (5 Cir.1971); Brenneman v. Madigan, 343 F. Supp. 128, 136 n. 2 (N.D. Cal. 1972); Hamilton v. Love, 328 F. Supp. 1182, 1192 (E.D. Ark. 1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1642486/ | 4 So.3d 591 (2007)
MANUEL CANEDO ROJAS
v.
STATE.
No. CR-06-0220.
Court of Criminal Appeals of Alabama.
February 16, 2007.
Decision of the alabama court of criminal appeals without opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1642470/ | 901 So.2d 271 (2005)
Steven M. COOLEY, Appellant,
v.
STATE of Florida, Appellee.
No. 1D05-0100.
District Court of Appeal of Florida, First District.
April 27, 2005.
*272 Appellant, pro se.
Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
The appellant challenges the trial court's summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he alleges that (1) the written judgment does not comport with the oral pronouncement of his sentence; (2) the controlling oral pronouncement of his sentence does not comport with the mandatory sentencing scheme in section 775.084(4)(b); and (3) the appellant may not be resentenced under the habitual felony offender statute because it would be a violation of double jeopardy. We affirm the summary denial of the appellant's second and third claims without comment. Because the appellant's first claim is facially sufficient and not refuted by record attachments, we reverse and remand for further proceedings.
On September 25, 2003, the appellant was adjudicated guilty of an unspecified second-degree felony and allegedly sentenced as a habitual violent felony offender to 30 years in prison with a minimum mandatory term of 30 years. The appellant alleges that the written judgment of 30 years in prison as a habitual violent felony offender with a minimum mandatory term of 30 years does not comport with the oral pronouncement of 30 years in prison without any such minimum mandatory term.
Generally, the oral pronouncement of sentence prevails over the written judgment. See Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003). The instant appellant properly alleges that his written judgment does not comport with the oral pronouncement of his sentence and points to the place in the record that will demonstrate this fact. This facially sufficient claim is cognizable under rule 3.800(a). See Fitzpatrick v. State, 863 So.2d 462 (Fla. 1st DCA 2004). Thus, the trial court erred in denying the appellant's first claim without attaching record portions which conclusively refute the appellant's entitlement to relief. Id.
We accordingly reverse and remand for the trial court to either attach record portions conclusively refuting the appellant's entitlement to relief, or else strike the mandatory minimum term in conformance with the trial court's oral pronouncement of the appellant's sentence.
AFFIRMED in part, REVERSED in part and REMANDED for further proceedings.
DAVIS, LEWIS and POLSTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/32530/ | 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. 03-50128
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILARDO BUSTAMANTE-OLAGUE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CR-1577-ALL-PM
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gilardo Bustamante-Olague 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.
Bustamante 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. Bustamante 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. 03-50128
-2-
pleaded guilty to an indictment which charged only simple reentry
under 8 U.S.C. § 1326(a). He argues that his sentence exceeds
the two-year maximum term of imprisonment 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.
Bustamante 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/1920517/ | 921 So.2d 692 (2006)
Chester DYSON, Petitioner,
v.
Larry CAMPBELL, Sheriff of Leon County, Florida, Respondent.
No. 1D06-0303.
District Court of Appeal of Florida, First District.
February 3, 2006.
Nancy A. Daniels, Public Defender, Joel T. Remland, Assistant Public Defender, and Brandon J. Hill, Certified Legal Intern, Tallahassee, for petitioner.
Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for respondent.
PER CURIAM.
Chester Dyson seeks habeas corpus relief, alleging that in light of his financial circumstances, the pretrial bond amount set by the circuit court is tantamount to no bond at all. We deny the petition on the merits.
Dyson is charged by information with burglary of a dwelling with person assaulted, a first degree felony punishable by life, and robbery, a second degree felony. At first appearance, his bond was set at $50,000. On Dyson's motion, that bond was subsequently reduced to $25,000 for the burglary charge and $10,000 for the robbery charge. Despite the trial court's *693 decision to reduce his bond, Dyson claims an entitlement to habeas corpus relief because his financial resources are not such that he can satisfy even the reduced bond amount.
We are well aware of the body of case law essentially holding that the setting of an excessive bond is the functional equivalent of setting no bond at all, and that the remedy of habeas corpus relief lies in such a circumstance. See, e.g., Good v. Wille, 382 So.2d 408 (Fla. 4th DCA 1980). It does not follow, however, that where a defendant testifies that he cannot meet a given bond amount, that bond is per se excessive or unreasonable. In addition to a defendant's financial resources, a trial court must consider a host of other factors in determining whether to release the defendant on bail or other conditions, and if so, what bail or other conditions are appropriate. See Fla. R.Crim. P. 3.131; § 903.046, Fla. Stat. (2005). In this case, few if any of those factors weigh in petitioner's favor, and insofar as it relates to monetary conditions, we decline to adopt petitioner's view that "reasonable conditions" of pretrial release necessarily means conditions that the defendant can reasonably meet.
We are satisfied based on our review of the record that the trial judge in this case made a conscientious and reasoned decision concerning the appropriate conditions of pretrial release. In doing so, the trial judge neither committed legal error nor abused her discretion. Accordingly, the petition for writ of habeas corpus is denied.
PETITION DENIED.
BARFIELD, WOLF and BROWNING, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/62253/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 13, 2008
No. 07-10098 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20807-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK JOHNSON, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 13, 2008)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Frederick Johnson, Jr., appeals his conviction and 97-month sentence for
conspiracy to possess with intent to distribute crack cocaine, in violation of 21
U.S.C. § 846. Johnson raises several issues on appeal, which we address in turn.
After review, we affirm Johnson’s conviction and sentence.
I.
Johnson first asserts the district court erred in denying his motion to
suppress his post-arrest statements because the rights waiver form that he signed
did not adequately inform him of his constitutional rights.
We review a district court’s findings of fact in resolving a motion to
suppress for clear error and the court’s application of the law to those facts de
novo. United States v. Gil, 204 F.3d 1347, 1350 (11th Cir. 2000). A suspect “held
for interrogation must be clearly informed that he has the right to consult with a
lawyer and to have the lawyer with him during interrogation under the system for
protecting the privilege we delineate today.” Miranda v. Arizona, 86 S. Ct. 1602,
1626 (1966). “Opportunity to exercise these rights must be afforded to him
throughout the interrogation.” Id. at 1630. The Supreme Court later clarified,
however, that Miranda warnings do not have to be provided in the exact form as
stated in that decision, as “no talismanic incantation is required to satisfy its
strictures.” Duckworth v. Eagan, 109 S. Ct. 2875, 2880 (1989) (quotations
2
omitted). The Court further found that, where the defendant was informed, inter
alia, of his right to speak to an attorney before and during questioning and to stop
the questioning at any time and speak with an attorney, these statements “touched
all of the bases” required by Miranda. Id.; see also United States v. Street, 472
F.3d 1298, 1311-12 (11th Cir. 2006), cert. denied, 127 S. Ct. 2988 (2007) (noting
the defendant in Duckworth was “fully and completely advised of all of his
rights”). In order for a defendant’s incriminatory statements to be admissible, the
government must prove by a preponderance of the evidence the defendant made a
knowing, voluntary, and intelligent waiver of his Miranda rights. United States v.
Farris, 77 F.3d 391, 396 (11th Cir. 1996).
Although the rights waiver form Johnson signed did not specifically advise
him of his right to consult with an attorney during questioning, it advised him he
had the right to talk to a lawyer before questioning, to have a lawyer present with
him during questioning, and to stop the questioning at any time until he spoke with
a lawyer. Because Miranda requires a suspect be informed of his rights to “consult
with a lawyer and to have the lawyer with him during interrogation,” and Johnson
was apprised of both of these rights, the waiver form was sufficient, and Johnson
made a knowing, voluntary, and intelligent waiver of his rights. See Miranda, 86
S. Ct. at 1626, 1630; see also Farris, 77 F.3d at 396. Accordingly, the district
3
court did not err in denying Johnson’s motion to suppress his post-arrest
statements.1
II.
Johnson next contends there was an insufficient basis for the voice
identification Detective Tillman made of Johnson. Johnson did not object on this
basis at trial, so we review this claim under a plain error standard. See United
States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). “Plain error occurs where
(1) there is an error; (2) that is plain or obvious; (3) affecting the defendant’s
substantial rights in that it was prejudicial and not harmless; and (4) that seriously
affects the fairness, integrity or public reputation of the judicial proceedings.”
United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002).
Voice identification testimony can be admitted only after it is determined
sufficient evidence supports a finding “the matter in question is what its proponent
claims.” Fed. R. Evid. 901(a). A speaker’s voice may be identified by opinion
testimony “based upon hearing the voice at any time under circumstances
1
Johnson also summarily argues his statements should not have been admitted because
he was impermissibly questioned by an officer prior to waiving his Miranda rights and that he
felt threatened by Detective Wayne Tillman. The magistrate judge made an adverse credibility
determination regarding Johnson’s testimony at the suppression hearing, which the district court
affirmed. Because Johnson has not offered any other evidence on these issues or shown how the
district court committed clear error when it determined his testimony was not credible, these
arguments are without merit. See United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004)
(reviewing a district court’s credibility findings for clear error).
4
connecting it with the alleged speaker.” Fed. R. Evid. 901(b)(5). “Once a witness
establishes familiarity with an identified voice, it is up to the jury to determine the
weight to place on the witness’s voice identification.” Brown v. City of Hialeah,
30 F.3d 1433, 1437 (11th Cir. 1994).
Detective Tillman testified he heard Johnson’s voice three times prior to the
date on which he made his identification. This was sufficient to establish his
familiarity with Johnson’s voice. See Fed. R. Evid. 901(b)(5). Accordingly, the
district court did not plainly err in permitting the voice identification to go to the
jury, as it was up to the jury to determine the weight to place on Detective
Tillman’s identification. See Brown, 30 F.3d at 1437.
III.
Johnson also asserts the district court erred in prohibiting him from eliciting
the exculpatory portions of his post-arrest statement from Detective Tillman.
Because Johnson did not make an objection to the limitation of Detective Tillman’s
cross-examination during the trial, we review the district court’s evidentiary ruling
for plain error. See Baker, 432 F.3d at 1202. “When a writing or recorded
statement or part thereof is introduced by a party, an adverse party may require the
introduction at that time of any other part or any other writing or recorded
statement which ought in fairness to be considered contemporaneously with it.”
5
Fed. R. Evid. 106. In light of Federal Rule of Evidence 611(a)'s requirement the
district court exercise “reasonable control” over witness interrogation and the
presentation of evidence to make them effective vehicles “for the ascertainment of
truth,” Rule 106 has been extended to encompass oral conversations. United States
v. Range, 94 F.3d 614, 621 (11th Cir. 1996); Fed. R. Evid. 611(a). Accordingly,
the exculpatory portion of a defendant's post-arrest statement should be admitted if
it is: (1) relevant to an issue in the case; and (2) necessary to clarify or explain the
portion received. Range, 94 F.3d at 621.
The district court did not plainly err by limiting the scope of Johnson’s
cross-examination of Detective Tillman because, although Johnson’s exculpatory
statements may have been relevant to his involvement in the offense conduct
charged, they were not necessary to clarify those portions of the post-arrest
interview related by the witness. See id. Detective Tillman’s testimony was
unambiguous and did not require any clarification or explanation, and regardless,
the fact Johnson also stated in his interview that he was not involved in any
criminal activity would not have clarified or explained the statements to which
Detective Tillman testified.
6
IV.
Johnson contends the evidence presented at trial was insufficient to support
his conspiracy conviction, as there was no evidence presented that he ever
possessed any drugs or marked money used in the drug transactions. Where, as
here, the issue of sufficiency of the evidence has been preserved, we review the
sufficiency of the evidence to support a conviction de novo, “viewing the evidence
in the light most favorable to the government and drawing all reasonable inferences
and credibility choices in favor of the jury’s verdict.” See United States v.
Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000). The district court's denial of a
motion for judgment of acquittal “will be upheld if a reasonable trier of fact could
conclude that the evidence establishes the defendant's guilt beyond a reasonable
doubt.” Id. Determinations of the credibility of witnesses fall within the exclusive
province of the jury and may not be revisited by us unless the testimony is
“incredible as a matter of law.” United States v. Calderon, 127 F.3d 1314, 1325
(11th Cir. 1997).
“To sustain a conviction for conspiracy to possess cocaine with intent to
distribute, the government must prove beyond a reasonable doubt that (1) an illegal
agreement existed; (2) the defendant knew of it; and (3) the defendant, with
knowledge, voluntarily joined it.” United States v. Hernandez, 433 F.3d 1328,
7
1333 (11th Cir. 2005) (quotations omitted). “Although mere presence at the scene
of a crime is insufficient to support a conspiracy conviction, presence nonetheless
is a probative factor which the jury may consider in determining whether a
defendant was a knowing and intentional participant in a criminal scheme.” Id.
(quotations omitted). Moreover, a defendant’s participation in a conspiracy can be
established by circumstantial evidence, and the government need only prove that
the defendant knew the general nature and scope of the conspiracy. United States
v. Anderson, 326 F.3d 1319, 1329 (11th Cir. 2003).
The evidence was sufficient to sustain Johnson’s conspiracy conviction.
Although there was no photographic or recorded evidence, and Johnson was not
found in possession of any marked money or drugs, Detective Tillman’s testimony
allowed the jury to make the following conclusions: (1) Johnson and Malcolm
Williams called the CI together to arrange the drug transaction, after which
Johnson called the CI on his own and told the CI to go through him for any other
deals with Williams; (2) Johnson made specific references to narcotics in both of
the conversations, showing he knew the nature of the illegal agreement; and
(3) Johnson picked up the CI and drove him to his meeting with Williams,
participated in the meeting, and then drove the CI back to his original location.
Because Detective Tillman’s testimony established Johnson facilitated the
8
transaction and participated in the discussions in the parking lot before the money
and drugs were exchanged, a reasonable trier of fact could conclude Johnson was
guilty beyond a reasonable doubt, as he knew of the existence of the illegal
agreement and, with knowledge, voluntarily joined it. See Hernandez, 433 F.3d at
1333. Moreover, it was the province of the jury to assess the credibility of
Detective Tillman, and it could find Johnson guilty beyond a reasonable doubt
based on this testimony alone. See Calderon, 127 F.3d at 1324. Accordingly,
sufficient evidence supported Johnson’s conviction.
V.
Johnson also contends he was denied a fair trial because the prosecutor made
an improper burden-shifting argument and improperly attempted to bolster the
credibility of one of its witnesses during its closing argument. Prosecutorial
misconduct during closing argument, including an improper burden-shifting
argument and improper vouching, requires a new trial only where the remarks were
improper and prejudiced the defendant’s substantial rights. United States v.
Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998). “A defendant’s substantial rights
are prejudicially affected when a reasonable probability arises that, but for the
remarks, the outcome of the trial would be different.” Id. (quotations omitted).
9
A. Burden shifting
Johnson objected to the prosecutor’s alleged burden-shifting comment at
trial, and therefore, the claim of prosecutorial misconduct, which generally
involves mixed questions of law and fact, is reviewed de novo. See United States
v. Noriega, 117 F.3d 1206, 1218 (11th Cir. 1997). “[W]hile a prosecutor may not
comment about the absence of witnesses or otherwise attempt to shift the burden of
proof, it is not improper for a prosecutor to note that the defendant has the same
subpoena powers as the government, particularly when done in response to a
defendant's argument about the prosecutor's failure to call a specific witness.”
United States v. Hernandez, 145 F.3d 1433, 1439 (11th Cir. 1998) (quotations
omitted). Moreover, any potential prejudice regarding burden-shifting is
diminished by the prosecutor’s statement during closing argument “that the burden
of proof [is] theirs to carry and by the trial court’s explicit instruction after closing
arguments to that same effect.” Id.
The prosecutor’s comment the defense had the same subpoena power as the
Government was made in response to Johnson’s statement regarding a Government
witness that was not called to testify. Such a statement is not improper,
particularly when made in response to the defendant’s argument about the
government’s failure to call a specific witness. See Hernandez, 145 F.3d at 1438.
10
Moreover, any potential prejudice this statement may have caused was alleviated
by: (1) the prosecutor’s statement that the Government held the burden of proof;
and (2) the court’s instruction to the jury that it was not improper for the prosecutor
to note the defendant had the same subpoena powers as the Government, but the
Government could not shift the burden of proof to the defense. See id. at 1439.
Thus, the prosecutor’s comment was not inappropriate, and did not prejudice
Johnson’s substantial rights.
B. Improper vouching
Because Johnson did not object to the prosecutor’s comment until he filed
his motion for a new trial, this comment is reviewed for plain error. See United
States v. Newton, 44 F.3d 913, 920 (11th Cir. 1995) (“[a]bsent a contemporaneous
objection, the propriety of the [g]overnment’s closing argument and alleged
prosecutorial misconduct in improperly vouching for a witness’ credibility are
reviewed under a plain error standard”). “Attempts to bolster a witness by
vouching for his credibility are normally improper and constitute error.” Id. We
have held:
When faced with a question of whether improper vouching occurred
we ask: whether the jury could reasonably believe that the prosecutor
was indicating a personal belief in the witness’s credibility. In
applying this test, we look for whether (1) the prosecutor placed the
prestige of the government behind the witness by making explicit
assurances of the witness’s credibility, or (2) the prosecutor implicitly
11
vouched for the witness’s credibility by implying that evidence not
formally presented to the jury supports the witness’s testimony.
United States v. Castro, 89 F.3d 1443, 1456-57 (11th Cir. 1996) (quotations and
citation omitted). When the defense attacks the credibility of the government’s
witness, however, the prosecutor is “entitled to argue fairly to the jury the
credibility of the government and defense witnesses.” United States v. Eley, 723
F.2d 1522, 1526 (11th Cir. 1984).
The prosecutor’s comment that Detective Tillman would use a valid CI
because he would not risk his career did not amount to improper bolstering.
During his closing statement, Johnson attacked Detective Tillman’s credibility,
stating he was desperate to use the CI as his ticket to federal agency employment.
In direct response to this attack, the prosecutor told the jury that Detective Tillman
was not so desperate to become a federal agent that he would risk his career by
using a CI that was “not valid.” A jury could not reasonably have believed the
prosecutor was placing the prestige of the Government behind Detective Tillman
by making an assurance about his credibility, or that he was implying evidence not
presented to the jury supported the witness’s testimony. See Castro, 89 F.3d at
1456-57. Instead, the prosecutor’s comment was a fair argument defending the
credibility of the Government’s witness. Accordingly, the prosecutor’s remark was
not improper and did not prejudice Johnson’s substantial rights.
12
VI.
Finally, Johnson contends the district court erred at sentencing because the
five criminal history points it assessed against him over-represented his criminal
history, as all five points were related to the same prior offense. We review de
novo a claim the district court engaged in impermissible double counting during its
calculation of the advisory guidelines range. United States v. Phillips, 363 F.3d
1167, 1168 n.2 (11th Cir. 2004). “‘Impermissible double counting occurs only
when one part of the Guidelines is applied to increase a defendant’s punishment on
account of a kind of harm that has already been fully accounted for by application
of another part of the Guidelines.’” Id. at 1168 (quotations omitted). Double
counting is permissible when “(1) the Sentencing Commission intended the result,
and (2) each guideline section in question concerns conceptually separate notions
related to sentencing.” Id. (quotations omitted).
Section 4A1.1(d) of the Sentencing Guidelines requires an addition of two
points to a defendant’s criminal history calculation if “the defendant committed the
instant offense while under any criminal justice sentence, including probation,
parole, supervised release, imprisonment, work release, or escape status.” U.S.S.G.
§ 4A1.1(d). Section 4A1.1(e) provides that two criminal history points should be
added “if the defendant committed the instant offense less than two years after
13
release from imprisonment on a sentence counted under [subsection] (a) or (b) . . . .
If 2 points are added for item (d), add only 1 point for this item.” U.S.S.G.
§ 4A1.1(e). The commentary to § 4A1.1 recognizes the potential overlap of
subsections (d) and (e), but notes their importance to addressing separate
sentencing concerns, stating that subsection (d) “implements one measure of
recency . . . [subsection (e)] implements another measure of recency . . . [,]” and “a
defendant who falls within both (d) and (e) is more likely to commit additional
crimes; thus, (d) and (e) are not completely combined.” U.S.S.G. § 4A1.1,
comment. (backg’d). The commentary provides that, because of their potential
overlap, the combined impact of the two subsections is limited to three points. Id.
The Sentencing Commission intended for § 4A1.1(d) and (e) to apply
together in certain cases, as it specifically addressed the potential overlap and
noted that, although their combined effect would be to add an additional three
points to a defendant’s criminal history instead of four, they were not completely
combined. See id.; see also Phillips, 363 F.3d at 1168. Therefore, the district
court’s double counting was permissible, and the court’s sentencing calculations
were correct.
14
VII.
First, the district court did not err in denying Johnson’s motion to suppress
his post-arrest statements because he was fully informed of his rights and
voluntarily chose to waive them before speaking to law enforcement. Second,
Detective Tillman heard Johnson’s voice three times prior to identifying it on the
date on which the offense occurred, so the district court did not plainly err in
permitting his voice identification. Third, the district court did not plainly err in
limiting the scope of Johnson’s cross-examination of Detective Tillman by not
allowing Johnson’s exculpatory post-arrest statements to be admitted, because the
statements were not necessary to clarify those portions of the post-arrest interview
related by the witness. Fourth, the evidence presented was sufficient for
conviction, as it showed that Johnson facilitated a drug transaction between two
individuals. Fifth, the prosecutor did not improperly shift the burden to the defense
during closing argument because he responded to a statement Johnson made in his
closing argument and only told the jury the defense had the same subpoena power
as the Government. The prosecutor also did not improperly bolster the credibility
of a witness, as his comment was a fair argument defending the credibility of the
witness after it was attacked by the defense. Finally, because the district court
applied two subsections of the Sentencing Guidelines that were intended to address
15
different sentencing issues and be applied together when necessary, it did not err in
calculating Johnson’s criminal history category. Accordingly, we affirm Johnson’s
conviction and sentence.
AFFIRMED.
16 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1622158/ | 13 So. 3d 99 (2009)
GEICO INDEMNITY INSURANCE COMPANY, a foreign for-profit corporation, Appellant,
v.
Laurie REED, as Personal Representative of the Estate of Barton Reed, Appellee.
No. 4D08-575.
District Court of Appeal of Florida, Fourth District.
May 20, 2009.
Caryn L. Bellus of Kubicki Draper, Miami, for appellant.
*100 Bard D. Rockenbach of Burlington & Rockenbach, P.A., and Michael S. Smith of Lesser, Lesser, Landy & Smith, PLLC, West Palm Beach, for appellee.
STEVENSON, J.
GEICO Indemnity Insurance Company, the defendant below, appeals the trial court's award of final summary judgment in favor of Laurie Reed, the personal representative of the Estate of Barton Reed. We reverse and remand because whether Barton Reed or his corporation, B & G Central Station Signals, Inc., owned the van involved in the fatal accident remains a genuine issue of material fact, removing this case from the purview of summary judgment.
Barton Reed died in a car accident caused by an uninsured/underinsured motorist. He had been driving a 1999 Ford van. His widow, Laurie Reed, filed a claim with GEICO for uninsured motorist benefits. GEICO denied her claim, explaining that the policy specifically excluded uninsured motorist coverage in this instance because Barton Reed owned the vehicle involved in the accident, but that vehicle was not insured by GEICO. See Gov't Employees Ins. Co. v. Douglas, 654 So. 2d 118 (Fla.1995) (approving the uninsured motorist benefits exclusion). Laurie Reed sought a declaratory judgment on the ground that B & G, not Barton Reed, owned the van.
Barton Reed was the president and sole shareholder of B & G, a security company he operated from his home. The 1999 Ford van was titled and registered in Barton Reed's name alone. Generally, a name on a certificate of title to a motor vehicle creates a presumption of ownership. Johnson v. Sentry Ins., 510 So. 2d 1219, 1220 (Fla. 5th DCA 1987). However, "[t]he name on the title is not the litmus test for determining who owns a vehicle for insurance purposes." State Farm Mut. Auto. Ins. Co. v. Hartzog, 917 So. 2d 363, 364-65 (Fla. 1st DCA 2005). Laurie Reed filed an affidavit explaining that she mistakenly titled the van in Barton Reed's name, but it actually was used solely as a business vehicle by B & G. We conclude that a finder of fact should determine the credibility of Laurie Reed's affidavit and whether it sufficiently rebuts the presumption of ownership.
Whether Laurie Reed is entitled to uninsured motorist benefits from GEICO depends on whether Barton Reed or B & G owned the 1999 Ford van. "`If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.'" Fieldhouse v. Tam Inv. Co., 959 So. 2d 1214, 1216 (Fla. 4th DCA) (quoting Winston Park, Ltd. v. City of Coconut Creek, 872 So. 2d 415, 418 (Fla. 4th DCA 2004)), review denied, 969 So. 2d 1018 (Fla.2007). We find the question of ownership in this case poses a genuine issue of material fact, so we reverse the order granting final summary judgment and remand for further proceedings.
Reversed and remanded.
POLEN and DAMOORGIAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920444/ | 921 So. 2d 219 (2006)
STATE of Louisiana, Appellee,
v.
Aristede Francois BURD, Appellant.
No. 40,480-KA.
Court of Appeal of Louisiana, Second Circuit.
January 27, 2006.
*220 W. Jarred Franklin, Louisiana Appellate Project, for Appellant.
*221 Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Bill Edwards, Dhu Thompson, Assistant District Attorneys, for Appellee.
Before CARAWAY, MOORE and LOLLEY, JJ.
CARAWAY, J.
In this case, the defendant was convicted of aggravated rape after the jury rejected his defense of a consensual sexual encounter with the victim. He was sentenced to life imprisonment at hard labor without benefits. Finding sufficiency of the evidence and no reversible error in other issues raised by defendant, we affirm.
Facts
On February 18, 2003, the defendant, Aristede Francois Burd, offered a ride to A.T., who was 31 weeks pregnant, as she walked home from a casino in downtown Shreveport. The defendant told the victim that his name was "Charles." A.T. testified that she became uncomfortable when the defendant suggested that they "pick somebody up." She opened the car door at a stop light and told him unless he took her directly home she would get out of the car. He promised "he wasn't going to do anything," and she closed the door. After driving to A.T.'s apartment complex, Burd assaulted her with a knife as she exited the vehicle and threatened to kill her and her unborn baby if she did not cooperate. The defendant took her inside her apartment where she was raped at knife point. A.T. testified that at one point during the attack, her hand was cut and she went into the bathroom to rinse off the blood from her wounded hand. A.T. testified that when she came out of the bathroom, defendant had left her apartment. After unsuccessfully attempting to copy the license plate number from the defendant's vehicle, A.T. ran to find the security guard for the apartment building. When she could not find the security guard, she called 9-1-1 from a nearby pay phone.
Shreveport Fire Department personnel responded to the call and found the victim in the parking lot with blood on her hands and a cut on her right palm. Officer Angela Pell of the Shreveport Police Department obtained a description of the vehicle and information that the defendant lived near the LSU Medical Center Hospital. Another officer located the defendant's vehicle parked at an apartment complex near the hospital.
The victim was transported to the hospital for treatment of her hand wound and physical examination for rape. Connie Brown of the North Louisiana Criminalistics Laboratory testified that DNA tests conducted on the profile of a breast swab obtained from the rape kit examination was consistent with being a mixture of DNA from A.T. and the defendant.
Officer John Delgado collected evidence at the victim's apartment, including her clothes which he found in a hamper by the bed. He observed blood and bodily fluids on the sheets and mattress. No knife was found in the apartment. Once the victim identified the defendant in a photo lineup, Detective Kim Rei led a search of the defendant's apartment almost 24 hours after the incident was reported. Tennis shoes stained with blood, two shirts, and two kitchen knives with black handles were seized. The defendant's vehicle was impounded and searched. Officer Rei took defendant's statement in which he asserted that his sexual conduct with A.T. was consensual. The confession was played for the jury.
At trial, evidence of a prior sex crime by Burd was presented. The victim, K. H., testified that, in 1999, the defendant forced her into a car and threatened her *222 with a black-handled kitchen knife. She stated that while she was in the car, the defendant raped her twice and threatened to cut her if she screamed. The defendant then took her to his apartment and raped her again.
The defendant was convicted of aggravated rape and sentenced to life imprisonment without benefits.
Discussion
Appellant argues that there is insufficient evidence to support his conviction for aggravated rape, that the sexual encounter was consensual and that the state failed to prove lack of consent therefor. He claims that inconsistencies in the victim's testimony at trial and statements she made during the investigation destroyed her credibility.
La. R.S. 14:42(A) defines aggravated rape as a rape committed where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim's age shall not be a defense.
(5) When two or more offenders participated in the act.
(6) When the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance.
The proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So. 2d 347, writ denied, 97-1203 (La.10/17/97), 701 So. 2d 1333. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So. 2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So. 2d 610, writ denied, 98-2723 (La.2/5/99), 737 So. 2d 747.
This court's authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So. 2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So. 2d 508, writ denied, State ex rel. Gilliam v. State, 02-3090 (La.11/14/03), 858 So. 2d 422. In the absence of internal contradiction or irreconcilable *223 conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So. 2d 678, writ denied, 00-2726 (La.10/12/01), 799 So. 2d 490; State v. Simpson, 39,268 (La. App.2d Cir.1/26/05), 892 So. 2d 694.
The primary issue on appeal is whether the sexual intercourse between the defendant and the victim occurred without the victim's consent. In his statement to police, the defendant confirmed that A.T. needed a ride home to her apartment. He said he took her to her apartment and that one thing led to another and they had sex. Burd's explanation for A.T.'s cut and the bloody scene found in her apartment was that after the sexual encounter, A.T. became depressed and suicidal. He claimed that A.T. produced a knife and that in his efforts to prevent her from harming herself, her hand was cut. He then admits that he left the scene without rendering further aid.
In contrast, A.T. testified that she arrived at the casino at 11:00 or 11:30 p.m. and left after a couple of hours. She had lost her money and had no fare for a cab. A few blocks from the casino, the defendant stopped and opened the door for her from inside the vehicle. When she tried to get out of the car at her apartment, she had difficulty opening the door and the defendant immediately came around and opened the door for her. As she exited the vehicle, Burd pulled a knife from behind him, put it on her stomach, and told her that they were going into her apartment. At that point, he threatened to kill her and her baby if she did not follow his directions.
Officer Pell testified that when she obtained A. T.'s initial statement, she was crying and very shaken up. The victim was so upset, she had trouble talking. The victim told Officer Pell that the defendant pulled a knife on her in the apartment building parking lot and tried to force her to have intercourse in the vehicle. Dr. Behm testified that A.T. reported that the defendant took her home then pulled out a knife.
Burd attempts on appeal to point out certain alleged discrepancies in the details of A.T.'s statements and actions which the defense implies should elevate Burd's account of the parties' encounter over A.T.'s account. None of these details were of such material content to seriously call into question A.T.'s account of a forcible rape. The parties were not prior acquaintances; A.T. was 7-1/2 months pregnant; and Burd confirmed that they first encountered each other by chance only because of her need for a ride home. Burd's version of the attempted suicide and his unexcused abandonment of the injured woman are easily beyond belief when considered in the context of all other facts shown by the evidence. Burd's argument therefore goes to credibility which was for the jury to decide. The jury could easily reject Burd's incredible story and, accepting A.T.'s account and the corroborating evidence, find guilt beyond a reasonable doubt. The assignment of error regarding the sufficiency of the evidence is without merit.
In his next assignment, defendant argues that the trial court erred in allowing evidence of the prior crime involving K.H. Burd asserts that there was such factual dissimilarity between the two sexual assaults that the prejudicial effect of admitting the evidence completely outweighed its probative value. The state argues that defendant made no contemporaneous objection to the evidence and therefore appellant has waived any right to appeal this issue.
*224 When an accused is charged with a crime involving sexually assaultive behavior, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403. La. C.E. art. 412.2. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403.
The state filed a notice of intent to introduce evidence of other crimes under the authority of La. C.E. art. 412.2, including information concerning five female victims. K.H. was named first among those victims. A hearing was held regarding the admissibility of the defendant's statements concerning this case. No objection was made to the court's ruling that the statements were admissible at trial. Likewise, at trial when the evidence was introduced, no objection was made.
K.H. testified that defendant raped her on April 3, 1999, when she was 14 years old. She was walking to the bus stop when the defendant grabbed her and forced her into the backseat of his car. After driving to a remote location, he raped her twice, and threatened her with a knife if she screamed. Then, defendant took her to his apartment where she was again raped. K.H. described the knife as a "kitchen" or "butcher" knife with a black handle.
While the state is correct that this issue was not properly preserved for appeal, we find no merit in Burd's arguments concerning the lack of relevance of the other assault. Burd suggests that the only relevant prior crime behavior would have to include some form of initial consensual behavior between the victim and Burd, similar to what occurred in this case between the parties before they reached A.T.'s apartment. The crime in this case began when Burd assaulted A.T. with a knife and forced her into an apartment where the rape occurred. There was a similar pattern of behavior present in the prior rape of K.H., and we find that after employing the test of La. C.E. art. 403, the evidence was admissible. This second assignment of error is without merit.
In his next assignment, defendant argues that the knives were wrongfully admitted into evidence and that the victim's testimony that one knife was similar to the one used during the commission of the offense was insufficient to support admission into evidence, citing State v. Manieri, 378 So. 2d 931 (La.1979); and State v. Gray, 526 So. 2d 1268 (La.App. 3d Cir. 1988), writ denied, 531 So. 2d 468 (La. 1988).
La. C.E. art. 401 defines relevant evidence as 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. Furthermore, all relevant evidence is admissible unless constitutionally prohibited. La. C.E. art. 402. The trial court is given great discretion in determining whether evidence is relevant, and absent a clear abuse of discretion, rulings on relevancy of evidence should not be disturbed on appeal. State v. Stowe, 93-2020 (La.4/11/94), 635 So. 2d 168.
Before demonstrative evidence can be admitted it must be shown that, more probably than not, the evidence is connected to the case. That foundation can be laid by establishing a chain of custody of the evidence, or by visual identification. Once that foundation is established, the *225 weight to be given the evidence is a question for the jury. State v. Landry, 388 So. 2d 699 (La.1980), cert. denied, 450 U.S. 968, 101 S. Ct. 1487, 67 L. Ed. 2d 618 (1981). The danger in admitting evidence not shown to be connected to the case is that the jury will infer such a connection from a mere viewing of the evidence, although that connection is not proved. Id.
In State v. Manieri, supra, the Louisiana Supreme Court held:
It is error to introduce into evidence weapons which are allegedly "similar" to the ones used in the murder. The jurors naturally tend to infer a connection between the weapon and the murder simply from a mere viewing of the material object, although such a connection is not proved. The viewing tends without proof prejudicially to associate the accused with the deadly weapon. Because the potential for prejudicial effect may outweigh any probative value such evidence may possess, it is our view that a trial judge flirts with prejudicial error when he permits such evidence to be introduced.
In that case (and several subsequent cases), the erroneous admission of such evidence was subject to harmless error analysis. Id. See also State v. Anthony, 98-406 (La.4/11/00), 776 So. 2d 376, cert. denied, 531 U.S. 934, 121 S. Ct. 320, 148 L. Ed. 2d 258 (2000); State v. Lee, 38,114 (La.App.2d Cir.3/3/04), 868 So. 2d 256, writ denied, 04-1128 (La.10/8/04), 883 So. 2d 1027; State v. Lewis, 97-2854 (La.App. 4th Cir.5/19/99), 736 So. 2d 1004, writ denied, 99-2694 (La.3/17/00), 756 So. 2d 325. A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused. La. C. Cr. P. art. 921.
During the victim's testimony, she described the knife used during the attack as a "kitchen knife." The state also showed the victim a knife found in Burd's apartment (exhibit S-6), which she described as a little bigger than the knife the defendant used. She testified that the other knife in exhibit S-7 was similar to the knife used by the defendant.
Both knives were seized during the search of defendant's apartment. Exhibit S-6 was found in the dishwasher and exhibit S-7 was on the counter. The knives were admitted into evidence over defense counsel's objections on the grounds of lack of foundation and relevancy.
Given the weakness in the testimony of A.T. and the generic knives in question, the state failed to prove that either knife admitted into evidence was the knife used in committing the rape. Therefore, under the holding in Manieri, supra, it was error for the trial court to admit the knives into evidence. Yet, as shown by State v. Gray, supra, in which the state introduced a rifle that was identical to the one purchased by the defendant and used as the murder weapon, the improper admission of such evidence may be harmless error.
In the instant case, the victim stated that exhibit S-7 appeared similar to the knife the defendant used in committing the rape. The state then established where the knives were found and the procedures used in collecting the evidence. Officer Delgado testified that no knives were found in the victim's apartment which corroborated her statement that she had recently moved and had no knives. During closing arguments, the state did not refer to either knife as the weapon used during the incident. As previously noted, the defendant's conviction is overwhelmingly supported by testimony and the physical evidence of the crime. Defendant's taped confession admits that a knife was involved and that he was present *226 when A.T. was cut. The jury's verdict was not attributable to this error regarding a fact that was clearly proven otherwise. This assignment is without merit.
In his final assignment, the defendant argues that the trial court imposed an unconstitutionally excessive sentence. Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:42(D)(1).
The defendant neither objected contemporaneously to the sentence nor filed a motion to reconsider sentence. When a defendant fails to file a motion to reconsider sentence, the appellate court's review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So. 2d 1059 (La.1993). The trial court failed to cite any aggravating or mitigating factors listed under La. C. Cr. P. art. 894.1. However, where there is a mandatory sentence, there is no need for the trial court to justify, under article 894.1, a sentence it is legally required to impose. State v. Hill, 40,023 (La.App.2d Cir.9/21/05) 911 So. 2d 379; State v. Stokes, 36,212 (La.App.2d Cir.9/18/02), 828 So. 2d 631, writ denied, 02-2807 (La.9/5/03), 852 So. 2d 1023; State v. Stevens, 33,700 (La.App.2d Cir.8/23/00), 766 So. 2d 634. Considering the violent nature of the crime and the defendant's criminal history, the sentence imposed was not excessive. This assignment is without merit.
Decree
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920452/ | 921 So. 2d 32 (2006)
Joel PAREDES, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D05-500.
District Court of Appeal of Florida, Third District.
January 25, 2006.
Rehearing Denied March 9, 2006.
*33 Joel Paredes, in proper person.
Charles J. Crist, Jr., Attorney General, for appellee.
Before FLETCHER, WELLS, and SHEPHERD, JJ.
FLETCHER, Judge.
Joel Paredes seeks to reverse an order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.
Paredes was convicted after a jury trial of second degree murder and attempted second degree murder for his participation in a schoolyard driveby shooting. He confessed to being the shooter while his brother drove the car. Paredes was sentenced to an upward departure sentence of forty years. His judgment and sentence were affirmed by this court upon direct appeal. Paredes v. State, 760 So. 2d 167 (Fla. 3d DCA 2000). Paredes timely raised eight issues in his petition for post-conviction relief.
*34 First, Paredes claims that his trial counsel was ineffective for failing to move to strike the jury panel based on allegedly improper prosecution questioning. This claim fails to raise a viable claim of Strickland[1] ineffectiveness given the record of defense counsel's repeated objections to the state's "pre-trying" the case to the jury. [Petitioner's Appendix E]. Further, the issue was raised at trial and properly preserved for appellate review; it is improper to attempt now to fashion the issue as an ineffectiveness claim. See, e.g., Parker v. State, 611 So. 2d 1224 (Fla.1992).
Next, Paredes claims that counsel was ineffective for failing to challenge for cause or use peremptory strikes against three jurors. This claim fails because Paredes does not demonstrate any prejudice in these jurors, or how their seating on the jury panel resulted in an unfair trial. Trial counsel's failure to challenge them, without more, is not evidence of ineffectiveness. See Jenkins v. State, 824 So. 2d 977 (Fla. 4th DCA 2002)("[T]he Strickland requirement of actual prejudice imposes a more stringent test before a new trial can be ordered for the failure to object to a person's service on a jury.").
Paredes claims that his trial counsel failed to preserve "meritorious issues." Paredes lists seven general areas where he believes his trial counsel should have made objections, but he fails to explain how these alleged omissions prejudiced the proceedings or negatively affected the outcome of his trial. The defendant bears the burden of establishing a prima facie case based upon a legally valid claim; mere conclusory allegations are not sufficient to meet this burden. See Kennedy v. State, 547 So. 2d 912 (Fla.1989).
Paredes further asserts that his trial counsel failed to proffer testimony of a defense eyewitness. However, the record shows that defense counsel requested a hearing to determine whether statements made by the state to the witness had biased the witness against the defense. After the hearing, the trial court denied the defense motion for mistrial. Trial counsel was not ineffective for failing to proffer the original testimony because the record shows that witness eventually testified on behalf of the defense, and that defense counsel extensively impeached the witness as to her former testimony and did his best to rehabilitate.
Next, Paredes claims that his counsel failed to investigate the type of gun used. However, Paredes fails to demonstrate a reasonable probability that the trial outcome would have been different had defense counsel hired his own ballistics expert to testify at trial. In addition, Paredes himself acknowledged in his sworn statement that he used an MP.45, which he knew from reading the name off of the gun's stock. No Strickland error here.
Paredes claims that he told his counsel that it was his brother who actually fired the weapon and was in a gang. However, the record shows that defense counsel did impeach the co-defendant's testimony; as well, Paredes testified about his brother's arrest problems and admitted to shooting the gun. We find no Strickland error in any of the claims raised in Paredes' motion for post-conviction relief.
Paredes' remaining claims are without merit, as the issues were or should have been raised on direct appeal and are procedurally barred.
Affirmed.
NOTES
[1] Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/242146/ | 244 F.2d 80
Jack RICHARDSON, Appellant,v.PERMACEL TAPE CORPORATION, Appellee.PERMACEL TAPE CORPORATION, Cross-Appellant,v.Jack RICHARDSON, Cross-Appellee.
No. 16431.
United States Court of Appeals Fifth Circuit.
May 1, 1957.
Rehearing Denied June 14, 1957.
James U. Thurman, Leslie Shults, Shults & Thurman, Dallas, Tex., for appellant.
Carlisle Blalock, Paul Carrington, Dallas, Tex., Carrington, Gowan, Johnson, Bromberg & Leeds, Dallas, Tex., Herbert E. Bailey, New Brunswick, N. J., of counsel, for appellee.
Before RIVES, JONES and BROWN, Circuit Judges.
RIVES, Circuit Judge.
1
Judgment on the pleadings was entered in favor of the defendant, Permacel Tape Corporation, by which judgment, however, the plaintiff, Jack Richardson, was released and discharged from the terms and provisions of a "Sales Personnel Agreement" which he had signed. Both parties appeal.
2
Many of the facts are without dispute. Richardson, now fifty-four years of age, first entered the employ of Permacel as a salesman in 1945. In 1954 he was made Division Sales Manager with headquarters in Dallas, Texas. On November 11, 1955, he was directed by George A. Fitzgerald, Vice President of Permacel in charge of sales, to secure from all of the salesmen of his division, including himself, the execution of an agreement styled "Sales Personnel Agreement," in substance as follows:
3
"Sales Personnel Agreement.
4
"Jack Richardson (hereinafter called `Employee'), and Permacel Tape Corporation * * * (hereinafter caller `Company'), in consideration of Company's employment of Employee, and of wages and salary paid him, and of the mutual promises herein contained, hereby agree as follows:
5
"1. Employee shall not divulge to others or use for his own benefit any confidential information obtained during the course of his employment with Company relating to sales, sales volume or strategy, customers, number or location of salesmen, formulae, processes, methods, machines, manufactures, compositions, ideas, improvements or inventions belonging to or relating to the affairs of Company, Johnson & Johnson or its subsidiary or affiliated companies, without first obtaining Company's written permission.
6
"2. Employee for a period of three (3) years after leaving Company's employment for any reason whatsoever, shall not, in the United States or Canada without first obtaining Company's written permission, engage in or enter the employment of or act as a sales agent or broker for the products of or as an advisor or consultant to any person, firm or corporation engaged in or about to become engaged in the manufacture of adhesive or adhesive tapes.
7
"3. Should Employee be discharged by Company after a period of three (3) months continuous employment by Company and should Employee within three (3) months after the end of the calendar month of said discharge be unable to secure suitable new employment or occupation after having devoted his best efforts to finding such employment or gainful occupation, then, upon written notice by Employee by Registered Mail to the Company at its address set forth, Company unless it notifies Employee in writing that it elects not to enforce paragraph 2 of this contract, shall pay Employee at the end of each month thereafter, for so long as it elects to continue to enforce said paragraph 2 or until such time as Employee finds employment or gainful occupation consistent with this contract, sixty-six and sixty-seven hundreds per cent (66.67%) of the monthly salary (exclusive of extra compensation of any kind) received by Employee at the time of such discharge by Company. Employee, during the period of such payments, shall conscientiously seek employment or occupation consistent with this agreement and upon obtaining such employment forthwith notify Company to that effect by Registered Mail.
8
"4. Upon notice by Company of its election to discontinue such monthly payments as provided in paragraph 3 or upon termination of the third year after Employee's discharge by Company, whichever occurs sooner, Employee then shall not be precluded from accepting any employment which Employee would be free to accept in the absence of this agreement.
9
"5. This agreement shall be interpreted in accordance with the laws of the State of New Jersey."
10
For approximately three years execution of that form of agreement had been required of all new employees. The notice of November 11, 1955 advised that its execution was being made mandatory upon all employees, including those employed by Permacel prior to the time that the agreement was first drafted. Richardson executed the agreement on January 12, 1956. He received no further correspondence or communication from Permacel until eighteen days later, when on January 30, 1956 he was discharged both orally and by letter, his discharge to become effective February 29, 1956.
11
The following facts averred in the complaint or in the counterclaim are in dispute, and will be here stated favorably to that party to whom an opportunity of proof by evidence was denied.1 Richardson had theretofore objected to executing such an agreement. At a meeting of the Division Sales Managers of Permacel in December, 1955, he discussed his position with Vice President Fitzgerald, who assured him that the company was satisfied with the accomplishments of his division, that Richardson's work as manager of the division was satisfactory, that Permacel had no quarrel with him as such manager. It was publicly announced in open meeting that there was no problem with any of the Division Sales Managers. Richardson alleges that the officers of Permacel knowingly and willfully misrepresented to him that his position of employment by the company was secure, that relying upon such representations he executed the "Sales Personnel Agreement" on January 12, 1956. He had always rendered faithful service to the company. His division had had a larger percentage sales increase than the national average for the company. His discharge "was wholly without cause, or the result of any neglect of duty by the plaintiff or disloyalty by him to his employer." According to the complaint, the agreement has prevented Richardson from pursuing his present vocation and from obtaining gainful employment, and will continue so to operate for a period of three years. He prays for the recovery of damages and for the avoidance of the "Sales Personnel Agreement."
12
Permacel on its part alleges that Richardson's employment was terminable at will. As Division Sales Manager he had become familiar with many trade secrets and a large amount of confidential information, which Permacel avers upon information and belief that, following his discharge, he began to divulge to its competitors, and that he continues to use Permacel's trade secrets and confidential information for his own benefit, as a result of which Permacel has been and will be deprived of sales of its products. Permacel prays for the recovery of damages and that Richardson be enjoined from divulging trade secrets and confidential information obtained during the course of his employment. Richardson denies Permacel's allegations of misconduct on his part.
13
It was under that factual status that the district court entered its judgment on the pleadings dismissing Richardson's action against Permacel, but adjudging that Richardson had been discharged from the operation of the "Sales Personnel Agreement." The district court further held that Richardson's release from such agreement was
14
"without prejudice as to any common law or statutory rights of the Defendant, Permacel Tape Corporation, to prevent the Plaintiff from disclosing confidential information obtained during the course of his employment with Defendant and without prejudice as to any common law or statutory rights of Defendant, Permacel Tape Corporation, to prevent the Plaintiff from engaging in or entering the employment of or acting as a sales agent or broker for the products of or as an adviser or consultant to any person, firm or corporation engaged in or about to become engaged in the manufacture of adhesive or adhesive tapes."
15
Richardson made no motion to dismiss or for summary judgment or judgment on the pleadings, and Permacel's counter-claim was not dismissed.
16
Richardson's complaint counted upon three theories: (1) that the facts gave rise to an implied agreement that he would be employed by Permacel for so long a time as he performed his duties in a satisfactory manner; (2) that the execution of the "Sales Personnel Agreement" was procured from him by false and fraudulent representations of the officers of Permacel; (3) that the agreement not to take employment with a competing company was not reasonable in its restraints as to time or area involved and was void as against public policy.2
17
Richardson undertook to plead the facts from which he concluded that Permacel had impliedly agreed to continue his employment for so long a time as he performed his duties in a satisfactory manner. Up to the time of the execution of the "Sales Personnel Agreement," it does not appear that there was any understanding as to the length of Richardson's employment.3 Paragraph numbered 3 of said agreement recognized that Richardson could be discharged after a period of employment of three months. Apparently the parties did not contemplate an earlier discharge. An employee could not reasonably be expected to execute an agreement so restrictive on his future employment by others if he knew that his employer had already made up his mind to discharge him in the immediate future. The request on the employee to execute such an agreement, therefore, we think, is an implied representation of the absence of any such then present intent. It does not, however, in our opinion, constitute any implied release of the employer's full authority to manage his own business, and, if he subsequently decides so to do, to discharge the employee, with or without fault on the employee's part; that is, it does not give rise to any contract based on the apparent intention of the parties, a contract implied in fact.
18
A contract implied in law does not require mutual consent. It is simply a quasi-contractual obligation created by law for reasons of justice.4 Such a device in the present case is both inappropriate and unnecessary; inappropriate because not in accordance with the probable actual intent of the employer, and unnecessary because another adequate remedy is already available.
19
That remedy is for the claimed fraudulent procurement of the "Sales Personnel Agreement," for which we think that Richardson's allegations stated a claim upon which, if sustained by the proof, he will be entitled to relief. Permacel relies upon the requirement of Rule 9(b) of the Federal Rules of Civil Procedure,5 and upon the required elements of fraud which have long been recognized and are set forth in Southern Development Company v. Silva, 125 U.S. 247, 250, 8 S. Ct. 881, 882, 31 L. Ed. 678: "First. That the defendant has made a representation in regard to a material fact;
20
"Secondly. That such representation is false;
21
"Thirdly. That such representation was not actually believed by the defendant, on reasonable grounds, to be true;
22
"Fourthly. That it was made with intent that it should be acted on;
23
"Fifthly. That it was acted on by complainant to his damage; and,
24
"Sixthly. That in so acting on it the complainant was ignorant of its falsity, and reasonably believed it to be true."
25
The existence vel non of Permacel's satisfaction with Richardson's services and of its intention to continue his employment, so that in that sense his position was secure, were facts6 material for consideration by Richardson in deciding whether to execute said agreement or not. The complaint alleges that those facts were knowingly and willfully misrepresented by Permacel's officers to Richardson, and that in reliance upon such false representations Richardson executed said agreement. If he can sustain his burden of proving such allegations, Richardson can recover from Permacel for any past or prospective loss of employment by reason of having been fraudulently induced to execute the "Sales Personnel Agreement."
26
If it was fraudulently procured, the entire agreement is void. Hence, it was not necessary for Richardson to allege that he had sought or had been refused Permacel's permission to enter the employment of a competitor, or that Permacel had threatened or attempted to enforce the provisions of the agreement restricting Richardson's employment. Though Permacel's counterclaim seeks the enforcement only of Paragraph numbered 1 of the agreement prohibiting Richardson from divulging confidential information, Permacel insists also that the district court erred in releasing and discharging Richardson from any part of the "Sales Personnel Agreement." It is possible that Richardson may be able to sustain his contention that the mere factual existence of the purported restrictive agreement, so long as it has not been finally and conclusively declared void or cancelled, coupled with Permacel's conduct with reference to the agreement, constitute effective barriers to his employment in his present vocation, and that he is not fitted for or cannot secure other suitable employment.
27
Until the facts have been developed by the evidence, we consider it premature to consider the many related questions; such as, the employee's duty in the absence of agreement not to divulge confidential information and trade secrets, the extent of liability, if any, of either party for damages, possible acts going to mitigate damages, and the validity vel non of the agreement.
28
The judgment is reversed and the cause remanded.
29
Reversed and remanded.
Notes:
1
Rules 12(c) and 56, Federal Rules of Civil Procedure, 28 U.S.C.A.; 2 Moore's Federal Practice, 2nd ed., Para. 12.15, p. 2269; 6 Id. Para. 56.15(1), p. 2114
2
On this issue, Richardson relies on Donahue v. Permacel Tape Corporation, 234 Ind. 398, 127 N.E.2d 235
3
See 35 Am.Jur., Master & Servant, Section 19
4
G. T. Fogle & Co. v. United States, 4 Cir., 135 F.2d 117, 120; 12 Am.Jur., Contracts, Sections 4, 5 & 6; 1 A.L.I. Restatement, Contracts, Section 5(a)
5
"In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Rule 9(b), Federal Rules of Civil Procedure, 28 U.S.C.A
6
See 23 Am.Jur., Fraud & Deceit, Sec. 41; Prosser on Torts, 2nd ed., p. 563 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/614897/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCT 6, 2011
No. 10-14429
JOHN LEY
________________________ CLERK
D. C. Docket No. 1:09-cv-00401-WKW-SRW
CROP PRODUCTION SERVICES, INC.,
a Delaware corporation,
Plaintiff-Appellee,
versus
JANICE LAYTON, an individual,
GREG LAYTON, an individual,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(October 6, 2011)
Before TJOFLAT, CARNES and BLACK, Circuit Judges.
PER CURIAM:
Janice Layton and Greg Layton appeal the district court’s final judgment
following a bench trial in favor of Crop Production Services, Inc. (CPS). The
Laytons assert (1) the district court erred by concluding Janice Layton’s Credit
Application and Agreement (Agreement) was effective for the credit extended to
her in 2008 and (2) the district court’s almost verbatim use of CPS’s findings of
fact and conclusions of law constitutes reversible error. After review, we affirm.1
I.
The Laytons contend the hand-written notation of “December 1, 2007” next
to the typewritten word “terms” on the first page of the Agreement serves as a
termination date, while CPS asserts the clause is part of the application and
represents the initial payment term. To interpret this clause, a court looks first to
the language of the Agreement, and then resolves any ambiguity using extrinsic
evidence. See USI Properties East, Inc. v. Simpson, 938 P.2d 168, 173 (Colo.
1997).2
The district court did not err in concluding the Laytons’ 2007 Agreement
applies to the extension of credit by CPS in 2008. The Agreement gives CPS the
1
This court reviews factual findings made by a district court after a bench trial for clear
error, Fed. R. Civ. Proc. Rule 52(a)(6), while questions of law are reviewed de novo, Commodity
Futures Trading Comm’n v. Levy, 541 F.3d 1102, 1110 (11th Cir. 2008).
2
As provided in the Agreement, Colorado law governs its interpretation.
2
“right to reduce the Credit Limit and/or withdraw credit under this Credit
Agreement at any time without prior notice,” and provides all credit sales “are due
and payable in full by the due date according to the terms of the sale specified on
the invoice.” These provisions anticipate the due date of the amounts owed may
change during the life of the Agreement, indicating the Agreement will continue
beyond the initial payment term of December 1, 2007. Assuming the language of
the Agreement is ambiguous, however, the district court did not err in relying on
extrinsic evidence, specifically the testimony of Andy Armstrong, to reach its
conclusion. See Stano v. Butterworth, 51 F.3d 942, 944 (11th Cir. 1995)
(recognizing this Court gives deference to the district court’s opportunity to judge
the credibility of witnesses). Moreover, after finding the Agreement did not
terminate on December 1, 2007, the court found no credible evidence it was ever
terminated. We see no clear error in the court’s findings.
II.
The Laytons assert for the first time on appeal that the court erred when it
used substantial portions of CPS’s proposed findings of fact and conclusions of
law in its Order. At the conclusion of the bench trial, the court asked each party to
submit proposed findings of fact and conclusions of law. The court then entered
an order confirming this request. Without objection, the parties submitted their
3
proposals. The Laytons never objected to the court’s request and did not raise this
issue in their subsequent motion for a new trial. We will not consider it on appeal.
See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004) (noting this Court will not consider an issue raised for the first time on
appeal).
AFFIRM.
4 | 01-03-2023 | 10-06-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1563335/ | 558 S.W.2d 780 (1977)
Clara FRIEND, Plaintiff-Respondent,
v.
Jewell F. Bailey MORROW, Defendant-Appellant.
No. 38728.
Missouri Court of Appeals, St. Louis District, Division One.
October 25, 1977.
*782 Hux & Green, Jim S. Green, Sikeston, for defendant-appellant.
Medley, Alexander & McIntosh, Charles W. Medley, Dennis E. McIntosh, Farmington, for plaintiff-respondent.
McMILLIAN, Judge.
Defendant-appellant, Jewell F. Bailey Morrow, appeals from a judgment of the circuit court of St. Francois County granting possession to plaintiff-respondent Clara Friend of ten church bonds or, if respondent does not recover the bonds, respondent is awarded the sum of $11,200 or the face value of the bonds plus the value of the interest coupons detached and cashed by appellant. For the reasons discussed below, we affirm the judgment of the trial court.
This case arises out of a dispute between respondent, the wife of P. C. Friend, and appellant, the daughter of P. C. Friend by a previous marriage, over the ownership of some forty-five (45) bonds, among them the ten church bonds at issue here. Respondent sued appellant, charging her with conversion of the bonds and transfer of property with the intent to defraud respondent of her marital rights.
For reversal appellant argues that the trial court erred: (1) in finding that appellant converted the ten church bonds because respondent failed to establish the necessary elements of conversion and (2) in admitting into evidence the deposition of respondent.
P. C. Friend purchased ten $1,000 bonds of the First Baptist Church of Bismarck, Missouri, in January, 1968. Each of the bearer bonds had a serial number and interest coupons attached. Mr. Clyde Ruble, Chairman of the Building and Finance Committees of the First Baptist Church of Bismarck, testified that P. C. Friend purchased the bonds from him and instructed him to deliver them to respondent's home in Bismarck. Mr. Ruble delivered the bonds to respondent's house, placed them on the dining room table and counted them in front of respondent. Mr. Ruble told respondent that her husband had bought the bonds and had instructed him to deliver them to her.
Respondent then testified by deposition. She apparently believed at the time the bonds were delivered that her husband would pick up the bonds later and take them to DeSoto, Missouri. P. C. Friend had lived in DeSoto, Missouri, at the home of a family friend, Cecilia Riley, for about twenty years. He worked in DeSoto during the week and returned to Bismarck on the weekends. Several weekends after delivery, respondent brought up the subject of the bonds. Respondent testified that her *783 husband said, ". . . `They belong to you; I'm going to give those bonds to you'. . . ." Respondent put the bonds in the drawer of her buffet and intended to put them in a safety deposit box but never did. She kept the bonds about one year until she became ill and was hospitalized. She asked her niece Margie Kohn to call P. C. to take the bonds and put them in a safe place because there was no one in her house while she was in the hospital. P. C. picked up the bonds and returned to DeSoto.
P. C. was hospitalized in St. Louis, Missouri, in 1974. He requested Cecilia Riley to go to DeSoto and pick up the bonds and give them to his daughter (appellant). Mrs. Riley testified that she delivered the bonds to appellant on July 31, 1974. Appellant retained the bonds and cashed several of the interest coupons as they became due.
P. C. Friend died September 1, 1974.
We review this court-tried case as set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). The judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. at 32. Appellant first argues that the trial court erred in finding that appellant converted the church bonds because respondent failed to establish the necessary elements of conversion. ". . . [I]n order to maintain an action for conversion, the party claiming aggrievement must have title to, or a right of property in, and a right to the immediate possession of the property concerned at the time of the alleged conversion . . ." Kessler v. Reed, 481 S.W.2d 559, 562 (Mo. App.1972). We believe there is substantial evidence to support the finding of the trial court that respondent is the owner of the church bonds.
Respondent claimed the church bonds were a valid inter vivos gift to her from P. C. Friend. "The essentials of an inter vivos gift of personal property .. . are . . . `a present intention to make a gift on the part of the donor, a delivery of the property by the donor to the donee, and an acceptance by the donee, whose ownership takes effect immediately and absolutely.' " Wantuck v. United Sav. & Loan Ass'n, 461 S.W.2d 692, 694 (Mo.1971) (citations omitted), quoting Thomas v. Thomas, 107 Mo. 459, 18 S.W. 27, 28. We believe that respondent clearly established delivery, present donative intent and acceptance and therefore a complete inter vivos gift. Mr. Clyde Ruble delivered the bonds to respondent according to the instructions of the donor. Apparently P. C. Friend expressed the intent to give the bonds to respondent after their delivery because several weeks later he told respondent "[the bonds] belong to you; I'm going to give those bonds to you." It is not essential, however, that ". . . delivery of the property be simultaneous with the words of donation. . . [If delivery] precedes the words, so that the property is already in the possession of the donee, no new delivery is necessary. . . ."38 Am.Jur.2d, Gifts, § 21 (1968). The donor's words expressed ". . . a clear, unmistakable, and unequivocal intention" to make a gift. Id. § 17; e. g., Harris Banking Co. v. Miller, 190 Mo. 640, 89 S.W. 629 (1905); In re Estate of Simms, 423 S.W.2d 758 (Mo.1968). Respondent placed the bonds in the buffet drawer thereby exercising the necessary dominion over the subject of the gift to constitute acceptance.
Appellant does not contend that P. C. Friend gave her the bonds. Appellant received custody of the bonds because P. C. Friend, at that time in the hospital, requested his friend Cecilia Riley to deliver them to appellant. P. C. Friend had possession of the bonds because respondent had become ill and had requested P. C. to pick them up for safekeeping. Respondent testified that she was hospitalized at this time and was worried about the security of the bonds in her empty house. The return of the subject *784 matter of a completely executed gift by the donee to the donor for a purpose not inconsistent with the gift, such as safekeeping, will not render the gift invalid. 38 Am. Jur.2d, Gifts, § 27 (1968); e. g., Snyder v. Stouffer, 270 Md. 647, 313 A.2d 497 (1974).
Appellant also argues that she enjoys a presumption of ownership as the present holder of the bearer bonds which respondent has failed to rebut. Upon delivery of an investment security such as bearer bonds the purchaser acquires the rights in the security which his transferor had or had actual authority to convey, § 400.8-301(1) RSMo 1969. In this case P. C. Friend did not have any rights in the security or actual authority to convey. A completely executed gift operates as between the parties to the transaction as a full and complete transfer of the title to the property from the donor to the donee. 38 Am.Jur.2d, Gifts, § 76 (1968). It is true that a bona fide purchaser or a purchaser for value in good faith and without notice of any adverse claim who takes delivery of a security in bearer form, § 400.8-302, RSMo 1969, acquires the security free from any adverse claim. Id. § 400.8-301(2). Appellant, however, does not meet all the requirements of a bona fide purchaser. There is no evidence that appellant received the church bonds for value. Id. § 400.3-303; 11 Am.Jur.2d, Bills and Notes, § 343 (1963).
Furthermore, " . . . even though a donee of a valid gift inter vivos is not in possession of the property given, the gift is binding upon persons claiming under the donor, and [the donee] has a title superior to that of a subsequent purchaser or encumbrancer with notice of the gift . . . " 38 Am.Jur.2d, Gifts, § 77 (1968). Appellant does not claim the status of a subsequent purchaser or encumbrancer without notice, only that she is the present holder of the bonds. For the reasons discussed above, we hold that the bonds were the subject of a valid inter vivos gift to respondent and were converted by appellant.
Appellant further argues that the trial court erred in admitting into evidence the deposition of respondent taken September 25, 1975. Appellant argues that respondent's deposition was inadmissible under Rule 57.07, V.A.M.R. (1976), and under the Dead Man Statute, § 491.010, RSMo 1969. The record shows that appellant submitted interrogatories to respondent which were answered. This constituted a waiver of the incompetency of respondent as a witness under the Dead Man Statute, e. g., Watkins v. Watkins, 397 S.W.2d 603, 611 (Mo.1965); Edwards v. Durham, 346 S.W.2d 90, 99 (Mo. 1961); Lehr v. Moll, 247 S.W.2d 686, 690 (Mo.1952).
In essence appellant contends that the deposition of a party cannot be used as evidence because the rule mentions only the depositions of witnesses. We disagree. Rule 57.07(a)(3), V.A.M.R., states that "[t]he deposition of any witness who is not present in court may be used by any party for any purpose if the court finds. . . that by reason of age, sickness, bodily infirmity or imprisonment, the witness is unable to or cannot safely attend court . . .." The finding as to the inability of a witness to attend court rests largely within the discretion of the trial court. Boyle v. Crimm, 363 Mo. 731, 253 S.W.2d 149 (1952); cf. Key v. Kilburn, 228 S.W.2d 731 (Mo.1950) (deposition of witness taken in anticipation that his mental condition might deteriorate held inadmissible where no evidence was offered as to any change in witness' mental condition); Null v. Gray, 534 S.W.2d 823 (Mo.App.1977) (physician engaged in the discharge of his professional duties at time of trial).
Dr. M. Beck, respondent's personal physician, made a statement that certified respondent as physically unable to attend any court proceeding. Dr. Beck also testified that it was his opinion that it would be unwise for respondent to appear in court due to respondent's condition and advanced age. He testified that respondent was 82 or 83 years old at the time of trial, had vascular disease and sclerotic heart disease, *785 her condition was deteriorating and had ulcers of the lower extremities, shortness of breath and some cerebral anxiety. Respondent testified at her deposition that she had sores on her legs and high blood pressure. She also stated that she only left her house to go see the doctor. This evidence was sufficient to establish that respondent was unable to attend court by means of age, sickness and bodily infirmities so as to authorize the use of her deposition. Obermoeller v. Speck, 544 S.W.2d 21 (Mo.App.1977). In Obermoeller, supra, the deponent was 76 years old at the time of the deposition, had had infantile paralysis since the age of two, suffered from dropsy, heart trouble, high blood pressure and edema, and had left her house only three times in the past eleven years, twice in an ambulance to go to the hospital.
The definition of witness is "a person whose testimony is desired in any proceeding. . .." § 491.400(3) RSMo 1969. The definition does not exclude parties. Rule 57.03, V.A.M.R. (1976) permits "any party[to] take the testimony of any person, including a party, by deposition upon oral examination." In State ex rel. Chandler v. Scott, 427 S.W.2d 759 (Mo.App. 1968), relator, petitioner in a proceeding for divorce and custody of the children of the marriage, asked the trial court to allow him to take his own deposition by written interrogatories. Relator's inability to appear personally was due solely to his military service; relator was at that time in Camp Pendleton, California, en route to Vietnam. The court noted that the Federal Rules which were the basis for the applicable Missouri Rules of Civil Procedure, since repealed and replaced, have been construed to allow a party to take his own deposition in exceptional circumstances. Id. at 761. The court then stated that the right of a party litigant to take the deposition of any witness is an absolute right and permitted relator to direct interrogatories to himself. Id. at 762.
In the present case appellant was given proper notice of the time of respondent's deposition and failed to appear. The evidence established that respondent was aged, ill and suffered from bodily infirmity such that she would be unable to attend court. In these circumstances we do not think the trial court erred in admitting into evidence respondent's own deposition.
Accordingly, judgment is affirmed.
CLEMENS, P. J., and SMITH, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2719120/ | Filed 8/19/14 Smeed v. Galtar, LLC CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
J.R. SMEED,
F067110
Plaintiff and Respondent,
(Super. Ct. No. S-1500-CV-270444)
v.
GALTAR, LLC et al.,
OPINION
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Kern County. Sidney P.
Chapin, Judge.
Noriega & Associates, Noriega & Oldaker and Donald C. Oldaker for Defendants
and Appellants.
LeBeau-Thelen, Bob H. Joyce and Andrew K. Sheffield for Plaintiff and
Respondent.
-ooOoo-
Defendant, Galtar, LLC (Galtar) brought an action against plaintiff for breach of
contract and misrepresentation, arising out of a contract for the purchase of certain real
property from plaintiff. Galtar voluntarily dismissed the action prior to trial. Plaintiff
then sued Galtar and its sole member for malicious prosecution. After a court trial,
judgment was entered in favor of plaintiff, awarding compensatory damages for the
attorney fees plaintiff incurred in the underlying action and punitive damages; it also
awarded plaintiff his attorney fees in the malicious prosecution action as recoverable
costs. Defendants appeal, challenging the judgment and the award of attorney fees as
costs. We reverse and remand, with directions to the trial court to redetermine the
compensatory and punitive damages and to strike the award of attorney fees as costs.
FACTUAL AND PROCEDURAL BACKGROUND
In early 2006, Robert Ford introduced defendant, Ghassan Merhi, manager and
sole member of Galtar, to plaintiff J.R. Smeed. Ford and Smeed had been negotiating an
agreement by which Smeed would sell and Ford or his company, Nightingale, LLC,
would purchase 1,942 acres of real property in the Tehachapi area. Ford sought to assign
his interest in the transaction to Galtar, which would become the buyer; Galtar agreed
that, when the property was later sold, Ford would share in the profits. The parties,
through attorneys, negotiated and entered into a written contract which differed from the
agreement contemplated by the Ford-Smeed transaction. The Galtar-Smeed contract
contemplated the sale of all the parcels of property in Spring Creek Estates and Section
27, and all of the parcels in Montclair Estates then owned by Smeed or by Spring Creek
Estates, Inc., the corporation to which Smeed transferred most of the parcels that were to
be sold to Galtar. The contract did not include property in Pine Ridge Estates, which had
been included in the Ford-Smeed transaction.
Before the Galtar-Smeed contract was signed, Merhi was notified that the acreage
involved in the transaction was 1,856 acres; later, the number was reduced to 1,786 acres.
On May 30, 2006, Robert Brumfield, an attorney who was participating in the negotiation
and drafting of the contract on behalf of Ford and Galtar, inquired of Smeed’s attorney,
Michael Stump, why the acreage had been reduced. Stump’s response indicated he had
spoken with Smeed and Smeed said he had had approximately 1,900 acres 18 months
before, but in the interim he had sold the difference; Smeed indicated the preliminary title
2
report contained all the properties that were the subject of the deal. In the contract, which
was dated May 31, 2006, Smeed expressly represented that the acreage was 1,768 acres.
Although the contract stated the property being sold was described in an attached exhibit
A, apparently no exhibit A was ever attached to the contract. The contract also provided
for the transfer to Galtar of specified heavy equipment and “all records and other supplies
needed to operate the [Quail Valley] Water District.”
In a June 1, 2006, e-mail, Galtar asked the escrow company to confirm the number
of parcels and total acreage included in the preliminary report. The escrow company
responded that there were 57 parcels, with a total acreage of 1696.63 acres. On the same
date, Merhi, through a representative, asked Brumfield by e-mail what he thought should
be done about the reduced acreage. Brumfield indicated they could suggest a price
reduction, “[o]r, maybe better, get everything signed and then confront Smeed with it? I
sort of like that approach because the agreement says he is selling 1,786 [sic] or more
acres, so we get him in a bit of a bind if it’s less.” The representative responded that
Merhi agreed they should get everything signed and then confront Smeed.
On or about June 1, 2006, Merhi signed the contract on behalf of Galtar; on or
about June 8, 2006, Smeed signed the contract on behalf of himself and Spring Creek
Estates, Inc. Escrow closed on July 26, 2006. After close of escrow, based on
information obtained from others and adding up the acreage transferred, Galtar began to
believe some of the parcels of property that should have been conveyed to it at close of
escrow had not been conveyed. In December, 2006, Brumfield prepared a complaint for
breach of contract on behalf of Galtar; it alleged Smeed agreed to sell 1,768 acres, but
only transferred 1696 acres. Brumfield and Galtar mutually agreed to end Brumfield’s
representation of Galtar, and the complaint was never filed.
In April 2008, Galtar retained attorney Robert Brenner to represent it in an action
against Smeed and Spring Creek Estates, Inc. Galtar complained to Brenner that it had
3
not received all the real property promised, the heavy equipment, or control of the Quail
Valley Water District. Galtar provided documents in its possession concerning the
transaction to Brenner. Brenner testified there were material documents and information
not provided to him by Galtar. Brenner conducted his own investigation to determine
whether Galtar had received all the parcels or acreage to which it was entitled under the
contract. By that time, Commonwealth Land Title Company, the escrow company that
handled the Galtar-Smeed sale, was out of business and only an incomplete escrow file
was available. Brenner concluded only 1,641 acres had been conveyed. Although the
contract attached to the complaint provided for transfer of “approx. 1768 acres more or
less (more or less not to exceed 5-6 acres),” the body of the complaint Brenner prepared
and filed alleged the contract obligated Smeed to convey 1,942 acres, but Smeed
conveyed only 1,641 acres. The complaint alleged Smeed was also obligated to transfer
to Galtar certain heavy equipment and the Quail Valley Water District, with five seats on
its board, but he failed to do so. The complaint included three causes of action for
intentional and negligent misrepresentation and rescission of the contract for fraud, all
based on allegations that Smeed falsely represented to Galtar on or about May 31, 2006,
that the acreage to be transferred was 1,942 acres, and that the heavy equipment and
water district would also be transferred.
After Brenner began to have health issues, Galtar substituted the Wolf firm in as
its attorneys in the Galtar v. Smeed action.1 Brenner sent his case file to the Wolf firm.
After reviewing Brenner’s file, an attorney from the Wolf firm advised Merhi the case
had been mishandled, and it would be difficult and expensive to win. Because of the
mishandling and the expense of pursuing the action, he recommended Galtar dismiss the
action against Smeed without prejudice. Galtar voluntarily dismissed the action without
1 Galtar v. Smeed, Superior Court Kern County (2012) No. S-1500-CV-267312.
4
prejudice. Smeed did not move for an award of attorney fees as the prevailing party,
although the contract contained an attorney fee provision.
Approximately a month later, Smeed filed this malicious prosecution action
against Galtar and Merhi, alleging the Galtar v. Smeed, supra, action was filed without
probable cause because the contract in the Galtar-Smeed transaction was fully integrated
and did not provide for the sale of 1,942 acres or the delivery of the water district. The
complaint further alleged the escrow officer informed Galtar and Merhi on June 1, 2006,
that the property subject to the contract consisted of 1,696 acres, not 1,942 acres; further,
defendants received and sold the heavy equipment before the underlying complaint was
filed. Plaintiff alleged the underlying action was filed and maintained with malice, to
extort money from plaintiff. The malicious prosecution action was tried before the court
and resulted in a judgment in favor of Smeed; the trial court awarded Smeed
compensatory damages of $28,074.82, consisting of Smeed’s attorney fees in the
underlying action, punitive damages of $100,000, prejudgment interest, and $217,590 in
attorney fees incurred in the malicious prosecution action, awarded as costs. Defendants
appeal from the judgment and the order awarding attorney fees as costs.
DISCUSSION
I. Standard of Review
“To establish a cause of action for the malicious prosecution of a civil proceeding,
a plaintiff must plead and prove that the prior action (1) was commenced by or at the
direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor
[citations]; (2) was brought without probable cause [citations]; and (3) was initiated with
malice [citations].” (Bertero v. National General Corp. (1974) 13 Cal. 3d 43, 50
(Bertero).) “The plaintiff in a malicious prosecution action must prove each of the
necessary elements of the tort.” (Sangster v. Paetkau (1998) 68 Cal. App. 4th 151, 164
(Sangster).) Favorable termination and lack of probable cause are questions of law,
5
which we review de novo, unless there is a dispute as to the facts on which the
determination depends. (Sierra Club Foundation v. Graham (1999) 72 Cal. App. 4th
1135, 1149, 1154.) Any such factual issues are threshold questions that must be
determined by the trier of fact before the court may reach the legal issue; factual issues
are reviewed for substantial evidence. (Id. at p. 1154; Sheldon Appel Co. v. Albert &
Oliker (1989) 47 Cal. 3d 863, 868.) Malice is also a question of fact, subject to
substantial evidence review. (Sheldon Appel Co., supra, at p. 875.)
“‘“‘An order granting or denying an award of attorney fees is generally reviewed
under an abuse of discretion standard of review; however, the “determination of whether
the criteria for an award of attorney fees and costs have been met is a question of law.”
[Citations.]’”’ [Citation.] An issue of law concerning entitlement to attorney fees is
reviewed de novo. [Citations.] ‘When a trial court has resolved a disputed factual issue,
an appellate court reviews the ruling according to the substantial evidence rule.’”
(Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal. App. 4th 373, 378.)
II. Elements of Malicious Prosecution
A. Commencement by defendants
There was no dispute the underlying action was commenced by or at the direction
of defendants. Galtar and Merhi do not contend this element of the cause of action was
not established.
B. Termination in favor of plaintiff
In order for the termination of a lawsuit to be considered favorable for purposes of
a subsequent malicious prosecution action, “the termination must reflect on the merits of
the action and the plaintiff’s innocence of the misconduct alleged in the lawsuit.”
(Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal. App. 4th 1043, 1056
(Contemporary Services).) “‘Where a proceeding is terminated other than on its merits,
the reasons underlying the termination must be examined to see if it reflects the opinion
6
of either the court or the prosecuting party that the action would not succeed.
[Citations.].’ [Citation.]” (Oprian v. Goldrich, Kest & Associates (1990) 220
Cal. App. 3d 337, 343 (Oprian).) “[A] voluntary dismissal, even one without prejudice,
may be a favorable termination which will support an action for malicious prosecution.
[Citation.] ‘In most cases, a voluntary unilateral dismissal is considered a termination in
favor of the defendant in the underlying action.’” (Fuentes v. Berry (1995) 38
Cal. App. 4th 1800, 1808.) A dismissal for failure to prosecute or after a failure to
cooperate in discovery may constitute a dismissal on the merits and a favorable
termination of the action. (Weaver v. Superior Court (1979) 95 Cal. App. 3d 166, 185
(Weaver); Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal. App. 4th 1385,
1400-1401 (Sycamore Ridge).) A dismissal due to settlement or a dismissal on technical
grounds for procedural reasons does not constitute a favorable termination. (Ibid.;
Oprian, supra, 220 Cal.App.3d at p. 343.)
Smeed asserts Galtar’s dismissal of the underlying action was presumed to be a
favorable termination on the merits. Sycamore Ridge, supra, 157 Cal. App. 3d 1385
asserts “[a] voluntary dismissal is presumed to be a favorable termination on the merits,
unless otherwise proved to a jury,” (id. at p. 1400) based on “‘“the natural assumption
that one does not simply abandon a meritorious action once instituted.”’ [Citation.]”
(Ibid.) Sycamore Ridge and the case on which it relied, Weaver, indicated that, in
determining whether a dismissal was a termination favorable to the malicious prosecution
plaintiff, when conflicting evidence about the circumstances surrounding the dismissal is
presented, the reason for the dismissal is a question of fact for the trier of fact to resolve.
(Id. at pp. 1400-1401; Weaver, supra, 95 Cal.App.3d at pp. 185-186.) We interpret these
cases as establishing a presumption affecting the burden of producing evidence. Such a
presumption “implement[s] no public policy other than to facilitate the determination of
the particular action in which the presumption is applied.” (Evid. Code, § 603.) Its effect
7
“is to require the trier of fact to assume the existence of the presumed fact unless and
until evidence is introduced which would support a finding of its nonexistence, in which
case the trier of fact shall determine the existence or nonexistence of the presumed fact
from the evidence and without regard to the presumption.” (Evid. Code, § 604.) The
presumption “is not evidence but merely an assumption designed solely to help the trier
of fact reach a determination.” (Estate of Trikha (2013) 219 Cal. App. 4th 791, 802.)
“Thus, the presumption exists ‘unless and until evidence is introduced which would
support a finding of its nonexistence.’ [Citations.] ‘[W]hen the party against whom such
a presumption operates produces some quantum of evidence casting doubt on the truth of
the presumed fact, the other party is no longer aided by the presumption. The
presumption disappears, leaving it to the party in whose favor it initially worked to prove
the fact in question.’ [Citations.]” (Id. at p. 803.) Thus, if the malicious prosecution
defendant presents evidence that the dismissal was not on the merits, the trier of fact must
determine the reasons for the dismissal.
A dismissal for economic reasons, not related to the merits of the case, does not
constitute a favorable termination. (Oprian, supra, 220 Cal.App.3d at pp. 343-345;
Contemporary Services, supra, 152 Cal.App.4th at p. 1057.) In Oprian, Stern sued
Oprian, and Oprian cross-complained against Stern and his company, Goldrich, Kest and
Associates (GKA). Stern settled one cause of action with a third party and dismissed it;
Oprian prevailed at trial on the other causes of action and the cross-complaint. Stern and
GKA appealed; at oral argument, the appellate court asked whether Stern would retry the
complaint if it reversed the judgment on the cross-complaint; counsel responded that his
clients “would probably be willing to forego further prosecution of the complaint rather
than incur additional attorney’s fees and the inconvenience of pursuing a second trial.”
(Oprian, supra, 220 Cal.App.3d at p. 342.) The appellate court reversed the judgment for
Oprian on the cross-complaint and directed that the complaint be dismissed, based on the
8
representations of counsel at oral argument. Oprian then filed its malicious prosecution
complaint against Stern, GKA, and the attorneys who represented them in the underlying
action. The trial court granted the defendants’ motion for summary judgment, on the
grounds the termination was not favorable to the plaintiff and the defendants had
probable cause to bring their action. (Ibid.)
The appellate court affirmed the judgment, concluding there was no favorable
termination of the underlying action as a matter of law. (Oprian, supra, 220 Cal.App.3d
at p. 343.) One cause of action was terminated by settlement; the other was dismissed by
the court of appeal based on representations that it would not be pursued for economic
reasons. The latter did not reflect the opinion of the court that the defendants’ claim
would not succeed on retrial. (Id. at p. 344.) “It would be a sad day indeed if a litigant
and his or her attorney could not dismiss an action to avoid further fees and costs, simply
because they were fearful such a dismissal would result in a malicious prosecution action.
It is common knowledge that costs of litigation, such as attorney’s fees, costs of expert
witnesses, and other expenses, have become staggering. The law favors the resolution of
disputes. ‘This policy would be ill-served by a rule which would virtually compel the
plaintiff to continue his litigation in order to place himself in the best posture for defense
of a malicious prosecution action.’ [Citation.]” (Id. at pp. 344-345.) The dismissal was
not on the merits and did not establish that the underlying action was terminated in
Oprian’s favor. (Id. at p. 345.)
In Contemporary Services, Contemporary Services Corporation (CSC) filed an
action against Staff Pro; a few years later, Staff Pro filed an action against CSC, and CSC
cross-complained against Staff Pro. (Contemporary Services, supra, 152 Cal.App.4th at
pp. 1047-1048.) Both actions were set for trial the same day. The first action could not
be continued because it was approaching the five-year deadline for bringing the case to
trial under Code of Civil Procedure section 583.310. Substantial discovery was still
9
needed for the second action. Staff Pro did not have the financial resources to prepare for
both actions at the same time. Accordingly, it dismissed the second action without
prejudice in order to concentrate on the first. (Contemporary Services, at p. 1049.) At
the time, both Staff Pro’s president and its attorney believed the second action was valid.
(Ibid.) CSC filed a malicious prosecution action based on the dismissed action. (Id. at
pp. 1050-1051.) In response, Staff Pro filed an anti-SLAPP motion to strike (Code Civ.
Proc., § 425.16), which was granted, and CSC appealed. The court affirmed, concluding
CSC failed to show a likelihood it would prevail on the merits of its malicious
prosecution cause of action, because it could not establish a favorable termination on the
merits of the underlying action.
The court reviewed the dismissal to determine whether it reflected CSC’s
innocence of the misconduct alleged in the underlying complaint. “[T]he record shows
defendants could not afford to pursue the matter, not that they lost faith in the merit of
their claims. The record does not show defendants sustained any adverse rulings in the
case, or otherwise had reason to believe their claims would be unsuccessful.”
(Contemporary Services, supra, 152 Cal.App.4th at p. 1057.) The court rejected CSC’s
argument that Staff Pro dismissed in order to avoid the deposition of its president, which
it contended would reveal Staff Pro’s claims lacked merit. (Ibid.) There was evidence,
including the declaration of his physician, that the deposition was postponed because
Staff Pro’s president had the flu. (Id. at pp. 1057-1058.)
Here, Galtar contends it dismissed the underlying action for economic reasons.
The communications with its attorneys, however, reflect serious concerns about Galtar’s
ability to prevail in the underlying action. In an e-mail sent approximately one month
before the dismissal, an attorney from the Wolf firm stated:
“The news is not good. As we discussed the case was materially
mishandled by prior counsel and we are now facing new discovery, a
summary judgment motion and if we can overcome that motion a trial date
10
on a case that has substantial hurdles. The problem at this point is that
based on the way the case has been handled up to this point by prior
counsel and the present posture of the case we have no leverage. To gain
leverage we would need at a minimum to respond to the discovery and
overcome the summary judgment motion. It will be costly to do this and
we cannot guaranty that it would result in a resolution of the case or that we
could prevail on the summary judgment motion or at trial if a determination
was made to move forward. [¶] … [¶] We are certainly prepared to go
forward with the case but … we are concerned that the fees in doing so will
be substantial .…”
In a subsequent e-mail, another attorney from that firm opined that prior counsel
did not allege the right causes of action in the right way and failed to respond to
discovery, including failing to produce the person most knowledgeable for a properly
noticed deposition. He was concerned that Galtar might be precluded from presenting
witnesses at trial because of its failure to answer interrogatories or submit to deposition.
He noted that the prior attorney indicated “he proceeded as he did because he was
instructed to just settle the case.”
Although the attorneys were concerned about the economics of proceeding with
the case, they also expressed substantive concern about the validity of the causes of
action as alleged and about Galtar’s ability to prevail on the merits. In its statement of
decision, the trial court stated: “The motive for the dismissal is evidenced in exhibit
[No.] 113,[2] and is considered in light of the intent of Galtar to originally seek settlement
of the case for payment to Galtar of $500,000.… The documents clearly reflect an
opinion of Galtar’s representatives that the action would not succeed. The voluntary
dismissal is presumed to be a termination on the merits. Galtar’s attempted explanation
does not overcome the assumption that a plaintiff does not simply abandon a meritorious
action once instituted.” (Unnecessary capitalization omitted.) Thus, unlike the situations
in Oprian and Contemporary Services, where the evidence indicated the dismissing party
had not lost faith in the merits of the claims, but dismissed due to financial
2 Exhibit No. 113 included the two e-mails to Galtar from the Wolf firm, discussed above.
11
considerations, the trial court here found the dismissal “‘reflect[ed] the opinion of … the
prosecuting party that the action would not succeed. [Citations.]’ [Citation.]” (Oprian,
supra, 220 Cal.App.3d at p. 343.) Substantial evidence supports that factual finding.
Accordingly, we conclude the element of termination in favor of Smeed was established.
C. Lack of probable cause
1. Breach of contract cause of action
“In analyzing the issue of probable cause in a malicious prosecution context, the
trial court must consider both the factual circumstances established by the evidence and
the legal theory upon which relief is sought. A litigant will lack probable cause for his
action either if he relies upon facts which he has no reasonable cause to believe to be true,
or if he seeks recovery upon a legal theory which is untenable under the facts known to
him. In making its determination whether the prior action was legally tenable, the trial
court must construe the allegations of the underlying complaint liberally in a light most
favorable to the malicious prosecution defendant. [Citation.] In all cases, probable cause
is to be determined by an objective standard. If any reasonable attorney would have
thought the claim made in the prior action tenable, then it is not lacking in probable cause
and the defendant is entitled to judgment in the malicious prosecution action regardless of
what the defendant’s subjective belief or intent may have been. [Citations.]” (Sangster,
supra, 68 Cal.App.4th at pp. 164-165, fn. omitted.)
The second cause of action in the underlying complaint alleged breach of contract.
The elements of a cause of action for breach of contract are: “‘(1) the contract, (2)
plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the
resulting damages to plaintiff.’ [Citation.]” (Bushell v. JPMorgan Chase Bank, N.A.
(2013) 220 Cal. App. 4th 915, 921.) Galtar’s complaint alleged the parties entered into a
written contract on May 31, 2006, for the sale of real property known as Spring Creek
Estates, Montclair Estates, and Section 27 in Tehachapi, and Smeed and Spring Creek
12
Estates, Inc., “were transferring the Quail Valley Water District to [Galtar] with 5 seats
on the board, and all personal property on the land, including, but not limited to, CAT
416 Backhoe, CAT D-8-H Dozer, CAT 12-E Blade, Trencher (broken down), pipes and
supplies in Warehouse, Kenworth Tractor, Dump Truck, plus all the records and other
supplies needed to run the Water District.” The contract was attached to the complaint as
an exhibit. The breach of contract cause of action alleged Galtar fully performed under
the contract, but Smeed and Spring Creek Estates, Inc. breached it “by failing to disclose
that the acreage was 1641.60, not the approximately 1942 acres represented by
defendants in the contract,” and by failing to transfer the water district and personal
property; as a result, Galtar was damaged.
Smeed contended Galtar lacked probable cause to bring the cause of action for
breach of contract as alleged, because Galtar’s complaint inaccurately alleged some of
the terms of the contract. Smeed asserted the contract was for sale of 1,768 acres of land,
not the 1,942 alleged, and the contract did not provide for transfer of the water district
itself (which was a state agency), but only for the transfer of the “records and other
supplies needed to operate the Water District.” Smeed asserted the records and supplies
for the water district and a bill of sale for the other personal property were provided to
Galtar at close of escrow. Thus, there was no probable cause to believe Smeed and
Spring Creek Estates, Inc. had breached the contract.
In the contract attached as exhibit A to the Galtar complaint, Smeed and Spring
Creek Estates, Inc. agreed to sell and Galtar agreed to buy “approximately 1,768 acres
more or less (more or less not to exceed 5-6 acres)” of real property near the city of
Tehachapi, commonly known as Montclair Estates, Spring Creek Estates, and Section 27.
“[T]o the extent the factual allegations [in the body of the complaint] conflict with the
content of the exhibits to the complaint, we rely on and accept as true the contents of the
exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the
13
exhibits. [Citations.]” (Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal. App. 4th 500,
504-505.) Accordingly, the complaint alleged a contract for the sale and purchase of
1,768 acres of land; Smeed’s and the trial court’s reliance on the inconsistent allegation
in the body of the complaint that the contract was for the sale of 1,942 acres is
unwarranted.
Smeed asserts the Galtar-Smeed contract was “fully integrated and superseded all
other contracts, negotiations and oral representations,” citing section 7.8 of the contract.
The parol evidence rule provides that, when the parties enter into an integrated written
contract, the writing supersedes all prior negotiations, and extrinsic evidence of any prior
agreement or any contemporaneous oral agreement may not be used to contradict, alter,
or add to the terms of the writing. (Code Civ. Proc., § 1856, subd. (a); Civ. Code,
§ 1625; Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013)
55 Cal. 4th 1169, 1174 (Riverisland).) “‘An integrated agreement is a writing or writings
constituting a final expression of one or more terms of an agreement.’ [Citations.]”
(Riverisland, at p. 1174.) Whether an agreement is an integration is a question of law for
the court. (Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal. App. 3d 799, 805.) “The
central question in determining whether there has been an integration, and thus whether
the parol evidence doctrine applies, is ‘whether the parties intended their writing to serve
as the exclusive embodiment of their agreement.’ [Citation.]” (Wagner v. Glendale
Adventist Medical Center (1989) 216 Cal. App. 3d 1379, 1385-1386.)
“Although the parol evidence rule results in the exclusion of evidence, it is not a
rule of evidence but one of substantive law. [Citation.] It is founded on the principle that
when the parties put all the terms of their agreement in writing, the writing itself becomes
the agreement. The written terms supersede statements made during the negotiations.
Extrinsic evidence of the agreement’s terms is thus irrelevant, and cannot be relied upon.
[Citation.] ‘[T]he parol evidence rule, unlike the statute of frauds, does not merely serve
14
an evidentiary purpose; it determines the enforceable and incontrovertible terms of an
integrated written agreement.’ [Citations.] The purpose of the rule is to ensure that the
parties’ final understanding, deliberately expressed in writing, is not subject to change.
[Citation.]” (Riverisland, supra, 55 Cal.4th at p. 1174.)
If, as Smeed contends, the contract was fully integrated, then Smeed was obligated
to convey to Galtar 1,768 acres of property as provided in the contract; no prior or
contemporaneous agreement, understanding, or representation by Smeed, his attorneys,
or the escrow company, could vary the terms of the writing.
At trial, the evidence concerning the amount of land conveyed was confusing.
Smeed testified he sold the land by lot, not by acreage; he did not know how many acres
were actually conveyed. The title company’s second preliminary title report, dated May
17, 2006, was presented. On May 30, 2006, Smeed, through his attorney, represented to
Galtar that this title report contained all the parcels that were the subject of the
transaction. On June 1, 2006, the title company represented the land included in the
preliminary title report consisted of 57 parcels and 1,696 acres. Smeed introduced a fifth
updated and amended preliminary title report, dated June 29, 2006, which omitted certain
parcels that had been included in the second preliminary title report.3
At trial, Smeed conceded he learned after close of escrow that Galtar did not
receive all of the real property the parties intended he would receive in the transaction.
He testified he offered to put all of the properties to be transferred to Galtar into Spring
Creek Estates, Inc., then transfer the corporation to Galtar to avoid having the property
reassessed for tax purposes. Galtar declined, but Smeed transferred the properties to
Spring Creek Estates, Inc. anyway. Smeed understood all the property owned by Spring
3 The second and fifth preliminary title reports were the only preliminary title reports
submitted; the title company was out of business and had an incomplete file for the transaction,
and the parties either did not receive or did not retain copies of any other preliminary title
reports.
15
Creek Estates, Inc. was conveyed to Galtar through escrow. In 2008, he sold Spring
Creek Estates, Inc., which he believed to be a shell corporation without assets, to Robert
Ford. Smeed subsequently learned that Ford sold lots in Montclair Estates, at least one of
which should have been transferred to Galtar, but instead had remained in Spring Creek
Estates, Inc. Ford later quitclaimed to Smeed three parcels he obtained through his
purchase of Spring Creek Estates, Inc.; Smeed contended two of them were not intended
to be part of the Galtar-Smeed transaction.
In September 2006, Brumfield wrote to Smeed’s attorney asserting only 1,696
acres had been transferred and attaching a spreadsheet showing how the acreage was
calculated. In December 2006, Galtar wrote to the title insurer, making a claim that the
acreage conveyed was short 204 acres. Merhi testified Smeed subsequently conveyed to
Galtar an additional four lots, totaling about 80 acres; after that, Brenner calculated
Galtar only received 1641 acres. Lisa DeSantiago, who began performing services for
Galtar in August 2007, testified Galtar obtained the four lots either before her
employment or at the beginning of it, when another secretary was handling the matter for
Galtar. DeSantiago never saw any deeds conveying the four additional parcels to Galtar.
No deeds to an additional four lots were introduced at trial.
In 2008, Brenner investigated to determine whether the acreage promised was
actually conveyed. He obtained the documents available from the escrow company and
the lender, and had paralegals do research at the recorder’s office to match the assessor’s
parcel numbers. His office prepared a spreadsheet identifying the lots that were
transferred to Galtar; Brenner concluded the acreage transferred was 1,641.40 acres.
If the contract was fully integrated, as contended by Smeed, it required Smeed to
convey to Galtar 1,768 acres of real property. The evidence, however, did not show
Smeed conveyed 1,768 acres to Galtar. Rather, the evidence indicated as of May 30,
2006, Smeed had placed only 1,696 acres in escrow to be transferred to Galtar. Between
16
execution of the contract and close of escrow, some of the parcels were deleted or
omitted from the preliminary title report. Some of the parcels that were intended to be
conveyed to Galtar in the Galtar-Smeed transaction were not conveyed at close of
escrow, but remained in Spring Creek Estates, Inc., and were transferred to Ford. Based
on his independent investigation of public records and other sources, Brenner concluded
only 1,641 acres had been transferred to Galtar. On these facts, we cannot say that no
reasonable attorney would have thought Galtar’s claim for breach of contract against
Smeed was legally tenable.
The contract between Galtar and Smeed was not a fully integrated contract,
however. The contract recited: “The real property subject to said purchase and sale
transaction is described in the attached exhibit ‘A,’ and is commonly known as Montclair
Estates, Spring Creek Estates, and Section 27.” The definition of the term “real property”
again referred to “exhibit ‘A’ attached hereto.” The page headed exhibit A, however,
states, “See pages A-1 to A-19 attached hereto,” but has no pages A-1 to A-19 attached to
it. The testimony indicated the parties and Galtar’s attorney had not seen pages A-1
through A-19, and the pages probably were never attached to the contract. Thus, the
contract indicates the parties intended to specifically describe the property that was the
subject of the transaction, but the final version of the contract did not include such a
description. Extrinsic evidence was admissible to determine what property was to be
conveyed in the transaction.
The parties agreed the transaction included parcels in Spring Creek Estates,
Montclair Estates, and Section 27, but excluded Pine Ridge Estates. Smeed testified the
transaction included all the parcels in Spring Creek Estates and Section 27, and the
parcels in Montclair that had not already been sold to others. Merhi testified he believed
the deal initially was for all the lots in Spring Creek Estates, Montclair Estates, and
Section 27; Smeed later said some of the lots in Montclair had been sold already, and he
17
could not bring them back to sell to Galtar. Thus, it was undisputed the final contract
was for all of Spring Creek Estates and Section 27, and the remaining lots in Montclair
Estates.
It was Galtar’s position that the 19-page property description intended to be
attached to the contract was the 19-page property description included in the second
preliminary title report. That report was issued by the title company on May 17, 2006,
shortly before the final version of the contract was prepared and signed. In an e-mail
exchange on May 30, 2006, Brumfield asked Stump for “an explanation as to why the
1900 or so acres went down to 1786. If that’s correct, what was sold and which parcels
from the title report are not part of the deal with Galtar?” Stump responded: “I have
spoken with Mr. Smeed on the acreage issue. His response is that 18 months ago there
were just shy of 1900 acres. Since that time, the difference has been sold. The
Preliminary Title Report provided to you (after Mr. Smeed provided it to me) contains all
the properties that are the subject of the deal according to Mr. Smeed.”
On June 1, 2006, in an e-mail exchange, Galtar asked for confirmation of the
number of parcels and total acreage included in the preliminary report; the title company
responded there were 57 parcels (rather than the 61 reflected in the second preliminary
title report) and 1,696.63 acres. Both parties executed a written contract in which Smeed
expressly represented the property being sold consisted of 1,768 acres, and Galtar
“approve[d] the preliminary report submitted to counsel for Buyer on May 24, 2006.”
The deeds did not transfer all of the parcels listed in the second preliminary title
report. The deed from the Estate of Robert Martin to Galtar conveyed the parcels
identified in the second preliminary title report as parcel M and parcel T, with the
exception of parcel 31 of parcel map 6717, which was listed as part of parcel M. There
was evidence parcel 31 of parcel map 6717 was in escrow to be sold to Sam Bassil prior
to execution of the Galtar-Smeed contract and it was not intended to be part of the Galtar-
18
Smeed sale. The deed from Spring Creek Estates, Inc. conveyed the remaining parcels
listed in the second preliminary title report, with the exception of parcels L, Q, S, and V.
Each is described as a parcel of a specified parcel map waiver, and as a portion of a
specified parcel on parcel map 6717, which was identified at trial as Montclair Estates.
When asked about the parcels listed in the second preliminary title report as parcels Q
and S, Smeed denied transferring any parcel map waivers. The descriptions of the
parcels listed in the second preliminary title report as parcels Q, S, and V matched the
descriptions of parcels Ford conveyed from Spring Creek Estates, Inc. to the Jerry R.
Jacks Family Trust in August 2008, after Ford purchased Spring Creek Estates, Inc. from
Smeed. Smeed conceded some parcels that were transferred by Ford to the Jerry R. Jacks
Family Trust were parcels in Montclair that were not sold to others prior to the sale to
Galtar. The description of the parcel listed as parcel L in the second preliminary title
report matched the description of a parcel Ford quitclaimed back to Smeed after Smeed
learned there were still parcels owned by Spring Creek Estates, Inc. when he sold the
corporation to Ford.
The undisputed parol evidence indicated the parties agreed to the sale and
purchase of all of the parcels in Spring Creek Estates and Section 27, and all of the
parcels of Montclair Estates owned by Spring Creek Estates, Inc. at the time the contract
was executed that were not in the process of being sold to others. Smeed conceded Ford,
through his purchase of Spring Creek Estates, Inc., acquired parcels in Montclair that had
not been sold to others and therefore should have been transferred to Galtar.
Accordingly, we conclude plaintiff failed to establish defendants lacked probable cause to
bring their breach of contract cause of action. In the absence of the essential element of
lack of probable cause, the trial court erred in concluding plaintiff established that the
breach of contract cause of action was maliciously prosecuted.
19
2. Misrepresentation causes of action
The remaining three causes of action of the underlying complaint relied on
allegations of intentional or negligent misrepresentation. The elements of intentional
misrepresentation are: “(1) misrepresentation of a material fact (consisting of false
representation, concealment or nondisclosure); (2) knowledge of falsity (scienter); (3)
intent to deceive and induce reliance; (4) justifiable reliance on the misrepresentation;
and (5) resulting damage.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner &
Smith, Inc. (1998) 68 Cal. App. 4th 445, 481.) The elements of negligent
misrepresentation are: “‘[M]isrepresentation of a past or existing material fact, without
reasonable ground for believing it to be true, and with intent to induce another’s reliance
on the fact misrepresented; ignorance of the truth and justifiable reliance on the
misrepresentation by the party to whom it was directed; and resulting damage.
[Citation.]’ [Citation.]” (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal. App. 4th 967,
983.)
“In California, fraud must be pled specifically; general and conclusory allegations
do not suffice. [Citations.] ‘Thus “‘the policy of liberal construction of the pleadings ...
will not ordinarily be invoked to sustain a pleading defective in any material respect.’”’”
(Lazar v. Superior Court (1996) 12 Cal. 4th 631, 645.) The underlying complaint alleged
that, on or about May 31, 2006, Smeed and Spring Creek Estates, Inc. falsely represented
that 1,942 acres of property would be transferred to Galtar, along with the Quail Valley
Water District, with five seats on the board, and specified heavy equipment. Instead,
only 1641.60 acres were transferred, and the water district and heavy equipment were
never transferred.
The trial court found there was no evidence to support a finding that Smeed
represented the acreage to be conveyed to Galtar was 1,942 acres. That finding is
supported by substantial evidence. In the contract itself, Smeed represented the acreage
20
was 1,768 acres. Merhi testified he did not speak with Smeed during May 2006.
Although Merhi asserted that, at the initial meeting with Merhi, Smeed and Ford present,
they discussed Merhi taking over Ford’s contract to purchase 1,942 acres, Merhi admitted
he knew before he signed the Galtar-Smeed contract that only 1,768 acres were to be
conveyed.
The trial court also found Merhi could not have justifiably relied on a
representation that Smeed was selling 1,942 acres to Galtar. Even if Smeed initially
represented the transaction involved 1,942 acres, at the time Merhi signed the contract, he
could not reasonably have relied on that representation, because he was aware some of
the property had been sold and Smeed represented in the contract that only 1,768 acres
were being conveyed.
The trial court concluded there was no probable cause to bring the claim for
misrepresentation based on the failure to convey the water district. The written contract
did not provide for the transfer of ownership of the water district; it provided only that
“all records and other supplies needed to operate the Water District” were part of the
personal property to be transferred to Galtar. Galtar and Merhi admitted in response to a
request for admission that Smeed’s attorney sent the records relating to the water district
to Galtar prior to execution of the contract. In response to an e-mail in which Brumfield
asked for written assurance that the water rights Smeed controlled, directly or indirectly,
would be conveyed to Galtar, Stump responded: “Whatever Smeed has will be sold in
the deal to Ford [sic]. Quail Valley Water District has the water rights within that 21
square miles and controls water rights.… Smeed is unable to ‘convey’ water rights, but
they are controlled by Quail Valley Water District, a State agency, and will go with the
property in the sale contemplated.” Smeed testified the water district was a state agency
and not something that could be transferred back and forth; it required five people on the
board who knew how to run a water district. It was his intention to retain control over
21
who was placed on the board of directors until Galtar brought in suitable people. After
close of escrow, Merhi suggested two people he wanted on the board; both were Nevada
residents and Smeed told Merhi board members had to be California residents. Merhi did
not thereafter suggest any California residents to be named to the board. Substantial
evidence supports the trial court’s factual findings on which it based its conclusion the
misrepresentation claim arising out of the failure to convey the water district was not
legally tenable. The evidence supported a finding that either Smeed did not represent the
water district would be transferred to Galtar or Galtar could not reasonably have relied on
such a representation because it was not included in the final contract and Galtar knew
prior to execution of the contract that the water district was a state agency.
Substantial evidence also supports the trial court’s finding that all of the personal
property equipment that was to be transferred to Galtar “was received by or for the
benefit of Galtar,” so the misrepresentation claim based on failure to transfer that
property was not a tenable claim. The contract required Smeed to deliver to escrow a bill
of sale conveying title to the personal property to Galtar. On closing, the title company
was to deliver the original bill of sale to Galtar. A copy of a bill of sale, signed by Smeed
and dated May 31, 2006, was included as exhibit C to the final contract sent to Galtar.
Smeed testified he believed the original bill of sale was deposited in escrow; Merhi
denied receiving it from the escrow company. Smeed testified he gave the pink slips for
the heavy equipment to Ford; Merhi testified Ford told him Smeed kept the equipment.
There was evidence Ford, Merhi’s brother, and others came to the property where the
equipment was located, then later sent trucks over to remove the equipment. Invoices
from August 2006 showed a towing company may have removed some of the equipment
and transported it to an auction company or to other land owned by Merhi; the invoices
listed Galtar as the customer and Ford as its contact person. Galtar paid the cost reflected
in the invoices. Galtar’s records also showed receipt of money from an auction company
22
and payment of the same sum to Ford. Substantial evidence supports the trial court’s
finding that the equipment “was received by or for the benefit of Galtar.” Consequently,
at the time Galtar filed its complaint against Smeed, it did not have probable cause to
believe Smeed had misrepresented his intent to transfer the equipment to Galtar or Galtar
had been damaged by a failure to transfer the equipment.
Based on its factual findings, the trial court properly concluded plaintiff
established the element of lack of probable cause to bring the misrepresentation causes of
action (the first, third, and fourth causes of action) of the underlying complaint.
D. Malice
Galtar does not contend the trial court erred in finding the malice element of
Smeed’s cause of action was established.
Thus, the trial court properly determined that plaintiff established the elements of
malicious prosecution of the misrepresentation causes of action, but erred in concluding
the elements were met with respect to the breach of contract cause of action.
IV. Reliance on Advice of Counsel Defense
“Reliance upon the advice of counsel, in good faith and after full disclosure of the
facts, customarily establishes probable cause.” (Sosinsky v. Grant (1992) 6 Cal. App. 4th
1548, 1556 (Sosinsky).) Because it negates an element of the plaintiff’s cause of action,
reliance on advice of counsel is a complete defense to an action for malicious
prosecution. To establish it, the defendants must “‘prove that they have in good faith
consulted a lawyer, have stated all the facts to him, have been advised by the lawyer that
they have a good cause of action and have honestly acted upon the advice of the lawyer.’
[Citations.]” (Ibid.) Whether the defendants made a full and fair disclosure of all the
facts to the attorney is a question of fact for the trier of fact. (Weber v. Leuschner (1966)
240 Cal. App. 2d 829, 838.)
23
The trial court concluded the defense of reliance on advice of counsel was not
established, because Galtar did not make a full disclosure, in good faith, to Brenner
before he filed the complaint. It found “Brenner was not fully advised concerning the
history or document content, and he admitted that he would have reconsidered filing the
action had he been fully advised, and would have withdrawn from representation of
Galtar.” Merhi and his employee, DeSantiago, testified DeSantiago sent Galtar’s entire
file for the Galtar-Smeed transaction to Brenner when he began his representation of
Galtar. They provided additional documents when Brenner visited Galtar’s office in Las
Vegas. DeSantiago also sent more documents as she located them. Brenner, however,
testified many documents seemed to be missing; he repeatedly asked if Galtar had any
further documents.
Brenner testified Merhi told him he never received any of the heavy equipment.
The trial court found “the overwhelming evidence … indicates all equipment was
received by or for the benefit of Galtar.” The trial court thereby rejected Merhi’s
testimony that he did not receive the equipment and did not know what happened to it,
and credited the evidence that Smeed gave the pink slips to Ford, Ford and Merhi’s
brother removed the heavy equipment, Galtar paid for transportation of the equipment to
auction, and the proceeds of the auction sale went into Galtar’s account before being
released to Ford. Galtar also did not inform Brenner that it had received the records
needed to operate the water district, which were part of the equipment to be transferred
pursuant to the contract. Additionally, there was evidence Galtar and Merhi failed to
advise Brenner which attorneys performed work for Galtar (and arguably represented it)
in the transaction; that, for a short period, Galtar leased office space from Smeed and
hired an employee to work there and operate the water district; and that Galtar made a
claim against the title company and received an additional 80 acres of land.
24
Further, the trial court found “Merhi did not affirmatively advise Mr. Brenner of
the existence of exhibit [No.] 38, nor the fact of his telephone conversation with attorney
Brumfield.” Exhibit No. 38 was the exchange of e-mails in which Galtar asked for
confirmation of the number of parcels and acreage to be transferred, the escrow company
advised there were 57 parcels and 1,696.63 acres, the response was forwarded to
Brumfield, and he suggested Galtar sign the contract and confront Smeed about the
shortage of acreage later. In an excerpt from his deposition, which was read at trial,
Merhi testified Brumfield advised him in an e-mail and by telephone to sign the contract
and sue Smeed later for the difference. At trial, Merhi denied knowing about the e-mails
in exhibit No. 38 or about the reduction of acreage below 1,768 acres prior to signing the
contract.
Galtar and Merhi argue they made a sufficient disclosure by giving Brenner the
documentation they had, because Brenner was able to investigate and obtain the
necessary information from other sources. While it may be sufficient to provide an
attorney with the contract or document about which legal advice is requested, and leave it
to the attorney to review the document to learn its contents, the client is still required to
disclose all relevant facts when they are necessary to a comprehensive understanding of
the entire transaction about which legal advice is requested. (Bisno v. Douglas Emmett
Realty Fund 1988 (2009) 174 Cal. App. 4th 1534, 1545-1546, fn. 8.) Substantial evidence
supports the trial court’s finding that Galtar and Merhi failed to adequately disclose the
relevant facts to Brenner prior to the filing of the complaint in the underlying action, and
therefore the reliance on advice of counsel defense was not established.
Citing Code of Civil Procedure section 634,4 Galtar and Merhi argue: “Because
Galtar timely requested a Statement of Decision asking the court to specify what had
4 Code of Civil Procedure section 634 provides: “When a statement of decision does not
resolve a controverted issue, or if the statement is ambiguous and the record shows that the
omission or ambiguity was brought to the attention of the trial court either prior to entry of
25
been withheld from Brenner, the doctrine of implied findings does not apply and the
appellate court may not infer that the court made other findings favorable to its
determination on this issue.” We disagree. “This argument invokes the statutory rule
that where a request for a statement of decision properly specifies an issue for resolution
by the court, and the court fails after objection to address that issue in the statement of
decision, a reviewing court ‘shall not … infer[] on appeal … that the trial court decided
in favor of the prevailing party as to those facts or on that issue.’ [Citation.] Operation
of this rule, however, is conditioned on (1) an initial request that adequately ‘specif[ies]’
the ‘principal controverted issues’ as to which the requesting party seeks a statement of
decision [citation]; (2) a failure by the statement to ‘resolve’ the ‘controverted issue’ thus
specified, or an ambiguity in its resolution [citation]; and (3) a record showing that ‘the
omission or ambiguity was brought to the attention of the trial court’ [citation].” (Yield
Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal. App. 4th 547, 558 (Yield
Dynamics).)
Although Code of Civil Procedure section 6325 does not define the “principal
controverted issues” that must be included in the statement of decision, “it is settled that
the trial court need not, in a statement [of] decision, ‘address all the legal and factual
issues raised by the parties.’ [Citation.] It ‘is required only to set out ultimate findings
rather than evidentiary ones.’ [Citation.] ‘“[U]ltimate fact[]”’ is a slippery term, but in
general it refers to a core fact, such as an element of a claim or defense, without which
judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on
appeal or upon a motion under Section 657 or 663 that the trial court decided in favor of the
prevailing party as to those facts or on that issue.”
5 Code of Civil Procedure section 632 provides, in relevant part: “In superior courts, upon
the trial of a question of fact by the court, written findings of fact and conclusions of law shall
not be required. The court shall issue a statement of decision explaining the factual and legal
basis for its decision as to each of the principal controverted issues at trial upon the request of
any party appearing at the trial.”
26
the claim or defense must fail. [Citation.]” (Yield Dynamics, supra, 154 Cal.App.4th at
p. 559, some bracketed insertions added.)
Galtar and Merhi requested a statement of decision addressing specified matters,
including: “Whether, prior to the commencement of the prior action, Galtar and Merhi
fully and fairly disclosed to Robert Brenner all of the facts and information within their
knowledge relevant to the claims made in the prior action and if not, what facts or
information were not disclosed.” The client’s full disclosure of relevant facts to the
attorney before the advice was given is an element of the defense of reliance on the
advice of counsel. (Sosinsky, supra, 6 Cal.App.4th at p. 1556.) Thus, whether full
disclosure was made was a principal controverted issue at trial. The trial court
unambiguously resolved that issue against Galtar and Merhi, finding “Brenner was not
fully advised concerning the history or document content” and other matters. The second
part of Galtar and Merhi’s request, asking “what facts or information were not disclosed,”
did not ask for resolution of a principal controverted issue or an ultimate issue of fact; it
asked for evidentiary facts. “The second part of the question, demanding “which facts
support that finding,” is wholly beyond the scope of the statutory procedure and
warranted no response at all.” (Yield Dynamics, supra, 154 Cal.App.4th at pp. 558-559.)
Because the statement of decision resolved the controverted issue, and Galtar and Merhi
have not identified any ambiguity in that resolution, Code of Civil Procedure section 634
does not apply.
V. Damages
“[T]he measure of compensatory damages for the malicious prosecution of a civil
action includes attorney fees and court costs for defending the prior action and
compensation for emotional distress, mental suffering and impairment to reputation
proximately caused by the initiation and prosecution of the action.” (Bertero, supra, 13
Cal.3d at p. 59.) Here, Smeed sought and obtained only damages measured by his
27
attorney fees in the underlying action. Where the defendant has maliciously joined an
unjustified charge with a justified charge, the plaintiff need not show that his damage was
specifically attributable to the former. (Singleton v. Perry (1955) 45 Cal. 2d 489, 498.)
The burden of proving an apportionment between the two “must rest with the party
whose malicious conduct created the problem.” (Bertero, at p. 60.)
The trial court concluded all causes of action of the underlying complaint were
maliciously prosecuted, so it did not consider the issue of apportionment. Because we
conclude the cause of action for breach of contract was not maliciously prosecuted, we
must remand for a redetermination of the damages, compensatory and punitive, that
should be awarded as a result of the malicious prosecution of the remaining causes of
action.
VI. Award of Attorney Fees as Costs
The trial court awarded Smeed his attorney fees incurred in the malicious
prosecution action as recoverable costs of litigation, based on an attorney fee provision in
the purchase contract. Attorney fees are recoverable as costs when they are authorized by
contract. (Code Civ. Proc., § 1033.5, subd. (a)(10)(A).) The Galtar-Smeed contract,
section 7.1, provided: “Should either party institute any action or proceeding to enforce
or interpret this Agreement or any provision hereof, for damages by reason of any alleged
breach of this Agreement or of any provision hereof, or for a declaration of rights
hereunder, the prevailing party in any such action or proceeding shall be entitled to
receive from the other party all costs and expenses, including actual attorneys’ and other
fees, incurred by the prevailing party in connection with such action or proceeding.”
Whether a contract provision authorizes an award of attorney fees to a party who
prevailed on a tort cause of action depends upon the language of the contractual
provision. (Exxess Electronixx v. Heger Realty Corp. (1988) 64 Cal. App. 4th 698, 708
(Exxess).) “‘If a contractual attorney fee provision is phrased broadly enough, … it may
28
support an award of attorney fees to the prevailing party in an action alleging both
contract and tort claims.’” (Ibid.) The ordinary rules of contract interpretation apply:
“‘“Under the statutory rules of contract interpretation, the mutual intention of the parties
at the time the contract is formed governs interpretation…. Such intent is to be inferred,
if possible, solely from the written provisions of the contract…. The ‘clear and explicit’
meaning of these provisions, interpreted in their ‘ordinary and popular sense,’ unless
‘used by the parties in a technical sense or a special meaning is given to them by usage’
…, controls judicial interpretation…. Thus, if the meaning a layperson would ascribe to
contract language is not ambiguous, we apply that meaning….”’ [Citation.]” (Id. at
p. 709.) No extrinsic evidence of the parties’ intent at the time of contracting was
offered.
The scope of the attorney fee provision is narrow. The plain language authorizes a
recovery of attorney fees only if a party “institute[s]” an action “to enforce or interpret”
the agreement, for breach of the agreement, or “for a declaration of rights” under the
agreement. It does not broadly authorize an award of attorney fees for actions “‘arising
out of the execution of the agreement,’” “‘“relating to the demised premises,”’”
“‘“relating to” the contract,’” or “‘to which “this Agreement gives rise.”’” (Gil v.
Mansano (2004) 121 Cal. App. 4th 739, 743-744.) The fee provision evinces an intent that
it be limited to contractual causes of action.
It has been held that a contractual provision authorizing an award of attorney fees
in an action to “‘enforce’” the contract or any provision of the contract does not cover
attorney fees for tort claims. (Exxess, supra, 64 Cal.App.4th at p. 709.) Likewise, a
provision authorizing attorney fees in an action to “‘declare rights’” under the contract
does not authorize an award on a tort cause of action. (Id. at p. 710.) A tort cause of
action is premised on rights and duties not created by the contract; it “‘redresses the
29
breach of the general duty to society which the law imposes without regard to the
substance of the contractual obligation.’ [Citation.]” (Id. at p. 711.)
We conclude the provision in the Galtar-Smeed contract authorizing attorney fees
does not broadly authorize attorney fees in a tort cause of action for malicious
prosecution arising out of a prior action involving the contract. Smeed’s action against
Galtar and Merhi was not an action “institute[d] … to enforce or interpret this
Agreement …, for damages by reason of any alleged breach of this Agreement …, or for
a declaration of rights” under the contract. The complaint did not contain a cause of
action for damages for breach of contract or for declaratory relief. The action also was
not “institute[d] … to enforce or interpret this Agreement.” Smeed did not seek to
compel Galtar to perform under the contract, nor did he seek an interpretation of the
contract terms to enable the parties to perform, to compel specific performance, to
establish a breach, or to recover damages for a breach.
The complaint alleged malicious prosecution, a cause of action designed to redress
the harm sustained by an individual “because he is compelled to defend against a
fabricated claim which not only subjects him to the panoply of psychological pressures
most civil defendants suffer, but also to the additional stress of attempting to resist a suit
commenced out of spite or ill will.” (Bertero, supra, 13 Cal.3d at p. 50.) It sought
recovery for the damages Smeed sustained as a result of defending against the claims
pursued in the underlying action. The complaint did not combine contractual causes of
action with related tort claims seeking relief for the same injuries. It alleged a
subsequent, independent tort claim, for damages not connected with the breach or
performance of the contract. Accordingly, we conclude Smeed’s action for malicious
prosecution did not fall within the coverage of the attorney fee provision in the contract.
Smeed contends Galtar and Merhi judicially admitted in their trial briefs that the
attorney fee provision was broad, and they should be bound by that admission. “A
30
judicial admission is a party’s unequivocal concession of the truth of the matter, and
removes the matter as an issue in the case. [Citations.]” (Gelfo v. Lockheed Martin
Corp. (2006) 140 Cal. App. 4th 34, 48 (Gelfo).) It is “ordinarily a factual allegation by
one party that is admitted by the opposing party. The factual allegation is removed from
the issues in the litigation because the parties agree as to its truth.” (Barsegian v. Kessler
& Kessler (2013) 215 Cal. App. 4th 446, 452.)
The language Smeed relies on as a judicial admission was offered by Galtar and
Merhi in support of their argument that Smeed waived his right to recover attorney fees
incurred in the underlying action by failing to request them in that action after its
dismissal. Counsel for defendants stated: “In this case, the parties interpreted the
provision broadly. Prior to dismissal of the prior action, Smeed asserted that he was
entitled to the full amount of his attorney’s fees and costs incurred therein regardless of
whether such fees were incurred defending the contract claims, or the tort claims alleged
in the complaint. Galtar similarly believed that it might be exposed to payment of all of
Smeed’s fees and costs if it did not prevail in the prior action.” (Some capitalization
omitted.) First, the reference is to the position of the parties in the underlying action,
about liability for attorney fees in an action alleging breach of contract and related tort
claims, not about their positions on attorney fees in the subsequent malicious prosecution
action. Second, there was no “unequivocal concession” that the fee provision authorized
recovery of attorney fees in tort causes of action. (Gelfo, supra, 140 Cal.App.4th at p.
48.) Counsel stated “Galtar … believed that it might be exposed to” liability for Smeed’s
attorney fees, if Smeed prevailed. (Italics added.) Counsel did not concede that Galtar
would be liable for attorney fees in the underlying action; he also did not concede that
Galtar or Merhi would, or even might, be liable for Smeed’s attorney fees incurred in the
subsequent malicious prosecution action. Consequently, there was no unequivocal
31
concession by Galtar, Merhi, or their counsel that constituted a judicial admission and
established the matter without dispute.
Because the attorney fee provision in the contract was not sufficiently broad to
include attorney fees incurred in the malicious prosecution cause of action, the award of
attorney fees to Smeed as costs must be reversed.
DISPOSITION
The judgment is reversed and the matter remanded with directions to strike from
the judgment the award of attorney fees as costs and to reconsider and determine the
amount of compensatory and punitive damages to be awarded in light of our
determination that the breach of contract cause of action was not maliciously prosecuted.
The parties shall bear their own attorney fees and costs on appeal.
_____________________
HILL, P. J.
WE CONCUR:
_____________________
GOMES, J.
_____________________
KANE, J.
32 | 01-03-2023 | 08-20-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/540472/ | 902 F.2d 28Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.William DOWNS, Plaintiff-Appellant,v.Lauro F. CAVAZOS, Secretary, United States Department ofEducation, Defendant-Appellee,andM. Peter MCPHERSON, Acting Secretary, United StatesDepartment of the Treasury; United States Student Aid Fund,Inc.; Internal Revenue Service, both instrumentalities ofthe United States of America, Defendants.
No. 89-2772.
United States Court of Appeals, Fourth Circuit.
Argued March 5, 1990.Decided April 13, 1990.Rehearing and Rehearing In Banc Denied June 4, 1990.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Norman P. Ramsey, District Judge. (CA-88-2662-R)
Edward Lee Blanton, Jr., Blanton & McCleary, Baltimore, Md., argued for appellant.
Ira C. Lupu, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for appellee;
Stuart M. Gerson, Assistant Attorney General, William Kanter, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C.; Elizabeth Harris, Office of General Counsel, United States Department of Education, Washington, D.C.; Breckinridge L. Willcox, United States Attorney, Larry D. Adams, Assistant United States Attorney, Baltimore, Md., on brief.
D.Md.
AFFIRMED.
Before MURNAGHAN, Circuit Judge, BUTZNER, Senior Circuit Judge, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.
PER CURIAM:
1
William Downs seeks a declaration in this appeal that 31 U.S.C. Sec. 3720A and 26 U.S.C. Sec. 6402(d) deprive him of his Seventh Amendment right to a jury trial. The two statutes direct federal agencies to refer debts owed the federal government to the Secretary of the Treasury and authorize the Secretary to collect the debts by keeping any tax refunds debtors would otherwise receive. In this case Downs's 1986 tax refund was retained to satisfy an educational debt he owed the Department of Education.
2
The district court granted summary judgment on the Seventh Amendment issue as well as Downs's other constitutional challenges to the statutes. Because we find no merit in Downs's appeal, we affirm for reasons adequately stated by the district court. See Downs v. McPherson, C/A No. 88-2662-R (D.Md. July 17, 1989).
3
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/540483/ | 902 F.2d 28Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Lena Albert FLEEK, Plaintiff-Appellant,v.Gerald M. O'DONNELL, Attorney; George F. Ball, Jr.,Attorney; John P. Devers, Attorney; Office of Bar Counsel,the Board of Professional Responsibility; Law Firm ofRobert G. Mayer; Robert G. Mayer; Leda A. Gottlieb,Attorney; Bennett A. Brown, Attorney; Virginia State Bar;Thomas J. Rothrock, III; Gary V. Davis, Attorney; Ian M.O'Flaherty, Attorney; Marshall Jenkins, Attorney; JeffreyD. Krause, Attorney; Horace McClerklin, Attorney; A.Albert Balavage, Attorney; Law Firm of Hoeting, Tuttle &Woehrie, P.C.; Gerald Oakley, Attorney; Roger Nord,Attorney; Daniel R. McGarry, Attorney; Daniel McGuire;John N. Price, Attorney; Jack K. Wyatt, Sr.; John E.Kilcarr Defendants-Appellees.
No. 90-2003.
United States Court of Appeals, Fourth Circuit.
Submitted April 2, 1990.Decided April 16, 1990.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Chief District Judge. (C/A No. 89-1293-A)
Lena Albert Fleek, appellant pro se.
John J. Brandt, Robert S. Corish, Slenker, Brandt, Jennings & Johnston, Merrifield, Va.; George F. Ball, Jr., Ball & Ball, P.C., Alexandria, Va.; Thomas C. Power, Melrod, Redman & Gartlan, Washington, D.C.; Bennett Allan Brown, Gilliam, Sanders & Brown, Fairfax, Va.; Calvin Forrest Tiller, Office of the Attorney General of Virginia, Richmond, Va.; Norman A. West, Godard & West, P.C., Fairfax, Va.; Horace McClerklin, Wiggs & McClerklin, Alexandria, Va.; George E. Tuttle, Jr., Springfield, Va.; Gerald Wayne Oakley, Law Office of Raymond B. Benzinger, Arlington, Va., for appellees.
E.D.Va.
AFFIRMED.
Before ERVIN, Chief Judge, and PHILLIPS and CHAPMAN, Circuit Judges.
PER CURIAM:
1
Lena Albert Fleek appeals from the district court's order dismissing her action. Fleek alleged that the defendants committed numerous RICO violations, fraud, and legal malpractice against her and a company of which she was the director. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Fleek v. O'Donnell, CA-89-1293-A (E.D.Va. Nov. 17, 1989).
2
On appeal several of the appellees have requested that this court award them costs and attorney fees or impose sanctions on Fleek pursuant to Fed.R.Civ.P. 11. We interpret these requests as motions under Fed.R.App.P. 38. Because Fleek is proceeding pro se and in forma pauperis, we decline to impose the sanctions requested. However, Fleek is warned that any future irresponsible filing of a meritless appeal may result in the imposition of sanctions at that time.
3
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/540516/ | 902 F.2d 30Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Reginald Clinton STITT, Petitioner-Appellant,v.Edward W. MURRAY, Director, Respondent-Appellee.
No. 89-6879.
United States Court of Appeals, Fourth Circuit.
Submitted March 19, 1990.Decided April 19, 1990.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Chief District Judge. (C/A No. 89-451-R)
Reginald Clinton Stitt, appellant pro se.
Robert Quentin Harris, Assistant Attorney General, Richmond, Virginia, for appellee.
W.D.Va.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Before MURNAGHAN and SPROUSE, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
1
Virginia inmate Reginald Clinton Stitt seeks to appeal the district court's dismissal of his 28 U.S.C. Sec. 2254 habeas petition, which contained seven separate claims of ineffective assistance of counsel. The district court ruled that, because Stitt had raised only two of the seven claims in his earlier state habeas appeal and Virginia law deems claims not raised on appeal to be waived, Stitt was procedurally barred from raising in federal court the five claims he failed to appeal in state court. We agree with the district court that Stitt's failure to raise these claims before Virginia's Supreme Court constitutes a procedural default which prevents him from raising the claims in this federal petition. Therefore, we affirm the district court's dismissal of those five claims on that basis.
2
The district court did address the merits of the two ineffective assistance claims raised by Stitt on appeal from the state circuit court's denial of habeas relief. Stitt's first claim was that his trial attorney refused to raise a self-defense issue, as Stitt had requested. The district court dismissed Stitt's first claim by applying a presumption of correctness to a state court's factual finding, made after a plenary hearing, that Stitt had denied committing the crime in question and had never confessed to his attorney that he had committed that crime.
3
A federal court may apply a presumption of correctness to the factual findings made at a state evidentiary hearing when there is some reliable record of the proceedings, unless the petitioner demonstrates that the hearing was inadequate because of one of the eight reasons enumerated in 28 U.S.C. Sec. 2254(d). To determine whether any of these exceptions apply, the district court should call for and examine the state record. Townsend v. Sain, 372 U.S. 293, 319 (1963). Ordinarily the state court record is indispensable to determining whether the habeas applicant received a full and fair state court evidentiary hearing resulting in reliable findings. Id. Remand is appropriate when the district court fails to obtain state records before applying the presumption of correctness. Id.
4
The district court was permitted to rely on the factual findings made by the state court after a hearing only if there was a reliable record of those proceedings and none of the eight statutory criteria listed in 28 U.S.C. Sec. 2254(d) applied. Because the district court failed to obtain and review the state records it needed to make such a determination, we vacate the district court's dismissal of this claim and remand for filing and consideration of these records.
5
The district court also dismissed Stitt's second claim. Stitt alleged that his counsel's failure to present the homosexual relationship between Stitt and his victim as a mitigating factor constituted ineffective assistance. The district court held that Stitt's claim failed to allege conduct which fell below objective standards of reasonableness and thus, failed to satisfy the first prong of the two-pronged test set forth in Strickland. We agree with the district court and hold that its dismissal of this claim was proper.
6
In summary, we grant a certificate of probable cause and affirm the district court's dismissal of the five claims which Stitt raised here but not in his habeas appeal to the Virginia Supreme Court. We also affirm the district court's dismissal of the homosexual relationship claim. However, we vacate the district court's dismissal of Stitt's first ineffective assistance claim and remand for further proceedings on that claim.
7
AFFIRMED IN PART; VACATED AND REMANDED IN PART. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1920554/ | 337 A.2d 517 (1975)
Application of DELMARVA POWER & LIGHT COMPANY for changes in rates in accordance with § 151, Title 26, Delaware Code.
Superior Court of Delaware, New Castle.
April 17, 1975.
E. D. Griffenberg, Jr., of Potter, Anderson & Corroon, Wilmington, for Delmarva Power & Light Co.
William D. Bailey, Jr., of Bayard, Brill & Handelman, Wilmington, for Public Service Comm.
*518 BALICK, Judge.
This is the court's opinion on the appeal by Delmarva Power & Light Company from an order of the Public Service Commission on an application for an increase in gas rates. The Commission allowed about one third of the proposed increase. Delmarva raises three grounds in support of its appeal.
The Commission's statutory duty of fixing just and reasonable rates has been explained by the Supreme Court, Application of Wilm. Suburban Water Corp., Del. Supr., 8 Storey 494, 211 A.2d 602, 605 (1965), as follows:
26 Del.C. § 155, requires the Commission to fix "just and reasonable" rates to be charged by a public utility. The rates so fixed shall be such as to yield a fair return to the utility upon the present fair value of the property dedicated to public use. A fair return to the utility is defined as sufficient earnings to enable the utility to pay its operating expenses, to attract new capital for expansion purposes, and to pay a fair return to its stockholders.
The Commission determined that the fair value is $48 million and the fair rate of return 8.25 per cent. It then concluded, by analysis of the test year, that the allowed increase will give Delmarva an opportunity of achieving a fair return of $3,960,000.
The first ground of appeal is that the Commission erred in considering 1972 but ignoring 1973 and 1974 in determining whether the proposed rate increase is just and reasonable. The increase was put into effect under bond on June 1, 1973. The parties agreed on 1972 as a test year. The Commission nevertheless requires estimates of the future effect of an increase. Early in the proceedings Delmarva submitted estimates for 1973 and 1974. At the final hearing it submitted a revision of the earlier estimates based on the actual 1973 figures and the 1974 budget. It contends that this evidence shows that the proposed increase is needed to achieve the fair return determined by the Commission. The position of the Commission is that it was not bound to accept this evidence, which it did not have sufficient time to thoroughly investigate.
Rate fixing is prospective: the rates should be just and reasonable in the forseeable future as well as the present. Use of a test year for particular study is accepted practice. The test year, which is past experience, is evaluated as a basis for predicting the future. While the Commission has discretion in setting the test year, this does not mean that it may arbitrarily refuse to consider later available accurate information. Application of Diamond State Tel. Co., Del.Super., 9 Terry 317, 103 A.2d 304, 322 (1954); Application of Wilm. Suburban Water Corp., Del.Super., 8 Storey 8, 203 A.2d 817, 831, 838 (1964). Later information is especially important as a check on the continuing validity of the test year experience in a period of rapid change like the present. Ignoring later information increases the likelihood of frequent costly and unsettling rate proceedings.
The policy of prompt decisions in rate proceedings, 26 Del.C. § 157(b), is important, but must be balanced against the Commission's ultimate duty of fixing just and reasonable rates. The Commission itself scheduled hearings until the actual *519 1973 figures became available and were introduced into evidence. It has broad powers of inspection, 26 Del.C. § 125, and need not accept book entries without investigation. Application of Wilm. Suburban Water Corp., Del.Super., 8 Storey 8, 203 A.2d 817, 831 (1964). It had already investigated Delmarva's 1972 accounts and accepted the statement of earnings. It does not appear, and there is no reason to assume, that the method of calculating the 1973 figures is significantly different. It is thus unlikely that verification of the 1973 figures would take undue time or effort. It was error, under these circumstances, not to consider this evidence, and I must remand the case for that purpose, with leave to hold further hearings if necessary.
The second ground of appeal is that the Commission erred by giving insufficient weight to reproduction costs in determining that the fair value rate base is $48 million. The Commission found the original cost rate base to be $43,830,247, which is close to the book value claimed by Delmarva. Delmarva claims, based on the Handy-Whitman Index of Public Utility Construction Costs, that the reproduction cost of its property exceeds $80 million. It contends that the Commission, having previously accepted the Handy-Whitman Index, should be estopped from suddenly rejecting it and that this was arbitrary.
Many factors are considered in determining fair value. 26 Del.C. § 126. The Commission must give them proper weight based on the evidence presented in each case. Application of Diamond State Tel. Co., Del.Supr., 10 Terry 203, 113 A.2d 437, 440. It has never adopted a policy of uniformly assigning a particular weight to the Handy-Whitman Index. In the electric rate case in which it previously considered the Index, the Commission expressly indicated doubt about its validity. Application of Delmarva Power & Light Co., PSC Docket No. 602, p. 14 (1971). Moreover, fair notice that these doubts were still present was given early in these proceedings by cross-examination of the witness who testified on the Index. The Commission must be free to learn by experience and to develop its view on various methods of valuation.
The Commission did not arbitrarily reject the Index, but rather offered a reasonable explanation for giving it little weight. Its opinion then says as follows:
Recognizing the fact of inflation, and mindful of the requirement that consideration be given to cost of reproduction, we conclude, on the record made, that consideration of all factors described in 26 Del.C. § 126, in the manner required by the Supreme Court, indicates a fair value rate base of $48,000,000.
Even under the doctrine of broad judicial review, which seems to have prevailed over earlier opinions to the contrary, the Commission's valuation, which involves complex and difficult economic judgments, must be given considerable weight. Application of Diamond State Tel. Co., Del. Supr., 9 Terry 497, 107 A.2d 786 (1954), modified 10 Terry 203, 113 A.2d 437 (1954); Application of Wilm. Suburban Water Corp., Del.Supr., 8 Storey 494, 211 A.2d 602, 605 (1965). The Commission will nevertheless be reversed if its valuation is unreasonable in light of contrary evidence in the record. Application of Diamond State Tel. Co., Del.Supr., 10 Terry 203, 113 A.2d 437, 441. While Delmarva has not shown this, on remand the Commission should explain its conclusion more fully for the purpose of review, as required by statute. 26 Del.C. § 183(b).
The third ground of appeal is that the Commission erred in deducting a deficiency in the depreciation reserve from the fair value rate base. Delmarva does not dispute that there was a deficiency of $1,574,000 at the end of 1971. This determination is based on the report of consultants retained by Delmarva to review its depreciation reserve. Delmarva contends that this deduction penalizes it for adopting *520 a policy of periodic review, which should be encouraged.
The Commission must consider evidence of depreciation in determining the fair value rate base. It was reasonable to deduct the deficiency from the rate base so that Delmarva will not earn a return on more than the fair value of its property. Application of Wilm. Suburban Water Corp., Del.Super., 8 Storey 8, 203 A.2d 817, 828 (1964). If the Commission concludes that a policy of periodic review of depreciation is desirable, it has other means of achieving it. 26 Del.C. § 130.
Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920621/ | 245 Pa. Super. 337 (1976)
369 A.2d 431
COMMONWEALTH of Pennsylvania
v.
Irvin KNIGHT, Appellant.
Superior Court of Pennsylvania.
Submitted December 16, 1975.
Decided November 22, 1976.
*339 Terry W. Knox, West Chester, for appellant.
Timothy H. Knauer, Assistant District Attorney, West Chester, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
WATKINS, President Judge:
This is an appeal from an order of the Court of Common Pleas of Chester County dismissing a Petition under the Post Conviction Hearing Act after an evidentiary hearing. The appellant alleged inadequacy of counsel because of improper dual representation.
The proceedings arose out of an incident which occurred at an apartment complex on April 19, 1970, involving the appellant, Irvin Knight, Herbert Handy and John Mitchell. The appellant was represented in all proceedings, except in the instant appeal, by Attorney William McLaughlin who also represented Handy. Mitchell had separate counsel throughout the trial.
At the time of his arrest, Handy gave a written statement to the officers which incriminated himself and the other co-defendants. All were tried together and all were convicted. The appellant and Mitchell were convicted of robbery with an accomplice, assault and battery, larceny, rape and conspiracy; Handy was convicted of all these charges plus aggravated assault and battery.
*340 At the trial, the Handy statement was not introduced. Handy did not take the stand but the appellant did. The appellant in his testimony incriminated Handy as to the aggravated assault and battery, of which Handy alone was subsequently convicted. The appellant's testimony was to the effect that Handy was seen beating one of the victims with a belt buckle. The defense in both Handy's and the appellant's cases was consent to the entry on the premises and consent to the intercourse.
After the entry of the verdicts and the denial of post-trial motions, both appellant and Handy were represented by Attorney McLaughlin at sentencing. At the sentencing, Attorney McLaughlin said of Handy:
". . . And I think because of his age and he seemed to be under the instructions of that older man that he should not be dealt with on the same footing with them."
At the time of the offense appellant was 19 years old; Handy was 21 and Mitchell was 31. Both the appellant and Handy received the same sentence.
Both convictions, on appeal, were sustained by this Court per curiam. Commonwealth v. Handy, 225 Pa.Super. 721, 306 A.2d 340, (1973) and Commonwealth v. Knight, 225 Pa.Super. 729, 306 A.2d 340, (1973).
The sole question presented in this appeal is whether the dual representation by Attorney McLaughlin denied the appellant his constitutional right to effective counsel. In the light of Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354 (1974), a new trial is indicated with counsel unhampered by a conflict of interest, potential or actual.
In Commonwealth v. Breaker, supra, the Supreme Court cited the various cases outlining the four (4) principles that control dual representation. The court stated at page 356, 318 A.2d at page 356:
"Our dual representation cases make several principles clear. First, `[i]f, in the representation of more *341 than one defendant, a conflict of interest arises, the mere existence of such conflict vitiates the proceedings, even though no actual harm results. The potentiality that some harm may result, rather than that such harm did result, furnishes the appropriate criterion'. . . [citations omitted] . . . Second, a defendant must demonstrate that a conflict of interest actually existed at trial, because `dual representation alone does not amount to a conflict of interest' . . [citations omitted] . . . Third, [t]o make the dual representation rise to a true conflict, appellant need not show that actual harm resulted . . . but he must at least show the possibility of harm' . . . [citations omitted] . . . Fourth, appellant will satisfy the requirement of demonstrating possible harm, if he can show, inter alia, `that he had a defense inconsistent with that advanced by the other client, or that counsel neglected his case in order to give the other client a more spirited defense' . . . [citations omitted] . . ."
The instant case is not as clearly defined factually as Breaker, supra, which involved the appellant being urged by his counsel to plead guilty while same counsel also represented the informant-co-defendant. However, the instant case falls within the four principles enumerated in Breaker, supra.
The co-defendants were represented by the same counsel and both relied on the defense of consent as to entry and consent to intercourse with the victim. Because the defenses are nominally identical as to both defendants does not mean they were similar in effectiveness for both defendants. The appellant, at trial, took the stand in his own defense and testified as to Handy's assault with a belt buckle. Handy, for whatever reason, although urged to do so by his counsel, did not take the stand and his prior written statement incriminating the appellant was not introduced. However, the possibility of its introduction for purposes of cross-examination or *342 impeachment, if he were to have testified, is a reality. Once the co-defendant to charges such as are involved here testified to violence to a person the effectiveness of the defense of consent is weakened. The impact this had on the jury may have been mitigated had Handy taken the stand and testified. Appellant's defense was at least potentially eroded by Handy's failure to testify. The defenses of both defendants rose and fell together. It was for such situations where the harm is incalculable that the prophylactic rule of Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962) and Breaker, supra, was devised. See also, Commonwealth v. Johnson, 223 Pa.Super. 307, 299 A.2d 367, 369 (1973). The potentiality that such harm may result rather than that such harm did result, furnishes the appropriate criterion. The defense of both co-defendants, although nominally consistent, were practically antagonistic.
Reference should also be made to the comment of counsel at sentencing as to Handy's being led astray by the older man. In Breaker, supra, 456 Pa. at page 357, 318 A.2d at page 357, the Supreme Court pointed out:
". . . Indeed, at sentencing the assistant district attorney informed the court that the police had communicated to him that Mangold `was instrumental in the breaking of the case, that he was extremely cooperative with the police and [that the police] wanted the court advised of that fact.'"
In footnote 5 on the same page the Court noted that stressing one co-defendant's role as the informer was in fact the trial strategy decided upon by dual representing counsel. Although we cannot speculate as to counsel's motives, the attitude of counsel at sentencing in favoring one client over the other poses a serious question about the intention of counsel during the conduct of the trial. Commonwealth v. Johnson, supra. Clearly if the Supreme Court was concerned as to comments of the Commonwealth in Commonwealth v. Breaker, supra, we *343 should be concerned with the appellants' own counsel commenting upon his co-defendant's being led astray absent any redeeming factors or mitigating comments about the appellant.
As we said in Commonwealth v. Cullen, 216 Pa.Super. 23, 260 A.2d 818, 820 (1970):
"At sentencing, appellant's trial counsel was under a duty to put each of his clients in the best possible light before the court. In the instant case, trial counsel felt compelled to picture the co-defendant as the less guilty party, the party that had been led. He could do no less for the co-defendant. But, by doing so, his duty to present appellant in the best possible light was neglected. He pictured the appellant as the party worthy of strict treatment and the co-defendant as the party worthy of lenient treatment."
The order is reversed and a new trial granted.
SPAETH, J., files a concurring opinion.
JACOBS, J., dissents on the basis of Commonwealth v. Handy, 240 Pa.Super. 743, 359 A.2d 895 (1976).
SPAETH, Judge, concurring:
I think it clear that appellant was denied effective counsel at sentencing, for counsel did not fulfill his duty to put appellant before the court in the best possible light. Commonwealth v. Cullen, 216 Pa.Super. 23, 260 A.2d 818 (1970). Whether appellant was denied effective counsel at trial, however, seems to me a more difficult issue. While I agree with the majority that he was, I arrive at that conclusion by reasoning different from the majority's.
The majority gives two reasons for its conclusion that trial counsel's representation of both appellant and Handy involved the possibility of harm to appellant.
First, the majority notes that appellant as part of his testimony said Handy had assaulted the victim with a *344 belt buckle. I agree that because of this testimony, "the effectiveness of [appellant's] defense of consent [was] weakened." Majority opinion at 342. That, however, does not show any harm to appellant arising from the fact that he and Handy were represented by the same attorney. Handy might argue that it did: Why should his attorney, by questioning appellant, bring out that he had assaulted the victim? Or, to put it differently: If Handy had had his own, separate, attorney, would not that attorney have cross-examined appellant on his testimony that Handy had assaulted the victim? Handy, however, is not before us. So far as appellant is concerned, it only appears that his (and Handy's) attorney asked appellant about a fact (Handy assaulting the victim) that hurt both appellant and Handy. This may show that the attorney was ineffective, but it does not show that his ineffectiveness arose from his representation of both appellant and Handy.
Second, the majority notes that Handy's decision not to testify "at least potentially eroded" appellant's defense. Majority opinion at p. 342. Again, I agree; the jury might have thought, despite the judge's instruction to the contrary, that Handy's decision not to testify implied his guilt; and from this the jury might have gone on to think that because Handy was guilty, so was appellant. However, this danger is present in every case involving two or more defendants where one defendant decides not to testify. The question here is whether Handy's decision not to testify was motivated by advice given him by his attorney. If it was, reversal would be required, for since Handy's attorney was also appellant's, a conflict of interest would arise: in order to help his client Handy, the attorney might have to hurt his client appellant. Here, however, at the PCHA hearing the attorney testified that he had advised Handy that he should testify, and the hearing judge accepted this testimony.
*345 Further in regard to Handy's decision not to testify, the majority notes that Handy had made an incriminating statement, which, had he testified, might have been used to impeach him. I do not see how this fact helps appellant. The statement incriminated not only Handy but also appellant. Therefore, if by not testifying Handy was able to preclude introduction of the statement, he helped not only himself but also appellant.
Despite these difficulties, I have concluded that a new trial should be awarded. The fact that appellant testified that Handy had assaulted the victim shows or at least strongly suggests that appellant was hostile to Handy: he was trying to persuade the jury that it was not he but Handy who had acted criminally. This shows or at least strongly suggests that Handy was in turn hostile to appellant. (It is conceivable, I admit, that Handy said to himself that appellant was justified in being hostile to him, but it seems unlikely.) Thus it appears that one attorney represented two clients, each hostile to the other, which is a situation "`at least show[ing] the possibility of harm.'" Commonwealth v. Breaker, 456 Pa. 341, 345, 318 A.2d 354, 356 (1974).
This appearance, moreover, gains substance from the fact that shortly before trial, the attorney wished to withdraw. He did not withdraw because, to quote the lower court, "the writer of this opinion indicated to him that he should remain in the case so as to avoid a further continuance of the trial, which would have been required if he had been permitted to withdraw." Opinion of lower court at 2. It is regrettable that the lower court exerted such pressure on the attorney; the attorney was in a better position than was the court to appraise the possibility of harm arising from dual representation. It is regrettable for another reason. This matter comes before us as a Post Conviction Hearing Act proceeding. The hearing judge in that proceeding was the same judge as had been the trial judge. Thus, in ruling upon *346 appellant's post-conviction claim that there had been a conflict of interest, the judge was in the position of having already decided that there had not been a conflict. He had, in short, pre-judged the case. Ordinarily, unless abuse of discretion appears, we are bound by findings made in a PCHA proceeding. Commonwealth ex rel. Johnson v. Rundle, 440 Pa. 485, 270 A.2d 183 (1970). Given the circumstances here, I do not think we are bound. Thus we are left, as I see the case, with two facts: the attorney's judgment that he ought to withdraw; and the apparent hostility between his clients. I think these are enough to require a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622578/ | 569 So. 2d 106 (1990)
Lina McDonald, Widow of Cheston McDONALD
v.
NEW ORLEANS PRIVATE PATROL.
No. 90-CA-0250.
Court of Appeal of Louisiana, Fourth Circuit.
October 11, 1990.
*107 Marcia Finkelstein, New Orleans, for plaintiff/appellee.
Charles R. Capdeville, Metairie, for defendants/appellants.
Before CIACCIO, WILLIAMS, and BECKER, JJ.
BECKER, Judge.
Defendants/appellants, New Orleans Private Patrol and Continental Insurance Company, appeal the judgment of the trial court awarding plaintiff worker's compensation disability and death benefits. Plaintiff's husband, the late Cheston McDonald, worked as a security guard under the employ of New Orleans Private Patrol, at the Johns-Manville plant from 1957 until he retired in 1975. Plaintiff instituted this action for worker's compensation benefits on May 20, 1985, alleging that Cheston McDonald's death on March 7, 1984 was either caused or contributed to by the exposure to asbestos dust experienced by Mr. McDonald during his employment with New Orleans Private Patrol.
After a trial on the merits, the trial court awarded plaintiff total disability benefits from May 16, 1975 through March 7, 1984, along with death benefits from March 7, 1984 through June 21, 1986, together with medical benefits of $47,285.00, burial expenses $2,904.20, and legal interest thereon.
Defendants now seek review of this judgment alleging that the trial court erred in (1) not finding the claim for disability benefits prescribed; (2) not finding the claim for death benefits preempted; and (3) not according great weight to the testimony of Dr. Grimstad, one of Mr. McDonald's treating physicians.
Defendants argue that plaintiff's claim for disability benefits had prescribed when suit was filed in May, 1985. L.S.A.-R.S. 23:1031.1(E) provides in pertinent part,
"All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:
(a) The disease manifested itself.
(b) The employee is disabled from working as a result of the disease.
(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.
Notice filed with the compensation insurer of such employer shall constitute a claim as required herein."
The jurisprudence interpreting this statute has consistently held that all three conditions must exist for prescription to commence. Thornell v. Payne and Keller, Inc., 442 So. 2d 536 (La.App. 1st Cir.1983), *108 writ denied, 445 So. 2d 1231 (La.1984); Naquin v. Johns-Manville Sales Corp., 456 So. 2d 665 (La.App. 5th Cir.1984); Brown v. City of Monroe, 521 So. 2d 780 (La.App. 2nd Cir.1988).
In the present case, plaintiff alleges that decedent did not know that his respiratory problems were related to his employment until November 28, 1983 when Dr. Velma Campbell examined him and determined that Mr. McDonald's "exposure to asbestos contributed significantly to his present condition." A review of the trial record indicated that Dr. Campbell was the first physician to inform Mr. McDonald that his respiratory problems were employment related. Thus, Mr. McDonald had no knowledge or reasonable belief that his illness was employment related until November 28, 1983.
Mr. McDonald, through his attorney, notified New Orleans Private Patrol on December 5, 1983 of his intent to seek worker's compensation disability benefits. Clearly, this notice was provided to the employer within six months of Dr. Campbell's diagnosis. Thus, we can not say that the trial court erred in denying defendants' exception of prescription.
Defendants also argue that the trial court erred in denying their exception of peremption in regards to plaintiff's claim for death benefits. Defendants rely upon L.S.A.-R.S. 23:1231, which provides in pertinent part,
"For injury causing death within two years after the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as herein after provided...."
Defendants contend plaintiff's claim for death benefits is perempted since Mr. McDonald's death occurred more than two years after his retirement. However, defendant's reliance on R.S. 23:1231 is misplaced.
L.S.A.-R.S. 23:1231 is a general statute within the section of the worker's compensation act concerning the entitlement of benefits. L.S.A.-R.S. 23:1031.1 specifically pertains to the benefits available to those employees suffering from occupational diseases. R.S. 23:1031.1(F) provides that
"All claims for death arising from an occupational disease are barred unless the dependent or dependents as set out herein file a claim with the deseased's employer within six months of the date of death of such employee or within six months of the date claimant has reasonable grounds to believe that the death resulted from an occupational disease. Notice filed with the compensation insurer of such employer shall constitute a claim herein."
The general rule is that in cases of conflict between general and specific statutes, the special statute prevails. Giroir v. South Louisiana Medical Center, 453 So. 2d 949 (La.App. 1st Cir.1984), affirmed in part; reversed in part on other grounds, 475 So. 2d 1040 (La.1985). Furthermore, it is well settled that the worker's compensation statute is to be liberally interpreted in favor of the employee. Winzor v. Augenstein Const. Co., Inc., 378 So. 2d 470 (La. App. 3rd Cir.1979), writ denied 379 So. 2d 1103 (La.1980); Huett v. Insurance Company of North America, 329 So. 2d 222 (La.App. 4th Cir.1976), writ denied, 332 So. 2d 863 (La.1976); Grey v. Avondale Service Foundry, 305 So. 2d 639 (La.App. 4th Cir.1974); Simmons v. Liberty Mutual Insurance Company, 185 So. 2d 822 (La.App. 3th Cir.1966). Therefore, we find that R.S. 23:1031.1 is the applicable statute in setting out time limitations on death claims arising from occupational diseases. Plaintiff, in this case, notified decedent's employer approximately one month after decedent's death, of her intent to seek death benefits available under R.S. 23:1031.1. Accordingly, the trial court was correct in denying defendants' exception of peremption.
Defendants further contend that the trial judge erred in not according great weight to the testimony of Dr. Grimstad, one of Mr. McDonald's treating physicians. Plaintiff acknowledges that Dr. Grimstad began treating Mr. McDonald for his respiratory problems in 1981. He attended Mr. McDonald during McDonald's last illness *109 and signed the death certificate, certifying the cause of death to be chronic obstructive pulmonary disease. Dr. Grimstad was of the opinion that Mr. McDonald suffered from obstructive lung disease or emphysema with a bronchitic component.
It is well settled that the testimony of the treating physician is to be given more weight than the testimony of a physician who examines the patient only one or twice. However, the treating physician's testimony must also be weighed in light of other credible evidence. The weight to be afforded such testimony is largely dependent upon the physician's qualifications and the facts upon which his opinion is based. Schouest v. J. Roy McDermott, 411 So. 2d 1042 (La.1982); Latiolais v. Jernigan Bros. Inc., 520 So. 2d 1126 (La.App. 3rd Cir.1987); Walker v. Marcev, 427 So. 2d 678 (La.App. 4th Cir.1983), writ denied, 433 So. 2d 182 (La.1983); Vicknair v. Southern Farm Bureau Casualty Insurance Company, 292 So. 2d 747 (La.App. 4th Cir.1974), writ denied, 296 So. 2d 838 (La.1974).
In the present case, it appears that Dr. Grimstad was not fully aware of the factors which contributed to Mr. McDonald's condition. Dr. Grimstad acknowledged at trial that he did not know of the decedent's continual exposure to asbestos. This information had never been relayed to Dr. Grimstad by Mr. McDonald. The other physicians who testified all recognized the significance of a history of exposure to asbestos in the diagnosis of asbestosis. Dr. Velma Campbell examined Cheston McDonald in April 1983. After reviewing McDonald's medical records and his history of asbestos exposure, Dr. Campbell concluded that Mr. McDonald's "exposure to asbestos contributed significantly" to his respiratory problems.
Plaintiff also called as an expert witness, Dr. Lawrence Miller. Dr. Miller, after reviewing Mr. McDonald's medical records, and examining a 1983 chest x-ray, concluded that Mr. McDonald suffered from chronic obstructive lung disease and asbestosis. Dr. Miller testified that the asbestosis was a significant part of Mr. McDonald's respiratory disease. Miller stated that he based his diagnosis of asbestosis on McDonald's exposure history and the 1983 x-ray which showed increased interstitial markings. Dr. Miller also relied upon the reports from x-rays taken from 1973 to June 1983. He testified that the x-ray reports showed a continual increase in interstitial type changes from 1973 to 1983.
Dr. Robert Jones, defendant's expert, after reviewing the same medical records, concluded that McDonald suffered from chronic obstructive lung disease, which was a combination of emphysema and bronchitis caused by cigarette smoking. Jones acknowledged that the 1983 chest x-ray revealed some pleural plaques lining the chest cavity which was probably caused by McDonald's exposure from asbestos. However, Dr. Jones did not believe that the x-ray revealed any lung disease from asbestos.
Considering the significance these physicians gave to the history of exposure to asbestos in making a diagnosis of asbestosis, we can not say that the trial judge erred in the weight he gave to Dr. Grimstad's opinion. There is no question that Cheston McDonald was exposed to asbestos while employed as a security guard at the Johns-Manville plant. Both Mrs. McDonald, and her son, Cheston, Jr., testified that the decedent would come home from work with dust in his clothes and hair. Mrs. McDonald stated that she would have to shake the dust from the clothes prior to washing or else the dust would clog the washing machine drain. Cheston McDonald, Jr., testified that on occasion he would go to work with his father. He stated that, on those occasions, there was a heavy concentration of asbestos dust in the air at the plant. Cheston, Jr. also stated that his father would make hourly rounds, and punch clocks at various sites at the plant. Further, decedent was not advised to wear, nor provided with any respiratory equipment at work. Mr. McDonald would use an air hose to blow the dust off his clothing during the work day.
The plaintiff in a worker's compensation action based on an occupational disease must establish by a preponderance of *110 the evidence that there is a disability which is related to the employment related disease. LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So. 2d 779 (La.1967); Laurendine v. Fischbach & Moore, Inc., 398 So. 2d 1220 (La.App. 4th Cir.1981). Similarly, the plaintiff must show that he contracted the disease during the course of his employment and that the disease was the result of the work performed. Bates v. Bituminous Casualty Corp., 266 So. 2d 556 (La.App. 3rd Cir.1972). It is sufficient that he establishes the cause of his disability by a reasonable probability. Bryant v. Magnolia Garment Co., Inc., 307 So. 2d 395 (La.App. 2nd Cir.1978).
In deciding whether a plaintiff has proven the claimed disability, the totality of the evidence must be considered. It is the trial court's function to determine the weight that is to be accorded to the medical and lay testimony. Further, where there is a conflict in the testimony, reasonable evaluations and reasonable inferences of fact should not be disturbed unless such factual conclusions are clearly wrong. Canter v. Koehring, 283 So. 2d 716 (La.1973); Percy v. Perkins, 468 So. 2d 815 (La.App. 1st Cir. 1985), writ denied, 475 So. 2d 355 (La.1985).
A review of the trial transcript reveals that the trial court did not commit manifest error in rendering judgment in favor of the plaintiff. Mrs. McDonald has proved by a preponderance of the evidence that her husband, the late Cheston McDonald, suffered from asbestosis, and that the disease of asbestosis contributed significantly to his death. The trial court did not abuse its discretion in choosing to accept the medical opinions of Dr. Velma Campbell and Dr. Lawrence Miller. Their opinions were supported by the lay testimony of Mrs. McDonald and Cheston McDonald, Jr. concerning decedent's exposure to asbestos dust.
Accordingly, the judgment of the trial court is affirmed. All costs to be borne by defendants/appellants.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2442278/ | 8 A.3d 1182 (2010)
AIRGAS, INC., James Hovey, Paula Sneed, David Stout, Lee Thomas, John Van Roden, and Ellen Wolf, Plaintiffs and Counter-claim-Defendants Below, Appellants,
v.
AIR PRODUCTS AND CHEMICALS, INC., Defendant and Counter-claim-Plaintiff Below, Appellee.
No. 649, 2010.
Supreme Court of Delaware.
Submitted: November 17, 2010.
Decided: November 23, 2010.
*1184 Donald J. Wolfe, Jr., Esquire, Kevin R. Shannon, Esquire, Berton W. Ashman, Jr., Esquire, and Ryan W. Browning, Esquire of Potter Anderson & Corroon LLP, Wilmington, DE; Of Counsel: Theodore N. Mirvis, Esquire (argued), Marc Wolinsky, Esquire, George T. Conway III, Esquire, Garrett B. Moritz, Esquire, Meredith L. Turner, Esquire, and Jonathon R. La Chapelle, Esquire of Wachtell, Lipton, Rosen & Katz, New York, NY, for appellants.
Kenneth J. Nachbar, Esquire, Jon E. Abramczyk, Esquire, William M. Lafferty, Esquire, John P. DiTomo, Esquire, John A. Eakins, Esquire, and Ryan D. Stottmann, Esquire of Morris, Nichols, Arsht & Tunnell LLP, Wilmington, DE; Of Counsel: David R. Marriott, Esquire, and Gary A. Bornstein, Esquire (argued) of Cravath, Swaine & Moore LLP, New York, NY, for appellee.
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS, and RIDGELY, Justices, constituting the Court en Banc.
RIDGELY, Justice:
Air Products and Chemicals, Inc. ("Air Products") and Airgas, Inc. ("Airgas") are competitors in the industrial gas business. Air Products has launched a public tender offer to acquire 100% of Airgas's shares. The Airgas board of directors has received and rejected several bids from Air Products, including its latest offer that valued Airgas at $5.5 billion, because the board determined that each offer undervalued the company. During this entire attempted takeover period, the market price of Airgas stock exceeded Air Products' offers.
To facilitate its takeover attempt, Air Products engaged in a proxy contest at the last annual meeting of Airgas stockholders. Airgas has a staggered board with nine directors, and three were up for election at that meeting. A staggered board, which Delaware law has permitted since 1899, enhances the bargaining power of a target's board and makes it more difficult for an acquirer, like Air Products, to gain control of its target without the consent of the board.
At Airgas's last annual meeting held on September 15, 2010, Air Products nominated three directors to Airgas's board, and the Airgas shareholders elected them. Air Products also proposed a bylaw (the "January Bylaw") that would schedule Airgas's next annual meeting for January 2011, just four months after the 2010 annual meeting. The January Bylaw, which was approved by only 45.8% of the shares entitled to vote, effectively reduced the full term of the incumbent directors by eight months.
Airgas brought this action in the Court of Chancery, claiming that the January Bylaw is invalid because it is inconsistent with title 8, section 141 of the Delaware Code and the Airgas corporate charter provision that creates a staggered board. Airgas's charter requires an affirmative vote of the holders of at least 67% of the voting power of all shares to alter, amend, or repeal the staggered board provision, or to adopt any bylaw inconsistent with that provision. The Court of Chancery upheld the January Bylaw on the following basis: Airgas's charter provides that directors *1185 serve terms that expire at "the annual meeting of stockholders held in the third year following the year of their election." There is no inconsistency between Airgas's charter provision and the January Bylaw, because the January meeting would occur "in the third year after the directors' election," which (the Court of Chancery found) was all that the Airgas charter requires.
We conclude, as did the Court of Chancery, that the Airgas charter language defining the duration of directors' terms is ambiguous. We therefore look to extrinsic evidence to interpret the intent of the charter language which provides that directors' terms expire at "the annual meeting of stockholders held in the third year following the year of their election." We find that the language has been understood to mean that the Airgas directors serve three year terms. We hold that because the January Bylaw prematurely terminates the Airgas directors' terms, conferred by the charter and the statute, by eight months, the January Bylaw is invalid. Accordingly, we reverse.
FACTS AND PROCEDURAL HISTORY
The Charter, the Bylaws, and the Staggered Board of Airgas
Section 141(d) of the Delaware General Corporation Law ("DGCL"), which allows corporations to implement a staggered board of directors, relevantly provides:
The directors of any corporation organized under this chapter may, by the certificate of incorporation or by an initial bylaw, or by a bylaw adopted by a vote of the stockholders, be divided into 1, 2 or 3 classes; the term of office of those of the first class to expire at the first annual meeting held after such classification becomes effective; of the second class 1 year thereafter; of the third class 2 years thereafter; and at each annual election held after such classification becomes effective, directors shall be chosen for a full term, as the case may be, to succeed those whose terms expire....[1]
Ever since Airgas became a public corporation in 1986, it has had a three class staggered board by virtue of Article 5, Section 1 of its charter (the "Airgas Charter" or the "Charter"), which relevantly provides:
Number, Election and Term of Directors.... The Directors ... shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible as shall be provided in the manner specified in the By-laws, one class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1987, another class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1988, and another class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1989, with the members of each class to hold office until their successors are elected and qualified. At each annual meeting of the stockholders of the Corporation, the successors to the class of Directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election.
Similarly, Article III, Section 1 of Airgas's bylaws (the "Bylaws"), which implements Article 5, Section 1 of the Charter, relevantly provides:
*1186 Number, Election and Terms.... The Directors ... shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, one class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1987, another class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1988, and a third class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1989, with the members of each class to hold office until their successors are elected and qualified. At each annual meeting of the stockholders, the successors or the class of Directors whose term expires at the meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders held in third year following the year of their election....
Article 5, Section 6 of the Charter requires a supermajority vote to enact a bylaw that is inconsistent with Article III of the Bylaws. Specifically, that Charter provision states:
By-Law Amendments. The Board of Directors shall have power to make, alter, amend and repeal the By-Laws (except so far as the By-laws adopted by the stockholders shall otherwise provide.) Any By-Laws made by the Directors under the powers conferred hereby may be altered, amended or repealed by the Directors or by the stockholders. Notwithstanding the foregoing and anything contained in this certificate of incorporation to the contrary, Article III of the By-Laws shall not be altered, amended or repealed and no provision inconsistent therewith shall be adopted without the affirmative vote of the holders of least 67% of the voting power of all the shares of the Corporation entitled to vote generally in the election of Directors, voting together as a single class.
Article 5, Section 3 of the Charter requires a supermajority vote to remove an Airgas director without cause. Specifically, that provision states:
Removal of Directors.... [A]ny Director may be removed from office without cause only by the affirmative vote of the holders of 67% of the combined voting power of the then outstanding shares of stock entitled to vote generally in the election of Directors, voting together as a single class.
Airgas has consistently held its annual meetings to enable the staggered directors to serve three year terms. Since it "went public" in 1986, Airgas has held its annual meeting no earlier than July 28 and no later than September 15 of each calendar year. Because Airgas's fiscal year ends on March 31, Airgas traditionally has held its annual meeting in late summer or early fall, to afford Airgas the necessary time to evaluate its fiscal year performance and prepare its annual report.[2] Airgas always has held its annual meetings approximately twelve months apart. It has never held consecutive annual meetings sooner than eleven months, twenty-six days apart, or longer than twelve months, twenty-eight days since the prior annual meeting.
Air Products' Takeover Attempt
On February 11, 2010, Air Products commenced a tender offer for Airgas *1187 shares at a purchase price of $60 per share cash. On July 8, 2010, Air Products raised its offer price to $63.50 per share cash, and on September 6, 2010, Air Products again increased its bid to $65.50 per share cash. The Airgas board rejected all these bids as "grossly inadequate." The market for Airgas stock suggests that the board was correct: since Air Products launched the tender offer, Airgas shares have traded as high as $71.28. The market price closed at $69.31 on November 3, 2010, the day the parties presented their arguments to this Court.[3]
After Airgas's board rejected Air Products' bids, Air Products could have negotiated with Airgas's board to agree on a mutually beneficial price. Instead, Air Products chose to wage a proxy contest to facilitate its tender offer. As part of its takeover strategy, Air Products nominated three persons to stand for election to Airgas's staggered board. Air Products also proposed three bylaw amendments including the January Bylaw, which relevantly provides:
The annual meeting of stockholders to be held in 2011 (the "2011 Annual Meeting") shall be held on January 18, 2011 at 10:00 a.m., and each subsequent annual meeting of stockholders shall be held in January....
The January Bylaw is significant for two reasons. First, the January Bylaw substantially shortens the terms of the Airgas directors by accelerating the timing of Airgas's annual meeting. The January Bylaw would require Airgas to hold its 2011 annual meeting only four months after its 2010 meeting. That accelerated meeting date would contravene nearly two and one-half decades of Airgas practice, during which Airgas never has held its annual meeting earlier than July 28. That would also mark the first time Airgas held an annual meeting without having new fiscal year results to report to its shareholders. Additionally, if the January Bylaw is valid, Air Products need not wait a year to cause the election of another three directors to Airgas's staggered board, because the terms of the incumbent directors would be shortened by eight months.
At Airgas's annual meeting on September 15, 2010, Airgas shareholders elected the three Air Products nominees to Airgas's board and adopted Air Products' proposed bylaw amendments, including the January Bylaw.[4] Of the 73,886,665 shares voted, a bare majority38,321,496 shares, or 51.8%were voted in favor of the January Bylaw. But of the 83,629,731 shares that were entitled to vote, only 45.8% were voted in favor of the January Bylaw.
Procedural History
Airgas brought this action in the Court of Chancery, seeking a declaratory judgment that the January Bylaw is invalid. Air Products counterclaimed, seeking a declaratory judgment that the January Bylaw is valid. After a trial, the Court of Chancery rejected Airgas's claims and entered final judgment in favor of Air Products. The Court of Chancery held that the January Bylaw had been duly adopted by a majority of the voted shares, and did not conflict with the Charter. After analyzing the January Bylaw under sections 141 and *1188 211 of the DGCL, the Court of Chancery concluded that the January Bylaw is valid under Delaware law.[5] This appeal followed.
ANALYSIS
Standard of Review
"Because the facts material to these claims are uncontroverted, the issues presented are all essentially questions of law that this Court reviews de novo."[6] Corporate charters and bylaws are contracts among a corporation's shareholders; therefore, our rules of contract interpretation apply.[7] If charter or bylaw provisions are unclear, we resolve any doubt in favor of the stockholders' electoral rights.[8] "Words and phrases used in a bylaw are to be given their commonly accepted meaning unless the context clearly requires a different one or unless legal phrases having a special meaning are used."[9] Where extrinsic evidence resolves any ambiguity, we "must give effect to the intent of the parties as revealed by the language of the certificate and the circumstances surrounding its creation and adoption."[10]
Section 141(d) of the DGCL, the Annual Meeting Term Alternative, and the Defined Term Alternative
To implement a staggered board, as permitted by DGCL Section 141, corporations typically have used two forms of language. Many corporations provide in their charters that each class of directors serves until the "annual meeting of stockholders to be held in the third year following the year of their election." There are variations on this language, providing (for example) that each class of directors serves until the "third succeeding annual meeting following the year of their election" (collectively, the "Annual Meeting Term Alternative"). On the other hand, some corporations, such as the firm involved in Essential Enterprises v. Automatic Steel Products, Inc.,[11] provide in their charters that each class serves for a "term of three years." There are variations on that language as well, such as (for example) that each class of directors serves for "a three-year term" (collectively, the "Defined Term Alternative"). Unlike the Annual Meeting Term Alternative, the Defined Term Alternative unambiguously provides in the charter itself that each class of directors serves for three years.
Article 5, Section 1 of the Airgas Charter and Article III, Section 1 of its Bylaws both employ the Annual Meeting Term Alternative. The central issue presented on this appeal is whether the Airgas Charter requires that each class of directors serves three year terms or whether it provides for a term that can expire at whatever time the annual meeting is scheduled in the third year following *1189 election. The Court of Chancery adopted the latter view without giving any weight to the uncontroverted extrinsic evidence bearing on the intended meaning of the Airgas Charter.
The Court of Chancery's Analysis
The Court of Chancery articulated its rationale this way:
Airgas's charter provision is not crystal clear on its face. A "full term" expires at the "annual meeting" in the "third year" following a director's year of election. The absence of a definition of annual, year, or full term leads to this puzzle. Does a "full term" contemplate a durationally defined three year period as Airgas suggests? The charter does not explicitly say so. Then, if a "full term" expires at the "annual meeting," what does "annual" meanyearly? In turn, if "annual" means "separated by about a year," does that mean fiscal year? Calendar year? ...
The lack of a clear definition of these terms in the charter mandates my treatment of them as ambiguous terms to be viewed in the light most favorable to the stockholder franchise.
Construing the ambiguous terms in that way, if the "full term" of directors does expire at the "annual meeting" in the "third year" following their year of election, I now turn to what is meant by the "annual" meeting.... Because this term is not otherwise defined in Airgas's charter or bylaws, I turn to the common dictionary definition, which defines "annual" as "covering the period of a year" or "occurring or happening every year or once a year." And again, construing the ambiguous terms of the charter in favor of the shareholder franchise, "annual" in this context must mean occurring once a year....
Airgas similarly could have defined "annual meeting" elsewhere in its charter or bylaws to require a minimum durational interval between meetings (i.e. "annual meetings must be held no less than nine months apart"). It could have said that directors shall serve "three-year terms." Had it done any of those things, then a bylaw shortening such an explicitly defined "full term" would have conflicted with its explicit provisions and thereby would have been invalid under Airgas's charter. Airgas, however, did not clearly define these terms. Airgas's charter and bylaws simply say that the successor shall take the place of any director whose term has expired "in the third year" following the year of election.
As such, a January 18, 2011 annual meeting would be the "2011 annual meeting." 2011 is the third "year" after 2008. Successors to the 2008 class can be elected in the "third year following the year of their election" which is 2011. Thus, the bylaw does not violate Airgas's charter as written.[12]
We agree with the Court of Chancery that the relevant Charter language is ambiguous. But as more fully discussed below, there is overwhelming extrinsic evidence that under the Annual Meeting Term Alternative adopted by Airgas, a term of three years was intended. Therefore, the January Bylaw is inconsistent with Article 5, Section 1 of the Charter because it materially shortens the directors' full three year term that the Charter language requires. It is settled Delaware law that a bylaw that is inconsistent with the corporation's charter is invalid.[13]
*1190 Article 5, Section 1 of the Charter is Ambiguous
To determine whether the January Bylaw is inconsistent with the Charter, we first must address Article 5, Section 1 of the Charter. Although the Annual Meeting Term Alternative employed in that section is facially ambiguous, our precedents, and the common understanding of that language enable us to interpret that provision definitively. The "context clearly requires" the interpretation we adopt, because the relevant "legal phrase[] ha[s] a special meaning,"[14] and because we "must give effect to the intent of the parties as revealed by the language of the certificate and the circumstances surrounding its creation and adoption."[15] "If there is more than one reasonable interpretation of a disputed contract term, consideration of extrinsic evidence is required to determine the meanings the parties intended."[16] Delaware courts often look to extrinsic evidence for the common understanding of ambiguous language whether in a statute, a rule or a contractual provision.[17]
Delaware Precedents
Although this Court never has been called upon to interpret the Annual Meeting Term Alternative specifically, the Delaware cases that involved similar charter language regard that language as creating a staggered board with classes of directors who serve three year terms.[18] The Court of Chancery case law similarly reflects the understanding of the Court of Chancery until this casethat directors of staggered boards serve a three year term.[19] The *1191 United States District Court for the District of Delaware, applying Delaware law, has reached the same conclusion.[20]
The Annual Meeting Term Alternative and the Defined Term Alternative in Practice
Although practice and understanding do not control the issue before us, we agree with Airgas that "[p]ractice and understanding in the real world" are relevant. Here, we find the industry practice and understanding of similar charter language to be persuasive. Of the eighty-nine Fortune 500 Delaware corporations that have staggered boards, fifty-eight corporations use the Annual Meeting Term Alternative. More important, forty-six of those fifty-eight Delaware corporations, or 79%, expressly represent in their proxy statements that their staggered-board directors serve three year terms. Indeed, Air Products itself uses the Annual Meeting Term Alternative in its charter,[21] and represents in its proxy statement that: "Our Board is divided into three classes for purposes of election, with three-year terms of office ending in successive years."[22]
Also noteworthy is the practice and understanding of corporations that have "de-staggered" their boards. Ninety-nine of the Fortune 500 Delaware corporations have de-staggered their boards over the last decade. Of those ninety-nine corporations, sixty-four used the Annual Meeting Term Alternative, and an overwhelming majoritysixty-two, or 97%represented in their proxy statements that their directors served three year terms. We cannot ignore this widespread corporate practice and understanding it represents. It supports a construction that the Annual Meeting Term Alternative is intended to provide that each class of directors serves three year terms. Air Products has offered no evidence to the contrary.
Model Forms and Commentary
The ABA's Public Company Organizational Documents: Model Forms and Commentary contains the following model charter provision for a staggered board that repeats the language that has been commonly understood for decades to provide for a three year term:
The initial Class I Directors shall serve for a term expiring at the first annual meeting of stockholders of the corporation following the filing of this certificate of incorporation; the initial Class II Directors shall serve for a term expiring at the second annual meeting of stockholders following the filing of this certificate of incorporation; and the initial Class III Directors shall serve for a term expiring at the third annual meeting of stockholders following the filing of this certificate of incorporation. Each director in each class shall hold office until his or her successor is duly elected and qualified. Each director in each class *1192 shall hold office until his or her successor is duly elected and qualified. At each annual meeting of stockholders beginning with the first annual meeting of stockholders following the filing of this certificate of incorporation, the successors of the class of directors whose terms expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders to be held in the third year following the year of their election, with each director in each such class to hold office until his or her successor is duly elected and qualified.[23]
Notably, the accompanying commentary explains:
The DGCL permits the certificate of incorporation to provide that the board of directors may be divided into one, two, or three classes, with the term of office of those of the first class to expire at the annual meeting next ensuing; of the second class, one year thereafter; of the third class, two years thereafter, and at each annual election held after such classification and election, directors elected to succeed those whose terms expire shall be elected for a three-year term. DGCL Section 141(d).[24]
Thus, this model form commentary confirms the understanding that the Annual Meeting Term Alternative intends to provide that each class of directors is elected for a three year term.
Other Commentary
The DGCL, from its initial enactment in 1899, has authorized Delaware corporations to stagger the terms of their boards of directors.[25] Although the statutory language has been amended from time to time, it has remained substantially the same over the past one hundred eleven years. As early as 1917, commentators understood that the staggered board provision contemplates three year director terms. In its 1917 pamphlet entitled Business Corporations Under the Laws of Delaware, the Corporation Trust Company commented: "[Directors] can be divided into one, two or three classes, to serve one, two and three years, and at each annual meeting the directors are elected to serve for the term of three years, so that one class expires each year. They are elected annually by the stockholders."[26] This historical understanding that directors are elected to serve for the term of three years is significant.[27]
*1193 Essential Enterprises v. Automatic Steel Products, Inc.[28]
This same understanding has long been embedded in Delaware case law addressing issues similar to those presented in this case. Fifty years ago, Chancellor Seitz considered in Essential Enterprises whether a bylaw that authorized the removal of directors by a majority stockholder vote was inconsistent with a charter provision that provided for staggered, three-year terms for the corporation's directors. Although the charter provided that each class of directors "shall be elected to hold office for the term of three years,"[29] Chancellor Seitz found that the charter reflected the underlying intent of DGCL Section 141(d), and explained: "While the conflict considered is between the by-law and the certificate, the empowering statute is also involved since the certificate provision is formulated basically in the words of the statute."[30] Holding that the bylaw that authorized the removal of directors by a majority stockholder vote was inconsistent with the charter provision that authorized staggered three year terms for the corporation's directors, Chancellor Seitz concluded: "Clearly the `full term' visualized by the statute is a period of three yearsnot up to three years;"[31] and the bylaw would "frustrate the plan and purpose behind the provision for staggered terms...."[32]
Air Products contends that Essential Enterprises and this case are distinguishable in two ways. First, Air Products argues that Essential Enterprises was a director "removal" case, whereas this case is an "annual meeting" case. In form, the January Bylaw addresses the date of Airgas's annual meeting. But in substance, the January Bylaw, like the bylaw in Essential Enterprises, has the effect of prematurely removing Airgas's directors who *1194 would otherwise serve an additional eight months on Airgas's board. In that significant respect this case is indistinguishable from Essential Enterprises.
Second, Air Products argues that Essential Enterprises is distinguishable because the charter in that case explicitly stated that each class of directors "shall be elected to hold office for the term of three years," whereas the Annual Meeting Term Alternative does not. While that is true, our preceding discussion demonstrates that the Annual Meeting Term Alternative was intended, and has been commonly understood, to provide for three year terms.
In its opinion, the Court of Chancery distinguished Essential Enterprises as follows:
[Essential Enterprises explained] that DGCL Section 141(d) "says that `directors shall be chosen for a full term.' The certificate implements this." ... The charter in Essential Enterprises explicitly called for three-year terms; Airgas's charter does not. Thus, the "full term" specified by the charter in Essential Enterprises was three years. The "full term" visualized by the statute based on Airgas's charter is until "the annual meeting of stockholders held in the third year following the year of their election."[33]
Thus, the Court of Chancery heavily relied on the different wording of the Annual Meeting Term Alternative and the Defined Term Alternative to arrive at its conclusion that different wording equates to different meaning. But in doing that the Court of Chancery erred, because it failed to give proper effect to the overwhelming and uncontroverted extrinsic evidence that establishes, and persuades us, that the Annual Meeting Term Alternative and the Defined Term Alternative language mean the same thing: that each class of directors serves three year terms.
No party to this case has argued that DGCL Section 141(d) or the Airgas Charter requires that the three year terms be measured with mathematical precision.[34] Nor is it necessary for us to define with exactitude the parameters of what deviation from 365 days (multiplied by 3) satisfies the Airgas Charter three year durational requirement. In this specific case, we may safely conclude that under any construction of "annual" within the intended meaning of the Airgas Charter or title 8, section 141(d) of the Delaware Code, four months does not qualify. In substance, the January Bylaw so extremely truncates the directors' term as to constitute a de facto removal that is inconsistent with the Airgas Charter. The consequence of the January Bylaw is similar to the bylaw at issue in Essential Enterprises. It serves to "frustrate the plan and purpose behind the provision for [Airgas's] staggered terms and [] it is incompatible with the pertinent language of the statute and the [Charter]."[35] Accordingly, the January Bylaw is invalid not only because it impermissibly shortens the directors' three year staggered terms as *1195 provided by Article 5, Section 1 of the Airgas Charter, but also because it amounted to a de facto removal without cause of those directors without the affirmative vote of 67% of the voting power of all shares entitled to vote, as Article 5, Section 3 of the Charter required.
CONCLUSION
The judgment of the Court of Chancery is REVERSED.
NOTES
[1] 8 Del. C. § 141(d) (emphasis added).
[2] Over the past twenty-four years, Airgas has held its annual meeting on the following dates: August 3, 1987; August 1, 1988; August 7, 1989; August 6, 1990; August 5, 1991; August 3, 1992; July 28, 1993; August 1, 1994; August 7, 1995; August 5, 1996; August 4, 1997; August 3, 1998; August 2, 1999; August 3, 2000; August 2, 2001; July 31, 2002; July 29, 2003; August 4, 2004; August 9, 2005; August 9, 2006; August 7, 2007; August 5, 2008; August 18, 2009; and September 15, 2010.
[3] The Airgas board, which now includes three Air Products' nominees, continues to unanimously reject the bid as "grossly inadequate." See Press Release, Airgas Sends Letter to Air Products (Oct. 26, 2010), available at http:// www.airgas.com/content/pressReleases.aspx? PressRelease_ID=1601.
[4] On September 23, 2010, Airgas expanded its board from nine to ten members, reappointing Chief Executive Officer, Peter McCausland, who lost his reelection bid at the September 15, 2010 annual meeting.
[5] See Airgas, Inc. v. Air Prods. & Chems., Inc., 2010 WL 3960599 (Del.Ch. Oct. 8, 2010). Airgas claimed that the January Bylaw is invalid solely on legal and statutory grounds, i.e., that the January Bylaw was inconsistent with the Airgas Charter and the DGCL. No claim is advanced on equitable grounds.
[6] B.F. Rich & Co., Inc. v. Gray, 933 A.2d 1231, 1241 (Del.2007).
[7] Centaur Partners, IV v. Nat'l Intergroup, Inc., 582 A.2d 923, 928 (Del.1990).
[8] See id. at 927.
[9] Hibbert v. Hollywood Park, Inc., 457 A.2d 339, 343 (Del. 1983) (citing Standard Power & Light Corp. v. Inv. Assocs., Inc., 51 A.2d 572, 576 (Del.1947)).
[10] See Centaur Partners, 582 A.2d at 928 (quoting Waggoner v. Laster, 581 A.2d 1127, 1134 (Del.1990)).
[11] 159 A.2d 288 (Del.Ch. 1960).
[12] Airgas, 2010 WL 3960599, at *6-8 (citations omitted).
[13] See 8 Del. C. § 109(b); Centaur Partners, 582 A.2d at 929.
[14] See Hibbert, 457 A.2d at 343.
[15] Centaur Partners, 582 A.2d at 928 (quoting Waggoner, 581 A.2d at 1134).
[16] AT & T Corp. v. Lillis, 953 A.2d 241, 253 (Del.2008) (quoting Appriva S'holder Litig. Co., LLC v. ev3, Inc., 937 A.2d 1275, 1291 (Del.2007)).
[17] See, e.g., Perry v. Berkley, 996 A.2d 1262, 1268 (Del.2010) (relying on Federal Rules of Evidence Manual to interpret Delaware Rules of Evidence); Hicklin v. Onyx Acceptance Corp., 970 A.2d 244, 251 (Del.2009) (relying on White & Summers treatise to interpret Delaware Uniform Commercial Code).
[18] See Versata Enters. v. Selectica, Inc., 5 A.3d 586, 604 (Del.2010) ("`[A] classified board would delaybut not preventa hostile acquirer from obtaining control of the board, since a determined acquirer could wage a proxy contest and obtain control of two thirds of the target board over a two year period, as opposed to seizing control in a single election.'") (quoting Carmody v. Toll Bros., Inc., 723 A.2d 1180, 1186 n. 17 (Del.Ch. 1998)); Benihana of Tokyo, Inc. v. Benihana, Inc., 906 A.2d 114, 116 (Del.2006) ("The nine member board of directors is classified and the directors serve three-year terms."); MM Cos., Inc. v. Liquid Audio, Inc., 813 A.2d 1118, 1122 (Del.2003) ("The effect is to prevent an insurgent from obtaining control of the company in under two years.").
[19] See eBay Domestic Holdings, Inc. v. Newmark, 2010 WL 3516473, at *14 (Del.Ch. Sept. 9, 2010) ("The Staggered Board Amendments created three classes of directors, one director per class, with each class serving three-year terms."); Khanna v. McMinn, 2006 WL 1388744, at *31 (Del.Ch. May 9, 2006) ("The directors ... completed their three-year terms of office."); Benihana of Tokyo, Inc. v. Benihana, Inc., 891 A.2d 150, 156 (Del.Ch. 2005) ("Each year the stockholders elect one third of the directors for three year terms...."); Jones Apparel Grp., Inc. v. Maxwell Shoe Co., Inc., 883 A.2d 837, 849 (Del. Ch.2004) ("The extent to which a certificate provision could deviate from the default standard of one-year terms for directors was itself set by statute, which limited the deviation to the adoption of a staggered board with members whose three-year terms expire on a rotating basis."); Roven v. Cotter, 547 A.2d 603, 603-04 (Del.Ch. 1988) (describing the Annual Meeting Term Alternative in the corporate charter as providing the director with a "three year term"); Dolgoff v. Projectavision, Inc., 1996 WL 91945, at *9 (Del.Ch. Feb. 29, 1996) ("It ordinarily requires two years for an opponent to possibly secure a majority of the seats on a staggered board.").
[20] See SWT Acquisition Corp. v. TW Servs., Inc., 700 F. Supp. 1323, 1329 (D.Del.1988) ("[T]he [] board is staggered [and] thereby precludes] [outside] control for two years."); BNS Inc. v. Koppers Co., Inc., 683 F. Supp. 458, 470 (D.Del. 1988) ("[A] staggered board delays shifts of control for two years.").
[21] Article 10 of Air Products' charter provides: "... [T]he directors chosen to succeed those whose terms are expiring shall be identified as being of the same class as the directors whom they succeed and shall be elected for a term expiring at the third succeeding annual meeting of stockholders or thereafter in each case when their respective successors are elected and qualified...."
[22] See Air Products & Chemicals, Inc., Definitive Proxy Statement (Schedule 14A), at 6 (Dec. 10, 2009) (emphasis added), available at http://www.sec.gov/Archives/edgar/data/2969/ XXXXXXXXXXXXXXXXXX/ddef14a.htm.
[23] ABA, Public Company Organizational Documents: Model Forms and Commentary, 67 (2009) (emphasis added).
[24] Id. (emphasis added).
[25] See Insituform of N.Am., Inc. v. Chandler, 534 A.2d 257, 264-65 (Del.Ch. 1987) (citing 21 Del. L. Ch. 273 § 20 (1899)). The 1899 statute provided as follows: "The directors of any corporation organized as aforesaid may, by a vote of the stockholders, be divided into one, two or three classes, the term of office of those of the first class to expire at the annual meeting next ensuing, of the second class one year thereafter, of the third class three years [sic] thereafter; and at each annual election held after such classification directors shall be chosen for a full term, as the case may be, to succeed those whose terms expire."
[26] CORPORATION TRUST COMPANY OF AMERICA, BUSINESS CORPORATIONS UNDER THE LAWS OF DELAWARE 18-19 (4th ed.1917).
[27] See also ERNEST L. FOLK, III, THE RED BOOK DIGEST OF THE NEW DELAWARE CORPORATION LAW 1967, at 12 (1968) ("[D]irectors may be divided into one, two or three classes, with terms expiring one, two or three years thereafter, after which all directors are chosen for full terms."); S. SAMUEL ARSHT & LEWIS S. BLACK, ANALYSIS OF THE 1974 AMENDMENTS TO THE DELAWARE CORPORATION LAW, 375, 377 (1974) ("The provisions of Section 141(d) ... permit the directors of a Delaware corporation to be `divided into one, two or three classes,' ... and to serve for staggered terms of three years."); Lewis S. Black, Jr. & Craig B. Smith, Antitakeover Charter Provisions: Defending Self-Help for Takeover Targets, 36 WASH. & LEE L.REV. 699, 715 (1979) ("By spreading the election of the full board over a period of three years, the classified board forces the successful [tender] offeror to wait, in theory at least, two years before assuming working control of the board of directors."); ARTHUR FLEISCHER, JR. & ALEXANDER R. SUSSMAN, TAKEOVER DEFENSE § 605, at 6-29 (2004) ("Obviously, under a [staggered board], even a majority shareholder cannot accomplish a change in control of the board in less than two years."); Frederick H. Alexander & James D. Honaker, Power to the Franchise or the Fiduciaries?: An Analysis of the Limits on Stockholder Activist Bylaws, 33 DEL. J. CORP. L. 749, 751 (2008) ("Section 141(d) permits stockholders to adopt bylaws creating a staggered board of directors, in which directors are elected to serve three-year terms...."); BLACK'S LAW DICTIONARY 197 (9th ed.2009) (citing 8 Del. C. § 141) (defining a staggered board as a board of directors whose "members serve terms of two or more years, with some members' terms expiring at each annual election"); 1 DAVID A. DREXLER, LEWIS S. BLACK & A GILCHRIST SPARKS, III, DELAWARE CORPORATION LAW AND PRACTICE § 13.01[7] (2009) (A staggered board is one "divided into two or three classes, each member of which serves either a two or three year term depending upon the number of classes...."); 1 R. FRANKLIN BALOTTI & JESSE A. FINKELSTEIN, THE DELAWARE LAW OF CORPORATIONS AND BUSINESS ORGANIZATIONS § 4.6 (2010) ("A real benefit to directors on a [staggered] board is that it would take two years for an insurgent to obtain control in a proxy contest....").
[28] 159 A.2d 288 (Del.Ch. 1960).
[29] The charter provision at issue relevantly provided: "At each annual election, commencing at the next annual meeting of the stockholders, the successors to the class of directors whose term expires in that year shall be elected to hold office for the term of three years to succeed those whose term expires so that the term of office of one class of directors shall expire in each year." Id. at 290.
[30] See id. (emphasis added).
[31] See id. at 290-91.
[32] See id. at 291.
[33] Airgas, 2010 WL 3960599, at *11 (citations omitted).
[34] We recognize that Delaware corporations have some latitude in setting the date for an annual meeting. See 8 Del. C. § 211. Therefore, a director's term may properly end at an annual meeting even though that director only served approximately three years rather than exactly three years. In this case, however, we need not decide the parameters of an approximate term of three years because twenty-eight months is not approximately three years.
[35] See Essential Enterprises, 159 A.2d at 291; 8 Del. C. § 141(d) (providing that "the term of office ... of the second class 1 year thereafter; of the third class 2 years thereafter...."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2442289/ | 6 A.3d 577 (2010)
COM.
v.
REDDINGER.
No. 1225 WDA 2009.
Superior Court of Pennsylvania.
July 29, 2010.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920534/ | 369 A.2d 674 (1977)
Mark STREITFELD, Defendant below, Appellant,
v.
STATE of Delaware, Plaintiff below, Appellee.
Supreme Court of Delaware.
Submitted October 13, 1976.
Decided January 21, 1977.
Reargument Denied February 14, 1977.
Arlen B. Mekler, Mekler & Maurer, Wilmington, for defendant, appellant.
Charles M. Oberly, III, Deputy Atty. Gen., Wilmington, for plaintiff, appellee.
Before HERRMANN, C. J., and DUFFY and McNEILLY, JJ.
DUFFY, Justice.
This is an appeal from a sentence by the Superior Court after a jury had found defendant guilty of "knowingly or recklessly" selling obscene material in violation of 11 Del.C. § 1361(1).[1] Defendant contends *675 that the Trial Court erroneously instructed the jury on the meaning of the word, "prurient", and that he was prejudiced by a coercive supplementary jury instruction. We discuss these contentions seriatim.
I
The first issue for consideration concerns the instruction on the meaning of "prurient." The Trial Judge directed the jury, as follows:
"I turn now to the statute which has already been distributed to you and which has been discussed at length throughout the trial, that is the statute that contains the definition of obscene. This definition, as was mentioned at various times through the trial, comes from a case or perhaps several cases of the United States Supreme Court, and represents their language as to what materials are to be regarded as obscene. It reads as follows:
Material is obscene if, one, the average person applying contemporary community standards would find the material, taken as a whole, appeals to the prurient interest.
Now, that word gives some trouble. Prurient interest is given various definitions in various dictionaries, as has been mentioned, and I have consulted these dictionaries and I fell [sic] that a synonym for this word is, that would be most applicable in this case and most useful to you in attempting to apply your whatever understanding you already have of this word, would be lewd. This is not to say that the other definitions are incorrect, but simply that one of the synonyms listed in some of the dictionaries is the word lewd. I think you will find it the most useful, but not necessarily to the exclusion of other understandings you may have of the word."
The Court then discussed other provisions of the Statute.
After deliberating for a time, the jury requested further instruction on the definition of "lewd." The Court then gave the following explanation:
"Members of the jury, I have your note that says, `May we please have the Court's definition of the word lewd?'
Of course, the word lewd is not in the statute, and I merely used that as a synonym for prurient, which is in the statute, however. Therefore, your primary thrust of your inquiry should be the correct application of the statutory language. However, no matter which word is being used, some of the same concepts are present.
I will give you some of the synonyms contained in the unabridged dictionary for lewd. One of the synonyms is lustful and another is lascivious.
I also will remind you that the Supreme Court informs you that, in attempting *676 to define prurient, the Supreme Court has sometimes referred to the phrase shameful or morbid, so I give you these additional words for you to apply in your consideration of the application of the statutory language."
Defendant argues that the principal instruction was erroneous since it did not mirror the dictionary definition of "prurient", and that the explanatory instruction compounded the error by taking the jury a step beyond the actual legal standard. We find neither argument persuasive.
In Roth v. United States, 354 U.S. 476, 487, n. 20, 77 S. Ct. 1304, 1310, n. 20, 1 L. Ed. 2d 1498 (1957), the landmark decision in the law of obscenity, the United States Supreme Court said the following as to the meaning of "prurient":
" material having a tendency to excite lustful thoughts. Webster's New International Dictionary (Unabridged, 2d ed., 1949) defines prurient, [Court's emphasis] in pertinent part, as follows:
`* * * Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd * * *.'
Pruriency [Court's emphasis] is defined, in pertinent part, as follows:
`* * * Quality of being prurient; lascivious desire or thought. * * *'
We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent.Draft No. 6, 1957), viz.:
`* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * *'"
For other definitions of prurient, see generally, E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, § 41.03 (1970) where the following definition, in part, of obscene is offered:
"`Obscene' means something which deals with sex in a manner such that the predominant appeal is to prurient interest;...
An appeal to prurient interest is an appeal to a morbid interest in sex, as distinguished from a candid interest in sex."
Here, the Trial Judge gave the jurors five synonyms to assist them in applying the obscenity statute. Basically, and following Roth, he defined obscenity in terms of its appeal to "prurient" interest; thereafter to assist the jury in its deliberations he used the five synonyms for that word: "lewd," "lustful," "lascivious," "shameful" and "morbid." While some of these terms may not be, in the technical sense, part of a dictionary definition of "prurient," they did convey to the jurors a clearer explanation of the legal meaning of the standard. Furthermore, we fail to see how their use can constitute prejudicial error when each term has been cited with approval by the Supreme Court of the United States in the context of an obscenity prosecution. Roth v. United States, supra. For these reasons, we conclude that the Court did not erroneously instruct the jury on the meaning of "prurient."
II
We turn now to defendant's argument that he was prejudiced by the Trial Court's supplementary instruction to the jury.
After deliberating for roughly three hours the jury informed the Court that it was deadlocked. The Court then advised the jurors that it could not excuse them after such a short period of deliberation and requested that they give the case further consideration.
*677 The Court's supplementary instruction a so-called "Allen charge" complied in all respects with that approved by this Court in Brown v. State, Del.Supr., 369 A.2d 682 (1976) except that the Judge failed to admonish each juror not to surrender a personal conviction merely for the sake of reaching a verdict.[2]
We have no intention of modifying that which was said in Brown about the "danger" of an Allen charge and the care with which it must be used to avoid judicial coercion on a jury. But counsel has a duty to promptly object to any departure from the Brown standard and thus to give the Trial Court an opportunity to make appropriate modifications in its instruction. See Superior Court Criminal Rule 30(a). Failure to make a timely objection may result in waiver of the right to complain. In other words, every departure from the Brown standard does not necessarily amount to reversible error which this Court will correct, absent objection below. And that is this case.
Defendant made no objection to the form in which the supplementary charge was given and he now contends that omission of the admonition not to surrender a personal conviction was plain and reversible error. We disagree. Considering all of the circumstances, including the time of day when the instruction was given, the words used, the length of the deliberations both before and after the instruction, and the complexity of the case, we conclude that defendant was not prejudiced by the supplementary instruction. There was no suggestion therein that either side had to compromise a conviction to reach a verdict, nor was there any intimation that the jury would be held until a verdict was reached. We conclude that the instruction was not coercive as a matter of law.
* * * * * *
Affirmed.
NOTES
[1] 11 Del.C. § 1361 provides:
"A person is guilty of obscenity when he knowingly or recklessly:
(1) Sells, delivers or provides, or offers or agrees to sell, deliver or provide, any obscene picture, writing, record or other representation or embodiment of the obscene; or
(2) Presents or directs an obscene play, dance or performance, or participates in that portion thereof which makes it obscene; or
(3) Publishes, exhibits or otherwise makes available any obscene material; or
(4) Possesses any obscene material for purposes of sale or other commercial dissemination."
"Obscene" is defined in § 1364, as follows:
"Material is obscene if:
(1) The average person applying contemporary community standards would find the material, taken as a whole, appeals to the prurient interests; and
(2) The material depicts or describes:
a. Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; or
b. Patently offensive representations or descriptions of masturbation, excretory functions, and/or lewd exhibitions of the genitals; and
(3) The work taken as a whole lacks serious literary, artistic, political or scientific value."
Defendant concedes that this incorporates the test formulated by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).
[2] The Court's instruction and a following colloquy were as follows: "The case which you have been trying is, of course, one in which, perhaps, a great deal of debate and thought may be necessary in arriving at a verdict, because it took parts of three days to try and has exhibits running into hundreds of pages, and I cannot simply excuse you as a jury that's hopelessly hung after you have had the case for only about three hours.
The matter is one of importance and must be resolved eventually. If a mistrial is declared in this case, the State would have the right to demand a new trial before another jury, and there's no reason to believe that additional evidence or more evidence could be presented that would be helpful to another jury than has already been presented to this jury or that another jury would be drawn from a more capable and discerning group of persons, because all concerned in the trial have great confidence in you as jurors.
I must ask you to, both those of you who are in the majority and those of you who are in the minority in whatever debate you have had, to carefully re-examine your positions and to debate this matter further among yourselves.
I simply cannot excuse you after this short a time of debate, and I must ask you to consider the case further.
Yes?
THE FOREMAN: May I ask you a question?
THE COURT: Yes.
THE FOREMAN: I think it's useless. Before we left I polled everybody about three, four once, twice, three, four times, and the same people say they're not going to change their decision. I tried to change their decision with
THE COURT: All right. It is the custom of this Court to ask for further debate. It
THE FOREMAN: That's all right, sir.
THE COURT: It might turn out to be useless. I hope it won't, but many times I've been assured that it's useless and then a verdict has been arrived at, so we must ask you to put more effort into it than you have done so far.
THE FOREMAN: I'd be glad to, Your Honor.
THE COURT: All right, the jury is requested to go back to the Jury Room." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920548/ | 245 Pa. Super. 157 (1976)
369 A.2d 341
COMMONWEALTH of Pennsylvania
v.
Richard CAESAR, Appellant.
Superior Court of Pennsylvania.
Submitted September 13, 1976.
Decided November 22, 1976.
*159 John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
JACOBS, Judge:
Following a non-jury trial in July, 1975, appellant was convicted of unauthorized use of an automobile.[1] Post-trial motions were denied, and appellant was sentenced to a prison term of six to twenty-three and one-half months. This appeal followed. For reasons hereinafter set forth, we reverse.
The factual history of the case can be summarized as follows: On January 6, 1975, appellant was observed operating a 1966 Buick which was listed on a police "hot sheet" for stolen cars. Officer Frederick Evans pursued the vehicle and, by blowing his horn, signalled appellant to stop. Appellant continued on for approximately one and one-half blocks before pulling over. It was not established whether or not appellant was attempting to evade Officer Evans, since it appears that due to traffic and street design, it may have been impractical for appellant to stop sooner without blocking traffic. In any event, it is clear that appellant cooperated fully when he *160 was informed that the car was listed as stolen. Appellant testified that a man by the name of Paul Roy, who appellant had seen driving the car the previous week, had loaned him the car. He also testified that when arrested, he had informed the officer of having borrowed the car from Roy. This point was rebutted by Officer Evans who testified that upon his arrest, appellant stated that his female passenger "had nothing to do with it," (N.T. 19), but did not mention Roy.
The following facts were stipulated to by counsel: (1) The owner of the car was Mr. Pietro Lauini, (2) Mr. Lauini had not given appellant permission to drive the automobile, (3) The automobile was reported as stolen on December 11, 1974, and (4) Appellant was incarcerated at the Philadelphia Detention Center from December 8 until December 14, 1974.
Upon the above facts, the trial judge found appellant guilty of unauthorized use of an automobile. Hence this appeal.
Appellant contended in post-trial motions, and now argues on appeal, that the evidence presented was not sufficient to prove beyond a reasonable doubt the fact that appellant knew the automobile was stolen or that he knew he did not have permission of the owner to operate the automobile. In its opinion, the lower court responded to this contention by stating that mens rea is not an element of the crime of unauthorized use of an automobile. In so holding, the court relied on Commonwealth v. Grant, 235 Pa.Super. 357, 341 A.2d 511 (1975), and Commonwealth v. Cross, 232 Pa.Super. 496, 335 A.2d 756 (1975), in which we held that the crime of unauthorized use under the Motor Vehicle Code,[2] which preceded the Crimes Code under which appellant was charged, did not require a showing of mens rea. The court was apparently *161 unaware of our recent decision, In re Waldron, 237 Pa. Super. 298, 353 A.2d 43 (1975), in which we distinguished the elements of the crime of unauthorized use of an automobile under the Motor Vehicle Code, from the elements of the same crime as set forth in the Crimes Code. In holding that guilty knowledge is a necessary element under the Crimes Code, we said:
"In Commonwealth v. Cross, 232 Pa.Super. 496, 335 A.2d 756 (1975), we construed Section 624(5) to mean that criminal intent or guilty knowledge was not an essential element of the offense; and that a conviction would be sustained if the Commonwealth merely established that the defendant operated the vehicle without the owner's knowledge or permission. Accord: Commonwealth v. Grant, 235 Pa.Super. 357, 341 A.2d 511 (1975). In view of the obvious similarities between 75 P.S. § 624(5) and 18 Pa.C.S. § 3928, it would appear at first blush that our decisions in Cross and Grant are controlling as to the instant appeal. However, our examination and analysis of the Crimes Code leads us to conclude that proof of mens rea or guilty knowledge is essential to establish the material elements of Section 3928." Id. at 305, 353 A.2d at 47 (footnotes omitted).
It thus becomes clear that the Commonwealth was required to prove that appellant either knew that the automobile was stolen, or knew that he did not have the owner's permission to operate the automobile. Having carefully reviewed the evidence, we now hold that the Commonwealth failed to meet its burden in proving such knowledge.
The test for sufficiency of the evidence is whether, in reviewing the evidence in a light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the evidence is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Ilgenfritz, *162 466 Pa. 345, 353 A.2d 387 (1976). While there is seldom direct evidence of guilty knowledge, that element may be inferred if the underlying circumstantial evidence is sufficiently strong. Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972). In determining whether or not there is sufficient proof of guilty knowledge, we will consider among other factors, whether possession of the stolen property is unexplained, whether the property was recently stolen,[3] and whether the accused's conduct at the time of his arrest is indicative of guilty knowledge. Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244 (1976).
In the case at bar, appellant offered an explanation for his possession of the automobile, which explanation was basically unanswered by the Commonwealth. In addition, the automobile was reported stolen nearly four weeks prior to the date appellant was arrested, and it was clearly established that appellant was incarcerated at the time the theft reportedly took place. As to appellant's conduct at the time of his arrest, it was shown that appellant continued to drive for a block and a half before pulling over pursuant to Officer Evans' direction. In view of the method used to pull appellant over, (Officer Evans blew his horn from a distance of 3-4 car lengths), and the fact that it may have been somewhat impractical to stop immediately, a conclusion that this conduct evidenced guilty knowledge would be conjectural at best,[4] especially in light of the trial court's finding that appellant *163 was fully cooperative with the police upon being informed that the car was stolen.
The only fact proved by the Commonwealth that could conceivably give rise to an inference of guilty knowledge is appellant's statement that his female companion "had nothing to do with it." This statement, standing alone as it does, is not sufficient to sustain the Commonwealth's burden of proof. There simply are no other circumstances present in this case, as there were in Commonwealth v. Williams, supra, to show that appellant had reason to know the car was stolen. The age of the automobile itself (10 years) would certainly not cause appellant to suspect that Mr. Roy had stolen it, especially since, as appellant testified, he had seen Roy driving the automobile during the week before he borrowed it.
Although as pointed out earlier, the trial court mistakenly believed that guilty knowledge was not an element which the Commonwealth was required to prove, we believe that even if the court had applied the proper elements of the crime of unauthorized use of an automobile, it could not reasonably have concluded that the element of guilty knowledge was proved beyond a reasonable doubt. The Commonwealth simply failed to meet its burden. To say that they had done so in this case would in effect be placing the burden on the accused to prove his innocence. This we cannot do.
Judgment of sentence reversed, and appellant discharged from custody on the charge herein.
VAN der VOORT, J., concurs in the result.
PRICE, J., dissents.
NOTES
[1] Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S. § 3928 (1973) provides:
"A person is guilty of a misdemeanor of the second degree if he operates the automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle of another without consent of the owner."
[2] Act of April 29, 1959, P.L. 58, § 624; August 27, 1963, P.L. 1353, § 1, 75 P.S. § 624(5).
[3] The court in Commonwealth v. Williams, supra, held that possession of an automobile 12 days after the theft was "recent," as compared to Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973), in which it was held that possession of a stolen vehicle two and one-half weeks after the theft did not give rise to an inference of guilty knowledge. The court also pointed out in Williams that the accused had taken evasive action whereas he did not do so in Henderson.
[4] In Commonwealth v. Williams, supra, in which the evidence was held to be sufficient, the accused had taken immediate and obvious evasive action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920585/ | 337 A.2d 764 (1975)
In re Conservatorship for Charlotte L. RICH a/k/a Charlotte M. Rich and Charlotte McKnight Rich.
Appeal of David HUDDLE.
No. 7620.
District of Columbia Court of Appeals.
Argued January 23, 1974.
Decided May 14, 1975.
*765 David Huddle pro se.
Dolores Murray, Washington, D. C., conservator, pro se.
Before NEBEKER, YEAGLEY and HARRIS, Associate Judges.
YEAGLEY, Associate Judge:
This is a suit by appellant, a member of the bar of this court who appeared pro se, for the allowance of attorney's fees from the estate of Charlotte Rich, an adult ward of the court.
The facts, as alleged in the uncontroverted petition for fees, show that Mrs. Rich shared, with six other heirs-at-law, the estate of Susie F. Walsh, deceased, of which the appellant had been the administrator. This estate consisted primarily of three parcels of real property of which Mrs. Rich inherited an undivided one-quarter. Appellant alleged that "on behalf of all of the heirs-at-law of the said Susie F. Walsh, . . . [he] negotiated the separate sale of each parcel of real estate, assisted in the drafting of three contracts of sale, arranged for the execution of the contracts of sale, deeds, and Recordation Tax Statements . . ., arranged and attended to settlements, receipted and disbursed the funds, and prepared statements for each parcel showing the capital gains realized on each sale."
After completing the sales, the appellant filed, on March 22, 1973, a petition in the Superior Court of the District of Columbia seeking allowance of one-quarter of his fees from the conservatorship of the adult ward. The appellant alleged that he had been advised by the conservator that she had no objection to the allowance of such fees and costs. The petition was unopposed, but the court denied it without written findings or conclusions. A petition for reconsideration was likewise denied. Concluding that the court below was in error, we reverse and remand for a determination of the reasonable value of appellant's services to the estate.
The conservator opposes the petition on appeal claiming that a conservator may not expend funds unless prior court approval authorizing the services was obtained, and that appellant's services were performed voluntarily. The conservator further contends she was always ready, willing and able to perform such services herself. The record, however, does not appear to justify this last contention. There is no indication on the record we have that she either objected or offered to perform the services on behalf of her ward. Indeed, it would appear that she readily acquiesced in the efforts of appellant to dispose of the property.
The three parcels were sold for a total price of $128,000. The sale was finalized by the filing by appellant on behalf of the other heirs of three complaints against the ward under conservatorship for Confirmation of Contracts and Execution of Deeds on September 25, 1972, November 20, 1972, and December 21, 1972. Following the consideration of each complaint, the court, finding that the conservator indicated "no objection" in each instance, entered an order confirming the three sales.
When valuable real property is sold, even if one of the owners is under a conservatorship, it is reasonable to expect that the costs of sale will include a realtor's commission and an attorney's fee. If the conservator had any objection to the sale, she should have made it before or at the time the sale was submitted to the court for approval. Neither she nor the court made any objection and we conclude that the sale had at least the tacit approval of the conservator.
This raises the problem, as argued by the conservator in her brief, of the applicability of Super.Ct.Civ.R. 305(c). That rule provides in part:
All expenditures from an estate by a fiduciary, except those provided by statute and court costs, shall be made only upon prior authorization of the court. Failure of a fiduciary to obtain prior *766 court authority for expenditures, other than those provided by statute and court costs, shall constitute an irregularity in the administration of the estate and such expenditures shall be disallowed as a charge to the estate upon annual accounting except for good cause shown.. . .
The prior approval requirement of Rule 305(c) refers clearly to "expenditures" which we take to mean the act of paying out money, as opposed to contracting for, authorizing, obligating or incurring expenses for services necessary to the carrying on, liquidating, or terminating the affairs of the estate. The principal purpose of the rule is to protect the estate of the ward against excessive or unjustified expenditures by the conservator by allowing only those expenditures for which the fiduciary secured prior approval or, lacking prior authorization, such obligations incurred as the court finds to be reasonable and necessary. It would be unreasonable and unrealistic to require the conservator to obtain court approval prior to incurring any debt whatever. For example, in the course of the administration of this estate the conservator sought court authorization to pay bills previously incurred by the conservator for "expenses in connection with the ward's real properties", for "cleaning charges", "locksmith", "plumbing repairs" and "medical and dental services" rendered. The objective that the estate not be charged a substantial item without the court's approval is realized where the court, as is true here, is directly petitioned by the creditor for approval of his bill or fees against the estate after the services have been rendered. The court in this instance had earlier knowledge of the transaction through the proceedings to approve the sales. We hold that Rule 305(c) is not a bar to this action by appellant.
The record here barely falls short of establishing an express oral agreement for the services at issue. However, it does appear from the record that the conservator was aware of the services being rendered by appellant, that they were accepted and that they benefited the estate. This is not contested and raises the question of whether appellant is entitled to compensation on a quantum meruit basis. See Dierickx v. Wisehart, 195 So. 2d 614 (Fla.3d Dist.Ct.App.1967). Generally, quantum meruit is used where the plaintiff has performed useful services for the defendant. Warner Corp. v. Magazine Realty Co., D.C.App., 255 A.2d 479 (1969). If necessary services are rendered with or without the request of the conservator, and without prior court approval, but with the knowledge of the conservator, which in some way benefit the estate, recovery may be allowed for the reasonable value of the services rendered. It is clear that if the services are rendered freely with no expectation of payment, or rendered officiously, quantum meruit is to be denied. Dobbs, Remedies, § 4.2 at 237 (1973). See Bloomgarden v. Coyer, 156 U.S.App.D.C. 109, 479 F.2d 201 (1973).
The essential elements for recovery under quantum meruit are: (1) valuable services being rendered; (2) for the person sought to be charged; (3) which services were accepted by the person sought to be charged, used and enjoyed by him or her; and (4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff, in performing such services, expected to be paid by him or her. Montes v. Naismith & Trevino Const. Co., 459 S.W.2d 691, 694 (Tex.Civ. App.1970). The record reflects that each of these requirements has been met.
We find that based upon the uncontested pleadings and the record below, substantial benefit inured to the estate of the ward from the performance of legal services by appellant which supplies the element of unjust enrichment necessary for the application of quantum meruit. Accordingly, we conclude that it would be unjust to allow the ward's estate to benefit from the use of appellant's services under the circumstances without paying for them.
*767 We hold that appellant is entitled to a reasonable fee from the conservatorship for the reasonable value of the legal services rendered on a theory of quantum meruit. Since the trial court did not consider the reasonableness of the fee, we remand the case with instructions to determine what figure it should set as the value of appellant's services to the estate. The court in determining reasonable value should consider the nature of the services for difficulty and complexity, the value of the property involved, and the fact that the six other heirs-at-law have paid their percentage shares of the fee charged by appellant. The amount approved should be commensurate with the value of such services in the local market, but not to exceed the amount of the fee requested.
Reversed and remanded with instructions for further proceedings in accordance with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3038955/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-4090
___________
Eric Randall Nance, *
*
Petitioner/Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas
Larry Norris, Director, *
Arkansas Department of * [PUBLISHED]
Correction, *
*
Respondent/Appellant. *
___________
Submitted: November 22, 2005
Filed: November 22, 2005
___________
Before ARNOLD, BEAM, and MELLOY, Circuit Judges.
___________
PER CURIAM.
Before the court is respondent's motion to vacate a stay of execution entered by
the district court. We grant the motion and vacate the stay.
On November 14, 2005, petitioner filed a pleading captioned "Petition for Writ
of Habeas Corpus" accompanied by a motion for stay of execution. The district court
construed the petition as a requested amendment to the previously filed1 petition in
district court, case number: 5:00-CV-00339 ("CV-00339"). The district court, after
making findings of fact and conclusions of law, granted a motion to amend the habeas
corpus petition, and granted the stay of execution.
On January 24, 2005, petitioner filed a petition to remand in CV:00339 seeking
the same relief sought in the present filings. Construing the motion to remand as a
motion to file a successive 28 U.S.C. § 2244 habeas petition, we denied the motion.
We view the present filings as yet another attempt to avoid the requirements of 28
U.S.C. § 2244(b)(3)(A).
Accordingly, we deny a motion for interlocutory appeal, vacate the district
court's stay of execution and dismiss the petition for habeas corpus.
______________________________
1
On January 23, 2003, the district court denied habeas relief and dismissed CV-
00339. We affirmed this action on December 10, 2004. Our mandate issued on
October 12, 2005. The case is closed.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1622576/ | 15 So. 3d 581 (2009)
MAULDIN
v.
STATE.
No. SC09-665.
Supreme Court of Florida.
July 24, 2009.
Decision without published opinion Review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1503247/ | 791 F. Supp. 52 (1992)
Margaret A. CURLEY, Plaintiff,
v.
The UNITED STATES of America, Defendant.
No. CV 89 1361 (ASC).
United States District Court, E.D. New York.
March 25, 1992.
*53 Robert F. Hermann, Hermann & Bateman, Westfield, N.J., for plaintiff Margaret Curley.
Eugene J. Rossi, Peter Sklarew, Trial Attys., Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendant U.S.
MEMORANDUM AND ORDER
CHREIN, United States Magistrate Judge.
By stipulation of the parties, this case is to be tried before the undersigned on April 6, 1992. At this juncture, plaintiff has moved to dismiss the tax assessment levied against her as invalid and void ab initio; or, in the alternative, to shift the burden of proof at trial to the United States.
I. FACTUAL BACKGROUND
Plaintiff, Margaret Curley, is the seventy year old widow of Arthur Curley, Sr., who died on February 25, 1979. In the mid-1970's, Mr. Curley founded ARCO Advertising Service, Inc. (ARCO). ARCO was in the business of printing commercial advertising.
Upon her husband's death, Mrs. Curley became the majority shareholder in ARCO. Margaret Curley obtained 86% of the shares of ARCO stock. The remaining 14% of the shares was split evenly among the couple's seven children. The plaintiff alleges that both prior and subsequent to her husband's death, she played no active role in the operations and business of ARCO. However, Mrs. Curley was at one point designated as the president of the company. She later was replaced by her son, William Curley.
Pursuant to the requirements of § 6203 of the Internal Revenue Code an Internal Revenue Service ("IRS") assessment officer signed and filed a Summary Record of Assessments (Form 23-C) on April 9, 1986. This summary was based on ARCO's alleged failure to pay certain taxes. The plaintiff was also informed that she was being assessed a so-called "100% penalty" under Code § 6672 for the willful failure to collect, account for, and pay over to the United States, the withholding taxes or trust fund taxes of the employees of ARCO. This form identified: 1) the plaintiff by name 2) the plaintiff's social security number; 3) the plaintiff's address; 4) the name of the corporation; 5) the type of tax; 6) the amount of tax; and 7) the taxable period involved.
Plaintiff received a form letter from the IRS dated April 14, 1986. The letter was captioned "Final Notice" and stated that Mrs. Curley was being assessed $130,430.59 for the tax period ending September 30, 1985. Apparently, though, this figure actually represented an assessment for fourteen tax periods previous to and including the period ending on September 30, 1985. These periods included: the first, third, and fourth taxable quarters of 1981; the four quarters of 1982; the first, second, and fourth quarter of 1983; the first and second quarter of 1984; and the second and third quarters of 1985. This notice sent by the IRS, though, did not provide a period by period breakdown of the assessment.
The plaintiff asserts that prior to this "Final Notice" she had received no notice of the IRS's intention to assert a penalty against her.
On May 5, 1986, the IRS sent the plaintiff another letter stating that it proposed to assess a penalty against her for unpaid withholding taxes due from ARCO for the fourteen quarterly periods detailed in an attachment to the letter. In that attachment, the IRS provided plaintiff with the specified amounts due for the fourteen periods. The May 5, 1986 letter also advised the plaintiff of her right to appeal the proposed assessment. Mrs. Curley was informed *54 that if no such appeal was filed within 30 days, the assessment would be made.
Seventeen days later, on May 22, 1986, the IRS issued levies and on May 23, 1986 served plaintiff with notices of seizure for her properties at 645 and 659 Metropolitan Avenue.
Plaintiff filed an appeal of the proposed assessment on or about June 3, 1986. The IRS did not go forward with the sale of the properties at that time. The Appeals Office sustained the assessment on May 11, 1988.
Plaintiff requested a further hearing; however, on October 4, 1988, before any decision was rendered on the plaintiff's request, the IRS issued Mrs. Curley a final notice stating that it would levy her property unless the money allegedly due for the tax period ending September 30, 1985 was paid within 10 days.
This notice indicated that the balance of tax due was $103,439.59 (as opposed to the $130,439.59 mentioned in the IRS's initial letter) and there was an accumulated interest and penalty of $28,940.40 resulting in a total due and owing of $132,379.99. On November 21, 1988, the IRS, after receiving no payment from the plaintiff, seized the property at 659 Metropolitan Avenue. Plaintiff now seeks judicial review of the assessment, seizure, and procedure.
II. DISCUSSION
The plaintiff, Mrs. Curley, attacks the validity of the tax assessment against her by asserting: 1) that the legal assessment document was defective and thus invalid; 2) that no adequate notice of the assessment was provided; and, 3) that the appeals process provided her was inadequate.
A. VALIDITY OF THE LEGAL ASSESSMENT DOCUMENT
Plaintiff argues that the assessment should be dismissed because the legal assessment document, Form 23-C, contained technical defects and was not supported by documentation. It is well settled that the IRS's tax assessments are presumed to be correct and it is the taxpayer who must rebut this presumption. See United States v. Schroeder, 900 F.2d 1144, 1148 (7th Cir.1990) (hereinafter, Schroeder). Only in rare cases can this presumption can be overcome by destroying the assessment's foundation. Id. Generally, a court will not look behind an assessment "to evaluate the procedure and evidence used in making the assessment." Ruth v. United States, 823 F.2d 1091, 1094 (7th Cir.1987). As long as the procedures and evidence upon which the government relies to determine the assessment have a rational foundation, "the inquiry focusses on the merits of tax liability, not on the IRS procedures." Id.; see also Oliver v. United States, 921 F.2d 916, 920 (9th Cir.1990).
Where there are records, documents, and other foundational items upon which a correct determination of liability may be made, there is no need to void the assessment. Schroeder, 900 F.2d at 1149. Plaintiff claims that there are no such documents because the IRS destroyed part of its file on ARCO and, therefore, that the assessment is without any rational foundation. The IRS claims that this additional collection file was disposed of pursuant to normal IRS procedures unrelated to the commencement of this action.
Plaintiff has not shown that the assessment was entirely arbitrary. The government has produced its own investigative history sheets, affidavits of the revenue officers involved and various corporate checks. Additionally, it is undisputed that plaintiff was an 86% shareholder in ARCO and president of the corporation at one time. Therefore, it cannot be said that this assessment is wholly without rational foundation.
Treasury regulations require that the Form 23-C contain the taxpayer's name, social security number and address, the name of the corporation, the character of the liability assessed, the amount of tax, the taxable period involved, and the signature of a responsible officer. 26 C.F.R. 301.6203-1. Although the amount of tax listed on the Form 23-C was incorrect, this will not invalidate the assessment. For an *55 assessment to be void, it must be "arbitrary in the sense that the calculation has no support and the true amount of tax is incapable of being ascertained." Schroeder, 900 F.2d at 1149. Such is not the case here, as the incorrect figure was merely the result of a transpositional error.
Plaintiff also objects to the failure of the government to separately list the fourteen quarterly tax periods on the Form 23-C. Instead, the document reads, "tax period ending September 30, 1985." The government claims this is standard practice.
Plaintiff relies heavily on Brafman v. United States, 384 F.2d 863 (5th Cir. 1967), where an assessment was invalidated due to the lack of a signature on the 23-C Form. This defect, however, was a significant violation of the regulation. It is not clear, though, that providing "tax period ending September 30, 1985" is insufficient to satisfy the identification of the tax period requirement under the statute. A signature requirement protects the taxpayer by ensuring that a responsible officer has approved the assessment. Separately listing each tax period, though, is less crucial, particularly where the tax periods are not at issue and plaintiff is otherwise notified as to the applicable periods.
Since there has been no showing that the assessment was arbitrary, without foundation, or so technically flawed as to amount to a violation of due process, the assessment's presumption of correctness will stand. For this reason, the Legal Assessment Document will be considered valid.
B. INTERNAL REVENUE MANUAL
Plaintiff relies heavily on the Internal Revenue Manual ("IRM") in her argument that the assessment is procedurally invalid. However, the IRM does not have the force and effect of law. United States v. New York Telephone Co., 644 F.2d 953, 959 n. 10 (2d Cir.1981). Since the IRM is not law, any alleged failure to adhere to its provisions will not necessarily result in an invalid assessment. See Foxman v. Renison, 625 F.2d 429, 432 (2d Cir.1980), cert. denied, 449 U.S. 993, 101 S. Ct. 530, 66 L. Ed. 2d 290 (1980), reh. den. 449 U.S. 1119, 101 S. Ct. 932, 66 L. Ed. 2d 848 (1981); Kopunek v. Director of Internal Revenue, 528 F. Supp. 134, 137 (S.D.N.Y.1981).
However, failure to adhere to agency regulations may amount to a denial of due process if the regulations are required by the constitution or a statute. See Arzanipour v. Immigration & Naturalization Service, 866 F.2d 743, 746 (5th Cir.1989), cert. denied, 493 U.S. 814, 110 S. Ct. 63, 107 L. Ed. 2d 30 (1989). To invalidate an assessment, the government's action must also substantially prejudice the complaining party. Calderon-Ontiveros v. Immigration & Naturalization Service, 809 F.2d 1050 (5th Cir.1986). This is not the case in this matter.
C. ADEQUACY OF NOTICE
Plaintiff claims that notice of the assessment was inadequate because: 1) she did not timely receive a Notice of Proposed Assessment from the IRS, 2) the amount specified as due on the notice provided was different than what she was actually assessed, and 3) the notice provided only identified the tax period ending 9/30/85 as the subject of the assessment.
Providing the taxpayer with the Notice of the Proposed Assessment is required by the IRM only. As set forth above, the IRM is not law and thus any failure to adhere to its provisions does not in itself invalidate the assessment.
Even assuming that a "procedural" defect exists because the IRM provisions were not followed, the defect does not necessarily implicate a violation of due process. The Constitution requires notice before the taking of property. Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). There is no constitutional requirement that notice be provided more than once.
Plaintiff was clearly notified of the assessment by the April 14, 1986 letter. Hence, Mrs. Curley was apprised of the assessment prior to any seizure taking place. Further, the fact that a Notice of Proposed Assessment was not served prior to service of the Final Notice did not prejudice *56 the plaintiff since she did receive adequate notice before seizure and had ample time to prepare an appeal.
The fact that the amount due on the notice was different than the actual assessment does not invalidate the assessment. Notices containing technical defects are invalid only if the taxpayer has been prejudiced or misled by the error. Planned Invest., Inc. v. United States, 881 F.2d 340, 344 (6th Cir.1989); Sanderling, Inc. v. Commissioner, 571 F.2d 174, 176 (3rd Cir. 1978). To the extent that any discrepancy in the amount owed is misleading, the plaintiff has failed to show that she suffered any prejudice because of this discrepancy.[1]
As to the time periods being assessed, there is no statutory requirement for the listing of tax periods in the notice sent to the taxpayer. Such a statutory requirement applies, if at all, only to the Form 23-C. However, it is unclear, as previously stated, that this requirement even applies to the Form 23-C statement.
Even if due process required such a listing, the IRS's failure to delineate the periods on the April 14, 1986 notice was subsequently cured by the second notice sent to plaintiff dated May 5, 1986. Therefore, Mrs. Curley was aware of the tax periods for which she was being assessed prior to her appeal.
In sum, the technical defects in the notice of assessment, if any, were inconsequential. Thus they did not rise to the level of a due process violation, and as a result they fail to invalidate the assessment.
D. INADEQUACY OF THE APPEAL PROCESS
The plaintiff was not accorded an administrative appeal prior to the seizure. Plaintiff alleges that under the IRM, a preseizure appeal is required. Although the IRS placed a lien on her property before the 30 day appeal period had run, the IRS did not proceed with a sale before Mrs. Curley's appeal was heard. It appears that the IRM guidelines were not followed. However, as previously stated, the provisions of the IRM are not law and do not create any substantive rights in plaintiff.
The plaintiff argues that the procedural irregularities in this assessment amount to a denial of her due process rights. However, a post-deprivation hearing satisfies due process when revenue collection is at issue; hence, there is no right to a hearing prior to collection efforts. Phillips v. Commissioner, 283 U.S. 589, 51 S. Ct. 608, 75 L. Ed. 1289 (1931); Todd v. United States, 849 F.2d 365 (9th Cir.1988). Plaintiff has failed to show how she was prejudiced by a post-deprivation appeal.
E. PRESUMPTION OF CORRECTNESS
Plaintiff requests that if the assessment is not dismissed as invalid per se, the government should bear the burden of proof on its claim at trial. In § 6672 penalty tax cases, the party against whom the penalty is assessed has the burden of proving that he is not a responsible officer or that he did not willfully fail to pay. Schwinger v. United States, 652 F. Supp. 464 (E.D.N.Y.1987).
As previously stated, the presumption of correctness can be overcome by destroying the foundation of the assessment only in rare cases where it is shown to be without rational foundation or arbitrary and erroneous. United States v. Janis, 428 U.S. 433, 441, 96 S. Ct. 3021, 3026, 49 L. Ed. 2d 1046 (1976), reh. den., 429 U.S. 874, 97 S. Ct. 196, 50 L. Ed. 2d 158 (1976). For the reasons set forth in this opinion, plaintiff has not proven that this is one of those rare cases. As such, the burden at trial will remain fixed on the plaintiff to prove she was not a responsible officer of ARCO or did not willfully fail to pay the taxes in issue.
*57 III. CONCLUSION
For the foregoing reasons, the Internal Revenue Service's assessment is hereby presumed to be valid. The burden of proof at trial will remain with the plaintiff.
So Ordered.
NOTES
[1] It should be noted that the Government is not pursuing a recovery of the $130,430.59 it considers to be the correct amount of the assessment. Rather, the Government has chosen only to seek the $103,430.59 appearing on the assessment. This results in a situation where the plaintiff is claiming prejudice by being assessed $27,000.00 less than what the IRS considers as due and owing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1390005/ | 193 Va. 104 (1951)
CARSON T. OVERSTREET
v.
COMMONWEALTH OF VIRGINIA.
Record No. 3849.
Supreme Court of Virginia.
December 3, 1951.
J. H. Lavenstein, for the plaintiff in error.
Present, All the Justices.
1. Section 43-13 of the Code of 1950, making it a misdemeanor for a contractor to fraudulently appropriate to his own use funds paid by the owner while labor or materials remain unpaid for, does not interfere with the liberty to contract, since contractors enter into their engagements with the knowledge of the statute just as they enter into their engagements with the knowledge of other statutes relating to mechanics' and materialmen's liens.
2. Defendant was convicted under the provisions of section 43-13 of the Code of 1950, making it a misdemeanor for a contractor to fraudulently appropriate to his own use funds paid by the owner while labor or materials remain unpaid for. Defendant argued that he had used the money to pay for labor and materials, and that there was no evidence to show that the money received by him from the owner was used for any other purpose. He contended that the burden was on the Commonwealth to prove that he used the money for some other purpose, but that contention was without merit. Since it was his duty to apply the funds to the payment of labor and materials before using them for any other purpose, it became his duty to disclose the nature of his expenditures and to whom payments were made.
3. Under the facts of headnote 2, defendant's failure to disclose the items for which the funds were spent, and the persons to whom they were paid created a presumption of fact that they were used for some purpose other than paying amounts due or to become due for labor performed or material furnished. Under the statutes that constituted prima facie evidence of intent to defraud and it became incumbent upon defendant to produce evidence to the contrary.
4. Under the facts of headnote 2, defendant testified that he had paid out for labor and materials more than he had received from the owner; that he had no records with him at the trial of such expenditures, but that he did have at his home accounts to support his testimony. When asked why he failed to bring the accounts with him he replied that he did not think it was necessary "because he was a man of honor and did not propose to tell anything but the truth." Under the circumstances, defendant's testimony was of such a nature to be inconsistent with his innocence, and the trial court was justified in refusing to accept it as reflecting the true situation.
5. Under the facts of headnote 2, defendant argued that section 43-13 of the Code of 1950 was unconstitutional in that it authorizes the deprivation of one's property without due process of law and allows imprisonment for debt. That contention was without merit since it is the intent to defraud and not the indebtedness which is made the determining feature in establishing guilt. The object of the statute is to prevent the misappropriation of funds and it is not designed to imprison for debt.
Error to a judgment of the Circuit Court of Prince George county. Hon. J. J. Temple, judge presiding. The opinion states the case.
J. Lindsay Almond, Jr., Attorney General and Frederick T. Gray, Assistant Attorney General, for the Commonwealth.
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
Carson T. Overstreet, sometimes hereinafter referred to as defendant, complains of judgment finding him guilty of a misdemeanor, a violation of section 43-13, Code of Virginia, 1950. Upon his plea of not guilty, a jury being waived, the court heard the case. His sentence was fixed at a fine of $100 and confinement in jail for thirty days. He asks us to set aside his conviction on the ground, -- first, that the judgment is contrary to the law and the evidence, and, second, that Code, section 43-13 is unconstitutional, in that it authorizes the deprivation of one's property without due process of law and allows imprisonment for debt.
The evidence is certified to us in narrative form.
In July, 1949, Overstreet entered into a contract with W. R. Horne to make certain improvements and repairs to the latter's home for the sum of $2,600. In the following month of August, he purchased from W. L. Broaddus certain building material of *106 the value of $448.98, to be used in the work on Horne's house. Broaddus several times thereafter demanded of defendant payment on the material account. On each occasion defendant promised that the account would be attended to; but failed to fulfill his promises. On one occasion he told Broaddus that he was going to get Horne to give him an advance on his contract so that he could pay the bill.
W. R. Horne testified that on October 7, 1949, Overstreet came to him with the bill for material he had purchased from Broaddus and another small bill of the same character owing to another person; that Overstreet showed him his own check made out to his two creditors in the amounts of their respective bills; and requested $500 on account so that he might pay the bills. Thereupon, Horne executed and delivered his check for $500, payable to Carson T. Overstreet, putting under his signature the language, "Building Repair Fund." The defendant endorsed and cashed the check on October 9, 1949.
On the day of his trial Overstreet had not completed his contract with Horne, but the latter had paid him a total of $2,400 thereon, leaving a balance of $200 due when all of the work was completed according to the contract. Defendant, however, has never made any payment on the Broaddus account, and the latter has reduced the debt to judgment.
Overstreet, testifying in his own behalf, did not deny any of the above evidence. He said, referring to a written memorandum made out by himself, that he had paid out $1,828.36 for labor and $699.20 for material on the Horne job.
On cross-examination, the defendant, when asked with reference to specific items on his material account, and whether or not he had any receipted bill, any memorandum, other writing, or record showing the payment of them, replied that he had nothing with him. He said he did not have an account book, but did have at his home accounts or memoranda which would support his testimony. Asked why he did not bring the books or accounts, receipts or other evidence with him, he replied that he did not think it was necessary because he was a man of honor and did not propose to tell anything but the truth.
The trial judge, in his memorandum opinion, tells us that the defendant's manner of testifying "was arrogant, elusive and evasive." *107
The statute involved here, Virginia Code, 1950, section 43-13, reads as follows:
"Any contractor or subcontractor who, with intent to defraud, shall retain or use the funds, or any part thereof, paid by the owner to such contractor or by the owner or contractor to a subcontractor under any contract for the construction, removal, repair or improvement of any building or structure permanently annexed to the freehold, for any other purpose than to pay persons performing labor upon or furnishing material for such construction, repair, removal or improvement, shall be guilty of a misdemeanor in appropriating such funds to his own use while any amount for which he may be liable or become liable under his contract for such labor or materials remains unpaid, and may be prosecuted upon complaint of any person or persons so defrauded, and upon conviction, shall be punished by a fine of not less than one hundred nor more than two hundred and fifty dollars, or by confinement in jail not less than thirty days nor more than six months, or by both such fine and imprisonment in the discretion of the court."
"The use by any such contractor or subcontractor of any moneys paid to him under the contract, before paying all amounts due or to become due for labor performed or material furnished for such building or structure, for any other purpose than paying such amounts, shall be prima facie evidence of intent to defraud."
Defendant contends that there was no evidence to show that the money received by him from Horne was used for any other purpose than to pay for labor and material on the Horne contract, and that his statement that he paid out for labor and materials $127.56 more than he received from Horne should have been accepted as true. He argues that the burden was on the Commonwealth to prove that he used the money for some other purpose.
Code, section 43-13 is found in chapter 1 of Title 43, sections 43-1 to 43-22, inclusive, Code of Virginia, 1950, entitled "Mechanics' and Materialmen's Liens." Under the above statutes, an owner may enter into an agreement with the contractor for the erection of a building, and persons furnishing labor or material to the contractor, even without the knowledge of the owner, may obtain liens against property of the owner to the extent of the amount due from the owner to the contractor, *108 by taking certain prescribed steps. If these liens are not paid by the contractor, the owner may retain and withhold from the contractor such sum as may remain due to the contractor to satisfy the liens.
Code, section 43-13 has for its object additional protection and security to subcontractors, laborers, or materialmen furnishing labor or material for work undertaken by the contractor, as well as to relieve the owner of claims, liens and litigation. It does not interfere with the liberty to contract, since contractors enter into their engagements with the knowledge of the statute just as they enter into their engagements with the knowledge of other statutes relating to mechanics' and materialmen's liens. It was enacted in the exercise of the police power, in that its object is the prevention of fraud and becomes a part of every contract covered by its terms. Its penalty is not invoked by any reason of the contract, but only in case of misapplication of money subsequently committed by contractor. The penalty of the statute only arises if and when the offense is committed. No innocent person can be injured by its provisions. Only the contractor who diverts money with evil intent to defraud need fear its provisions.
Pertinent to the provisions of the statute are the following facts:
In August, 1949, defendant purchased material from Broaddus for use in the building contract with Horne, and in June, 1950, ten months thereafter, had paid no part of the bill, although he had received the sum of $2,400 upon his contract. He obtained a check for $500, a part of the above sum, in October, 1949, upon the express representation that it was to be applied in part to the full payment of the account of Broaddus. He cashed that check promptly, and eight months thereafter had not paid Broaddus. He used or retained the $500, and there is no evidence that he made any payment for labor or material to anyone after its receipt.
[2-4] Thus, the facts make it clear that the defendant used money paid to him under his contract with the property owner before paying all amounts due for material furnished for the improvement and repair of the owner's building. He knew or ought to have known where the funds went, and what he expended them for. Since it was his duty to apply them, or so much thereof as was necessary, to the payment of labor and material *109 on the Horne job before using them for any other purpose, it became his duty to disclose the nature of his expenditures and to whom payments were made. That information was peculiarly within his knowledge; whereas, it was practically impossible for the Commonwealth to trace the funds after they came into his hands. His failure to disclose the items for which the funds were spent, and the persons to whom they were paid creates a presumption of fact that they were used for some purpose other than paying amounts due or to become due for labor performed or material furnished. Under the statute this constituted prima facie evidence of intent to defraud. It then became incumbent upon him to produce evidence to the contrary. It is apparent, under the circumstances recited, that defendant's testimony was of such a nature as to be inconsistent with his innocence, and that the trial court was justified in refusing to accept it as reflecting the true situation.
In support of defendant's contention that Code, section 43-13 is unconstitutional, he cites People Holder, 53 Cal.App. 45, 199 P. 832, and Commercial Nat. Bank Smith, 60 S.D. 376, 244 N.W. 521.
In People Holder, supra, it was held that two statutes operating as amendments to a general embezzlement statute were invalid, as destroying the right to enter into a contract, and as attempting to require a contractor to make specific application of money paid in performance of the contract, which money was held to be solely that of the contractor; and, consequently, any legislation that made it a crime for one to use his own money for any purpose other than the payment of his debts was violative of a provision of the Constitution of that State, which expressly prohibited imprisonment for debt arising out of or founded on a contract. This was followed in the South Dakota case, which State has a similar constitutional provision and has adopted both the statute and construction from California.
Statutes analogous to ours seem to have been considered in only five other States. These are Minnesota, ( State Harris, 134 Minn. 35, 158 N.W. 829); Wisconsin, ( Pauly Keebler, 175 Wis. 428, 185 N.W. 554); Washington, ( State Williams, 133 Wash. 121, 233 P. 285); South Carolina, ( State Hertzog, 92 S.C. 14, 75 S.E. 374); and Delaware, ( State Tabasso Homes, 42 Del. (3 Terry) 110, 28 A.(2d) 248), in each of which the statute there under review was held to be constitutional. *110
The Minnesota case was tried under a statute (Chapter 105, Laws 1915 of Minnesota), which provided that the misuse by a contractor, with intent to defraud, of moneys paid to him by the landowner for whom the contractor is making improvements on the land, shall be larceny.
Subsection 3 of section 3315 of the Wisconsin statute provided that "All moneys paid by the owner to the principal contractor shall be and constitute a trust fund in the hands of such principal contractor to the amount of all claims due from or owing by such principal contractor for work, labor and materials * * *, until all such claims have been paid;" and made the use of such moneys by the principal contractor for any purpose other than for the payment of such claims embezzlement.
The Washington statute, (section 2604, Rem. Comp. Stat. P.C. 8947) provided that contractors who shall receive full price for labor or materials for which a lien might be lawfully filed, shall be deemed "agents" within the meaning of section 2601, sub-division 3, defining larceny by embezzlement.
In the Delaware case, decided in 1942, there was under review statutes which declared money received for the erection, construction, etc., of a building to be trust funds; made it unlawful to pay out said funds until all claims due for labor and material had been paid; provided a penalty for violation; and made the failure of a contractor to pay in full or pro rata from time to time the full extent of the moneys received by him toward all claims for labor and material, under certain limitations, prima facie evidence of the misuse or misappropriation of the trust funds.
The Virginia statute is fundamentally different from those of California and South Dakota, in that in Virginia it is the intent to defraud and not the indebtedness which is made the determining feature in establishing guilt. The contractor is not punished because he owes the money; but for the reason that he, with intent to defraud, has retained or used the funds for some other purpose than to pay persons performing labor or furnishing material to enable him to carry out his contract, while the amount for which he is liable for labor and material remains unpaid. A prosecution, under the statute, does not affect the debt.
The second paragraph of the statute was intended to relieve the Commonwealth from the necessity of producing further specific proof of intent to defraud, when circumstances are *111 shown similar to those here. Such circumstances are declared prima facie evidence of intent to defraud, and cast on the defendant the burden of producing evidence to the contrary.
There is a moral obligation closely akin to a legal trust relation extending to both the owner and to those whose material or labor has entered into a structure, that the compensation paid therefor by the owner should not be misapplied. There is something more than a mere contractual relation between the owner and the contractor and between the contractor and the others referred to in the statute. The object of the statute is to prevent the misappropriation of funds and it is not designed to imprison for debt.
A judgment debtor who disobeys an order for the payment or delivery of money or property in a legal proceeding is not imprisoned because the judgment is for a debt founded on a contract. The imprisonment is on account of the criminal act in not obeying the judgment.
Among statutes of the class under review are those providing penalties for receiving deposits when a bank or broker is insolvent, Virginia Code, 1950, section 6-3; for issuing bad checks, Va. Code, 1950, section 6-129, et seq.;
for failure to pay for or return goods delivered for selection or approval, Virginia Code, 1950, section 18-179, and for defrauding hotel keepers, boarding houses, etc., Virginia Code, 1950, section 18-182.
The judgment of the trial court, in our opinion, is fully justified under the facts in this case. For that reason, its judgment is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1642475/ | 4 So.3d 700 (2009)
Ruben DIAZ, Petitioner,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
No. 1D08-3835.
District Court of Appeal of Florida, First District.
February 19, 2009.
*701 Ruben Diaz, pro se, Petitioner.
George P. Beckwith, Jr., Department of Children and Families, Jacksonville, for Respondent.
PER CURIAM.
Ruben Diaz seeks mandamus relief to compel the circuit court to rule on his pending petition for writ of mandamus, by which he seeks enforcement of an earlier order in a dependency matter. In response to an order to show cause, the Department of Children and Families shows that it has brought the pending petition to the attention of the circuit court, which has conducted a hearing on the matter, has directed the Department to investigate certain unresolved factual issues relating thereto, and has scheduled additional proceedings.
Given the actions taken by the circuit court, we conclude that the granting of mandamus relief is unwarranted at this point. See Munn v. Fla. Parole Comm'n, 807 So.2d 733 (Fla. 1st DCA 2002). Accordingly, the petition for writ of mandamus is DENIED. Nonetheless, particularly since the proceedings below involve the welfare and interests of children, we encourage the circuit court to continue to act in a manner that will allow the expeditious resolution of the matter pending below.
VAN NORTWICK, PADOVANO, and CLARK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622453/ | 853 So.2d 781 (2003)
Eddie Lee HOWARD, Jr.
v.
STATE of Mississippi.
No. 2000-DP-01280-SCT.
Supreme Court of Mississippi.
July 24, 2003.
Rehearing Denied September 11, 2003.
*784 Gary Goodwin, Armstrong Walters, Columbus, Attorneys for Appellant.
Office of the Attorney General by Judy T. Martin, Marvin L. White, Attorneys for Appellee.
EN BANC.
WALLER, Justice, for the Court.
¶ 1. Eddie Lee Howard, Jr., appeals his conviction of capital murder and death sentence for the 1992 rape and murder of Georgia Kemp. Howard's first conviction and sentence were reversed and remanded for a new trial on the basis that, inter alia, he was not competent to represent himself. Howard v. State, 697 So.2d 415 (Miss. 1997), republished as corrected, 701 So.2d 274 (Miss.1997). Finding no reversible error in this second direct appeal, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. On the evening of February 2, 1992, 14-year-old Paris Lowery noticed smoke emerging from the home of her neighbor, 84-year-old Georgia Kemp. Lowery informed her mother of the smoke, and the Columbus, Mississippi, Fire Department was summoned. The firefighters found a small smoldering fire in the living room which had burned two holes in the floor. Stanley Clark, battalion chief with the Columbus Fire Department, found Kemp on the floor of her bedroom but was surprised because the fire did not generate enough smoke to cause death by smoke inhalation. Another firefighter, Tony Clark, checked for vital signs and concluded that Kemp was dead. Stanley noticed that Kemp's legs were bloodied up a bit and that she was partially exposed. He also found a bloody knife on the bed and a telephone with its line cut. At that point, Stanley and Tony exited the house so as not to disturb the scene.
¶ 3. An investigation ensued which found that Kemp was lying on her left side, exposed from the waist down, and wearing nylon stockings. Her nightgown had been pulled up and ripped open in the front. Kemp had been stabbed twice in the left side of her chest, and blood was found on the sheets of the bed from the headboard to the footboard. There was no evidence of forced entry or anything stolen from the house.
¶ 4. Dr. Steven Hayne performed an autopsy on Kemp's body on February 3, 1992. He found that Kemp had bruises and scrapes about the face, head and neck, multiple bruises to the left shin, and bite marks on the right breast, right side of the neck, and right forearm. Also found were injuries to both sides of the vaginal vault, which, according to Dr. Hayne, were consistent with forced sexual intercourse. However, no semen was found, but Dr. Hayne testified that did not mean that intercourse had not taken place. In addition, Kemp suffered injuries consistent with manual strangulation, but the cause of death was the two stab wounds to the left side of the chest which caused severe internal bleeding.
¶ 5. Eddie Lee Howard, Jr., consented to have dental impressions taken which were made by Dr. David Curtis on February *785 6, 1992. Dr. Curtis noted that Howard had a removable partial denture replacing the upper four front teeth.
¶ 6. After Kemp's body was exhumed, Dr. Michael West, a forensic odontologist, examined the dental impressions and the bite marks on Kemp on February 7, 1992. He found that Howard's upper teeth were consistent with the mark on Kemp's arm and that both Howard's upper and lower teeth were consistent with the marks on Kemp's neck and breast.
¶ 7. On the morning of February 3, 1992, one day after the murder, Howard paid a visit to Kayfen Fulgham, his former girlfriend and the mother of his adult child. Fulgham noted that Howard smelled of smoke, not cigarette smoke, but "like burnt clothes or something, you know, wood, like smoke."
¶ 8. Howard was arrested on February 8, 1992, and, at the time, was living with his mother a couple of blocks away from Kemp. On February 13, 1992, Detective David Turner was given a note from Howard stating, "Dear Mr. Turner, I need to see you as soon as possible. It's in relation to my case." Howard was taken to Turner's office and requested that Turner drive him by the crime scene to see if it would bring back some memories. Howard also told Turner the case was solved.
¶ 9. After Turner gave Howard an advice of rights form, Turner and Commander Donald Freshour drove Howard by Kemp's house, but Howard indicated it did not bring back any memories to him. Turner and Freshour then drove Howard past his mother's house two blocks away where he had been living and his aunt's house three blocks away. The three men then passed by Kemp's house again and returned to the Columbus Police Department. Howard was placed in Turner's office whereupon Turner testified the following transpired:
Again he told me that the case was solved and he told me that there was uhfive or six other individuals involved and to keep investigating the case, that I would [ ] find out [ ] their roles [ ] in this case. Uhand he asked me if I thought he was [ ] crazy. I looked at him and I said, ["]no, manyou know, I don't think you're crazy["] and he said ["]well I'm not. I'm not crazy["] and he said ["]I had a temper and that's why this happened.["] And when he said that, I mean shock just went across my body and I felt like at that point this was the guy that had actually committed the murder.
¶ 10. Howard was indicted on August 13, 1992, on the charge of capital murder with an underlying felony of rape. Howard represented himself at his trial which began on May 9, 1994. The jury returned a guilty verdict after three days of trial and returned a sentence of death the same day.
¶ 11. Howard appealed the verdict and sentence, alleging seventeen assignments of error. Howard v. State, 697 So.2d 415 (Miss.1997), republished as corrected, 701 So.2d 274 (Miss.1997) (Howard I). We held that Howard's waiver of his right to counsel was not voluntary, the court erred in failing to order a competency hearing before allowing Howard to represent himself, and the court's denial of Howard's request to have standby counsel deliver his closing argument violated his right to counsel. Based on those errors, we reversed the verdict and remanded for a new trial. 701 So.2d at 288.
¶ 12. The new trial, this time with counsel, commenced on May 22, 2000. On the day trial began, the indictment was amended to charge Howard as a habitual offender. Howard had been sentenced in 1972 to nine years in prison for assault *786 with intent to ravish and in 1977 to twenty-five years for assault with intent to rape and ravish. After a two-day trial, a Lowndes County jury once again found Howard guilty of capital murder with the underlying felonies of rape and arson and again sentenced him to death. It is from this conviction and sentence that Howard prosecutes this appeal.
STATEMENT OF THE ISSUES
¶ 13. Howard's first brief, filed by trial counsel Thomas Kesler, consisted of only the following assignment of error:
I. WHETHER THE VERDICT WAS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
¶ 14. By order dated August 21, 2001, we remanded the case for an order regarding appointment of substitute counsel and suspended the briefing schedule during the period the case was remanded. Gary Goodwin and Kesler's trial co-counsel Armstrong Walters[1] were appointed substitute appellate counsel and filed a brief asserting the following assignments of error:
II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT A PEREMPTORY INSTRUCTION OF "NOT GUILTY" DUE TO THE INSUFFICIENCY OF EVIDENCE TO SUPPORT THE CONVICTION.
III. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF PARIS LOWERY FROM HOWARD'S FIRST TRIAL TO BE READ INTO THE RECORD.
IV. WHETHER THE TRIAL COURT ERRED IN REFUSING HOWARD'S MOTION FOR MISTRIAL WHEN A PROSECUTION WITNESS STATED THAT HOWARD HAD PREVIOUSLY BEEN IN THE PENITENTIARY.
V. WHETHER THE TRIAL COURT ERRED IN REFUSING HOWARD'S PROPOSED JURY INSTRUCTION REGARDING REASONABLE DOUBT.
VI. WHETHER THE TRIAL COURT ERRED IN REFUSING TO DECLARE A MISTRIAL DURING THE PENALTY PHASE AND IMPOSE A LIFE SENTENCE UPON THE FAILURE OF THE JURY TO RETURN A UNANIMOUS VERDICT THEREBY ULTIMATELY COERCING A VERDICT OF DEATH FROM THE JURY.
VII. WHETHER THE TRIAL COURT ERRED IN FAILING TO INSURE THAT HOWARD RECEIVED A PROPER MENTAL EXAMINATION CONSISTENT WITH THE COURT'S ORDER ENTERED AFTER REMAND ON THE FIRST APPEAL AND WHETHER THIS ERROR WAS COMPOUNDED BY FAILING TO CONDUCT A COMPETENCY EXAMINATION AS SEEMINGLY DIRECTED BY THIS COURT.
VIII. WHETHER THE TRIAL COURT ERRED IN ALLOWING FORENSIC ODONTOLOGIST TESTIMONY WHERE THE PRIOR DECISION ON FIRST APPEAL CONDEMNED SUCH SCIENTIFIC EVIDENCE THEREFORE MAKING THE EXCLUSION OF SUCH EVIDENCE THE LAW OF THE CASE.
*787 ¶ 15. We also allowed Howard to file a pro se brief on his own behalf wherein he asserts the following issues:
IX. WHETHER TRIAL COUNSEL WALTERS AND KESLER FAILED TO PROVIDE HOWARD WITH CONSTITUTIONALLY EFFECTIVE ASSISTANCE OF COUNSEL.
X. WHETHER THE TRIAL JUDGE MADE IMPROPER FACIAL EXPRESSIONS DURING DEFENSE COUNSEL'S OPENING STATEMENT AND CLOSING ARGUMENT.
XI. WHETHER THE OFFICERS INVOLVED IN THE NUMEROUS INTERROGATIONS OF HOWARD FAILED TO READ THE MIRANDA WARNINGS PRIOR TO EACH OF THE INTERROGATION SESSIONS.
XII. WHETHER THE DISTRICT ATTORNEY AND/OR HIS ASSISTANTS, THE COMMANDER OF THE POLICE DETECTIVES, AND THE CHIEF OF POLICE CONSPIRED TO CONCEAL THE RESULTS OF THE DNA EVIDENCE SENT TO THE STATE CRIME LAB TO BE ANALYZED.
¶ 16. Finally, pursuant to Miss.Code Ann. § 99-19-105(2) (2000 & Supp.2002), we are required to review the proportionality of the death penalty.
XIII. WHETHER THE SENTENCE OF DEATH WAS PROPORTIONATE.
DISCUSSION
I. WHETHER THE VERDICT OF GUILTY WAS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT A PEREMPTORY INSTRUCTION OF "NOT GUILTY" DUE TO THE INSUFFICIENCY OF EVIDENCE TO SUPPORT THE CONVICTION.
¶ 17. Since these two issues both attack the weight and sufficiency of the evidence, they will be considered together. The Kesler brief couches this assignment of error as an erroneous denial of a motion for judgment notwithstanding the verdict or new trial while the Goodwin/Walters brief couches it in terms of the court's erroneous refusal to grant a peremptory instruction of "not guilty." Either way, the standard for analyzing the sufficiency of the evidence is the same:
Where a defendant has requested a peremptory instruction in a criminal case or after conviction moved for judgment notwithstanding the verdict, the trial judge must consider all the evidencenot just the evidence which supports the State's casein the light most favorable to the State. The evidence which supports the case of the State must be taken as true. The State must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the defendant with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant is guilty, granting the peremptory instruction or judgment n.o.v. is required. On the other hand, if there is substantial evidence opposed to the request or motionthat is, evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair minded men in the exercise of impartial judgment might reach different conclusionsthe request or motion should be denied.
*788 Gavin v. State, 473 So.2d 952, 956 (Miss. 1985) (citations omitted). See also Moody v. State, 841 So.2d 1067, 1092 (Miss.2003); White v. State, 732 So.2d 961, 966 (Miss. 1999); Burns v. State, 729 So.2d 203, 214 (Miss.1998); Nelson v. State, 722 So.2d 656, 661 (Miss.1998); Cox v. State, 586 So.2d 761, 764 (Miss.1991); McFee v. State, 511 So.2d 130, 134 (Miss.1987); Bunkley v. State, 495 So.2d 1, 3 (Miss. 1986).
¶ 18. Here, the evidence was sufficient to support the conviction even in the absence of fingerprint and DNA evidence. Howard's dentition matched the bite marks found on Kemp's body, he lived two blocks away from Kemp, his former girlfriend testified that he liked to bite her on the breast and neck during intercourse, he smelled of burnt wood or clothes the morning after the murder, and he confessed to Turner that "I had a temper and that's why this happened." The two assignments of error are without merit.
III. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF PARIS LOWERY FROM HOWARD'S FIRST TRIAL TO BE READ INTO THE RECORD.
¶ 19. Howard objects to the admission of the former testimony of Paris Lowery on two grounds. First, he argues that the State did not adequately establish that Lowery was "unavailable" and, second, since we held that Howard did not have adequate representation at his first trial, Lowery's previous testimony was not subject to thorough cross-examination.
¶ 20. At the time of Howard's retrial, Lowery was residing in Texas and due to give birth the week of trial. At a hearing on the possible use of Lowery's former testimony held six days prior to trial the District Attorney's investigator Harry Alderson testified that a subpoena had been issued and returned unserved. Alderson learned from Lowery's aunt that she had moved to Texas. Lowery's aunt provided Alderson with Lowery's telephone number in Texas, and, when Alderson called, a person identifying herself as Paris Lowery stated she was due May 21, 2000, the day before trial.
¶ 21. Howard's counsel argued that there was no medical confirmation of the pregnancy. However, Howard did not want a continuance nor was defense counsel able to state any question that it wished to ask Lowery.
¶ 22. The State offered to redact any portion of Lowery's testimony to which Howard's counsel objected. Faced with the prospect of moving forward with Lowery's redacted testimony or granting a continuance to wait until Lowery was able to travel, to which Howard himself repeatedly and quite forcefully voiced his objection, the court held:
I am in a quandary because the State is seeking to use what it feels should be proper procedures in securing or using the previous testimony of a witness who is unavailable and has heldbeen held to be unavailable by the Court because of a conditionan illness or a condition such as pregnancy that will cure itself. Now I know that the State, if the Court rules that this is inadmissible, might be in a posture of requesting a continuance of the matter and that the defendant does not desire that continuance, but defense counsel is placing the Court in the position of entertaining a delay for the purpose of achieving that witness and probably would grant a motion by the State if I felt that that witness's testimony was material to the defendant's guilt or innocence, but I read the testimony of the witness. It was not material as to the defendant's guilt or innocence. It merely introduces the law *789 enforcement officers and the fire department to the scene. It is the first witness that noticed something amiss across the street, but nothing else. There is no indication that I can see that time was of the essence in what this witness said, that is, it was not a critical point as to what time she noticed the smoke in the house across the street, only that she noticed it and had someone call 911 and they arrived shortly thereafter, and I feel that the State's motion for continuance would probably be overruled because I do not think that that is a material fact that the witness would be testifying to, and I do not see how the defendant can be harmed at all by that witness's testimony, and I will allow it to be read into the record. I sustain the State's motion.
Lowery's redacted testimony was read into the record at trial, and the State produced a letter from Lowery's doctor in Baytown, Texas, confirming that she was in fact pregnant and should not travel long distances until the delivery of her baby.
¶ 23. Former testimony is excepted from the hearsay rule and is defined as:
Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Miss. R. Evid. 804(b)(1). To use a witness's former testimony, the State must prove the unavailability of the witness by diligent effort. Naylor v. State, 759 So.2d 406, 408-09 (Miss.2000); Russell v. State, 670 So.2d 816, 827 (Miss.1995); Mitchell v. State, 572 So.2d 865, 869 (Miss.1990). The court's determination that the State employed a diligent effort will not be disturbed unless the trial court abused its discretion in deeming the witness "unavailable." Naylor, 759 So.2d at 408; Keyes v. State, 733 So.2d 812, 814 (Miss.1999); Hennington v. State, 702 So.2d 403, 411 (Miss.1997); Russell, 670 So.2d at 827.
¶ 24. Howard cites no meaningful authority in support of his argument. That aside, the trial court did not abuse its discretion. Alderson testified that he spoke with a woman who identified herself as Paris Lowery who stated she was pregnant and due the week of trial. The State subsequently supplemented the record with a letter from Lowery's doctor confirming her pregnancy. Anyway, Lowery's testimony was only that she saw smoke coming from Kemp's house. The court struck the part of Lowery's cross-examination in which she indicated her aunt had seen Howard in the neighborhood. Lowery herself had not seen Howard in the neighborhood, and her testimony was not indicative of Howard's guilt. Her testimony merely set the stage. The assignment of error is without merit.
IV. WHETHER THE TRIAL COURT ERRED IN REFUSING HOWARD'S MOTION FOR MISTRIAL WHEN A PROSECUTION WITNESS STATED THAT HOWARD HAD PREVIOUSLY BEEN IN THE PENITENTIARY.
¶ 25. On two occasions during the trial, Kayfen Fulgham inadvertently stated that Howard had previously been in the penitentiary. Howard contends that the trial court erred in refusing his motion for mistrial.
¶ 26. Fulgham testified that when Howard *790 returned to Columbus in 1991[2] he lived with his mother and then lived with her in January of 1992. Howard then moved back in with his mother after he broke up with Fulgham days before the murder.
¶ 27. The first reference to the "penitentiary" came on cross-examination by Kesler:
Q: Okay. And Eddie Lee Howard wasn't living anywhere near that area. Is that correct?
A: No. Well, he lived out there at first with his mother on Washington [Avenue] when he first got out of the penitentiary.
¶ 28. The second reference came on redirect examination by the District Attorney:
Q: Just so the ladies and gentlemen of the jury will understand the sequence, Miss Fulgham, you stated that when he came back he originally moved in with his mother. Is that correct?
A: That's right.
Q: That would have been in October of nineteen ninety-one, is that right?
A: That's right.
Q: And where was his mother living in October of nineteen hundred and ninety-one?
A: On Washington Avenue.
Q: When did his mother move from Washington Avenue?
A: I'm not sure of the date, but it was maybe a couple of months after he got out of the penitentiary.
¶ 29. Howard immediately moved for a mistrial after this second reference. The court, after argument, thereafter instructed the jury to disregard as nonresponsive the last answer Fulgham gave.
¶ 30. Contrary to Howard's contention that the trial court should have immediately declared a mistrial, this assignment of error is without merit because the court instructed the jury to disregard Fulgham's answer. A mistrial is reserved for those instances where a trial court cannot take any action to correct improper occurrences inside or outside the courtroom. Madere v. State, 794 So.2d 200, 214 (Miss.2001) (citing Walker v. State, 671 So.2d 581, 621 (Miss.1995)). We have held a jury admonishment to disregard an answer is sufficient in cases where a witness makes an improper reference to a defendant's criminal background. See, e.g., Smith v. State, 835 So.2d 927, 947 (Miss. 2002); Cox v. State, 793 So.2d 591, 595 (Miss.2001); Brown v. State, 534 So.2d 1019, 1024 (Miss.1988); Payne v. State, 462 So.2d 902, 905 (Miss.1984); Johnson v. State, 341 So.2d 660, 662 (Miss.1977).
V. WHETHER THE TRIAL COURT ERRED IN REFUSING HOWARD'S PROPOSED JURY INSTRUCTION REGARDING REASONABLE DOUBT.
¶ 31. Howard next asserts that the trial court erred in refusing Instruction GPD-2, dealing with reasonable doubt:
The Court instructs the Jury that the doctrine of reasonable doubt is an essential, substantial part of the law of the land, and that it is binding upon the jury in this case; and under law, it is the duty of the Jury to consider all of the testimony in the case fairly and impartially in reaching your verdict; and if after such fair and impartial consideration *791 of the testimony in the case, the minds of the Jury are left in a state of uncertainty as to the guilt of the Defendant, and there arises out of the evidence or from the want of evidence, a reasonable doubt of the existence of a single material fact upon which the guilt of the Defendant depends, then it is the law, that is the duty of the Jury in such case to give the Defendant the benefit of that doubt and to find him not guilty.
Howard argues that the failure to include this instruction left the jury uninstructed as to what to do if they were uncertain as to guilt.
¶ 32. We have held that where a jury is adequately instructed on reasonable doubt, there is no reversible error for the court to refuse to give a defense instruction on it. Holloway v. State, 809 So.2d 598, 606 (Miss.2000); Reynolds v. State, 585 So.2d 753, 755-56 (Miss.1991); Simpson v. State, 497 So.2d 424, 430 (Miss.1986) (finding jury adequately instructed on reasonable doubt when similar instruction offered). Here, there were other instructions addressing reasonable doubt: Instruction C12 addressed the presumption of innocence; Instruction SGP-3 addressed and defined the elements of capital murder; Instruction SGP-5 addressed and defined the elements of murder; Instruction GPD-3 instructed the jury to resolve doubts in favor of the accused; Instruction GPD-5 instructed the jury to find Howard not guilty if there was reasonable doubt he was not present and did not commit the crime.
¶ 33. Viewing these instructions as a whole, the jury was adequately instructed on reasonable doubt. This assignment of error is without merit.
VI. WHETHER THE TRIAL COURT ERRED IN REFUSING TO DECLARE A MISTRIAL DURING THE PENALTY PHASE AND IMPOSE A LIFE SENTENCE UPON THE FAILURE OF THE JURY TO RETURN A UNANIMOUS VERDICT THEREBY ULTIMATELY COERCING A VERDICT OF DEATH FROM THE JURY.
¶ 34. After approximately two hours of deliberation in the sentencing phase, the jury returned a verdict of death. When the jury was polled, all jurors indicated in the affirmative that the verdict of death was their verdict except for the final juror who responded in the negative. The court responded:
I heard one no in the response of the jury. I will not accept this as the verdict of the jury. Please return this to the jury, along with all of the exhibits. They didn't bring them out; they still have them in their possession.
Ladies and gentlemen, it takes all twelve jurors to concur on a verdict in this case. That also applies to the sentence. It takes all twelve jurors to concur on a verdict. Please retire to the jury room and resume your deliberations. Show the jury back to the jury room.
¶ 35. Howard's counsel moved the court to sentence Howard to life which the court overruled. The jury returned fifty minutes later with a verdict of death. Upon polling, all twelve jurors concurred.
¶ 36. Howard argues that the court should have instructed the jury that jurors need not surrender their convictions regarding guilt or innocence and that the court should have reread Instruction SSP-4B, the instruction providing for the elements to be considered, the weighing of mitigating and aggravating circumstances, and the form of the verdict. No objection was ever raised as to the manner in which the judge instructed the jury. Furthermore, Howard's reliance is on Sharplin v. *792 State, 330 So.2d 591 (Miss.1976), a case dealing with deadlocked juries, and he cites no authority to support his proposition that a mistrial should have been declared.
¶ 37. The State submits that under Uniform Circuit and County Court Rule 3.10 the judge had two options: "If a juror dissents in a criminal case or in a criminal case if less than the required number cannot agree the court may: 1) return the jury for further deliberations or 2) declare a mistrial." New York law directs a response to this predicament similar to the trial judge's response here. N.Y.Crim. Proc. § 400.27 (McKinney 2003) governs sentencing phases of first degree murder trials and provides that the trial court is not to accept the sentence and is to send the jury back for further deliberations:
§ 400.27 Procedure for determining sentence upon conviction for the offense of murder in the first degree
1. Upon the conviction of a defendant for the offense of murder in the first degree as defined by section 125.27 of the penal law, the court shall promptly conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or to life imprisonment without parole....
2. The separate sentencing proceeding provided for by this section shall be conducted before the court sitting with the jury that found the defendant guilty....
* * *
11(f). Where a sentence has been unanimously determined by the jury it must be recorded on the minutes and read to the jury, and the jurors must be collectively asked whether such is their sentence. Even though no juror makes any declaration in the negative, the jury must, if either party makes such an application, be polled and each juror separately asked whether the sentence announced by the foreman is in all respects his or her sentence. If, upon either the collective or the separate inquiry, any juror answers in the negative, the court must refuse to accept the sentence and must direct the jury to resume its deliberation. If no disagreement is expressed, the jury must be discharged from the case,
(emphasis added).
¶ 38. The New York statute is silent on whether the trial judge must re-instruct the jury as Howard suggests. The statute is similar to our Rule 3.10 in the sense that the trial judge is authorized to return the jury for further deliberations. Rule 3.10 also does not mandate further instruction when jurors are unable to agree: "If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give an appropriate instruction." (emphasis added). The Sharplin instruction was created to be used in cases where, unlike here, the jury was deadlocked. See 330 So.2d at 596.
¶ 39. The trial judge's above-quoted instructions to the jury that the verdict must be unanimous does not indicate that a death sentence was coerced. There is no Mississippi case law sufficiently on point except for the Court of Appeals' opinion in Neal v. State, 806 So.2d 1151 (Miss.Ct.App. 2002), which declined to address the issue because no contemporaneous objection was made. However, in State v. Green, 67 Ohio App.3d 72, 585 N.E.2d 990 (1990), the Court of Appeals of Ohio addressed the very same issue although, admittedly, not in the context of the imposition of a death sentence. In Green, the defendant was charged with one count of rape and one *793 count of aggravated robbery. Id. at 991. After deliberation, the jury returned a verdict of guilty. Id. During polling, Juror No. 1 indicated that she did not subscribe to the verdict, whereupon the court immediately ordered the jury to deliberate further. Id. at 991-92. The jury returned a verdict of guilty, and, this time, all jurors acknowledged the verdict. Id. at 992. The defendant moved for mistrial which the court denied. Id. at 993. On appeal, the Court of Appeals analyzed the denial of the defendant's motion for mistrial under an abuse of discretion standard similar to Mississippi's and held:
In this case, the appellant's right to a fair trial was not prejudiced by the acknowledgment of Juror No. 1 that the verdict of guilty was not her own verdict. Within forty-five minutes [in this case fifty minutes] of returning for further deliberations, the jury returned a unanimous verdict of guilty which was properly reflected in the second jury polling. Thus, the trial court did not abuse its discretion in denying the appellant's motion for mistrial.
Id. (emphasis in original).
¶ 40. Here, the trial judge did not coerce the jury into imposing a death sentence. Pursuant to Rule 3.10, the trial judge had the choice of sending the jury back for further deliberation or declaring a mistrial. We recognize that the trial judge was placed in a difficult position, and we can find no reported decision where a Mississippi trial judge has ever been confronted with such a dilemma. When faced with a juror who questioned his earlier assent to the verdict of death, the trial judge did what was permitted by Rule 3.10 and sent the jury back for further deliberations. He did not err in doing so, and we will not fault him for failing to give an instruction derived from the situation in Sharplin, a case where a jury was unable to reach a verdict and which is easily distinguishable from the situation presented here.
VII. WHETHER THE TRIAL COURT ERRED IN FAILING TO INSURE THAT HOWARD RECEIVED A PROPER MENTAL EXAMINATION CONSISTENT WITH THE COURT'S ORDER ENTERED AFTER REMAND ON THE FIRST APPEAL AND WHETHER THIS ERROR WAS COMPOUNDED BY FAILING TO CONDUCT A COMPETENCY EXAMINATION AS SEEMINGLY DIRECTED BY THIS COURT.
¶ 41. In Howard I, we found reversible error in the trial court's failure to order a competency hearing before allowing Howard to represent himself. 701 So.2d at 281. Howard argues that in this appeal the trial court failed to take heed of our opinion in Howard I and that it failed to require his counsel to proceed with an insanity defense. No authority is cited for the proposition that a trial court can require a defendant to pursue a particular theory of defense. A competency examination was given, and the court noted as much:
Before I make any rulings on any motions again, I think possibly that that needs to be addressed, and for the record, Mr. Howard was sent to the Mississippi State Hospital at Whitfield for an examination concerning his competency and a report received from that institution by this Court. He was sent for that examination because of the supreme court's ruling in the case that he was tried on before and reversed. The supreme court, as I understand it, found in that case that he was incompetent to represent himself or that he was of such competency not to be able to voluntarily waive his rights to assistance of counsel under the Sixth Amendment. The state *794 hospital has written to this Court and basically told the Court that they found absolutely nothing wrong with Mr. Howard of a psychological nature, that the mental exam was conducted at the state hospital.... The state hospital at Whitfield was unanimous in their opinion that Mr. Howard had a rational as well as a factual understanding of the nature and subject of the legal proceedings against him and that he has the sufficient present ability to consult with his attorney with a reasonable degree of rational understanding in the preparation of his defense.
BY THE DEFENDANT: (Mumbling at defense table) I wasn't insane and they knew it.
* * *
BY THE COURT: After they conducted that examination, which by the way, they noted at the state hospital that it was the fourth known mental health contact with that hospital and they found the same every time, but regardless of that finding and the previous findings the state supreme court used that as a basis in reversing his prior conviction that he was not competent to represent himself and that he could not proceed pro se.
I do not know Mr. Howard's desires in regards to this retrial insofar as being represented by an attorney or not represented by attorneys, and now is the time for me to find that out before I hear any motions or anything of that nature.
(emphasis added). Counsel never objected to the sufficiency of the evaluation or ever contradicted the characterization of Howard's competency. The trial judge had a complete evaluation of Howard's competency and stated on the record his conclusion that Howard was competent when he ruled on Howard's request that counsel read a prepared opening statement that Howard wrote:
I think that the attorney can state that it is a prepared statement that he is reading to the jury at the defendant's request. At one time I thought that I knew the law on pro se defendants and how those trials are to be conducted. I discovered in the first Howard case that I do not and I am now at a loss as to how to proceed and I think that maybe the best method would be the most cautious method. Therefore, I'm going to advise the defendant of his rights under Rule 8[.]05 of the Uniform Circuit and County Court Rules that concern the election of defendants to represent themselves either partially or totally during the course of a trial and I'm further going to make a finding in the record that Mr. Howard is competent mentally as I think that I must under the first Howard versus State because in the first Howard v. State the Supreme Court found that he probably was not competent to represent himself mentally or was he competent as an attorney in that representation. The trial court after determining what it could from the first Howard opinion, ordered another mental exam for Mr. Howard to determine his present competency. I was never anyin any doubt as to his competence based on the many hearings that we've had, the many motions that we've had, but after the Supreme Court had made its ruling, I sent him back to Whitfield and they concurred in the trial court's finding, Mr. Howard's competent. There's nothing wrong with Mr. Howard. He suffers from no major mental disease or disorder. He probably has as much an understanding of the legal procedure and the courtroom procedures as any person not admitted to the bar. He was certainly successful in obtaining a new trial of this matter.
*795 [Howard:] Thanks to Armstrong Walters.
BY THE COURT: And the Court is of the opinion that he is competent. Would I be convinced otherwise, I, of course, would orderorder a competency hearing before the case proceeded to trial.
Again, neither Howard nor his counsel objected to the court's characterization.
¶ 42. Procedural bar aside, this assignment of error is without merit. In contrast to Howard I, the trial judge here had a complete evaluation of Howard's mental capacity. See Howard I, 701 So.2d at 281. See also Conner v. State, 632 So.2d 1239, 1248 (Miss.1993) (stating "[t]he real question, therefore, is whether `reasonable grounds' existed to believe that Conner was insane. If so, then Rule 4.08 [now Rule 9.06] mandates a competency hearing. The determination of what is `reasonable,' of course, rests largely within the discretion of the trial judge. He sees the evidence first hand; he observes the demeanor and behavior of the defendant."). In fact, the Whitfield report noted that "[t]his was the third Mississippi State hospital contact, the second known forensic mental examination concerning the current charge and the fourth known mental health contact...." Howard's competency was evaluated, evidently more than once, and the judge stated as much on the record. Apparently, no reasonable grounds were present to indicate that Howard was insane which would then necessitate a Rule 9.06 competency hearing. The judge had more than sufficient evidence before him to find Howard competent.[3] This issue is both procedurally barred and without merit.
VIII. WHETHER THE TRIAL COURT ERRED IN ALLOWING FORENSIC ODONTOLOGIST TESTIMONY WHERE THE PRIOR DECISION ON FIRST APPEAL CONDEMNED SUCH SCIENTIFIC EVIDENCE THEREFORE MAKING THE EXCLUSION OF SUCH EVIDENCE THE LAW OF THE CASE.
¶ 43. Howard's attorneys' final argument is that the court erred in admitting Dr. Michael West's testimony when Howard I supposedly condemned such evidence. They further assert that our opinion in Brooks v. State, 748 So.2d 736 (Miss. 1999), which held that bite mark evidence is admissible in Mississippi, is "simply and completely wrong." In support thereof, their sole authority is then-Justice McRae's dissent in Brooks which they quote nearly in toto.
¶ 44. In Howard I, we did not hold explicitly that bite mark evidence was inadmissible. Rather, we held that "[b]ecause the opinions concerning the methods of comparison employed in a particular case may differ, it is certainly open to defense counsel to attack the qualifications of the expert, the methods and data used to compare the bite marks to persons other than the defendant, and the factual and logical bases of the expert's opinions." 701 So.2d at 288. In fact, Brooks quoted Howard I for the proposition that bite mark evidence would be subject to challenges to weight and credibility by the defense via attacking the qualifications of the expert and the factual and logical bases upon which the expert relied, not that bite mark evidence was inadmissible 748 So.2d at 739. Furthermore, in Brewer v. State, 725 So.2d 106, 126 (Miss.1998) (direct appeal), *796 819 So.2d 1169, 1176 (Miss.2002) (on petition for post-conviction collateral relief), we held twice that Dr. West was qualified and that challenges to his testimony went to weight and credibility, not admissibility.
¶ 45. Dr. West testified that Howard's dentition matched the bite marks on Kemp's neck, breast and arm. Such evidence, following the reasoning of Howard I, Brooks, and Brewer, was admissible, and the trial court did not abuse its discretion in so holding. We have ruled on more than one occasion that Dr. West's testimony is admissible and that he possesses the knowledge, skill, experience and training necessary to qualify as an expert in forensic odontology. This assignment of error is without merit.
IX. WHETHER TRIAL COUNSEL WALTERS AND KESLER FAILED TO PROVIDE HOWARD WITH CONSTITUTIONALLY EFFECTIVE ASSISTANCE OF COUNSEL.
¶ 46. The first argument Howard raises in his pro se brief is the ineffectiveness of his trial counsel. The specific instance of ineffective assistance, according to Howard, was his counsel's failure to retain an expert in forensic odontology to rebut Dr. West's testimony. However, Kesler and Walters did consult with a Dr. Richard Souviron in anticipation of Howard's first conviction being reversed. Dr. Souviron indicated that he would probably concur in Dr. West's findings because of Howard's partial upper denture and the fact that Kemp's body was never exposed to the elements. Howard's attorneys made the tactical decision not to call Dr. Souviron because, according to Kesler, "we didn't want to take the risk of giving the State another expert and an expert that in my opinion [was] more credible than Doctor West...."
¶ 47. The standard of review is well-settled:
The standard of review for a claim of ineffective assistance of counsel is a two-part test: the defendant must prove, under the totality of the circumstances, that (1) his attorney's performance was deficient and (2) the deficiency deprived the defendant of a fair trial. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). This review is highly deferential to the attorney, with a strong presumption that the attorney's conduct fell within the wide range of reasonable professional assistance. Id. at 965. With respect to the overall performance of the attorney, "counsel's choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy" and cannot give rise to an ineffective assistance of counsel claim. Cole v. State, 666 So.2d 767, 777 (Miss.1995).
Anyone claiming ineffective assistance of counsel has the burden of proving, not only that counsel's performance was deficient but also that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Additionally, the defendant must show that there is a reasonable probability that, but for his attorney's errors, he would have received a different result in the trial court. Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992). Finally, the court must then determine whether counsel's performance was both deficient and prejudicial based upon the totality of the circumstances. Carney v. State, 525 So.2d 776, 780 (Miss.1988).
Jackson v. State, 815 So.2d 1196, 1201 (Miss.2002). See also Pruitt v. State, 807 So.2d 1236, 1239-40 (Miss.2002); Powell v. State, 806 So.2d 1069, 1076-77 (Miss.2001); Simmons v. State, 805 So.2d 452, 479 (Miss.2001); Sanders v. State, 801 So.2d 694, 702 (Miss.2001); Spry v. State, 796 So.2d 229, 232 (Miss.2001).
*797 ¶ 48. Howard cites no authority in support of his assertion of ineffective assistance of counsel. That aside, he also fails to establish both deficient performance and prejudice. The argument that counsel's failure to obtain an expert to counter Dr. West is not only wrong but also is indicative of sound trial strategy. This assignment of error is without merit.
X. WHETHER THE TRIAL JUDGE MADE IMPROPER FACIAL EXPRESSIONS DURING DEFENSE COUNSEL'S OPENING STATEMENT AND CLOSING ARGUMENT.
¶ 49. Howard contends that the trial judge made improper facial expressions of disbelief and disapproval during defense counsel's opening statement and closing argument. No objection was made by either Howard or his two attorneys nor is there any indication whatsoever in the record to indicate as much. This assignment of error is without merit. See Petro v. State, 270 Ind. 86, 383 N.E.2d 323, 323-24 (1978); David E. Rigney, Annotation, Gestures, Facial Expressions, or Other Nonverbal Communications of Trial Judge in Criminal Case as Ground for Relief, 45 A.L.R.5th 531 (1997).
XI. WHETHER THE OFFICERS INVOLVED IN THE NUMEROUS INTERROGATIONS OF HOWARD FAILED TO READ THE MIRANDA WARNINGS PRIOR TO EACH OF THE INTERROGATION SESSIONS.
¶ 50. Howard argues for the first time that he was interrogated on two occasions shortly after the murder, and that, at each interrogation, the officers failed to read him his Miranda warnings. There is absolutely no substantiation in the record to support such an assertion nor does he provide an instance where evidence obtained as a result of those supposedly improper interrogations was ever admitted at trial. This assignment of error is without merit.
XII. WHETHER THE DISTRICT ATTORNEY AND/OR HIS ASSISTANTS, THE COMMANDER OF THE POLICE DETECTIVES, AND THE CHIEF OF POLICE CONSPIRED TO CONCEAL THE RESULTS OF THE DNA EVIDENCE SENT TO THE STATE CRIME LAB TO BE ANALYZED.
¶ 51. Howard finally argues that the District Attorney and police conspired to frame him. His sole evidence is a Columbus newspaper article stating that Columbus Police Chief Edward Bowen had indicated that DNA evidence was sent to the FBI crime lab. He further alleges that Commander Freshour told the District Attorney that no DNA analysis was run. Howard is correct in alleging that no DNA analysis was run. However, there was no DNA testing because there was no DNA sample to be tested. This assignment of error is without merit.
XIII. WHETHER THE SENTENCE OF DEATH WAS PROPORTIONATE.
¶ 52. Pursuant to Miss.Code Ann. § 99-19-105 (2000 & Supp.2002), we are required to review the proportionality of the death penalty:
(3) With regard to the sentence, the court shall determine:
(a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;
(b) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 99-19-101;
*798 (c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; and
(d) Should one or more of the aggravating circumstances be found invalid on appeal, the Mississippi Supreme Court shall determine whether the remaining circumstances are outweighed by the mitigating circumstances or whether the inclusion of any invalid circumstance was harmless error, or both.
¶ 53. There is no evidence that the sentence was imposed under the influence of passion or prejudice. Howard argues that the court's sending the jury back for further deliberations after one juror indicated in the negative during polling if the verdict was their verdict; however, we held that, as discussed above in Issue VI, the court did not abuse its discretion nor coerce a death sentence in sending the jury back for further deliberations.
¶ 54. On the hand, there is evidence supporting the finding of the aggravating factors. The jury found that the murder was committed while in the commission of a rape and arson. The finding of rape was supported by Dr. Hayne's finding of injuries to Kemp's vaginal vault, and the arson was supported by evidence of two small fires which burned holes completely through the floor in Kemp's house. Also, the fact that Kemp suffered vaginal injuries, multiple scrapes and bruises about her body, and two stab wounds satisfies the Miss.Code Ann. § 99-19-101(5)(h) requirement that the crime be "especially heinous, atrocious, or cruel." Finally, Howard had been previously convicted of two felonies involving the use or threat of violence, namely, convictions in 1972 for assault with the intent to ravish and 1977 for assault with intent to rape and ravish. He had been released from Parchman approximately four months prior the murder. See Miss.Code Ann. § 99-19-101(5)(b).
¶ 55. None of the Miss.Code Ann. § 99-19-101(6) mitigating circumstances are present. Howard has a history of prior criminal activity, the offense was not committed while Howard was under the influence of extreme emotional or mental disturbance, Kemp was not a participant in Howard's conduct, Howard was not an accomplice and played a relatively minor role, Howard did not act under extreme duress or substantial domination of another, Howard's capacity to appreciate the criminality of his conduct was not substantially impaired, nor was his age of forty-one years a factor.
¶ 56. Howard also presented no evidence in mitigation. He responded to the trial judge's instruction that he had the right to testify during the sentencing phase if he wished to do so. Howard responded, "Your Honor, I understand by the law that [ ] the prosecutor supposed to prove all three element of the crime. He didn't prove anything, no DNA, no nothing. So [ ] I don't see no reason for me to say anything further. My lawyers have did the best possible job." Attorney Kesler also obtained a short recess to go search for Howard's mother and sister who had attended the beginning of the trial. After Kesler was unable to locate Howard's family, the trial judge stated, "since there is to be no proof and evidence presented by the defense either, are you still of a mind that you do not need to make an opening statement to tell the jury what your proof and evidence might consist of?" Howard responded, "That's correct."
¶ 57. We do not find that Howard's counsel's failure to provide evidence in *799 mitigation to be constitutionally ineffective assistance of counsel. The Fifth Circuit has held that "[t]he failure to present a case in mitigation during the sentencing phase of a capital trial is not, per se, ineffective assistance of counsel. This court has often upheld decisions not to put on mitigating evidence where the decision resulted from a strategic choice." Stringer v. Jackson, 862 F.2d 1108, 1116 (5th Cir.1988), vacated and remanded sub nom. on other grounds, Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). See Williams v. Cain, 125 F.3d 269, 277 (5th Cir.1997) (quoting Stringer); Williams v. State, 722 So.2d 447, 450 (Miss.1998) (citing Williams v. Cain); See also McGilberry v. State, 843 So.2d 21, 30 (Miss.2003). It is clear that defense counsel wished to have Howard's mother and sister testify in mitigation. The inability to locate them may evidence a want of preparation on defense counsels' part; however, it is plain from the record that Howard did not want them to testify. In response to Kesler's announcement of his plan to call Howard's mother and sister, Howard stated, "Theythey won't be here. Theythey know everythe whole story." Other than family members, there is nothing else in the record or even suggested by the record of any potential mitigating evidence.
¶ 58. Compared to other cases, the sentence of death here is not excessive or disproportionate. See, e.g., Mitchell v. State, 792 So.2d 192 (Miss.2001) (affirming sentence of death where defendant beat, strangled, sexually assaulted, and killed victim by running over her with his car); Hughes v. State, 735 So.2d 238 (Miss.1999) (affirming sentence of death based on purely circumstantial evidence where defendant beat, raped, stabbed and strangled 16-year-old victim then set victim's chest on fire after she was dead); Gray v. State, 728 So.2d 36 (Miss.1998) (affirming sentence of death where defendant kidnaped 79-year-old victim, forced her to withdraw money from her bank account, raped her, shot her in the face with a shotgun, and ran over her with her own car); Crawford v. State, 716 So.2d 1028 (Miss.1998) (affirming sentence of death where defendant abducted, handcuffed, raped and stabbed victim). Georgia Kemp was beaten, strangled, bitten three times, raped, stabbed twice, and left to die in her house which was then set on fire. The punishment is proportionate to the crime. See attached Appendix.
CONCLUSION
¶ 59. We find no reversible error. Thus, we affirm the judgment entered by the Lowndes County Circuit Court in accordance with the verdict of guilty of capital murder and sentence of death.
¶ 60. CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH, AFFIRMED.
PITTMAN, C.J., SMITH, P.J., DIAZ, EASLEY AND CARLSON, CONCUR. COBB, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.
McRAE, Presiding Justice, Dissenting.
¶ 61. The "expert odontology testimony" of Dr. West should not have been submitted to the jury as it is "junk science" and not generally accepted by the scientific community as required by then Rule 702 of the Mississippi Rules of Evidence and Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Likewise, neither Dr. West nor his "junk science" meet the standards and requirements for admission under *800 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and revised Rule 702 of the Mississippi Rules of Evidence. Furthermore, the trial court erred in its comments and actions during the penalty phase, following the jury poll which revealed one member of the jury had not indeed reached a verdict in favor of death. Howard's conviction and sentence should be reversed and a new trial ordered.
I.
¶ 62. Bite mark identification is not a reliable discipline and lacks generally recognized criteria or methodology. This Court has recognized that there are serious disagreements in the forensic scientific community about whether a defendant can be uniquely identified on the basis of teeth marks. See Brooks v. State, 748 So.2d 736, 739 (Miss.1999); Howard v. State, 701 So.2d 274, 288 (Miss.1997). Critics of bite mark identification have found that the forensic odontology community is not convinced of the reliability or credibility of such science. State v. Ortiz, 198 Conn. 220, 502 A.2d 400, 403 (1985); People v. Milone, 43 Ill.App.3d 385, 2 Ill.Dec. 63, 356 N.E.2d 1350, 1356 (1976); Howard, 701 So.2d at 288; Spence v. Texas, 795 S.W.2d 743, 750-51 (Tex.Crim.App.1990); Faigman, Kaye, Saks & Sanders, Modern Scientific Evidence: The Law And Science Of Expert Testimony, § 24-1.0, at 157-58 (West 1997).[4] Areas of bite mark identification which are still the subject of disagreement in the forensic odontology community include: (1) the timing of the bite mark injury; (2) enhancement procedures and techniques (such as the use of ultraviolet light); (3) the type of material for test bites or the accuracy of test bites under various mockup conditions; (4) the pressure necessary to produce the various levels of tissue injury under normal and unusual circumstances; (5) manipulation of and various types of distortion to produce correction; (6) whether in fact another set of teeth could have produced the same or similar marks; (7) no universal agreement on which injuries are bite mark related; and (8) research on the minimum number of points of concordance or the minimum number of teeth marks needed in a bite mark for certainty is also not well established. Brooks, 748 So.2d at 748 n. 2 (citing Faigman, Modern Scientific Evidence, § 24-2.3, at 178-80).
¶ 63. Additionally, Dr. West himself has been a controversial character in the field of forensic odontology. On several occasions, Dr. West has been held to have exaggerated the reliability of his disciplines and has proceeded to testify outside the scope of his expertise. See Stubbs v. State, 845 So.2d 656, 669 (Miss.2003); Brooks, 748 So.2d at 749-50; Brewer v. State, 725 So.2d 106, 126 (Miss.1998). In fact, in 1994, the American Academy of Forensic Science instituted an ethics investigation against Dr. West with regard to testimony he had given during a murder trial here in Mississippi. Ultimately, Dr. West was given the opportunity to resign from the organization before being expelled. Since that time, Dr. West has been allowed to re-enter the organization. During a hearing, Dr. West stated that he has testified seventy-five times. Those seventy-five times break down to forty-one murder trials; thirty-two times as a wound pattern expert; one time as a trace metal expert; three times as an expert regarding gun shot residue; three times as an expert in gunshot reconstruction; three times as a death investigator expert; two times as a County Coroner; six times in child abuse trials; three times as a crime scene investigator; *801 and one time as a blood splatter expert. He also asserts that he has made 600 dental I.D's and 300 bite mark I.D.'s. Of the 100 board certified forensic odontologists in the United States, about 90% of them have testified for the opposite side when Dr. West is called as an expert witness.
¶ 64. The admission of Dr. West's testimony as to the bite marks found on the victim was governed by then Rule 702 of the Mississippi Rules of Evidence and Frye, 293 F. 1013.[5] Then Rule 702 stated in relevant part that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
M.R.E. 702. Under this rule, two requirements must be met before an expert may testify: (1) the scientific, technical, or specialized knowledge must assist the trier of fact; and (2) the witness must be qualified as an expert by knowledge, skill, experience, training, or education. Furthermore, under Frye, the scientific principles from which the expert's opinion is derived "must be sufficiently established to have gained general acceptance in the field to which it belongs." 293 F. at 1014. See also M.R.E. 702 cmt. In determining whether the field of knowledge has gained "general acceptance," the Court must consider whether "the field of expertise [is] one in which it has been scientifically established that due investigation and study in conformity with techniques and practices generally accepted within the field will produce a valid opinion." House v. State, 445 So.2d 815, 822 (Miss.1984). See also M.R.E. 702 cmt; Hardy v. Brantley, 471 So.2d 358, 366 (Miss.1985).
¶ 65. Under these principles, Dr. West's testimony should not have been admitted, since the methodology and procedure employed for bite mark identification are not generally accepted. As state earlier, the scientific community, specifically the forensic odontology community, has not accepted Dr. West's methodology and testing techniques. See Brooks, 748 So.2d at 739; Howard, 701 So.2d at 288; Faigman, Modern Scientific Evidence, §§ 24-1.0 at 157-58, 24-2.3 at 178-80. This Court has recognized that the methodology and techniques used by Dr. West are criticized and scrutinized by the scientific community. See Brooks, 748 So.2d at 739; Howard, 701 So.2d at 288. With these revelations, how can this Court stand by and allow Dr. West to testify and give an opinion as an expert to procedures, methodology, and testing which have not been adopted by his own scientific community?
¶ 66. As evidence of the persistent problems with Dr. West's methodology regarding bite mark identification, one doesn't have to look any further than this record. As illustrated below, there are many holes in Dr. West's methodology and opinion:
(1) Dr. West rests his theory of identification on the fact that teeth have characteristics which make them unique. When a certain number of these characteristics are present, he opines that he can make an identification of the bite marks and thereby exclude or include the defendant as a suspect. Under the present facts, Howard was wearing a partial denture, *802 since he was missing his four front teeth. It is common knowledge that partial dentures of this nature are mass produced by manufacturers. In forming his opinion and singling out Howard as the person likely to have produced the bite marks on the victim, Dr. West never researched the type of partial dentures worn by Howard or contacted the manufacturer to find out how many sets of that particular model had been produced and distributed in the area of the crime. Such statistics and information were no doubt needed for Dr. West's determination that Howard indeed likely produced the bite marks;
(2) The victim was killed on February 2, 1992. An autopsy was performed the following day on February 3, 1992. During this time, a funeral and burial were held for the victim. She was not embalmed but was handled by those who prepared her for burial. On February 6, 1992, dental impressions were taken of Howard's teeth. On February 7, five days after her death, the victim's body was exhumed. Dr. West reports that the dental impressions left on the victim were identifiable despite the fact that the victim's body had deteriorated for five days and had been handled by numerous individuals in anticipation of burial;
(3) During the fire, the victim's body was removed by a Columbus firefighter. Battalion Chief of the Columbus Fire Department, Stanley Clark, testified that in removing the victim from the fire, one of his men "sort of bragged at her shoulders and arm." Dr. West in purporting that the bite marks left on the victim's right arm and upper back were preserved and capable of identification, did not account for any injuries and distortion that may have been caused by the removal of the victim's body;
(4) On cross-examination, Dr. West acknowledged that skin stretching often does affect or distort a bite mark. However, in examining the bite marks on the victim, Dr. West did not account for any skin stretching despite the fact that the victim had undergone an autopsy, been buried without embalment, and been exhumed;
(5) Dr. West testified that statistically one out of every five bite marks has enough clarity and detail to allow for possible identification. The other four-fifths are only capable of rendering it consistent or inconsistent. Dr. West testified that the victim had a bite mark on her right arm; the base of her neck on the right side where the shoulder and neck meet; and above her right breast near the nipple area. The bite mark on the victim's right arm only contained upper teeth imprints which were "dragged across her skin." Despite little detail and distortion, Dr. West testified that these marks were "consistent" with Howard's teeth. As to the bite marks on the victim's neck, Dr. West found that the upper and lower teeth had left indentations. He also acknowledged that bite marks in this area of the body are easily distorted due to skin type, muscle type, and possible flexion during the actual bite. He found these marks to be "consistent" with Howard. The bite marks on the victim's breast only showed the upper teeth. Dr. West still found the bite mark to be "consistent" with Howard.
*803 (6) On cross-examination, Dr. West acknowledged that skin type does affect the clarity and detail of a bite mark. The victim was eighty-four years old and it can easily be deduced that her skin type is not that of a younger individual with easily impressionable skin. Despite the victim's skin type, Dr. West purports that the bite marks are still consistent with Howard;
(7) When asked on cross-examination what the margin of error is in determining bite mark identification, Dr. West responded that there is no margin of error since "it's a subjective art and science." Dr. West asserts that the victim's bite marks are consistent with Howard but is unable to give any testimony as to a margin of error; and
(8) Dr. West purports that bite mark identification is relative to "inclusion" and "exclusion." He says that "consistency" as used in bite mark evidence means that "it is possible it could have been made by him." He characterizes all three bite marks found on the victim to be "consistent" with Howard. Later on during testimony, Dr. West begins to move away from his "consistency" characterization and just flat out states that when comparing the bite mark on the victim's right breast he found them to be "identical," and further stated that "in reasonable medical certainty the teeth of Eddie Lee Howard inflicted the bite mark that I found on the right breast of Mrs. Georgia Kemp." Dr. West went beyond "consistency" and entered the realm of "he did it."
¶ 67. It is clear that this Court's ruling concerning bite mark evidence goes too far and gives little guidance or checks with regard to such testing and subsequent testimony. Even with DNA evidence, we require an independent control check of any materials or regents used in the performance of the test; the running of known control samples in parallel with the unknown samples to check for errors in test performance; and the calculation of the statistical probability which signifies the statistical probability that a person picked randomly from the population would have a DNA profile identical to the DNA profile generated from the forensic sample. Polk v. State, 612 So.2d 381, 393-394 (Miss. 1992); Taylor v. State, 889 P.2d 319, 333 (Okla.Crim.App.1995); Jonathan J. Koehler, DNA Matches and Statistics: Important Questions, Surprising Answers, 76 Judicature 222, 224 (1993); Michael Sweeney, DNA Typing: Defendant a Process under Vigorous Attack, 21 Cap. U.L.Rev. 611, 643 (1992). Under the methodology employed by Dr. West, there is no statistical probability, no control group, and no check on the materials and regents used in performance. Essentially, there are no independent checks on Dr. West's scientific findings and opinions. He is given free rein to account for himself without any independent confirmation of his methodology or techniques. Furthermore, in his expert opinion testimony the jury is told that the victim's bite mark is "identical" to the teeth of the defendant and is given no statistical probability regarding the margin of error for the techniques employed or the probability that another individual may have left similar bite marks. How can this be? How can Dr. West testify outright that these marks were left by this individual; yet an expert testifying to DNA evidence (the most special and unique makeup of our bodies) is not allowed to testify that the blood is the defendants or the victims, but rather has to give a statistical probability regarding the likelihood *804 that the blood is the defendant's or victims? This makes no sense.
¶ 68. Even under this Court's recent adoption of revised Rule 702 and Daubert, 509 U.S. 579, 113 S.Ct. 2786, Dr. West's methodology and opinion will not meet the requirements for expert opinion. Revised Rule 702 provides that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, training, or education, may testify thereto in the form of an opinion or otherwise; if (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.
M.R.E. 702 (revised May 29, 2003). The Comment to the Rule states, in relevant part, that:
By the 2003 amendment of Rule 702, the Supreme Court clearly recognizes the gate keeping responsibility of the trial court to determine whether the expert testimony is relevant and reliable. This follows the 2000 adoption of a like amendment to Red. R. Evid., 702 adopted in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). It is important to note that Rule 702 does not relax the traditional standards for determining that the witness is indeed qualified to speak an opinion on a matter within a purported field of knowledge, and that the factors mentioned in Daubert do not constitute an exclusive list of those to be considered in making the determination; Daubert's "list of factors was meant to be helpful, not definitive." Kuhmo [Kumho Tire Co., Ltd. v. Carmichael], 526 U.S. [137], 151, 119 S.Ct. 1167, 143 L.Ed.2d 238 [(1999)]. See also Pepitone[Pipitone] v. Biomatrix, Inc., 288 F.3d 239 (5th Cir. 2002).
M.R.E. 702 cmt. This Court's revision of Rule 702 abandoned Frye as the requisite holding concerning the admissibility of expert testimony and adopted Daubert as its new standard.
¶ 69. In Daubert, the United States Supreme Court was called upon to review whether unpublished though credentialed witnesses, who testified that the drug Bendectin had caused birth defects in animal studies, were qualified as experts for the purposes of Rule 702's "general acceptance" test. 509 U.S. at 582-583, 113 S.Ct. 2786. The Court found that the Frye "generally acceptance" test was displaced by the adoption of revised Rule 702 of the Federal Rules of Evidence. Id. at 598-599, 113 S.Ct. 2786. In so holding, the Court stated that Rule 702 requires that the subject of the expert's testimony must be "scientific ... knowledge." Id. at 590, 113 S.Ct. 2786. Scientific "implies a grounding in the methods and procedures of science." Id. Knowledge "connotes more than subjective belief or unsupported speculation." Id. "Proposed testimony must be supported by appropriate validationi.e., `good grounds,' based on what is known." Id. "In short, the requirement that an expert's testimony pertain to `scientific knowledge' establishes a standard of evidentiary reliability." Id. To meet the requirements of admissibility under Rule 702, the Court stated that:
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment *805 of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.... Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some other general observations are appropriate. Ordinarily, a key question to be answered in determining whether a theory or technique is specific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry." E. Green & C. Nesson, Problems, Cases, and Materials on Evidence 649 (1983). See also C. Hemphel, Philosophy of Natural Science 49 (1996) ("[T]he statements constituting a scientific explanation must be capable of empirical test"); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) ("[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability.") (emphasis deleted).
Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61-76 (1990), and in some instances well-grounded but innovative theories will not have been published, see Horrobin, The Philosophical of Innovation, 263 JAMA 1438 (1990).... The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.
Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, see, e.g., United States v. Smith, 869 F.2d 348, 353-354 (CA7 1989) (surveying students of the error rate of spectrographic voice identification technique), and the existence and maintenance of standards controlling the technique's operation, see United States v. Williams, 583 F.2d 1194, 1198 (CA2 1978) (noting professional organization's standard governing spectrographic analysis), cert. denied 439 U.S. 1117, 99 S.Ct. 1025, 59 L.Ed.2d 77 (1979).
Finally, "general acceptance" can yet have a bearing on the inquiry. A "reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within the community." United States v. Downing, 753 F.2d 1224, 1238 (C.A.3 1985). See also 3 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 702[03], pp. 702-41 to 702-42 (1988). Widespread acceptance can be an important factor in ruling particular evidence admissible, and "a known technique which has been able to attract only minimal support with in the community." Downing, 753 F.2d, at 1238, may properly be viewed with skepticism....
Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules.... Judge Weinstein has explained: "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing *806 possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses." Jack B. Weinstein, FEDERAL RULES DECISIONS 1991 RULE 702 OF THE FEDERAL RULES OF EVIDENCE IS SOUND; IT SHOULD NOT BE AMENDED, 138 F.R.D. 631, 632 (West 1991).
509 U.S. at 592-95, 113 S.Ct. 2786.
¶ 70. With the application of the principles established in Daubert, it is clear that Dr. West's expert opinion does not meet the standards governing admissibility under revised Rule 702. First, "scientific knowledge" implies some sort of objective rather than subjective standard of measurement and means of assessment. See Daubert, 509 U.S. at 590, 113 S.Ct. 2786. Dr. West, through his own testimony acknowledged that bite mark identification is not governed by an objective standard but rather is a "subjective art and science" with no computable margin of error.
¶ 71. Second, scientific testimony must be based on "good grounds,"i.e. "what is known." See Daubert, 509 U.S. at 590, 113 S.Ct. 2786. As stated earlier, the forensic odontology community is still in discussions as to whether the methodology and procedures used by Dr. West are sincerely grounded in good science and reliable, therefore Dr. West's methodology is not grounded in "what is known." See Brooks, 748 So.2d at 739; Ortiz, 502 A.2d at 403; Howard, 701 So.2d at 288; Spence, 795 S.W.2d at 750-55; Milone, 2 Ill.Dec. 63, 356 N.E.2d at 1356; Faigman, Modern Scientific Evidence, § 24-1.0, at 157-58.
¶ 72. Third, Dr. West's methodology cannot meet the criteria requirements as provided in Daubert. Dr. West's methodology and procedure have to a small degree been tested. During his testimony, Dr. West repeatedly emphasized the studies done by Dr. Reider Sognnaes at UCLA which studied and compared the dental impressions of 100 twins to determine whether the dental imprints of these twins were distinguishable and identifiable by detailed and unique characteristics. He offered no other studies where the margin of error has been calculated for forensic bite mark identification. Dr. West only continually emphasized that each dental impression is unique to an individual without any other evidence of studies which support his methodology and techniques. Furthermore, it was never revealed whether the UCLA study Dr. West emphasized used the same methodology and techniques employed by himself. Likewise, Dr. West has conducted no independent blind control group studies to verify his techniques or methodology. Additionally, the techniques and methodologies employed by Dr. West are "not capable" of being calculated with a margin of error as "it's a subjective art and science." Dr. West, in his own words, acknowledges that his procedures and methodology are subjective and no margin of error has been calculated to determine how often he is right or wrong. This fact alone tells a lot about Dr. West's so called science. Also, despite this Court's finding that bite mark evidence is "generally accepted," Dr. West's methodologies, procedures, and techniques are not generally accepted in the forensic odontology community. Dr. West himself acknowledges that many of the forensic odontologists that testify regarding bite mark evidence do not agree with his methods. Despite Dr. West's failure to meet the two requirements of Daubert discussed above, his theories, methods, and procedure have been subjected to peer review by way of publication. However, publication does not mean that his peers have actually concurred in his methodology and accepted it as a general procedure *807 for bite mark identification. Under the three factors enunciated in Daubert, the methodology and procedures used by Dr. West in forming his so called expert opinions are not admissible under revised Rule 702.
¶ 73. Additionally, Rule 403 of the Mississippi Rules of Evidence also supports the exclusion of Dr. West's opinion testimony. Rule 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." M.R.E. 403. Under Rule 403, the probative value of Dr. West's testimony does not outweigh the unfair prejudice and possible misleading of the jury. Dr. West all but tells the jury "Howard did it." Despite his efforts to limit his testimony to "consistency," Dr. West during testimony characterized Howard's dental impressions as "identical" to those found on the victim.
II.
¶ 74. Another reason for reversal lies in the trial judge's comments and failure to properly instruct the jury once it was revealed through a jury poll that the jury was not unanimous in the sentencing phase. The jury began sentencing deliberations at 11:00 a.m. From 12:30 p.m till 1:32 p.m. the jury took a lunch break at which time they were instructed not to discuss the case. From 1:32 p.m. till 2:15 p.m. the jury continued deliberations. The verdict for the sentence of death was read. The jury was then polled. It was then that it was discovered that one juror indicated that it was not his verdict. The following then took place:
BY THE COURT: I heard one no in the response of the jury. I will not accept this as the verdict of the jury. Please return this to the jury, along with all the exhibits. They didn't bring them out; they still have them in their possession.
Ladies and gentlemen, it takes all twelve jurors to concur on a verdict in this case. That also applies to sentence. It takes all twelve jurors to concur on a verdict. Please retire to the jury room and resume your deliberations. Show the jury back to the jury room.
(JURY OUT AT 2:25 P.M.)
BY THE COURT: I expect you have a motion.
BY MR KESLER: Your Honor, the defendant moves the Court to end the deliberations showing that, uh, Mr. John Hill, Jr. indicated in open court that was not his verdict and for the Court to find that this jury has been unable to resolve the issues and proceed to sentence the defendant to death.
BY THE COURT: The motion is overruled. Court is in recess awaiting the verdict of the jury.
At 3:15 p.m., around forty-five minutes after returning for further deliberations, the jury returned with the verdict of death.
¶ 75. Rule 3.10 of the Mississippi Uniform Rules of Circuit and County Court Practice, provides in relevant part that:
If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and he may give an appropriate instruction.
If it appears to the Court that there is no reasonable probability of agreement, the jury may be discharged without having agreed upon a verdict and a mistrial granted....
If a juror dissents in a criminal case or in a civil case if less the required number cannot agree the court may:
*808 (1) return the jury for further deliberations or
(2) declare a mistrial.
To this end, we have reviewed and reversed convictions based on comments similar to those made under the present circumstances.
¶ 76. In Sharplin v. State, 330 So.2d 591, 595 (Miss.1976), the jury deliberated for an hour and forty minutes, then informed the trial judge that it had not reached a verdict on the charge of manslaughter. It was revealed that the jury was divided nine to three. Id. Upon this finding, the trial judge stated:
Well, the jury has been considering this case now for about an hour and thirty, thirty-five minutes. The Court feels this jury should be able to get together on this case, and I am going to let you go back to the jury room and deliberate some further. Let the jury go back to the jury room.
Id. Thirty minutes later the jury returned a verdict of guilty. Id. We held that "the possibility of coercion, if any, lies in the trial judge's conduct and comments after he receives the division, that is, whether the judge merely affords the jury additional time to deliberate or whether he attempts to force a verdict by suggestive comments or coercive measures." Id. at 596. "If the trial judge feels that there is a likelihood that the jury might reach a verdict, he may return the jury for further deliberations by simply stating to the jurors: `Please continue your deliberations,' or he may give the following instruction set forth in the tentative draft of Mississippi Mode Jury Instructions: Criminal, Volume 1, page 50." Id. This instruction simply states:
I know that it is possible for honest men and women to have honest different opinions about the facts of a case, but, if it is possible to reconcile your differences of opinion and decide this case then you should do so.
Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberations.
Id.
¶ 77. Further, in State v. Taylor, 544 So.2d 1387 (Miss.1989), we were faced with another similar situation. After a full trial, the jury deliberated and returned a verdict of not guilty to the charge of Grand Larceny. Id. at 1388. The verdict was rendered and was filed in the minutes of the Court. Id. Thereafter, during a jury poll, it was discovered that one juror did not agree with the verdict. Id. The Court then ordered the jury to continue deliberations. Id. After thirty more minutes of deliberation, the jury returned a verdict of guilty. Id. In instructing courts in the future as to the appropriate actions under the circumstances, we provided the following:
(1) After a signal from a jury, the court may order the jurors assembled in open court and inquire of them if a verdict has been reached;
*809 (2) Upon an affirmation of its question, the court should inquire if the verdict is, in fact, the verdict of each member of the jury;
(3) Upon an affirmation of the jury, the verdict should be handed to the court for the judge to ascertain whether or not it is in proper form and responsive to the issues;
(4) The verdict should then be read in open court;
(5) The prosecution and defendant may be asked if either desires a poll of the jury;
(6) The poll, if requested, may be taken, and
(7) Only thereafter, the court should order the verdict filed by the Clerk.
If there is a negative response to (2) or to (6) above, the court would have two options. It can either return a jury for further deliberations under the aegis of Rule 5.14, Unif.Crim.R.Cir.Ct.Prac., or it may of its own motion or of either party direct a mistrial pursuant to the paragraph (3) of Rule 5.15 of the Uniform Criminal Rules.
544 So.2d at 1389.
¶ 78. Neither of the above cases involved the sentence of death, for which even greater scrutiny should be given. Under the facts and circumstances of this case, the trial judge had two options: (1) return the jury for deliberations with a Sharplin instruction; or (2) declare a mistrial. Before Howard even had time to object to the limited instructions given to the jury or even move for a mistrial; the trial judge had already made up his mind and sent the jury back for deliberations. Howard never even had a chance to invoke Sharplin. The jury had already been sent back for further deliberations. The appropriate action for the trial judge should have been to:
(1) Allow the defendant to make appropriate motions;
(2) Rule upon those motions;
(3) Decide which option he deemed appropriatei.e. further deliberations with Sharplin instruction or declare a mistrial; and
(4) If the trial judge chose the first option of returning the jury for further deliberations, then he should have given the appropriate Sharplin instruction.
The trial judge failed to do any of the above; therefore, the death verdict in the sentencing phase should be reversed.
III.
¶ 79. Dr. West's testimony should not have been admitted as it does not comply with the requirements of former Rule 702 and Frye or the requirements of revised Rule 702 and Daubert. Further, the trial judge erred in failing to allow the defense time to make motions and object when it was discovered that the jury in fact had not reached a sentencing verdict and the trial judge erred by failing to give a Sharplin instruction when he sent the jury back for further deliberations. Howard's conviction and death sentence should be reversed and this case remanded for a new trial.
¶ 80. For these reasons, I dissent.
APPENDIX
DEATH CASES AFFIRMED BY THIS COURT
Walker v. State, 815 So.2d 1209 (Miss. 2002). [*]following remand.
Bishop v. State, 812 So.2d 934 (Miss. 2002).
*810 Stevens v. State, 806 So.2d 1031 (Miss. 2002).
Grayson v. State, 806 So.2d 241 (Miss. 2002).
Knox v. State, 805 So.2d 527 (Miss.2002).
Simmons v. State, 805 So.2d 452 (Miss. 2002).
Berry v. State, 802 So.2d 1033 (Miss. 2001).
Snow v. State, 800 So.2d 472 (Miss.2001).
Mitchell v. State, 792 So.2d 192 (Miss. 2001).
Puckett v. State, 788 So.2d 752 (Miss. 2001). [*]following remand.
Goodin v. State, 787 So.2d 639 (Miss. 2001).
Jordan v. State, 786 So.2d 987 (Miss. 2001).
Manning v. State, 765 So.2d 516 (Miss. 2000). [*]following remand.
Eskridge v. State, 765 So.2d 508 (Miss. 2000).
McGilberry v. State, 741 So.2d 894 (Miss.1999).
Puckett v. State, 737 So.2d 322 (Miss. 1999). [*]remanded for Batson hearing.
Manning v. State, 735 So.2d 323 (Miss. 1999). [*]remanded for Batson hearing.
Hughes v. State, 735 So.2d 238 (Miss. 1999).
Turner v. State, 732 So.2d 937 (Miss. 1999).
Smith v. State, 729 So.2d 1191 (Miss. 1998).
Burns v. State, 729 So.2d 203 (Miss. 1998).
Jordan v. State, 728 So.2d 1088 (Miss. 1998).
Gray v. State, 728 So.2d 36 (Miss.1998).
Manning v. State, 726 So.2d 1152 (Miss. 1998).
Woodward v. State, 726 So.2d 524 (Miss. 1997).
Bell v. State, 725 So.2d 836 (Miss.1998).
Evans v. State, 725 So.2d 613 (Miss. 1997).
Brewer v. State, 725 So.2d 106 (Miss. 1998).
Crawford v. State, 716 So.2d 1028 (Miss. 1998).
Doss v. State, 709 So.2d 369 (Miss.1996).
Underwood v. State, 708 So.2d 18 (Miss. 1998).
Holland v. State, 705 So.2d 307 (Miss. 1997).
Wells v. State, 698 So.2d 497 (Miss.1997).
Wilcher v. State, 697 So.2d 1087 (Miss. 1997).
Wiley v. State, 691 So.2d 959 (Miss. 1997).
Brown v. State, 690 So.2d 276 (Miss. 1996).
Simon v. State, 688 So.2d 791 (Miss. 1997).
Jackson v. State, 684 So.2d 1213 (Miss. 1996).
Williams v. State, 684 So.2d 1179 (Miss. 1996).
Davis v. State, 684 So.2d 643 (Miss. 1996).
Taylor v. State, 682 So.2d 359 (Miss. 1996).
Brown v. State, 682 So.2d 340 (Miss. 1996).
Blue v. State, 674 So.2d 1184 (Miss. 1996).
Holly v. State, 671 So.2d 32 (Miss.1996).
Walker v. State, 671 So.2d 581(Miss.1995).
*811 Russell v. State, 670 So.2d 816 (Miss. 1995).
Ballenger v. State, 667 So.2d 1242 (Miss. 1995).
Davis v. State, 660 So.2d 1228 (Miss. 1995).
Carr v. State, 655 So.2d 824 (Miss.1995).
Mack v. State, 650 So.2d 1289 (Miss. 1994).
Chase v. State, 645 So.2d 829 (Miss. 1994).
Foster v. State, 639 So.2d 1263 (Miss. 1994).
Conner v. State, 632 So.2d 1239 (Miss. 1993).
Hansen v. State, 592 So.2d 114 (Miss. 1991).
[*]Shell v. State, 554 So.2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) reversing, in part, and remanding, Shell v. State, 595 So.2d 1323 (Miss.1992) remanding for new sentencing hearing.
Davis v. State, 551 So.2d 165 (Miss. 1989).
Minnick v. State, 551 So.2d 77 (Miss. 1989).
[*]Pinkney v. State, 538 So.2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) vacating and remanding Pinkney v. State, 602 So.2d 1177 (Miss.1992) remanding for new sentencing hearing.
[*]Clemons v. State, 535 So.2d 1354 (Miss.1988), Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) vacating and remanding, Clemons v. State, 593 So.2d 1004 (Miss.1992) remanding for new sentencing hearing.
Woodward v. State, 533 So.2d 418 (Miss. 1988).
Nixon v. State, 533 So.2d 1078 (Miss. 1987).
Cole v. State, 525 So.2d 365 (Miss.1987).
Lockett v. State, 517 So.2d 1346 (Miss. 1987).
Lockett v. State, 517 So.2d 1317 (Miss. 1987).
Faraga v. State, 514 So.2d 295 (Miss. 1987).
[*]Jones v. State, 517 So.2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 925 (1988)
vacating and remanding, Jones v. State, 602 So.2d 1170 (Miss.1992) remanding for new sentencing hearing.
Wiley v. State, 484 So.2d 339 (Miss. 1986).
Johnson v. State, 477 So.2d 196 (Miss. 1985).
Gray v. State, 472 So.2d 409 (Miss.1985).
Cabello v. State, 471 So.2d 332 (Miss. 1985).
Jordan v. State, 464 So.2d 475 (Miss. 1985).
Wilcher v. State, 455 So.2d 727 (Miss. 1984).
Billiot v. State, 454 So.2d 445 (Miss. 1984).
Stringer v. State, 454 So.2d 468 (Miss. 1984).
Dufour v. State, 453 So.2d 337 (Miss. 1984).
Neal v. State, 451 So.2d 743 (Miss.1984).
Booker v. State, 449 So.2d 209 (Miss. 1984).
Wilcher v. State, 448 So.2d 927 (Miss. 1984).
Caldwell v. State, 443 So.2d 806 (Miss. 1983).
Irving v. State, 441 So.2d 846 (Miss. 1983).
*812 Tokman v. State, 435 So.2d 664 (Miss. 1983).
Leatherwood v. State, 435 So.2d 645 (Miss.1983).
Hill v. State, 432 So.2d 427 (Miss.1983).
Pruett v. State, 431 So.2d 1101 (Miss. 1983).
Gilliard v. State, 428 So.2d 576 (Miss. 1983).
Evans v. State, 422 So.2d 737 (Miss. 1982).
King v. State, 421 So.2d 1009 (Miss. 1982).
Wheat v. State, 420 So.2d 229 (Miss. 1982).
Smith v. State, 419 So.2d 563 (Miss. 1982).
Johnson v. State, 416 So.2d 383 (Miss. 1982).
Edwards v. State, 413 So.2d 1007 (Miss. 1982).
Bullock v. State, 391 So.2d 601 (Miss. 1980).
Reddix v. State, 381 So.2d 999 (Miss. 1980).
Jones v. State, 381 So.2d 983 (Miss. 1980).
Culberson v. State, 379 So.2d 499 (Miss. 1979).
Gray v. State, 375 So.2d 994 (Miss.1979).
Jordan v. State, 365 So.2d 1198 (Miss. 1978).
Voyles v. State, 362 So.2d 1236 (Miss. 1978).
Irving v. State, 361 So.2d 1360 (Miss. 1978).
Washington v. State, 361 So.2d 61 (Miss. 1978).
Bell v. State, 360 So.2d 1206 (Miss.1978).
DEATH CASES REVERSED AS TO GUILT PHASE AND SENTENCE PHASE
Flowers v. State, 842 So.2d 531 (Miss. 2003).
Randall v. State, 806 So.2d 185 (Miss. 2002).
Flowers v. State, 773 So.2d 309 (Miss. 2000).
Edwards v. State, 737 So.2d 275 (Miss. 1999).
Smith v. State, 733 So.2d 793 (Miss. 1999).
Porter v. State, 732 So.2d 899 (Miss. 1999).
Kolberg v. State, 704 So.2d 1307 (Miss. 1997).
Snelson v. State, 704 So.2d 452 (Miss. 1997).
Fuselier v. State, 702 So.2d 388 (Miss. 1997).
Howard v. State, 701 So.2d 274 (Miss. 1997).
Lester v. State, 692 So.2d 755 (Miss. 1997).
Hunter v. State, 684 So.2d 625 (Miss. 1996).
Lanier v. State, 684 So.2d 93 (Miss. 1996).
Giles v. State, 650 So.2d 846 (Miss.1995).
Duplantis v. State, 644 So.2d 1235 (Miss. 1994).
Harrison v. State, 635 So.2d 894 (Miss. 1994).
Butler v. State, 608 So.2d 314 (Miss. 1992).
Jenkins v. State, 607 So.2d 1171 (Miss. 1992).
Abram v. State, 606 So.2d 1015 (Miss. 1992).
*813 Balfour v. State, 598 So.2d 731 (Miss. 1992).
Griffin v. State, 557 So.2d 542 (Miss. 1990).
Bevill v. State, 556 So.2d 699 (Miss. 1990).
West v. State, 553 So.2d 8 (Miss.1989).
Leatherwood v. State, 548 So.2d 389 (Miss.1989).
Mease v. State, 539 So.2d 1324 (Miss. 1989).
Houston v. State, 531 So.2d 598 (Miss. 1988).
West v. State, 519 So.2d 418 (Miss.1988).
Davis v. State, 512 So.2d 1291 (Miss. 1987).
Williamson v. State, 512 So.2d 868 (Miss.1987).
Foster v. State, 508 So.2d 1111 (Miss. 1987).
Smith v. State, 499 So.2d 750 (Miss. 1986).
West v. State, 485 So.2d 681 (Miss.1985).
Fisher v. State, 481 So.2d 203 (Miss. 1985).
Johnson v. State, 476 So.2d 1195 (Miss. 1985).
Fuselier v. State, 468 So.2d 45 (Miss. 1985).
West v. State, 463 So.2d 1048 (Miss. 1985).
Jones v. State, 461 So.2d 686 (Miss. 1984).
Moffett v. State, 456 So.2d 714 (Miss. 1984).
Lanier v. State, 450 So.2d 69 (Miss. 1984).
Laney v. State, 421 So.2d 1216 (Miss. 1982).
DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT
Reddix v. State, 547 So.2d 792 (Miss. 1989).
Wheeler v. State, 536 So.2d 1341 (Miss. 1988).
White v. State, 532 So.2d 1207 (Miss. 1988).
Bullock v. State, 525 So.2d 764 (Miss. 1987).
Edwards v. State, 441 So.2d 84 (Miss. 1983).
Dycus v. State, 440 So.2d 246 (Miss. 1983).
Coleman v. State, 378 So.2d 640 (Miss. 1979).
DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR A NEW TRIAL ON SENTENCING PHASE ONLY
King v. State, 784 So.2d 884 (Miss.2001).
Walker v. State, 740 So.2d 873 (Miss. 1999).
Watts v. State, 733 So.2d 214 (Miss. 1999).
West v. State, 725 So.2d 872 (Miss.1998).
Smith v. State, 724 So.2d 280 (Miss. 1998).
Berry v. State, 703 So.2d 269 (Miss. 1997).
Booker v. State, 699 So.2d 132 (Miss. 1997).
Taylor v. State, 672 So.2d 1246 (Miss. 1996).
[*]Shell v. State, 554 So.2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) reversing, in part, and remanding, Shell v. State 595 *814 So.2d 1323 (Miss.1992) remanding for new sentencing hearing.
[*]Pinkney v. State, 538 So.2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) vacating and remanding, Pinkney v. State, 602 So.2d 1177 (Miss.1992) remanding for new sentencing hearing.
[*]Clemons v. State, 535 So.2d 1354 (Miss.1988), Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) vacating and remanding, Clemons v. State, 593 So.2d 1004 (Miss.1992) remanding for new sentencing hearing.
[*]Jones v. State, 517 So.2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 925 (1988)
vacating and remanding, Jones v. State, 602 So.2d 1170 (Miss.1992) remanding for new sentencing hearing.
Russell v. State, 607 So.2d 1107 (Miss. 1992).
Holland v. State, 587 So.2d 848 (Miss. 1991).
Willie v. State, 585 So.2d 660 (Miss. 1991).
Ladner v. State, 584 So.2d 743 (Miss. 1991).
Mackbee v. State, 575 So.2d 16 (Miss. 1990).
Berry v. State, 575 So.2d 1 (Miss.1990).
Turner v. State, 573 So.2d 657 (Miss. 1990).
State v. Tokman, 564 So.2d 1339 (Miss. 1990).
Johnson v. State, 547 So.2d 59 (Miss. 1989).
Williams v. State, 544 So.2d 782 (Miss. 1989); sentence aff'd 684 So.2d 1179 (1996).
Lanier v. State, 533 So.2d 473 (Miss. 1988).
Stringer v. State, 500 So.2d 928 (Miss. 1986).
Pinkton v. State, 481 So.2d 306 (Miss. 1985).
Mhoon v. State, 464 So.2d 77 (Miss. 1985).
Cannaday v. State, 455 So.2d 713 (Miss. 1984).
Wiley v. State, 449 So.2d 756 (Miss. 1984); resentencing affirmed, Wiley v. State, 484 So.2d 339 (Miss.1986), cert. denied Wiley v. Mississippi, 479 U.S. 1036 (1988); resentencing ordered, Wiley v. State, 635 So.2d 802 (Miss.1993) following writ of habeas corpus issued pursuant to Wiley v. Puckett, 969 F.2d 86, 105-106 (5th Cir.1992); resentencing affirmed, Wiley v. State, 95-DP-00149, February 13, 1997 (rehearing pending).
Williams v. State, 445 So.2d 798 (Miss. 1984).
NOTES
[1] Subsequent to the briefing of the issues in this case, Walters withdrew as counsel when he resigned as public defender, and Carrie Jourdan was appointed to replace him.
[2] Howard had been released from the state penitentiary at Parchman approximately four months before the murder.
[3] Judging from the quality and quantity of motions and correspondence that Howard has written, it is evident that he is mentally competent and has a respectable understanding of the legal process and the nature of the proceedings.
[4] See also Brooks v. State, 748 So.2d at 748.
[5] Since Howard's trial, Rule 702 has been revised. The revisions and their application will be discussed further in this opinion.
[*] Case was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/32535/ | 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. 03-50164
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE GALLARDO-AGUIRRE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CR-1408-ALL-DB
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Enrique Gallardo-Aguirre 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.
Gallardo-Aguirre 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. Gallardo-Aguirre maintains that
*
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. 03-50164
-2-
he pleaded guilty to an indictment which charged only simple
reentry under 8 U.S.C. § 1326(a). He argues that his sentence
exceeds the two-year maximum term of imprisonment 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.
Gallardo-Aguirre 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/2399165/ | 642 F. Supp. 777 (1986)
CAL CAULFIELD AND COMPANY, INC., Plaintiff,
v.
COLONIAL NURSING HOMES, INC.; Mission Lake Convalescent Center, Inc.; and Robert W. Walters, Defendants.
Civ. A. No. 85-2590.
United States District Court, D. Kansas.
August 13, 1986.
*778 John A. Holtmann, Overland Park, Kan., for plaintiff.
Jerold A. Bressel, Overland Park, Kan., Allen S. Russell, Rea & Russell, Kansas City, Mo., for defendants.
MEMORANDUM AND ORDER
EARL E. O'CONNOR, Chief Judge.
This matter is before the court on defendants' motion to dismiss for lack of personal jurisdiction. For the reasons discussed below, defendants' motion will be denied.
This is an action for (1) breach of a written contract by defendants Colonial Nursing Homes, Inc., [hereinafter Colonial] and Mission Lake Convalescent Center, Inc., [hereinafter Mission Lake]; (2) unjust enrichment by Mission Lake; and (3) tortious interference with the contract by defendants Mission Lake and Robert W. Walters, President of Colonial. Plaintiff's complaint alleges that on May 7, 1982, plaintiff entered into a written contract with Colonial to procure and underwrite industrial revenue bonds for a nursing home project in Kansas City, Missouri.
When the existence of personal jurisdiction is controverted, plaintiff has the burden of proof to demonstrate jurisdiction. Ammon v. Kaplow, 468 F. Supp. 1304, 1309 (D.Kan.1979). Plaintiff, however, need only establish a prima facie case that the requirements for jurisdiction have been met. Id.; Thermal Insulation Systems, Inc. v. Ark-Seal Corporation, 508 F. Supp. 434, 437 (D.Kan.1980). The court may consider documentary evidence and weigh affidavits to determine whether such a showing has been made. Ammon, 468 F.Supp. at 1309. Factual doubts are to be resolved in favor of plaintiff. Id.
The facts concerning the existence of the written contract in this case are highly disputed. Defendants have attached an affidavit by Walters in which he claims that although he met with plaintiff several times to discuss the possibility of plaintiff underwriting and obtaining bond financing for the nursing home project, no contract was made. Eventually the bonds were issued, but through the services of another firm. Plaintiff disputes these facts and attaches an affidavit by Calvin Caulfield, President of the plaintiff Cal Caulfield and *779 Company, Inc. Plaintiff also attaches a copy of the alleged contract to its complaint. After considering the documentary evidence presented by both plaintiff and defendants, and resolving all factual doubts in favor of plaintiff, the court will decide this motion based on the following facts.
Defendant Walters is a resident of Missouri and both corporate defendants are Missouri corporations with their sole places of business in Missouri. Plaintiff is a Kansas corporation with its sole place of business located in Johnson County, Kansas. In the spring of 1982, Walters met with a Missouri architect to discuss the construction of a nursing home in Kansas City, Missouri. The architect offered to introduce Walters to Cal Caulfield to discuss the possibility of arranging industrial revenue bond financing. Walters met with Caulfield in plaintiff's Overland Park, Kansas, office and discussed the possibility of obtaining bond financing. No agreement, however, was reached at this time.
On May 7, 1982, Walters signed, on behalf of Colonial, the alleged contract in plaintiff's office in Kansas. The alleged contract provides that plaintiff would serve as financial advisor for a fee of three percent of the principal amount of bonds for a nursing home development in Kansas City, Missouri. Plaintiff was to purchase, or form a management group or purchasing syndicate that would purchase, ninety-five percent of these bonds. Plaintiff agreed to furnish assistance and advice in the performance of all steps relating to the issuance and delivery of the bonds, and agreed to work with the attorneys of defendants' choice in preparing and handling all the legal proceedings.
In December 1983, Mission Lake was incorporated to proceed with the nursing home project. Colonial assigned responsibility for the project to Mission Lake. On December 15, 1983, the Industrial Development Authority of the City of Kansas City, Missouri, passed a resolution issuing industrial development revenue bonds for construction of the project. Plaintiff claims that Mission Lake and Walters, with knowledge of the alleged written contract between plaintiff and Colonial, intentionally induced Colonial to breach the contract by forming Mission Lake Convalescent Center, Inc., for the purpose of transferring the development responsibility of the contemplated nursing home project to Mission Lake. This rendered performance of the alleged contract by Colonial impossible.
In determining whether personal jurisdiction exists in this case, the court must follow two steps of analysis. First, we must determine whether the defendants' conduct falls within the scope of one of the provisions of the Kansas long-arm statute. Second, the court must decide whether the exercise of jurisdiction comports with due process requirements. Thermal Insulation Systems, Inc. v. Ark-Seal Corp., 508 F. Supp. 434, 436 (D.Kan.1980).
The long-arm statute, K.S.A. 60-308(b), provides in pertinent part:
Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual's personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
....
(2) commission of a tortious act within this state;
....
(5) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state.
Plaintiff alleges in its complaint that defendants Colonial and Mission Lake submitted to the jurisdiction of this court by engaging in acts set forth in subsection (b)(5) and that defendants Walters and Mission Lake submitted to the jurisdiction of this court by engaging in acts set forth in subsection (b)(2). Defendants appear to concede that if we resolve the factual disputes *780 in favor of plaintiff, defendants' conduct falls within the provisions of these subsections of the long-arm statute. We will therefore proceed to the next step of our analysis.
We must now consider whether the exercise of jurisdiction over defendants in this case comports with due process. The Supreme Court in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 83 L. Ed. 2d 528 (1985), recently reiterated the standards under which a court may assert jurisdiction over an out-of-state defendant. According to the Court, due process requires that persons be given "fair warning" that their conduct might subject them to suit in another jurisdiction. Id., 105 S.Ct. at 2182. This fair warning requirement is satisfied if the defendant has "purposefully directed" his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities. Id. The Court specifically noted that, with respect to interstate contractual obligations, parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state, are subject to sanctions and regulations in the other state for the consequences of their activities. Id.
Jurisdiction over a nonresident defendant, however, is not proper unless there is "some act by which the Defendant purposefully avails itself of the privilege of conducting activities within the forum state." Id., 105 S.Ct. at 2183 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239, 2 L. Ed. 2d 1283 (1958)). Thus, where a defendant has created continuing obligations between himself and the residents of the forum state, he has availed himself of the privilege of conducting business there. Id., 105 S.Ct. at 2184. The Court noted that a contract alone cannot automatically establish sufficient minimum contacts. Id., 105 S.Ct. at 2185. A court must examine "prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing" in determining whether a defendant has purposefully established minimum contacts within the forum. Id., 105 S.Ct. at 2186.
Applying these factors to the case at bar, we hold that defendants Colonial and Mission Lake purposefully established minimum contacts within the state of Kansas so as to make themselves amenable to suit within the state of Kansas for breach of contract. The alleged contract in this action was executed by plaintiff and the defendant Colonial in Kansas. Colonial knew it was dealing with a Kansas investment firm whose principal and only place of business was in Kansas. Later, when Colonial assigned the nursing home project contemplated in the alleged contract to Mission Lake, the benefits and the burdens of the alleged contract were undertaken by Mission Lake. Looking at the terms of the alleged contract, we find that the contract had sufficient ties with Kansas so that we may conclude that defendants purposefully established minimum contacts within the state. Although the bonds were to be used to build a nursing home in Missouri, it is clear that much of the work to be performed by plaintiff was to take place at plaintiff's corporate headquarters in Kansas. Although the relationship between plaintiff and the defendants centered around only one contract, a continuing relationship formed between plaintiff and the defendants while plaintiff allegedly sought potential investors, including some Kansas investors, for the bonds. According to the terms of the alleged contract, plaintiff was to work with defendants on all steps relating to the issuance and delivery of the bonds. Clearly, this alleged agreement contemplated continuing contacts between plaintiff and the defendants.
We find that the same reasoning applies to plaintiff's claim of unjust enrichment against Mission Lake. By accepting and appropriating the benefits of plaintiff's services under the alleged contract, Mission Lake purposefully established minimum contacts within the state of Kansas.
*781 Having decided that defendants Colonial and Mission Lake purposefully established minimum contacts within Kansas so as to be amenable to suit in Kansas for breach of contract and unjust enrichment, we must consider these contacts in light of other factors to determine whether the assertion of personal jurisdiction would comport with "fair play and substantial justice." Id. 105 S.Ct. at 2184 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S. Ct. 154, 160, 90 L. Ed. 95 (1945)). Where a defendant has purposefully directed his activities at forum residents, he must present a "compelling case" that these factors would render jurisdiction unreasonable. Id., 105 S.Ct. at 2185. Defendants in this case have presented no facts showing that jurisdiction would be unreasonable. We therefore hold that assertion of personal jurisdiction over defendants Colonial and Mission Lake for the alleged breach of contract and over Mission Lake for unjust enrichment does not offend due process.
In a similar vein, we conclude that defendants Walters and Mission Lake have established sufficient minimum contacts with Kansas so as to make themselves amenable to suit in Kansas for tortious interference with the alleged contract. Based on plaintiff's version of the facts, we find that defendants Walters and Mission Lake purposefully directed their activities at plaintiff, a resident of Kansas, when they intentionally sought to interfere with the contract. Surely, defendants could foresee that their tortious acts would cause injury to a Kansas resident in Kansas and that they could anticipate being sued in Kansas for their conduct. The Supreme Court has consistently held that jurisdiction is proper where the "defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980). Because defendants have presented no facts showing that personal jurisdiction would not comport with fair play and substantial justice, we hold that the assertion of personal jurisdiction over Walters and Mission Lake for the alleged tortious interference with the claimed contract does not offend due process.
IT IS THEREFORE ORDERED that defendants' motion to dismiss for lack of personal jurisdiction is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622460/ | 725 N.W.2d 317 (2006)
Martin J. BAHL, Linda C. Bahl, and Terrence G. Bahl, Appellants,
v.
THE CITY OF ASBURY, Iowa, and the City Council of Asbury, Iowa, Appellees.
No. 04-1540.
Supreme Court of Iowa.
December 22, 2006.
*318 Brian J. Kane and D. Flint Drake of Kane, Norby & Reddick, P.C., Dubuque, for appellants.
Stephen J. Juergens of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., Dubuque, for appellees.
STREIT, Justice.
"A rose may still be a rose if called by another name but not so for manufactured housing."[1] We are called on to determine whether a "mobile home" is a "manufactured home." Developers claim the City of Asbury unlawfully discriminates against "mobile home" parks through zoning restrictions. Developers contend Iowa law requires "mobile homes" the kind with hitches, wheels, and/or axles be treated the same as traditional homes built on site. We find the statute in question, which prohibits cities from discriminating against "manufactured housing," only pertains to factory-built homes that sit on permanent foundations. Because developers' proposal calls for "mobile homes," the city may treat it differently in comparison to other types of housing developments. Accordingly, we affirm the district court's declaratory judgment.
I. Facts and Prior Proceedings
The Bahls own real estate in Asbury which is zoned A-1 for agricultural use. Since 1997, the Bahls have repeatedly sought to have their land rezoned in a manner that would allow them to develop a community of prefabricated[2] homes to be called "Oak Meadows." The Bahls' rezoning applications have been resisted by neighbors and Asbury's city counsel.
After the Bahls' second request for rezoning was denied in 1999, they filed suit alleging Asbury's zoning ordinance requiring "mobile home" parks to be located only in R-4 (high density residential) districts violated Iowa Code section 414.28A (1999). Under section 414.28A, "[a] city shall not adopt or enforce zoning or subdivision regulations or other ordinances which disallow or make infeasible the plans and specifications of land-leased communities because the housing within the land-leased community will be manufactured housing."
The district court held Asbury violated section 414.28A because one reason for denying the Bahls' rezoning request was the fact the proposed development was a land-leased community of manufactured housing. On appeal, we affirmed. See Bahl v. City of Asbury, 656 N.W.2d 336 (Iowa 2002) ("Bahl I").
In Bahl I, we said "the plain language of section 414.28A . . . reveals a legislative intent to require equal treatment of land-leased communities that are composed of manufactured homes with similar communities composed of site-built housing." Id. at 345.
*319 We interpreted Asbury's definition of "mobile home" in its zoning ordinance to include all types of prefabricated housing.[3]Id. at 337 n. 1. In Bahl I, neither party disputed the Bahls' proposed development was a land-leased community of manufactured housing within the meaning of chapter 414. Id. Nor did the parties dispute the Bahls' project was subject to the restrictions imposed on "mobile home" parks by the City's zoning ordinance. Id. Notably, the Iowa legislature used the terms "manufactured housing" and "manufactured home" in chapter 414 of the Code while Asbury used the term "mobile home" in its zoning ordinance. Apparently, the parties were under the impression the terms could be used interchangeably.
After Bahl I, Asbury amended its zoning ordinance so the terms "mobile home" and "manufactured home" are now mutually exclusive. Under the current ordinance, a "manufactured home" means a "factory-built structure" on a "permanent foundation," which does not have a "permanent hitch" or any "wheels or axles" permanently attached to its frame. A "mobile home" is defined as all other factory-built structures i.e. homes with permanent hitches, wheels and/or axles. Asbury also defined "land-leased community" in its ordinance. A "land-leased community" is any "tract of land under common ownership upon which 10 or more occupied manufactured homes are harbored. . . ."
The amendments to Asbury's zoning ordinance require manufactured homes be treated the same as site-built housing. Land-leased communities for manufactured housing are permitted under the same zoning requirements as for site-built communities. However, under Asbury's amended zoning ordinance, mobile home parks[4] are limited to planned unit developments[5] (PUD) in R-3 or R-4 zones. The effect of the city's changes is to treat mobile home parks differently than either site-built housing or manufactured housing as that term is used in Asbury's zoning ordinance.
Because the Bahls' development proposal includes mobile homes as defined by Asbury's current zoning ordinance, the Bahls filed a declaratory judgment action in the district court asking the court to find Asbury's current zoning ordinance violates Iowa Code section 414.28A (2003).[6] The district court found in favor of Asbury. It stated:
Mobile homes as defined in the city's zoning ordinance are not protected by §§ 414.28 or 414.28A. Asbury defines mobile homes as structures the Iowa legislature has excluded from protection. Asbury's treatment of exempted structures *320 does not offend §§ 414.28 or 414.28A.
The Bahls appeal.
II. Standard of Review
The standard of review for a declaratory judgment action tried at law is for correction of errors. Am. Family Mut. Ins. Co. v. Petersen, 679 N.W.2d 571, 575 (Iowa 2004) (citing United Fire & Cas. Co. v. Shelly Funeral Home, Inc., 642 N.W.2d 648, 651 (Iowa 2002)).
III. Merits
The issue before us is whether Asbury's treatment of "mobile home" parks under its current zoning ordinance violates section 414.28A. Section 414.28A provides:
A city shall not adopt or enforce zoning or subdivision regulations or other ordinances which disallow or make infeasible the plans and specifications of land-leased communities because the housing within the land-leased community will be manufactured housing.
"Land-leased community" means any site, lot, field, or tract of land under common ownership upon which ten or more occupied manufactured homes are harbored, either free of charge or for revenue purposes, and shall include any building, structure, or enclosure used or intended for use as part of the equipment of the land-leased community. . . . A manufactured home located in a land-leased community shall be taxed under section 435.22 as if the manufactured home were located in a mobile home park.
Section 414.28A does not define "manufactured home" or "manufactured housing." Asbury contends the definition found in section 414.28 also applies to section 414.28A. Section 414.28 states:
As used in this section, `manufactured home' means a factory-built structure, which is manufactured or constructed under the authority of 42 U.S.C. § 5403 and is to be used as a place for human habitation, but which is not constructed or equipped with a permanent hitch or other device allowing it to be moved other than for the purpose of moving to a permanent site, and which does not have permanently attached to its body or frame any wheels or axles.
(Second emphasis added.) In other words, according to Asbury, section 414.28A only protects foundation-ready prefabricated homes from discrimination and does not protect prefabricated homes with permanent hitches, axles and/or wheels. Using this interpretation of section 414.28A, Asbury contends its zoning ordinance satisfies section 414.28A because it requires foundation-ready prefabricated homes to be treated the same as traditional on-site built homes. Asbury argues section 414.28A does not prohibit the city from restricting the location of mobile home parks (i.e. two or more prefabricated homes with hitches, wheels and/or axles).
The Bahls claim Asbury's amended zoning ordinance "is a transparent attempt through word play to circumvent a banned form of discrimination. . . ." The Bahls make two arguments on appeal. First, they argue our decision in Bahl I established the "law of the case" and consequently the prefabricated homes with hitches, axles and/or wheels described in their rezoning application are "manufactured homes" for purposes of their continuing application. Second, the Bahls disagree with Asbury's interpretation of section 414.28A. The Bahls contend "manufactured home" has a different meaning in section 414.28A than it does in section 414.28. According to the Bahls, section 414.28 protects foundation-ready prefabricated homes from discrimination while section 414.28A protects prefabricated *321 homes with axles, hitches and/or wheels. The Bahls therefore conclude section 414.28A prevents Asbury from discriminating against its proposed development.
A. Law of the Case
The Bahls contend the law of the case doctrine prevents Asbury from "argu[ing] that the type of homes proposed in the Bahls' application (mobile homes) are not `manufactured homes' within the meaning of the City's ordinance or Chapter 414." They base this contention on the fact the parties in Bahl I did "not dispute that the development proposed by the Bahls is a land-leased community of manufactured housing within the meaning of chapter 414." Bahl I, 656 N.W.2d at 337 n. 1.
Under the law of the case doctrine, "an appellate decision becomes the law of the case and is controlling on both the trial court and on any further appeals in the same case." United Fire & Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d 101, 103 (Iowa 2000) (citing Springer v. Weeks & Leo Co., 475 N.W.2d 630, 632 (Iowa 1991)). The doctrine is based on a public policy against reopening matters which have already been decided. Id. (citing Wolfe v. Graether, 389 N.W.2d 643, 651 (Iowa 1986)). Thus, issues decided by an appellate court generally cannot be reheard, reconsidered, or relitigated. Id. (citing 5 C.J.S. Appeal and Error § 975, at 476-77 (1993)). The appellate court decision is final as to all questions decided and the trial court is obligated to follow that decision. Id. (citing 5 C.J.S. Appeal and Error § 975, at 476-77 (1993)).
The law of the case doctrine does not apply to the present case because we were not asked in Bahl I to determine the meaning of "manufactured home" as the term is used in section 414.28A. The doctrine applies "only to those questions that were properly before us for consideration and passed on" and "[a] question not passed on is not included" under the doctrine. In re Lone Tree Cmty. Sch. Dist., 159 N.W.2d 522, 526 (Iowa 1968) (citations omitted). Thus, we now turn to section 414.28A and the meaning of "manufactured home."
B. Iowa Code Section 414.28A
Section 414.28A states "[a] city shall not adopt or enforce zoning or subdivision regulations or other ordinances which disallow or make infeasible the plans and specifications of land-leased communities because the housing within the land-leased community will be manufactured housing." A land-leased community is any property "under common ownership upon which ten or more occupied manufactured homes are harbored. . . ." Iowa Code § 414.28A. Section 414.28A does not include a definition of "manufactured homes." The definition, of course, is critical to our determination of the scope of the statute.
"The polestar of statutory interpretation is to give effect to the legislative intent of a statute." State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999) (citing Harris v. Olson, 558 N.W.2d 408, 410 (Iowa 1997)). "If the legislature has not defined words of a statute, we may refer to prior decisions of this court and others, similar statutes, dictionary definitions and common usage." Iowa Dep't of Transp. v. Soward, 650 N.W.2d 569, 571 (Iowa 2002) (citing Bernau v. Iowa Dep't of Transp., 580 N.W.2d 757, 761 (Iowa 1998)).
The Bahls argue "[i]n all previous proceedings, the City, the City's legal counsel, the courts, and the participants in the public hearings have used the terms `mobile home' and `manufactured home' interchangeably, indicating a general understanding that the mobile homes proposed by the Bahls were in fact `manufactured homes' and protected by 414.28A." They *322 also point to decisions from other jurisdictions finding the terms "mobile home" and "manufactured housing" are synonymous. See, e.g., Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex.1987) (noting in the late 1970's, the industry began using the term "manufactured home" instead of "mobile home"). But the cases the Bahls cite address restrictive covenants, not the statute at issue here. We are only concerned with how the Iowa legislature defines "manufactured home." In this particular case, we need not look beyond sections 414.28 and 414.28A because they offer enough clues to determine the legislature's intent.
Section 414.28A states "[a] manufactured home located in a land-leased community shall be taxed under section 435.22 as if the manufactured home were located in a mobile home park." (Emphasis added.) The words "as if" indicate the legislature understood the difference between the terms manufactured home and mobile home and did not intend "manufactured home" to include mobile homes.
Because of the reference to section 435.22, the Bahls invite us to consider the definitions found in chapter 435, which pertains to taxing of mobile homes and manufactured housing in parks and communities. We think the Bahls are reading too much into the reference to section 435.22. The statute reads "[a] manufactured home . . . shall be taxed under section 435.22 as if the manufactured home were located in a mobile home park." Iowa Code § 414.28A (emphasis added). It does not say a manufactured home is defined in chapter 435.
We think it makes more sense to refer to a definition within the chapter at issue. See State v. Hawk, 616 N.W.2d 527, 529 (Iowa 2000) ("[C]ourts are obliged to consider a challenged statute in its entirety and in pari materia with other pertinent statutes."). Section 414.28, which protects manufactured homes located outside of a manufactured home community from discrimination, defines "manufactured home."[7] Section 414.28 states:
As used in this section, "manufactured home" means a factory-built structure, which is manufactured or constructed under the authority of 42 U.S.C. § 5403 and is to be used as a place for human habitation, but which is not constructed or equipped with a permanent hitch or other device allowing it to be moved other than for the purpose of moving to a permanent site, and which does not have attached to its body or frame any wheels or axles.
Thus, the definition found in section 414.28 is limited to prefabricated homes intended to be placed on permanent foundations. There is no indication the legislature intended to expand the definition of "manufactured home" for purposes of section 414.28A.
In Bahl I, we said "it is instructive in our search for the meaning of section 414.28A to consider what the legislature intended when it enacted section 414.28." Bahl I, 656 N.W.2d at 342. This is because *323 sections 414.28A and 414.28 are "very similar." Id. at 341. We said:
There appears to be very little difference between section 414.28 and section 414.28A with respect to the operative language. The primary distinction of course is that section 414.28 applies to "residential structure[s]" whereas section 414.28A governs "land-leased communities."
Id. at 342. Therefore, it is logical to use the definition of "manufactured home" found in section 414.28 to interpret section 414.28A. When we do, it is obvious the legislature only intended section 414.28A to protect foundation-ready prefabricated housing from discrimination.[8] Our decision in Bahl I supports this conclusion. There, we said:
[T]he plain language of section 414.28A . . . reveals a legislative intent to require equal treatment of land-leased communities that are composed of manufactured homes with similar communities composed of site-built housing. Our interpretation of section 414.28A does not mean the City must allow mobile home parks in all zoning districts. Nor does it mean the City cannot regulate manufactured housing developments. The statute merely mandates that land-leased communities of manufactured housing be allowed in any district in which similar communities of site-built housing are allowed, under the same terms and conditions imposed on such developments containing traditional housing.
Id. at 345 (emphasis added). Thus, Asbury's zoning ordinance requiring only foundation-ready homes be given the same treatment as site-built homes and relegating prefabricated homes with hitches, wheels, and/or axles to PUD R-3 and PUD R-4 is permissible. As the district court said,
Iowa has never protected housing that comes with a permanent hitch and axles. To the extent mobile homes come with permanent hitches and axles, they have never been a protected form of housing in Iowa and were, in fact, specifically excluded from protected status.
We affirm the district court's judgment.
IV. Conclusion
Section 414.28A requires land-leased communities that are composed of manufactured homes be treated equally to similar communities composed of site-built housing. Manufactured homes means foundation-ready prefabricated homes. The statute does not apply to mobile homesthe kind of housing with hitches, wheels, and/or axles. Thus, Asbury may limit mobile home parks to high density PUD zoning districts.
AFFIRMED.
All justices concur except APPEL, J., who takes no part.
NOTES
[1] A line from the ever-witty Chief Judge Alan Pearson's decision upholding Asbury's city zoning ordinance. Bahl v. City of Asbury, No. CVCV053776, slip op. at 4 (D.Iowa Sept. 13, 2004).
[2] We use the term "prefabricated home" because the parties disagree on the meaning of "mobile home" and "manufactured home."
[3] In the current action, the district court noted "it appears that the Supreme Court [in Bahl I] misread the definition of `mobile home' under the city zoning ordinance." However, we need not revisit that ordinance because this appeal concerns Asbury's revised ordinance, which clearly distinguishes between "mobile homes" and "manufactured homes."
[4] Asbury defines a "mobile home park" as a "tract of land upon which two (2) or more occupied mobile homes are harbored, either free of charge or for revenue purposes, whether or not site-built homes or manufactured homes are also in the same development site. . . ."
[5] A PUD is a district described as encouraging flexible and innovative design in the development of an appropriate site. PUDs are not typically subject to normal zoning restrictions. Instead, the project is negotiated between the developer and the city on a case-by-case basis.
[6] All further references to the Iowa Code are to the 2003 version.
[7] Under section 414.28,
A city shall not adopt or enforce zoning regulations or other ordinances which disallow the plans and specifications of a proposed residential structure solely because the proposed structure is a manufactured home. However, a zoning ordinance or regulation shall require that a manufactured home be located and installed according to the same standards, including but not limited to, a permanent foundation system, set-back, and minimum square footage which would apply to a site-built, single family dwelling on the same lot, and shall require that the home is assessed and taxed as a site-built dwelling. . . . When units are located outside a manufactured home community or mobile home park, requirements may be imposed which ensure visual compatibility of the permanent foundation system with surrounding residential structures.
[8] In Bahl I, we said "the Asbury zoning ordinance contravenes section 414.28A by relegating `mobile home parks,' not all condominium-type communities, to R-4 zoning districts." Bahl I, 656 N.W.2d at 345 (emphasis added). We used the term "mobile home parks" only because that was the term Asbury used in its zoning ordinance in effect at the time of the previous litigation. According to Asbury, under its prior zoning ordinance manufactured homes (i.e. the foundation-ready kind) were included within its broad definition of "mobile homes." In contrast to the prior zoning ordinance, Asbury's current ordinance treats "mobile homes" and "manufactured homes" as mutually exclusive. We did not imply in Bahl I that prefabricated homes with hitches, wheels, and/or axles are protected under section 414.28A. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2399167/ | 394 S.W.2d 523 (1965)
Arturo Galvan ALEJANDRO, Appellant,
v.
The STATE of Texas, Appellee.
No. 38297.
Court of Criminal Appeals of Texas.
October 13, 1965.
*524 Carter, Callender & Onion, by Leo Dougherty, San Antonio (on appeal only), for appellant.
James E. Barlow, Dist. Atty., John G. Benavides, Rudolph Georges, Earl C. Hill and Raymond A. Wietzel, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for robbery by assault; the punishment, enhanced under Art. 62, Vernon's Ann.P.C., by reason of a prior conviction for an offense of like character, life imprisonment.
The state's evidence shows that the prosecuting witness, Roman N. Pena, with his brother, owned and operated a supermarket located at the corner of Barrett and Nogalitos Streets in the city of San Antonio. On the night of July 7, 1964, a masked bandit entered the store and, at the point of a gun, robbed the injured party of approximately $250 in money. After obtaining the money, the bandit left the store and as he walked by a window he removed the mask, which permitted the injured party to see his face. A two-tone dark and light green Plymouth automobile was then seen to leave from the rear of the building. Some thirty minutes after the robbery, the injured party, while at the police headquarters, identified a picture of the man who had robbed him and two weeks later identified appellant at a police lineup as the person. He also positively identified appellant at the trial as the guilty party.
It was further shown that some fifteen minutes after the robbery, appellant was observed, by Officer Manuel Ortiz, driving a 1954 green two-tone Plymouth automobile on Hamilton Street. Officer Ortiz testified that when he drove up beside the Plymouth and told appellant to stop "he took off" at a high speed and the officer gave chase. During the chase, Officer Ortiz fired at the Plymouth, hitting it once in the trunk. After being pursued for some distance at a speed up to 75 miles per hour, the Plymouth came to a stop at the intersection of Chihuahua Street and Apache Creek. Appellant jumped out and ran off. Six blocks from where the Plymouth was abandoned a .22 calibre pistol wrapped in a mask was found at a point where Elvira Street deadended with Apache Creek. The mask was identified by the injured party as similar to the one worn by appellant at the time of the robbery.
*525 The prior alleged conviction of appellant for the offense of robbery was stipulated by the parties.
Appellant did not testify or offer any evidence in his behalf.
We find the evidence sufficient to support the judgment of conviction.
Appellant predicates his appeal upon certain informal bills of exception.
Complaint is first made to the admission in evidence of the photograph (state's exhibit #1) which the prosecuting witness testified he identified at the police station shortly after the robbery as being of the man who had robbed him, over appellant's objection that it resolved no disputed issue in the case, was harmful and prejudicial to him, and was an attempt upon the part of the state to bolster the witness's testimony.
The record reflects that the photograph was not admitted in evidence until after the appellant, on cross-examination of the prosecuting witness, had gone into the details of his identification of the guilty party from the photograph. Under the record, the photograph was admissible on the issue of appellant's identity and the court did not err in admitting it in evidence.
Complaint is also made to the admission in evidence of the mask (state's exhibit 7) found by the officers, over appellant's objection that it had not been connected with him and for the further reason that it was an attempt to bolster the testimony of the complaining witness.
The record reflects that before the mask was admitted in evidence, it was identified by the prosecuting witness as one similar to that worn by the robber on the night in question. Appellant's objection to the evidence went to its weight rather than its admissibility, and we perceive no error in the court's ruling.
By informal bill of exception #3, appellant complains of the court's action in permitting Officer Ortiz to relate that in his pursuit of appellant on the night in question, appellant operated his automobile at the high rate of speed, over the objection that it constituted proof of an extraneous offense.
The evidence of appellant's flight was clearly admissible, and the fact that the circumstances of such flight showed the commission of another offense did not render it inadmissible. Cox v. State, 170 Tex.Cr. App. 128, 338 S.W.2d 711.
In his brief, appellant insists that he was denied a fair and impartial trial by reason of certain actions and remarks made by the trial judge during the course of the trial.
An examination of the record reflects that no objection was made by appellant to any act or remark of the court of which he now complains. Such contention is not properly presented for review.
Appellant also contends that he was denied a fair and impartial trial because the jury, during their deliberations, discussed his failure to testify.
No claim of jury misconduct was made by appellant in his motion for new trial and such claim is made for the first time on appeal. In support thereof, appellant has attached to his brief an affidavit of one of the jurors who served in the case.
The claim of jury misconduct, not having been raised by appellant in his motion for new trial, will not be considered by this court on appeal. Wilson v. State, 121 Tex. Crim. 250, 53 S.W.2d 43; Williams v. State, Tex.Cr.App., 219 S.W.2d 688. Also, we cannot consider the affidavit attached to appellant's brief. Lavan v. State, Tex.Cr.App., 363 S.W.2d 139.
The judgment is affirmed.
Opinion approved by the court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2399170/ | 394 S.W.2d 701 (1965)
Jerry SHAW, Appellant,
v.
A. L. (Curly) MILLER et al., Appellees.
No. 14751.
Court of Civil Appeals of Texas, Houston.
October 28, 1965.
*702 Robert H. Cowie, Houston, for appellant.
Sears & Burns, Robert L. Burns, Houston, for appellee A. L. (Curly) Miller.
BELL, Chief Justice.
This is an appeal from a judgment of the trial court dismissing appellant's petition for a writ of injunction, it being of the view that it was without jurisdiction.
Appellant filed his petition against Mrs. M. H. Westerman, City Secretary of the City of Houston, and A. L. (Curly) Miller. In his petition he alleges that he has filed as a candidate for the office of Councilman, District B, of the City of Houston in the general election to be held November 20, 1965. The only other person who filed as a candidate for such office is Mr. Miller. It is then alleged that Mr. Miller is not entitled to have his name placed on the ballot because he was an opposed candidate for the same position at the general election held by the City of Houston November 16 and December 10, 1963, and that he wholly failed to comply with Articles 14.08(b) and 14.08 (f), V.A.T.S., as amended, which were in effect on the dates of said 1963 elections and which are in effect now. Section 14.08(b) requires such a candidate to file a sworn statement of all loans, gifts, etc., received by him in behalf of his candidacy. One shall be filed at a specified time before the election and another one must be filed within 10 days after the election. Article 14.08 (f) prescribes the form of the supporting affidavit and provides with what officers it shall be filed. It is then alleged that since Mr. Miller wholly failed to comply with these articles he thereby forfeited his right to have his name placed on the ballot as a candidate in the election to be held November 20, 1965, by reason of the provisions of Article 14.08(h), V.A.T.S. This latter section reads as follows: "Any candidate failing to file such sworn statement at the time provided or swearing falsely therein shall forfeit his right to have his name placed upon the ballot at any subsequent primary, special, or general election." Prayer is for an injunction enjoining Mrs. Westerman from including Mr. Miller's name in the drawing of candidates for positions on the ballot and from in any way causing Miller's name to be placed on the ballot. Mr. Shaw prayed that Mr. Miller be enjoined from doing any act, except through court action, attempting to have his name placed on the ballot.
In the trial court and here appellees assert the district court has no jurisdiction to grant injunctive relief but the only remedy available to prevent Mr. Miller's name from being placed on the ballot is through quo warranto brought by the State of Texas through its attorney general, or the proper District or County Attorney. The basis of this contention is the language of Article 14.09, V.A.T.S. This article in substance provides that proceedings by quo warranto to determine the right of any candidate alleged to have violated any provisions of Chapter Fourteen to have his name placed on the primary or general election ballot may be instituted in the district court by any citizen who may be entitled to vote for or against any candidate charged in such *703 proceeding with any such violation. Appellees say this is the exclusive remedy.
Appellant contends this is not the exclusive remedy, but Article 1.07, V.A.T.S., authorizes him as an interested party, that is, as a candidate for the same office, to maintain this suit for injunctive relief in the district court. Too, he asserts Article V, Section 8 of the Constitution, Vernon's Ann.St. and Article 4642, Vernon's Ann.Tex.Civ.St., give the district court jurisdiction.
The trial court sustained appellees' position and dismissed the case. We are of the view that the trial court correctly dismissed the case.
We must assume that 14.08(h) is applicable to the situation before us since the case comes to us purely on the question of whether the trial court was correct in holding it had no jurisdiction to try that issue in a suit brought only by appellant. We should not be understood as expressing an opinion as to whether it is applicable.
It is well established that a quo warranto proceeding under 14.09 cannot be maintained by an individual alone but must be brought by the State through its proper official. Staples v. State, 112 Tex. 61, 245 S.W. 639; State ex rel. Candler v. Court of Civil Appeals, 123 Tex. 549, 75 S.W.2d 253. Therefore, appellant could not alone maintain this suit under Article 14.09.
Appellant urges he may, however, sue alone as an interested party under Article 1.07. We are unable to agree. That article authorizes injunctive relief to enforce the provisions of Articles 1.05 and 1.06, V.A.T.S. These two articles deal with the eligibility of a candidate to hold office and provide in substance that one who is ineligible to hold office shall not be entitled to have his name placed on the ballot or have his vote counted. There is no contention here that Mr. Miller is not eligible to hold office. It is merely contended he is not entitled to have his name listed on the ballot. Article 14.08(h) does not provide that a person violating the provisions of Article 14.08 with regard to filing accounts shall be ineligible to hold office. It merely provides he forfeits his right to have his name appear on the ballot. We feel we are supported in such construction by the case of Thorp v. Murchison, 259 S.W.2d 614 (Tex.Civ.App.), no writ hist. Therefore, appellant's right to maintain suit under 1.07 is restricted to keeping the name of a proposed candidate off of the ballot when such person is ineligible to hold the office he seeks.
Article 14.09 is the statute to be employed where a violation of the provisions of Chapter Fourteen are charged in the suit. This chapter deals with the giving and reporting of campaign funds and their expenditure. This article has been held to provide the exclusive remedy for enforcing Article 14.08(h). Owen v. Longuemare et al., 268 S.W.2d 701 (Tex.Civ.App.). We are in agreement with that holding.
We deem Article 4642, V.A.T.S., and Article V, Section 8 of the Constitution inapplicable.
There is yet another reason why the case should have been dismissed, though such was not urged below. It is urged here as a reason we should affirm the judgment of dismissal. The cause was moot because it could not be disposed of prior to the time for the printing of ballots and the commencement of absentee voting. The suit was filed October 25, 1965. The election is to be held November 20, 1965. The time to begin absentee voting is November 1, 1965. Ballots must be printed in time to be available on that date. The trial and appellate process made available to the parties cannot be exhausted before that time. The cause is, therefore, moot and dismissal of the cause is proper. Sterling v. Ferguson, 122 Tex. 122, 53 S.W.2d 753; Thomason v. Seale, 122 Tex. 160, 53 S.W.2d 764; Polk v. Davidson, 145 Tex. 200, 196 S.W.2d 632; State ex rel. Cline v. Norris, 33 S.W.2d 850 (Tex.Civ.App.); State ex rel. Johnson v. *704 Otter, 379 S.W.2d 100 (Tex.Civ.App.), no writ hist.
Article 14.09 provides that a proceeding such as this shall be advanced and summarily heard and disposed of by the trial and appellate courts. While appellant proceeded improperly by injunction, we think this part of Article 14.09 applicable to any proceeding seeking to keep the name of a person off the ballot for allegedly violating Article 14.08(h). This gives us authority to refuse the filing of a motion for rehearing. Therefore, no motion for rehearing will be entertained. State ex rel. Candler v. Court of Civil Appeals, 123 Tex. 549, 75 S.W.2d 253.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920525/ | 471 Pa. 112 (1977)
369 A.2d 1220
Sheldon FLAME, Appellant at 368,
v.
OAK LANE SHOPPING CENTER, INC., Appellant at 473.
Supreme Court of Pennsylvania.
Argued January 19, 1976.
Decided February 28, 1977.
*113 David Kanner, Philadelphia, for appellant at No. 368 and appellee at No. 473.
Butera & Detwiler, Clarke F. Hess, King of Prussia, for appellant at No. 473 and appellee at No. 368.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
*114 OPINION OF THE COURT
POMEROY, Justice.
This case involves a dispute between a landlord and tenant as to the scope and application of a fire clause in their written lease. The tenant has appealed from the trial court's refusal to order damages in addition to a restoration of the damaged building, and the landlord has appealed from the requirement of the decree that he restore the leased premises to a tenantable condition.[1]
The lease in question was made by Oak Lane Shopping Center, Inc., the landlord and appellant at No. 473 [herein "the landlord"] to Sheldon Flame, the tenant and appellant at No. 368 [herein "the tenant"]. The ten year term of the lease began on May 15, 1968 and will end on May 15, 1978.
On February 1, 1974, a fire virtually destroyed the shop on the leased premises in which the tenant conducted his business. On May 1, 1974, the landlord sent the tenant a registered letter, reciting the opinion of one Robert Rosen, an engineer, that the store could not be repaired within 120 days, and announcing the election of the landlord to terminate the lease pursuant to the terms of Section 15 thereof. That section provided as follows:
"FIFTEEN. If the demised premises are damaged by fire or other insured casualty, not occurring through any act or failure to act on the part of Tenant, its agents, servants or employees, and such damage can be repaired within 120 days of the date of such occurrence; this lease shall remain in full force and effect, and the Landlord shall promptly repair such damage at its expense, and in that event, there *115 shall be a proportionate abatement of rent for so much of the demised premises as may be untenantable during the period of repair or restoration. If in the opinion of a registered Architect or Engineer appointed by the Landlord the demised premises are damaged by fire or other casualty to such an extent that the damage cannot be repaired or restored within 120 days from the date of such occurrence, . . . this lease shall terminate at the option of Landlord upon written notice given thirty (30) days after such occurrence."
Promptly following his receipt of the notice of cancellation, the tenant brought this action in equity. The complaint prayed that the purported termination of the lease be rescinded, that the landlord be ordered to repair the premises, and that the tenant be awarded damages for his profits lost during the period when the landlord had unjustifiably failed in his duty to repair.
After a trial the chancellor ordered the landlord to repair the premises within 120 days from the date his decree should become final and, in addition, ordered that the lease be extended beyond its stated expiration date so as to take account of the delay in effectuating the repairs.[2] The court refused to award damages, concluding that they were inappropriate under the circumstances.
Together, the appeal and cross-appeal in this case challenge the legal basis of the lower court's grant of relief on the one hand, and on the other hand, present the question whether the relief awarded was adequate.[3] The basis for the trial court's opinion is its interpretation *116 of the lease, drafted by the landlord, as imposing on the landlord
"the duty of repairing the premises if it can be accomplished within one hundred twenty days, and [that] the opinion of the registered architect or engineer cited in Section Fifteen must be a good faith judgment grounded on fact and not mere conjecture."
The trial court then held implicitly that Rosen's opinion in the instant case had not been made in good faith because, as the court found, it had been based on mere conjecture and alleged facts the falsity of which could have been readily determined. That Rosen's opinion had been based on false assumptions about crucial facts was adequately demonstrated by the tenant's expert evidence at trial. This proof, coupled with evidence of Rosen's past business relations with the landlord, caused the chancellor to conclude his opinion below as follows:
"Allowing the lease contract dealing with an established business to terminate on the basis of an irreparably tarnished opinion is too harsh a result for the conscience of the Court to contemplate. We cannot permit the demise of the plaintiff's trade to be based upon an opinion that borders the thin line between bad faith and incompetence."
We agree with the chancellor's interpretation of Section 15 of the lease as including the requirement that the professional engineer's opinion be made in good faith. The principle that the opinion of a person who is not party to a contract as to the adequacy of a performance, which opinion is by the terms of the contract determinative of some rights of the parties, must be an objective opinion made in good faith, seems self-evident and is well established in contract law. Restatement of Contracts, Section 303 (1932); Kramer v. Philadelphia Leather Goods Corp., 364 Pa. 531, 73 A.2d 385 (1950). In the context of a lease, the Commonwealth Court has recently applied a similar principle, Commonwealth Department *117 of Property and Supplies v. Berger, 11 Pa. Cmwlth. 332, 213 A.2d 100 (1973). It was there held that a party could not reject a performance as unsatisfactory where his dissatisfaction is capricious or in bad faith. Where, as in the instant case, it is the function of a third person to give an expert objective opinion as to a technical problem, adherence to the good faith standard is equally necessary and perhaps more readily susceptible to judicial decision than where the only standard for the inadequacy of a performance is the satisfaction of a party.
Nor does Section 15 by its terms require that the period of time during which the landlord is performing his duty to repair a fire-damaged structure should be excluded from the computation of the stated term of the lease. Rather, it merely allows the rent to be abated until the restoration is completed. The chancellor's order, which extended the term of the lease by a period approximately equal to the period during which the landlord had failed to perform his duty to repair, was a reasonable application of Section 15 in the circumstances and will not be disturbed by this Court.
As to the tenant's claim for damages, the chancellor concluded that they would not be "appropriate if defendant presently undertakes to restore the premises." In so concluding, we think the chancellor fell into error. While the chancellor's decree granting relief was proper and sound as far as it went, it did not afford the plaintiff redress for any injury which resulted from the landlord's failure to repair the leased premises within the period of one hundred and twenty days allowed him by the lease agreement.
Decree affirmed subject to modification to include such damages as may be proved at a further hearing, and case remanded for further proceedings consistent with this opinion.
Each party to bear own costs.
NOTES
[1] The appeal in this case was filed on April 4, 1975 under the Act of July 31, 1970, P.L. 673, 17 P.S. § 211.202, before the effective date of our Supreme Court Rule No. 73, on April 7, 1975. That rule, which has since been superseded by Pa.R.A.P. 702, transferred jurisdiction of equity appeals to the Superior Court.
[2] The chancellor decreed that the duration of the extension should be the period from June 1, 1974 until date of the completion of repairs.
[3] The landlord also raises several procedural points, all of which we find to be without merit. Because he failed to file a preliminary objection raising the question whether the plaintiff had an adequate remedy at law, that issue is waived and we will not now consider it. Pa.R.C.P. 1509(c). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920543/ | 107 B.R. 194 (1989)
Mildred L. FIELDS and Donald Fields, Plaintiffs,
v.
Loren P. DEMINT, Defendant.
No. 89-0375-CV-W-9.
United States District Court, W.D. Missouri, W.D.
September 27, 1989.
James P. Cannon, Charles L. House, Kansas City, Mo., for plaintiffs.
John L. Williams, Fields, Brown, Williams & Clark, Kansas City, Mo., for defendant.
ORDER DISMISSING CASE
BARTLETT, District Judge.
On April 21, 1989, Mildred L. Fields and Donald Fields filed a complaint against Loren P. Demint alleging fraud, misappropriation of assets and securities fraud. They were unaware that defendant had filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the District of Nevada on February 24, 1989. Defendant's Exhibit A. On June 5, 1989, defendant filed a motion to dismiss plaintiffs' complaint due to lack of personal jurisdiction, subject matter jurisdiction and failure to state a claim upon which relief can be granted. Defendant's motion is based on the application of the automatic stay provision of the bankruptcy code to the facts of this case. Plaintiffs do not contest that their action must be stayed pursuant to 11 U.S.C. § 362(a) but request that I retain jurisdiction during defendant's bankruptcy proceedings.
The automatic stay provision of the bankruptcy code provides that a filed bankruptcy petition
operates as a stay, applicable to all entities, of(1) the commencement or continuation, including the issuance of process of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.
The automatic stay applies in this case because plaintiffs' cause of action against defendant arose more than three years before he filed his bankruptcy petition. Complaint at 6.
Plaintiffs assert that they received no notice of defendant's bankruptcy filing. However, the automatic stay becomes effective without actual notice. "The filing of the petition operates as notice to the world." Matter of Carter, 16 B.R. 481 (W.D.Mo.1981) (citations omitted).
The automatic stay becomes effective on the date the bankruptcy petition is filed. 2 Collier on Bankrtupcy § 362.11 (1989); United Northwest Federal Credit Union v. Arens, 233 Kan. 514, 664 P.2d 811, 813 (1983). Importantly, defendant's bankruptcy petition was filed before the filing of plaintiffs' complaint in this court. Courts have held that the automatic stay does not deprive a court of jurisdiction over a claim which was filed against a debtor prior to his filing of bankruptcy; all proceedings against the debtor are then merely suspended. Saathoff v. J.B.H. and Associates, Inc., 203 Neb. 356, 278 N.W.2d 762, 769 (1979); McKiever v. King and Hatch, Inc., 366 So. 2d 264 (Ala.1978). However, *195 the filing of a claim after the filing of a bankruptcy petition is in violation of the automatic stay and void. Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.1982); In re Coleman American Companies, Inc., 26 B.R. 825, 831 (Bankr.D.Kan.1983); In re Joe DeLisi Fruit Co., 11 B.R. 694 (Bankr.D.Minn. 1981); United Northwest Federal Credit Union v. Arens, 664 P.2d at 813.
Plaintiffs argue that I should retain jurisdiction over this case during defendant's bankruptcy proceedings because their cause of action is for a non-dischargeable debt, the underlying cause of action arose in this district, plaintiffs reside in this district and defendant was served with process only after being traced to Nevada. Nonetheless, because the filing of their claim is void and without effect, I cannot alleviate plaintiffs' potential inconvenience and hardship by retaining jurisdiction over this case.
Accordingly, it is hereby ORDERED that pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, plaintiffs' complaint is dismissed due to lack of subject matter jurisdiction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920567/ | 245 Pa. Super. 298 (1976)
369 A.2d 412
COMMONWEALTH of Pennsylvania
v.
Richard G. YOUNG, Jr., Appellant.
Superior Court of Pennsylvania.
Submitted June 14, 1976.
Decided November 22, 1976.
*299 Edward F. Browne, Jr., Assistant Public Defender, Lancaster, for appellant.
Michael H. Ranck, Assistant District Attorney, and D. Richard Eckman, District Attorney, Lancaster, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
PRICE, Judge:
On March 21, 1975, appellant entered guilty pleas to nine counts of Burglary, six counts of Theft by Unlawful Taking or Disposition and four counts of Criminal Conspiracy. He was sentenced to pay a fine of $100 and to undergo imprisonment for not less than 1 1/2 nor more than 3 years on one count of Burglary, and to concurrent two year probationary sentences on all other charges. No direct appeal was taken from these sentences.
In July of 1975, appellant filed a Post Conviction Hearing Act[1] petition raising the following issues: introduction of a coerced confession into evidence, introduction into evidence of a statement obtained in the absence *300 of counsel at a time when representation is constitutionally required, infringement of the privilege against self-incrimination, denial of the right to representation by competent counsel, unlawful inducement of a guilty plea and obstruction by state officials of his right to appeal. In this petition, appellant also requested that a lawyer be appointed to represent him. Pursuant to this request, counsel was appointed in an order dated July 31, 1975. In October, 1975, appellant filed a second PCHA petition, with the only additional allegation being the abridgement of a right guaranteed by the constitution or laws of this state or by the constitution or laws of the United States. The lower court dismissed both of appellant's petitions, refusing to grant a hearing. It is from this disposition that the instant appeal is taken.
Most of the claims made by appellant in his petitions are "without a trace of support either in the record or from other evidence submitted by the petitioner." Act of January 25, 1966, P.L. (1965) 1580, § 9 (19 P.S. § 1180-9). Two of appellant's arguments, however, alleged facts which, if proved would entitle him to relief. First, appellant asserts the ineffectiveness of his trial counsel in that he misled appellant into believing that, if he pleaded guilty, he would be sentenced to no more than a county jail sentence or time already served. Appellant's second allegation, closely intertwined with the first, is that his guilty plea was unlawfully induced. He argues that the plea was based on his assumption of a sentencing agreement, and thus was not knowing and intelligent. If the sentencing judge, during the plea colloquy, had asked appellant the questions suggested by our Supreme Court in Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971), both of appellant's contentions could have been obviated. The court stated:
"`By inquiry of the prosecuting attorney and defense counsel, the court should determine whether the tendered plea is the result of prior plea discussions and a *301 plea agreement, and, if it is, what agreement has been reached. If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court. The court should then address the defendant personally and determine whether any other promises or any force or threats were used to obtain the plea.' ABA Project on Minimum Standards for Criminal Justice, Pleas of Guilty § 1.5 (Approved Draft 1968)." Id. at 520, 276 A.2d at 528. (emphasis added)
A defendant who denies, at sentencing, the existence of any sentencing agreement or other promises influencing his plea will not be heard, on appeal, to assert such agreements or promises as a basis for a claim of ineffective assistance or an unlawfully induced plea. See Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976).
The plea colloquy in the instant case, however, contains only two references to sentencing.
"Mr. Eckman (District Attorney): . . . there is no recommended plea in this one." [N.T. 2]
"The Court: Are you aware that the Court is not bound by the there isn't any
Mr. Eckman: No recommended plea." [N.T. 5]
No reply was elicited from the defendant in either of these instances, and he was never asked whether his plea was based on a sentencing agreement or other promises. This issue must be clarified at appellant's post-conviction hearing.
There is an additional consideration which mandates a post-conviction hearing in this case. Our Supreme Court has stated that "in this jurisdiction a first post-conviction hearing petition should not be dismissed where the petitioner is indigent and has requested counsel, *302 without affording him representation in that proceeding, Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); (further citations omitted)." Commonwealth v. Fiero, 462 Pa. 409, 412, 341 A.2d 448, 449 (1975). The court further held that "[c]learly this rule is not limited to the mere naming of an attorney to represent an accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation." Id. at 413, 341 A.2d at 450. The record before us indicates that appellant filed two PCHA petitions, both pro se. It does not appear that counsel, appointed by the lower court's order of July 31, 1975, took any action whatsoever. Appellant's pro se petitions were not amended, there was no oral argument before the petitions were dismissed and counsel did not file a supporting brief. Under virtually identical circumstances, the court in Fiero found that "[t]hese facts compel the conclusion that the proceeding was in fact uncounselled." Id. at 413, 341 A.2d at 450.
The order of the lower court dismissing appellant's Post Conviction Hearing Act petition without a hearing is reversed, and a hearing is to be conducted in accordance with this opinion.
NOTES
[1] Act of January 25, 1966, P.L. (1965) 1580, § 1, (19 P.S. § 1180-1 (Supp. 1976-77)) et seq. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920596/ | 246 Pa. Super. 140 (1977)
369 A.2d 850
COMMONWEALTH of Pennsylvania
v.
ALJIA DUMAS PRIVATE DETECTIVE AGENCY, INC., Appellant.
Superior Court of Pennsylvania.
Argued June 16, 1976.
Decided February 18, 1977.
*142 Anthony J. DeFino, Philadelphia, for appellant.
Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
HOFFMAN, Judge:
On June 21, 1976, the lower court denied appellant's application for reissuance of its license to do business under the Private Detective Act (the "Act" hereinafter).[1] Appellant contends that the lower court considered improper information in arriving at its decision. We agree and remand for further consideration.
Aljia Dumas has continuously run the detective agency which provides security for many Philadelphia businesses, since he opened the unincorporated business in October, 1969. In 1972, Dumas applied for and was granted a renewal of his license. Dumas has conducted business as a corporation since July 23, 1973. On August 14, *143 1974, Dumas filed an application in the court of common pleas for a second renewal of the license.
Upon notification that the appellant sought renewal of the license, the Philadelphia District Attorney's Office began an investigation of appellant pursuant to the Act. 22 P.S. § 15. As a result, the Commonwealth entered its opposition to the renewal because appellant failed to submit monthly reports of its hiring and firing as requested by the District Attorney's Office and because appellant had hired a detective who had been convicted of a felony. See 22 P.S. § 23.
On June 9, 1975, and on two subsequent days in July, 1975, the lower court held a hearing to determine the basis for the Commonwealth's opposition to the renewal. The court concluded that all of the facts of record "evidence[d] a manifest lack of good character on the part of petitioner." The court relied on several factors in reaching that conclusion: "[T]he [appellant] failed to file monthly reports, on the hiring and firing of employees, as requested by the District Attorney's office pursuant to Section 5(a) of the Act. That section authorizes the District Attorney to enforce the Private Detective Act; as part of its enforcement powers, section 5 empowers the District Attorney to require licensees to provide information about the conduct of their business. The Philadelphia District Attorney's Office requires every holder of a private detective license to provide monthly reports on the hiring and firing of employees." As will be discussed infra, the lower court erroneously relied on the failure to file monthly reports with the district attorney's office. Although we recognize that the court's decision is discretionary, we conclude that the court relied on at least one erroneous, but significant factor; therefore we must remand the case because we do not know precisely how that factor contributed to the court's ultimate decision to deny the license.
As noted above, the district attorney opposed reissuance of the license on several grounds. The district attorney *144 stated in its brief that "Section 5 of the Act . . . authorizes the district attorney to enforce the Private Detective Act. As part of its enforcement powers, Section 5 empowers the district attorney to require licensees to provide information about the conduct of their business.
"The Philadelphia District Attorney's Office requires every holder of a private detective license to provide monthly reports on the hiring and firing of employees. . . . Although the District Attorney's Office notified the Dumas Agency of its obligation to provide such reports several times . . ., the agency failed to do so for over two years. . . ." Appellant does not deny that it did not file the reports in a timely fashion. Similarly, the district attorney concedes that the reports were eventually filed. That is not the real issue in the case. Our inquiry is whether failure to file such reports can be a basis for denial of appellant's license.
The Act provides that "[t]he district attorneys of the various counties shall have the power to enforce the provisions of this act, and, upon complaint of any person, or on his own initiative, to investigate any violation thereof, . . . . Each such applicant or licensee shall be obliged, on request of the district attorney, to supply such information as may be required concerning his or its business, business practices or business methods, or proposed business practices or methods." 22 P.S. § 15(a). The Commonwealth contends that, by implication, a failure to comport with the District Attorney's request is a sufficient basis for denial of the renewal of the license. However, subsection (b) provides that "[f]or purpose of enforcing the provisions of this act and in making investigations relating to any violation thereof, and for the purpose of investigating the character, competency and integrity of the applicants. . ., the district attorney . . . shall have the power to subpoena and bring before the officer or person *145 so designated any person in the county, and require the production of any books or papers which he deems relevant to the inquiry, . . . . Any person duly subpoenaed who fails to obey such subpoena without reasonable cause, . . . shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine of not more than five hundred dollars ($500) or to undergo imprisonment for not more than one (1) year, or both." 22 P.S. § 15(b). It is clear from the record and admitted by the Commonwealth that appellant did eventually provide such records. Thus, the Commonwealth was not required to use the enforcement provisions prescribed by the Act. It is the view of this Court that it was erroneous for the lower court and the Commonwealth to base the renewal decision on a "violation" of the cited statutory provision. That is, the appellant did provide the requested documents. Further, sub-section (b) provides that the way to enforce the Act is not denial of a license, but the issuance of a subpoena. A failure to produce documents may lead to a fine of $500 or to a term of imprisonment. The Act does not provide for the additional punishment of license denial or revocation.
Obviously, our task is to determine the intent of the legislature in providing a specific remedy for failure to provide information. See Act of November 25, 1970, P.L. 707, No. 230, added 1972, Dec. 6, P.L. 1339, No. 290, § 3; 1 Pa.C.S. § 1921. The Commonwealth would have us infer that failure to file reports was a valid basis for denial of the license, despite the more limited authority for enforcing the specific statutory provision. However, we do not have the power to create that additional authority if "the words of [the] statute are clear and free from all ambiguity." Act of November 25, 1970, supra, 1 Pa.C.S. § 1921(b). The legislature has circumscribed the lower court and made clear the penalty for failing to file information with the district attorney. We will not fabricate out of whole cloth an additional *146 remedy when the legislature has clearly expressed its intent.
Our disposition of the instant case does not require that we reach the constitutional issue raised by appellant that the Act violates due process. The legislature has mandated that we construe statutes to avoid a violation of the United States Constitution or of our Constitution. Act of November 25, 1970, supra, 1 Pa.C.S. § 1922 (3). If we were to affirm the lower court, we would have to decide first whether appellant's license was a constitutionally protected property interest. See, Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). If we were to conclude that it is, we would have to decide whether the Act provided appellant with adequate notice of what actions on its part could lead to denial of its license. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972).
The lower court's opinion makes clear that it relied on the failure to file reports in exercising its discretion in denying the license. It is possible that the court would have reached the same conclusion based on other evidence in the record. The court did not provide a complete formula by which it reached its result; thus, we cannot substitute our evaluation of the record for that of the lower court. Indeed, it is a basic premise of appellate review that we cannot substitute our judgment for that of the lower court on a diminished record and, that in such instances, we must remand for reconsideration of the case. Cf. McGee v. United States, 462 F.2d 243 (2d Cir. 1972); Commonwealth v. Lockhart, 223 Pa. Super. 60, 296 A.2d 883 (1972).
Therefore, we remand for further consideration by the lower court consistent with this opinion.
VAN der VOORT, J., concurs in the result.
*147 PRICE, J., files a dissenting opinion in which JACOBS, J., joins.
SPAETH, J., dissents for the reasons stated by the lower court.
PRICE, Judge, dissenting:
This case raises the question of what information may be considered in a hearing on an application for renewal of a private detective's license. The majority holds that evidence of a dereliction in filing reports on hiring practices, required by the district attorney's office, may not be a factor in the court's decision even though the district attorney is statutorily authorized to require such reports.[1] I dissent.
The legislature has not specifically indicated that a court considering an application for renewal must ignore evidence of certain violations. The fact that the legislature authorized a specific remedy for violation of the duty to supply information to the district attorney's office does not render such a violation irrelevant. Indeed, in a hearing to determine whether a private detective's license should be renewed, I can conceive of no evidence more relevant than violations of the licensing statute.
The case before us would be significantly different if the lower court had refused to renew appellant's license solely based on appellant's failure to comply with the district attorney's requests. However, that is not the issue before us. We must decide whether a failure to supply requested information can be one factor in a lower court's decision to deny an application for renewal. Absent a specific prohibition, I believe that all violations of *148 the statute should be considered in determining whether to renew an applicant's license.
At the hearing below, the evidence revealed that appellant knowingly hired a convicted felon in violation of § 13(a) of the Private Detective Act of 1953. The employee, en route to his job, in uniform and carrying a handgun, stopped at his girlfriend's home. He and his girlfriend began to argue. During the argument, the employee accidentally shot and killed his girlfriend's mother. It is not idle speculation to wonder if this death would have been prevented had appellant complied with the law. The majority contends, however, that appellant's failure to obey the law should have no bearing on his application for renewal.
I would hold that all violations of the Private Detective Act of 1953 and the Lethal Weapons Training Act are admissible for the court's consideration at a license renewal hearing. Then, based on the evidence adduced at the hearing, the grant or denial of renewal is within the court's discretion. In this case, the Commonwealth proved that appellant was derelict in supplying the district attorney with the requested reports and that appellant knowingly hired a convicted felon. Therefore, the lower court's denial of appellant's renewal petition was not an abuse of discretion.
Because the other contentions raised by appellant are without merit, I would affirm the order of the lower court.
JACOBS, J., joins in this dissenting opinion.
NOTES
[1] Act of August 21, 1953, P.L. 1273, § 1 et seq.; 22 P.S. § 12 et seq.
[1] See Section 5 of the Private Detective Act of 1953, Act of August 21, 1953, P.L. 1273 (22 P.S. § 15). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1418016/ | 589 P.2d 408 (1979)
STATE of Alaska, Petitioner,
v.
Edward A. DANIEL, Respondent.
No. 3485.
Supreme Court of Alaska.
January 19, 1979.
*409 Rhonda F. Butterfield and Richard J. Ray, Asst. Dist. Attys., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for petitioner.
Dick L. Madson, Cowper and Madson, Fairbanks, for respondent.
Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.
OPINION
RABINOWITZ, Justice.
We have granted the state's petition for review from an order of the superior court which suppressed evidence obtained as a result of a routine inventory search of Edward Daniel's automobile, subsequent to his arrest for the offense of driving while under the influence of intoxicants.
At approximately 3 a.m. on March 13, 1977, Alaska State Trooper Litera was investigating several accidents which had occurred in the parking lot of a Fairbanks nightclub. While in the course of his investigation, Trooper Litera observed an automobile, operated by Edward Daniel, plunge down a 25-foot embankment from the highway into the parking lot of the nightclub and strike two parked vehicles. Daniel emerged from his vehicle as Trooper Litera approached. According to the trooper, Daniel's breath smelled slightly of alcohol, his eyes were bloodshot and his speech was somewhat incoherent. Daniel had his motor vehicle registration but encountered some difficulty in locating and producing his operator's license. Trooper Litera requested Daniel to stand still while he went to the police car to obtain a notebook. Despite this request, Daniel returned to his car and started the engine. As the trooper again approached, Daniel emerged from his vehicle and locked it. Trooper Litera administered field sobriety tests and placed Daniel under arrest for operating a motor vehicle while under the influence of intoxicants.
According to the state's brief, Trooper Litera "decided that the defendant's vehicle must be impounded, pursuant to 13 AAC 02.350, since there was no one else in the vehicle."[1] Trooper Litera therefore requested another trooper to conduct an inventory *410 of the property in Daniel's vehicle.[2] When he arrived at the scene, Trooper McGinnis asked Daniel where the keys to the car were; Daniel replied that he had thrown them into the snow after locking the vehicle.
A private wrecker was summoned by one of the troopers. Trooper McGinnis remained with Daniel's vehicle in order to inventory its contents before the wrecker removed the vehicle to a private impound lot.[3] Trooper McGinnis testified that he did not know if Daniel's automobile was in gear, but that it had to be taken out of gear or have the drive shaft disconnected before the car could be towed. After the operator of the private wrecker opened the door of the Daniel vehicle, Trooper McGinnis entered the car and commenced taking an inventory. According to the state, the following events occurred:
From outside the vehicle, the trooper could see, on the back seat, a brown Samsonite briefcase with the top down and the latches open, facing toward the driver's side of the front seat. Trooper McGinnis lifted the lid of the briefcase. He saw a large plastic sack containing a green vegetable matter that appeared to be marijuana and an automatic pistol. In the file section in the lid of the briefcase, the trooper found a clear plastic sack containing a white powder. He put the lid down, exited the car, and radioed Sgt. Litera to return to the scene. When Sgt. Litera returned, Trooper McGinnis again lifted the lid of the briefcase to show Sgt. Litera. Sgt. Litera took possession of the briefcase, and instructed the wrecker operator and Trooper McGinnis to take the defendant's vehicle not to the commercial impound lot, but to the Alaska State Trooper garage to be locked up for safekeeping.
The briefcase and its contents were inventoried. The next day the troopers obtained a search warrant to search the rest of the car; however, no further evidence was found.[4]
In response to Daniel's motion, the superior court suppressed all the evidence which was discovered as a result of Trooper McGinnis' action in opening the briefcase.[5] The superior court found that there was no showing of any exigent circumstances "nor of any independent ground" to justify a waiver of the warrant requirement. Relying *411 explicitly on the California Supreme Court's decision in Mozzetti v. Superior Court, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 484 P.2d 84 (1971), the superior court rejected the state's inventory rationale, stating:
Even if the police were allowed to conduct an inventory search, there is no reason why closed containers, such as briefcases, need be [opened]. All that need be done is to catalog the briefcase together with the rest of the personal belongings of the car.[6]
We have granted review because the superior court's suppression order has, in effect, terminated the prosecution against Daniel.[7] Further, the legal issues involved are of such substance and importance as to justify deviation from normal appellate procedures by way of petition for review.[8] Also of significance to our decision to grant review is the fact that this court has not previously addressed the relationship between police inventory procedures and the guarantee of article I, section 14 of the Alaska Constitution against unreasonable searches and seizures.[9]
At the outset, we think it is important to articulate the precise issue which is before us. The state has conceded that Trooper McGinnis' search of the interior of the briefcase was not made incident to the lawful arrest of Daniel "because [he] had been removed from the scene prior to the time the wrecker operator unlocked" Daniel's vehicle as well as prior to the time Trooper McGinnis began his inventory. Additionally, the state concedes that the trooper lacked probable cause to search for evidence of a crime and that there was no need for the troopers to search the vehicle for their own physical protection.[10] The state's position is that inventory searches made pursuant to standard police procedures are "rebuttably presumed to be reasonable." The state further argues that such a rule would not preclude a court's finding that a particular "`inventory' search was, in fact, an illegal warrantless search in the guise of protecting impounded vehicles and their contents."[11]
Respondent Daniel views the state's concessions and the factual context in a somewhat different fashion. In addition to the concessions which we have alluded to, Daniel notes that the state has conceded he did not consent to a search of his vehicle "but in fact told the police he threw his keys in the snow to prevent them from entering the car;" that there was nothing in plain view which would permit seizure; and that the search was without a warrant.
The state conceptualizes the issue before us in the following manner:
The issue in this case is whether the particular inventory search, that is, the opening of the unlocked, unlatched, five-inch wide briefcase by the trooper pursuant *412 to standard inventory procedure mandated by regulation was reasonable.[12]
The state places primary reliance upon the United States Supreme Court's opinion in South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). In Opperman, the Supreme Court discussed federal constitutional limitations on inventory searches of motor vehicles which have been impounded by the police. Opperman's car had been illegally parked in a restricted zone. The police issued an overtime parking citation warning that the car would be towed if not moved and placed the ticket on the car's windshield at approximately 3 a.m. Later that day, the car was towed to a city impound lot. At the lot a police officer saw in plain view inside the car a watch and various other items of personal property. The door to the impounded vehicle was unlocked at the direction of the officer and, using a standard procedure and form, he inventoried the contents of the car, including the contents of the unlocked glove compartment. A plastic bag of marijuana was found in the glove compartment. The bag was seized and Opperman was subsequently arrested after he appeared at the police department to reclaim his property. Opperman's motion to suppress the evidence yielded by the inventory search was denied, and he was convicted and sentenced. The Supreme Court of South Dakota reversed the conviction based on its conclusion that the evidence had been obtained in violation of the Fourth Amendment prohibition against unreasonable searches and seizures. Thereafter, the United States Supreme Court granted certiorari and Chief Justice Burger, writing for a majority of the Court, reversed the decision of the South Dakota Supreme Court.
In Opperman, the Supreme Court based its rulings on the distinction the Court traditionally had drawn between automobiles and homes or offices, that is, that there is a lower standard applied to automobiles in Fourth Amendment cases. The Court stated that the reasons for this distinction are twofold.
First, the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible... . Besides the element of mobility, ... the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office.[13]
The rationale given for the lesser expectation of privacy is that the automobile is subject to continuing and pervasive governmental regulation, including registration and inspection, and that automobile travel is necessarily of a public nature.
In Opperman, the Supreme Court further observed that impoundment inventory procedures developed in response to three needs: the protection of the owner's property; the protection of the police against claims or disputes over allegedly stolen property; and the protection of the police from potential danger.[14] In light of the foregoing, Chief Justice Burger stated:
On this record we conclude that in following standard police procedures, prevailing throughout the country and approved by the overwhelming majority of courts, the conduct of the police was not `unreasonable' under the Fourth Amendment.[15]
*413 Justice Marshall dissented,[16] arguing that the distinction drawn by the majority between automobiles and homes or offices is not supported by the law. He stated that although some characteristics of the automobile have resulted in lesser privacy expectations and have allowed warrantless searches, the mere fact that an automobile is involved does not necessarily imply that the Fourth Amendment loses its vitality. More particularly, Justice Marshall stated:
[O]ur cases have consistently recognized that the nature and substantiality of interest required to justify a search of private areas of an automobile is no less than that necessary to justify an intrusion of similar scope into a home or office.[17]
Justice Marshall also found fault with the three needs which the majority stated supported the practice of inventory searches upon police impoundment. In his view, "if the owner of the vehicle is in police custody or otherwise in communication with the police, his consent to the inventory is prerequisite to an inventory search."[18] In the absence of explicit consent, Justice Marshall would require that:
[T]here must be specific cause to believe that a search of the scope to be undertaken is necessary in order to preserve the integrity of particular valuable property threatened by the impoundment, [and that] ... even where a search might be appropriate, such an intrusion may only follow the exhaustion and failure of reasonable efforts under the circumstances to identify and reach the owner of the property in order to facilitate alternative means of security or to obtain his consent to search.[19]
*414 We note that upon remand to the Supreme Court of South Dakota that court held the search was unconstitutional under South Dakota's constitution. The Supreme Court of South Dakota observed:
There can be no doubt that this court has the power to provide an individual with greater protection under the state constitution than does the United States Supreme Court under the federal constitution.[20]
The Court then held that:
[A] determination of reasonableness requires a balancing of the need for a search in a particular case against the scope of the particular intrusion.
... We now conclude that as a matter of protection under S.D.Const., Art. VI, § 11, `minimal interference' with a citizen's constitutional rights means that noninvestigative police inventory searches of automobiles without a warrant must be restricted to safeguarding those articles which are within plain view of the officer's vision.[21]
In his brief before this court, Daniel first seeks to distinguish Opperman on the ground that in Opperman the identity of the owner was unknown at the time the vehicle was removed for illegal parking, and the "searching officer found the contraband in the unlocked glove compartment where registration or other evidence of ownership would likely be found".[22] As we analyze respondent's brief, primary emphasis is placed upon the Supreme Court of California's decision in Mozzetti v. Superior Court, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 484 P.2d 84 (1971).[23] In Mozzetti, the police removed a car which had been involved in an accident and was blocking the roadway. In accordance with standard police procedures, the contents of the car were inventoried. In the course of the inventory, the police discovered a small suitcase on the back seat of the car. The suitcase was closed but unlocked. Upon opening it, an officer discovered a plastic bag containing marijuana. The defendant, who had been rushed to the hospital following the accident, sought a writ of mandamus from the Supreme Court of California requiring the suppression of the evidence obtained during the inventory on the ground that the inventory was a warrantless search of her automobile in violation of the Fourth Amendment. The state first sought to distinguish between an inventory and a search on the ground that a routine inventory upon impoundment is not a search as that term is used in the constitutional sense and that, therefore, the procedures are not subject to the requirements of the Fourth Amendment. The court stated:
*415 It seems undeniable that a routine police inventory of the contents of an automobile involves a substantial invasion into the privacy of the vehicle owner. Regardless of professed benevolent purposes and euphemistic explication, an inventory search involves a thorough exploration by the police into the private property of an individual. In that process suitcases, briefcases, sealed packages, purses anything left open or closed within the vehicle is subjected without limitation to the prying eyes of authorities. Merely because the police are not searching with the express purpose of finding evidence of crime, they are not exempt from the requirements of reasonableness set down in the Fourth Amendment. Constitutional rights may not be evaded through the route of finely honed but nonsubstantive distinctions.[24]
The state argued in Mozzetti that the search was reasonable. The California Supreme Court rejected this argument and held that rolling up the vehicle's windows, locking the doors and returning the keys to the owner would be sufficient to protect the property, since that was all the owner could do. The court further observed that the police were free to note any personal property in plain sight within the car. The primary concern of the court was with the reasonableness of the search into the closed suitcase. After evaluating the applicable California law, the Mozzetti court concluded that since they were involuntary bailees, the police had only a "slight" duty of care with respect to the contents of the vehicle and that such a duty could easily be met without extensive inventorying.[25]
In United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), Chief Justice Burger, writing for a majority of the court, held that evidence gained by opening a locked footlocker, which was removed from the trunk of a vehicle without a warrant, should be suppressed.[26] In so holding, Chief Justice Burger wrote:
By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination. No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause.
.....
The factors which diminish the privacy aspects of an automobile do not apply to respondents' footlocker. Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a *416 repository of personal effects. In sum, a person's expectations of privacy in personal luggage are substantially greater than in an automobile.[27]
In Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977), this court alluded to the fact that article I, section 14 of the Alaska Constitution contains an even broader guarantee against unreasonable searches and seizures than is found in its federal counterpart.[28] We stated that:
Any doubts as to whether privacy interests in business or commercial premises were intended to be encompassed within the protections of this guarantee were laid to rest when our Founding Fathers chose to add the phrase `and other property' to Alaska's constitutional guarantee against unreasonable searches and seizures. Our conclusion that the Alaska constitutional guarantee appertains to commercial or business premises is also bottomed on the amendment to our constitution found in article I, section 22 and expounded upon in Ravin v. State, 537 P.2d 494, 501 (Alaska 1975). We think it clear from both section 22 and our decisional law that the right of privacy guaranteed to Alaskan citizens is broader in scope than that guaranteed in the federal constitution.[29]
In interpreting article I, section 14 of the Alaska Constitution, we have repeatedly stated that "a search without a warrant is per se unreasonable unless it clearly falls within one of the narrowly defined exceptions to the warrant requirement."[30]
These broad constitutional principles in turn lead to the conclusion that article I, section 14 of the Alaska Constitution affords protection to any closed luggage, briefcases, containers, or packages within a vehicle which is subjected to an inventory search.[31] In short, we embrace the observation that "[t]he word `automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears."[32] We think that protection of the interiors of closed luggage, briefcases, containers and packages transported in a vehicle reflects fundamental expectations of privacy which Alaska society would recognize as reasonable.[33]
*417 Conceptually, we reached the foregoing conclusions after analyzing whether, in the instant case, the police inventory procedures constituted a search and, if a search, whether the search was reasonable in light of the guarantees flowing from article I, section 14 of the Alaska Constitution. It is our conclusion that routine police inventorying of the contents of a vehicle is a search within the intendment of Alaska's constitution. It would constitute a highly technical and unwarranted reading of article I, section 14 to construe "search" as not encompassing a police inventory of the contents of a motor vehicle.[34] The fact that the inventory is undertaken in whole or in part for the benevolent purpose of protecting the property of the driver of the vehicle does not change the activity into something other than a search. What is determinative is that the conducting of an inventory is a governmental intrusion upon an individual's privacy. To characterize such an invasion of privacy of the vehicle owner as other than a search would erode the constitutional rights implicated.
This leads to the question whether the instant warrantless inventory search was reasonable. Previously we alluded to our consistent holdings that "a search without a warrant is per se unreasonable unless it clearly falls within one of the narrowly defined exceptions to the warrant requirement."[35] We also noted earlier that the inventory search here was a purely routine noninvestigative police inventory search since the state advanced no claim that the carrying out of the inventory of the vehicle's contents should be justified on the basis of any established exception to the warrant requirement. Nevertheless, we have concluded that there are rationales supporting a routine noninvestigative warrantless inventory search of a vehicle and its contents which pass constitutional muster. Specifically, we refer to the need to protect property located within Daniel's vehicle at the time it was impounded.[36] Given this valid policy reason for inventory searches, we hold that in conjunction with impounding a vehicle, the police, as a matter of routine inventory procedure, are entitled to catalog all articles which are not in closed or sealed containers, luggage, briefcases, and packages.[37] We believe that inventory procedures thus limited constitute only minimal intrusions upon an owner's reasonable expectation of privacy and are thus constitutionally permissible in light of the rationales underlying police inventory searches of impounded vehicles and Alaska's constitutional guarantee against unreasonable searches and seizures.[38] Unlike the state, we are unable to perceive any principled distinction between unlocked and locked containers. The distinction the state attempted to draw at oral argument ignores the common reality that some persons may not own luggage with locks and that others expect that closed containers will adequately conceal what they regard as private.
Consequently, we hold that a warrantless inventory search of closed, locked or sealed luggage, containers, or packages contained within a vehicle is unreasonable and thus an unconstitutional search under the Alaska *418 Constitution.[39] We believe this holding is in accordance with the purpose of article I, section 14 of the Alaska Constitution and the persuasive authority of United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), and Mozzetti v. Superior Court, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 484 P.2d 84 (1971), as well as our previous decisions which have interpreted this constitutional provision.[40] As to any closed, sealed or locked containers, we hold that it is sufficient, for routine inventory purposes, that the officer merely list the item as a closed or locked footlocker, briefcase, package, or container and, if deemed necessary remove the same for safekeeping.[41]
Given the foregoing, we conclude that the superior court correctly granted Daniel's motion to suppress all evidence which was observed after the officer lifted the lid of Daniel's briefcase. Here the briefcase in which the illegal items were discovered was lying unlocked on the back seat of Daniel's vehicle. Since the briefcase was closed, the officer was not authorized to open it for the purpose of inventorying its contents.
For the foregoing reasons, the superior court's suppression order is Affirmed.
BURKE, Justice, concurring.
Unlike the majority, I think there is merit to the argument that inventory searches, under circumstances such as those present in this case, are necessary to protect the police against false claims. That such *419 claims are not mere figments of police imagination is amply demonstrated by the facts in Gottschalk v. State, 575 P.2d 289 (Alaska 1978). Unless someone is able to testify from personal observation that a container did or did not contain a specific item when seized, the police will be seriously hampered in their ability to defend against a charge that the item was removed from the container while it was in police custody. Testimony that the container itself was stored securely is no substitute for testimony that the "missing" item was never in it in the first place.
Nevertheless, I believe that the holding of the United States Supreme Court in United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), requires us to affirm the suppression order in this case. Like the majority, I am unable to perceive any principled distinction between locked containers and those that are unlocked but closed. Thus, I concur.
NOTES
[1] 13 AAC 02.350 provides:
Custody of a Vehicle When Operator is Arrested. When a police officer arrests and detains the operator of a motor vehicle, the officer shall impound and remove the vehicle to a place of safety; however, the operator may elect to have another immediately available person who is legally licensed to operate a motor vehicle, drive or otherwise remove the vehicle as the operator directs. The operator may designate the nearest available garage or tow car operator of his choosing to remove the vehicle. If the operator does not so indicate, the officer shall make the arrangements necessary to remove the vehicle.
The authority for this regulation was AS 28.05.030(a). This statute provided that "[t]he commissioner of public safety may adopt rules and regulations governing (1) the rules of the road, including the operation of motor vehicles upon roads and highways; ... (4) the inspection of motor vehicles, and the removal of motor vehicles from the highways when they are found to be in a defective or unsafe condition; ... ." AS 28.05.030(a) was repealed by ch. 178, § 6, SLA 1978.
We note that the record we have is devoid of any evidence as to whether Daniel was given the opportunity to elect under 13 AAC 02.350 to have another available person operate the car or to designate the tow operator and place of safety under the regulation.
[2] The state asserts that the inventory was taken pursuant to authority found in 13 AAC 02.375. 13 AAC 02.375 reads:
Inventory of impounded vehicle. A police officer who impounds a vehicle for any reason provided by statute, ordinance or regulation shall conduct a complete inventory of the property in the vehicle at the time of impoundment or as soon after as is practicable. The inventory shall be reduced to writing and a receipt for the property shall be signed by the person to whom the vehicle is released at the time of release.
[3] Trooper Litera had placed Daniel in the police vehicle and had proceeded to drive to trooper headquarters for the purpose of administering a breathalyzer test.
[4] Laboratory tests subsequently revealed that the green vegetable matter was marijuana and that the white powder was cocaine. Daniel was thereafter charged with the felonies of possession of cocaine, possession of marijuana for sale and carrying a concealed weapon.
[5] In so ruling, the superior court noted, in part, that in Daygee v. State, 514 P.2d 1159, 1166 (Alaska 1973), this court stated:
The search [incident to arrest] referred to above, however, would only go to visible areas within easy reach of the suspect and would not permit the opening of closed spaces or opening of closed containers. The car should then be immobilized and stored pending further judicial process of search or release to a proper party.
The superior court also referred to that portion of our opinion in Daygee where we said:
We again reiterate that the lawful seizure of the items does not carry with it the right to open such packages at a later point in time absent a warrant or exigent circumstances. If such packages are not opened at the time of arrest, then the factors set forth in Erickson v. State, 507 P.2d 508 (Alaska 1973), become applicable. The circumstances relating to the opening of packages become important and there must appear independent grounds other than those supporting the seizure to justify the waiver of the warrant requirement at such time.
Daygee v. State, 514 P.2d 1159, 1166-67, n. 21 (Alaska 1973).
[6] The superior court concluded that "[w]ith closed containers the police should merely list the container as part of the property inventoried."
[7] Alaska R.App.P. 23(c)(1).
[8] Alaska R.App.P. 24(a)(1). In Daygee v. State, 514 P.2d 1159, 1165 n. 13 (Alaska 1973), we noted, in part:
Nothing herein should be taken to indicate the validity of inventory searches which appear to be clearly outside exigency rules.
[9] Article I, section 14 of the Alaska Constitution provides, in part:
The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated.
Clark v. State, 574 P.2d 1261 (Alaska 1978), is distinguishable factually. There we were concerned with an exigent circumstance the destruction of evidence exception to the warrant requirement. It was concluded that the state had established probable cause to believe the vehicle contained evidence of contraband and that exigent circumstances existed for the warrantless search of a paper bag which was located in the glove compartment of the vehicle.
[10] The state, in its brief, observes:
[T]he purpose of the search incident to a lawful arrest is the physical protection of the officers and the prevention of destruction of evidence. See Chimel v. California, 395 U.S. 752 [89 S. Ct. 2034], 23 L. Ed. 2d 685 (1969). Such purpose would not be applicable here.
[11] Nevertheless, the state contends that "there are no facts in the instant case to indicate that a pretextual search took place here."
[12] The respondent states the issue before us in the following manner:
Under the facts thus presented, the question is do the regulations in question permit a warrantless search of closed containers within a vehicle without the consent of the owner or operator?
[13] South Dakota v. Opperman, 428 U.S. 364, 367, 96 S. Ct. 3092, 3096, 49 L. Ed. 2d 1000, 1004 (1976) (footnote omitted) (citations omitted).
[14] Id. at 369, 96 S. Ct. at 3097, 49 L.Ed.2d at 1005. The Supreme Court noted that these impoundment procedures have been viewed as essential to respond to incidents of theft or vandalism. Additionally, the Court noted that the police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned.
[15] Id. at 376, 96 S. Ct. at 3100, 49 L.Ed.2d at 1009.
In his concurring opinion, Justice Powell observed, in part:
The routine inventory search under consideration in this case does not fall within any of the established exceptions to the warrant requirement... . Inventory searches, however, are not conducted in order to discover evidence of crime. The officer does not make a discretionary determination to search based on a judgment that certain conditions are present. Inventory searches are conducted in accordance with established police department rules or policy and occur whenever an automobile is seized. There are thus no special facts for a neutral magistrate to evaluate.
Id. at 383, 96 S. Ct. at 3104, 49 L.Ed.2d at 1013-14 (footnote omitted).
[16] Justice Marshall was joined by Justices Brennan and Stewart. Justice White, in a separate statement, dissented from the judgment of the Court and noted he agreed with most of Justice Marshall's analysis.
[17] South Dakota v. Opperman, 428 U.S. 364, 388, 96 S. Ct. 3092, 3106, 49 L. Ed. 2d 1000, 1016 (1976) (citations omitted).
[18] Id. at 392, n. 12, 96 S. Ct. at 3108, 49 L.Ed.2d at 1019.
[19] Id. at 393, 394, 96 S. Ct. at 3109, 49 L.Ed.2d at 1019, 1020.
In addition to its reliance on Opperman, the state cites several federal court decisions which have upheld "routine inventory searches on facts comparable to the case at bar." See United States v. Mitchell, 458 F.2d 960 (9th Cir.1972); United States v. Pennington, 441 F.2d 249 (5th Cir.1971), cert. denied, 404 U.S. 854, 92 S. Ct. 97, 30 L. Ed. 2d 94 (1971); United States v. Lipscomb, 435 F.2d 795 (5th Cir.1970), cert. denied, 401 U.S. 980, 91 S. Ct. 1213, 28 L. Ed. 2d 331 (1971); United States v. Fuller, 277 F. Supp. 97 (D.D.C. 1967), sentence vacated and remanded, 139 U.S.App.D.C. 375, 433 F.2d 533 (1970).
The state also places particular emphasis on the United States Supreme Court's opinion in Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1976). There the defendant was convicted in a state prosecution of the offense of selling heroin to a police informant. His conviction rested, in part, upon the introduction into evidence of a piece of brown paper found in the glove compartment of his car, which was searched without a warrant one week after his arrest and the impoundment of his vehicle. Under the applicable state statute, any vehicle used in facilitating the sale or possession of narcotics was "to be held as evidence until a forfeiture has been declared or a release ordered." The Supreme Court stated:
But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment... . While it is true, as the lower court said, that `lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it,' the reason for and nature of the custody may constitutionally justify the search... Here the officers seized petitioner's car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded... It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for `[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.'
Id. at 61-62, 87 S. Ct. at 791, 17 L.Ed.2d at 733-34 (citations omitted).
In regard to the state's reliance on Cooper, we deem it sufficient to note our agreement with the position taken in Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835, 848 (1974), where it is stated:
Even if it be accepted that the possessory interest acquired by the police under a forfeiture statute allows a warrantless search, it is clear that the most expansive reading of Cooper cannot extend its rationale to cases where the police do not have a right to deny possession to the car's owner. (footnote omitted)
[20] State v. Opperman, 247 N.W.2d 673, 674 (S.D. 1976) (citations omitted).
[21] Id. at 675 (citation omitted).
[22] Respondent further states that "[i]t is important to observe, however, that the court [in Opperman] did not consider whether the police might open a locked glove compartment or other container inside the car."
[23] It should be noted that Mozzetti was decided five years prior to the United States Supreme Court's opinion in South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976).
Daniel also refers to this court's decision in Daygee v. State, 514 P.2d 1159 (Alaska 1973). In this regard respondent states: "Clearly, under Daygee, the search could not be upheld for while it may have been substantially contemporaneous with the arrest there was no plain view seizure of the items in the vehicle."
[24] Mozzetti v. Superior Court, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 416, 484 P.2d 84, 88 (1971). The rationale of Mozzetti has been followed in State v. Gwinn, 301 A.2d 291 (Del. 1972); State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975); State v. Keller, 265 Or. 622, 510 P.2d 568 (1973).
[25] Mozzetti v. Superior Court, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 417-419, 484 P.2d 84, 89-91 (1971). See also 9 S. Williston, Law of Contracts § 1038A, at 905-07 (3rd ed. 1967 and Supp. 1978).
[26] In Chadwick, the footlocker was seized by federal agents from the open trunk of a parked vehicle during the arrest of Chadwick and his associates. The opinion notes:
The footlocker and luggage were placed in the federal building, where, as one of the agents later testified, `there was no risk that whatever was contained in the footlocker trunk would be removed by the defendants or their associates.' The agents had no reason to believe that the footlocker contained explosives or other inherently dangerous items, or that it contained evidence which would lose its value unless the footlocker were opened at once. Facilities were readily available in which the footlocker could have been stored securely; it is not contended that there was any exigency calling for an immediate search.
At the federal building an hour and a half after the arrests, the agents opened the footlocker and luggage. They did not obtain respondents' consent; they did not secure a search warrant. The footlocker was locked with a padlock and a regular trunk lock.
United States v. Chadwick, 433 U.S. 1, 4-5, 97 S. Ct. 2476, 2480, 53 L. Ed. 2d 538, 544 (1977).
[27] Id. at 11-13, 97 S. Ct. at 2483, 53 L.Ed.2d at 548-49.
[28] For the text of article I, section 14 of the Alaska Constitution, see note 9, supra.
[29] Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138, 150 (Alaska 1977).
[30] Erickson v. State, 507 P.2d 508, 514 (Alaska 1973) (footnote omitted). Accord, Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138, 149 (Alaska 1977); McCoy v. State, 491 P.2d 127, 132 (Alaska 1971); Bargas v. State, 489 P.2d 130, 132 (Alaska 1971); Ferguson v. State, 488 P.2d 1032, 1037 (Alaska 1971); Rubey v. City of Fairbanks, 456 P.2d 470, 474 (Alaska 1969); Sleziak v. State, 454 P.2d 252, 256 (Alaska 1969), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (1969).
See also McCoy v. State, 491 P.2d 127, 132 (Alaska 1971) (footnote omitted), where we noted that the Supreme Court of the United States has held that:
[T]he principle of antecedent justification is so central to the Fourth Amendment that subject only to a few specifically established and well-delineated exceptions `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.'
Quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585 (1967) (footnotes omitted).
[31] See State v. Opperman, 247 N.W.2d 673 (S.D. 1976); Mozzetti v. Superior Court, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 484 P.2d 84 (1971). See also United States v. Chadwick 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977).
[32] Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S. Ct. 2022, 2035, 29 L. Ed. 2d 564, 580 (1971).
[33] In Smith v. State, 510 P.2d 793 (Alaska 1973), this court adopted Justice Harlan's twofold test for determination of the applicability of Fourth Amendment protections. The test we embraced requires "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as `reasonable.'" Id. at 797, quoting Justice Harlan's concurring opinion in Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516-517, 19 L. Ed. 2d 576, 587-88 (1967). See also Zehrung v. State, 569 P.2d 189 (Alaska 1977).
We note that the record establishes that Daniel exhibited an actual expectation of privacy concerning the contents of his briefcase.
[34] See State v. Opperman, 247 N.W.2d 673 (S.D. 1976); Mozzetti v. Superior Court, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 484 P.2d 84 (1971).
[35] Erickson v. State, 507 P.2d 508, 514 (Alaska 1973) (footnote omitted). See cases collected in note 30, supra.
[36] As noted before, no claim is made by the state that an inventory was necessary to protect the police from potential danger. Thus, this rationale has no applicability to the particular facts of this case. Further, we are not persuaded that an inventory search would prevent unfounded claims of lost or stolen property against the police.
[37] As to any closed or sealed containers found within a larger open or unsealed container, the officer conducting the inventory should list the items as sealed or locked packages or containers.
[38] See United States v. Lawson, 487 F.2d 468 (8th Cir.1973); State v. Opperman, 247 N.W.2d 673 (1976).
[39] Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977); Mozzetti v. Superior Court, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 484 P.2d 84 (1971); People v. Counterman, 556 P.2d 481 (Colo. 1976); State v. Opperman, 247 N.W.2d 673 (S.D. 1976).
See also Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978). In Barlow's, Inc., the United States Supreme Court held unconstitutional a statute which authorized routine, warrantless inspections of business premises by agents of the Secretary of Labor under the direction of the Occupational Health & Safety Act of 1970.
[40] See Daygee v. State, 514 P.2d 1159, 1166 (Alaska 1973), where we stated, in connection with a search incident to arrest, that "[t]he search referred to above, however, would only go to visible areas within easy reach of the suspect and would not permit the opening of closed spaces or the opening of closed containers." Further, in McCoy v. State, 491 P.2d 127, 138 (Alaska 1971), we set forth the requirements of a warrantless search incident to an arrest as follows:
Adequate protection for the arrestee's legitimate interests in privacy, however, will be provided by the following restrictions on warrantless incidental searches of the persons: (1) The arrest must be valid probable cause for the arrest must exist or the search is unconstitutional. (2) The search must be roughly contemporaneous with the arrest... . (3) The arrest must not be a pretext for the search; a search incident to a sham arrest is not valid... . (4) Finally, the arrest must be for a crime, evidence of which could be concealed on a person. [footnotes omitted] [citations omitted]
In Zehrung v. State, 569 P.2d 189 (Alaska 1977), the state asked this court to abandon the fourth requirement of McCoy in light of the decision in United States v. Robinson, 414 U.S. 218, 38 L. Ed. 2d 427 (1973). We declined the invitation holding, in part, that:
[A]bsent specific articulable facts justifying the intrusion, which are not present here, a warrantless search incident to an arrest, other than for weapons, is unreasonable and therefore violative of the Alaska Constitution if the charge on which the arrest is made is not one, evidence of which could be concealed on the person.
Zehrung v. State, 569 P.2d 189, 199-200 (Alaska 1977) (footnote omitted).
[41] In the event circumstances permit, the driver or owner of the vehicle should be consulted and offered the opportunity to request that an inventory be made of the contents of any closed or locked containers.
Decisions which conclude that there is only a minimal duty of care insufficient to support inventory searches include: Mozzetti v. Superior Court, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 484 P.2d 84 (1971); State v. Sawyer, 571 P.2d 1131 (Mont. 1977); State v. Opperman, 247 N.W.2d 673 (S.D. 1976).
Protection can also be achieved in the manner approved by the Supreme Court of California. In Mozzetti v. Superior Court, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 417, 484 P.2d 84, 89 (1971), the court observed:
[I]tems of value left in an automobile to be stored by the police may be adequately protected merely by rolling up the windows, locking the vehicle doors and returning the keys to the owner. The owner himself, if required to leave his car temporarily, could do no more to protect his property.
See also State v. Sawyer, 571 P.2d 1131 (Mont. 1977); State v. Opperman, 247 N.W.2d 673 (S.D. 1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622457/ | 853 So.2d 507 (2003)
The BOARD OF TRUSTEES OF FLORIDA ATLANTIC UNIVERSITY, Appellant,
v.
Laura J. BOWMAN, Jennifer L. Pharo, Karen L. Latham, Carol-Lynne Taylor, Pritesh Patel, Arnot Q. Wadsworth IV, Jennifer L. Stein, Christoper Herndon, Appellees.
No. 4D02-2864.
District Court of Appeal of Florida, Fourth District.
August 6, 2003.
Rehearing Denied September 18, 2003.
Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A. and Joseph L. Ackerman of Boose, Casey, Ciklin, Lubitz, Martens, McBane & O'Connell, West Palm Beach, for appellant.
Peter J. Aldrich of Peter J. Aldrich, P.A., Palm Beach Gardens, for appellees.
HAZOURI, J.
This is an appeal from an order denying a motion for attorneys' fees by the Board of Trustees of Florida Atlantic University based on proposals for settlement which it had made pre-trial. We reverse.
In December 1999, eight plaintiffs (Plaintiffs) filed suit against the Board of Regents of the Division of Universities of the Department of Education ex rel. The Florida Atlantic University (Defendant). Plaintiffs were former full-time students of Florida Atlantic University (FAU) who were enrolled in its physical therapy program. The Complaint alleged that when Plaintiffs enrolled in classes at FAU in 1997, the physical therapy program was not accredited; however, Defendant had made a promise to seek accreditation. This promise was stated in the written Curriculum provided to Plaintiffs by Defendant. Plaintiffs alleged that Defendant was obligated to use reasonable diligence and good faith to perform its promise to pursue accreditation and that it breached this obligation. In addition, Plaintiffs alleged that Defendant multiplied their damages by intentionally and repeatedly misleading them about the status of accreditation between May of 1997 and Spring of 1999.
*508 On or about May 11, 2001, Defendant served separate Proposals for Settlement on each of the Plaintiffs offering to settle each claim for $2,001. Each Proposal was identical and contained the following relevant provisions:
1. The party or parties making the proposal is: THE BOARD OF REGENTS OF THE DIVISION OF UNIVERSITIES OF THE DEPARTMENT OF EDUCATION and THE FLORIDA ATLANTIC UNIVERSITY, AND ITS AGENTS, EMPLOYEES, and SERVANTS.
...
3. The proposal is attempting to resolve and settle the following claim or claims: Any and all claims which were raised or could have been raised in this action by any party against any other party.
The Proposals also required each Plaintiff to execute a "General Release" that was attached as Exhibit "1" to the Proposals. The General Release required each Plaintiff, also referred to as "First Party" to:
HEREBY remise, release, acquit, satisfy, and forever discharge the said Second Party, of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, costs (including attorneys fees, expert fees, and out-of-pocket expenses), pre and post-judgment interest, obligations, losses, loss of services, expenses, compensation, judgments, executions, claims and demands whatsoever, in law or in equity, which said First Party ever had, now has, or which any personal representative, successor, heir or assign of said First Party, hereafter can, shall or may have, against said Second Party, for, upon or by reason of any matter, cause or thing whatsoever, known and unknown, foreseen and unforeseen, from the beginning of the world to the day of these presents, and including all issues, causes, claims, counterclaims, set-offs, and allegations which were raised or could have been raised relating to or arising out of certain action styled Laura Bowman, et al., v. Florida Board of Regents, Palm Beach County Circuit Case No.: CL 99-12145 AI.
The General Release defined "First Party" and "Second Party" as including:
[S]ingular and plural, heirs, legal representatives, agents, employees, attorneys, and assigns of individuals and the subsidiaries, affiliates, parent corporations, and each of their respective present and former officers, agents, employees including, but not limited to, shareholders, directors, attorneys, insurers, sureties, successors and assigns of corporations, agencies, or political bodies, wherever the context so admits or requires.
More than thirty days passed from the service of those Proposals without acceptance; therefore, pursuant to Florida Rule of Civil Procedure 1.442(f)(1), the Proposals were deemed rejected.
In October 2001, the trial court entered an order substituting the Board of Trustees of Florida Atlantic University in place of the Board of Regents, the original defendant, because the Board of Regents had been abolished by statute. The Order stated that the Board of Trustees "shall step into the shoes of the Florida Board of Regents for all pleading purposes." The Order was entered based on a stipulation of the parties. The case proceeded and was set for jury trial. The jury found that Plaintiffs did have express, written contracts with Defendant; however, they found that Defendant did not breach those contracts. The trial court entered a Final *509 Judgment in favor of Defendant, the Board of Trustees.
Defendant filed a Motion for Attorneys' Fees and Costs and alleged that it was entitled to reasonable attorneys' fees and costs based on Plaintiffs' rejections of the Proposals for Settlement. The trial court denied Defendant's Motion for Attorneys' Fees and Costs based on its determination that the Proposals for Settlement were invalid because the General Release contained in the Proposals required Plaintiffs to release all claims against Defendant, not just claims raised by the suit, and required Plaintiffs to release all claims against third parties to the action. The trial court found that those conditions contained in the General Release did not give Plaintiffs a determinable value with which to weigh their chances at trial as required by this court's decision in Zalis v. M.E.J. Rich Corp., 797 So.2d 1289 (Fla. 4th DCA 2001).
Defendant argues that the language in the Proposal for Settlement and General Release was consistent with the nature of a general release and sufficiently clear and unambiguous; therefore, the trial court should have enforced its rights under section 768.79, Florida Statutes (1997). We agree.
With respect to the trial court's first reason for finding the Proposals invalid, we hold the trial court's reliance on Zalis to be misplaced. In the instant case, the General Release required Plaintiffs to release all claims against Defendant from any and all actions or claims that Plaintiffs had or could have had as of the date of execution of the Proposal for Settlement and required Plaintiffs to release claims against third parties to the action. The Plaintiffs were also required to release all their claims against not only Defendant, but also Defendant's agents, employees, and servants. These factors are typical of a "general release" and do not invalidate the Proposals for Settlement. See Hold v. Manzini, 736 So.2d 138, 141 (Fla. 3d DCA 1999).
In Hold, the third district analyzed identical language to that contained in the General Release in the instant case:
[W]hich said first party ever had, now has, or which any personal representative, successor, heir or assign of said first party, hereafter can, shall or may have against said second party, for, upon or by reason of any matter, cause of thing whatsoever, from the beginning of the world to the day of these presents. Id.
The third district determined that the above language was clear and unambiguous in that it required the plaintiff to release the defendant for all claims which had accrued as of the date of its execution. It did not bar any claims that the plaintiff may have against the defendant after the date of its execution. Id.
In the instant case, the language in the General Release, even though expansive, is typical of other general releases and is clear and unambiguous. The fact that Plaintiffs are required to release Defendant for all claims which had accrued as of the date of the Proposal for Settlement does not invalidate the Proposal for Settlement. The Florida Supreme Court has held that general releases contained in proposals for settlement are enforceable to further the policy of encouraging settlements. See Mazzoni Farms, Inc. v. DuPont De Nemours & Co., 761 So.2d 306 (Fla.2000) (recognizing that numerous Florida cases have upheld general releases, even when the releasing party was unaware of the defect at the time the agreement was executed).
However, the trial court found that this requirement invalidated the Proposals on the basis of this Court's decision in Zalis. *510 In Zalis, the defendant made a proposal for settlement prior to trial to settle the lawsuit for $20,000 under the condition that the parties exchange mutual releases that neither the plaintiff nor any firm associated with him would bring any future action against the defendant or anyone associated with him. Zalis, 797 So.2d at 1290. The plaintiff refused the offer. The jury found against the plaintiff and awarded the defendant $105,000 on his counterclaim. Thereafter the defendant filed a motion for attorneys fees pursuant to section 768.79. The trial court denied the motion on the basis that the condition in the settlement offer rendered it invalid. On appeal, this court in affirming the trial court focused on Rule 1.442(c), which requires that proposals for settlement state with particularity any relevant conditions, state the total of the proposal and state with particularity all non-monetary terms of the proposal. This court noted that the proposal for settlement required the plaintiff to release all rights to sue the defendant about anything at any point in the future and held as follows:
The condition that a plaintiff relinquish all rights to sue about anything at any point in the future is intrinsically a condition incapable of being stated with the particularity required under section 768.79 of the Florida Statutes. No reasonable estimate can be assigned to such a waiver. The defendant's offer simply did not give the plaintiff a determinable value with which to weigh his chances at trial.
Id. at 1290-91 (emphasis added).
The instant case is distinguishable from Zalis because there is an important distinction between the release in Zalis and the General Release in the instant case. In the instant case, Plaintiffs were only required to release any and all claims they had up to the date of the Proposal for Settlement. They were not required to release all rights to sue Defendant based on any causes of action accruing in the future. It was the release of future claims in Zalis that this court found to be invalid.
We next address the trial court's second reason for finding the Proposal for Settlement invalid, i.e., Plaintiffs were required to release claims against unnamed third parties to the action. The Proposals for Settlement clearly state that the parties making the Proposals are "The Board of Regents of the Division of Universities of the Department of Education and the Florida Atlantic University, and its agents, employees, and servants." In addition, the General Release utilizes an expansive definition for the term "Second Party" which includes all agents, employees, attorneys, subsidiaries, affiliates, and shareholders among many others.
The inclusion of agents, employees, etc. is simply standard language in a general release that should be considered unambiguous and should not invalidate the proposal. See Sheen v. Lyon, 485 So.2d 422 (Fla.1986). In Sheen, the Florida Supreme Court held that a general release discharging a specifically named employer and its agents and employees was clear and unambiguous in that it refers to those persons who were employed at the time of the alleged injury. Therefore, the language in the instant case is sufficiently clear and should not be considered a condition incapable of being stated with particularity.
All the facts and circumstances which Plaintiffs allege entitle them to damages have already occurred and Plaintiffs can fully evaluate their claims against Defendant and its agents, employees and servants. The trial court erred in finding that the language in the General Release requiring Plaintiffs to release all claims against defendant and its agents, employees, et al. rendered the Proposals for Settlement *511 invalid. We reverse and remand for a determination of reasonable attorneys' fees and costs.
TAYLOR and MAY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4169428/ | Electronically Filed
Supreme Court
SCWC-16-0000766
17-MAY-2017
08:05 AM
SCWC-16-0000766
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
GABI KIM COLLINS,
Petitioner/Plaintiff-Appellant,
vs.
THE ASSOCIATION OF APARTMENT OWNERS OF KEMOO BY THE LAKE;
EKIMOTO & MORRIS, LLLC; JOHN DOES 1-100; JANE DOES 1-100;
DOE PARTNERSHIPS 1-100; AND DOE CORPORATIONS 1-100,
Respondents/Defendants-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-16-0000766; CIV. NO. 13-1-2513-09)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
The application for writ of certiorari, filed on April
3, 2017, is hereby rejected.
DATED: Honolulu, Hawai#i, May 17, 2017.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson | 01-03-2023 | 05-17-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1299475/ | 156 Ga. App. 301 (1980)
274 S.E.2d 696
D. O. D.
v.
STATE OF GEORGIA.
60863.
Court of Appeals of Georgia.
Submitted October 9, 1980.
Decided October 31, 1980.
*304 Michael D. Sigler, for appellant.
Margot Roberts, for appellee.
McMURRAY, Presiding Judge.
This is an appeal from an order of the juvenile court finding the juvenile named above (by initials), 16 years of age, as having committed a delinquent act, and he was so adjudicated. The delinquent act would constitute the offense of theft by taking if he were a person having reached the age of 17 years.
The juvenile was already a delinquent and was staying at the local Regional Youth Development Center. However, at the time of the alleged offense, the director of a group home in that community agreed to allow the juvenile to stay at her home for approximately 3 days in an emergency situation caused by the fact that the group home was closed (that is, all of the occupants had gone camping). The juvenile was found "a delinquent child ... by facts established beyond a reasonable doubt to have committed a delinquent act, to wit: Theft by Taking." The item he allegedly took was the director's ladies' purse containing approximately $80 in cash, 5 credit cards, one class ring, and one set of keys, the property of another which was allegedly taken with the intent of depriving said owner of the property.
*302 The court ordered that he be continued under his present commitment order to the Division for Children and Youth, Department of Human Resources (the previous order issued on February 14, 1980) and that he be detained at the local Regional Youth Development Center pending appearance before a screening board. This order was dated June 17, 1980. The delinquent juvenile appeals. Held:
The evidence of the state disclosed the following: The juvenile was staying at the home of the director of the group home in an emergency in that the group home was closed at that particular time. At the time in question when the purse or pocketbook came up missing, the juvenile, the director and her daughter were watching television. Two of the director's grandchildren were already in bed and asleep. The director of the group home, with the purse next to her, fell asleep watching television. Upon awakening and discovering the purse gone, she asked her daughter about the purse and its whereabouts. The daughter disclosed no knowledge of the whereabouts of the purse, and the director proceeded to the room of the juvenile who had previously left the room. He had locked himself in his room and refused to open the door. She then notified him that she would call the police if he did not open the door, and she subsequently did call the police when he did not open the door, but the juvenile was gone out of a window adjacent to the garage of the house. After searching the room no purse was found, and she subsequently filed the juvenile complaint against him alleging acts constituting the offense of "theft by taking." He was later apprehended but no purse nor contents were ever found in his possession or anywhere else.
The juvenile testified that the purse could have been taken by either of the two grandchildren (one of whom was present and proceeded to bed when he did) or the daughter of the director, denying that he took the purse. His enumerations of error are that the state failed to prove that he at any time had either actual or constructive possession of the missing purse in question, did not establish proof beyond a reasonable doubt of his guilt, and since the evidence was based on circumstantial evidence the proved facts were not consistent with the hypothesis of guilt and did not exclude every other reasonable hypothesis save that of his guilt. See Code §§ 38-109 and 38-110.
The argument as made would be meritorious except for the testimony that he had locked himself in the room to avoid being searched or his room being searched, knowing this was against the rules of detention, and took flight to avoid a confrontation. The trier of fact (the juvenile judge in the case sub judice) could infer guilt from *303 the evidence including that of flight. See McKuhen v. State, 216 Ga. 172 (3) (115 SE2d 330); Patterson v. State, 24 Ga. App. 239, 240 (2) (100 S.E. 641); Woody v. State, 37 Ga. App. 338 (2) (140 S.E. 396); Elliott v. State, 33 Ga. App. 825 (2) (127 S.E. 877); Strickland v. State, 137 Ga. App. 628 (1) (224 SE2d 809). While none of the above cases involved a juvenile who fled from detention to avoid confrontation with reference to the missing purse, nevertheless the same principle of law is applicable here. Under the circumstances the juvenile judge (as trier of fact) could easily infer guilt from the fact that the juvenile fled in this instance.
After careful review of the trial transcript and the record, we hold a rational trier of fact (the juvenile judge in the case sub judice) could reasonably have found the juvenile delinquent beyond a reasonable doubt of having taken the purse or pocketbook and contents even though the case is based on circumstantial evidence alone that the missing purse was stolen as an inference of participation arises from the circumstances due to his flight. See Riley v. State, 1 Ga. App. 651, 655 (57 S.E. 1031). The term hypothesis as used refers to such reasonable inferences as are ordinarily drawn by men in the light of their experience in everyday life. See White v. State, 18 Ga. App. 214 (1), 215 (89 S.E. 175); Sheffield v. State, 1 Ga. App. 135 (2) (57 S.E. 969). The juvenile attempted to rebut the proof of flight, which he admitted, by contending it was due to fear of the police. Nevertheless this testimony was for the fact finder to consider. Compare Golden v. State, 25 Ga. 527 (1). The mere possibility that one of the others present committed the offense of "theft by taking" is not such a reasonable hypothesis as must be excluded in order for circumstantial evidence to authorize the adjudication that the juvenile took the purse and contents. Castleberry v. State, 152 Ga. App. 769 (2) (264 SE2d 239); Parker v. State, 140 Ga. App. 92, 93 (230 SE2d 99).
All questions as to reasonableness of the evidence are to be decided by the fact finder, and even though the evidence was circumstantial here, it was sufficient to exclude every reasonable hypothesis except that of guilt. Accordingly, we cannot disturb such finding unless we are supported by evidence of not guilty as a matter of law. See Scales v. State, 145 Ga. App. 459, 461 (1) (244 SE2d 247); Campbell v. State, 240 Ga. 352, 354 (II-1) (240 SE2d 828). The proven facts were inconsistent with the juvenile's innocence. Accordingly, a rational jury (the juvenile judge in the case sub judice) could find the juvenile delinquent beyond a reasonable doubt to the exclusion of every other reasonable hypothesis. Jackson v. State, 152 Ga. App. 441 (1) (263 SE2d 181); Hill v. State, 153 Ga. App. 472 (1) (265 SE2d 828).
Judgment affirmed. Smith and Banke, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622467/ | 15 So. 3d 753 (2009)
Thomas H. STEVENS and Thomas Waynick, Appellants,
v.
TARPON BAY MOORINGS HOMEOWNERS ASSOCIATION INC., Appellee.
No. 4D08-1444.
District Court of Appeal of Florida, Fourth District.
July 15, 2009.
*754 Guy M. Shir and Patrick Dervishi of Kahan, Shir, P.L., Boca Raton, for appellants.
Shelly J. Stirrat and George W. Bush, Jr. of Fox Wackeen Dungey Beard Sobel Bush & McCluskey LLP, Stuart, for appellee.
FARMER, J.
In a suit between 2 owners in a community of related homes and their Homeowners Association, the court was asked to decide whether the 2 owners had a right to space on a community dock. The community is comprised of three buildings having 22 townhomes in all. Two buildings face a canal, one a river. The community's original site plan provided 8 dock spaces on the river and 14 on the canal. The developer built river docks having 13 dock spaces, the ownership of which was open to all members of the community, regardless of their unit's building. The developer never built the canal docks.
Later, 13 of the 14 canal owners built a canal dock. After that, plaintiffs bought units in the building on the canal. They solicited the Association's approval to add to the canal dock space so that each would be able to share in using the dock. Ultimately a majority of Association members voted to add 220 feet of dock space and agreed that space on the canal dock would be divided among only those participating owners in the 2 buildings who contributed to the cost. The effect of this was to foreclose plaintiffs from any rights to canal dock space. The addition was then built and space assigned as they had agreed.
Plaintiffs sued only the Association and sought an injunction to give them a right to dock space. They also sought money damages for the diminution in the value of their units without the dock space. Before trial the Association moved to dismiss the action for failure to join the other owners in the Community, on the grounds they were persons whose presence in the suit was necessary for any just adjudication. The motion was denied and the case proceeded to trial. In a final judgment, the court ruled that each of the 22 unit owners should have had an opportunity to participate in the dock expansion. Thus, each owner had a right to purchase 10 feet of canal dock space.
In a cross-appeal, the Association argues that reversal is required because plaintiffs failed to join the other owners as parties. It argues that no relief in favor of plaintiffs could possibly be granted without affecting the interests of the other owners. We agree.
Recently in Florida Dept. of Revenue v. Cummings, 930 So. 2d 604 (Fla.2006), the court discussed the law regarding indispensable parties:
"The general rule in equity is that all persons materially interested, either legally or beneficially, in the subject-matter of the suit, must be made parties either as complainants or defendants, so that a complete decree may be binding upon all parties. The Fourth District elaborated on this rule in Phillips v. Choate, 456 So. 2d 556, 557 (Fla. 4th DCA 1984) (quoting Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L. Ed. 158 (1855)), where it defined an indispensable party as one whose interest in the controversy is of `such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.'"
Cummings, 930 So. 2d 604 at 607.
Here, the trial court ordered the Association to assign 10 feet of canal dock space to each plaintiff. All of that dock space had already been given to other owners, who paid construction costs for their interest, *755 or as guest space open to all owners in the Community. Thus, in order to assign the 10-feet spaces to plaintiffs, the Association was required to take space paid for and given exclusively to other owners and award it to plaintiffs. Obviously, this cannot be carried out without affecting the interests of these other owners in the community. By any measure the other owners are indispensible parties, as the court described that term in Cummings.
We reject plaintiffs' argument that Sheoah Highlands, Inc. v. Daugherty, 837 So. 2d 579 (Fla. 5th DCA 2003), supports the absence of the other owners. In that case several owners had built screened enclosures intruding into the condominium's common elements. A single owner sued the Association to perform its duty to enforce the rules against such enclosures. In granting relief, the trial court ordered all the offending enclosures torn down, in spite of the absence of those offending owners in the suit. The order was reversed for failure to join the offending owners. Thus Sheoah Highlands actually supports the Association's argument that all owners should have been parties to this action.
Surely the class of absent owners is not so large that joinder is impractical. Neither does it appear that any of the absent owners is a fugitive from justice as in Glancy v. First Western Bank, 802 So. 2d 498 (Fla. 4th DCA 2001). We perceive no practical barrier to joining all the owners if the dock space is to be reallocated. All should be made parties and the case tried anew. The other issues can then be revisited.
Reversed for consistent proceedings.
POLEN and GERBER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3035812/ | NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 31 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 09-10302
Plaintiff - Appellee, D.C. No. 1:91-cr-00921-ACK
v.
MEMORANDUM *
DENNIS J. SITTMAN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Dennis J. Sittman appeals from the district court’s judgment revoking a
previous term of supervised release and imposing a term of imprisonment and a
*
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).
SR/Research
new term of supervised release. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
Sittman contends that the district court procedurally erred by failing to
explain its reasons for imposing another term of supervised release and contends
that the new term of supervised release is substantively unreasonable. The record
reflects that the district court did not procedurally err, and the sentence is not
substantively unreasonable in light of the totality of the circumstances and the
factors set forth in 18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 49-
51 (2007); United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc);
United States v. Miqbel, 444 F.3d 1173, 1181-82 (9th Cir. 2006).
AFFIRMED.
SR/Research 2 09-10302 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2468828/ | 320 F.Supp.2d 542 (2004)
Charlene H. SALGE, Plaintiff,
v.
EDNA INDEPENDENT SCHOOL DISTRICT, Defendant.
No. CIV.A.V-02-88.
United States District Court, S.D. Texas, Victoria Division.
June 3, 2004.
*543 Bobby D. Brown, Law Offices of Bobby D. Brown, P.C., Victoria, TX, for Plaintiff.
Christopher Gilbert, Bracewell & Patterson, L.L.P., Houston, TX, for Defendant.
MEMORANDUM & ORDER
RAINEY, District Judge.
Pending before the Court is the Parties' Stipulation of Damages (Dkt. # 45). In their stipulation, the parties request a determination from the Court as to whether Plaintiff Charlene Salge's award for back and front pay should be offset by Salge's retirement income. After considering the stipulation, the parties' arguments, and applicable law, the Court is of the opinion that the back and front pay damage awards should NOT be offset.
Factual and Procedural Background
This action was brought by Plaintiff Charlene H. Salge concerning alleged violations of the Age Discrimination in Employment Act, 29 U.S.C. § 626, et seq. ("ADEA") and the First Amendment to the United States Constitution via 42 U.S.C. § 1983. Salge was employed by the Edna Independent School District ("EISD") for 33 years. At the time of her discharge, Salge was 66 years of age and worked as the high school's secretary.
On May 31, 2002, Bob Wells, Superintendent of EISD, informed Salge that she was being discharged. Salge filed this action on September 10, 2002, alleging her termination violated her free speech rights and constituted age discrimination. Salge filed a motion for partial summary judgment on her First Amendment claim on May 9, 2003. EISD responded on May 29, 2003, and filed a cross-motion for summary judgment on the same issue. On September 19, 2003, EISD filed a motion for summary judgment on Salge's age discrimination claim. On November 12, 2003, the Court granted EISD's motion for summary judgment as to Salge's age discrimination claim, denied EISD's motion for partial summary judgment as to Salge's First Amendment claim, and granted Salge's motion for partial summary judgment *544 as to her First Amendment claim. The parties' subsequently submitted a stipulation of damages. The Court now considers the issue of offset presented in the stipulation.
Discussion
Under the facts of this case, an appropriate measure of damages for a First Amendment claim would be essentially the same as for an age discrimination claim. The ADEA allows the district court to grant "such legal or equitable relief as may be appropriate" to discourage age discrimination and to compensate persons affected by violations of the statute. 29 U.S.C. § 626(b); Guthrie v. J.C. Penney Co., Inc., 803 F.2d 202, 209-10 (5th Cir.1986). When compensating a plaintiff, it is within the district court's discretion to deduct social security and similar benefits from a back or front pay award. Guthrie, 803 F.2d at 209. "Whether retirement benefits should be offset from an award of lost wages depends on whether the benefits were provided or funded by the employer or the employee." Johnson v. Chapel Hill Independent School Dist., 853 F.2d 375, 382 (5th Cir.1988) (citing Guthrie, 803 F.2d at 209-10).
In the present case, EISD insists that allowing Salge to recover both her salary and her Teacher Retirement System ("TRS") benefits would provide her with a financial windfall.[1] Salge argues that she funded her retirement income and EISD did not pay into her retirement fund. According to Salge, EISD should not receive credit for her contributions.
To support her claim, Salge provided the Court with a copy of her August 27, 2002, paycheck showing her contribution to TRS.[2] Salge also provided the Court with a copy of the TRS Benefits Handbook, which states in relevant part, "TRS pension benefits are funded by member and state contributions to the Teacher Retirement System trust fund, and by earnings on the investments of the fund."[3] The handbook also notes that in some cases, the employer may pay part of the state contribution.[4] EISD, however, provided no evidence indicating that it paid any part of the state's contribution. In fact, EISD failed to show that it made any financial contribution to Salge's retirement. See Johnson, 853 F.2d at 382 (declining to hold that the trial court erred in refusing to deduct retirement benefits where the defendant failed to provide evidence showing the source of those benefits). Therefore, the Court declines to reduce Salge's front and back pay awards by the amount of retirement income she has received from TRS.
Conclusion
For the foregoing reasons, the Court is of the opinion that EISD should NOT receive an offset or credit for retirement income Salge received since her termination. A final judgment will be entered on even date herewith.
It is so ORDERED.
FINAL JUDGMENT
In accordance with the Court's Memorandum & Order signed on this date, the Court now believes that final judgment should be entered for Plaintiff Charlene Salge. It is, therefore, ORDERED that Plaintiff recover the following from the Defendant:
1. Back pay damages in the amount of $28,937.00;
2. Front pay damages in the amount of $40,000.00;
*545 3. Mental anguish and emotional damages in the amount of $50,000.00;
4. Attorney fees in the amount of $36,243.75;
5. Costs in the amount of $3,500.00; and
6. Postjudgment interest on all sums awarded at a rate of 1.82% per annum from the date of this judgment until the above damages are paid in full.
This is a FINAL JUDGMENT.
NOTES
[1] Dkt. # 47, pg. 1.
[2] Dkt. # 46, Plaintiff's Exhibit 1.
[3] Dkt. # 46, Plaintiff's Exhibit 2, pg. 2.
[4] Dkt. # 46, Plaintiff's Exhibit 2, pg. 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622481/ | 853 So.2d 708 (2003)
Terry P. BURNS, Plaintiff-Appellant,
v.
APACHE CORPORATION and United States Fire Insurance Co., Defendants-Appellees.
No. 37,396-WCA.
Court of Appeal of Louisiana, Second Circuit.
August 20, 2003.
Rehearing Denied September 18, 2003.
Booth, Lockard, Politz, LeSage, Hayter & Odom, L.L.C. by Mark W. Odom, Shreveport, for Appellant.
*709 Mayer, Smith & Roberts by Kelly J. Workman, Steven E. Soileau, Shreveport, for Appellees.
Before GASKINS, PEATROSS and MOORE, JJ.
GASKINS, J.
Terry Burns appeals from a judgment of the Office of Workers' Compensation (OWC) deciding that certain expert witness fees were not included in the offset of the employer's credit against compensation arising from the settlement of a tort action in federal court. We reverse and remand.
FACTS
On June 21, 2000, Barry Burns was working for Apache Corporation (Apache) on an oil well pump in Shongaloo, Louisiana, when he was struck and killed by a moving part of the pump. His widow, Terry Burns, made a claim for compensation against Apache and its compensation insurer, United States Fire Insurance Company (USFIC). Ms. Burns also filed a tort action in Louisiana state court against Dodson Tye Machine Works, Inc. (Dodson), a contractor who had worked on the well.
Apache and USFIC commenced paying Ms. Burns $384 per week in workers' compensation death benefits. In the meantime, USFIC intervened and removed the tort lawsuit to federal court on diversity grounds. This lawsuit proceeded to trial and the jury awarded Ms. Burns $906,489.00 in damages. However, the jury allocated only five percent of the fault to Dodson[1] and Ms. Burns' recovery was therefore $45,324.45, plus legal interest. Out of this recovery, the federal judgment awarded USFIC five percent of the $33,792 in compensation benefits it had paid. USFIC was also awarded $250 from the defendants for funeral expenses previously paid. Ms. Burns incurred $14,360.44 in attorney fees in prosecuting the lawsuit.
The federal judgment further allowed Ms. Burns and USFIC to recover their costs "as provided by law." Ms. Burns thereafter filed an application to tax costs in federal court. Since expert fees are generally not allowed as costs in federal court, Ms. Burns did not request reimbursement for the $35,043.07 she spent in expert witness fees. Ms. Burns requested reimbursement for $7,700.48, the remainder of her costs. She settled this claim against Dodson for $2,000.00 out of concern that the five percent liability assessed to Dodson would apply to any cost award as well.
After the federal case was concluded, a dispute arose between Ms. Burns and Apache/USFIC concerning the credit owed the employer under La. R.S. 23:1103(A)(1). The employer ultimately suspended Ms. Burns' benefits on the grounds that her recovery in the tort action exceeded the amount of recoverable costs she incurred, and Ms. Burns filed a dispute in the OWC. Ms. Burns argued that the expert witness fees she incurred in the tort suit caused her total costs (a total of $42,743.55 not including attorney fees of $14,360.44) to exceed the amount of her recovery and, thus, the employer's credit should be reduced to zero. The employer argued that expert witness fees were not recoverable as costs in federal court and, therefore, Ms. Burns was entitled to an offset only for recoverable costs.
The OWC agreed with the employer. The OWC concluded that the employer was entitled to a credit against compensation for the amount of the plaintiff's recovery in the tort lawsuit but that this credit would be reduced by Ms. Burns' attorney *710 fees ($14,360.44) and costs ($5,700.48[2]) subject to a six percent annual reduction leaving a credit of $26,138.77 to the employer and insurer. Because the employer was entitled to this credit, the OWC decided that Terry Burns was not entitled to reinstatement of benefits until the credit was exhausted. Ms. Burns now appeals.
DISCUSSION
Resolution of this case turns on the interpretation of La. R.S. 23:1103. That statute provides, in pertinent part:
A. (1) In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six percent per annum, and shall be satisfied by such payment. The employer's credit against its future compensation obligation shall be reduced by the amount of attorney fees and court costs paid by the employee in the third party suit. [Emphasis added.]
Simply put, the issue is whether the term "court costs" encompasses expert witness fees when those fees are not taxable as costs in the forum of the tort action.
La. C.C. art. 9 provides:
When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.
La. C.C. art. 10 states:
When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.
In part, La. C.C. art. 11 provides:
The words of a law must be given their generally prevailing meaning.
La. C.C. art. 12 provides:
When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.
La. R.S. 1:4 provides:
When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.
Workers' compensation proceedings are to be interpreted liberally in favor of the workmen. Rhodes v. Lewis, XXXX-XXXX (La.5/14/02), 817 So.2d 64.
In federal court, courts may not assess the losing party with expert witness fees beyond a minimal per diem unless the expert witness was appointed by the court. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 2496, 96 L.Ed.2d 385 (1987); see also Tyler v. Union Oil Co. of California, 304 F.3d 379 (5th Cir.2002), discussing the amended version of F.R.C.P. 54(d)(1). Under the general rules for procedure in workers' compensation *711 hearings in Louisiana, costs may be assessed by the OWC as in other civil proceedings. La. R.S. 23:1317(B). Louisiana law expressly provides that expert witness fees may be taxed as costs to the party cast in judgment in an amount to be determined by the trial judge. La. C.C.P. art.1920 and La. R.S. 13:3666; see also Allen v. Roadway Express, Inc., 31, 628 (La.App.2d Cir.2/24/99), 728 So.2d 1015.
In support of their argument that no credit should be given for the expert witness fees not assessed as costs, the appellees rely upon the case of Degruise v. Houma Courier Newspaper Corporation, XXXX-XXXX (La.App. 1st Cir.3/28/02), 815 So.2d 1074, writs denied, XXXX-XXXX (La.6/21/02), 819 So.2d 342, XXXX-XXXX (La.6/21/02), 819 So.2d 345. There, applying La. R.S. 23:1103(A), the court of appeal disallowed an offset for "litigation costs" against the employer's credit. However, in so ruling, the court, which was concerned by the possibility of a double recovery by the claimant, observed that the claimant had paid no court costs. (Also, we note that the particulars of the court costs awarded by the trial court in Degruise are unclear.) The appellate court interpreted section (A)(1) in light of section (C). This provision was added in response to Moody v. Arabie, 498 So.2d 1081 (La.1986) to more precisely allocate between the claimant and the employer the cost of recovery from a tortfeasor and is directed at compensation benefits already paid to the claimant. La. R.S. 23:1103(C) currently provides in pertinent part:
C. (1) If either the employer or employee intervenes in the third party suit filed by the other, the intervenor shall only be responsible for a share of the reasonable legal fees and costs incurred by the attorney retained by the plaintiff, which portion shall not exceed one-third of the intervenor's recovery for prejudgment payments or prejudgment damages. The amount of the portion of attorney fees shall be determined by the district court based on the proportionate services of the attorneys which benefitted or augmented the recovery from the third party. The employee as intervenor shall not be responsible for the employer's attorney fees attributable to postjudgment damages nor will the employer as intervenor be responsible for the attorney fees attributable to the credit given to the employer under Subsection A of this Section. Costs shall include taxable court costs as well as the fees of experts retained by the plaintiff.[3] The pro rata share of the intervenor's costs shall be based on intervenor's recovery of prejudgment payments or prejudgment damages. [Emphasis added.]
Although this paragraph expressly includes expert witness fees as recoverable costs, the legislature did not expressly include these fees in section (A)(1).
We conclude that the offset for future compensation benefits contemplated by section (A)(1) must necessarily be reduced by the plaintiff's expert witness fees as "court costs." First, we do not find the federal jurisprudence determining what costs are recoverable in federal courts persuasive on this issue of Louisiana workers' compensation law. The statute in question is not a counterpart of F.R.C.P. Rule 54(d)(1); rather, the statute is one calculating the appropriate payment of compensation benefits. This is purely a state law question and Louisiana's interest in its scheme of workers' compensation law is paramount. Second, recovery of expert witness fees, subject to the discretion of the trial judge, is the general practice in *712 Louisiana courts. We believe that the legislature must have contemplated this practice in enacting La. R.S. 23:1103. Third, we believe that the policy underlying this statute in general is simply to prohibit a claimant from making a double recovery and that denying the claimant the right to offset expert witness fees does nothing to promote that policy. Further, we do not believe that La. R.S. 23:1103 should result in disparate application based on whether the case is tried in state or federal court. Ms. Burns actually incurred the fees in the pursuit of her tort claim that the employer is now seeking to use as an offset. Finally, we also believe it inconsistent with the general policy of liberality toward the compensation claimant to exclude expert witness fees from the reduction in the employer's credit. To disallow the offset for expert witness fees would be to punish the claimant by allowing the employer to disproportionately benefit from the employee's successful (if only nominally so in this case) pursuit of tort remedies.
CONCLUSION
We therefore reverse the judgment of the OWC and remand this matter for a determination under Allen v. Roadway Express, Inc., supra, of the appropriate amount of expert witness fees to be offset against the employer's credit. Costs of this appeal are assessed to Apache Corporation and United States Fire Insurance Company.
REVERSED AND REMANDED.
APPLICATION FOR REHEARING
Before WILLIAMS, GASKINS, PEATROSS, MOORE, and TRAYLOR, JJ.
Rehearing denied.
NOTES
[1] The jury allocated 70% of the fault to Apache and 25% to Mr. Burns.
[2] Ms. Burns' total costs were $7,700.48 but she recovered $2,000.00 of this from Dodson.
[3] This sentence pertaining to expert fees was added in 1997 and was not applicable to the facts in the Degruise case. Acts 1997, No. 1354, § 1, effective July 15, 1997. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2402594/ | 170 F. Supp. 2d 165 (2001)
Luis A. ACEVEDO GARCIA, et al., Plaintiffs
v.
Hon. Roberto Vera MONROIG, et al., Defendants
No. 97-2639(JP).
United States District Court, D. Puerto Rico.
October 25, 2001.
Israel Roldan-Gonzalez, Aguadilla, PR, Miguel A. Pagan-Rivera, Hao Rey, PR, Hector L. Guzman, San Sebastian, PR, for plaintiffs.
Luis V. Villares-Sarmiento, Yahaida Zabala, Sanchez Betances & Sifre, San Juan, PR, John M. Garcia-Nokonechna, Juan C. Garay-Massey, Garcia & Fernandez, San Juan, PR, Judith Martinez-Fortier, Department of Justice of PR Federal Litigation Division, San Juan, PR, Johanna M. *166 Emmanuelli-Huertas, Luis Falto-Cruz, Pedro Ortiz Alvarez Law Offices, Ponce, PR, for defendants.
ORDER
PIERAS, Senior District Judge.
I. INTRODUCTION
While in the process of creating the verdict forms in this case, the Court was confronted with the issues of punitive damages and the applicability of 29 P.R. Laws Ann. § 146's damages provision ("Law 100") to this case. Although these issues have not been raised by any of the parties in this case, as trial has begun and it seems that no party intends to bring up the issues, the Court hereby raises and addresses the same.
II. LAW 100
Puerto Rico's Law 100 does not apply to municipalities, or to municipal officials when they are sued in their official capacities. Marin-Piazza v. Aponte-Roque, 873 F.2d 432, 436 (1st Cir.1989); Gomez-Vazquez v. Diaz-Colon, 91 F. Supp. 2d 481, 483 (D.Puerto Rico 2000); Orta v. Padilla Ayala, 131 D.P.R. 227, 239 (1992); Rodriguez Cruz v. Padilla Ayala, 125 D.P.R. 486 (1990). Law 100 only applies to an "employer", which is defined under 29 P.R. Laws Ann. § 151 as "any natural or artificial person employing laborers, workers or employees, and the chief, official, manager, officer, managing partner, administrator, superintendent, foreman, overseer, agent or representative of such natural or artificial person. It shall include all such agencies or instrumentalities of the Government of Puerto Rico as may be operating as private businesses or agencies."
Plaintiffs herein have not alleged that the Municipality of Adjuntas is an instrumentality operating as a private business. There is no evidence on the record to the effect that the Municipality of Adjuntas is an instrumentality operating as a private business. Accordingly, Law 100 neither applies to the Municipality of Adjuntas, nor to co-Defendants the Honorable Roberto Vera Monroig the Mayor of Adjuntas ("Vera") and Irma M. González Delgado the Personnel Director of the Municipality of Adjuntas ("González") in their official capacities. Moreover, as Vera and González were Plaintiffs' employers in their capacity as municipal officials, and were not Plaintiffs employers in their personal capacities, they are also not subject to liability under Law 100 in their personal capacities. See Marin-Piazza, 873 F.2d at 437; Gomez-Vazquez, 91 F.Supp.2d at 483-84.
III. PUNITIVE DAMAGES
Punitive damages for constitutional rights violations under 42 U.S.C. § 1983 cannot be awarded against municipalities. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981); see also Gomez-Vazquez, 91 F.Supp.2d at 482-83. Because municipalities are the real parties in interest in official capacity suits against municipal officials, a judgment against a municipal official in his or her official capacity would in effect run against the municipality. Saldana-Sanchez v. Lopez-Gerena, 256 F.3d 1, 4 (1st Cir.2001). Therefore, the law extends a municipality's immunity from punitive damages, to actions against officers when they are sued in their official capacities. Brandon v. Holt, 469 U.S. 464, 471-71, 105 S. Ct. 873, 83 L. Ed. 2d 878 (1985); Gomez-Vazquez, 91 F.Supp.2d at 482-83. In the case at bar, it is axiomatic that punitive damages cannot be imposed on Defendants Vera and González in their official capacities as the mayor and personnel director of the *167 Municipality of Adjuntas, because such an award would impermissibly be leveled against the Municipality of Adjuntas. Punitive damages may only issue against Vera and Gonzalez in their personal capacities. See Gomez-Vazquez, 91 F.Supp.2d at 483, at n. 1.
IV. CONCLUSION
Based on the foregoing discussion, the Court hereby DISMISSES Plaintiffs' cause of action under Law 100, and FINDS that punitive damages may only issue against co-Defendants Vera and González in their personal capacities. The jury instructions and verdict forms are being prepared by this Court to reflect the same.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622617/ | 851 F. Supp. 461 (1994)
Richard E. BUNGER and Reb Oil of Florida, Inc., Plaintiffs,
v.
Jack HARTMAN and Texaco, Inc., Defendants.
No. 91-14199-CIV.
United States District Court, S.D. Florida.
March 10, 1994.
*462 Roy W. Jordan, Jr., West Palm Beach, FL, Jeffrey J. Harmon, Cors & Bassett, Cincinnati, OH, for plaintiffs.
Jordan I. Fields, Fields & Wilkinson, Stuart, FL, for Hartman.
Douglas M. Halsey, Miami, FL, for Texaco.
ORDER ON MOTION TO DISMISS
PAINE, District Judge.
Background
This case arises out of the widespread contamination of property located at 728 North Federal Highway in Stuart, Florida. According to the Plaintiffs, Richard E. Bunger and REB Oil of Florida, Inc., Defendant Texaco, Inc. ("Texaco") leased the property from 1965 to 1984 and operated a gasoline service station and bulk petroleum storage facility for the wholesale distribution of petroleum products. Texaco assigned its lease in 1984 to Defendant Jack M. Hartman ("Hartman") who then assigned it to the Plaintiffs. During this period, the Defendants allegedly dumped and spilled petroleum and other products which ultimately migrated through the underlying soil and groundwater.
In 1988, the Plaintiffs first discovered the contamination and reported it to the Florida Department of Environmental Regulation ("DER"). The DER, in turn, required the Plaintiffs to conduct tests and prepare a Contamination Assessment Report (the "Report"), which revealed extensive contamination of the soils and groundwater on the property.
In their initial Complaint, the Plaintiffs sought recovery costs incurred in conducting tests, preparation of the Report, as well as future costs related to remediation of the property. The court dismissed the Plaintiff's Complaint on two grounds: (1) that the Plaintiffs' only allegations of hazardous substances found on the site were substances derived from petroleum products that are not hazardous substances within the scope of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA" or "Act"), 42 U.S.C. §§ 9601-9657; and (2) the Plaintiffs' Complaint failed to claim compliance with the National Contingency Plan (the "Plan"), which must be alleged in a cost recovery action. Bunger v. Hartman, 797 F. Supp. 968, 971-73 (S.D.Fla. 1992).
The Plaintiffs thereafter filed an Amended Complaint, alleging various causes of action under CERCLA and common law. Texaco has filed the instant Motion to Dismiss Amended Complaint (DE 24). Having reviewed the record, the memoranda of counsel and relevant authorities, the court enters the following order.
Motions to Dismiss: Legal Standard
Pre-Answer motions, such as a motion to dismiss for failure to state a claim or a motion for more definite statement, may raise two distinct issues: (1) whether the Plaintiff has stated his or her purported claim with sufficient detail; and (2) whether the claim as stated is recognized by law.
As to the first issue, that is, factual detail, the Federal Rules of Civil Procedure are very liberal. Rule 8(a) provides that the complaint need only contain "a short and plain statement of the claim...." "All that is required is that the defendant be on notice as to the claim being asserted against him and the grounds on which it rests." Sams v. United Food & Commercial Workers Int'l Union, AFL-CIO, CLC, 866 F.2d 1380, 1384 (11th Cir.1989) (collecting cases). The parties may, through discovery, inquire further into the details underlying the claim. Bazal v. Belford Trucking Co., 442 F. Supp. 1089, *463 1102 (S.D.Fla.1977); see generally 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1202 (2d ed. 1990).
As to the viability of a cause of action, the court must first accept all of the allegations in the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Thomas v. Burlington Industries, Inc., 769 F. Supp. 368, 370 (S.D.Fla.1991). Consideration of matters beyond the four corners of the complaint is improper. Milburn v. United States, 734 F.2d 762 (11th Cir.1984); Thomas, 769 F.Supp. at 370. A motion to dismiss should not be granted unless the Plaintiff can prove no set of facts in support of his claim entitling him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957). Thus, a complaint may not be dismissed because the Plaintiff's claims do not support the legal theories on which he relies because the court must determine if the allegations form a basis for relief on any possible theory. See Robertson v. Johnston, 376 F.2d 43 (5th Cir.1967).[1]
CERCLA Claims
Congress enacted the CERCLA to "provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites." Pub.L. No. 96-510, 94 Stat. 2767 (1980). In furtherance of these objectives, a bifurcated mechanism was created to promote the cleanup of waste sites, spills and hazardous substances released into the environment: The federal government was empowered to respond to environmental hazards through the creation of Superfund, 42 U.S.C. §§ 9604-05, 9611-12, while private parties were permitted to institute actions to recover "response costs" for the cleanup of sites from those responsible for the hazard, 42 U.S.C. § 9607(a).
The present motion does not present a challenge to the Plaintiffs' standing to bring this action; rather, dismissal of the Amended Complaint is sought because of two alleged pleading deficiencies. First, Texaco argues that CERCLA does not apply since "hazardous substances" are not involved in this matter. Second, Texaco contends that the Plaintiffs' Amended Complaint is deficient as they still have failed to allege consistency with the Plan.
A private party must prove four elements before they can prevail in a cost recovery action: (1) the site where the "hazardous substance" is found is a "facility," as per CERCLA's definition of that term, 42 U.S.C. § 9601(9); (2) there has been a "release" or "threatened release" of a "hazardous substance" from the facility, 42 U.S.C. § 9607(a)(4); (3) the "release" or "threatened release" has caused the private party to incur "response costs" that were "necessary" and "consistent with the national contingency plan," 42 U.S.C. § 9607(a)(4)(A) and (B); and (4) the Defendants fall within one the four classes of parties subject to the liability under the Act. 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1358 (9th Cir.1990), cert. denied, 500 U.S. 917, 111 S. Ct. 2014, 114 L. Ed. 2d 101 (1991); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir.1989).
In viewing all allegations as true, the court finds that the Plaintiffs' Amended Complaint adequately states causes of action under CERCLA. In paragraph 45 of the Amended Complaint, the Plaintiffs allege that the Report "revealed significant groundwater contamination on the Property due to elevated levels of hazardous substances including methylene chloride that, on information and belief, Defendants Texaco and Hartman discharged, deposited, injected, spilled, leaked, or otherwise disposed on the Property." The Plaintiffs further allege that the property is a facility as defined in 42 U.S.C. § 9601(9), and the Defendants were operators of the facility, as defined in 42 U.S.C. § 9601(20)(A), at the time of the disposal and release of hazardous substances. The Plaintiffs also claim to have incurred the necessary response costs consistent with the Plan *464 because of the contamination. Thus, the court shall not dismiss the Plaintiffs' federal causes of action under CERCLA raised in the Amended Complaint.
Common Law Claims
In addition to the federal claims under CERCLA, the Plaintiffs have brought several common law claims in their Amended Complaint against the Defendants (Counts VII-XXII). These claims include breach of fiduciary duty, misrepresentation, negligence, trespass, strict liability, public nuisance, nuisance, contribution, and equitable subrogation. Texaco has moved to dismiss the common law claims either because the Amended Complaint fails to state a claim or because Florida law does not recognize the stated causes of action. The court, however, initially shall determine whether supplement jurisdiction should be exercised over the common law claims in this case. Winn v. North American Philips Corp., 826 F. Supp. 1424, 1425 (S.D.Fla.1993).
Formerly, under United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966), the Supreme Court set forth the analysis for determination of pendent jurisdiction. "Under Gibbs, it is within the district court's discretion to exercise pendent jurisdiction over state law claims if the court has jurisdiction over a substantial federal claim and the federal and state law claims `arise out of the same nucleus of operative facts and are of such a nature that a plaintiff would be expected to try them all in the same proceedings.'" Edwards v. Okaloosa County, 5 F.3d 1431, 1433 (11th Cir. 1993); see Roper v. Edwards, 815 F.2d 1474, 1477 (11th Cir.1987); L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 420 (11th Cir.1984). Gibbs "emphasized that `pendent jurisdiction is a doctrine of discretion, not of plaintiff's right.'" Edwards, 5 F.3d at 1433 (citations omitted). A district court should consider factors such as judicial economy, convenience, fairness, comity, whether state issues would predominate, and potential jury confusion. Id.; Winn, 826 F.Supp. at 1425.
The Judicial Improvements Act of 1990, codified in 28 U.S.C. § 1367, outlines district courts' supplemental jurisdiction over pendant or ancillary claims. Section 1367 provides in pertinent part that:
(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction ...
28 U.S.C. § 1367(c). "This `new' test is not so different from the tests listed above. It seemingly incorporates issues of jury confusion and judicial economy previously discussed." Winn, 826 F.Supp. at 1424.
The court first observes that the common law claims in the Plaintiffs' Amended Complaint "are separate and distinct from the underlying federal claims which confer jurisdiction here." Id. "The above claims require completely different elements of proof than the federal claims ... These claims would tend to dominate this case and to obscure the importance of the underlying [environmental] claims." Id. at 1426. Given the different theories and the potential jury confusion, the case, in fact, likely would be severed, or at least set for separate trials, if all of the claims in the Amended Complaint remained in federal court. See Kimberly-Clark Corp. v. James River Corp., 131 F.R.D. 607, 608-09 (N.D.Ga.1989).
The common law claims also raise novel and complex issues of state law. For example, the First District Court of Appeal of Florida had certified to the Florida Supreme Court the following question to be of great public importance: Should the common law doctrine of caveat emptor continue to apply to commercial real property transactions; and, if not, with what legal principles should it be replaced? Haskell Co. v. Lane Co., 612 So. 2d 669, 676 (Fla. 1st DCA), rev. dismissed 620 So. 2d 762 (Fla.1993); see also Futura Realty v. Lone Star Building Centers (Eastern), Inc., 578 So. 2d 363 (Fla. 3d DCA), review denied, 591 So. 2d 181 (Fla.1991). The resolution of this state law issue may impact on the viability of many of the common law claims in this case.
*465 Significantly, the Plaintiffs have a pending action in the Circuit Court of the 19th Judicial Circuit, in and for Martin County, Florida against Texaco and other defendants that includes all of the above common law causes of action, along with a claim under Florida Statute § 817. As Texaco notes, "these questions of Florida law have been the subject of hundreds of pages of memoranda and several hours of debate before the state trial court where Plaintiffs identical claims have been pending for ... years." (DE 36 at 7). Moreover, pursuant to a stipulation between the Plaintiffs and Hartman, this court previously has severed and remanded the common law claims directed at Hartman in this case to the state court action. It certainly would be in the interest of judicial economy, convenience, and comity for the state court to hear the common law claims as to both Hartman and Texaco in that proceeding. In sum, applying Section 1367(c), the court concludes that supplemental jurisdiction should not be exercised over the common law claims in this case.
Conclusion
In view of all the foregoing, it is hereby ORDERED and ADJUDGED that Texaco's Motion to Dismiss Amended Complaint (DE 24) is DENIED. However, the Plaintiffs' common law claims (Counts VII-XXII) are DISMISSED WITHOUT PREJUDICE pursuant to Section 1367.[2] The Defendants shall have eleven (11) days from the date of this order in which to answer the remaining claims in the Plaintiffs' Amended Complaint.
DONE and ORDERED.
NOTES
[1] The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
[2] Section 1367(d) tolls the limitation period on such claims for thirty days so that the claims may be refiled in state court. However, given the pendency of the parallel state court action, the limitation period should not be an issue in this instance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3038958/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-4177
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Zaccheus Scott Hale, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: October 7, 2005
Filed: November 17, 2005
___________
Before MELLOY, MAGILL, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Zaccheus Scott Hale pled guilty to conspiring to distribute more than fifty
grams of actual methamphetamine, in violation of 21 U.S.C. § 846. After granting
the government’s substantial-assistance downward-departure motion under 18 U.S.C.
§ 3553(e) and U.S.S.G. § 5K1.1, the district court1 departed from a statutory
minimum of life imprisonment to a sentence of 300 months in prison and ten years
of supervised release. On appeal, Hale’s counsel has moved to withdraw and filed
1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the district court
should have departed even further.
However, as a district court's discretionary decision not to depart downward
is unreviewable, United States v. Frokjer, 415 F.3d 865, 875 (8th Cir. 2005), the
extent of a district court's downward departure is also not reviewable in an appeal by
the defendant. See United States v. Noe, 411 F.3d 878, 885 (8th Cir. 2005), cert.
denied, Schultz v. United States, __ U.S. __, 2005 WL 1669602 (Oct. 3, 2005).
Having reviewed the record independently pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we conclude that there are no nonfrivolous issues for appeal.
Accordingly, we affirm the judgment of the district court, and we grant counsel’s
motion to withdraw. We deny Hale’s motion for the appointment of new counsel on
appeal.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1622700/ | 15 So. 3d 446 (2009)
Lorenzo TARVER, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2006-KA-01260-COA.
Court of Appeals of Mississippi.
January 27, 2009.
Rehearing Denied May 26, 2009.
Certiorari Denied August 20, 2009.
*451 Imhotep Alkebu-Lan, Chokwe Lumumba, Ali Shamsiddeen, Jackson, Attorneys For Appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
ISHEE, J., for the court.
¶ 1. In March 2005, Lorenzo Tarver was indicted in a two-count indictment by the grand jury of Leflore County for (1) possession of marijuana with the intent to sell, transfer, or distribute and (2) possession of a deadly weapon by a convicted felon. Following a jury trial in June 2006, Tarver was convicted of the crime in Count I, which was possession of marijuana with intent to sell, transfer, or distribute. In addition, the sentence was enhanced pursuant to Mississippi Code Annotated section *452 XX-XX-XXX (Rev.2005) for possession of a controlled substance with the intent to sell, transfer, or distribute within 1,500 feet of a day care center. As a result, Tarver was ordered to serve a term of sixty years in the custody of the Mississippi Department of Corrections and to pay a fine in the amount of $100,000. Aggrieved, Tarver appeals assigning the following issues for review:
I. Whether the State's closing argument deprived Tarver of a fair trial.
II. Whether it was error to (1) exclude for cause jurors who expressed concern about missing evidence, (2) permit the prosecutor to talk about two trials, and (3) strike an impaneled juror.
III. Whether the gun count of the indictment should have been severed.
IV. Whether Tarver's motion for continuance was properly denied.
V. Whether Tarver's motion to suppress his criminal record was properly denied.
VI. Whether the indictment was properly amended.
VII. Whether Tarver received effective assistance of counsel.
VIII. Whether Tarver is entitled to a new trial because of lost evidence.
IX. Whether Tarver's right to a speedy trial was denied.
X. Whether Tarver's motion for recusal was properly denied.
XI. Whether Tarver's sentence is excessive and constitutes cruel and unusual punishment.
XII. Whether Tarver's motion to suppress the evidence from the search warrant was properly denied.
XIII. Whether Tarver received a fundamentally fair and impartial trial.
¶ 2. Finding no error, we affirm the judgment of the circuit court.
FACTS
¶ 3. On June 18, 2004, officers from the Greenwood Police Department executed a search warrant after obtaining information from a confidential informant that there was a large amount of marijuana, money, and a gun in the house located at 506 Cypress Street, Greenwood, Mississippi. The officers searched the home and found 31.8 kilograms (69.9 pounds) of marijuana; more than $18,000 in cash; and a number of firearms, including a .40-caliber pistol. Tarver's mother, step-father, and niece lived in the house; however, only Tarver was present at the time of the search. When it came time for the trial, the marijuana was missing from the evidence vault.
DISCUSSION
I. State's Closing Argument
¶ 4. Tarver's first complaint is that the State's closing argument included remarks appealing to the juror's emotions and insinuating criminal conduct by Tarver's attorneys. Tarver alleges that the State made comments implying that Tarver's attorneys thought people from Greenwood were ignorant, and that those comments were intended to appeal to the jury's prejudice. Tarver also contends that the State's comments referencing the missing marijuana were highly prejudicial and suggested that Tarver's attorneys were responsible for the disappearance of the evidence. Tarver requests that this Court vacate his conviction based on prosecutorial misconduct and enter an order of dismissal or, in the alternative, remand this cause for a new trial.
*453 ¶ 5. It is well established that attorneys are granted wide latitude when making their closing arguments. Stubbs v. State, 878 So. 2d 130, 136(¶ 17) (Miss.Ct. App.2004). The standard of review used to determine if improper remarks warrant reversal is "whether the natural and probable effect of the prosecuting attorney's improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice." Taylor v. State, 672 So. 2d 1246, 1270 (Miss.1996) (citation omitted). The comments are evaluated by taking into consideration the complete context in which they were made. Sanders v. State, 939 So. 2d 842, 846(¶ 9) (Miss.Ct.App.2006).
¶ 6. Tarver complains that during the State's closing argument the prosecutor implied that Tarver's attorneys were somehow involved in the disappearance of the marijuana from the evidence vault. Specifically, Tarver believes that the following comments were improper:
[By the Prosecution]: But you got a guy who admits to that kind of marijuana, has this kind of money, 18,000 dollars, knowingwe know that he's going to have a[.]40-caliber [Beretta] [in] his house. And [the] defense lawyer talking about the missing evidence when they know good and well that that evidence was seen at a hearing where his co-attorneys were, and his investigator was, and his client was. Then all the sudden the first time it's set for trial, it's gone. They wanted to see the evidence vault. Shown where the vault is. Now I don't know who showed them, but it was shown to them. The evidence vault. Now, you think this kind of stuff only happens on T.V. No. That's for real. That's why the FBI is investigating, and when we find out who did itand you heard Lawrence Williams. Lawrence Williams said, may have been a police officer involved. And if it wasif it was, that police officer is going to be sitting right where that guy is sitting. And if we find out [Ali] ShamsidDeen and his cohorts down in Jackson were involved, they are going to be sitting right there.
[By the Defense]: Objection. Objection.
The Court: The objection is sustained.
[By the Prosecution]: Ladies and gentlemen of the jury, the people come up here from Jackson, big shot lawyers, I guess, I guess thinking Greenwood, Mississippi, bunch of ignoramuses. We don't have any sense up here. You can just talk aboutI mean, how long you going to talk about the prints? They said, we didn't do the prints. How many hours of question did you hear about it? Talking about the constitution is made for the people, the people of the United States. That's you. That's all of us. It's not just for Lorenzo Tarver, a drug dealer. It's for all the people. And when we let somebody like this sell this kind of marijuana or possess with the intent to sell, have in their possessionand if you read the instruction, doesn't have to be actualdoesn't have to be holding it, possession. When we find that, I hope we convict, because this is a big fish, and there is a duty that all of us have as Americans, if he wants to talk about America.
¶ 7. We will first address Tarver's assertion that the prosecutor appealed to the juror's prejudice by stating that ShamsidDeen thinks people from Greenwood are ignorant. The record shows that Tarver failed to make a contemporaneous objection to that argument at trial. Although his comments almost certainly would have constituted prosecutorial misconduct, the law is clear that there must be a timely objection, and "a party who fails to make a contemporaneous objection *454 at trial must rely on plain error to raise the issue on appeal, because it is otherwise procedurally barred." Sims v. State, 919 So. 2d 264, 266(¶ 7) (Miss.Ct.App.2005) (quoting Williams v. State, 794 So. 2d 181, 187(¶ 23) (Miss.2001) (overruled on other grounds)). Only when a defendant's substantive rights are affected will the plain-error rule be applied. Dobbins v. State, 766 So. 2d 29, 32(¶ 5) (Miss.Ct.App.2000). "The plain-error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice." Sims, 919 So.2d at 266(¶ 7) (citation omitted). Given the facts of this case and the evidence presented at trial, we do not find that there was a manifest miscarriage of justice. This issue is without merit.
¶ 8. Next, we address Tarver's contention that the State's comments insinuated criminal conduct by Tarver's Jackson lawyers. The prosecutor also mentioned during his closing argument, however, that there was the possibility of the evidence being taken by a police officer. Due to the fact that the State had relied heavily on the Greenwood Police Department in building the prosecution's case against Tarver, we also find that this comment did not affect the outcome. Although it was highly inappropriate for the prosecutor to make the disparaging comments about Tarver's defense counsel, the fact that the State also implied that a police officer might have acted unlawfully in removing the marijuana from the evidence vault partly canceled out the prejudicial effect toward the defense. Accordingly, this issue is without merit.
II. Whether it was error to (1) exclude for cause jurors who expressed concern about missing evidence, (2) permit the prosecutor to talk about two trials, and (3) strike an impaneled juror.
¶ 9. Tarver's second assignment of error contains three issues. We will address each one individually.
A. Excluding Jurors for Cause
¶ 10. Tarver claims that the circuit court abused its discretion in excluding for cause jurors who expressed concern over the fact that the marijuana was missing from the evidence vault and would not be presented at trial. He accuses the State of questioning jurors in such a manner that attempted "to elicit a pledge to vote a certain way if a certain set of circumstances [were] shown." The State asked the prospective jurors if there was "anybody who would say that they're automatically going to vote not guilty because the State [would not] be able to bring in [the] big bales of marijuana[.]" Several jurors raised their hands in reply, and as a result, they were struck for cause. Tarver concedes that his defense counsel did not object to the State's allegedly impermissible challenges for cause, and he even agreed with the State's challenges for two of the jurors; however, Tarver maintains that his counsel's behavior "did not relieve the trial court from denying [the] same where they are judicially prohibitive."
¶ 11. The circuit court has "wide discretion in determining whether to excuse any prospective juror." Stigall v. State, 869 So. 2d 410, 413(¶ 7) (Miss.Ct.App. 2003). "The circuit judge has an absolute duty ... to see that the jury selected to try any case is fair, impartial and competent." Id. (citation omitted). In addition, the Mississippi Supreme Court has consistently held that "a party who fails to object to the jury's composition before it is empaneled waives any right to complain thereafter." Thorson v. State, 895 So. 2d 85, 118(¶ 81) (Miss.2004).
¶ 12. We do not find that the circuit court abused its discretion in excluding *455 the jurors. The jurors at issue answered in the affirmative when asked if they would automatically vote not guilty if the marijuana was not produced at trial. Therefore, excluding those jurors was an effort by the judge to select a fair and impartial jury. Furthermore, Tarver's counsel failed to object to the jury at the time it was selected. Accordingly, this issue is procedurally barred and without merit.
B. Permitting Prosecutors to Discuss Two Trials
¶ 13. Tarver also claims that the circuit court abused its discretion by allowing the prosecutor to discuss two trials during voir dire: (1) Tarver's trial and (2) the trial of whomever stole the missing marijuana evidence. He claims he was prejudiced by the introduction of another crime into his trial. Under Mississippi law, wide latitude is granted on voir dire to ensure that a party receives a fair trial and impartial jury. Tighe v. Crosthwait, 665 So. 2d 1337, 1339 (Miss.1995). However, this does not mean that counsel is free of limitations. Id. at 1340. "[T]he voir dire examination is largely a matter within the sound discretion of the trial judge." Woodward v. State, 533 So. 2d 418, 425 (Miss.1988) (citation omitted).
¶ 14. We do not find that the circuit court judge abused his discretion in conducting voir dire. The prosecutor explained to the prospective jurors that the marijuana was missing and would not be presented as evidence. When he began to go into further detail, the defendant's attorney, ShamsidDeen, objected, and the judge sustained the objection. At no time during voir dire did the prosecutor imply that Tarver was even remotely responsible for the missing marijuana. Tarver fails to provide any evidence of how he was prejudiced by the State's comments; therefore, this issue is without merit.
C. Striking an Impaneled Juror
¶ 15. Tarver further claims that the court erred in striking an impaneled juror for allegedly having contact with a spectator in violation of Rule 3.06 of the Uniform Rules of Circuit and County Court. This occurred after a witness reported that Juror 11 was seen mingling in the hallway with a spectator from the courtroom. The court replaced the juror with an alternate, and Tarver argues that this was further evidence of the bias against him.
¶ 16. Rule 3.06 prohibits jurors from "mix[ing] and mingl[ing] with the attorneys, parties, witnesses and spectators in the courtroom, corridors, or restrooms in the courthouse." URCCC 3.06. The rule further states that "[t]he court must instruct jurors that they are to avoid all contacts with the attorneys, parties, witnesses or spectators." Id. Although the circuit court judge failed to so instruct the jurors in this case, Tarver sets forth no evidence to show how replacing Juror 11 with the alternate juror showed bias against him or caused him to suffer prejudice. The defense counsel had accepted the alternate juror without objection when the jury was being chosen. Rule 3.06 clearly states that jurors are not to mingle with spectators; therefore, the circuit court judge was simply enforcing the rule. Accordingly, this issue is without merit.
III. Severing the Gun Count of the Indictment
¶ 17. Tarver's third assignment of error is that the two counts of the indictment should have been severed. Mississippi Code Annotated section 99-7-2(1) (Rev.2007) allows two or more offenses to be charged in the same indictment with a separate count for each offense *456 and tried in a single proceeding if: "(a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan."
¶ 18. On appeal, a motion to sever is reviewed using the abuse of discretion standard. Rushing v. State, 911 So. 2d 526, 532(¶ 12) (Miss.2005). Courts look to three factors when determining whether a motion to sever should be granted or denied: "[1] the time period between the offenses, [2] whether the evidence proving each offense would be admissible to prove the other counts, and [3] whether the offenses are interwoven." Id. at 534(¶ 15). There is "no authority limiting the applicability of ... the multi-count indictment statute simply because some element of the necessary proof as to one charge would be inadmissible on the other charge were it being tried separately." Wright v. State, 797 So. 2d 1028, 1030(¶ 7) (Miss.Ct.App.2001). When a case contains evidence that is admissible for one purpose and inadmissible for another, "the answer is not to exclude the evidence altogether, but to admit it subject to the jury being instructed as to the limited purpose for which the information is admitted." Id. at (¶ 8).
¶ 19. We find no merit in Tarver's argument that he was prejudiced by trying the two offenses together in the same criminal proceeding. The circuit court properly instructed the jury on the limited purpose for which the evidence of Tarver's prior conviction was admitted. Furthermore, the jury did not find that Tarver was guilty of the second count of the indictment, in which he was charged with possession of a firearm by a convicted felon; therefore, the jury was clearly able to separate and differentiate between the two crimes. Accordingly, the circuit court did not abuse its discretion in denying Tarver's motion to sever.
IV. Motion for Continuance
¶ 20. Tarver's fourth assignment of error is that his motion for continuance should have been granted because his attorney, ShamsidDeen, was not prepared at the commencement of trial to render effective assistance of counsel. Tarver argues that his originally retained counsel, Chokwe Lumumba, had been suspended from the practice of law, and as a result, ShamsidDeen had only stepped in to argue the pretrial motions. The circuit court denied Tarver's motion because it had been filed only two days before trial rather than the required seven days.
¶ 21. "The decision whether to grant or deny a continuance is a matter left to the sound discretion of the trial court. Unless manifest injustice is evident from the denial of a continuance, this Court will not reverse." Strohm v. State, 845 So. 2d 691, 695(¶ 8) (Miss.Ct.App.2003) (internal citations omitted). The defendant bears the burden of presenting concrete facts that show how the denial of a continuance caused particular prejudice to his case. Stack v. State, 860 So. 2d 687, 691-92(¶ 7) (Miss.2003). When a motion for continuance is filed because an attorney has not had enough time to adequately prepare for trial, it "is subject to proof and also as to facts as they may appear from that which is known from the trial court." McCormick v. State, 802 So. 2d 157, 160(¶ 13) (Miss.Ct.App.2001).
¶ 22. Tarver contends that his "motion was not filed seven days before trial in part because [ShamsidDeen] was not retained by Tarver nor paid to represent Tarver at trial." He also complains that ShamsidDeen had only two days to prepare for trial. However, the record reveals that ShamsidDeen was granted an *457 earlier motion for continuance, on which he was listed as "Attorney for Defendant," that was filed on March 28, 2006, due to a conflict with his schedule. In addition, although the motion at issue, which ShamsidDeen also signed as "Attorney for Defendant," was not filed until June 12, 2006, the motion says it was "[r]espectfully submitted, this the 24th day of May, 2006."
¶ 23. Based on the foregoing, we find that Tarver's arguments lack merit. It was not as though ShamsidDeen had been newly hired only two days before the trial without any background knowledge of the case. To the contrary, ShamsidDeen had been acting as Tarver's attorney for several months before the trial began. Due to the circumstances surrounding Lumumba's suspension, it was foreseeable that ShamsidDeen would be expected to step in as counsel, if not in March, certainly by May. This Court has upheld numerous denials of motions for continuances where the defense counsel had a limited amount of time to prepare for trial. See Stack, 860 So.2d at 692(¶ 9). We see no indication that the circuit court abused its discretion in denying Tarver's motion for continuance, and Tarver fails to demonstrate how his case was prejudiced. Therefore, this issue is without merit.
V. Motion to Suppress Tarver's Criminal Record
¶ 24. Tarver's fifth assignment of error is that the circuit court erred in denying his motion to exclude his prior criminal record, which contained a 1998 federal drug conviction. Tarver was previously charged with possession of cocaine with intent to distribute. He contends that because it is similar to the present charge of possession of marijuana with intent to distribute, the prejudicial effect of its admission outweighed any probative value.
¶ 25. Pursuant to Mississippi Rule of Evidence 404(b), evidence of prior convictions may be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Swington v. State, 742 So. 2d 1106, 1112(¶ 15) (Miss.1999). Such evidence may not be used, however, to imply that the defendant is more likely to be guilty of the current charge. White v. State, 842 So. 2d 565, 573(¶ 24) (Miss.2003). The Mississippi Supreme Court has held that evidence of prior drug transactions offered to show the defendant's intent to distribute "is not barred by M.R.E. 404 and is properly admissible if it passes muster under M.R.E. 403 and is accompanied by a proper limiting instruction." Swington, 742 So.2d at 1112(¶ 14). The purpose of Rule 403 is to ensure that the evidence offered does not present a risk of undue prejudice that would substantially outweigh the probative value if admitted. Palmer v. State, 939 So. 2d 792, 795(¶ 10) (Miss.2006).
¶ 26. The circuit court admitted the prior conviction after hearing oral arguments and considering the motion. The circuit court offered a limiting instruction in this case so that the jury would only consider the evidence for the purpose of establishing Tarver's intent to sell, transfer, or distribute marijuana. We find that the prior conviction was properly admitted to show intent and was accompanied by a proper limiting instruction. This issue is without merit.
VI. Amendment to the Indictment
¶ 27. Tarver's sixth assignment of error is that the circuit court committed reversible error by allowing the State to amend the indictment to allege that the crime was committed within 1,500 feet of a day care center instead of a park. He alleges that it caused him to be prejudiced because "before the amendment of the indictment[,] *458 the State could not prove beyond a reasonable doubt that a park was within 1[,]500 feet from the house. After the amendment, his defense that the location was not a park was no longer available."
¶ 28. "The purpose of an indictment is to furnish the defendants notice and a reasonable description of the charges against them.... Therefore, an indictment is only required to have a clear and concise statement of the elements of the crime the defendant is charged with." Spicer v. State, 921 So. 2d 292, 319(¶ 58) (Miss.2006). It may be amended to correct defects of form, but not defects of substance. Leonard v. State, 972 So. 2d 24, 28(¶ 12) (Miss.Ct.App.2008). An amendment of substance is one which "changes the charge made in the indictment to another crime." Cridiso v. State, 956 So. 2d 281, 285(¶ 9) (Miss.Ct.App.2006). A permissible change in the indictment is one that "does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case." Spears v. State, 942 So. 2d 772, 774(¶ 6) (Miss.2006). Specifically, with regard to changing a location, Mississippi Code Annotated section 99-17-13 (Rev.2007) expressly allows for a court to amend an indictment when there "appear[s] to be any variance between the statement in the indictment and the evidence offered in proof thereof, in the name of any county, city, town, village, division, or any other place mentioned in such indictment."
¶ 29. We find that the indictment fulfilled its purpose of furnishing Tarver with notice and a reasonable description of the charges against him, and that it contained a clear and concise statement of the elements of the crime with which he was charged. It stated that Tarver was being charged with the crimes of possession of marijuana with the intent to sell, transfer, or distribute pursuant to Mississippi Code Annotated section 41-29-139 (Rev.2005) and possession of a firearm by a previously convicted felon at "said location 506 Cypress Street being within one thousand five hundred (1[,]500) feet of a park, in violation of [s]ection 41-29-142(1), of the Mississippi Code of 1972."
¶ 30. Mississippi Code Annotated section 41-29-142 enhances the sentence of any person who violates section 41-29-139(a)(1) by the following actions:
possessing with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance, in or on, or within one thousand five hundred (1,500) feet of, a building or outbuilding which is all or part of a public or private elementary, vocational or secondary school, or any church, public park, ballpark, public gymnasium, youth center or movie theater[.][1]
The statute does not make any distinction between parks or schools with regard to a violation; therefore, the amendment did not change the crime with which Tarver was charged. Finally, the indictment was amended six months before the trial commenced, so the defense was given sufficient notice to prepare and adjust their defense accordingly. Based on the foregoing, we find that the indictment was properly amended.
VII. Effective Assistance of Counsel
¶ 31. Tarver's seventh assignment of error is that he received ineffective *459 assistance of counsel. He claims that ShamsidDeen was not given enough time to prepare for trial and that this led to him committing multiple errors, such as not having seen photographic evidence that the State intended to use against Tarver, using the wrong jury list to exercise peremptory challenges, and failing to make all of the objections that Tarver asserts would have been appropriate throughout the trial.
¶ 32. On direct appeal, the record is typically not sufficient to support a claim of ineffective assistance of counsel; therefore, these claims are best brought when seeking post-conviction relief. Lyle v. State, 908 So. 2d 189, 196(¶ 35) (Miss.Ct. App.2005) (citing Read v. State, 430 So. 2d 832, 837 (Miss.1983)). The proper resolution of an ineffective assistance claim made on direct appeal is to "deny relief without prejudice to the defendant's right to assert ineffective assistance of counsel in a post-conviction relief proceeding." Id. The merits of such a claim may be addressed on direct appeal if the reviewing court finds that the record is adequate to determine whether counsel was ineffective without consideration of the trial judge's findings of fact. Id. at (¶ 36).
¶ 33. To establish a claim for ineffective assistance of counsel, the defendant must prove that: (1) his counsel's performance was deficient, and (2) that deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A counsel's performance will be deemed ineffective if the reviewing court finds that counsel's conduct "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Davis v. State, 897 So. 2d 960, 964(¶ 10) (Miss.2004).
¶ 34. Although Tarver lists a number of complaints related to ShamsidDeen's representation, he has "not demonstrated prejudice where, as here, he has not alleged anything that would have led to a different result." Miller v. State, 914 So. 2d 800, 803(¶ 11) (Miss.Ct.App.2005) (citation omitted). Based on our review of the record, we find that ShamsidDeen participated extensively in voir dire and in the direct and cross-examination of the witnesses. In addition, the record reveals multiple occasions where he did object at trial. As a result, we find that Shamsid-Deen's representation was competent and successful to the extent that Tarver was found "not guilty" of one of the charges he faced. We hereby deny relief without prejudice to the defendant's right to assert ineffective assistance of counsel in a post-conviction relief proceeding.
VIII. Lost Evidence
¶ 35. Tarver's eighth assignment of error is that he should be entitled to a new trial based on the fact that the evidence had been lost by the time of trial. The evidence in question included 31.8 kilograms, or 69.6 pounds, of marijuana that was allegedly confiscated from his home by law enforcement and later found to be missing from the evidence vault. Before the evidence disappeared, however, it had been tested by the Mississippi Crime Laboratory, which confirmed that the substance was, in fact, marijuana. Tarver argues that he did not have the opportunity to have it independently tested to determine its exculpatory value.
¶ 36. "[T]he State has the duty to preserve evidence, but that duty is limited to the evidence which `might be expected to play a significant role in the suspect's defense.'" Russell v. State, 849 So. 2d 95, 114(¶ 58) (Miss.2003) (citation omitted). In order to determine whether a defendant is entitled to a new trial when evidence is lost or destroyed, the evidence must meet the following two-part test: (1) *460 the evidence must have exculpatory value or nature that that was apparent before it was lost, and (2) the evidence must be of a nature that the defendant would not have the ability to obtain comparable evidence by other means. Id.
¶ 37. Tarver does not present any evidence to support his theory that the missing evidence might be of an exculpatory nature. When the police officers first arrived at Tarver's home, he admitted that the three pounds of marijuana in his bedroom belonged to him. The officers also found a large scale under Tarver's bed and over $18,000 in cash during their search. In addition, the garbage bags found at Tarver's home containing the marijuana were confiscated by law enforcement and were presented into evidence at trial and still contained "marijuana residue."
¶ 38. At trial, Adrian Hall, a forensic scientist who had been employed by the Mississippi Crime Laboratory for seven and a half years, testified as an expert witness. He informed the court that "[his] duties include[d] the analysis for the presence or absence of a controlled substance," and that he had "performed well over four thousand different sample analys[es]" to determine whether a substance contained narcotics. Hall explained that a law enforcement officer had delivered the marijuana at issue to him on June 23, 2004. The Mississippi Crime Laboratory's policy is that it does not accept evidence that weighs over a kilogram, but instead a core sample is taken, and the evidence is returned to the officer. The lab followed this procedure in the present case, and each of the three samples tested positively as marijuana.
¶ 39. Based on the foregoing, we find that Tarver fails to meet the first prong of the analysis in demonstrating that the evidence could have been of an exculpatory nature. Tarver does not set forth any evidence to indicate that there was an error in the crime lab's testing. In addition, Tarver and Lumumba saw the evidence before it was stolen, when it was presented at an earlier hearing. If Tarver had desired to have the evidence independently tested before it went missing, he could have done so; however, he never made such a request. Accordingly, Tarver's argument is without merit.
IX. Speedy Trial
¶ 40. Tarver's ninth assignment of error is that his state and federal constitutional rights to a speedy trial were violated. He points out that his arrest occurred on June 18, 2004, his indictment was recorded on March 7, 2005, his arraignment was held on April 1, 2005, and his trial commenced on June 14, 2006. Tarver filed a Motion to Dismiss for Violation of Defendant's Speedy Trial Rights on May 31, 2005. The State, on the other hand, points to the complex evidence that was presented, the lengthy fingerprint analysis, the drug analysis, and the time needed by the crime lab to support its argument that there was good cause for the delay.
¶ 41. This Court reviews a circuit court's decision to deny a motion to dismiss for violation of a defendant's right to a speedy trial to determine whether the delay was due to good cause. Jenkins v. State, 947 So. 2d 270, 275(¶ 8) (Miss.2006) (citing Manix v. State, 895 So. 2d 167, 173(¶ 7) (Miss.2005)). A finding of good cause is a question of fact; therefore, we will uphold those decisions on appeal which are based on substantial, credible evidence and will only reverse if we find the circuit court's decision to be clearly erroneous. Walton v. State, 678 So. 2d 645, 648-49 (Miss.1996).
A. The Statutory Right
¶ 42. Mississippi law requires that all offenses for which an indictment is *461 presented shall be tried within 270 days after the accused is arraigned, unless good cause is shown and the court has entered a continuance. Miss.Code Ann. § 99-17-1 (Rev.2007). The 270-day statutory limit applies only to the length of time between the arraignment and the trial; it does not include the time between the occurrence of the crime and the indictment. Jenkins, 947 So.2d at 275(¶ 9). The State bears the burden of establishing good cause for the delay since the defendant has no duty to bring himself to trial. Herring v. State, 691 So. 2d 948, 953 (Miss.1997).
¶ 43. Tarver was arraigned on April 1, 2005. The trial was originally scheduled for June 22, 2005; however, it was continued so that Tarver's motions could be heard in a two-day hearing. The circuit court's order states that the trial had been scheduled and would have taken place had it not been for "defense counsel's failure to follow established procedures of the court and defense counsel's unavailability," so the trial was rescheduled for December 1, 2005. The circuit court judge then granted the defendant's motions for continuance on November 28, 2005, and on April 6, 2006, due to defense counsel's unavailability.
¶ 44. Accordingly, we find that Tarver's right to a speedy trial under section 99-17-1 was not violated. Although the 439 days between the arraignment and trial did exceed the 270-day limit, we do not find this to be the fault of the State or the circuit court. Continuances were filed and granted based upon showings of good cause in compliance with the statute, and "[c]ontinuances granted to the defendant toll the running of our speedy trial statute and should not be counted against the State." State v. Magnusen, 646 So. 2d 1275, 1282 (Miss.1994) (citation omitted). Therefore, this issue is without merit.
B. The Constitutional Right
¶ 45. The right to a speedy trial is set forth in the Sixth Amendment of the United States Constitution. Guice v. State, 952 So. 2d 129, 139(¶ 21) (Miss. 2007). Violation of a defendant's constitutional right to a speedy trial is not automatic grounds for dismissal. Id. at (¶ 22). Rather, a balancing test is performed, which requires that courts approach such cases on an ad hoc basis. Id. The test is derived from the United States Supreme Court case of Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), and it evaluates four factors: (1) length of the delay, (2) reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant. Guice, 952 So.2d at 139(¶ 22) (citing Barker, 407 U.S. at 530, 92 S. Ct. 2182).
(1) Length of the Delay
¶ 46. If the length of time between the arrest and trial exceeds eight months, the delay is sufficient to trigger a Barker analysis. Jenkins, 947 So.2d at 276(¶ 14). Only if the length of the delay is "presumptively prejudicial" to the defendant will the remaining factors be considered. Id. The constitutional right, unlike the statutory right, attaches at the time that a person is effectively accused of a crime. Id. Because twenty-four months passed from the time of Tarver's arrest until his trial, we will continue the Barker analysis under the assumption that it was presumptively prejudicial.
(2) Reason for the Delay
¶ 47. Next, the State bears the burden of proof in providing justification for the delay. Herring, 691 So.2d at 955-56. The State called Lawrence Williams, a detective sergeant with the Greenwood Police Department, to testify to the cause of the delay in bringing Tarver to trial. Sergeant *462 Williams pointed to the complex nature of Tarver's case, the large quantity of evidence with which they were dealing, and the fact that Greenwood had an uncharacteristically high crime rate that summer, which required that they "pretty much had every investigator working overtime.... It was just kind of pandemonium."
¶ 48. Williams explained the routine procedure that the State follows in preparing a case to present it to the grand jury, including the investigation process, paperwork, documentation, and crime lab results. The first grand jury meeting following Tarver's arrest was in September 2004. At that time, the results were not back from the crime lab, and the investigation was not complete. As a result, Tarver's case was presented to the next available grand jury, which met in January 2005. The indictment was filed on March 7, 2005, and the arraignment date was April 1, 2005. As previously stated, the trial was originally scheduled for June 2005; however, it was delayed due to the defense counsel's actions and motions for continuances.
¶ 49. Our supreme court has held that delays due to a crime lab's backlog, overcrowded dockets, and understaffed prosecutors will not be heavily weighed against the State. See Jenkins, 947 So.2d at 275-76(¶ 10); McGhee v. State, 657 So. 2d 799, 802 (Miss.1995). In Diddlemeyer v. State, 398 So. 2d 1343, 1344-45 (Miss.1981), the supreme court found that a one-year delay was not unreasonable when the appellant had not shown prejudice, and the delay was due to court congestion and the fact that a grand jury was not in session when the crime was committed. Similarly, we do not find the current delay to have been unreasonable given the circumstances in this case. This factor weighs in the State's favor.
(3) Assertion of Right
¶ 50. The State is responsible for bringing the defendant to trial in a timely manner. Magnusen, 646 So.2d at 1283. "Although the defendant has neither a duty nor an obligation to bring himself to trial, points are placed on his side of the ledger when ... he has made a demand for a speedy trial." Id. The circuit court states in its order that Tarver asserted his right to a speedy trial; therefore, this factor weighs in his favor.
(4) Prejudice
¶ 51. A defendant may be prejudiced in two ways by a delay. Skaggs v. State, 676 So. 2d 897, 901 (Miss.1996). First, it may impair the accused's ability to defend himself due to lost evidence, fading memories, and difficulty in locating witnesses. Id. Second, the restraints of the defendant's liberty may cause additional suffering. Id. Tarver complains that the delay contributed to the hardships he faced in locating two of his witnesses. However, he does not provide any evidence of how those two witnesses could have affected the outcome of his case. Therefore, this factor weighs in favor of the State.
¶ 52. After reviewing the Barker factors in light of the facts of this case and considering the totality of the circumstances, we find that the factors do not weigh in Tarver's favor. Accordingly, we find that Tarver's argument that he was not afforded a speedy trial is without merit.
X. Motion for Recusal
¶ 53. Tarver's tenth assignment of error is that the circuit court judge had developed biases against Tarver's original counsel, Lumumba, and those biases had spilled over to Tarver. To support his claim, he cites instances in which Lumumba had been late for court and had disagreements with the prosecutor and court *463 administrator, as well as motions that Tarver filed that were denied.
¶ 54. When reviewing a judge's refusal to recuse, this Courts applies a manifest-error standard. Dillard's, Inc. v. Scott, 908 So. 2d 93, 98(¶ 17) (Miss.2005). The Code of Judicial Conduct requires a judge to disqualify himself or herself when that judge's "impartiality might be questioned by a reasonable person knowing all the circumstances ... including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party." Id. (quoting Code of Judicial Conduct, Canon 3(E)(1)). A judge is presumed to be qualified and unbiased. Collins v. Joshi, 611 So. 2d 898, 901 (Miss. 1992). "This presumption may only be overcome by evidence showing beyond a reasonable doubt that the judge was biased or not qualified." Id. A judge must recuse when a reasonable person aware of all the circumstances doubts the judge's impartiality. Id.
¶ 55. Although Tarver complains that he believes the judge was biased against Lumumba, Tarver was represented by ShamsidDeen at trial since Lumumba was suspended from the practice of law. There has been no evidence presented that suggests the circuit court judge was biased or not qualified. The motions that were denied were not based on biases against Tarver, but they were denied for reasons discussed throughout this opinion. The circuit court judge refused to recuse himself stating that he "[could] not find just cause to recuse himself." Accordingly, we find no reason to doubt the judge's impartiality. This issue is without merit.
XI. Tarver's Sentence
¶ 56. Tarver's eleventh assignment of error is that the sentence and fines imposed by the circuit court are excessive and constitute cruel and unusual punishment in violation of the United States and Mississippi Constitutions. He does acknowledge, however, that they do not exceed the maximum period allowed by statute. The State believes the court was justified in imposing the maximum sentence, and it points out Tarver's prior drug-related conviction and the fact that his sentence was enhanced for public considerations as to location.
¶ 57. "Sentencing is generally within the sound discretion of the trial judge and the trial judge's decision will not be disturbed on appeal if the sentence is within the term provided by statute." Bell v. State, 769 So. 2d 247, 251(¶ 9) (Miss.Ct. App.2000). The Mississippi Supreme Court has acknowledged that the Legislature has control of the length of sentences. Id. The Legislature has provided a wide range of sentences to allow trial judges to assign appropriate sentences using their discretion. White v. State, 742 So. 2d 1126, 1137(¶ 45) (Miss.1999). This Court will, however, review a sentence on Eighth Amendment grounds that is grossly disproportionate to the crime committed. Ford v. State, 975 So. 2d 859, 869(¶ 39) (Miss.2008). If a "threshold comparison of the crime committed to the sentence imposed leads to an inference of `gross disproportionality,'" this Court will engage in the analysis provided in Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Id. (citation omitted).
¶ 58. We do not find that the sentence imposed was grossly disproportionate to the crime committed. Tarver was charged with possession of a large amount of marijuana with intent to sell or distribute within 1,500 feet of a day care center. Although he did receive the maximum possible sentence, it was within the statutory guidelines. Accordingly, we find that the circuit court did not abuse its discretion, and this issue is without merit.
*464 XII. Tarver's Motion to Suppress the Evidence from the Search Warrant
¶ 59. Tarver's twelfth assignment of error is that the circuit court abused its discretion in denying his motion to suppress evidence. Tarver alleges that Chris Davis, the confidential informant, provided false information to Greenwood law enforcement officials, and it was that false information upon which the search warrant was granted. Davis's original statement was recorded and served as the basis for the search warrant; however, he later changed his story and informed the circuit court that his statement had been false. Tarver also complains that the circuit court erred by not informing the defense that Davis was the informant.
¶ 60. This Court will only reverse a trial court's ruling on the admission or suppression of evidence if the trial court abused its discretion in making its decision. Culp v. State, 933 So. 2d 264, 274(¶ 26) (Miss.2005). On appeal, we look to determine whether there was "substantial credible evidence to support the trial court's findings." Id. With regard to disclosure of an informant's identity, disclosure is not required "unless the confidential informant is to be produced at a hearing or trial or a failure to disclose his/her identity will infringe upon the constitutional rights of the accused or unless the informant was [an eyewitness] or depicts himself/herself as an eyewitness to the event or events constituting the charge" against the accused. Graves v. State, 767 So. 2d 1049, 1052(¶ 9) (Miss.Ct. App.2000).
¶ 61. Tarver filed a motion to suppress to prevent the evidence that was seized from 506 Cypress Street from being presented at trial, but the motion was denied by the circuit court. Davis alleged that an investigator with the Greenwood Police Department, Jerome McCaskill, would tell him what to say, start the tape recorder, and then stop it in order to tell Davis what to say next; however, the court rejected his story for three reasons. First, the circuit court reviewed the tape and noted that it was only stopped one time, not repeatedly as Davis contended. Second, the circuit court noted that "Davis related his information in a detailed, unbroken narrative[,]" and "it would have been impossible for Mr. Davis to remember that many facts, unless they were based on his personal knowledge." Finally, the court stated that "the veracity of [Davis's] statement was borne out by the seizure of drugs and guns at the address. The record is devoid of any fact which would indicate how Sgt. McCaskill could possibly have known about the drugs and guns at the residence unless he learned it from [Davis]."
¶ 62. We agree with the circuit court's decision that Tarver's motion to suppress evidence obtained from the search warrant should be denied. The Greenwood Police Department enlisted the use of a confidential informant in good faith. That informant had been used on previous occasions, and in this situation, Davis provided information that proved to be accurate. We find that any recanting that may have been done by Davis after he gave his original statement is irrelevant. Accordingly, this issue is without merit.
XIII. Fundamentally Fair and Impartial Trial
¶ 63. Tarver's final assignment of error is that the accumulation of the alleged errors denied him the right to a fundamentally fair and impartial trial. As a result, he claims that he should be granted a new trial. We disagree.
¶ 64. The Mississippi Supreme Court has held the following:
*465 [u]pon appellate review of cases in which we find harmless error or any error which is not specifically found to be reversible in and of itself, we shall have the discretion to determine, on a case-by-case basis, as to whether such error or errors, although not reversible when standing alone, may when considered cumulatively require reversal because of the resulting cumulative prejudicial effect.
Lynch v. State, 951 So. 2d 549, 555-56(¶ 20) (Miss.2007). In reviewing the record, we find no evidence of any errors by the circuit court that interfered with Tarver's right to a fundamentally fair and impartial trial. We are mindful that "a criminal defendant is not entitled to a perfect trial, only a fair trial." Sykes v. State, 895 So. 2d 191, 196(¶ 22) (Miss.Ct.App.2005) (quoting McGilberry v. State, 741 So. 2d 894, 924 (¶ 126) (Miss.1999)). Because we find that each of Tarver's individual complaints is without merit, we find the same to be true on this issue.
¶ 65. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY OF CONVICTION OF POSSESSION OF MARIJUANA WITH INTENT TO SELL, TRANSFER, OR DISTRIBUTE AND SENTENCE OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A FINE OF $100,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
NOTES
[1] Although the statute does not specifically include "day care," this Court has previously held that the enhanced sentence also applied to a day care. See Hodges v. State, 906 So. 2d 23, 26(¶ 14) (Miss.Ct.App.2004). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622714/ | 634 S.W.2d 61 (1982)
Ora Lee JONES, Appellant,
v.
The STATE of Texas, State.
No. 2-81-312-CR.
Court of Appeals of Texas, Fort Worth.
May 19, 1982.
Discretionary Review Refused September 15, 1982.
J. R. Molina, Fort Worth, for appellant.
Tim Curry, Dist. Atty., and Joe C. Lockhart, Asst. Dist. Atty., Fort Worth, for appellee.
*62 Before HUGHES, HOLMAN and RICHARD L. BROWN, JJ.
OPINION
HOLMAN, Justice.
This appeal is from conviction of robbery by threats. V.T.C.A., Penal Code § 29.02.
The jury assessed punishment at 10 years imprisonment.
We affirm.
After the indictment was read to appellant in the jury's presence, she pled guilty and evidence was introduced in the punishment phase of the proceeding. V.A.C.C.P. art. 26.14.
The evidence is that on December 22, 1980, appellant entered the Fort Worth National Bank and handed a folded sack and the following note to a teller:
Act natural: This is a stickup. Don't call for a Guard. I don't want anyone to get hurt. Put $10,000 in this Bag. I want it in Old (not new) 10's and 20 Dollar Bills. You better Hope. I don't get caught. because I remember your face and name. So now Hurry up. Just Because I'm a woman don't mean I can't shoot.
The teller testified that the note caused her to think appellant had a gun and, fearing appellant would shoot her, the teller placed money in the sack and gave it to appellant.
Observing these events, a nearby customer in the bank believed appellant was holding a gun in the righthand pocket of her coat. He alerted a bank security guard who apprehended appellant inside the bank with the money in the sack.
No witness actually saw a gun nor was one found when appellant was taken into custody.
A police officer who came to the scene to complete the arrest, testified that when he arrived, the righthand pocket of appellant's coat contained a stick "shaped like a gun", and the sack contained $14,250.00.
On nine grounds, appellant complains that the trial court erred in (1) not making a sua sponte withdrawal of her guilty plea when her testimony created a question as to her guilt; (2) admitting evidence of extraneous offenses; and allowing the prosecutor to make improper jury argument as to (3) extraneous offenses and how absent witnesses might testify, (4) matters outside the record, (5) other extraneous offenses and (6) the benefits of imprisonment; and by (7) allowing the jury to communicate improperly with the court during deliberations; and (8), (9) failing to quash the indictment.
During appellant's testimony at the punishment phase, she and the prosecutor had the following exchanges:
Q. Now, Ora Lee Jones, are you telling this jury that because you have had a hard life that you had a right to go in there and rob that bank, rob Earlene Busbee and scare her half to death? Is that what you are telling these people today?
A. I did not mean, you know, to hurt the lady. I had no intention of hurting her.
. . . . .
Q. Are you also telling this jury that you didn't think what you were doing was very serious?
A. I didn't want to scare her, no. AllI just wanted toI was not going to hurt her. I just wanted to give her the note.
Appellant's first ground of error asserts that the quoted excerpts of testimony obliged the court to withdraw her plea of guilty to the charge of robbery by threats.
We disagree.
Appellant made no motion to withdraw her plea of guilty and, before a court is required to withdraw the plea sua sponte, the evidence must do more than just tend to show a defensive issue. It must fairly and reasonably raise an issue as to innocence. Reyna v. State, 434 S.W.2d 362 (Tex.Cr. App.1968).
In its entirety, appellant's testimony does not persuade us that it must be construed *63 as changing or conflicting with her plea of guilty.
Her testimony also includes the following exchanges:
Q. This note that the State has brought to this jury, who wrote that note?
A. I wrote it, sir, with no intention, though, to hurt the lady, just to scare her. I wouldn't want to hurt nobody.
. . . . .
Q. But you did commit this robbery, didn't you? That's a law violation.
A. Yes, sir, but no intention to hurt the lady, honest.
. . . . .
Q. But you must have understood by the way the note was worded that that would cause some concern, and possibly even cause somebody to overreact to what you were doing there, because for all they knew, you were armed, because you said `shoot', didn't you?
A. Yes, but I had no gun.
Q. But do you think they knew that?
A. No, I reckon not.
. . . . .
A. I didn't mean to hurt her. I didn't want to hurt her. All I wanted to do was scare
Q. I don't care whether you wanted to hurt her or not. I'm talking about what she thought.
A. I just wanted to scare her. (emphasis added.)
We conclude that appellant's testimony overall was consistent with her plea of guilty. Green v. State, 567 S.W.2d 211 (Tex.Cr.App.1978).
Appellant's first ground of error is overruled.
The second ground complains that the prosecutor introduced evidence of extraneous offenses by asking a State's witness, a police officer, whether "the incident (sic) of robberies in Fort Worth goes up around Christmas time".
Objection to the officer's affirmative response was overruled by the court, and we find no error in the ruling.
The question did not attribute the increase in robberies at Christmas to the appellant nor did it infer that she was in any way responsible for any robbery other than the one with which she was charged.
Appellant's second ground of error is overruled.
The third ground contends that the following excerpt from the prosecutor's jury argument improperly alludes to extraneous offenses and speculates as to the content of testimony of witnesses not called by the State:
So, ladies and gentlemen, I would ask you by your verdict to not only tell Ora Lee Jones that she has committed a violation and she must be punished; I would ask you also by your verdict to send a message to other people who are contemplating this very thing, to back off, it won't be tolerated in Tarrant County, Texas. We are drawing the line right here, as I said, the reason being, if we don't draw it right here, that we are going to move it up another notch. The next person that comes in here is going to say, `Well, I had a weapon, but it was unloaded. This girl had a stick, but I had a weapon. It wasn't loaded and nobody got hurt. Give me probation.'
The next one that comes in here is going to move that line up another notch and say, `Yes, I had a weapon and it was loaded, but nobody got hurt.' And we move it up another notch, `Yes, I had a weapon and a few shots were fired, but they all bounced off harmlessly, and nobody got hurt.'
We conclude that the challenged argument was not extreme or manifestly improper nor did it inject new and harmful facts into the punishment phase.
We hold that the argument was a proper use of hypothesis as an allowable plea for law enforcement; and did not purport to characterize the testimony of actual witnesses *64 not called. Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980); McClory v. State, 510 S.W.2d 932 (Tex.Cr.App.1974); Bacon v. State, 500 S.W.2d 512 (Tex.Cr.App.1973).
Appellant's third ground of error is overruled.
The fourth ground attacks a portion of the prosecutor's argument in which he said:
These defendants never cease to amaze me. They get on the witness stand and they ... They quake and tremble and they act remorseful. I submit to you that they are not really sorry for what they did out there. The only thing they are sorry about is that they got caught.
Appellant complains that the quoted argument introduced extraneous offenses and matters outside the record.
The ground of error, however, fails to comport with the objection raised at trial and thus presents nothing for review. Crocker v. State, 573 S.W.2d 190 (Tex.Cr. App.1978).
Appellant's fourth ground of error is overruled.
The fifth ground also contends that extraneous offenses were introduced by the following jury argument of the prosecutor:
Also, ladies and gentlemen, by your verdict, you will tell other people who are out there in the community right now contemplating this very thing. You saw in her statement where she thought about it for two days. She thought about it for two days. There are people out there right now thinking about doing the same thing, maybe not under these circumstances, but they are planning a robbery out there. You are going to tell them
We conclude the argument was a proper plea for law enforcement and overrule the fifth ground of error. Bacon v. State, supra.
Appellant's sixth ground of error attacks comments in the prosecutor's jury argument that it would be in appellant's best interest to go to Texas Department of Corrections because "she needs to learn a valuable trade or skill ..."
Appellant had testified that she had no employment and no employable skills. Her counsel had argued to the jury that the appellant should be given supervision and counseling in some type of community-based program.
We hold that the prosecutor's remarks were a legitimate reply. Smith v. State, 516 S.W.2d 415 (Tex.Cr.App.1974).
The sixth ground of error is overruled.
The seventh ground complains of a note which the jury foreman prepared for submission to the trial judge.
Appellant argues that the disposition of the note failed to comply with V.A. C.C.P. art. 36.27, because it was not submitted to appellant and her counsel to enable them to register their objections and exceptions prior to the judge's reply.
The record, however, does not confirm that the judge ever received the note or that he made any response whatsoever to the question it contained.
We conclude that if there was a note, the failure to show that it reached the court and that the jury received any answer, preserves no error for us to review.
The seventh ground of error is overruled.
The eighth ground complains of the trial court's failure to quash the indictment for its failure to allege the manner and means by which the appellant allegedly threatened or placed the injured party in fear of imminent bodily injury or death.
The ninth ground complains that the indictment failed to give her proper notice, because it did not define the phrase "in the course of committing theft".
The indictment took the phrase from the statute which makes robbery an offense. V.T.C.A., Penal Code Sec. 29.02.
We hold that the alleged defects for lack of notice were waived by appellant's voluntary and knowing plea of guilty before the jury. Galitz v. State, 617 S.W.2d 949 (Tex.Cr.App.1981); Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972).
*65 The eighth and ninth grounds of error are overruled.
Judgment is affirmed.
RICHARD L. BROWN, J., not participating in the decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622709/ | DONNA DUCOTE
v.
DELMA L. MURRAY, CHERYL SAIA AND ALLSTATE INSURANCE COMPANY
No. 2009-CA-0394
Court of Appeals of Louisiana, Fourth Circuit.
August 5, 2009
Not Designated for Publication
MICHAEL C. GINART, Jr., RICHARD A. TONRY, KIM C. JONES, CULLEN A. TONRY, JEREMY K. LEE, LAW OFFICE OF TONRY & GINART, LLC Counsel for Donna Ducote
PAUL A. TABARY III, ELIZABETH R. BORNE, DYSART & TABARY, L.L.P. Counsel for Allstate Insurance.
Court composed of Judge MURRAY, Judge KIRBY, Judge LOVE.
TERRI F. LOVE, Judge
This appeal arises from a collision involving three automobiles. The trial court found the middle automobile thirty-three percent liable for the accident when the driver testified that she was at a complete stop prior to the collision. We find that the trial court committed manifest error by holding the driver of the middle car liable and reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On November 10, 2004, Donna Ducote ("Ms. Ducote") was driving on St. Bernard Highway in Chalmette, Louisiana. Ms. Ducote was driving the lead automobile and was stopped at a red light. The second automobile was operated by Cheryl Saia ("Ms. Saia"), who was insured by Allstate Insurance Company ("Allstate"). The third automobile, operated by Delma L. Murray ("Mr. Murray"), who was not insured at the time of the accident, struck Ms. Saia's automobile, which then struck Ms. Ducote's automobile.
Ms. Ducote filed a petition for damages against Mr. Murray, Ms. Saia, and Allstate. Allstate filed an exception of prescription, which the trial court denied. Following a brief bench trial, the trial court awarded Ms. Ducote damages as follows:
General damages: $15,000
Special Damages: $3,600
__________________________________
TOTAL: $18,600
The trial court held Mr. Murray sixty-seven percent liable and Ms. Saia/Allstate thirty-three percent liable. Allstate filed a motion for a new trial because the original judgment was rendered against Ms. Saia although she was not served and alleged that no testimony proved the alleged negligence of Ms. Saia. The trial court amended the judgment to hold Allstate thirty-three percent liable as the insurer of Ms. Saia. Allstate's suspensive appeal followed.
STANDARD OF REVIEW
Appellate courts review findings of fact using the manifest error or clearly wrong standard. Arias v. Stolthaven New Orleans, L.L.C., 08-1111, p. 5 (La. 5/5/09), 9 So. 3d 815, 818. "When the factual findings are based on the credibility of witness testimony, the appellate court must give great deference to the fact finder's decision to credit witness testimony." Kees v. Kees, 08-0124, 08-0125, p. 7 (La. App. 4 Cir. 8/13/08), 992 So. 2d 568, 571. However, "[t]o substantiate reversal, the appellate court must find from the record that there is no reasonable factual basis for the finding of the trial court and that the record establishes that the finding is clearly wrong (manifestly erroneous)." Watts v. Watts, 08-0834, pp. 2-3 (La. App. 4 Cir. 4/8/09), 10 So. 3d 855, 857-58.
If the trial court's holding is based on the erroneous application of law, then the appellate court must review the record using the de novo standard. Lucas v. Tenet Health Sys. Hosp., Inc., 01-2219, p. 2 (La. App. 4 Cir. 5/1/02), 818 So. 2d 269, 270-71.
MS. SAIA'S ALLEGED NEGLIGENCE
"The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway." La. R.S. 32:81(A). The "driver of a following vehicle must keep his vehicle under control, follow at a safe distance and carefully observe the forward vehicle; and if a rear-end accident occurs the driver of the following vehicle is generally presumed to be negligent." Coates v. Marcello, 235 So. 2d 162, 163 (La. App. 4th Cir. 1970). The burden then shifts to the driver of the following automobile to "exonerate herself from any negligence." Dolmo v. Williams, 99-0169, p. 3 (La. App. 4 Cir. 9/22/99), 753 So. 2d 844, 846. However, "where other vehicles are able to stop behind the lead car, the last car which precipitates the chain reaction collision is negligent." Staehle v. Marino, 201 So. 2d 212, 214 (La. App. 4th Cir. 1967).
Ms. Ducote testified at trial, "all I remember is somebody ran into me." She stated that she does not remember if there were one or two impacts or if there was any skidding. On cross examination, she testified that she did not remember stating in her interrogatories[1] that the only reason Ms. Saia struck her was because Mr. Murray struck Ms. Saia. Additionally, on cross, she blamed the police for her contradictory deposition testimony, stating that Ms. Saia struck her because Mr. Murray struck Ms. Saia so hard. Finally, she testified that she now does not remember how the accident happened.
Ms. Saia testified that her automobile was stopped at the red light approximately one-half car length behind Ms. Ducote when Mr. Murray struck her and caused her to "bump" Ms. Ducote. She reiterated and emphasized that her automobile was at a complete stop.
The trial court found Ms. Saia thirty-three percent at fault because it found Ms. Ducote to be a credible witness. The trial court also stated that Ms. Saia should have taken necessary precautions to stop a safe distance away from Ms. Ducote.
However, a review of the record reveals that Ms. Saia met her burden of overcoming the presumption of negligence. Ms. Saia testified that her automobile was at a complete stop at least a half a car length behind Ms. Ducote prior to the impact of Mr. Murray's automobile. Ms. Ducote, on cross examination, was confronted with the fact that she stated, in her answers to Allstate's interrogatories, that the only reason Ms. Saia struck her automobile was because Mr. Murray struck Ms. Saia in the answers to Allstate's interrogatories. Although, in her deposition, Ms. Ducote tried to blame this recitation of the facts the police, it was again reinforced that she initially stated that the cause of the accident was Mr. Murray. At trial, Ms. Ducote claimed that she no longer remembered how the accident happened. Accordingly, we find that the trial court committed manifest error in attributing thirty-three percent of the fault for the accident to Ms. Saia, as the record is devoid of evidence of her negligence.
DECREE
For the above mentioned reasons, we find that the trial court committed manifest error when it found Ms. Saia thirty-three percent liable for the collision, as the record reflects that she was at a complete stop at the time of the collision. Accordingly, we reverse the decision of the trial court and find that Ms. Saia was not at fault in the accident and that Allstate, as her insurer, is not assessed liability.
REVERSED
NOTES
[1] The interrogatories referred to were propounded upon Ms. Saia by Allstate. Ms. Ducote was asked to describe the accident in her own words and she stated: "I was sitting at a red light and the car behind me hit me because the car behind her hit her so hard." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622635/ | 15 So. 3d 500 (2009)
Jeff GREEN
v.
STATE of Alabama.
CR-05-1597.
Court of Criminal Appeals of Alabama.
December 19, 2008.
George L. Beck, Jr., and Chad W. Bryan, Montgomery, for appellant.
Troy King, atty. gen., and Robin Denise Scales, asst. atty. gen., for appellee.
PER CURIAM.
On authority of Ex parte Green, [Ms. 1070388, July 18, 2008] 15 So. 3d 489 (Ala. 2008), the judgment of the circuit court is reversed and this cause remanded for proceedings consistent with the Supreme Court's opinion.
REVERSED AND REMANDED.
BASCHAB, P.J., and WISE, J., concur. SHAW, J., concurs specially, with opinion, which McMILLAN and WELCH, JJ., join.
SHAW, Judge, concurring specially.
I agree to reverse the circuit court's judgment and to remand this cause for further proceedings on the authority of Ex parte Green, [Ms. 1070388, July 18, 2008] 15 So. 3d 489 (Ala.2008), because this Court is "bound by the decisions of the Alabama Supreme Court and ... cannot overrule the decisions of that Court." L.J.K. v. State, 942 So. 2d 854, 873 (Ala.Crim.App. 2005) (opinion on application for rehearing), *501 citing § 12-3-16, Ala.Code 1975. However, I question whether the Supreme Court's opinion in this case has the effect, albeit unintended, of shifting the burden of proof in a Rule 32, Ala.R.Crim.P., proceeding from the petitioner to the State in cases dealing with trial counsel's effectiveness with regard to the validity of a search warrant.
As the Supreme Court noted in its opinion, a facially defective affidavit submitted in support of a search warrant may be cured by additional information supplied to the issuing magistrate beyond that contained in the affidavit. Relying on cases in which this Court held that the State had failed to meet its burden of proof in a suppression hearing because the affiants had stated that they did not recall whether they had presented additional information to the issuing magistrates beyond that contained in the affidavit, see Lewis v. State, 589 So. 2d 758 (Ala.Crim.App.1991), and Nelms v. State, 568 So. 2d 384 (Ala.Crim. App.1990), the Supreme Court concluded that "no such circumstance is presented in this case" because the affiant in this case stated at the Rule 32 hearing that he "[did]n't recall" whether he had presented any additional information to the issuing magistrate beyond that contained in the affidavit and "such oral testimony is insufficient to cure the deficiency of a supporting affidavit."
However, the burden of proof in a Rule 32 proceeding is on the petitioner, not the State. See Rule 32.3, Ala.R.Crim.P. ("The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief."). The State is not required in a Rule 32 proceeding to present evidence indicating that a search was valid in order to rebut a claim of ineffective assistance of counsel; rather, the burden is solely on the petitioner to present evidence indicating that a search was not valid in order to establish that counsel's performance was deficient. Thus, in this case the State was not required to present evidence at the Rule 32 hearing indicating that the deficiency in the affidavit was cured; rather, the burden was on the petitioner to present evidence indicating that the deficiency in the affidavit was not cured. Just as a statement by an affiant that "I don't recall" is insufficient, when the burden is on the State in a suppression hearing, to establish that additional information beyond that contained in the affidavit was presented to the issuing magistrate in securing a search warrant, I continue to believe, as this Court held in its unpublished memorandum affirming this case, that the statement "I don't recall" is equally insufficient, when the burden is on the petitioner in a Rule 32 proceeding, to establish that additional information beyond that contained in the affidavit was not presented to the issuing magistrate in securing a search warrant.
McMILLAN and WELCH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920531/ | 447 N.W.2d 635 (1989)
233 Neb. 715
STATE of Nebraska, Appellee,
v.
Scott A. REICHSTEIN, Appellant.
No. 88-943.
Supreme Court of Nebraska.
November 3, 1989.
*636 Calvin D. Hansen, Lincoln, for appellant.
Robert M. Spire, Atty. Gen., and Terri M. Weeks, for appellee.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN and GRANT, JJ.
GRANT, Justice.
This is an appeal from the defendant-appellant's conviction under Neb.Rev.Stat. § 39-669.07(c) (Supp.1987) of driving while his license was revoked pursuant to multiple convictions of driving while under the influence of alcohol.
On May 29, 1986, the defendant pled guilty to an information in the county court for Red Willow County charging him with his third offense of driving while intoxicated under § 39-669.07 (Cum.Supp.1986). Section 39-669.07(3) (Cum.Supp.1986) was applicable to the defendant because of his multiple convictions. That subsection, so far as is applicable here, appears at § 39-669.07(c) (Supp.1987), and states:
If such person (i) has had two or more convictions under this subsection since July 17, 1982 ... such person shall be guilty of a Class W misdemeanor, and the court shall ... order such person not to drive any motor vehicle ... for a period of fifteen years from the date of his or her conviction and shall order that the operator's license of such person be revoked for a like period.
On July 10, 1986, the county court for Red Willow County sentenced defendant as follows:
IT IS THEREFORE ORDERED that the defendant be sentenced to pay a fine of $250 plus court costs of $51; be sentenced to serve 90 days in jail ... and it is further ordered that the defendant not drive any motor vehicle in the State of Nebraska for any purpose for a period of five years and that his operator's license be revoked for a like period.
It is apparent that the sentence was erroneous and resulted in defendant's receiving a lesser sentence than required by the statute. First, Neb.Rev.Stat. § 28-106(1) (Cum.Supp.1986) provides that the minimum fine for a third offense Class W misdemeanor is $500, and second, § 39-669.07(c) provides that the period of revocation shall be 15 years. The defendant's sentence for his third driving while intoxicated conviction included a revocation of his operator's license for 5 years, rather than for the 15 years mandated by the statute. If either the State or defendant had timely appealed from the erroneous sentence of July 10, 1986, the matter could have been corrected. See, State v. Ulrich, 217 Neb. 817, 351 N.W.2d 417 (1984); State v. Gaston, 191 Neb. 121, 214 N.W.2d 376 (1974). The sentence may not be corrected at this time, and the case must be decided on the facts before us.
On October 4, 1987, in Lancaster County, defendant was stopped by a police officer who saw that the pickup defendant was driving did not have a rear license plate. Upon investigation, the officer ticketed the defendant for driving under a suspended license. An information was filed alleging that defendant, "being a person whose Nebraska driver's license has been revoked pursuant to subdivision (c) of subsection 4 of Neb.Rev.Stat. Section Number 39-669.07, [did] operate a motor vehicle on the street or highways of this state."
Defendant was convicted by a jury of violating § 39-669.07(c), which states in relevant part, "Any person operating a motor vehicle on the highways or streets of this state while his or her operator's license has been revoked pursuant to subdivision (c) of this section shall be guilty of a Class IV felony."
As set out above, defendant was charged with operating a motor vehicle while his driver's license had been revoked under "subdivision (c) of subsection 4 of Neb.Rev.Stat. Section Number 39-669.07...." The jury was instructed in the same manner, and defendant requested instructions *637 in the same language. We note that the statute's numbering system is not logically set out. "Subdivision (c)" is not a subdivision of "subsection 4," but subsections (a), (b), and (c), in addition to subsections (1), (2), (3), and (4), are subsections of § 39-669.07. The peculiar numbering does not mean that subsections (a), (b), and (c) refer only to subsection (4). The statutory references, in future cases, should be correctly stated. We recognize that this court has made similar improper references in past cases. There is no prejudice in this case from the numbering of the statute, because both the State and the defendant fully understood the charge and both used the identical improper reference.
The defendant's assignments of error allege that the trial court erred (1) in overruling the defendant's motion to quash the information, (2) in refusing to give defendant's requested jury instructions, and (3) in overruling defendant's motion for a directed verdict based on the insufficiency of the evidence.
Defendant's assignments of error are based upon the language in § 39-669.07(c) which directs the trial court to revoke the operator's license of a multiple offender for 15 years. Defendant argues that the offense of driving with a revoked license under § 39-669.07(c) requires proof not only of prior revocation of the defendant's license pursuant to that section, but also requires proof that the revocation was for 15 years as set out in the statute. We disagree and affirm the judgment of the trial court.
As set out above, the defendant was convicted of violating § 39-669.07(c); which proscribes a person from driving "while his or her operator's license has been revoked pursuant to subdivision (c) of this section...." The statute makes reference to the fact of revocation pursuant to the statute, and not to the length of revocation pursuant to the statute. As we stated in Hancock v. State ex rel. Real Estate Comm., 213 Neb. 807, 811, 331 N.W.2d 526, 529 (1983), "A penal statute is strictly construed, [and] nothing will be recognized, presumed, or inferred that is not expressed, unless necessarily or unmistakably implied in order to give effect to the statute." (Citations omitted.) The durational requirement argued for by the defendant is not necessary to give effect to the statute. It appears that the Legislature wished to punish persons who drive while their license is revoked pursuant to multiple drunken driving convictions, regardless of the duration of the revocation. The purpose of revocation is to keep those guilty of repeated drunk driving from operating a motor vehicle on Nebraska roadways. The purpose of the subsection under which defendant is charged is to deter people from ignoring the revocation. The section was intended to keep people like the defendant from driving, and not to restrict the trial courts in sentencing. The defendant argues only that the language of the statute refers to revocation and not conviction, and presents no rationale for including a durational element. We hold that revocation for 15 years is not an element of the offense of driving with a revoked license under § 39-669.07(c).
Defendant's reliance on State v. Blankenfeld, 229 Neb. 411, 427 N.W.2d 65 (1988), is misplaced. That case interpreted the language of § 39-669.07 as it existed in 1984. At that time the statute referred specifically to one operating a vehicle "while his or her operator's license has been permanently revoked...." Section 39-669.07 was amended in 1986, and the reference to the duration of the revocation was removed from that sentence. Blankenfeld is distinguishable from this case.
In his first assignment, defendant contends that the trial court erred in not sustaining his motion to quash the information because the information failed to give the defendant notice of the essential elements of the offense charged. As we stated in State v. Golgert, 223 Neb. 950, 953, 395 N.W.2d 520, 522-23 (1986), "` "To charge a statutory offense, the information or complaint must contain a distinct allegation of each essential element of the crime as defined by the law creating it, either in the language of the statute or its equivalent."` [Citations omitted.]" We also stated, *638 "`[F]or an information to be sufficient it must "inform the accused, with reasonable certainty, of the charge being made against him in order that he may prepare his defense thereto and also be able to plead the judgment rendered thereon as a bar to a later prosecution of the same offense."' [Citations omitted.]" Id. at 953, 395 N.W.2d at 523. There is no question that the information upheld by the trial court in this case used language equivalent to the statute and informed the accused with reasonable certainty of the charge being made against him. As discussed above, there was no need for the information to charge that the revocation pursuant to the driving while intoxicated statute was for 15 years, because it is not an element of the offense. Defendant's first assignment is without merit.
Defendant's second assignment of error pertains to the trial court's refusal to give two jury instructions requested by defendant. As we stated in State v. Redding, 213 Neb. 887, 891, 331 N.W.2d 811, 813 (1983), "[I]t is the duty of the trial court to instruct the jury on the correct law...." The first jury instruction requested by the defendant and refused by the trial court contained the statement that the State was required to prove a 15-year revocation of defendant's operator's license. As discussed above, this was an incorrect statement of the law, and the instruction was rightfully refused by the trial court.
The second jury instruction requested by the defendant and refused by the trial court was a quote of § 39-669.07. The trial court gave the identical instruction, except the trial court deleted irrelevant subsections. The trial court's instruction contained all relevant portions of the statute. It is not error for the trial court to omit inapplicable portions of a statute in a jury instruction. State v. Poulson, 194 Neb. 601, 234 N.W.2d 214 (1975). The defendant incorrectly cites to the court a proposition of law that refusal by a trial court to give a requested instruction that correctly states the law is reversible error. Failure to give a jury instruction only constitutes reversible error if there is prejudice to the defendant. See Redding, supra. There was no prejudice in this case, and the trial court correctly refused the defendant's instruction.
In his third assignment of error the defendant argues that there was insufficient evidence to support the defendant's conviction. This assignment is also based upon defendant's argument that revocation for 15 years is an element of the offense charged. The State was not required to prove that the revocation pursuant to § 39-669.07(c) was 15 years in duration. The defendant's third assignment of error is without merit.
The judgment and sentence of the district court are affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920536/ | 447 N.W.2d 11 (1989)
In the Matter of a Complaint of PEOPLE'S COOPERATIVE POWER ASSOCIATION, INC. Against the City of Rochester.
No. C2-89-528.
Court of Appeals of Minnesota.
October 24, 1989.
Review Denied January 8, 1990.
Kenneth R. Moen, Dunlap, Finseth, Berndt & Sandberg, P.A., Rochester, for relator People's Cooperative Power Ass'n, Inc.
Frederick S. Suhler, Jr., Rochester, for respondent City of Rochester.
Hubert H. Humphrey, III, Atty. Gen., Gregory D. Dittrich, Margie E. Hendriksen, Sp. Asst. Attys. Gen., St. Paul, for respondent Minnesota Public Utilities Com'n.
Heard, considered and decided by PARKER, Presiding Judge, FORSBERG, Judge, and SHORT, Judge.
OPINION
FORSBERG, Judge.
The Public Utilities Commission determined that People's Cooperative Power Association, Inc. had received adequate notice and an opportunity to be heard in proceedings to determine interim electric service rights to a new facility in territory annexed by the City of Rochester. We reverse and remand for contested case proceedings.
FACTS
Relator People's Cooperative Power Association, Inc. (People's Cooperative) is a cooperative electric association regulated by the respondent Public Utilities Commission (Commission). Respondent City of Rochester (City) operates a municipal electric utility which is also regulated by the Commission.
In September 1974, People's Cooperative and the City were assigned electric service areas in and around Rochester pursuant to Minn.Stat. § 216B.39, subd. 2 (1974). The service areas were established in accordance with the legislative policy
to eliminate or avoid unnecessary duplication of electric utility facilities and to promote economical, efficient, and adequate electric service to the public * * *.
Minn.Stat. § 216B.37 (1988).
In June 1988, the City began proceedings to annex the building site of a planned facility known as Victory Baptist Church (Church). The Church site was located within People's Cooperative's assigned service area. On or about September 23, 1988, without permission from People's Cooperative or the Commission, the City began *12 extending its electric facilities through People's Cooperative's assigned service area to the Church site. At that time, the annexation ordinance was awaiting approval by the Minnesota Municipal Board and filing with the Secretary of State.
People's Cooperative filed a complaint with the Commission, objecting to the City's extension of electric facilities across its territory. The complaint alleged that the City's extension of service was duplicative and unnecessary because People's Cooperative had sufficient existing capacity to service all temporary and permanent electric needs of the Church site. The complaint requested the Commission to issue an order requiring the City to cease extending its service into People's Cooperative's area until the parties could arrive at a settlement.
The City filed an answer to People's Cooperative's complaint, alleging that there was not yet an electric customer on the Church site, and there would not be any customer there until annexation of the site was finalized. The City admitted extending its lines across People's Cooperative's territory to the Church site, but denied such extension was duplicative, since People's Cooperative's existing facilities were necessary to serve its existing customers. The City also denied that its actions were unlawful.
The Commission considered People's Cooperative's complaint at its meeting on October 4, 1988. The parties received only telephone notice of the meeting. The City and People's Cooperative were represented at the meeting by their managers and counsel, who were allowed to argue their clients' positions. The parties submitted written documents and oral testimony, but witnesses were not sworn or cross-examined.
The Commission tabled the matter until October 11, 1988. The parties did not receive written notice of the October 11 meeting, but received only the verbal notice conveyed during the October 4 meeting. As allowed by the Commission, both People's Cooperative and the City submitted additional written comments and argument.
At the October 11 meeting, a member of the Commission staff summarized the parties' dispute and the written materials which had been submitted. The Commission discussed the matter, occasionally asking questions of the parties' counsel. The chair controlled the order and extent of comments, and the parties were limited to responding to questions by the Commission.
At the conclusion of the meeting, the Commission found the City's conduct in violation of the law and referred the matter to the Minnesota Attorney General. The Commission ordered that the City cease further construction until annexation of the Church site was completed; after that time, the Commission ordered that the City be allowed to serve the Church site until the parties could arrive at a decision regarding compensation by the City to People's Cooperative for the right to service the annexed area.
People's Cooperative and the Department of Public Service petitioned for reconsideration, and the Commission issued a clarifying order. The Commission concluded that its notice and hearing on the issues had been sufficient, and that it had not been required to conduct a contested case hearing. The Commission explained that although People's Cooperative had been providing service to the territory being annexed, the extension of People's Cooperative's services to the new Church facility would not be in the public interest.
People's Cooperative obtained a writ of certiorari, seeking review of the Commission's initial order and clarifying order.
ISSUE
Did People's Cooperative receive adequate notice and an opportunity to be heard on the issue of who should provide service to the Church site pending a compensation agreement between People's Cooperative and the City?
ANALYSIS
An electric utility has exclusive service rights in its assigned service area, and no *13 utility may provide service within another utility's area unless written consent has been obtained. Minn.Stat. § 216B.40 (1988). A municipality's annexation of a part of another utility's assigned service area will not impair or affect that utility's rights unless the municipality elects to purchase the facilities and property of the electric utility. Minn.Stat. § 216B.41 (1988).
Until the parties arrive at an agreement regarding the purchase or exchange of the right to serve the annexed territory, the utility being displaced
shall not extend service to additional points of delivery within the annexed area if the commission, after notice and hearing, with due consideration of any unnecessary duplication of facilities, shall determine that the extension is not in the public interest.
Minn.Stat. § 216B.44 (1988) (emphasis added).
People's Cooperative argues the language "notice and hearing" required a contested case hearing on the issue of which utility was entitled to provide service to the Church site while the question of compensation was being determined. "An agency shall initiate a contested case proceeding when one is required by law." Minn.Stat. § 14.57 (1988). A "contested case" is defined as
a proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing.
Minn.Stat. § 14.02, subd. 3 (1988). Minnesota's Administrative Procedure Act itself does not provide a right to a contested case hearing, but establishes the procedures to be followed when another statute provides such right. Cable Communications Board v. Nor-West Cable Communications Partnership, 356 N.W.2d 658, 665 (Minn.1984). Minn.Stat. § 216B.44 clearly provides the right to a "hearing" on the issue of service rights to the new Church site within the area annexed by the City.
The Commission determined that a contested case hearing was unnecessary because there were no material facts in dispute.
The method of trial is never required except when facts are in dispute. * * * "Where no genuine or material issue of fact is presented the court or administrative body may pass upon the issues of law after according the parties the right of argument."
K. Davis, Administrative Law Text at 159 (3rd ed. 1972) (citation omitted). See Costle v. Pacific Legal Foundation, 445 U.S. 198, 214, 100 S. Ct. 1095, 1105, 63 L. Ed. 2d 329 (1980) (adjudicatory hearing unnecessary where legal, not factual, issues raised); Jones v. Minnesota State Board of Health, 301 Minn. 481, 483-84, 221 N.W.2d 132, 134-35 (1974) (due process did not require hearing where undisputed facts were disclosed in application for license and board review was limited to determining legal issue).
In documents presented to the Commission, People's Cooperative raised issues of material fact regarding the distance between the City's electric facilities and the Church site, potential duplication of services, and potential safety hazards caused by duplicative construction. Accordingly, a contested case hearing was necessary to resolve these and any other material issues.
Because we remand for a contested case hearing, we need not address the parties' arguments regarding adequacy of notice or whether the Commission's order was arbitrary and capricious or unsupported by substantial evidence.
DECISION
A contested case hearing was required to determine electric service rights to the Church site pending a settlement determination between People's Cooperative and the City.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920540/ | 447 N.W.2d 5 (1989)
ST. PAUL FIRE & MARINE INSURANCE COMPANY, Respondent,
v.
Ronald W. LOVE, Defendant,
M.A., et al., Appellants.
No. C7-89-1268.
Court of Appeals of Minnesota.
October 24, 1989.
Review Granted December 15, 1989.
*6 Kay Nord Hunt, Phillip A. Cole, Lommen, Nelson, Cole & Stageberg, Minneapolis, for respondent.
John A. Warchol, Robert J. Hajek, Warchol, Berndt & Hajek, Minneapolis, for appellants.
Heard, considered and decided by RANDALL, P.J., and FOLEY and LANSING, JJ.
OPINION
LANSING, Judge.
Mary Adams and Dr. Richard Adams[1] appeal a summary judgment in a declaratory action brought to determine coverage under a professional liability policy. The trial court held that alleged malpractice, which included the psychologist's sexual involvement with Mary Adams, was not part of the professional treatment and not covered by the policy. Because the undisputed affidavit of the sole expert witness supports the Adamses' contention that a number of the alleged acts of negligence arose within the counseling relationship, we reverse the summary judgment precluding coverage and remand to the trial court.
FACTS
Dr. Ronald Love, a licensed consulting psychologist, began treating Mary Adams in December 1985 for problems stemming from childhood sexual abuse and current marital difficulties. At Dr. Love's urging, Mary Adams' husband, Dr. Richard Adams, was also included in the the counseling in separately scheduled sessions.
In late May of 1986, Dr. Love became emotionally and sexually involved with Mary Adams. Love continued to meet with Mary Adams at the counseling center, in a park, in a car, and at the Adamses' home until August 1986. During these meetings, Love and Adams hugged, kissed and engaged in intercourse. Love continued to treat Dr. Adams until late June of 1986, when Adams became aware of the sexual relationship between his wife and Love.
The Adamses' brought the underlying action on theories of negligence and breach of contract.[2] Love requested indemnity and defense from his professional liability insurer, St. Paul Fire and Marine Insurance Company. The insurer undertook the defense subject to a reservation of rights and brought a declaratory judgment action to determine coverage. The motion was submitted on depositions and affidavits, including the affidavit of the Adamses' expert witness, Gary Schoener. Schoener, a licensed psychologist and Ph.D. candidate in clinical counseling, is the executive director of a major metropolitan counseling center and an adjunct faculty member of the University *7 of Minnesota School of Public Health.
Basing his opinion on transcripts of Dr. Love's and Mary Adams' depositions and Dr. Love's answers to interrogatories, Schoener concluded that Dr. Love breached the standards of care as a psychologist practicing in the metropolitan Minneapolis area and was negligent in providing services or in failing to provide services in the following ways: (1) improper and non-therapeutic disclosure of the therapist's personal problems to the patient; (2) therapist's failure to adequately recognize and deal with emotional transference and counter transference; (3) therapist's failure to monitor his personal health, preventing effective therapy; (4) therapist's attempting to personally counsel client to "fix" the results of therapist's sexual involvement; and (5) failure to provide outside therapeutic intervention for problems arising from the sexual involvement.
The trial court granted the insurer's motion for summary judgment, reasoning that "the sexual involvement of defendant Love and Mary Adams could not be construed to be part of any professional treatment or therapy that Mary Adams was receiving" and "therefore do[es] not constitute the providing or withholding of professional services."
ISSUES
1. Did the trial court err in its summary judgment declaration that the professional liability policy did not cover the acts alleged by Mary Adams?
2. Did the trial court err by granting the insurer summary judgment on the claims of Richard Adams?
ANALYSIS
The facts underlying the Adamses' claims are undisputed and the resolution of the issue turns on the language of the professional liability policy. The interpretation and construction of an insurance policy is a question of law. Iowa Kemper Insurance Co. v. Stone, 269 N.W.2d 885, 887 (Minn.1978). We are required to determine whether the trial court properly interpreted and applied the law to the facts presented. Associated Independent Dealers, Inc. v. Mutual Services Insurance Co., 304 Minn. 179, 229 N.W.2d 516, 519 (1975). The applicable portion of Love's professional liability policy states:
This policy provides coverage for professional liability claims made against you * * *. To be covered, claims must be based on events that happen while the policy is in effect and arise out of the profession named in the coverage summary [i.e., "psychologist"].
Individual coverage. We'll pay amounts you're legally required to pay for damages resulting from:
* Professional services that you provided or should have provided.
The policy does not define the phrase "arise out of the profession" or the term "professional services." When the terms of an insurance policy are not specifically defined, they must be given their plain, ordinary, or popular meaning. Dairyland Insurance Co. v. Implement Dealers Insurance Co., 294 Minn. 236, 244, 199 N.W.2d 806, 811 (1972).
I
Mary Adams contends that the action alleged in her complaint came within the policy's coverage because Love breached the standard of care required of a therapeutic professional and was negligent in his provision of psychotherapeutic services. The insurer argues that the alleged actions occurred outside the professional relationship and are not covered by the policy.
The cluster of actions and inactions on which the expert premises his opinion of negligence relate primarily to a therapistclient interaction referred to as "transference" and "counter transference." Originally identified by Sigmund Freud, transference is "a reproduction of emotions relating to repressed experiences, especially of childhood, and a replacement of another person, such as the psychoanalyst, for the original object of the repressed impulses." Webster's Unabridged Dictionary, Second *8 Edition. The medical dictionaries similarly define it as:
The mental process whereby a person transfers patterns of feelings and behavior that had previously been experienced with important figures such as parents or siblings to another person. Quite often these feelings are shifted to the psychiatrist. * * *
Taber's Cyclopedic Medical Dictionary (16th ed.1989), at 1891. Counter transference occurs when the therapist experiences transference toward the client.
Transference, as a component of the professional counseling relationship, was first analyzed in Zipkin v. Freeman, 436 S.W.2d 753 (Mo.1968). The court in Zipkin extended coverage under a professional liability policy to a psychiatrist for a claim for damages arising from sexual acts precipitated by the psychiatrist's mishandling of transference. Other jurisdictions have followed this reasoning and found coverage when sexual acts occurred as a result of mishandling transference. See, e.g., Anclote Manor Foundation v. Wilkinson, 263 So. 2d 256 (Fla.Dist.Ct.App.1972), (psychiatrist's "acting out" of his feelings which arose in the context of the transference phenomenon was malpractice as a matter of law); Cotton v. Kambly, 101 Mich.App. 537, 300 N.W.2d 627 (Mich.Ct. App.1980) (no reason to distinguish between sexual acts and others, such as improper administration of a drug or a defective operation, because both are departures from proper standards of medical practice); St. Paul Fire and Marine Insurance Co. v. Mitchell, 164 Ga.App. 215, 296 S.E.2d 126 (Ga.Ct.App.1982) (summary judgment for the insurer in a declaratory judgment action inappropriate because expert testimony is needed to determine whether the acts of the doctor and the alleged mishandling of the transference phenomenon constitute medical malpractice); L.L. v. Medical Protective Company, 122 Wis. 2d 455, 362 N.W.2d 174, pet. for rev. denied, 122 Wis. 2d 783, 367 N.W.2d 223 (1985) (Wis.Ct.App.1984) (psychiatrist's sexual acts with a patient arising from improper transference can constitute failure to give proper treatment within the policy language). See also Vigilant Insurance Company v. Kambly, 114 Mich.App. 683, 319 N.W.2d 382 (Mich.Ct.App.1982).
In L.L. v. Medical Protective Company, the Wisconsin Court of Appeals noted that "[m]edical authorities are nearly unanimous in considering sexual contact between therapist and patient to be malpractice," 362 N.W.2d at 176. The court recognized the effect of transference:
It is apparent from the foregoing that a sexual relationship between therapist and patient cannot be viewed separately from the therapeutic relationship that has developed between them. The transference phenomenon makes it impossible that the patient will have the same emotional response to sexual contact with the therapist that he or she would have to sexual contact with other persons. * * * The trial court erred by holding that [the psychiatrist] was not acting in the course of his professional services or professional responsibilities when he engaged in sexual activity with L.L.
362 N.W.2d at 178. See also Vigilant Insurance Co. v. Employers Insurance of Wausau, 626 F. Supp. 262 (S.D.N.Y.1986).
Federal courts have also analyzed transference in malpractice claims against mental health professionals. See Andrews v. United States, 732 F.2d 366 (4th Cir.1984); Simmons v. United States, 805 F.2d 1363 (9th Cir.1986). In Simmons the Court of Appeals explained:
Transference is crucial to the therapeutic process because the patient "unconsciously attributes to the psychiatrist or analyst those feelings which he may have repressed towards his own parents.... [I]t is through the creation, experiencing and resolution of these feelings that [the patient] becomes well."
805 F.2d at 1365. The Simmons court concluded that the centrality of transference to therapy makes it impossible to separate an abuse of transference from the treatment itself.
The affidavit of appellants' expert witness, Gary R. Schoener, directly addresses Dr. Love's failure to recognize and deal *9 with the transference phenomenon, noting that:
The standard of care for therapists requires that the therapist look for the transference phenomenon, clearly identify it, clarify the process to the client, and use the process to the benefit of the client.
Schoener concluded that Dr. Love "either failed to recognize the transference process occurring between Mary Adams and himself, or that having recognized it, failed to effectively use it in order to assist with a therapeutic resolution of Mary Adams' problems." In either case, it is alleged, Dr. Love's actions did not meet the standard of care required of a therapeutic professional in dealing with transference.
In urging this court to uphold the summary judgment on Mary Adams' claims, the insurer relies almost exclusively on Smith v. St. Paul Fire & Marine Insurance Co., 353 N.W.2d 130 (Minn.1984). Smith, a malpractice action against a medical doctor, addressed coverage under a virtually identical professional liability policy for sexual abuse of three minor patients that occurred in the course of their treatment for physical ailments/injuries.
In holding that the professional liability policy did not provide coverage, the Smith court concluded:
[T]he policy language is clear and unambiguous; (footnote omitted) the policy covers damages caused by improperly provided or improperly withheld professional services. In a professional liability policy issued to a medical doctor, the term "professional services" plainly refers to medical treatment of physical ailments by the doctor. * * * "[D]amages resulting from * * * withholding of professional services" contemplates failure on the part of the insured doctor to discover or treat an ailment that should have been discovered or treated.
353 N.W.2d at 132.
A number of other jurisdictions have followed this rationale in situations involving medical treatment of a physical ailment. See Hirst v. St. Paul Fire and Marine Insurance Co., 106 Idaho 792, 683 P.2d 440 (Ct.App.1984); Standlee v. St. Paul Fire and Marine Insurance Co., 107 Idaho 899, 693 P.2d 1101 (Ct.App.1984); Washington Insurance Guaranty Association v. Hicks, 49 Wash.App. 623, 744 P.2d 625 (1987); South Carolina Medical Malpractice Liability Insurance Joint Underwriting Association v. Ferry, 291 S.C. 460, 354 S.E.2d 378 (1987); St. Paul Fire and Marine Insurance Co. v. Quintana, 165 Mich. App. 719, 419 N.W.2d 60 (1988).
The insurer claims that Smith is "materially indistinguishable" from the present case. We disagree. The court in Smith drew a rigorous line in excluding the tortious sexual acts from the professional insurance coverage. This same distinction does not apply here. There is no clear dichotomy between the professional purpose and all of the alleged tortious acts. Alleged breaches of the professional obligation, if proved, are departures related to the therapy itself.
Courts in other jurisdictions have consistently distinguished the Smith line of cases from cases involving mental health therapists who mishandle transference. Simmons v. United States, 805 F.2d 1363 (9th Cir.1986), cites Smith in noting that courts do not routinely impose liability on physicians for sexual contact with patients, and concludes:
The crucial factor in the therapist-patient relationship which leads to the imposition of legal liability for conduct which arguably is no more exploitative of a patient than sexual involvement of a lawyer with a client, a priest or minister with a parishioner, or a gynecologist with a patient is that lawyers, ministers, and gynecologists do not offer a course of treatment and counseling predicated upon handling the transference phenomenon.
805 F.2d at 1366.
Although the pleadings in this action could be more precise, it is the mishandling of transference, and not the resulting sexual conduct, which gives rise to the alleged malpractice. More specifically, Dr. Love's failure to provide or negligence in providing professional services, including improper handling of transference, if *10 proved, constitutes the proximate cause. The sexual interaction, if relevant, may define some of the damages. The sexual acts are an incidental outgrowth of the primary malpractice, not the proximate cause.
By not specifically excluding certain acts from coverage we obviously do not intend to encourage inappropriate sexual conduct by counseling professionals, nor do we believe this is a likely result. As the Michigan Court of Appeals stated in Kambly:
[I]t is unlikely that the insured was induced to engage in the unlawful conduct by reliance upon the insurability of any claim arising therefrom or that allowing insurance coverage here would induce future similar unlawful conduct by practitioners. Nor does it appear that the policy was obtained in contemplation of a violation of the law.
319 N.W.2d at 385. We also consider the effect of the alleged malpractice on the client. We do not view professional liability coverage only in terms of a supposed "benefit" to the wrongdoer.[3] To the extent that the coverage relieves Dr. Love of at least some of the potential financial expense for his alleged malpractice, this is a "benefit" for which he and the insurer bargained, and for which premiums have been paid.
Furthermore, the insurer had the opportunity to define the terms of its bargain with Dr. Love. Had it wished to do so, the insurer could have excluded certain types of malpractice claims. See, e.g., Govar v. Chicago Insurance Co., 879 F.2d 1581 (8th Cir.1989) (no coverage for malpractice claim against psychologist whose policy excluded "claims arising out of any sexual act or acts performed or alleged to have been performed by the named insured").
II
Dr. Adams separately alleged negligence in the treatment provided him by Dr. Love. His claim is supported by Schoener's affidavit that Dr. Love's actions in continuing to engage in therapy with Dr. Adams while being sexually involved with Mary Adams breached his obligation to provide effective therapy.
In Weaver v. Union Carbide Corporation, 378 S.E.2d 105 (W.Va.1989), the West Virginia Supreme Court recognized that a marriage counselor who counsels both husband and wife and becomes sexually intimate with one of the spouses may be liable to both. See also Horak v. Biris, 130 Ill.App.3d 140, 146-47, 85 Ill. Dec. 599, 604, 474 N.E.2d 13, 18 (1985); Mazza v. Huffaker, 61 N.C.App. 170, 300 S.E.2d 833 (1983), review denied, 309 N.C. 192, 305 S.E.2d 734 (1983).
The trial court in this case did not address the separate claim of Dr. Adams. We see no basis for excluding Dr. Adams' claim from insurance coverage.
DECISION
Dr. Love's professional liability policy does not per se exclude coverage for Mary Adams' or Richard Adams' claim of negligent provision of psychotherapy. Whether the acts or failures to act occurred and whether the resulting damage was directly caused by the professional services or lack of them is subject to proof. We reverse the summary judgment for the insurer and remand to the trial court for further proceedings.
Reversed and remanded.
NOTES
[1] These names are assumed in order to protect appellants' identities.
[2] Adamses' joint brief limits the claims to negligence. Consequently, we assume the contract actions have been abandoned and discuss only the negligence claims.
[3] As the court stated in Reliance Insurance Company v. St. Paul Insurance Companies, 307 Minn. 338, 343, 239 N.W.2d 922, 925 (1976) in reference to an attorney's professional liability policy:
One of the prime reasons for this type of liability insurance is to pay the damages caused by certain acts or omissions of the insured. Unfortunately, omissions are frequent, including omissions to immediately notify the insurer. The very nature of these peculiarities insured against indicates that this type of insurance is not only a contract between the insurer and the insured but also a contract for the benefit of the public.
(Emphasis added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920547/ | 447 N.W.2d 243 (1989)
233 Neb. 670
STATE of Nebraska, Appellee,
v.
ONE 1987 TOYOTA PICKUP, Appellee, Dennis R. Jurgens, Appellant.
STATE of Nebraska, Appellee,
v.
Dennis R. JURGENS, Appellant.
Nos. 88-979, 88-980.
Supreme Court of Nebraska.
October 27, 1989.
*245 Kirk E. Naylor, Jr., Lincoln, for appellant.
Robert M. Spire, Atty. Gen., and Kenneth W. Payne, Alliance, for appellee State.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
WHITE, Justice.
After a bench trial on September 19, 1988, appellant, Dennis R. Jurgens, was found guilty of unlawful manufacture and distribution of a controlled substance and possession of marijuana weighing more than 1 pound (case No. 88-980). Subsequently, Jurgens' 1987 Toyota pickup was condemned in a forfeiture action brought by the State pursuant to Neb.Rev. Stat. § 28-431 (Reissue 1985) (case No. 88-979). Jurgens appeals from both determinations; the appeals have been consolidated in this court.
For the reasons set forth below, both criminal convictions are affirmed. The forfeiture order is reversed and remanded for a new trial.
On October 23, 1987, the Nebraska State Patrol conducted a vehicle check stop selective at the junction of Highways 4 and 99 in Pawnee County, Nebraska. This check stop selective was conducted by four troopers and was to last from 10 a.m. to noon. A "selective" is a concentration of officers in a certain area for a particular purpose. The purpose of this selective was to check drivers for licensing and vehicles for registration and equipment violations. All vehicles were required to stop, whereupon the license, registration, and vehicle were inspected.
That morning, Jurgens was a passenger in a 1987 Toyota pickup driven by Michael Harms. Jurgens was the registered owner of the pickup. At approximately 11:15 a.m., the vehicle stopped at the check stop, where it was inspected by Troopers Gill and Chrans. Upon approaching the passenger compartment of the vehicle, Trooper Gill detected a strong marijuana odor and noticed a "marijuana substance" on the seat. During the course of their inspection of the pickup's exterior safety equipment, Troopers Gill and Chrans observed, through windows on the vehicle's camper shell, several filled canvas bags. A marijuana leaf was seen on top of one of the bags.
Consequently, Jurgens and Harms were arrested and taken to the Pawnee County jail, and the pickup was impounded and stored at a local auto body shop. That afternoon, Troopers Gill and Chrans obtained a search warrant for the pickup based upon their observations of the pickup earlier that day. A search of the vehicle uncovered large quantities of marijuana and various instruments used in cultivating marijuana.
That same day, Nebraska State Patrol Investigator Dishong obtained a search warrant for Jurgens' farm, located near Table Rock, Nebraska. Investigator Dishong had been investigating marijuana cultivation on the farm since July 1987. On several occasions he made surreptitious inspections of the premises, finding marijuana in various stages of cultivation. The affidavit used to obtain this search warrant detailed Investigator Dishong's extensive investigations and observations of marijuana cultivation on the Jurgens farm. It also contained a one-paragraph reference to the results of the vehicle search conducted earlier that day. A search warrant was issued, and a subsequent search of the farm uncovered large quantities of marijuana and equipment used to produce marijuana.
On January 13, 1988, informations were filed against both Jurgens and Harms. On April 11, Jurgens filed a motion to suppress all evidence discovered as a result of the seizure of the pickup. On April 20, a hearing on this motion was held. Considerable testimony was elicited concerning the State Patrol's method of establishing and conducting the check stop selective. The motion to suppress was later overruled.
On September 19, both Jurgens and Harms were tried at a bench trial. The court admitted, over both defendants' continuing objection, all evidence obtained as a result of the seizure of the pickup at the *246 check stop, including evidence obtained as a result of the search of Jurgens' farm. Jurgens was found guilty of unlawful manufacture and distribution of a controlled substance and possession of marijuana weighing more than 1 pound. He was subsequently sentenced, respectively, to terms of imprisonment of not less than 3 nor more than 10 years and not less than 1 nor more than 3 years, these sentences to run concurrently.
On October 30, 1987, the State initiated forfeiture proceedings against the pickup pursuant to § 28-431. In his answer, Jurgens contended that the vehicle was seized in violation of the fourth amendment to the U.S. Constitution. This issue was treated as a motion to suppress related to the unconstitutional seizure of the vehicle and was considered in the motion to suppress hearing conducted in the criminal case on April 20. The motion was overruled. By stipulation of both parties, evidence adduced at the suppression hearing and at the criminal trial was considered as the sole evidence in the forfeiture determination. On November 14, 1988, the trial court ordered Jurgens' pickup forfeited.
Jurgens appeals from both of these decisions. His sole assignment of error is that the trial court erred in overruling his motions to suppress.
This court has stated that in determining the correctness of a ruling on a motion to suppress, the Supreme Court will uphold a trial court's findings of fact unless those findings are clearly wrong. State v. Marcotte, 233 Neb. 533, 446 N.W.2d 228 (1989). Our review of the record in this case does not disclose whether the trial court made factual findings. In any event, it is not necessary for this court to examine those findings, if any, because it is evident that the trial court erroneously applied the law in overruling the motions to suppress.
Initially, we note that standing is not an issue in this appeal. The State has conceded that Jurgens has standing to challenge the search and seizure of his vehicle.
In State v. Crom, 222 Neb. 273, 383 N.W.2d 461 (1986), the defendant was convicted of driving while under the influence of alcohol after he was arrested at a vehicle check stop. This check stop was established and conducted by several patrolmen and a sergeant from the Omaha Police Division. These officers in the field were free to determine when, where, and how to establish and operate the check stop and were not acting under any standards, procedures, or guidelines promulgated by the police department or other law enforcement agency. This court held, in the majority opinion, that the check stop was constitutionally infirm because "a driver's reasonable expectation of privacy was rendered subject to arbitrary invasion solely at the unfettered discretion of officers in the field." Crom, supra at 277, 383 N.W.2d at 463. Thus, the defendant in Crom was unreasonably seized in violation of the fourth amendment to the U.S. Constitution.
On the facts of this case, it is clear that the check stop was established at the unfettered discretion of officers in the field. Originally, the selective's enforcement list promulgated by the Beatrice office of the State Patrol indicated a "roving Patrol" selective for October 24, 1987. This list was promulgated by Trooper Morris and approved by Lieutenant Winkler on September 23, 1987. At some point after September 23, but before October 23, Sergeant Nedley changed the date of the selective from October 24 to October 23 to allow him to participate in the selective. Sergeant Nedley is the immediate supervisor to Troopers Gill and Stake and was one of four troopers involved in conducting the check stop selective. The new selective date was never resubmitted to anyone in the State Patrol command structure for reapproval. The State Patrol command structure was never aware that a selective of any type would be conducted on October 23.
Sergeant Nedley testified that the new selective, which was to be conducted on October 23, was to be a roving patrol selective. However, the testimony at the suppression hearing shows that Trooper Stake, on the morning of October 23, made the decision to change the selective from a *247 roving patrol selective to a check stop selective. Trooper Stake was present and involved with conducting the check stop and was not in a supervisory capacity. Sergeant Nedley testified that when he arrived at work on the morning of the 23d, he expected to engage in a roving patrol selective. Shortly after arriving at work, he learned that Trooper Stake had decided to change the roving patrol selective to a check stop selective. Sergeant Nedley testified that he had no prior knowledge of the change, but that he did not object to the change.
Moreover, the evidence clearly establishes that Trooper Stake also made the decision as to when and where the check stop would be conducted. None of Trooper Stake's supervisors made this decision. Lieutenant Reitz, who on October 23 was administrative lieutenant for the headquarters troop traffic division in Lincoln, testified that he did not choose the location. Trooper Balthazor, who on October 23 was on temporary assignment as duty sergeant in the Lincoln office, testified that Trooper Stake was solely responsible for choosing the time and location of the check stop. On cross-examination the following colloquy took place between Trooper Balthazor and Jurgens' attorney:
Q Now, thethe General Operations Order also proceeds to indicate that the site of the vehicle check stop will be chosen by the supervisor at the time he decides to order such vehicle check stop. I take it you did not choose this location.
A It was chosenIt was called in by Trooper Stake and he asked for approval for this location and it was approved at that time
Q Okay.
Afor this location.
Q You didn't check the locat-You didn't choose the location, he did.
A Yes.
Q And he is one of the officers who was involved in the vehicle check stop, or was scheduled to be. Is that right?
A Yes, he is.
Q Did you know anything before receiving this call from Trooper Stake that Trooper Stake and these other officers intended to conduct aa vehicle check at the intersections of Highways 99 and 4 on this date?
A No, I did not.
Q Okay. Let me make sure I understand, and I think this will just summarize it. Apparently you received a telephone call from Stake around 7:15 in the morning. Is that correct?
A Yes, sir.
Q On the 23rd. And what Stake said to you was, in essence, we want to conduct a vehicle check; we want to do it at the intersections of Junctions 99 and 4; we want to do it between 1000 hours and 1200 hours on that date; and here are the officers that are gonna be involved by number. Is that correct?
A Yes.
Q Did he give you any other information?
A No, sir.
In addition, at no time was affirmative approval given the troopers in the field to establish and conduct the check stop. At 7:15 a.m. on October 23, Trooper Stake contacted the State Patrol office in Lincoln and left a message that a check stop selective would be conducted that morning. It was the understanding that if the troopers in the field did not receive communication to the contrary, approval was to be assumed. Trooper Stake testified that he never received any sort of affirmative approval from the Lincoln office regarding the October 23 check stop selective. The record indicates that no trooper involved in the check stop ever received affirmative approval from anyone in the State Patrol command structure.
Based on this evidence, it is clear that the troopers in the field acted with unchecked discretion when they established and conducted the check stop selective. The date, time, location, and type of selective were chosen by certain troopers in the field who conducted the check stop selective, without the State Patrol high command's being involved. Moreover, once the specifics of the check stop were determined *248 by the troopers, no affirmative approval authorizing the check stop selective was ever given by supervisory personnel within State Patrol headquarters. Because of these facts, Jurgens' reasonable expectation of privacy "was rendered subject to arbitrary invasion solely at the unfettered discretion of officers in the field." State v. Crom, 222 Neb. 273, 277, 383 N.W.2d 461, 463 (1986). We hold that Jurgens was unreasonably seized in violation of the fourth amendment to the U.S. Constitution. Thus, the trial court erred in overruling Jurgens' motion to suppress evidence seized pursuant to the check stop selective.
We note further that several years prior to 1987, the Nebraska State Patrol promulgated the general operations manual for vehicle check stops. The policy of the State Patrol, as indicated by this manual, is that "vehicle check stops will be handled with the least intrusion possible and without an unconstrained exercise of discretion." In regard to procedure, the manual provides in pertinent part:
2. The initial decision to conduct a vehicle check stop must be made by a neutral source, such as a supervisor who is not involved in conducting the operation in the field.
a. Such decision will be communicated to the officers in the field who will conduct the stops at least 2 hours in advance.
. . . .
4. The site of the vehicle check stop will be chosen by the supervisor at the time he decides to order such vehicle check stop.
Presumably, this manual was formulated to guide the State Patrol in the wake of Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), and its progeny. It appears the manual would meet the constitutional requirement of State v. Crom, supra. However, merely having such rules in effect, without adhering to these rules, is not enough. When the State Patrol disregards its own rules, the troopers in the field are free to act with unconstrained discretion.
We also hold that the trial court erred in overruling the motion to suppress Jurgens' Toyota pickup as evidence in the forfeiture action. We have determined that Jurgens was unreasonably seized in violation of the fourth amendment to the U.S. Constitution. Evidence which is obtained in violation of the fourth amendment may not be relied on to sustain a forfeiture. Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1885). The U.S. Supreme Court has held that the exclusionary rule applies to forfeiture actions. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S. Ct. 1246, 14 L. Ed. 2d 170 (1965). Because Jurgens was seized in violation of his fourth amendment rights, the trial judge erred in failing to suppress the Toyota pickup as evidence in the forfeiture determination.
Jurgens also contends that the trial court erred in admitting evidence obtained from a search of Jurgens' real property pursuant to a search warrant. He argues the evidence is tainted and therefore inadmissible because the affidavit upon which the search warrant was obtained included information regarding the marijuana found in the pickup. He urges that the evidence from the search of the real property was not derived from a source independent of the initial illegal search and seizure.
Jurgens' contentions are without merit. This court has held that where an affidavit used for the purpose of obtaining a search warrant includes illegally obtained facts as well as facts derived from independent and lawful sources, a valid search warrant may issue if the lawfully obtained facts, considered by themselves, establish probable cause to issue the warrant. State v. Guilbeault, 214 Neb. 904, 336 N.W.2d 593 (1983); State v. Welsh, 214 Neb. 60, 332 N.W.2d 685 (1983). If the lawfully obtained facts establish probable cause to issue the warrant, then there is no fourth amendment violation.
In the present case, an examination of the affidavit discloses that even if the reference to the search of Jurgens' vehicle is disregarded, there were more than ample independent facts contained in the affidavit *249 which would have justified the trial court in issuing a search warrant. Investigator Dishong submitted an affidavit which detailed observations of marijuana cultivation made during an extensive investigation of Jurgens' real property. This investigation was conducted in its entirety before the October 23 check stop selective. The affidavit contained a one-paragraph reference to the marijuana discovered in the search of the vehicle. Clearly, the lawfully obtained facts contained in the affidavit would have provided sufficient probable cause upon which to issue a search warrant. The trial court properly admitted evidence obtained as a result of the search of Jurgens' real property.
We hold that the State Patrol, in conducting the October 23 check stop selective, unreasonably seized Jurgens in violation of the fourth amendment to the U.S. Constitution. Thus, the trial court erred in overruling Jurgens' motions to suppress evidence obtained as a result of the stop. However, with respect to the criminal convictions, this error is harmless. This court has stated that error in admitting or excluding evidence in a criminal trial, whether of constitutional magnitude or otherwise, is prejudicial unless it can be said that the error was harmless beyond a reasonable doubt. State v. Lenz, 227 Neb. 692, 419 N.W.2d 670 (1988); State v. Watkins, 227 Neb. 677, 419 N.W.2d 660 (1988). The search of Jurgens' real property, pursuant to the valid search warrant, uncovered 120 pounds of marijuana, along with elaborate equipment used to manufacture and distribute marijuana. This admissible evidence provides an ample basis upon which Jurgens could have been convicted of unlawful manufacture and distribution of a controlled substance and possession of marijuana weighing more than 1 pound. We are convinced the trial court's error was harmless beyond a reasonable doubt. Therefore, both criminal convictions are affirmed.
However, the trial court committed reversible error in overruling the motion to suppress Jurgens' pickup as evidence in the forfeiture action. To determine if double jeopardy principles apply, we must inquire whether the forfeiture statute is criminal and punitive or civil and remedial. The U.S. Supreme Court, in United States v. Ward, 448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980), has stated that this inquiry proceeds on two levels. First, a court determines whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or another. Second, where Congress has indicated an intention to establish a civil penalty, a court inquires further whether the statutory scheme was so punitive, either in purpose or effect, as to negate that intention.
We conclude that § 28-431 is criminal in character. Therefore, double jeopardy principles apply. Recognizing this, however, the trial court's error in admitting evidence obtained in violation of Jurgens' constitutional rights is properly characterized as trial error, which does not bar retrial of the forfeiture determination after this reversal. See State v. Chambers, 233 Neb. 235, 444 N.W.2d 667 (1989). For this reason, the forfeiture order is reversed and the cause remanded for a new trial.
JUDGMENT IN NO. 88-979 REVERSED, AND CAUSE REMANDED FOR A NEW TRIAL. JUDGMENT IN NO. 88-980 AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920557/ | 447 N.W.2d 525 (1989)
In the Matter of the Cancellation, Revocation or Suspension of South Dakota State Board of Medical and Osteopathic Examiner's License # 1272 Issued to Krishna YEMMANUR, M.D.
No. 16556.
Supreme Court of South Dakota.
Argued September 11, 1989.
Decided November 1, 1989.
John H. Zimmer of Zimmer and Duncan Parker, for appellee, South Dakota State Bd. of Medical and Osteopathic Examiner's.
Richard J. Helsper of Erickson, Helsper & O'Brien, P.C., Brookings, for appellant, Krishna Yemmanur, M.D.
WUEST, Chief Justice.
Dr. Krishna Yemmanur (appellant) appeals a circuit court order affirming the decision of the South Dakota State Board *526 of Medical and Osteopathic Examiners which suspended his license to practice medicine.[1] We affirm.
Appellant is a doctor licensed to practice in the State of South Dakota by the South Dakota State Board of Medical and Osteopathic Examiners (Board of Examiners). In 1982, appellant began his practice in Estelline, South Dakota. Several years later, the Board of Examiners received information from the South Dakota Peer Review Organization (PRO) that the appellant had been investigated by the PRO regarding alleged violations of section 1156 of the United States Social Security Act dealing primarily with excess charges and supposedly unnecessary hospital admissions. Upon receipt of this information, the Board of Examiners appointed an investigating committee to investigate the conduct of the appellant. As a result of this investigation, a complaint was filed with the Board of Examiners alleging that the appellant was guilty of conduct reflecting gross incompetence as set forth in SDCL 36-4-29.[2] This complaint contained seven charges of gross incompetence.
A hearing was held before the Board on May 12, 1987, and June 2, 1987. During this hearing the Board of Examiners heard testimony from primarily two witnesses. The first was Dr. George Thompson, an osteopath from Watertown, South Dakota, who was also a member of the PRO Board, and a member of the Board of Examiners. Dr. Thompson disqualified himself from sitting in deliberations at the appellant's hearing because of his involvement in the investigation and prosecution of the appellant.
The second expert, Dr. Theodore H. Sattler, is a specialist in internal medicine from Yankton, South Dakota, and is the medical director for the PRO.
After an extensive hearing, the Board of Examiners entered its findings of fact and conclusions of law determining that the appellant's conduct in the first six counts of the complaint did in fact reflect gross incompetence. The seventh count was dismissed by the Board of Examiners in September of 1987. Appellant sought judicial review of the Board's decision in the circuit court of Miner county. The decision of the Board of Examiners was affirmed by the circuit court in all respects.
Appellant raises several issues on appeal. He first alleges that he was not afforded a fair and impartial hearing because the persons presenting the case against him had special relations to the Board of Examiners, thus making it impossible for the Board to remain unbiased. Appellant also contends that his due process rights were violated because he was not provided with sufficient notice of a complaint against him as required by SDCL 1-26-29. Appellant further alleged that the circuit court and the Board of Examiners erred in not applying the standard of care used in tort actions in judging the appellant's conduct. It is also alleged by the appellant that the findings of fact set forth by the Board of Examiners were insufficient under state law in that they were mere statements of general conclusions. As a result, the appellant contends that the circuit court should have held that these findings were *527 freely reviewable, rather than judging them according to the "clearly erroneous" standard.
We begin by discussing the issue of whether the appellant's due process rights had been violated during the course of the proceedings before this matter was appealed. The appellant first argues that he was not afforded a fair and impartial hearing because many of the people that presented the case against the appellant had special relations with the Board of Examiners. This issue has been presented to this court on a number of occasions. In addressing this issue concerning administrative hearings we have noted that the fact "[t]hat the prosecuting and adjudicating authority are closely akin does not violate due process." Romey v. Landers, 392 N.W.2d 415, 420 (S.D.1986). Additionally, we have stated that an administrative agency can both prosecute and adjudge a dispute, without violating due process rights, providing a single person or persons does not stand in both the prosecutorial and adjudicatory roles. Apoian v. State, 89 S.D. 539, 544, 235 N.W.2d 641, 644 (1975); Romey, supra at 420. The only person in the present case who may have fallen into this category was Dr. George Thompson as he was a member of the Board of Examiners and also a chief witness for the prosecution. The record is clear, however, that Dr. Thompson disqualified himself from the Board of Examiners in this case so as to participate only in the prosecutorial role, and not the adjudicatory role. Therefore, we do not believe that, on the basis of these facts, the appellant was denied his right to a fair and impartial hearing by a fair and impartial tribunal.
The appellant also contends that his due process rights were violated because the Board of Examiners had preconceived notions as to his guilt and were predisposed as to the outcome of the case. The appellant asserts that these preconceived notions are evidenced by the fact that it was not until the final few minutes of testimony that the Board members asked the experts whether the appellant was grossly incompetent in his conduct. We find no merit in this argument. The record reflects that the Board of Examiners listened to over 540 pages of testimony from several witnesses and received over forty exhibits relating to the appellant's conduct. The experts ultimately testified that the appellant's conduct as to each of the six counts stated in the complaint was grossly incompetent. These facts strongly indicate that the Board did not have any preconceived notions as to the guilt of the appellant. Therefore, we hold that the appellant's due process rights were not violated on the grounds that the Board of Examiners was predisposed regarding the outcome of the case.
Finally, appellant argues that his due process rights were violated in that the notice of the complaint served upon him was insufficient according to state law. We disagree. SDCL 1-26-29 provides that no suspension of any license is lawful unless, prior to the institution of agency proceedings, the agency gives notice to the licensee of facts or conduct which warrant the intended action. The notice of the complaint must apprise the licensee, with reasonable certainty, of the accusation against him so that he may prepare his defense. In re Kunkle, 88 S.D. 269, 275, 218 N.W.2d 521, 524 (1974). Upon review of the complaint, we find that the allegations in the complaint were reasonably certain and, hence, were sufficient to apprise the appellant of the accusations against him. The complaint identifies, in Counts I through VII, the ages and chart numbers of the particular patient. Each count also includes the symptomology and course of treatment given by the appellant (in Count VI, the lack of treatment by the appellant is noted). Furthermore, we believe these counts sufficiently stated the particular acts deemed to be wrongful. We cannot conclude, therefore, that the appellants due process rights were violated on account of insufficient notice.
It has also been asserted by appellant that the findings of fact adopted by the Board of Examiners are insufficient to allow a reviewing court to determine how the Board of Examiners reached the conclusion that the appellant was grossly incompetent. *528 Appellant contends that these findings of fact are mere statements of general conclusions, and therefore are freely reviewable on appeal. We disagree. SDCL 1-26-25 states that "[f]indings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings." In Lemke v. Rabenberg's, Inc., 89 S.D. 386, 233 N.W.2d 336 (1975), we had an opportunity to address the scope of the aforementioned statute. In Lemke, we adopted the view that an agencies findings of fact must go beyond a mere statement of a general conclusion in the statutory language or in language of similar generality. Lemke, supra, 233 N.W.2d at 339. In explaining this view, we adopted the following language:
The desire is to find the proper middle course between a detailed reciting of the evidence on the one hand and the bare statement of the conclusions of fact or the `ultimate' facts on the other. The phrase `underlying facts supporting the finding' seems about right.
Lemke, supra.
Having reviewed the findings of fact, we believe that these findings are sufficient to meet the requirements of SDCL 1-26-25. The findings of fact in each of the six counts against the appellant include a factual basis for the findings given, and they are not mere statements of general conclusions in the statutory language. Counts III and IV of the findings of fact cite lack of appropriate documentation of medical care to support the conclusion of gross incompetence. Count V also cites lack of appropriate documentation as well as lack of appropriate patient management and competent knowledge in the use of antibiotic drugs. Count VI cites lack of appropriate documentation, inconsistent treatment relative to possible bleeding, and an unsubstantiated diagnosis as supporting the conclusion of gross incompetence. Count VII cites confusion relative to diagnosis and treatment, and lack of appropriate documentation of inflammatory bowel disease. And lastly, Count VIII states that the appellant signed all patient records as the attending physician of the patient, when in fact he was not the attending physician. These findings may have been insufficient if they simply stated that the doctors treatment of these six patients was grossly incompetent. However, these findings go beyond a mere declaration of gross incompetence. The underlying facts are also given which support the finding of gross incompetence. Therefore we must conclude that these findings of fact are not insufficient as a matter of law.
The appellant's final contention on appeal is that the Board of Examiners and the circuit court erred in not applying the standard of care used in tort actions to determine whether the appellant's alleged wrongful acts demonstrated gross incompetence, as set forth in SDCL 36-4-29.[3] In support of this argument, appellant cites Appeal of Schramm, 414 N.W.2d 31 (S.D.1987). In Schramm we stated that "where issues of competence and negligence are of a complicated nature, expert testimony is required to establish the proper `competency standards' and whether or not they are met." Schramm, supra, at 36. We determined that the proper standard to be applied in Schramm was the tort standard of care primarily because the appellant in Schramm had his license to practice dentistry suspended on the grounds of negligent patient care. As negligence is inherently a concept of tort law, we held that the tort standard of care should have been applied in Schramm.
The present case is clearly distinguishable from Schramm. Here, the appellant's *529 license to practice medicine was suspended on the grounds of gross incompetence, not negligence. The standards used for determining negligence and competence are separate and distinct. In professional negligence actions one must generally consider the locality of practice in determining the standard of care for professionals.[4] The locality of practice, however, is not a factor to be considered in determining issues of competence. The standard used to determine competence or incompetence refers to that minimum degree of "skill and knowledge necessary for the performance of characteristic tasks of a given profession in at least a reasonably effective way." Board of Dental Exam. v. Brown D.D.S., 448 A.2d 881, 883 (Me.1982). All physicians in this State must possess this minimum degree of knowledge and skill in order to receive and maintain a license to practice in this State, irrespective of the locality in which they may practice. Therefore, we believe it is clear that the tort standard of care should not be applied in determining issues of competence. Furthermore, we believe it is clear that this minimum degree of skill and knowledge required to practice medicine in this state represents the state-wide standard of competence against which the appellant's conduct must be judged. See generally, Dailey v. North Carolina Board of Dental Examiners, 309 N.C. 710, 309 S.E.2d 219 (1983). As the appellant was charged with "gross incompetence," his conduct must demonstrate a gross deviation from this standard. The term "gross" relates solely to the matter of degree. Caldwell v. Arizona State Board of Dental Exam., 137 Ariz. 396, 670 P.2d 1220, 1224 (App.1983).
Having reviewed the record in this case, we believe that the experts sufficiently established the aforementioned statewide standard of competence, as well as the appellant's gross deviation therefrom. Any uncertainty regarding the establishment of this standard was due in part because of the appellant's insistence upon the application of the tort standard of care, and also because of certain similarities between the national and state-wide standards of competence. In spite of this uncertainty, we believe that the expert testimony in this case clearly reflects that according to this statewide standard, physicians practicing in this State must keep timely records of patient care, they must properly supervise any physician assistants working under them, and they must utilize treatment methods which may be deemed reasonably effective and which pose no significant hazards to the patients. The expert testimony clearly reflects that the appellant fell far short of meeting the aforementioned requirements of the statewide standard.
According to the record, on a number of occasions the appellant failed to timely record incidents of patient treatment. In fact, the evidence reflects that in one instance the appellant did not properly record information gathered after a patient examination until five months after the examination had taken place. The record further reflects that the appellant prescribed antibiotic drugs in such a way as to make the patient more susceptible to reaction and to developing resistant organisms. Additionally, the expert's testified that these antibiotic drugs were prescribed for only two days which is not sufficiently long enough for these drugs to take effect. It is also clear from the record that the appellant was involved in an operation in which he had the duty to prepare the patient for surgery. The appellant failed to prepare the patient for surgery, thus subjecting the patient to potential life threatening post-operative infection. Finally, the evidence reflects that the appellant signed patient records in spite of the fact that he had never seen the patient, but rather it was his assistant who had rendered care to this patient. This clearly represents a failure by a physician to properly supervise his assistant. Although these facts represent but a few of those asserted against the appellant, we believe this evidence alone *530 would support the conclusion that the appellant grossly deviated from the minimum statewide standard, and that these deviations reflected gross incompetence on his part.
Our standard of review for questions of fact is the clearly erroneous standard. Permann v. Department of Labor, 411 N.W.2d 113, 116 (S.D.1987). In this instance, the "application of the rule of law to the facts requires an inquiry that is `essentially factual.'" Id. at 119, quoting Pullman Standard v. Swint, 456 U.S. 273, 288, 102 S. Ct. 1781, 1790, 72 L. Ed. 2d 66 (1982). Accordingly, the clearly erroneous standard applies. Having reviewed the record in this case, we have determined that the Board of Examiners was not clearly erroneous in finding that the appellant's conduct demonstrated gross incompetence. Therefore, we affirm the circuit court.
Judgment is affirmed.
All the Justices concur.
NOTES
[1] The Board ordered that the license of the appellant be suspended, provided however, such suspension is stayed subject to the following terms and conditions: (1) that the appellant desist and refrain from any and all practice of medicine except as provided hereinafter; (2) appellant may attend a medical remedial educational program ... and during such program appellant may perform such medical services as the director of such program shall determine are desirable or necessary as part of such program; and, (3) if appellant successfully completes a full-time medical remedial educational program of at least six consecutive months duration, which is approved in writing by the Board ..., and the director of such program makes a favorable recommendation relative to the appellant ..., the staying of the suspension shall be permanent and his license to return to the private practice of medicine shall be reinstated....
[2] SDCL 36-4-29 provides:
The South Dakota state board of medical and osteopathic examiners may cancel, revoke, suspend or limit the license of any physician, surgeon or osteopathic physician or surgeon issued under this chapter upon satisfactory proof in compliance with chapter 1-26 of such a licensee's gross incompetence, or unprofessional or dishonorable conduct or proof of a violation of this chapter in any respect.
[3] According to South Dakota Tort Law, the standard of care which applies to a physician is the same standard of care which applies to all professions. Lenius v. King, 294 N.W.2d 912 (S.D.1980), Magbuhat v. Kovarik, 382 N.W.2d 43 (S.D.1986). This standard has been defined as follows:
In performing professional services for a [patient], a [physician] has the duty to have that degree of learning and skill ordinarily possessed by [physicians] of good standing engaged in the same type of practice in the same or similar locality.
Lenius at 913. See also S.D. Pattern Jury Instruction 105.01.
[4] With respect to this statement, it should be noted that the "locality rule" defined in footnote 3 does not apply to specialists in medicine as they must adhere to a national standard of care. See, Shamburger v. Behrens, 418 N.W.2d 299 (S.D.1988). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920568/ | 447 N.W.2d 196 (1989)
William A. TOLZMANN, Respondent,
v.
McCOMBS-KNUTSON ASSOCIATES and American Manufacturing Mutual Insurance Company, Relators, and
Schoborg Land Surveying, Inc. and Employers Insurance of Wausau, Minnesota Dept. of Human Services, intervenor, Respondents.
Nos. C3-89-1106, C4-89-1096.
Supreme Court of Minnesota.
November 3, 1989.
Donald W. Anderson, Minneapolis, for appellant.
Paul L. Pond, Mound, for respondent William Tolzmann.
Dani Shimon, Minneapolis, for respondent Schoborg Land Surveying.
*197 Considered and decided by the court en banc without oral argument.
COYNE, Justice.
The Workers' Compensation Court of Appeals reversed by majority decision a compensation judge's denial of temporary benefits. We reverse and reinstate the decision of the compensation judge.
William A. Tolzmann had a fairly extensive history of low back problems before working for the employers involved in this workers' compensation matter. He had been in at least two motor vehicle accidents in which he injured his low back although apparently not seriously. In 1973 and again in 1982 he sought medical attention for his low back following strenuous activity; and from 1983 through August 1985, he sought chiropractic care for low back pain.
The employee started working for Schoborg Land Surveying, a small land surveying company in Delano, on March 7, 1986. On March 25, 1986, the employee saw a chiropractor for low back pain. The chiropractor's notes reflect that the employee had slipped and fallen while walking down a "big hill" that was muddy but frozen underneath. The chiropractor's notes did not indicate that the fall occurred at work.
The employee quit working for Schoborg Land on April 18, 1986; and on April 21, 1986, he started working for McCombs-Knutson, a surveying company in Plymouth. He was hired as a surveyor technician or "instrument man on a survey crew." Sometimes he "filled in" as crew chief. Apparently, as the summer progressed, the employee's back condition deteriorated. He lost no time from work, but he saw his chiropractor on a fairly regular basis. On November 18, 1986, the employee saw another chiropractor who ordered a CT scan which showed the employee had a herniation at the L5-S1 level of the vertebra. The chiropractor advised the employee to stop working and referred him to a neurosurgeon. The neurosurgeon performed a lumbar laminectomy at the L5-S1 level on December 2, 1986. The employee made no mention to either his neurosurgeon or his second chiropractor of a slip and fall incident in March 1986. He did tell them that his work at McCombs-Knutson involved heavy physical labor.
The employee filed a claim petition seeking workers' compensation benefits from McCombs-Knutson for an alleged Gillette-type[1] low back injury. McCombs-Knutson denied liability claiming that the employee's back disability did not arise out of the employment there. When counsel for McCombs-Knutson deposed the employee on April 3, 1987, the employee denied having prior low back problems or having injured his low back in any way before working for McCombs-Knutson.
In April 1987, apparently in response to an inquiry from employee's counsel, the employee's first chiropractor prepared and forwarded to counsel a summary of his treatment of the employee from June 1982 through July 1986. The summary indicated the employee had been working when he slipped and fell. This was the first notice the employee's counsel had of any work-related incident in March 1986. The employee then filed an amended claim petition adding to his claim for benefits the allegation that he had sustained a back injury arising out of and in the course of his employment by Schoborg Land.
The employee's amended claim petition came on for hearing before a compensation judge in May 1988. In regard to his allegation of a work-related slip and fall on March 25, 1986, the employee said he was in Eden Prairie with Paul Schoborg, owner of the company. They were staking an erosion-control fence. Around 10:00 a.m.[2] they were walking down a hill toward Schoborg's truck when the employee slipped and fell in the mud. Schoborg was ahead of the employee and did not see the incident; but, according to the employee, he told Schoborg about the incident and Schoborg helped him clean the mud off his clothing. To refute this testimony, the employer introduced into evidence the employee's *198 April 1987 deposition in which he denied low back problems before working for McCombs-Knutson beginning in late April 1986. Evidence was also introduced which documented the employee's extensive prior medical history of low back problems. In addition, Paul Schoborg testified that he had no recall of a slip and fall on March 25, 1986 or of any similar incident. He further testified that it was doubtful he would have forgotten an incident like that if it had happened.
In connection with his claim of a Gillette-type injury at McCombs-Knutson, the employee testified his work was arduous and aggravated his back condition. This testimony was contradicted by the testimony of a McCombs-Knutson co-employee who said the employee did not do any of the heavy physical labor involved in the surveying job.
Finding a "substantial portion" of the employee's testimony lacking in credibility, the compensation judge denied the claim, concluding that the employee failed to prove he had sustained a work-related slip and fall on March 25, 1986, or a Gillette-type injury as of November 18, 1986. The compensation judge's decision, which was in essence a credibility determination, was premised on the inconsistencies in the employee's sworn testimony, the absence of documentation of a work-related injury made contemporaneously at the time of the first alleged work injury, and the testimony of the Schoborg Land owner/co-worker and the McCombs-Knutson co-worker, which contradicted the employee's claims.
The employee appealed, and the Workers' Compensation Court of Appeals reversed by majority decision. The majority concluded that the compensation judge improperly rejected the testimony of the employee and that otherwise the record did not support his findings of fact. By writ of certiorari, Schoborg Land and McCombs-Knutson have sought review of that decision.
The employers argue, as did the dissenting panel member, that the majority of the Workers' Compensation Court of Appeals panel failed to give due weight to the compensation judge's opportunity to determine the credibility of the witnesses, improperly and without justification substituting its own view on that issue, and also failed to accept inferences the compensation judge had reasonably drawn from the evidence. See Hodge v. Hodge Constr., 376 N.W.2d 694, 697-98 (Minn.1985). We agree.
The employee has the burden of establishing that a work-related injury caused his or her disability. Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 497 (Minn. 1987). In addition, the assessment of witnesses' credibility is the unique function of the trier of fact. Even v. Kraft, Inc., 445 N.W.2d 831 (Minn.1989); Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40 (Minn.1988). In the memorandum attached to his decision, the compensation judge noted the inconsistencies in the employee's testimony as they related to material issues in his claim for compensation. The compensation judge documented the inconsistencies of the employee's testimony and the testimony in contravention of the employee's claim. In determining that the employee had failed to establish his back condition was work-related, the compensation judge essentially determined that he did not believe the employee's assertions in that regard. From our independent review of the records in this matter, we believe the compensation judge's decision was justifiable and that his findings were supported by evidence that a reasonable mind would accept as adequate. By substituting its own credibility assessment, the panel majority of the Workers' Compensation Court of Appeals exceeded its authority and abused its reviewing function on factual issues. See Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734 (Minn. 1988); Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60-61 (Minn.1984). We therefore reverse the decision of the Workers' Compensation Court of Appeals and reinstate the decision of the compensation judge.
Reversed and decision of compensation judge reinstated.
NOTES
[1] Gillette v. Harold, Inc., 257 Minn. 313, 317, 101 N.W.2d 200, 204 (1960).
[2] In a December 1987 deposition, the employee said the incident occurred at 3:00 p.m. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920599/ | 447 N.W.2d 553 (1989)
Joseph M. GALLOWAY, et al., Plaintiffs-Appellants,
v.
Alan ZUCKERT, et al., Defendants-Appellees.
No. 88-267.
Court of Appeals of Iowa.
August 23, 1989.
*554 Joseph M. Galloway and Clair J. Galloway, Des Moines, pro se.
Jonathan C. Wilson and Diane M. Stahle of Davis, Hockenberg, Wine, Brown, Koehn & Shors, Des Moines, for defendants-appellees/cross-appellants.
Heard by OXBERGER, C.J., and SCHLEGEL and SACKETT, JJ.
SCHLEGEL, Judge.
This appeal arises from a landlord tenant dispute. A jury rejected both the tenants' claims and the owners' counterclaim. The tenants have appealed and the owners have cross-appealed.
The appellants challenge several instructions and evidentiary rulings, as well as the denial of a judgment n.o.v. on one of their claims. The appellees contend there was no evidence to support that part of the verdict rejecting their counterclaim for unpaid rent.
The plaintiffs, Joseph and Clair Galloway, leased office space in a commercial office building in Des Moines. In 1984 the office building was purchased by the defendants, Alan and Janice Zuckert. Various disputes soon arose between the Galloways and Alan Zuckert concerning terms of the lease, renewal of the lease, and conditions of the building. The Galloways also alleged that Alan Zuckert interfered with their business relationship with a fellow tenant, a professional secretary service which the Galloways employed.
While the parties were in contention, Alan Zuckert sent a letter to Joseph Galloway and also sent copies of the letter to two other persons, one of whom did business with the Galloways. Joseph Galloway contends this letter falsely accused him of breaking his word.
The Galloways later filed the present suit, alleging breach of lease, interference with a contractual relationship, and libel. The Zuckerts counterclaimed for unpaid rent.
Our scope of review in this matter is for the correction of errors at law. Iowa R.App.P. 4.
I. The Galloways claim that the district court erred by not instructing the jury that the statements in the letter written by Alan Zuckert constituted libel per se. In Vojak v. Jensen, 161 N.W.2d 100, 104 (Iowa 1968), the supreme court defined libel and libel per se.
Libel is defined as a malicious publication, expressed either in printing or writing, or by signs and pictures, tending to injure the reputation of another or to expose him to public hatred, contempt, or ridicule or to injure him in the maintenance of his business.
Among statements which are libelous per se are those which charge business incompetence or lack of skill in the trade occupation, profession or office by which one earns his living.
Id.
These two definitions show the statements in the letter fall within the definition of libel and not libel per se. The statements in question, such as Zuckert was unable to do business with Galloway "on a handshake," may tend to injure the plaintiff in the maintenance of his business, but *555 they do not specifically charge him with incompetence or lack of skill. However, the court explained the Vojak holding in Kelly v. Iowa State Education Association, 372 N.W.2d 288, 295 (Iowa App.1985). The court held that, "libel per se is not limited to certain charges. The passage in Vojak ... clearly states that the charges listed are `among' statements that are libelous per se." "Statements of any nature can be libelous per se. All that must be determined is that the court can presume as a matter of law that publication will have a libelous effect." Id.
The statements in question still cannot be said to be libelous as a matter of law. In addition to the definition set out in Vojak, the court in Kelly would also include statements that impute dishonesty as being libel per se. The statements by Zuckert, that he was not able to do business with Galloway "on a handshake" or that he did "an about-face," are not synonymous with calling the appellant a liar nor do they impute dishonesty to any great degree. The court in Kelly recognized that when a publication is ambiguous, it is for the jury to decide whether a defamatory meaning was conveyed. Kelly, 372 N.W.2d at 296. The statements in question were sufficiently ambiguous to allow their submission to the jury, and it was not error to instruct the jury that the statements in the letter constituted mere libel.
The Galloways next contend it was error to include actual malice as an element of proof in the jury instructions. The term actual malice, as opposed to legal malice, merely means a plaintiff must prove the existence of malice while under legal malice the law presumes that it exists. The court in Vojak set out the elements of libel and libel per se. "Certain statements are held to be libel per se, which means they are actionable in and of themselves without proof of malice, falsity or damage. In actions based on language not libelous per se, all of these elements must be proved by plaintiff before recovery can be had, but when a statement is libelous per se they are presumed from the nature of the language used." Vojak, 161 N.W.2d at 104. The court includes malice as an element in both libel and libel per se. Appellant argues that including the element of actual malice in a claim for mere libel is illogical because it negates the "benefit" of possessing a qualified privilege. In order to overcome a claim of qualified privilege actual malice must be proven. Id. at 105. The appellants suggest that if actual malice must be shown in an ordinary libel action the "benefit" of possessing a qualified privilege is a false one. This is not entirely true. The "benefit" exists because actual malice must always be proven to negate a qualified privilege, even when statements would ordinarily constitute libel per se. Id. The district court did not err in including actual malice as an element of ordinary libel.
The appellants next challenge the definition of malice given to the jury. The district court defined actual malice as a statement made concerning another because of ill-will or hatred, or made recklessly with an intent to injure. In Kelly, the court followed the rule set out in McCarney v. Des Moines Register and Tribune Co., 239 N.W.2d 152 (Iowa 1976), regarding what must be shown in order to prove the element of actual malice. "Actual antagonism or contempt has been held insufficient to show malice. So has intent to inflict harm. There must be an intent to inflict harm through falsehood." Kelly, 372 N.W.2d at 296. The McCarney case involved a public figure, but the definition of malice as an element of libel does not change depending on who is claiming it. The only thing that changes is whether it must be proven or whether the law will presume its existence.
The Galloways next challenge the testimony given by the defendant telling why the construction was being done on the leased property, and the testimony by defense witnesses as to the reputation of Alan Zucker as a landlord.
The standard for the review of evidence matters is "clearly unreasonable." "We will not find an abuse of discretion in the trial court's admission or exclusion of evidence unless its action is clearly unreasonable." *556 Blakely v. Bates, 394 N.W.2d 320, 322 (Iowa 1986).
Iowa Rule of Evidence 701 allows a lay witness to testify in the form of an opinion if such testimony is helpful to a clear understanding of his testimony or the determination of a fact in issue. The question as to whether the construction was legitimate or not was in issue and allowing testimony by Zuckert as to why the construction was going on was certainly helpful and within the discretion of the trial judge.
The admission of the reputation testimony was not prejudicial to the plaintiff. It was the plaintiff who brought Zuckert's reputation as landlord into contention. It was not clearly unreasonable for the trial judge to view the defendant's character as being in issue and not error to allow the testimony.
Finally, appellant contends that the district court should have granted Clair Galloway's motion for a judgment n.o.v. Assuming that a proper motion for a directed verdict was made at the close of all the evidence, of which there is serious doubt and which is required by Iowa Rule of Civil Procedure 243(b), appellant was not entitled to a judgment n.o.v. In reviewing a motion for a directed verdict, the appellate court must consider the evidence in a light most favorable to the non-moving party. Iowa R.App.P. 14(f)(2). Examining the evidence in that light shows the evidence was sufficient to support the jury's verdict.
II. Defendant's Counterclaim. The jury's findings of fact, that no rent was owed, are supported by substantial evidence. Appellee's request for attorney fees on this issue is denied.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622670/ | 190 F. Supp. 893 (1961)
ALLSTATE INSURANCE COMPANY, an Illinois corporation, Plaintiff,
v.
Waldo VALDEZ and Dorothy F. Duffy, Administratrix of the Estate of Henry E. Duffy, Deceased, Defendants.
Civ. A. No. 20459.
United States District Court E. D. Michigan, S. D.
February 1, 1961.
*894 Albert A. Miller, Garan, Lucow & Miller, Detroit, Mich., for plaintiff.
Robert E. Rutt, Ward, Plunkett & Cooney, Detroit, Mich., for defendant Valdez.
Robert A. Frye, Frye & Frye, Detroit, Mich., for defendant Duffy.
LEVIN, Chief Judge.
The Court has jurisdiction in this declaratory judgment action, 28 U.S.C.A. § 2201, by virtue of the diverse citizenship of the parties and the amount in controversy. The issue presented is whether an accident arising in the manner hereinafter described falls within the language of Allstate Insurance Company's automobile liability insurance policy with defendant Valdez, the insured, obligating Allstate to compensate for bodily injury sustained by any person "* * * arising out of the ownership, maintenance or use, including loading and unloading, of the owned automobile * * *."
Allstate and the defendant Duffy have filed motions for summary judgment under Rule 56, 28 U.S.C.A. The stipulated facts in substance are as follows: On February 25, 1959, Valdez and three friends were hunting for small game. The three other hunters had deposited their weapons in the trunk of Valdez' automobile and were sitting inside the vehicle waiting for Valdez to complete his hunting. The group was then to return to Detroit. Valdez finished hunting and, while standing approximately 25 feet to the rear and south of his car and facing in a generally westerly direction, began ejecting shells from his Browning automatic 12-gauge shotgun. The safety device was on the shotgun. While ejecting the shells, Valdez slipped upon the icy surface of the ground and, in attempting to control his fall, turned his shotgun in the direction of the car. The butt of the gun struck the ground and the weapon discharged, firing a shell which went through the open trunk of Valdez' automobile and killed Henry E. Duffy, one of the hunters sitting in the rear seat of the vehicle.
Thereafter, the defendant Dorothy F. Duffy, as administratrix of the estate of Henry E. Duffy, filed a wrongful death action against Valdez in the Wayne County Circuit Court.[1]
It is generally acknowledged that the "loading and unloading" provision extends liability coverage under a policy beyond the limits circumscribed by the words "maintenance or use." Appleman Insurance Law & Practice, Vol. 7, § 4322 (1942). The courts have adopted two views of the scope of insurance coverage under the "loading and unloading" clause, the so-called "coming to rest" and "complete operation" doctrines. Under the former category, "loading" would cover only the period during which the article has left its place of rest and is in the process of being carried to or placed in the vehicle. Conversely, "unloading" *895 terminates when the article is no longer being physically lifted from the vehicle but has actually reached a place of rest. Pacific Automobile Insurance Company v. Commercial Casualty Insurance Company of New York, 1945, 108 Utah 500, 161 P.2d 423, 160 A.L.R. 1251.
Broader in scope than the "coming to rest" theory, the "complete operation" interpretation covers the entire process involved in the movement of the article, thereby omitting any distinction between "loading" and preparatory activities or "unloading" and "delivery." Pacific Automobile Insurance Company v. Commercial Casualty Insurance Company of New York, supra.
No reported Michigan decision has outlined the scope of coverage under a "loading and unloading" provision. The majority of courts in the United States today follow the "complete operation" doctrine.[2] One reason for the preference of the "complete operation" construction is that it is somewhat more realistic, particularly in policies involving commercial carriers, to regard the entire delivery or preparatory process as an integral part of the "loading" or "unloading" of the vehicle. Without a liberal construction of the "loading and unloading" clause, coverage would be no broader than under the "maintenance or use" provision. Lumbermens Mutual Casualty Company v. Employers' Liability Assurance Corp., 1 Cir., 1958, 252 F.2d 463. In addition, it may be said either that the parties would have intended a liberal construction of the policy or that the phrase "loading and unloading" is ambiguous and must be strictly construed against the insurance company. August A. Busch & Co. of Massachusetts v. Liberty Mutual Insurance Co., 1959, 339 Mass. 239, 158 N.E.2d 351; Raffel v. Travelers Indemnity Co., 1954, 141 Conn. 389, 106 A.2d 716. The adoption by the majority of the courts of the "complete operation" doctrine appears to me to be based upon the better reasoning.
Allstate contends that even under this doctrine the prerequisite of a causal connection between the accident and the "loading" process was not satisfied because Valdez, in ejecting the shotgun shells 25 feet from his automobile, was not making a direct movement towards *896 placing the weapon into the trunk of the vehicle.
A Michigan statute, 9 M.S.A. § 13.1339, Pub.Acts 1957, No. 207, § 312.10, reads:
"It shall be unlawful: * * *
"(d) For any person to transport or have in possession in or upon an automobile * * * a gun or other firearm except a pistol or revolver unless the same be unloaded in both the barrel and magazine; * * *
"(d-1) For any person except as may be otherwise permitted by law, to transport, or have in possession in or upon an automobile any * * gun or other firearm except a pistol or revolver unless the same be taken down or enclosed in a case or carried in the trunk of such automobile;"
It would appear that Valdez was fulfilling his legal obligation by ejecting the shells preparatory to placing the weapon in the trunk of his car. As already stated, the other three hunters had deposited their weapons in the trunk of Valdez' car, the trunk lid was up, and the hunters were waiting for Valdez, who would drive them back to Detroit. Under these circumstances where Valdez was ready to "load" his shotgun into the trunk but, as a preparatory step, was attempting to comply with the safety requirements of the Michigan statute, the ejection of the shells was an integral part of the "loading" process, and, therefore, there was a sufficient causal relationship between the "loading" of the automobile and the accident.
Allstate claims that the distance from Valdez to his car indicates that the preparatory step in the "loading" process had not occurred. It seems to me that distance per se is not necessarily an accurate measuring device of the extent to which "loading" has begun. The test is whether the activities resulting in the injuries are a part of the entire "loading" scheme.
There was a more direct connection between Valdez' "preparatory" steps and the actual placing of the article in his automobile than in the "loading" situations presented in other decisions sustaining coverage under a "complete operation" interpretation. In this regard, two illustrative cases may be mentioned. In Lumbermens Mutual Casualty Company v. Employers' Liability Assurance Corp., 1 Cir., 1958, 252 F.2d 463, a customer was helping a dealer's employees lower a traded-in divan from his second floor porch to the ground by means of a web strap. While doing so, the customer fell off the porch and injured himself. The dealer's truck at the time was parked in the road adjacent to the apartment. Holding that Massachusetts law would construe the "loading and unloading" clause liberally, the Court ruled that there was a sufficient causal relation between the accident and the loading of the vehicle even though, as the dissenting judge pointed out, such an accident, by its very nature, could have happened prior to the trucker's arrival at the customer's residence.
In Wagman v. American Fidelity & Casualty Co., 1952, 304 N.Y. 490, 109 N.E.2d 592, a trucker was employed by a clothing store chain to transport garments from one of its stores to its warehouse. The truck was parked at the curb in front of the store. Two employees of the store rolled a rack of garments to the curb. The truck driver and his helper lifted the articles from the curb and arranged them inside the truck. None of the store's employees entered the truck or brought the garments farther than to the curb. The department manager of the store was on the sidewalk counting and checking the garments but did not participate in the actual movement of the articles. While walking back to the store to examine other goods to be shipped, the manager bumped into a pedestrian causing her to fall. In a declaratory judgment action, the Court held that the trucker's liability policy covered the accident under the "loading" provision, although the actual loading process itself was done only by the trucker's employees and not by the employees of the store, *897 and the manager's activities could ordinarily be performed inside the store and might well have been undertaken at an earlier time.
These two cases, as well as most other decisions in this area of the law, involve the loading or unloading of commercial vehicles. However, since the "loading and unloading" clause here considered is identical with that found in commercial vehicle liability policies, it may be assumed that Allstate intended uniform construction of the same provision regardless of the type of vehicle involved. In any event, had Allstate wished to restrict the scope of coverage of the "loading and unloading" clause, it was in a position to do so by an express provision in the policy.
I hold for the defendants. An appropriate order may be presented for signature.
NOTES
[1] The Supreme Court held in Maryland Casualty Co. v. Pacific Coal & Oil Co., 1941, 312 U.S. 270, 61 S. Ct. 510, 85 L. Ed. 826, that in a declaratory judgment action brought by an insurance company against the insured and the injured third party for a declaration of non-coverage under the policy, the injured third party cannot raise the defense of a lack of "controversy" between himself and the insurer.
[2] Since 1946 the "complete operation" construction has been accepted in the following jurisdictionsConnecticut: Raffel v. Travelers Indemnity Co., 1954, 141 Conn. 389, 106 A.2d 716; Illinois: Liberty Mutual Insurance Company v. Hartford Accident and Indemnity Company, 7 Cir., 1958, 251 F.2d 761, reversing on other grounds; Coulter v. American Employers' Insurance Co., 1948, 333 Ill.App. 631, 78 N.E.2d 131; Maryland: American Automobile Insurance Company v. Master Building Supply & Lumber Company, D.C.Md.1959, 179 F. Supp. 699; Massachusetts: August A. Busch & Co. of Massachusetts v. Liberty Mutual Ins. Co., 1959, 339 Mass. 239, 158 N.E.2d 351; Lumbermens Mutual Casualty Company v. Employers' Liability Assurance Corp., 1 Cir., 1958, 252 F.2d 463; New Jersey: Turtletaub v. Hardware Mutual Casualty Co., 1948, 62 A.2d 830, 26 N.J.Misc. 316; New York: Wagman v. American Fidelity & Casualty Co., Inc., 1952, 304 N.Y. 490, 109 N.E.2d 592; Missouri: Maryland Casualty Co. v. Dalton Coal & Material Co., 8 Cir., 1950, 184 F.2d 181, affirming D.C.W.D.Mo.1949, 81 F. Supp. 895; Texas: American Employers' Ins. Co. v. Brock, Tex.Civ.App.1948, 215 S.W.2d 370; but see also Travelers Insurance Company v. Employers Casualty Company, Tex.Civ.App.1960, 335 S.W.2d 235; Virginia: London Guarantee & Accident Co. v. C. B. White & Bros. Inc., 1948, 188 Va. 195, 49 S.E.2d 254.
Because of the holdings in Wheeler v. London Guarantee & Accident Co., 1928, 292 Pa. 156, 140 A. 855 and Ferry v. Protective Indemnity Co., 1944, 155 Pa. Super. 266, 38 A.2d 493, Pennsylvania has been considered as accepting the "coming to rest" interpretation. However, in Federal Insurance Company v. Michigan Mutual Liability Company, 3 Cir., 1960, 277 F.2d 442, the Court, in applying Pennsylvania law, stated that there was no clear enunciation of which doctrine the Pennsylvania Court would apply if presented with an appropriate case.
For a classification of cases according to the "coming to rest" and "complete operation" theories decided prior to 1946, see annotation 160 A.L.R. 1259 (1946). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1554988/ | 36 So.3d 738 (2010)
Kenneth C. JENNE, Appellant,
v.
STATE of Florida, DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
No. 1D09-2959.
District Court of Appeal of Florida, First District.
April 20, 2010.
Rehearing Denied June 14, 2010.
*739 Mark Herron, Robert J. Telfer, III, and Thomas Findley of Messer, Capparello & Self, P.A., Tallahassee, for Appellant.
Clifford A. Taylor, Barbara M. Crosier, and Geoffrey Christian, Department of Management Services, Tallahassee, for Appellee.
PADOVANO, J.
Ken Jenne, the former Sheriff of Broward County, appeals a final order by the Department of Management Services adjudicating a forfeiture of his rights and benefits under the state retirement law. We hold that Jenne's federal conviction for conspiracy to commit mail fraud qualifies as a "specified offense" under section 112.3173(2)(e)6., Florida Statutes (2001), and that the commission of the offense justifies the forfeiture of his retirement benefits. We therefore affirm.
Jenne was charged by information on September 4, 2007, in the United States District Court for the Southern District of Florida, with one count of conspiracy to commit mail fraud and three counts of filing a false tax return. The facts alleged by the government in support of these charges are not in dispute. Jenne admitted the allegations in a written plea agreement, and the federal judge accepted his admission as the factual basis for his guilty plea. The crimes referred to in the information were committed over the course of several years in a series of unlawful transactions. These transactions are summarized as follows.
A real estate developer arranged for the demolition of Jenne's private residence in 2001 by soliciting bids, contracting with a bidder, and paying the contractor $8,130. One of Jenne's secretaries and the attorney for the Broward County Sheriff's Office exchanged communications with the developer's secretary during the course of the work. The developer and the attorney also appeared before the Lake Worth Code Enforcement Board on Jenne's behalf. At the same time, the developer was negotiating with Jenne in his public capacity to lease additional office space to the Sheriff's Office. Jenne signed an amendment to the existing lease with the developer, committing the Sheriff's Office to additional square footage for five years at a cost of $348,000. In addition, he agreed to lease another office from the developer on behalf of the Sheriff's Office for ten years at $416,000 per year. The developer never sought reimbursement for the $8,130 he had paid to the contractor who did the work on Jenne's private residence, nor did he seek to be compensated for any of the time he spent on that project.
Jenne was involved in 2002 with the same real estate developer in a plan to invest money in a company that made an oil well cleaner. In the course of the discussions about this plan, Jenne flew to Louisiana at the developer's expense. Jenne was to receive a 25 percent stake in the well cleaner company, but he ultimately backed out of the deal. The developer then paid Jenne $10,000 for his work on the uncompleted transaction. The payment was made by a check that was passed through the bank account of one of the developer's companies, and then through another account, before it was tendered to Jenne.
Jenne owed the Internal Revenue Service $18,000 for tax due on his 2003 federal income tax return. His secretary knew that he did not have the money, so she suggested that he get it from the real *740 estate developer. Jenne said he could not do that, because the developer did business with the Broward County Sheriff's Office. The secretary then suggested that the developer could lend the money to her, and she would then lend it to Jenne. Jenne agreed. He asked the developer to lend $20,000 to his secretary but did not tell him what the loan was for. The developer never sought repayment of the loan.
In 2004, the president of an electronic surveillance company that was providing services to the Sheriff's Office asked Jenne to recommend someone to lead a training session the company was conducting in Barbados. It was within Jenne's discretion to allow off-duty employment, and he recommended an officer on his staff for the training position. The president asked Jenne whether he owed anyone for finding the instructor, and Jenne suggested that he compensate a secretary in his office for the work that she had done on the project. Meanwhile, Jenne told the secretary that she would be receiving a check from the surveillance company and he instructed her to give the check to his personal secretary. The president sent the first secretary a check for $3,000. She passed the check along to Jenne's personal secretary, as instructed, and the funds from the check were ultimately deposited into Jenne's personal bank account.
A similar transaction took place in 2004, when the president of the same surveillance company asked Jenne to recommend an officer to conduct a security survey for a client. Jenne made the recommendation, and the president of the surveillance company paid him $2,500. Again the check was sent to one secretary in the Sheriff's Office and passed along to another, and the funds were then deposited into Jenne's account.
Jenne was a partner in a law firm from 1992 to 1998. In late 1997, the firm bought Jenne a Mercedes convertible for $61,297, financing it with a five-year loan. Jenne left the firm in early 1998 when he was appointed Sheriff and he took the Mercedes with him. The firm continued to pay on the loan until it was paid off in 2003 and it paid for the auto insurance until Jenne's conviction. When the firm offered to transfer title to Jenne in 2005, he declined, saying that it would look bad in the press. The firm paid about $78,000 on the loan and $30,000 for insurance after Jenne left the firm. After Jenne became Sheriff, the firm worked on nineteen cases for the Sheriff's Office.
Jenne was required to disclose his net worth, assets, and liabilities to the Florida Commission on Ethics and his income to the Internal Revenue Service annually. He did not disclose the assets he had acquired from any of these transactions to the Ethics Commission. Nor did he disclose the income he had received from any of these transactions to the Internal Revenue Service.
A hearing was held on Jenne's guilty plea on September 5, 2007. After reviewing the formal charge and the statement of facts in the plea agreement, the federal judge accepted the plea. The judge then sentenced Jenne to prison for a year and a day, placed him on a term of probation, ordered him to pay a $3,000 fine and directed him to pay the taxes owed.
When the sentence was imposed, Jenne resigned and applied to the Florida Department of Management Services for his pension. The Department responded on January 24, 2008, by sending Jenne notice that he had forfeited his retirement benefits as a result of his federal convictions. In support of this decision, the Department cited article II, section 8(d), of the Florida Constitution and section 112.3173, Florida Statutes.
*741 Jenne challenged the forfeiture, and the parties submitted a joint stipulation of facts in lieu of a formal hearing. After reciting the factual basis for the convictions, the administrative law judge concluded that Jenne had "abused his position and violated the public trust," thus forfeiting his retirement benefits. The Department adopted the administrative law judge's findings of fact and conclusions of law and entered a final order to the same effect. Jenne filed a timely appeal to this court to seek review of the order.
The primary source of the state's authority to declare a forfeiture of rights and benefits under the state retirement system is the Florida Constitution. Article II, section 8(d) states in material part:
SECTION 8. Ethics in government.A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse. To assure this right:
* * *
(d) Any public officer or employee who is convicted of a felony involving a breach of public trust shall be subject to forfeiture of rights and privileges under a public retirement system or pension plan in such manner as may be provided by law.
This provision is implemented by legislation contained in Chapter 112, Part III, Florida Statutes, entitled "Code of Ethics for Public Officers and Employees." Section 112.3173(3) states that "[a]ny public officer or employee who is convicted of a specified offense committed prior to retirement" shall forfeit all rights and benefits under the retirement system.
The felony conviction that served as a basis for the administrative order declaring a forfeiture of retirement benefits in this case was Jenne's conviction for conspiracy to commit mail fraud. This crime is not identified by name in section 112.3173(2)(e), but it could serve as the basis for a forfeiture of retirement benefits if it meets the general definition of a specified offense in subsection 112.3173(2)(e)6. This subsection states:
(e) `Specified offense' means:
* * *
6. The committing of any felony by a public officer or employee who, willfully and with intent to defraud the public or the public agency for which the public officer or employee acts or in which he or she is employed of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains, or attempts to realize or obtain, a profit, gain, or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office or employment position.
Jenne contends that his conviction for conspiracy to commit mail fraud does not meet the definition of a specified offense because the elements required to prove the offense do not match the elements of any of the crimes described in the statute. The Department argues that the crime qualifies as a specified offense by the manner in which it was committed. Jenne did not conspire to commit mail fraud in a purely personal venture; he did so from a position of public trust, by using the power of his office to gain a benefit for himself. The question emerging from these competing arguments is whether the term "specified offense" is defined by the conduct of the former public official, or whether it is defined more narrowly by the elements of the crime for which the official was convicted.
We need not look beyond the text of the statute to find the answer to the question. *742 Section 112.3173(2)(e)6., Florida Statutes defines a specified offense as the commission of "any felony by a public officer or employee who, willfully and with intent to defraud the public ... of the right to receive the faithful performance of his or her duty ... realizes or obtains, or attempts to realize or obtain, a profit, gain, or advantage for himself or herself ... through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office." (Emphasis added.) By this language, any felony could qualify as a specified offense, so long as the remaining conditions in the statute have been met. All of the remaining conditions refer to the conduct of the official, not the definition of the crime.
This conclusion is supported not only by the plain meaning of the words used in the statute, but also by the sentence structure of the statute. The word "who" is a relative pronoun. It could only refer to a person, in this case the public official whose retirement benefits are at issue. Hence, the phrase "by a public officer or employee who" intends to defraud the public to obtain a personal gain by the use of his office, refers to the actions taken by the public officer. It does not, and could not by the rules of English grammar, refer to the elements of the crime for which the officer was convicted. Jenne's argument would be well taken if the statute had been drafted to say that the public official must be convicted of a crime that requires proof of an intent to defraud for the purpose of personal gain. But the statute plainly does not say that.
Whether the crime of conspiracy to commit mail fraud meets the definition of a specified offense in section 112.3173(2)(e)6. depends on the way in which the crime was committed. It might not meet the definition if the public officer were to use the mail unlawfully in a private venture without disclosing the office held and without obtaining a benefit by virtue of the office. But it would be an entirely different matter if, for example, a public officer had used the mail to solicit a bribe in return for a favor performed at the expense of the public.
Our conclusion that section 112.3173(2)(e)6. defines the term "specified offense" by the conduct of the public officer and not by the elements of the crime is supported, at least indirectly, by several other decisions. For example, in Newmans v. Division of Retirement, 701 So.2d 573 (Fla. 1st DCA 1997), this court held that a sheriff who was convicted of providing inside information to drug traffickers forfeited his retirement benefits. The crimes at issue in that case, conspiracy to manufacture marijuana, manufacturing marijuana, and conspiracy to obstruct justice, were not crimes that would necessarily involve a breach of the public trust. However, the sheriff used the power of his office to assist the traffickers and he thereby obtained a personal benefit in breach of the public trust.
Likewise, in Simcox v. City of Hollywood Police Officers' Retirement System, 988 So.2d 731 (Fla. 4th DCA 2008), the court held that a police officer who knowingly operated an escort vehicle to protect a truck that was delivering heroin forfeited his retirement benefits. The crime in question, conspiracy to possess heroin with intent to distribute, would not necessarily qualify as a specified offense. However, as in Newmans, the crime was committed not as a private venture, but by the misuse of a public office.
Jenne relies on Shields v. Smith, 404 So.2d 1106 (Fla. 1st DCA 1981), for the proposition that a federal offense can qualify as a specified offense only if the elements of the federal crime match those of a comparable state crime that would justify *743 a forfeiture of retirement benefits. Although it was not necessary to the holding in that case, the court did observe that the federal crime of conspiracy to interfere with interstate commerce was not a specified offense, because the elements of the crime did not match those of any state crime that could be used to support a forfeiture.
However, the Shields decision is not controlling here for two reasons. First, the opinion was published before the enactment of the catch-all provision in section 112.3173(2)(e)6. With the advent of this subdivision, it is now clear that a specified offense can be "any felony," so long as it is committed in the manner described in the statute. Second, and equally as important, the public officer in Shields was convicted by a jury. This necessarily limited the inquiry to the elements of the crime. The court could not know which facts the jury accepted and which it rejected. All the court could know for certain was that the defendant committed a crime that required proof of certain elements. In contrast, Jenne entered a plea of guilty and signed a plea agreement admitting all of the material facts. That the crime of conspiracy to commit mail fraud was committed in a way that makes it a specified offense under the law is a matter of record.
Jenne also argues that this court should interpret section 112.3173(2)(e)6. in light of the Ethics in Government provision in article II, section 8(d) of the Florida Constitution. We agree with the general premise of this argument but find nothing in the constitution that runs contrary to our interpretation of the statute. Article II, section 8(d) provides that "any public officer who is convicted of a felony involving a breach of public trust shall be subject to forfeiture of rights and privileges under a public retirement system ... in such manner as may be provided by law." This language does not suggest that the felony must be one that involves a breach of the public trust by its very definition. In any event, section 8(d) expressly confers authority on the Florida Legislature to define by general law the precise circumstances in which the commission of a felony can result in the forfeiture of retirement benefits.
For these reasons we find no error in the final administrative order declaring a forfeiture of Jenne's benefits under the Florida Retirement System. Jenne was convicted of a felony under federal law, and the facts he admitted in his plea agreement establish that his offense falls within the class of offenses that can justify a forfeiture of retirement benefits.
Affirmed.
WEBSTER and ROBERTS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1622676/ | 190 F. Supp. 105 (1961)
UNITED STATES of America ex rel. George BIRCH, Petitioner,
v.
Edward M. FAY, Warden of Green Haven Prison, Stormville, New York, Respondent.
United States District Court S. D. New York.
January 4, 1961.
*106 George Birch, pro se.
Louis J. Lefkowitz, Atty. Gen., for respondent. Philip Weinberg, Asst. Atty. Gen., of counsel.
WEINFELD, District Judge.
This is an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(a). The petitioner is confined in Green Haven Prison, Stormville, New York, pursuant to a judgment of conviction entered in November 1958, in the Bronx County Court, State of New York, on a charge of illegal possession of narcotics.[1] He was sentenced to five to ten years imprisonment.[2]
The judgment of conviction was affirmed by the Appellate Division.[3] Thereafter, on May 13, 1960, the petitioner's application for leave to appeal was denied by the Court of Appeals (Fuld, J.) and certiorari denied by the Supreme Court on October 10, 1960.[4] Thus, it appears that the petitioner has exhausted available state remedies as required by 28 U.S.C. § 2254.
The judgment of conviction is attacked by petitioner as having been obtained in violation of his constitutional right to a fair trial. The attack centers about three items:
(1) the alleged improper admission into evidence of thirty packages of heroin, over petitioner's objection that the chemist did not recall making the analysis of the contents of the packages and was permitted to refresh his memory from secondary sources without explanation for his failure to produce the original memorandum prepared at the time the analysis was made, some two years before the trial;
(2) that the Assistant District Attorney "knowingly, or perhaps unknowingly," committed "fraud," which, according to the petitioner, was the prosecutor's reference in his summation to petitioner's association with a known user of narcotics. This reference, it is contended, injected extraneous and prejudicial matter into the case which improperly influenced the jury;
(3) that the Trial Court, in the course of its charge to the jury, made a "false" statement which attributed to the petitioner an admission of possession of the narcotics which petitioner urges "the record does not disclose that [he] ever made * * *." This, too, is charged as prejudicial conduct which improperly influenced the jury.[5]
While the petitioner alleges that these errors impinged upon his rights under the fifth, ninth and fourteenth amendments of the Federal Constitution, the essence of his various charges is that they deprived him of a fundamentally fair trial guaranteed to him under the due process clause of the fourteenth amendment.[6]
The Court assumes, for the purpose of this application, the verity of petitioner's allegations, and further that the claimed errors were in fact errors under State law. Nonetheless, it concludes they do not give rise to any violation of his federally protected right to a fundamentally fair trial.
*107 Each state is free to adopt its own procedures and rules of evidence in the enforcement of its criminal laws, and these may not be interfered with by the federal courts unless they offend fundamental principles of justice and fair play.[7] It follows that mere errors or mistakes of law committed in the conduct of state criminal trials may not be reviewed by the federal courts;[8] they are empowered to upset a state court judgment of conviction only when the wrong complained of necessarily denied the defendant a fair trialin short, that the judgment of conviction is void for lack of due process because of the state's "failure to observe that fundamental fairness essential to the very concept of justice."[9] Absent such a showing, the writ of habeas corpus is not available to review errors in petitioner's trial in the admission of evidence,[10] alleged prejudicial statements in the Court's charge[11] or in the prosecutor's summation.[12] None of the errors, assuming arguendo they are in fact errors, is of substance and, either singly or in totality, were of such an egregious nature that petitioner was deprived of a fair trial.
One further matter remains to be considered, although not fully developed by the petitioner. In connection with the alleged prejudicial comment by the Court, he further alleges "the false statement made by the Court and also the reviewing of the testimony of said officer, that the Relator had made said statements, said testimony of officer is perjured, the Assistant District Attorney had encouraged the said officer to committed [sic] perjury knowingly or unknowingly." If this ambiguous allegation is intended to charge the prosecutor with the "knowing use" of perjured testimony,[13] it falls short of such a charge and is clearly insufficient; no evidential matter is set forth so as to require a hearing.[14]
The petition is dismissed.
NOTES
[1] N.Y.Penal Law § 1751, subd. 3.
[2] An earlier conviction had been reversed because of prejudicial remarks by the district attorney during the trial and summation that defendant was a narcotics user. People v. Birch, 1st Dep't 1958, 6 A.D.2d 28, 174 N.Y.S.2d 437.
[3] People v. Birch, 1st Dep't 1960, 10 A.D.2d 688, 199 N.Y.S.2d 424 (mem.). The Appellate Division, however, reduced the sentence to four to eight years imprisonment.
[4] Birch v. State of New York, 1960, 364 U.S. 843, 81 S. Ct. 83, 5 L. Ed. 2d 67.
[5] All the matters complained of were presented on appeal in the State Court, practically in haec verba as contained in the petition herein. Appellant's Brief, Record on Appeal, App.Div., No. 2282 (1st Dep't 1960).
[6] Adamson v. People of State of California, 1947, 332 U.S. 46, 53, 67 S. Ct. 1672, 91 L. Ed. 1903.
[7] Adamson v. People of State of California, 1947, 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903; Buchalter v. People of State of New York, 1943, 319 U.S. 427, 63 S. Ct. 1129, 87 L. Ed. 1492; Brown v. State of Mississippi, 1936, 297 U.S. 278, 285, 56 S. Ct. 461, 80 L. Ed. 682; Snyder v. Commonwealth of Massachusetts, 1934, 291 U.S. 97, 105, 54 S. Ct. 330, 78 L. Ed. 674.
[8] See Brown v. Allen, 1953, 344 U.S. 443, 485, 73 S. Ct. 397, 97 L. Ed. 469; Buchalter v. People of State of New York, 1943, 319 U.S. 427, 63 S. Ct. 1129, 87 L. Ed. 1492; Avery v. State of Alabama, 1940, 308 U.S. 444, 60 S. Ct. 321, 84 L. Ed. 377; Johnson v. Zerbst, 1938, 304 U.S. 458, 465, 58 S. Ct. 1019, 82 L. Ed. 1461; Mooney v. Holohan, 1935, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (per curiam); Moore v. Dempsey, 1923, 261 U.S. 86, 91, 43 S. Ct. 265, 67 L. Ed. 543; Frank v. Mangum, 1915, 237 U.S. 309, 334, 35 S. Ct. 582, 59 L. Ed. 969; Sanderlin v. Smyth, 4 Cir., 1943, 138 F.2d 729, 731.
[9] Lisenba v. State of California, 1941, 314 U.S. 219, 236, 62 S. Ct. 280, 290, 86 L. Ed. 166. See also Buchalter v. People of State of New York, 1943, 319 U.S. 427, 63 S. Ct. 1129, 87 L. Ed. 1492.
[10] United States ex rel. Saunders v. Myers, 3 Cir., 1960, 276 F.2d 790; Hodge v. Huff, 78 U.S.App.D.C. 329, 140 F.2d 686, certiorari denied 1944, 322 U.S. 733, 64 S. Ct. 946, 88 L. Ed. 1567; United States ex rel. Phillips v. Jackson, D.C.N.D.N.Y., 72 F. Supp. 18, affirmed mem., 2 Cir., 1947, 162 F.2d 414. See also Buchalter v. People of State of New York, 1943, 319 U.S. 427, 63 S. Ct. 1129, 87 L. Ed. 1492. Cf. Eagles v. United States ex rel. Samuels, 1946, 329 U.S. 304, 312, 67 S. Ct. 313, 91 L. Ed. 308; United States ex rel. Vajtauer v. Commissioner, 1927, 273 U.S. 103, 106, 47 S. Ct. 302, 71 L. Ed. 560.
[11] Kenion v. Gill, 1946, 81 U.S.App.D.C. 96, 155 F.2d 176.
[12] Chavez v. Dickson, 9 Cir., 1960, 280 F.2d 727, 735. Cf. Buchalter v. People of State of New York, 1943, 319 U.S. 427, 431, 63 S. Ct. 1129, 87 L. Ed. 1492.
[13] See Napue v. People of State of Illinois, 1959, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217; Mooney v. Holohan, 1935, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (per curiam).
[14] Cf. United States v. Pisciotta, 2 Cir., 1952, 199 F.2d 603, 606; United States v. Shillitani, D.C.S.D.N.Y.1954, 16 F.R.D. 336. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1274356/ | 341 S.C. 127 (2000)
533 S.E.2d 334
Douglas A. WEST, Respondent/Appellant,
v.
Joe Louis GLADNEY, Appellant/Respondent,
v.
John E. Brown, Third-Party Defendant.
No. 3160.
Court of Appeals of South Carolina.
Heard March 9, 2000.
Decided May 8, 2000.
Rehearing Denied July 8, 2000.
*130 Joyce Farr Cheeks, of Columbia, for appellant/respondent.
Warren C. Powell, of Bruner, Powell & Robbins, of Columbia, for respondent/appellant.
PER CURIAM:
Douglas A. West brought this action against Joe Louis Gladney alleging Gladney defaulted on a promissory note and seeking full payment of the note and attorneys' fees. The trial court granted West summary judgment, awarding him $563,816.47 on the debt, but limiting the award of attorneys' fees to $50,000. Both parties appeal. We affirm as modified.
BACKGROUND
In August 1996, West sold all of his shares in Am-Pro Protective Agency, Inc. to Gladney. In payment thereof, Gladney gave West $150,000 and executed a promissory note for $525,000. Because the stock was subject to a possible first lien by NationsBank, the sales agreement provided that Gladney, within ninety days of closing, would obtain NationsBank's release for any liability West might incur as a result of Am-Pro's obligations to the financial institution. When Gladney failed to make the payments required by the note, West declared Gladney in default and accelerated all future payments.
*131 West filed suit on June 3, 1997. Gladney answered and counterclaimed,[1] complaining that a few months after the sale, Am-Pro filed for bankruptcy. He explained that as part of the proceedings, the bankruptcy court granted NationsBank leave to execute against all collateral held by the bank, including the stock that is the subject of this action. Gladney contended NationsBank's actions made it impossible for West to deliver the stock and also claimed the value of the stock was rendered essentially worthless as a result of the bankruptcy and liquidation proceedings. He alleged West knew or should have known at the time of the sale about Am-Pro's financial condition and that the stock was essentially worthless. Gladney asserted that West's failure to fully inform him of Am-Pro's true financial status and West's failure to deliver the stock constituted failure of consideration, misrepresentation, or concealment of material facts or all three. Not only did Gladney contend these facts barred West from receiving any additional payments on the note, he also asserted they justified his recouping all funds already paid.
In September 1997, West moved for summary judgment on both his complaint and Gladney's counterclaim. West filed an affidavit in support of this motion on December 31, 1997. The hearing was originally scheduled for January 7, 1998, but was continued because of the trial schedule of Gladney's counsel. On the day of the rescheduled hearing, some two months later, Gladney provided West with his affidavit opposing summary judgment.
The trial court ruled that Gladney's affidavit was not timely and should not be considered. It found West fully performed his obligations under the sales agreement and note and that Gladney failed to make the payments when due or satisfy West's obligation to NationsBank. The court further held West "neither misrepresented the value of the shares of stock... nor did he know or have reason to know at or prior to the time of the sale" that their value was "anything other than the sales price." Accordingly, it awarded West summary judgment. The court, however, declined to award West the full *132 fifteen percent of the sum due as provided by the note for attorneys' fees. Instead, it found $50,000 to be a reasonable fee.
STANDARD OF REVIEW
The grant of summary judgment is proper when it is clear no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Cafe Assocs., Ltd. v. Gerngross, 305 S.C. 6, 406 S.E.2d 162 (1991). In ruling on a motion for summary judgment, the court must view the evidence and the inferences which can be drawn therefrom in the light most favorable to the non-moving party. Id. at 9, 406 S.E.2d at 164.
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to [that] party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 116, 410 S.E.2d 537, 545-46 (1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
DISCUSSION
I. Gladney's Appeal
A. Timeliness of Affidavit
Gladney argues the trial court erred in holding that his affidavit in opposition to the motion for summary judgment filed on the date of the hearing should not be considered. We disagree.
Rule 56(c) of the South Carolina Rules of Civil Procedure specifies that when filing papers in response to motions for summary judgment, "[t]he adverse party may serve opposing affidavits not later than two days before the hearing." Rule *133 56(c), SCRCP. Our supreme court has ruled that the trial court may, in its discretion, "refuse to consider materials that were not timely served such that the opposing party had no time to prepare a response." Black v. Lexington Sch. Dist. No. 2, 327 S.C. 55, 60, 488 S.E.2d 327, 329 (1997). The Black court held the trial court did not abuse its discretion in refusing to consider an affidavit filed on the date of the hearing when the appellant's lawyer admitted he failed to serve the affidavit within the time required by Rule 56 and failed to assert any good excuse for that failure. Id.
In the present case, more than two months passed from the time West served his affidavit until the hearing. In spite of this generous amount of time, Gladney did not file his affidavit opposing summary judgment until the day of the hearing. Moreover, Gladney failed to present any good cause for his failure to timely file the affidavit. Thus, under these circumstances, we find the trial court did not abuse its discretion in ruling the affidavit should not be considered. Accordingly, we will not consider the affidavit in our review.
B. Summary Judgment
Gladney argues the trial court erred in granting West's motion for summary judgment because the record reveals that genuine issues of material fact exist as to whether West was guilty of making misrepresentations. We disagree.
Gladney contends his assertion of misrepresentation encompasses negligent as well as intentional misrepresentation. The elements of an action for fraud based on a representation include: "(1) a representation; (2) falsity; (3) its materiality; (4) knowledge of the falsity or a reckless disregard of its truth or falsity; (5) intent that the representation be acted upon; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance upon the truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury." Moorhead v. First Piedmont Bank & Trust Co., 273 S.C. 356, 359, 256 S.E.2d 414, 416 (1979). These elements must be established by clear, cogent, and convincing evidence. Lundy v. Palmetto State Life Ins. Co., 256 S.C. 506, 183 S.E.2d 335 (1971).
In a claim for the common law tort of negligent misrepresentation where the damage alleged is a pecuniary *134 loss, the plaintiff must allege and prove the following essential elements:
(1) the defendant made a false representation to the plaintiff; (2) the defendant had a pecuniary interest in making the statement; (3) the defendant owed a duty of care to see that he communicated truthful information to the plaintiff; (4) the defendant breached that duty by failing to exercise due care; (5) the plaintiff justifiably relied on the representation; and (6) the plaintiff suffered a pecuniary loss as the proximate result of his reliance upon the representation.
AMA Management Corp. v. Strasburger, 309 S.C. 213, 222, 420 S.E.2d 868, 874 (Ct.App.1992); see also Rickborn v. Liberty Life Ins. Co., 321 S.C. 291, 468 S.E.2d 292 (1996). As part of his case, the plaintiff must establish that his reliance on the misrepresentation was reasonable. AMA Management Corp., 309 S.C. at 223, 420 S.E.2d at 874. "There is no liability for casual statements, representations as to matters of law, or matters which plaintiff could ascertain on his own in the exercise of due diligence." Id. Moreover, "there can be no reasonable reliance on a misstatement if the plaintiff knows the truth of the matter." Harrington v. Mikell, 321 S.C. 518, 522, 469 S.E.2d 627, 629 (Ct.App.1996). A determination of justifiable reliance involves the evaluation of the totality of the circumstances, "including the positions and relations of the parties." Elders v. Parker, 286 S.C. 228, 233, 332 S.E.2d 563, 567 (Ct.App.1985).
Fraud based on a misrepresentation and negligent misrepresentation both include a requirement that the plaintiff justifiably relied on the representation made by the defendant. In the case before us, John E. Brown, the chief executive officer of Am-Pro, negotiated the sale of West's stock as part of an agreement Gladney entered into with Am-Pro.[2] According to West, Gladney and his representatives had been present at Am-Pro headquarters for a number of weeks prior to any meaningful negotiations with him. Gladney had extensive conferences with Brown, and West contends Gladney had more access to the financial records than did West. West also asserts Gladney was in a better position than he to know the *135 financial status of Am-Pro as a result of Gladney's access to Brown and the corporation's books. West claims he never knew on or before the date of the sale that the value of his shares was anything other than the sales price negotiated with Gladney.
Gladney produced no evidence to refute West's statements. Not only will we not consider Gladney's untimely affidavit, this court ordinarily will not consider statements of fact presented only in an attorney's argument in determining whether a genuine issue of material fact exists sufficient to preclude summary judgment. See Gilmore v. Ivey, 290 S.C. 53, 348 S.E.2d 180 (Ct.App.1986) (ruling the trial court properly disregarded the statements of counsel which reflected testimony appearing in depositions not otherwise entered into evidence). We find Gladney failed to establish a genuine issue of material fact that his reliance on any alleged representation by West was justified. Accordingly, the trial court did not err in granting West's motion for summary judgment.
II. West's Appeal
West argues the trial court erred in refusing to award him attorneys' fees of fifteen percent of the amount due when the note specifically provided for such an award. We agree.
When a note provides for attorneys' fees at a specific rate in the event collection becomes necessary, the amount of attorneys' fees is governed by the contract. Dedes v. Strickland, 307 S.C. 155, 414 S.E.2d 134 (1992); NationsBank v. Scott Farm, 320 S.C. 299, 305, 465 S.E.2d 98, 101 (Ct.App. 1995) ("In South Carolina, where a contractual obligation provides only that a party is to pay `reasonable attorney's fees,' the amount is unliquidated and, therefore, requires a finding on the reasonableness of the award. On the other hand, where a contractual provision in a note provides for attorney's fees at a specific rate, the amount of attorney fees is governed by the contract."). In the note Gladney signed and presented to West, he agreed:
that if this note be placed in the hands of an attorney for collection, or if this debt, or any part thereof, be collected by an attorney, or by legal proceedings, of any kind, a reasonable attorney's fee of not less than fifteen (15%) percent, besides all costs and expenses incident upon such collection *136 shall be added to the amount due upon this note, and be collectible as a part thereof.
The note unequivocally provides for attorneys' fees at a specified rate. It is not for us to determine whether the parties' agreement was reasonable or wise, or whether they carefully guarded their rights. See Sphere Drake Ins. Co. v. Litchfield, 313 S.C. 471, 438 S.E.2d 275 (Ct.App.1993). Accordingly, we find West is entitled to an award of attorneys' fees of fifteen percent of the amount due on the note. The judgment is therefore modified to award attorneys' fees of $84,572.47.
For the foregoing reasons, the decision of the trial court is
AFFIRMED AS MODIFIED.
HEARN, C.J., STILWELL, J., and MOREHEAD, Acting Judge, concur.
NOTES
[1] Gladney also asserted a third party complaint against John E. Brown, the president and principal stockholder of Am-Pro Protective Agency. This claim is not involved in the current appeal.
[2] Pursuant to the agreement, Gladney paid $600,000 to the Internal Revenue Service on Am-Pro's behalf and in exchange, Am-Pro agreed to reorganize the corporation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920522/ | 447 N.W.2d 903 (1989)
Glen O. PETERSEN, Trustee for the heirs and next-of-kin of Randi L. Petersen, deceased; and Glen Petersen, individually and as parent and natural guardian of John Petersen and Scott Petersen, minors, Respondent,
v.
James CROFT, et al., Defendants.
Appeal of SENTRY INSURANCE.
James E. MADDEN, d/b/a Earle Brown Bowl, Third-Party Plaintiff,
v.
Ronald BACK, Third-Party Defendant.
No. C3-89-926.
Court of Appeals of Minnesota.
November 21, 1989.
Review Denied January 12, 1990.
*904 John Buchman, Soucie & Buchman, Ltd., Anoka, for respondent.
John H. Guthmann, Hansen, Dordell, Bradt, Odlaug & Bradt, Saint Paul, for appellant.
Heard, considered and decided by SCHUMACHER, P.J., and FORSBERG and GARDEBRING, JJ.
OPINION
FORSBERG, Judge.
Sentry Insurance Company appeals from a judgment declaring respondent Glen O. Petersen entitled to uninsured motorist (UM) coverage. Petersen's claim arises out of the drive-by shooting death of his wife, Randi L. Petersen. We reverse.
FACTS
The facts are stipulated and have been previously tried in a criminal action.
In the early morning hours of July 16, 1982, James Croft, Ronald Back, and M.S. (a minor) consumed a large quantity of drugs and alcohol. While intoxicated, they drove around Brooklyn Center and Brooklyn Park in an uninsured car owned by Back.
Back supplied Croft with a .44 Magnum rifle. Croft fired the gun from the car window at several locations in the area. When Croft ran out of ammunition, they returned to Back's apartment for more.
At the urging of M.S., Back drove to the home of Glen and Randi Petersen. As they approached, the house was dark and there were no signs of activity within. While they slowly drove by, Croft fired four rounds into the house. One of the shots struck and killed Randi Petersen, who was asleep on the porch.
Back, Croft, and M.S. were arrested a few days later. At the criminal trial, the defendants testified they did not know of Randi Petersen's presence on the porch. They were aware the Petersens owned the house and it was not vacant. They did not intend to shoot at or injure Randi Petersen or any other individual.
Back and Croft were convicted of felony murder under Minn.Stat. § 609.19(2) (Supp. 1981). M.S. was convicted of aiding and abetting criminal damage to property and unintentional second degree murder.
Glen Petersen thereafter sought UM benefits under automobile liability insurance policies issued him by Sentry and by American Family Insurance. Randi Petersen was a named insured under both policies. Sentry denied coverage, claiming the shooting did not arise out of the use and maintenance of a motor vehicle, and coverage was avoided under an intentional acts exclusion. Petersen then brought this declaratory action against Sentry. American Family, while not a party, has agreed to be bound by the result of this suit.
The district court found the shooting arose out of the maintenance or use of a motor vehicle. Because the court failed to reach the issue of whether the shooting resulted from an intentional act, Sentry moved for amended findings and conclusions. In its amended order, the court held that while Croft had intentionally fired the rifle into the Petersen home, the intentional discharge had unintentionally killed Randi Petersen. The act was therefore not excluded *905 under the intentional acts provision and the court found the shooting to be a covered occurrence. This appeal followed.
ISSUES
1. For purposes of UM coverage, should an intentional act be viewed from the perspective of the insured or the tortfeasor?
2. Did the actions leading to the death of Randi Petersen constitute acts covered by the intentional acts exclusionary clause in the Petersens' automobile liability insurance policy?
ANALYSIS
The policy issued by Sentry to the Petersens provides in relevant part:
UNINSURED MOTORISTS COVERAGE
[Sentry] will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be caused by accident and arise out of the use of the uninsured motor vehicle.
Sentry appeals both the use and maintenance and the intentional acts findings of the district court. Because we find sufficient grounds for exclusion under the intentional acts clause, we do not determine the existence of other grounds for exclusion. Wieneke v. Home Mutual Insurance Co., 397 N.W.2d 597, 600 (Minn.Ct.App.1986), pet. for rev. denied (Minn. Jan. 21, 1987).
I.
To decide whether the district court correctly determined the shooting was an accident for purposes of UM coverage, we must first determine whether the act is considered from the perspective of the insured victim or the uninsured driver. This question has not yet been resolved in this jurisdiction. Id. at 602 (Popovich, C.J., concurring).
Respondents urge, and the trial court held, the issue of intent is properly viewed from the perspective of the insured in the UM context. They argue the policy considerations allowing intentional acts exclusions are not applicable in the first party, UM coverage situation. Normally, the exclusion is applied to prevent wrongdoers from controlling the risks of their policies. The exclusion holds them responsible for the consequences of their own wrongful acts. These policy considerations, however, are not readily applicable to UM coverage where the insured is not the wrongdoer. See Sciascia v. American Insurance Co., 183 N.J.Super. 352, 355, 443 A.2d 1118, 1120 (1982).
However, considering the occurrence from the insured's perspective is at cross purposes with an intentional acts exclusion. Insurers undertake to cover only occurrences arising out of the negligence of parties in automobile liability situations. This entails not allowing any party to consciously control risks and be afforded indemnification for intentional acts. As the supreme court has stated:
[T]he purpose of our [UM] statute is to provide the insured with financial protection against uninsured motorists whose negligence results in personal injury to him.
Nygaard v. State Farm Mutual Automobile Insurance Co., 301 Minn. 10, 19, 221 N.W.2d 151, 156 (1974) (emphasis added).
We believe the intentional nature of an act should be determined from the perspective of the tortfeasor in the UM context. The supreme court has pointed out the problems of holding otherwise in Red & White Airway Cab v. Transit Casualty Co., 305 Minn. 353, 357, 234 N.W.2d 580, 582 (1975). In Red & White, the court noted that viewing an occurrence from the perspective of the insured victim can lead to anomalous results. Specifically, the court refused to follow the extreme case of Haser v. Maryland Casualty Co., 78 N.D. 893, 53 N.W.2d 508 (1952), where a rape was found to be "caused by accident" for purposes of UM coverage.
We cannot envision a situation in which an occurrence would not be unintended from the perspective of the insured. Therefore, viewing intentional acts from the perspective of the insured under UM coverage would essentially render that exclusion *906 nugatory. We refuse to reach a decision so broad as to altogether eliminate insurers' ability to exclude intentional acts under UM coverage. See Mixed Local of Hotel & Restaurant Employees Union Local No. 458 v. Hotel and Restaurant Employees International Alliance and Bartenders International League of America, 212 Minn. 587, 595-96, 4 N.W.2d 771, 776 (1942) (contract construction should avoid nullification of writing in whole or in part).
II.
Having decided the occurrence is to be viewed from the perspective of the tortfeasor, it is still necessary to determine whether it was an "accident" within the meaning of the policy. "Accident" is defined in the policy as "[a]n unexpected and unintended event that causes bodily injury or property damage * * *." The district court in this case found:
23. On July 17, 1982, James Croft intentionally discharged a .44 magnum rifle into the residence of Glen and Randi Petersen.
24. The intentional discharge of the .44 magnum rifle by James Croft unexpectedly and unintentionally caused bodily injuries to Randi Petersen which resulted in her death.
Based on these findings, the court concluded:
4. The bodily injuries which resulted in the death of Randi Petersen were caused by a "car accident" for purposes of uninsured motorist coverage as that term is set forth in the insurance policies issued by Sentry Insurance Company and American Family Insurance Company.
In Auto-Owners Insurance Co. v. Smith, 376 N.W.2d 506 (Minn.Ct.App.1985), pet. for rev. denied (Minn. Jan. 17, 1986), this court adopted a four-part test to determine whether an act is intentional, based upon Woida v. North Star Mutual Insurance Co., 306 N.W.2d 570 (Minn.1981). In order for this act to be intentional as a matter of law, the tortfeasors must have shown some planning activity, must have armed themselves with a dangerous weapon, must have known the house was occupied, and must have committed the act with the knowledge someone could be injured. See Smith, 376 N.W.2d at 510.
First, as to planning activity, the tortfeasors drove through the area, randomly firing a gun. However, it is undisputed the tortfeasors drove to the Petersen home at the urging of M.S. They went there specifically because the Petersens lived there. In addition, prior to going to the Petersens' home, Croft stopped at Back's apartment to obtain additional ammunition. These deliberate actions sufficiently demonstrate defendants' planning activity.
Second, we consider whether the tortfeasors armed themselves with a dangerous weapon. The facts are undisputed on this point.
Third, we examine whether the tortfeasors knew the home was occupied. The testimony indicated all lights were out in the house. Although there was no sign of activity, Croft knew the house was not vacant. In fact, Croft fired the shots at the urging of M.S. precisely because the Petersens lived there.
Finally, we must determine whether the shooting was done with the knowledge that someone might be seriously injured. On this subject, the supreme court has held:
The intent may be established by proof of an actual intent to injure or when a character of an act is such that an intention to inflict injury can be inferred as a matter of law.
Woida, 306 N.W.2d at 573 (citations omitted).
In Smith, 376 N.W.2d at 510, this court inferred intent as a matter of law under circumstances very similar to the present case. There, the assailant fired four shots into a darkened home, striking and killing a woman sleeping on the couch. Here, the acts of M.S., Croft, and Back similarly allow no inference other than intent to injure. See also Iowa Kemper Insurance Co. v. Stone, 269 N.W.2d 885, 887 (Minn.1978); *907 Continental Western Insurance Co. v. Toal, 309 Minn. 169, 177-78, 244 N.W.2d 121, 125-26 (1976).
As all four prongs of the Smith test are met, the shooting of Randi Petersen was an intentional act as a matter of law and the occurrence was not an "accident" under the terms of Sentry's policy.
DECISION
The district court is reversed. Judgment must be entered for Sentry.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920527/ | 180 Mich. App. 397 (1989)
447 N.W.2d 811
BESSLER
v.
HURON-CLINTON METROPOLITAN AUTHORITY
Docket No. 105441.
Michigan Court of Appeals.
Decided October 2, 1989.
Martin Gary Deutch, and Daryl Royal, of Counsel, for plaintiffs.
Plunkett & Cooney, P.C. (by Frank W. Brochert and Christine D. Oldani), for defendant.
Before: HOOD, P.J., and CAVANAGH and J.W. FITZGERALD,[*] JJ.
PER CURIAM.
Plaintiffs appeal as of right from a December 16, 1987, order granting summary disposition, MCR 2.116(C)(7), in favor of defendant, Huron-Clinton Metropolitan Authority (HCMA). We affirm.
Plaintiffs were injured when their toboggan hit ice chunks on Kensington Park Toboggan Run No. 2 on January 8, 1986. Plaintiffs brought an action against HCMA alleging negligence and nuisance. HCMA, which runs Kensington Park, is a municipal corporation formed under enabling legislation, MCL 119.51; MSA 5.2148(1). On August 13, 1987, HCMA moved for summary disposition, arguing that plaintiffs' claim was barred by governmental *399 immunity, MCL 691.1401; MSA 3.996(101); MCL 691.1407; MSA 3.996(107), and an application of the recreational use statute, MCL 300.201(1); MSA 13.1485(1). On November 4, 1987, Oakland Circuit Judge Jessica R. Cooper held that the toboggan run did not come within the public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106), and granted HCMA'S motion on immunity grounds. On December 2, 1987, the judge also held that, because the operation of a toboggan run was not a propriety function and the $2 vehicle entry fee did not constitute reasonable consideration within the meaning of the recreational use statute, plaintiffs' ordinary negligence claim was barred under the recreational use statute.
On appeal, plaintiffs contend that the Kensington Park toboggan run was specifically built for public use and, therefore, falls within the public building exception to governmental immunity. We disagree.
The HCMA, as a municipal corporation, is immune from tort liability where the corporation is engaged in the exercise or discharge of a governmental function, barring a statutory exception. MCL 691.1401; MSA 3.996(101); MCL 691.1407; MSA 3.996(107). The public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106), provides:
Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy *400 the condition or to take action reasonably necessary to protect the public against the condition.
The scope of the public building exception was best summarized by this Court in Gibson v Grand Rapids, 162 Mich. App. 100, 104-105; 412 NW2d 658 (1987), lv den 429 Mich. 901 (1988):
The statute itself only excepts "bodily injury and property damage resulting from a dangerous or defective condition of a public building...." MCL 691.1406; MSA 3.996(106). This exception has been interpreted to include items permanently affixed to a public building. See Pichette v Manistique Public Schools, 403 Mich. 268; 269 NW2d 143 (1978). See also Tilford v Wayne Co General Hosp, 403 Mich. 293; 269 NW2d 153 (1978); Velmer v Baraga Area Schools, 157 Mich. App. 489; 403 NW2d 171 (1987). The exception does not include a stationary item located in a municipal park and not immediately adjacent to a part of any public building. See Jolly v City of St Clair, 428 Mich. 860 (1987), reversing 153 Mich. App. 824; 396 NW2d 552 (1986).
Plaintiffs rely on Pichette v Manistique Public Schools, supra, in support of their claimed error. Their reliance is misplaced. In Pichette, our Supreme Court held that a child's slide permanently attached with concrete to the surface of a public school playground and immediately adjacent to a public school building came within the public building exception to immunity. The case at bar is distinguishable from Pichette. The toboggan run was not a man-made structure and certainly may not be characterized as a building. The run consisted of a hill "structured" by the natural forces that shape the Earth's surface, covered by a natural accumulation of snow and ice. It existed independent of any public building located in Kensington *401 Park. Simply put, plaintiffs were injured as a result of the natural accumulation of snow on the hillside and not as the result of any defect in a man-made structure, as was the case in Pichette.
Accepting all of plaintiffs' well-pled allegations as true and construing them in the light most favorable to plaintiffs, we hold that the court's grant of summary disposition was proper. Jolly v City of St Clair, supra; Stroud v Ward, 169 Mich. App. 1, 4; 425 NW2d 490 (1988).
Plaintiffs also contend that, because they paid valuable consideration for entry into the park, the recreational use statute does not bar their negligence claim. We disagree.
The recreational use statute, MCL 300.201(1); MSA 13.1485(1), provides:
Except as provided in subsection (3), no cause of action shall arise for injuries to any person who is on the lands of another without paying to the owner, tenant, or lessee of the lands a valuable consideration for the purpose of fishing, hunting, trapping camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.
The statute applies to state parks and other state-owned land and provides protection from suit for mere negligence whenever there is gratuitous use of the park. Schiller v Muskegon State Park, 153 Mich. App. 472, 474, 476; 395 NW2d 75 (1986), lv den 428 Mich. 874 (1987). Payment of a state park motor vehicle fee does not constitute valuable consideration under the statute and does not deprive state parks of the immunity otherwise granted under the statute. Id. at 475.
*402 We find that the court correctly concluded that the $2 vehicle fee did not constitute valuable consideration within the meaning of the statute. Schiller, supra. Accordingly, because plaintiffs' complaint sounds in simple negligence and because plaintiffs' complaint is devoid of any allegations of gross negligence or wilful and wanton misconduct on the part of HCMA, we find that the court correctly granted summary disposition to HCMA based on the recreational use statute.
Affirmed.
ADDENDUM
In our opinion we erroneously state that the toboggan run was not a man-made structure. The fact that the toboggan run was man-made does not change our conclusion that the court correctly granted summary disposition. In Pichette v Manistique Public Schools, 403 Mich. 268, 285; 269 NW2d 143 (1978), our Supreme Court concluded that the child's slide came within the public building exception to governmental immunity because the injured child "would not have encountered the dangerous condition which led to his injuries but for the existence of defendant's school." Here, the same "but for" nexus between the public building on defendant's property and the toboggan run does not exist.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920578/ | 180 Mich. App. 347 (1989)
447 N.W.2d 157
PEOPLE
v.
MALONE
Docket No. 102213.
Michigan Court of Appeals.
Decided July 21, 1989.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Paul Maloney, Prosecuting Attorney, and David P. LaForge, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Charles J. Booker and Chari Grove), for defendant on appeal.
Before: HOOD, P.J., and WAHLS and NEFF, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm while committing a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to eight to fifty years of imprisonment on the armed robbery conviction. He also received the mandatory two-year *350 sentence for his felony-firearm conviction. Defendant appeals as of right and we reverse.
I
Defendant first contends that he was denied a fair trial because the trial court, by its comments to the jury, created an atmosphere conducive to hasty deliberations.
In this case, the jury began its deliberations on the fourth day of trial at approximately 9:03 A.M. Deliberations continued throughout the day with a brief break for lunch. At approximately 5:50 P.M., outside the presence of the jury, the trial court explained to counsel its intention to determine from the jury whether deliberations should continue into the evening following a break for dinner. The trial court then called the jury into the courtroom and stated in pertinent part:
My experience has been and I might be right, I can easily be wrong, that in most cases there's either a verdict shortly after dinner or it's hopeless, and so if shortly after dinner you have a verdict, fine. If not, I will be calling you in after a rather brief period of time and see if you people think that it might be a few more minutes or forever and if it's forever, we will just have to discharge you and send you home. If it's impossible to reach a verdict, that's unfortunate, we don't like to have that, but sometimes that's the way it is.
At 8:18 P.M., after the jury had returned from dinner, the trial court inquired of the foreman whether the jury was close to reaching a verdict. After the foreman indicated that the jury was close to a verdict, the trial court stated in pertinent part: "Close to a verdict. Okay. You have *351 already put in a fair-sided day here and we don't want anybody beaten into submission."
In response to questioning by the trial court, the foreman indicated that additional deliberations of a half an hour would be likely to make a difference. The following exchange then occurred:
The Court: Do you understand we are not trying to beat you into it or pound on anybody until they are succumbed [sic], and if at some point in time you can't reach a verdict, as much as we'd like you to, if you can't, you can't.
Okay. Do you think another hour will help or more likely than not to get a verdict?
Foreman: Yes. Would it be in order, at the end of the hour, to send a slip to you from us if we feel we are not ready to have a consensus to give us another half an hour?
Mr. Banyon: Your Honor, I think both counsel are in agreement that the jury should be able to deliberate as long as they want.
The Court: I just want to make it clear that we are not locking them in there forever and a day, we are not going to keep up until Monday morning in that room. They [sic] only word that worries me a little more is, "consensus."
Do you understand when you are all through, in order to receive any verdict in any criminal cause, it has to be unanimous. In civil cases you can have ten out of twelve but that doesn't apply in criminal. It has to be unanimous. If it can't be unanimous, it isn't a verdict.
On that basis, why don't we let you go in there and if you come to a verdict, hit the buzzer and if at any time it becomes totally clear that a verdict is impossible, hit the buzzer, and if at any time you are simply too exhausted to go on and you are in between those two, hit the buzzer and we will last as long as you last, but you have three options, I guess: A a [sic] verdict, deadlocked, or you are just too tired to keep going.
With that, we will let you resume.
*352 After the jury returned to the jury room to deliberate, the trial judge stated on the record that the reason he had emphasized to the jurors that he was not going to require that they continue deliberations that night was because he did not want a claim that he had coerced them into reaching a verdict.
At 9:43 P.M., the jury returned a verdict of guilty as charged.
On appeal, defendant contends that the trial court's comments led to a coerced verdict. Defendant urges that the thrust of the trial court's remarks was that, if no verdict was reached that evening, the trial would be over. Claims of coerced verdicts are reviewed on a case-by-case basis, and all of the facts and circumstances, as well as the particular language used by the trial judge, must be considered. Zeitz v Mara, 290 Mich. 161, 166; 287 N.W. 418 (1939); People v Pizzino, 313 Mich. 97, 103; 20 NW2d 824 (1945).
In People v Strzempkowski, 211 Mich. 266; 178 N.W. 771 (1920), our Supreme Court held that the defendant was denied a fair trial because the trial court's comments, in effect, informed the jurors that, if they did not agree upon a verdict, they would be discharged from further service during the term. The Court took judicial notice that such a procedure would cause humiliation to the jury panel. The Court in Strzempkowski, supra, p 268, stated:
The rule as stated in 38 Cyc. p. 1762, is, we think, the only safe one to follow:
"The court may impress upon the jury the propriety and importance of coming to an agreement, and harmonizing their views, state the reasons therefor and tell them it is their duty to try to agree; but should not give instructions having a tendency to coerce the jury into agreeing on a *353 verdict. While the court may reasonably urge an agreement, its discretion does not extend to the limit of coercion."
While we do not believe that the trial court was attempting to coerce a verdict, we are constrained to agree with defendant that the effect of the trial court's comments to the jury may have been a coerced verdict. In light of the fact that the jury was never told that it could resume deliberations on the following Monday, we believe that the trial court's comments, taken as a whole, at best were confusing and may have improperly communicated by implication that, if a verdict could not be reached that evening, the jury would be considered deadlocked and would be permanently discharged.
II
Defendant next contends that the prosecutor's use of defendant's notice of alibi to impeach his trial testimony denied defendant a fair trial.
Before trial, defendant's former attorney filed a notice of alibi defense which stated that, at the time of the alleged offense, defendant was at the home of his sister, Rosemary Malone. Defendant's notice of alibi defense listed, among others, Robert Minor and Craig Smith as alibi witnesses.
During cross-examination, defendant stated that he had not seen Craig Smith on the date of the offense. Defendant also testified that he did not even know Robert Minor. Over defendant's objection, the trial court permitted the prosecutor to impeach defendant's credibility by use of the notice of alibi, which listed Craig Smith and Robert Minor as alibi witnesses.
The trial court relied on People v Von Everett, 156 Mich. App. 615; 402 NW2d 773 (1986), in ruling *354 that the prosecutor could use the notice of alibi to impeach defendant's credibility. In Von Everett, supra, p 624, this Court held that a notice of alibi which alleged that the defendant was in Battle Creek at the time of the charged offense was a party-opponent admission under MRE 801(d)(2)(C) and that it could be used to impeach the defendant's testimony that he was out of the state at the time of the crime. The Von Everett panel focused on the fact that the defendant's testimony directly contradicted the allegations set forth in the notice of alibi.
Defendant attempts to distinguish Von Everett on the ground that, in the instant case, defendant's alibi testimony that he was at his sister's home at the time of the crime was consistent with the notice of alibi.
The admission or exclusion of evidence is a matter for the sound discretion of the trial court. People v Harden, 166 Mich. App. 106, 111; 420 NW2d 136 (1988). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling made. People v Hamm, 100 Mich. App. 429, 438; 298 NW2d 896 (1980), lv den 411 Mich. 888 (1981).
The evidence allowed for impeachment purposes was relevant to the credibility of defendant and his alibi defense. The trial court in this case, therefore, did not abuse its discretion in allowing defendant to be impeached with his notice of alibi, even though the allegations therein were not wholly inconsistent with his testimony.
III
Defendant next contends that the trial court *355 erred in admitting into evidence( over defendant's objection, items found in the search of a moving van. Before trial, defendant filed a motion challenging his arrest and seeking to suppress incriminating evidence seized during the search of the moving van. Following a hearing, the trial court denied defendant's motion, finding that the search was executed pursuant to the driver's valid consent.
A trial court's decision following a suppression hearing will not be reversed by this Court unless it is clearly erroneous. People v Bryant, 135 Mich. App. 206, 210; 353 NW2d 480 (1984), lv den 419 Mich. 950 (1984). A finding is clearly erroneous when the reviewing court is firmly convinced that a mistake has been made. People v Smith, 162 Mich. App. 534, 539; 413 NW2d 42 (1987).
A search conducted without a warrant is unreasonable per se unless there exists both probable cause and an exigent circumstance establishing an exception to the warrant requirement. People v Reed, 393 Mich. 342, 362; 224 NW2d 867 (1975), cert den 422 U.S. 1044, 1048; 95 S. Ct. 2660, 2665; 45 L. Ed. 2d 696, 701 (1975); People v Anthony, 120 Mich. App. 207, 210; 327 NW2d 441 (1982), lv den 417 Mich. 897 (1983), cert den 462 U.S. 1111; 103 S. Ct. 2463; 77 L. Ed. 2d 1340 (1983). At a suppression hearing, the prosecution has the burden of showing that the search and seizure were justified by a recognized exception to the warrant requirement. People v Wade, 157 Mich. App. 481, 485; 403 NW2d 578 (1987).
The prosecution in this case relied on the consent exception to the warrant requirement. The consent exception allows search and seizure when consent is unequivocal and specific, freely and intelligently given. People v Kaigler, 368 Mich. 281, 294; 118 NW2d 406 (1962). The validity of a *356 consent depends on the totality of the circumstances, and the prosecutor has the burden of proving that the person consenting was authorized to do so and did so freely and voluntarily. People v Brown, 127 Mich. App. 436, 440-441; 339 NW2d 38 (1983), lv den 419 Mich. 896 (1984); People v Wagner, 104 Mich. App. 169, 176; 304 NW2d 517 (1981).
At the suppression hearing, the prosecution presented undisputed testimony that the driver of the moving van, Alan Williams, twice gave investigating police officers permission to look in the back of the van which was stopped for a traffic violation. The testimony also revealed that the driver himself opened the back door of the van for the officers.
Defendant contends that Williams' consent was coerced. We disagree. Although Williams was initially taken to the back seat of the patrol car for approximately one minute to a minute and a half, no evidence was presented suggesting that Williams was handcuffed or placed under custodial arrest. Williams' consent was not granted at gunpoint; the officers did not pull their guns out until after the van door was raised by Williams. The consent was valid even though Williams was not apprised of his right to refuse consent. See Schneckloth v Bustamonte, 412 U.S. 218, 231; 93 S. Ct. 2041; 36 L. Ed. 2d 854 (1973). The trial court specifically found that Williams was not forced to agree to the search, but, rather, that he could revoke his consent at any time.
Defendant also contends that the search exceeded the scope of Williams' consent. We disagree. The context of Williams' consent to search does not convey an intention to limit the search to one solely for the purpose of identifying the persons found in the back of the van.
We believe, therefore, that the trial court did *357 not err in denying defendant's motion to suppress items seized from the moving van. The items were seized pursuant to a valid consent by the driver of the van.
IV
Defendant next contends that he was denied his right to present a defense when the trial court excluded evidence of an out-of-court statement made by Ruby Marie Davis, the victim.
During cross-examination by defense counsel, Davis testified that she could not remember the description of defendant that she had given to the police. Later, during defense counsel's cross-examination of Benton Harbor Police Officer Henry Pace, the trial court sustained on the basis of hearsay the prosecutor's objection to defense counsel's inquiry as to the description given by Davis which was contained in the officer's police report. The trial court reasoned that, because Davis testified that she could not remember the substance of her initial description of the assailant to the police, and because Davis' testimony lacked a positive statement of identification, the hearsay exception of MRE 801(d)(1) was inapplicable. The trial court further reasoned that, under MRE 613, Davis could only be impeached as to her description recorded in the initial police report while she was on the stand.
We agree that MRE 801(d)(1) is inapplicable. The testimony defense counsel sought to elicit on cross-examination of the police officer did not have anything to do with a "statement of identification of a person made after perceiving him." Davis was not identifying anyone in her discussion with the police officer; she was trying to describe the man who had robbed her at gunpoint.
*358 Defense counsel was attempting to impeach Davis with her prior inconsistent statement. On the night of the robbery, Davis had talked to the police officer, Pace, and had given him a description of the one robber whose face and clothing she had seen. Pace included in his written police report the description given by Davis.
On cross-examination of Davis, defense counsel made much of the fact that the description given to Pace on the night of the robbery did not match the characteristics of the defendant. Davis persistently testified that she did not remember what description she gave to Pace and that she was still so frightened by the experience of the robbery when she talked to Pace that night that she might have said almost anything.
In attempting to impeach the credibility of Davis' identification of defendant at trial, defense counsel cross-examined Pace about the description recorded in the report authored by Pace after talking to Davis. The prosecutor's objection to this line of questioning was sustained by the trial judge.
This attempt to impeach Davis through the testimony of Pace was proper under MRE 613(b), which provides:
Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).
Davis had given a prior inconsistent statement and was afforded the opportunity to explain or *359 deny it. She did neither, saying only that she could not remember the description she had given Pace on the night of the robbery. The prosecution was given the opportunity to interrogate Davis after cross-examination. Accordingly, all of the requirements of MRE 613(b) were met for impeachment through extrinsic evidence of the prior inconsistent statement of the witness Davis. The trial court erred in ruling that Pace could not be cross-examined regarding the description given by Davis.
Where a witness denies recollection of a prior inconsistent statement, proof of that statement by extrinsic evidence can be made. People v Johnson, 100 Mich. App. 594, 598; 300 NW2d 332 (1980). While such impeachment may be foreclosed if the witness claims a total lack of memory about the event, a witness' failure to recall statements regarding the incident does not prohibit extrinsic proof of a prior inconsistent statement. People v Alphus Harris, 56 Mich. App. 517, 524-525; 224 NW2d 680 (1974).
In this case, Davis testified that she was able to remember the appearance of her assailant and the fact that she gave a description of the person to police officers immediately after the incident. We therefore conclude that the trial court abused its discretion in precluding defendant from impeaching Davis' credibility during cross-examination of Officer Pace with extrinsic evidence regarding Davis' prior inconsistent statements to Officer Pace.
V
Defendant next contends that he was denied a fair trial when the trial court permitted the prosecutor to introduce fingerprint evidence connecting another person with the robbery. We agree.
*360 Defense counsel objected when the prosecutor mentioned during his opening statement that latent fingerprints on items left at the scene of the robbery were positively identified as belonging to Anthony Sandlin, one of the people found with defendant at the time of his arrest. The trial court allowed the argument, but gave a cautionary instruction to the jury to the effect that another's guilt "does not necessarily affect the guilt or innocence" of defendant.
On the second day of trial, defendant brought a motion in limine, on the basis of relevancy, to bar any testimony relating to Sandlin's fingerprints. The trial court denied defendant's motion.
Detective-Sergeant Gregory Stevens, a fingerprint expert, was permitted to testify as to the positive identification of Sandlin's fingerprints. Defendant's motion for a mistrial on the basis of the admission of Sandlin's fingerprint evidence was overruled by the trial court. We believe that the trial court abused its discretion in admitting the fingerprint evidence.
Generally, all relevant evidence is admissible, and irrelevant evidence is inadmissible. MRE 402; People v Duff, 165 Mich. App. 530, 540; 419 NW2d 600 (1987), lv den 430 Mich. 900 (1988). Evidence is relevant if it has any tendency to make the existence of a fact in issue more probable or less probable than it would be without the evidence. MRE 401; People v Slovinski, 166 Mich. App. 158, 177; 420 NW2d 145 (1988).
The fingerprint evidence admitted in this case had no tendency to make the existence of a fact in issue more probable or less probable than without the evidence. Therefore, the evidence was irrelevant and inadmissible. The trial court abused its discretion in admitting such evidence.
*361 VI
Defendant next contends that he was denied a fair trial when the prosecutor attempted to bolster the victim's testimony by asking her if she would say that she was sure of her identification when she was unsure and possibly "send an innocent man to jail."
The prosecutor's question was inappropriate because it improperly bolstered the credibility of a prosecution witness. See People v Buckey, 424 Mich. 1, 17; 378 NW2d 432 (1985). We therefore caution the prosecutor to refrain from such questioning in the event defendant is retried.
VII
Defendant's final contention is that his conviction for armed robbery must be reversed because the trial court's instructions permitted the jury to find that defendant was armed merely because the victim believed defendant had a gun. Defendant specifically contends that CJI 18:1:01(4)(C) improperly allows a jury to convict where the prosecution shows only the victim's reasonable belief that a dangerous weapon existed.
Although defendant objected to the merger of CJI 3:1:16 and 18:1:01 at trial, defendant did not raise the specific objection now raised on appeal. Accordingly, defendant has failed to preserve this issue for appellate review, and relief will be granted only to prevent manifest injustice. People v Kelly, 423 Mich. 261, 271-272; 378 NW2d 365 (1985).
In People v Barkley, 151 Mich. App. 234; 390 NW2d 705 (1986), lv den 426 Mich. 369 (1986), this Court considered the objection defendant now raises to CJI 18:1:01(4)(C) and held that the instruction *362 improperly states the law. However, this Court in Barkley reasoned that, because the victim testified to actually seeing a pistol, the giving of the instruction did not result in manifest injustice. Barkley, supra, pp 239-240.
Similarly, in the instant case, Davis testified that defendant used a "silverish" handgun during the robbery. Danny Mosby also testified that he saw a small-caliber gun being used by the robbers. Joseph Jones described the handgun as "rusty." Jones and Mosby both testified that one of the guns confiscated from the moving van appeared similar to the gun used that night.
Because there was testimony as to the actual presence of a dangerous weapon, there is little danger that the trier of fact improperly based its finding on the armed element solely upon the victim's reasonable apprehensions. We believe that the giving of the instruction did not result in manifest injustice.
In the event this case is retried, the parties and the trial judge should take note of the Barkley case when jury instructions are prepared and read.
VIII
We believe that the cumulative effect of the various errors in this case were so prejudicial as to deny defendant a fair trial. Reversal of defendant's conviction is therefore required. This case is remanded to the trial court so that defendant may be afforded a new trial.
Reversed and remanded. We do not retain jurisdiction. | 01-03-2023 | 10-30-2013 |
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