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https://www.courtlistener.com/api/rest/v3/opinions/1623510/ | 569 So. 2d 473 (1990)
Jesse Brian EDWARDS, Jr., Appellant,
v.
William R. JOHNSON, et al., Appellees.
No. 90-325.
District Court of Appeal of Florida, First District.
September 21, 1990.
Rehearing Denied December 3, 1990.
Roy V. Andrews of Lindsay, Andrews & Leonard, P.A., Milton, for appellant.
Michael A. Dessommes of King and Dessommes, P.A., Pensacola, for appellee Betty Edwards.
JOANOS, Judge.
Jesse Brian Edwards, Jr. has appealed an order of the trial court denying his motion to dismiss for lack of personal jurisdiction a permissive counterclaim filed by appellee Betty Edwards. We reverse and remand for dismissal of the counterclaim.
*474 Brian and Betty Edwards were divorced in June 1987 by a final decree entered in Louisiana. Betty was at the time residing on real property located in Santa Rosa County, Florida, and owned by Brian and his brother; also living on the property was one William R. Johnson. In May 1989, Brian filed suit in Santa Rosa county court seeking to evict Betty and Johnson from the property. Betty answered Brian's complaint, and also filed a separate suit against him in circuit court seeking alimony and equitable distribution of marital property relating to the 1987 Louisiana divorce decree.
In July 1989, the trial court dismissed Betty's suit on the ground that she had not demonstrated personal jurisdiction over Brian under Section 48.193, Florida Statutes (1989). Specifically, the trial court found that Brian was not a Florida resident, nor did he have the required substantial contacts with the state delineated in the statute. Betty appealed the dismissal to this court, but voluntarily dismissed her appeal prior to a ruling on the merits.
Betty thereafter sought to amend her answer to Brian's eviction complaint to add her claim for alimony and equitable distribution as a permissive counterclaim. Brian objected, arguing that the absence of personal jurisdiction which resulted in the dismissal of Betty's suit precluded the filing of the same cause of action as a permissive counterclaim. The trial court allowed the amendment, and Brian filed the instant motion to dismiss on the same ground. The trial court denied the motion, stating that Rule 1.170(b), Florida Rules of Civil Procedure, allows permissive counterclaims whether or not they arise from the subject matter of the opposing claim.
The trial court herein has effectively held that, when a nonresident files an action in a Florida court, that court automatically acquires personal jurisdiction over him as to whatever different matter might be asserted in a permissive counterclaim. However, Rule 1.170(b), Florida Rules of Civil Procedure, does not address personal jurisdiction, but simply permits the filing of counterclaims which are unrelated to the subject matter of the original claim.
The general rule with regard to personal jurisdiction is that a plaintiff who initiates an action in a Florida court subjects himself to the jurisdiction of that court, and to such lawful orders which are thereafter entered, only with respect to the subject matter of the action. Burden v. Dickman, 547 So. 2d 170, 172 (Fla. 3d DCA 1989).
In Frazier v. Frazier, 442 So. 2d 1116 (Fla. 4th DCA 1983), a nonresident plaintiff sued in Florida to enforce certain foreign money judgments against her exhusband. The husband counterclaimed, seeking to modify the parties' foreign dissolution decree, and wife's motion to dismiss for lack of personal jurisdiction was denied. The appellate court reversed, stating that "when the appellant filed suit in Florida to enforce the foreign money judgments, she did not subject herself to the jurisdiction of the Florida courts for the purpose of litigating issues of future alimony and child support. If the appellee wishes to terminate his ... obligations, he must do so where he can acquire personal jurisdiction in an appropriate forum." Frazier at 1117 (emphasis supplied).
Here, Brian filed suit in Florida to evict Betty and Johnson from certain real property located in the state. Under the foregoing authorities, he did not thereby automatically waive any objections to personal jurisdiction he might have as to matters raised in a permissive counterclaim. While he could have voluntarily submitted to the jurisdiction of the court by responding to the merits of Betty's counterclaim, he clearly did not do so. It therefore became Betty's burden to show that personal jurisdiction could be obtained under Section 48.193, Florida Statutes (1989), an issue on which the trial court had already ruled against her in an unappealed order.
Based on the foregoing, we find that the trial court erred in denying the motion to dismiss the counterclaim. The order appealed is therefore reversed, and the case remanded with directions to dismiss the *475 counterclaim for lack of personal jurisdiction.
Reversed and remanded with directions.
SHIVERS, C.J., and ZEHMER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623370/ | 15 So. 3d 28 (2009)
Lucas GOODWIN, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-2422.
District Court of Appeal of Florida, Second District.
May 13, 2009.
*29 Lucas Goodwin, pro se.
WALLACE, Judge.
Lucas Goodwin appeals the order that summarily denied his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse the postconviction court's order as to the denial of claims two and seven of Mr. Goodwin's motion. We affirm without comment the postconviction court's denial of all other claims for relief.
On March 16, 2005, Mr. Goodwin was found guilty of burglary of a dwelling and grand theft. He was sentenced as a habitual felony offender to concurrent terms of twenty years in prison for the burglary and ten years for the grand theft.
In the first part of claim two, Mr. Goodwin alleged that his trial counsel rendered ineffective assistance at a hearing on a motion to suppress a pretrial confession and at the trial on the charges. In the portion of claim two addressing the motion to suppress, Mr. Goodwin alleged that his trial counsel was ineffective for failing to research the effects of heroin withdrawal on an addict. This allegation is conclusory, and we need not address it further.
As part of this portion of his second claim, Mr. Goodwin also asserted that his trial counsel failed to present the testimony of medical experts who had been sub-poenaed and were waiting to testify. The postconviction court denied this part of claim two as facially insufficient, citing Leftwich v. State, 954 So. 2d 714, 714 (Fla. 1st DCA 2007) (holding that in order to *30 state a claim for ineffective assistance of counsel based on the failure to call a witness to testify, the claimant must allege (1) the identity of the potential witness, (2) that the witness was available to testify at trial, (3) the substance of the witness's testimony, and (4) an explanation of how the omission of the testimony prejudiced the case).
Mr. Goodwin alleged that the potential witnesses were medical experts from the jail where he had been incarcerated. Although Mr. Goodwin asserted that the medical experts were waiting at court to testify at the hearing on the motion to suppress, he failed to explain the substance of their testimony or how its absence prejudiced his case. Thus the postconviction court correctly found that this portion of claim number two was facially insufficient. However, the postconviction court erred in denying the claim instead of dismissing it and allowing Mr. Goodwin a reasonable amount of time within which to amend his claim. See Spera v. State, 971 So. 2d 754, 761 (Fla. 2007).
In the second part of claim two, Mr. Goodwin alleged that his trial counsel was ineffective at trial for failing to interpose an appropriate objection to the introduction into evidence of firearms that the State claimed had been stolen during the burglary for which Mr. Goodwin was found guilty. According to Mr. Goodwin, the owner of the residence that had been burglarized never identified the firearms as his property. Mr. Goodwin also claimed that the serial numbers on the firearms introduced into evidence were not compared to the serial numbers on the weapons that the State alleged were stolen from the residence. Mr. Goodwin concluded that there was a reasonable likelihood that he would have been acquitted if his trial counsel had made the appropriate objections to the State's evidence.
The postconviction court offered three reasons for denying the second part of Mr. Goodwin's second claim. First, Mr. Goodwin was not prejudiced by trial counsel's alleged omissions "because the judge determined that regardless of whether there had been a grand theft or petit theft (relating to the value of items stolen from [the victim]), the court would have sentenced [Mr. Goodwin] to the same sentence." Second, "the jury determined that [Mr. Goodwin] did not actually possess a firearm during the burglary." Third, Mr. Goodwin's trial counsel actually did object to the introduction of the firearms into evidence.
The first two reasons offered by the postconviction court do not address the substance of Mr. Goodwin's claim. Mr. Goodwin's contentions do not relate to the degree of the crime or the sentences imposed after the verdict. Instead, Mr. Goodwin claimed that but for trial counsel's poor performance, he would have been acquitted. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The fact that the trial court would have imposed the same sentence does not indicate that the jury would not have had a reasonable doubt respecting guilt.
Likewise, the postconviction court's reliance on the jury's finding that Mr. Goodwin did not actually possess a firearm is inapposite. Mr. Goodwin's motion alleged that his conviction stems from a burglary where he acted as a lookout and his accomplice stole some jewelry and firearms. Although the jury found that Mr. Goodwin *31 did not actually possess a firearm during the commission of the crime, this finding does not necessarily mean that the jury concluded that the accomplice did not steal the firearms. Thus the second reason offered by the postconviction court does not show that the jury would not have had a reasonable doubt respecting guilt.
On the other hand, the third reasonthat trial counsel had in fact made the appropriate objectionsproperly addressed the substance of the claim by finding that it was refuted by the record. Indeed, the postconviction court cited to portions of the trial transcript in support of its finding. Unfortunately, the postconviction court failed to attach to its order the portions of the trial transcript on which it relied. Therefore, we must reverse the postconviction court's summary denial of the second part of Mr. Goodwin's second claim. On remand, if the postconviction court once again denies this claim without an evidentiary hearing, it must attach the pertinent portions of the trial transcript to its order. See Fla. R.Crim. P. 3.850(d).
In claim seven of his motion, Mr. Goodwin claimed that his trial counsel failed to argue to the jury that Mr. Goodwin did not enter the home that was burglarized.[1] He claimed further that trial counsel failed to argue to the jury that Mr. Goodwin's fingerprints were not found on the weapons, that the stolen property was not found in his possession, and that he only acted as a lookout. Mr. Goodwin alleged that but for counsel's asserted omissions, there was a reasonable likelihood that he would have been acquitted.
The postconviction court erroneously concluded that this claim should have been raised on direct appeal and was thus not cognizable in a rule 3.850 motion. Because claim seven is a claim of ineffective assistance of counsel, the postconviction court should have evaluated the claim on its merits. See Meeks v. State, 382 So. 2d 673, 675 (Fla.1980) (noting that a claim of ineffective assistance of counsel is appropriately raised in a rule 3.850 motion). Therefore, we reverse the summary denial of claim seven and remand for the postconviction court to reconsider the claim.
In summary, we reverse the postconviction court's order to the extent that it summarily denied claims two and seven of Mr. Goodwin's motion, and we remand for further proceedings consistent with this opinion. In all other respects, we affirm the postconviction court's order.
Affirmed in part, reversed in part, and remanded.
WHATLEY and KELLY, JJ., Concur.
NOTES
[1] Mr. Goodwin erroneously labeled this claim as "Ground Six" in his motion. As the postconviction court correctly noted in its order, this claim is the seventh claim asserted in the motion, not the sixth. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623375/ | 15 So. 3d 664 (2009)
Tony Gerald GOLDEN and His Wife, Tina M. Golden, Appellants,
v.
Davey L. WOODWARD, Jr., as Personal Representative of the Estate of Davey L. Woodward, deceased, Appellee.
No. 1D08-3324.
District Court of Appeal of Florida, First District.
June 24, 2009.
*666 Brandon J. Young, Bonifay, for Appellants.
Russell S. Roberts, of Roberts, Roberts & Roberts, Marianna, for Appellee.
BROWNING, J.
Mr. and Mrs. Golden appeal a final judgment finding that the plaintiff, Davey L. Woodward, Jr., in his capacity as personal representative of the Estate of Davey L. Woodward, Sr., is entitled to an "equitable lien" or "vendor's lien" in the amount of $89,000.00 against Appellants on certain real property that is the subject of an earlier agreement between Appellants and Mr. Woodward, Sr. Finding neither a misapplication of the law nor an abuse of discretion in any of the challenged rulings, we affirm the final judgment. See Edelson v. Quinn, 123 Fla. 670, 167 So. 535 (1936) (holding that where vendees, a husband and wife, received the deed to realty and took and retained possession without paying the full purchase price and without giving security for the payment thereof, a court of equity could enforce a vendor's lien upon that part of the property the court could reach).
Mr. Woodward, Sr., and Appellants signed a January 28, 2003, written "Agreement to Sell Personal Real Estate Property" (2003 Agreement) by which Mr. Woodward sold his property to Appellants, who were his next-door neighbors in Graceville, Florida. Under the express terms of the 2003 Agreement, Mr. Woodward contracted to sell his home and approximately 7.8 acres of land to Appellants for a purchase price of $109,000.00, including all interest and fees. The 2003 Agreement provided that Appellants would pay Mr. Woodward $550.00 a month for seven years (totaling $46,200.00), beginning on March 1, 2003, and ending on March 1, 2010. After the expiration of the seven-year period, Appellants would tender a balloon payment $62,800.00, the remaining balance of the purchase priceto Mr. Woodward.
Although the 2003 Agreement stated there would be a "transfer of deeds" on or before February 15, 2003, no deeds were ever transferred prior to, or within a year of, that date. Significantly, the 2003 Agreement provided that in the event of Mr. Woodward's death, Appellants would continue making payments to his estate. Also, the 2003 Agreement barred Appellants from placing any liens on the property until the full $109,000.00 purchase price *667 was paid to the seller. After the execution of the 2003 Agreement, Mr. Woodward vacated the property; Appellants took possession and commenced making monthly payments in March 2003. However, after entering the 2003 Agreement, Appellants sometimes were delinquent in their monthly payments to Mr. Woodward.
At Mr. Woodward's prompting, the parties executed a written Warranty Deed to the subject property on April 2, 2004, but Appellants did not record it until mid-June 2005, ultimately at the behest of Mr. Woodward, who no longer wanted to receive the tax notices. After Mr. Woodward delivered the Warranty Deed to Appellants, they continued to make payments to him. In mid-July 2005, or about one month after recording the Warranty Deed, Appellants executed a first mortgage of $55,000.00 on the subject property. Mr. Woodward died in June 2006. In mid-September 2006, Appellants placed a $155,000.00 mortgage on the property, which was used also to satisfy the initial mortgage.
After the execution of the 2003 Agreement, Mr. Woodward had become aware that Appellants were making improvements on the property. Upon further investigation, he discovered that Appellants had executed a first mortgage on the property, despite the express provision in the 2003 Agreement that the buyers would not allow any liens on the property until the full purchase price was paid to the seller. In May 2006, Mr. Woodward filed a four-count complaint against Appellants. Upon Mr. Woodward's death a month later, Mr. Woodward, Jr., in his capacity as the personal representative of his father's estate, was substituted as the plaintiff, and Appellants stopped making payments on the property.
The complaint alleged that Appellants had taken advantage of Mr. Woodward, Sr., from their position of trust, and that the estate was still owed payments under the express terms of the 2003 Agreement. Count One of the complaint alleged an action in equity to impose a resulting trust or a constructive trust on the property because Mr. Woodward, Sr., was elderly and did not understand the ramifications of his conveyance of the property without a mortgage.
Count Two, which is the only relevant claim to the issues raised in this appeal, alleged an action in equity to impose an "equitable lien" on the property based on the circumstances that Appellants held positions of trust and confidence with Mr. Woodward, who was elderly and suffering from a serious medical condition. This count alleged that Appellants currently were in default of their payments to be made to Mr. Woodward pursuant to the 2003 Agreement. The basis of the claim for an equitable lien on the property was that Mr. Woodward had deeded the property to Appellants in the good-faith belief that Appellants would continue to make monthly payments to him, and then to his estate after his death. This count alleged that the transfer of the property from Mr. Woodward to Appellants without the benefit of a mortgage, plus the cessation of payments by Appellants to Mr. Woodward, would result in "an inequitable windfall" for Appellants by the substantial value of their property without adequate remuneration to Mr. Woodward. Count Two alleged that Appellants are estopped by their actions and conduct, which constitute a "fraud," and by their acceptance of the benefits of Mr. Woodward's execution of a deed to the property to them and their failure to make full payments pursuant to the 2003 Agreement. This count alleged that Mr. Woodward had no adequate remedy at law.
*668 Count Three alleged an action for the equitable reformation of the Warranty Deed. The final count alleged a claim for rescission or cancellation of the Warranty Deed.
In defending against Appellee's lawsuit, Appellants asserted that in April 2004, Mr. Woodward had contacted them and expressed a desire to make a significant change in the terms of the 2003 Agreement. Specifically, Appellants alleged that Mr. Woodward told them that he would deed the subject property to them if they would continue to pay him $550.00 a month until his death, upon which event their payment obligations would cease altogether. According to Appellants, the basis for this change was that Mr. Woodward had fallen out with his children and wanted to avoid any potential negative interactions between Appellants and Mr. Woodward's children after his death. Given an objection based on the statute of frauds, the trial court allowed a proffer but ultimately excluded evidence suggesting that Appellants and Mr. Woodward, Sr., had an oral agreement that significantly altered the terms and Appellants' responsibilities under their written 2003 Agreement.
In its final judgment, the trial court found no evidence either of Mr. Woodward, Sr.'s, incapacitation or of Appellants' undue influence or fraud. However, the court concluded that Appellants had breached the 2003 Agreement with Mr. Woodward, Sr., when they mortgaged the subject property and ceased making payments on the property before satisfying the full purchase price. The court determined that the equities lay with the estate, which is entitled to an equitable lien or vendor's lien on the property for $89,000.00, the sum due under the 2003 Agreement. The court entered a judgment in favor of Mr. Woodward's estate as to Count Two, and judgment in favor of Appellants on the other claims. This appeal ensued.
Appellants assert that the trial court erred, first, pursuant to Conidaris v. Cresswood Serv., Inc., 779 So. 2d 518, 519 (Fla. 2d DCA 2000), by granting relief on a claim for a "vendor's lien" because no such claim was either pled in the complaint or tried by the parties' consent; second, by granting an equitable lien in the absence of a finding of Appellants' fraud or misconduct in procuring the April 2004 Warranty Deed from Mr. Woodward, Sr.; and, third, by finding that recovery based on an "equitable lien" theory is not barred by the doctrine of merger.
As to the first issue, Count Two alleged that Appellants were estopped by their actions and conduct constituting "fraud," and that Mr. Woodward, Sr., who did not understand the ramifications of his actions, was misled by Appellants into executing the April 2004 Warranty Deed. Although the general relief requested in Count Two is an "equitable lien," the trial court granted a "vendor's lien" in favor of Mr. Woodward's estate. Appellants argue that if they had received notice that Mr. Woodward, Sr., was asserting the right to a vendor's lien, they could have presented evidence and defenses (e.g., laches) relating to that claim.
This argument is without merit. "Every complaint shall be considered to demand general relief." Fla. R. Civ. P. 1.110(b). Thus, the court must "look to the facts alleged, the issues and proof, and not the form of the prayer for relief to determine the nature of the relief which should be granted." Circle Finance Co. v. Peacock, 399 So. 2d 81, 84 (Fla. 1st DCA 1981). "[G]enerally, courts of equity have the fullest liberty in molding decrees to the necessity of the occasion, regardless of the prayer." Singer v. Tobin, 201 So. 2d 799, 800-01 (Fla. 3d DCA 1967).
*669 An "equitable lien" is "[a] right, enforceable only in equity, to have a demand satisfied from a particular fund or specific property, without having possession of the fund or property." Black's Law Dictionary 942 (8th ed. 2004); see Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 128-29 (1925); Jennings v. Beeman Inv. Co., 177 So. 2d 66, 68 (Fla. 2d DCA 1965). "Equitable liens become necessary on account of the absence of similar remedies at law." Jones, 106 So. at 128-29; see Tucker v. Prevatt Builders, Inc., 116 So. 2d 437, 439 (Fla. 1st DCA 1959). A "vendor's lien," also known as a "grantor's lien," is "a creature of equity, a lien implied to belong to a vendor for the unpaid purchase price of land, where he has not taken any other lien or security beyond the personal obligation of the purchaser." Special Tax Sch. Dist. No. 1 of Orange County v. Hillman, 131 Fla. 725, 179 So. 805, 809 (1938); see Bowen v. Grace, 64 Fla. 28, 59 So. 563, 564 (1912); McKinnon v. Johnson, 54 Fla. 538, 45 So. 451, 452 (1907); Rewis v. Williamson, 51 Fla. 529, 41 So. 449, 450-51 (1906). "The lien does not result from agreement, but is given by implication of law, as an incident to the debt, and is enforceable in equity where the vendor is entitled to it." Hillman, 179 So. at 809. Florida courts have recognized that "a vendor's lien is merely a particular form of equitable lien which has long been recognized." Id. at 810; see also Lake Placid Holding Co. v. Paparone, 508 So. 2d 372, 377 (Fla. 2d DCA 1987); Oliver v. Mercaldi, 103 So. 2d 665, 668 (Fla. 2d DCA 1958).
Appellants concede that a vendor's lien often is considered a type of equitable lien, and that Florida courts have used the terms "vendor's," "equitable," and "grantor's" interchangeably to describe identical or very similar types of liens on real property. See Paparone, 508 So.2d at 377. Given the Florida courts' recognition that a "vendor's lien" is one type of "equitable lien," id., we conclude that, in the context of his specific pleadings in Count Two of the complaint, Mr. Woodward's request for an "equitable lien" upon the property reasonably should have put Appellants on notice that a "vendor's lien" was being requested. See Moorhead v. Moorhead, 159 Fla. 470, 31 So. 2d 867, 868 (1947) (stating that "the character of a pleading is to be determined by its contents"); Peacock, 399 So.2d at 84. Thus, the trial court did not rule in Appellee's favor on an issue that had not been adequately pled and litigated.
In their second issue, Appellants assert that the trial court erred in granting an equitable lien in favor of Mr. Woodward's estate without a finding of Appellants' fraud or misconduct. In Rinker Materials Corporation v. Palmer First National Bank & Trust Company of Sarasota, 361 So. 2d 156 (Fla.1978), the Supreme Court of Florida held that "a party may successfully maintain a suit under the theory of equitable estoppel only where there is proof of fraud, misrepresentation, or other affirmative deception." Id. at 159; see also Armetta v. Clevetrust Realty Inv., 384 So. 2d 55, 56 (Fla. 4th DCA 1980). Appellants argue that because the trial court found no basis for the allegations of fraud or misconduct by Appellants, no legal basis was proven for an equitable lien.
The deficiency in this argument is that Count Two did not seek an equitable lien based on equitable estoppel; rather, the claim is based on unjust enrichment. "[T]he doctrine [of unjust enrichment] is a recognition that a person is accountable to another on the ground that if the former were not required to do so, he would unjustly benefit, or the other would unjustly suffer loss." Peacock, 399 So.2d at 84. Thus, "[t]he basis of equitable liens may be estoppel or unjust enrichment." Plotch v. Gregory, 463 So.2d *670 432, 436 n. 1 (Fla. 4th DCA 1985); see also Torres v. Reimondez, 979 So. 2d 1074 (Fla. 3d DCA 2008); Spridgeon v. Spridgeon, 779 So. 2d 501, 502 (Fla. 2d DCA 2000); Gordon v. Flamingo Holding P'ship, 624 So. 2d 294, 297 (Fla. 3d DCA 1993); Blumin v. Ellis, 186 So. 2d 286, 294 (Fla. 2d DCA 1966) (recognizing that an equitable lien rests on the "maxim that equity will deem as done that which ought to have been done"). "In Florida, an equitable lien is an appropriate remedy to prevent unjust enrichment between family members or those with close personal relationships." Della Ratta v. Della Ratta, 927 So. 2d 1055, 1059 (Fla. 4th DCA 2006); see also Sonneman v. Tuszynski, 139 Fla. 824, 191 So. 18 (1939) (concluding that plaintiff was entitled to an equitable lien on defendant's real property for money plaintiff had advanced to defendant and for her labor and services performed, where plaintiff acted as defendant's housekeeper and rendered services to defendant under an agreement that defendant would support plaintiff during plaintiff's lifetime).
To state a cause of action based on unjust enrichment to justify the imposition of an equitable lien, Appellee had to meet the following requirements:
To state a claim for unjust enrichment, a plaintiff must plead the following elements: 1) the plaintiff has conferred a benefit on the defendant; 2) the defendant has knowledge of the benefit; 3) the defendant has accepted or retained the benefit conferred; and 4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.
Della Ratta, 927 So.2d at 1059; see also Hillman Constr. Corp. v. Wainer, 636 So. 2d 576, 577 (Fla. 4th DCA 1994). "An action for `unjust enrichment' exists to prevent the wrongful retention of a benefit, or the retention of money or property of another, in violation of good conscience and fundamental principles of justice or equity." Henry M. Butler, Inc. v. Trizec Prop., Inc., 524 So. 2d 710, 711 (Fla. 2d DCA 1988). The trial court found that the requirements of unjust enrichment were satisfied based on the sale of the home and acreage to Appellants for $109,000.00 and Appellants' knowledge and receipt of the benefit, in that they entered the 2003 Agreement and moved into the home on the real property. The trial court recognized that it would be inequitable to allow Appellants to receive the benefit for $89,000.00 less than the agreed-upon price.
Appellants have misplaced their reliance upon Rinker Materials and other "equitable estoppel" decisions to assert that it was reversible error, under the instant facts, to impose an equitable lien upon the real property without proof of Appellants' fraud or misconduct, for Florida courts have long held that unjust enrichment is a different ground for imposing an equitable lien. See Spridgeon, 779 So.2d at 502; Plotch, 463 So.2d at 436 n. 1; Peacock, 399 So.2d at 84. Competent substantial evidence supports the trial court's finding that, because it would be inequitable to allow Appellants to retain the property without paying a substantial amount of the agreed-upon price, Mr. Woodward's estate is entitled to the equitable relief granted. Appellants have not shown an abuse of discretion in the decision to place a vendor's lien on the subject property. See Randazzo v. Randazzo, 980 So. 2d 1210, 1213 (Fla. 3d DCA 2008) (finding no abuse of discretion in trial court's imposing an equitable lien).
Appellants' final argument is that the 2003 Agreement merged with or was subsumed into the 2004 Warranty Deed, thereby precluding Appellee from recovering under an "equitable lien" theory *671 based on Appellants' having breached the terms of the 2003 Agreement. "The general rule is that all preliminary agreements and understandings relative to the sale of land usually merge into the deed of conveyance." Opler v. Wynne, 402 So. 2d 1309, 1311 (Fla. 3d DCA 1981); see Rubell v. Finkelstein, 679 So. 2d 889 (Fla. 3d DCA 1996). However, this rule is not absolute.
The rule that acceptance of a deed tendered in performance of a contract to convey land merges or extinguishes the covenants and stipulations contained in the contract does not apply to those provisions of the antecedent contract which the parties do not intend to be incorporated in the deed, or which are not necessarily performed or satisfied by the execution and delivery of the stipulated conveyance. Contractual provisions as to considerations to be paid by the purchaser are ordinarily not merged in the deed and, accordingly, evidence of such contractual provisions is admissible to show what consideration is to be paid by the purchaser although a deed has been accepted.
Milu, Inc. v. Duke, 204 So. 2d 31, 33 (Fla. 3d DCA 1967); see Rubell, 679 So.2d at 889. "There can be no merger at law, without a union of titles in the same person; nor, in equity unless, also, there is an express or presumed intention on the part of those concerned in the transaction that it should operate as a merger." Polk Bond & Mortgage Co. v. Dwiggins, 109 Fla. 443, 147 So. 855, 857 (1933). That is, one must look at the intent and conduct of the parties.
In the instant case, competent substantial evidence, which the trial court accepted, indicated that the parties never intended or expected the 2004 Warranty Deed to supersede the compensation provisions set forth in the 2003 Agreement. First, Mrs. Golden testified that the deed was in Appellants' possession for over a year, during which they did not record it. The Warranty Deed was recorded only after Mr. Woodward, Sr., advised Appellants that it had to be recorded because "there's something to the tax bill." When they went to record the Warranty Deed, Appellants told an employee at the recording office that Appellants had to continue paying $550.00 a month for a certain time, after which they would have to make a balloon payment. Evidence was adduced that Appellants contacted the recording office after the death of Mr. Woodward, Sr., to ascertain where the continuing payments on the property should be made. This cumulative evidence, along with the language in the 2003 Agreement and 2004 Warranty Deed, supports the conclusion that the obligations under the 2003 Agreement were intended to remain binding and did so, and that Appellants knew about their continuing obligation to make payments to the estate after Mr. Woodward, Sr., died.
Given these facts in the record, the trial court had a proper basis to conclude that Appellants have a continuing obligation to make payments after Mr. Woodward, Sr.'s, death, and that the 2004 Warranty Deed did not merge with the 2003 Agreement so as to terminate Appellants' obligations to continue making payments upon the death of Mr. Woodward, Sr. Thus, the doctrine of merger does not preclude the imposition of an equitable lien on the subject property.
For all these reasons, we conclude that Appellants have not proven any reversible error in the trial court's rulings granting a vendor's lien in favor of Mr. Woodward's estate. Accordingly, we AFFIRM the final judgment.
HAWKES, C.J., and VAN NORTWICK, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623388/ | 569 So. 2d 1056 (1990)
Annie L. HOPKINS, Plaintiff-Appellee,
v.
Theresa TRAVASOS, Defendant-Appellant.
No. 89-585.
Court of Appeal of Louisiana, Third Circuit.
November 7, 1990.
*1057 Sandoz & Sandoz, Gordon Sandoz, II, Abbeville, for plaintiff-appellee.
*1058 Sonnier, Hebert & Hebert, Charles Sonnier, Abbeville, for defendant-appellant.
Cooper, Ortego & Woodruff, Calvin Woodruff, Jr., Abbeville, for defendant-appellee.
Before FORET, DOUCET and KNOLL, JJ.
KNOLL, Judge.
Theresa Travasos appeals the judgment of the trial court which found her strictly liable to Annie L. Hopkins for personal injuries Hopkins received when she fell through concrete steps located at the rear of one of Travasos' rental houses. The trial court awarded Hopkins $11,614.18 damages and dismissed Travasos' third-party demand against Mary Broussard, the lessee of Travasos' rent house where Hopkins was injured.
Travasos contends on appeal that the trial court erred: (1) in finding that the concrete steps presented an unreasonable risk of harm; (2) in failing to find that the lessee, Broussard, was the legal custodian of the steps; (3) in finding Travasos failed to maintain the standard of conduct of a reasonable prudent lessor; (4) in failing to find comparative fault on the part of Hopkins; and, (5) in awarding excessive damages. We affirm.
FACTS
Travasos leased her house and lot to Broussard. Travasos, the owner of approximately fifty rental houses in the Abbeville area, leased the house next door to Hopkins, Broussard's sister. On June 12, 1987, Hopkins walked to Broussard's house where she visited for a while with Broussard and another sister.
Hopkins testified that she exited Broussard's house from the rear and as she placed her weight, stipulated at trial to be in excess of 300 pounds, on the top step, the concrete steps collapsed. Although no one witnessed the accident, Broussard said she heard Hopkins scream and went to her aid. Broussard found Hopkins lying on the ground with her legs through the concrete steps. Broussard's family helped transport Hopkins to Abbeville General Hospital where she was referred to her family physician for treatment. Hopkins' two family physicians and an orthopaedist treated her regularly for the next year.
LIABILITY
Travasos contends that the trial court erroneously found her liable to Hopkins. Travasos asserts two errors in the trial court's determination of liability: (1) she was not the custodian of the leased premises; and (2) Hopkins failed to prove that the concrete steps presented an unreasonable risk of harm.
Hopkins asserted in her petition for damages that Travasos was liable to her under theories of negligence and strict liability. In its written reasons for judgment the trial court analyzed the facts under both theories of liability and concluded that Hopkins had successfully carried her burden of proof under strict liability as enunciated in LSA-C.C. Art. 2322. Implicit in the trial court's determination is a finding that it did not conclude that Travasos was negligent.
Our review of the trial court's decision is governed by the manifest error rule. Without reiterating this well known standard, we refer to Sistler v. Liberty Mut. Ins. Co., 558 So. 2d 1106 (La.1990), for an excellent discussion of appellate review and the viability of the "manifest error" rule. We are aware of the manifest error rule and the constraints imposed thereby.
In Sistler, the Supreme Court also stated:
"In an action asserting strict liability as grounds for recovery, the plaintiff bears the burden of proving 1) the thing which caused damages was in the care, custody and control of the defendant; 2) the thing had a vice or defect which created an unreasonable risk of harm; and 3) the injuries were caused by a defect. LSA-C.C. art. 2317; Loescher v. Parr, 324 So. 2d 441 (La.1975). These general principles are contained in LSA-CC. art. 2317, which provides: `We are responsible, not only for the damage occasioned by our own act, but for that which is *1059 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.' Succeeding article 2322 then references the modifications applicable to the owner of a building: `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.'" (Footnote omitted.)
In the case sub judice, Travasos argues that the trial court erred in finding that she was the custodian of the steps.
As part of its explanation of strict liability, in Sistler the Supreme Court stated:
"Legal fault, the first element of the plaintiff's case under articles 2317 and 2322, arises out of the legal relationship between the defendant and the person or thing whose conduct or defect creates an unreasonable risk of injuries to others. Loescher, supra; Entrevia v. Hood, 427 So. 2d 1146 (La.1983). The fault of the owner is based upon his failure to prevent the building for which he is responsible from causing such an unreasonable risk of injury to others. Id. Rather than the loss falling upon some innocent third person, the loss resulting from the creation of the risk falls upon the person to whom society allots its care, custody or control (guarde) [sic]. See Id. The rationale is the owner is in a better position than the innocent victim to detect, evaluate and take steps to eliminate an unreasonable risk of harm which arises from the thing. King v. Louviere, 543 So. 2d 1327 (La.1989); Ross v. La Coste de Monterville, 502 So. 2d 1026 (La. 1987)."
In the present case, Travasos admits that she is the owner of the premises where the steps collapsed, but she attempts to shield herself from liability by arguing that her lessee, Broussard, was actually the person who had the care, custody, and control of the steps. We disagree.
"The obligation of every property owner to answer for damages for a failure to keep his property in such condition of repair that it will not be dangerous to other persons is imposed by law, by articles 670, 2315, and 2322 of the Civil Code." Klein v. Young, 163 La. 59, 111 So. 495 (1927). See also Olsen v. Shell Oil Co., 365 So. 2d 1285 (La.1979). In Klein, the Louisiana Supreme Court held that, even though the owner of a building could contractually allow another person to use the property for any particular purpose, and could regulate the rights and liabilities between the owner and contracting occupant, the owner could not by such contract evade his legal obligation to repair harm to others resulting from defects in the premises. Therefore, applying this well entrenched principle of law, we find no merit to Travasos' argument that she was not the custodian of the property at issue.
Travasos next argues that the trial court erred in finding that the concrete steps posed an unreasonable risk of harm to others.
Again referring to Sistler, our Supreme Court stated:
"The second element of strict liability requires the plaintiff prove the vice or defect of the thing is a condition which poses an unreasonable risk of harm to others. The dangerous aspect of the thing must be unreasonable. Reasonableness of the risk is determined by balancing the probability and magnitude of the risk against the utility of the thing.
The unreasonable risk criterion cannot be applied mechanically. This criterion is a concept employed to symbolize the judicial process of deciding which risks are encompassed by the codal obligations from the standpoint of justice and social utility. Reaching an intelligent and responsible decision of whether a risk is unreasonable involves consideration of moral, social and economic values as well as the ideal of justice." (Citations omitted.)
In its written reasons for judgment the learned trial judge stated:
*1060 "Not every minor imperfection or irregularity will give rise to strict liability. The defect must be of such a nature as to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Koppie vs. Commercial Union Insurance Company, 478 So. 2d 179 (La.App. 3d Cir. 1985), writ denied, 479 So. 2d 922 (La. 1985).
Among the factors to be considered in determining whether a condition is unreasonably dangerous is the ease with which it may be observed by the potential victim. Poe vs. State Farm General Ins. Co., 360 So. 2d 634 (La.App. 3d Cir. 1978).
In this case the utility of the concrete steps must be balanced against the gravity of the risk and likelihood that harm might occur from the use of the steps.
* * * * * *
Although plaintiff admitted that she was aware these steps were not new, she added that no defects were detectable upon observing them.
Jesse Broussard [Travasos' maintenance employee] testified that the steps were in good condition and no cracks were visible on them.
Plaintiff's brother-in-law stated he did not see any cracks in the steps before plaintiff's fall. Although he admitted that some wires were visible in the cement prior to the accident.
This testimony leads this Court to conclude that plaintiff established the existence of an unreasonable risk of harm which caused her damages."
In analyzing Travasos' argument on appeal concerning this issue, as well as her third assignment of error that she acted as a reasonably prudent owner, she relies upon the fact that the steps did not exhibit any defects and that her maintenance personnel regularly inspected the steps.
The owner is absolved from its strict liability neither by his ignorance of the condition of the building, nor by circumstances that the defect could not easily be detected. He is absolved from such liability only if the thing owned by him fails, not because of its defect, but rather because of the fault of some third person or of the person injured thereby, or because the fault is caused by an irresistible cause or force not usually foreseeable. Olsen, supra, and cases cited therein.
Based upon the law and the evidence presented, we cannot say that the trial court erred in finding that the steps posed an unreasonable risk of harm. See: Crawford v. Wheless, 265 So. 2d 661 (La.App. 2nd Cir.1972); Matranga v. Hilman, 94 So. 2d 568 (La.App. 2nd Cir.1957).
In an ancillary assignment of error, Travasos contends that the trial court erred in dismissing her third-party demand against her lessee, Broussard. In her third-party demand, Travasos contended that Broussard knew or should have known about the defective condition of the steps and negligently failed to notify Travasos of the need to replace them.
We find no error in the trial court's dismissal of Travasos' third-party demand against Broussard. The evidence preponderates that the defective condition of the steps was latent. Travasos' repairman noticed no observable crack in the steps and neither did Hopkins. On this basis, there is no evidence to support Travasos' claim that Broussard was negligent in failing to report the cracked condition of the steps.
COMPARATIVE FAULT
Travasos contends that the trial court erred in failing to assess Hopkins with some degree of comparative fault. Travasos asserts, "... Hopkins failed to exercise this due care by not recognizing the potential danger of her excessive weight ... The force exerted by such a weight upon the steps obviously attributed to their ruin. The uneventful inspection of the steps at the time of the incident by defendant and her maintenance personnel, coupled with the durability of concrete, can only lead one to conclude that Ms. Hopkins' weight was a contributing cause in the collapse of the steps." We disagree.
*1061 Hopkins was also a lessee of Travasos. Hopkins testified that she traversed similar concrete steps at her house and had used her sister's steps without difficulty on numerous occasions through the years. Considering the latent defect of the steps, we cannot say that the trial court erred in finding Hopkins free of comparative fault.
QUANTUM
Travasos contends that the trial court award of $10,000 general damages to Hopkins was excessive.
In the assessment of damages in cases of quasi-offenses much discretion must be left to the judge or jury. Perniciaro v. Brinch, 384 So. 2d 392 (La.1980). Factors which are considered in assessing quantum for pain and suffering are the severity and duration thereof. LeBleu v. Dynamic Indus. Constructors, 526 So. 2d 1184 (La.App. 3rd Cir.1988), writ denied, 528 So. 2d 154 (La.1988). A determination of the measure of damages will not be disturbed on appeal unless the trier of fact abuses its much discretion in making the award, and then only to the extent of lowering it or raising it to the highest or lowest point which is reasonably within the discretion afforded to the trial court. Scott v. Hosp. Serv. Dist. No. 1, 496 So. 2d 270 (La.1986). Nevertheless, the burden of proving the existence of damages and the causal connection between them and the delictual act rests with the plaintiff. Such proof must be shown by a preponderance of the evidence. A mere possibility is not sufficient. Meyers v. Imperial Cas. Indem. Co., 451 So. 2d 649 (La.App. 3rd Cir. 1984).
Hopkins testified that when the steps collapsed on June 12, 1987, she fell to the ground, crying and screaming for help. Mary Broussard, Hopkins' sister, testified that when she got to the back door of her house, she saw Hopkins on the ground, bleeding around the ankles.
Hopkins' family took her by truck to Abbeville General Hospital. Unable to pay for the hospital services, Hopkins was taken to Dr. Crackower's office for examination and treatment. Although Dr. Crackower did not testify, Hopkins stated that Dr. Crackower X-rayed her leg and ankle, and sent her home with instructions to elevate the leg.
On June 19, 1987, Hopkins consulted Dr. Kate Lee, a family practitioner. By stipulation of counsel, Dr. Lee's letter report was introduced into evidence in lieu of her testimony. Dr. Lee's report shows that she found tenderness at the L1-5 level with attendant muscle spasms, and X-rays of the lower back, left ankle, left wrist, and left forearm were negative for fracture. Dr. Lee treated Hopkins with diathermy and analgesics. Dr. Lee said that Hopkins presented herself again on June 23, 1987, with severe back pain and insomnia. On July 7, 1987, Hopkins complained to Dr. Lee of severe back pain and leg pain. Because of the leg pain, Dr. Lee admitted Hopkins to Abbeville General Hospital where she tested positive for thrombophlebitis in the left leg. Dr. Lee hospitalized Hopkins for the next six days and treated the thrombophlebitis with IV fluids, Heparin and Coumadin. Upon her release from the hospital, Dr. Lee's diagnosis was active thrombophlebitis of the left leg, status-post contusion of the back, contusion of the left leg, and left elbow.
Dr. Lee again examined Hopkins on July 17, and July 23, 1987, for continued leg pain and tenderness. On September 17, 1987, Hopkins complained to Dr. Lee of severe back pain and left leg pain. A CT scan of the lumbar spine showed bulging of the L5-S1 annulus with questionable spinal stenosis at L5. At this juncture, Dr. Lee referred Hopkins to Dr. John E. Cobb.
By stipulation, Dr. Cobb's letter reports were admitted into evidence. Dr. Cobb, an orthopaedist, examined Hopkins on November 11, 1987. His overall impression was that Hopkins suffered a post-traumatic lumbar pain syndrome. He recommended injections into the back. Re-examination on December 21, 1987, and February 8, 1988, showed little improvement because of the injections.
On Dr. Cobb's recommendation, Hopkins received physical therapy from February *1062 10, 1988, to March 10, 1988. The physical therapist's report shows that he found that Hopkins had a decreased range of motion, her lumbar spine and sacrum were tender to palpation, and she ambulated with a halting gait. On Dr. Cobb's recommendation, physical therapy was discontinued because it did not seem to help relieve Hopkins' condition. Dr. Cobb was unable to foretell either the extent or duration of Hopkins' injury.
At the time of trial, Hopkins testified that she still had constant pain in the low back, especially when she sits or stands for long periods of time, and that her legs get numb. As a result of her pain, Hopkins testified that she can no longer walk any distance, and she is unable to do housework like she did prior to her fall.
After carefully analyzing the record in light of the jurisprudence outlined hereinabove, we find that the trial court did not abuse its wide discretion in awarding Hopkins $10,000 in general damages.
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Travasos.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623403/ | 15 So. 3d 880 (2009)
Frazier BROWN, III, Petitioner,
v.
STATE of Florida, Respondent.
No. 2D09-538.
District Court of Appeal of Florida, Second District.
July 31, 2009.
Frazier Brown, III, pro se.
Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Respondent.
ORDER ON "REQUEST FOR CONFIDENTIAL COMMUNICATION DUE TO ADMINISTRATIVE RULE CHANGE"
ALTENBERND, Judge.
Frazier Brown, III, has a pending petition alleging ineffective assistance of appellate counsel. In this proceeding, he has filed a request that this court place either "open in presence of addressee only" or "confidential" on the envelope in which we deliver any court order, decision, or other court communication. He maintains that such language is required on the exterior of the envelope in order to prevent the Department of Corrections from opening his legal mail.
His request is one of many that this court has recently received from prisoners. These requests all explain that the Department of Corrections recently revised Florida Administrative Code Rule 33-210.102, effective April 23, 2009, and claim that mail is now treated as routine, nonprivileged *881 communication even if it is marked as "legal."
It is true that rule 33-210.102 was recently amended, although the effect of these amendments may not affect the rights of prisoners to the extent that they claim. In pertinent part, the rule states:
(d) The sender of incoming legal mail shall mark the outside of the envelope "legal-confidential," "legal-open only in the presence of the addressee," or similar language which would put the reader on notice that the mail is legal mail of a confidential nature. Mail from courts that is subject to public inspection under Chapter 119. F.S., need not be marked as legal mail. Incoming mail which does not include a marking on the outside of the envelope requesting that it be treated as confidential legal mail shall be treated as routine mail and shall be opened and examined, and is subject to being read by a designated employee outside the presence of the inmate.
(e) All incoming legal mail will be opened in the presence of the inmate to determine that the correspondence is legal mail and that it contains no unauthorized items. Only the signature and letterhead may be read.
(f) If legal mail is written in a foreign language the signature and letterhead shall be translated to confirm that it is legal mail. If the signature and letterhead indicate that it is legal mail, the mail shall be provided to the inmate. If the letterhead and signature cannot be translated by an employee at the facility, the envelope, letterhead, and signature of the correspondence may be photocopied and sent to another institution or the central office for translation.
Without evaluating the merits of this rule change, we deny the request to place "confidential" on the envelopes in which we deliver orders, opinions, and other court communications in all cases in which our files are open to the public. Our communications in those cases may be "legal" in nature, but they are not privileged in any way. We see no basis by which we could prohibit the Department of Corrections from viewing our communications to prisoners that contain only public record documents.
We emphasize that our denial of this request is limited to cases in which the court file is open to the public. We have not resolved whether such a request would be warranted in a proceeding where our files are restricted, such as an appeal from an order in a dependency proceeding or in a proceeding to terminate parental rights.
CASANUEVA, C.J., and FULMER, J., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623404/ | 569 So. 2d 1342 (1990)
Florence LEWIS, Appellant,
v.
John LEWIS, Jr., and the State of Florida, Department of Health and Rehabilitative Services, Appellees.
No. 90-1686.
District Court of Appeal of Florida, First District.
November 9, 1990.
Rehearing Denied December 3, 1990.
*1343 Bill A. Corbin, Blountstown, for appellant.
Joseph R. Boyd, William H. Branch, Chriss Walker, and Roosevelt Randolph, Tallahassee, for appellees.
SHIVERS, Chief Judge.
This is an appeal by appellant/wife of an order directing her to pay child support to appellee/husband. We affirm in part, reverse and remand.
The parties to this appeal were originally divorced in Brevard County in 1984, and husband was awarded custody of their four minor children. In either 1986 or 1987, both parties and the four children relocated to Calhoun County. Shortly thereafter, wife filed a petition seeking custody of the children and child support payments from husband. Husband filed a motion to dismiss, alleging lack of subject matter jurisdiction, and the motion was denied by the trial court. This court reversed the denial in Lewis v. Lewis, 516 So. 2d 21 (Fla. 1st DCA 1987), holding:
The order denying appellant's motion to dismiss is reversed with directions that the trial court dismiss the petition for lack of jurisdiction. See Bailey v. Malone, 389 So. 2d 348 (Fla. 1st DCA 1980); Elliott v. Weyman, 337 So. 2d 832 (Fla. 1st DCA 1976); Jones v. State ex rel. Greathouse, 241 So. 2d 432 (Fla. 1st DCA 1970).
516 So.2d at 21.
In 1989, Husband, along with HRS, filed a petition in Liberty County seeking: 1) child support payments from Wife for all four children and 2) reimbursement of AFDC (Aid to Families with Dependent Children) paid in support of the children. Wife then filed a motion to dismiss for lack of subject matter jurisdiction, alleging that only the Brevard County Circuit Court had jurisdiction of the case. The trial court denied the motion to dismiss, and a hearing was set for Husband's petition.
As of the date of the hearing, the parties' 15-year-old daughter had been living with Wife in Bay County for 14 months, and their 13-year-old son had been living with her for three days, having run away from Husband's home. The two youngest children lived with Husband and his new wife in Liberty County.
Testimony was introduced that Husband earned a gross biweekly salary of $665, while he and his new wife had a combined monthly income of $2,266.72. Wife, on the other hand, had a net monthly income of $400, which she earned by cleaning four houses per week. Wife testified that her doctor had limited her to cleaning no more than four houses after a 1989 back injury. Husband testified that he did not have the financial ability to support the three youngest children without assistance from Wife, while Wife testified that she did not have the financial ability to pay child support to Husband. Testimony was entered by a representative of HRS that the four children had received $1,312 in AFDC payments during a four-month period in 1985 when they lived with Husband. The representative also testified that she had no information regarding Wife's financial status. Using an imputed minimum wage of $658.16 per month and deducting taxes and FICA, however, the Department calculated a net monthly income for Wife of $549.81, and a corresponding support obligation for two children of $180.48 per month.
In a final order entered after the hearing, the trial court directed Wife to pay $180 per month in child support for the three youngest children, $20 per month toward the past AFDC payments of $1,312, and Husband's attorney's fees.
Wife first argues that the Circuit Court in Liberty County lacked jurisdiction to hear Husband's petition since this court had previously ruled, in Lewis v. Lewis, *1344 supra, that jurisdiction lay in Brevard County. We disagree. It is well established that the court which issues the original judgment of dissolution has exclusive jurisdiction over petitions seeking modification of child custody. Wells, in and for Walton County v. Ward, 314 So. 2d 138 (Fla. 1975); Jones v. State ex rel. Greathouse, 241 So. 2d 432 (Fla. 1st DCA 1970). Petitions to modify support payments, on the other hand, may be brought in the county where either party resides, even though the original decree was entered in a different county. Sikes v. Sikes, 286 So. 2d 210 (Fla. 1st DCA 1983). Where a petition seeks modification of both custody and support, however, the circuit court which entered the original judgment must hear the matter, Elliott v. Weyman, 337 So. 2d 832 (Fla. 1st DCA 1976), the reason being:
Where a cause of action would be split between two different circuits, making an equitable determination of either part impossible, equity requires that only one circuit entertain the matter the circuit where the original decree was rendered.
Bailey v. Malone, 389 So. 2d 348, 350 (Fla. 1st DCA 1980).
As in Bailey, supra, the original Calhoun County petition filed by Wife involved issues of both custody and support. This court's decision in Lewis v. Lewis, supra thus relied on the Bailey and Elliott decisions and reversed the trial court's denial of Husband's motion to dismiss, the result being to establish jurisdiction in Brevard County of both issues. See also Marshall v. Marshall, 404 So. 2d 1182 (Fla. 2d DCA 1981); Williams v. Starnes, 522 So. 2d 469 (Fla. 2d DCA 1988); Torres v. Torres, 561 So. 2d 1310 (Fla. 3d DCA 1990). The 1989 Liberty County petition filed by Husband, however, contained no custody issue, and sought only support and reimbursement to HRS of past AFDC payments. According to both Bailey and section 61.14, F.S., then, the petition could have been properly filed in either Brevard, Bay, or Liberty Counties.
Having found that the Circuit Court had jurisdiction of Husband's petition, we nonetheless reverse and remand the order directing Wife to pay child support. According to section 61.30(2)(b) of the Child Support Guidelines, income will be imputed to an unemployed or underemployed parent "when such employment or underemployment is found to be voluntary on that parent's part, absent physical or mental incapacity or other circumstances over which the parent has no control." Because Wife presented undisputed testimony that her limited income was the result of a 1989 back injury, the trial court erred in accepting the HRS representative's imputed income calculation of $549.81 per month.
Second, since neither the order nor the hearing transcript gives any indication as to how the court decided that Wife should pay $180 per month in child support, it is impossible for this court to determine whether the child support guidelines of section 61.30 were properly applied. Although it appears that the trial court adopted the testimony of the HRS representative that Wife would have a support obligation of $180.48 per month, the record also fails to indicate how HRS arrived at that figure. In any event, it appears that the HRS figure was based on imputed income, which we have determined to be improper in this case.
Third, neither the order nor the hearing transcript indicates that the trial court gave consideration to such other relevant factors as Wife's ability to pay, the needs of the children, Husband's ability to provide for the children's needs, or the children's ages. Reed v. Reed, 541 So. 2d 755 (Fla. 1st DCA 1989).
And, fourth, although the record establishes that only two of the children were living with Husband at the time of the hearing, the trial court directs Wife to pay support for the three youngest children. The order also contains a paragraph directing Husband to immediately release the clothing of the 13-year-old son to Wife, indicating that the court was aware that the son was living with Wife when it ordered her to pay support for that child to Husband.
*1345 We therefore reverse and remand the order for the trial court to make specific findings of fact regarding Wife's ability to pay, the children's needs, and Husband's ability to meet those needs. If the court determines that Wife is to pay child support to Husband, the order should indicate how that amount was determined so that effective appellate review of the amount can take place. The order should also be corrected to reflect that only two of the children were residing with Husband at the time of the hearing.
Assuming the court again finds Wife to be liable for child support, we affirm that portion of the order directing Wife to reimburse HRS for past AFDC payments. Wife does not argue on appeal that she should not be responsible for repayment of the debt, but argues only that she and Husband should bear equal responsibility for such repayment. Section 409.2561(4), F.S., however, expressly excludes the custodial parent from liability for reimbursement. State Department of Health and Rehabilitative Services v. D'Andrea, 542 So. 2d 1369 (Fla. 2d DCA 1989).
SMITH and NIMMONS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623542/ | 126 S.W.3d 345 (2003)
Elenita R. GREENHOUGH
v.
Ronald R. GOFORTH.
No. 03-93.
Supreme Court of Arkansas.
October 23, 2003.
*346 Stanley V. Bond, Fayetteville, for appellant.
Herbert C. Southern, Fayetteville, for appellee.
RAY THORNTON, Justice.
This appeal arises from the Washington County Circuit Court's dismissal of a petition brought by appellant, Elenita Greenhough Duckett, against appellee, Ronald R. Goforth, to determine the paternity of her child, H.J., and to establish child support. The trial court dismissed appellant's petition for lack of jurisdiction on the grounds that the Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA"), codified at Ark.Code Ann. § 9-19-101 et seq. (Repl.2002), applied and that Arkansas was not the home state of H.J. We agree and affirm.
Appellant, who was born in the Philippines and later became an Australian citizen, and appellee, an American citizen residing in Fayetteville, began corresponding with one another in 1993. In May 1994, appellant and appellee met in Cebu, Philippines, where they became intimately acquainted and began a sexual relationship. During that time, appellant was married to Frank Raymond Greenhough, an Australian citizen, and appellee was also married. Appellant and appellee never married each other.
In June 1994, appellant learned that she was pregnant, informed appellee of her pregnancy, and requested his assistance. On February 1, 1995, appellant gave birth to H.J. in the Philippines. In 1997, appellant and her husband, Frank Greenhough, together with H.J. moved from the Philippines to Australia.
On October 14, 1999, Frank Greenhough filed a Form 7 Application in the Family *347 Court of Western Australia, seeking an order providing: (1) that H.J. reside with appellant and that appellant be responsible for day-to-day care; (2) that appellant and Greenhough retain joint responsibility for H.J.'s long-term care; (3) that Greenhough have reasonable access, or visitation, with the child; (4) mutual non-denigration orders; (5) that an injunction be entered, restraining appellant and Greenhough from removing H.J. from the State of Western Australia without the prior written consent of the other.
On November 22, 1999, appellant filed a Form 7A and 8A in response to Greenhough's Form 7 application. She averred that Frank Greenhough was not the biological father of H.J., but that he signed H.J.'s birth certificate.
On December 1, 1999, the matter came before the Australian family court. The court granted appellant sole responsibility for the day-to-day care of H.J., joint responsibility for the long-term care of H.J., ordered visitation for Frank Greenhough for the following year, enjoined the parties from denigrating each other in the child's presence, and enjoined the parties from removing H.J. from the State of Western Australia without the prior written consent of the other. On January 27, 2000, the family court ordered that Greenhough have supervised visitation with H.J. on specific dates.
On February 1, 2000, appellant filed an application for dissolution of marriage, or divorce, from Frank Greenhough in Family Court of Western Australia. H.J. was included on the application as a child of the marriage, but on March 30, 2000, appellant submitted an affidavit in which she stated that appellee was "the biological father of my daughter."
On March 27, 2000, a divorce decree called a Decree Nisi of Dissolution of Marriage was entered by the Family Court of Western Australia at Perth. The Australian decree provided:
The Court by order declared that it was satisfied that the child/ren named in the order is/are the only child/ren of the marriage who has/have not attained the age of eighteen years and that proper arrangements in all the circumstances have been made for the care, welfare and development of the child/ren.
On June 8, 2000, the family court granted the removal of H.J. from Australia to the United States from June 14, 2000 to July 12, 2000. Appellant and H.J. left Australia on June 4, 2001, and Frank Greenhough learned that appellant and H.J. were planning on staying in the United States for an extended period of time. While in the United States, appellant remarried a man named Tom Duckett with whom she and H.J. now reside in Hodges, South Carolina.
On December 14, 2001, appellant filed a petition with the Washington County Circuit Court to determine paternity of H.J. and to award child support. In her petition, appellant named appellee as the father of H.J., but Frank Greenhough was not made a party to or notified of the Arkansas proceedings. Because appellant and H.J. reside in South Carolina, appellee moved to dismiss the petition, alleging that Arkansas was not the child's "home state" under Ark.Code Ann. § 9-19-201 (Repl. 2002), and that the trial court lacked jurisdiction.
The trial court held a hearing on appellant's motion for paternity testing and appellee's motion to dismiss on June 6, 2002. At the hearing, appellee testified that he had sexual relations with appellant, but did not believe he was the biological father of H.J. because he had a vasectomy in 1987 or 1988 without his wife's knowledge. Appellee's daughter filed an affidavit in which *348 she stated that neither she nor her mother had knowledge of her father's vasectomy. The court reserved ruling on the issue because it required the parties to retrieve the Australian court file.
The Australian court file was retrieved, and on August 26, 2002, a telephone conference was held between the trial court, the attorney for appellant, and the attorney for appellee. During the telephone conference, the trial court advised counsel that it was inclined to grant the motion to dismiss, but asked appellant's attorney if his client would like a formal hearing to present evidence. Appellant's attorney requested the formal hearing.
On August 27, 2002, Frank Greenhough filed an application in accordance with the Hague Convention on the civil aspects of international child abduction for the return of H.J. abducted from Australia. In the attachment to the application, Frank Greenhough stated that H.J. was taken out of Australia against the orders of the family court, and that he did not consent to the child remaining in the United States. Greenhough further stated that he has maintained contact via telephone with H.J. and has sent gifts to the child.
On August 29, 2002, appellee brought it to the trial court's attention that Frank Greenhough filed an application for enforcement of the Australian visitation orders, pursuant to the Hague Convention.
On October 9, 2002, the Washington County Circuit Court held a hearing on the matter. At the hearing, appellant testified that she and H.J. left Australia on June 4, 2001. She further testified that she did not seek an Australian court order to take H.J. out of Australia at that time because, in her opinion, there were no existing orders, and the application for access had been discontinued.
The trial court granted appellee's motion to dismiss based upon a finding that Arkansas was not the child's home state under the UCCJEA. We agree with appellee's first contention that the trial court properly dismissed the case because it did not have jurisdiction to hear the case. Because the court lacked jurisdiction, we need not consider whether the motion to dismiss should alternatively have been granted for other reasons, specifically whether the Australian divorce decree acts as res judicata on the issue of paternity or whether a ruling by the trial court would violate the terms of the Hague Convention. Appellant brings the present appeal from the trial court's grant of appellee's motion to dismiss.
For her first point on appeal, appellant argues that the trial court erred in granting appellee's motion to dismiss by finding that the UCCJEA, codified at Ark. Code Ann. § 9-19-101 et seq., applies to paternity actions. Specifically, appellant argues that the trial court misinterpreted the language of the UCCJEA, as codified by our statutes, and that the paternity statutes should apply.
In her petition to establish paternity and to award child support, appellant averred "[t]hat the petitioner is the proper person to have custody of the minor child, subject to reasonable visitation of the [appellee] who is the natural father."
The trial court ordered:
[T]he UCCJEA applies to actions for both paternity and custody from the inception of the case. Arkansas is not the home state of the child, [H.J.] This court does not, therefore, have jurisdiction to hear this case.
In addressing appellant's first point on appeal, we must examine the UCCJEA in conjunction with our paternity statutes found at Ark.Code Ann. § 9-10-101 *349 et seq. (Repl.2002). Because the issue now facing this court is one of statutory interpretation, it should be noted that our review is de novo, as it is for this court to decide what a statute means. South Cent. Arkansas Elec. Co-op. v. Buck, 354 Ark. ___, 117 S.W.3d 591 (2003).
In 1997, the UCCJEA revised the Uniform Child Custody Jurisdiction Act ("UCCJA"), which was promulgated in 1968. The preamble of the former UCCJA states in pertinent part, "The general purposes of the subchapter are to ... avoid jurisdictional competition and conflicts with courts of other states in the matter of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being." Ark. Code Ann. § 9-13-201 (repealed 1999). See also LeGuin v. Caswell, 277 Ark. 20, 638 S.W.2d 674 (1982).
The UCCJEA is the exclusive method for determining the proper forum in child-custody proceedings involving other jurisdictions. See Ark.Code Ann. §§ 9-19-101 to 9-19-401 (Repl.2002). We provided an overview of the UCCJEA in Arkansas Dept. of Human Services v. Cox, 349 Ark. 205, 211-212, 82 S.W.3d 806, 811 (2002), where we stated:
The UCCJEA as codified in Arkansas is comprised of three subchapters. Subchapter one provides general provisions, including definitions. Subchapter two sets out jurisdiction and the method whereby the courts of this state issue a child-custody determination order. Section 9-19-201 provides the criteria used to determine whether a state has jurisdiction to make an "initial child-custody determination." "Initial determination" means the first child-custody determination. Ark.Code Ann. § 9-19-102(8) (Repl.2002). Under § 9-19-201(a) as applied to the facts of this case, a court of this state has jurisdiction to make an initial child-custody determination if it is the home state of the child. The home state of a child of less than six months of age means the state in which the child lived from birth with a parent or person acting as a parent. Ark.Code Ann. § 9-19-102(7).
Cox, supra (emphasis added).
Arkansas Code Annotated § 9-19-102, which is contained in subchapter one of the UCCJA, includes the definition of a child-custody proceeding. It provides in pertinent part:
(4) "Child-custody proceeding" means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under subchapter 3 of this chapter.
Id. (emphasis added).
Under the plain language of Ark.Code Ann. § 9-19-102(4), the UCCJEA provides that child-custody proceedings include paternity actions. We should note that appellant's petition also included that "the petitioner is the proper person to have custody of the minor child, subject to reasonable visitation of the respondent who is the natural father." Because appellant includes the issue of custody, the UCCJEA is certainly applicable to proceedings involving custody. Therefore, the trial court was correct in its application of the UCCJEA to the present action, which includes issues of paternity, child support, and custody.
We now turn to the trial court's ruling that Arkansas is not the home state of H.J. *350 Under the UCCJEA, a home-state analysis is required. See Finney v. Cook, 351 Ark. 367, 94 S.W.3d 333 (2002). Arkansas Code Annotated § 9-19-102(7) provides:
(7) "Home state" means the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child-custody proceeding ...[.]
Id.
Arkansas Code Annotated § 9-19-201, which is contained in subchapter two of the UCCJEA, grants Arkansas jurisdiction over initial child-custody proceedings if Arkansas is the home state of the child. The statute provides:
(a) Except as otherwise provided in § 9-19-204, a court of this state has jurisdiction to make an initial child-custody determination only if:
(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) a court of another state does not have jurisdiction under subdivision (a)(1) of this section, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under § 9-19-207 or § 9-19-208, and:
(A) the child and the child's parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
(3) all courts having jurisdiction under subdivision (a)(1) or (2) of this section have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under § 9-19-207 or § 9-19-208; or
(4) no court of any other state would have jurisdiction under the criteria specified in subdivision (a)(1), (2), or (3) of this section.
(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child-custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.
Arkansas Code Annotated § 9-19-201.
Here, the trial court was correct in its ruling that Arkansas is not the home state of the child. First, the record is replete with evidence that H.J. now resides in South Carolina with appellant and her new husband. In her petition, appellant avers that she and H.J. are living in Greenwood County, South Carolina. Additionally, we cannot find any evidence in the record to indicate that H.J. has ever resided in Arkansas with either appellant or appellee. Second, under subsection (a)(2), we find no evidence in the record to reflect that any court has declined to exercise jurisdiction on the grounds that Arkansas is the more appropriate forum, or third, that any other American court has exercised jurisdiction on the matter. Additionally, we do not find anything in the record to reflect that appellant filed the action in her state of residence, or that the case has been to referred to Arkansas from another state.
We note that Ark.Code Ann. § 9-19-105 states that "a court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying *351 subchapters 1 and 2 of this chapter." Id. Under a home-state analysis required by the UCCJEA, it appears that the home state with proper jurisdiction could be either South Carolina or Australia, but that question is not for this court to resolve.
Appellant argues that paternity statutes, found at Ark.Code Ann. § 9-10-101 et seq., may apply in lieu of the UCCJEA. However, appellant's argument is misplaced. Because other jurisdictions, particularly South Carolina and Australia, have a potential interest in H.J., the UCCJEA applies.
Therefore, based upon our standard of review, we hold the trial court properly found that Arkansas is not the home state of H.J. and has no jurisdiction to hear the matter. Accordingly, we affirm the trial court's grant of appellee's motion to dismiss. Because we hold that the trial court was correct in dismissing the case for lack of jurisdiction, we will not address appellant's remaining points on appeal on the merits.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623462/ | 15 So. 3d 595 (2009)
GRAHAM
v.
STATE.
No. 5D08-3548.
District Court of Appeal of Florida, Fifth District.
August 11, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623452/ | 569 So. 2d 343 (1990)
CALLON INSTITUTIONAL ROYALTY INVESTORS I, a Mississippi Limited Partnership
v.
DAUPHIN ISLAND PROPERTY OWNERS ASSOCIATION, INC.
89-523.
Supreme Court of Alabama.
September 21, 1990.
Conrad P. Armbrecht and Coleman F. Meador of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellant.
Barry Hess of Hess, Atchison & Horne, Mobile, for appellee.
KENNEDY, Justice.
Dauphin Island Property Owners Association, Inc. (the "Association"), filed a declaratory judgment action against Callon Institutional Royalty Investors I ("Callon"), a Mississippi limited partnership, to determine whether the Association or Callon owned disputed mineral royalty interests. Callon filed a counterclaim, seeking damages in the form of attorney fees and other litigation costs for the Association's alleged breach of its covenant of quiet enjoyment to Callon. The trial court entered summary judgment for Callon on the Association's action and determined that Callon had title to the mineral royalties; we affirmed that summary judgment in Dauphin Island Property Owners Association v. Callon Institutional Royalty Investors I, 519 So. 2d 948 (Ala.1988). After that opinion, the trial court entered summary judgment for the Association on Callon's counterclaim, and Callon appeals.
In February 1981, the Association executed a royalty deed to Dan Dumont, which states that the Association "has granted, bargained, sold and conveyed and does by these presents grant, bargain, sell and convey unto grantee, his heirs and assigns, a royalty interest" in minerals on and under certain property in Mobile County. In March 1981, Dumont conveyed and assigned all his royalty interest to Callon. In July 1985, the Association filed its declaratory *344 judgment action, asserting that it held paramount title to the royalty interest.
In its deed to Dan Dumont, the Association conveyed its interest and title to the royalty to Dan Dumont, his heirs, and assigns, using the terms "grant," "bargain," and "sell." Under Ala.Code 1975, § 35-4-271, the terms "grant," "bargain," and "sell" in a deed give not only a warranty of good title but also a covenant for quiet enjoyment against acts of the grantor/covenantor, even if those warranties and covenants are not expressly specified in the deed. Ala.Code 1975, § 35-4-271; St. Paul Title Insurance Corp. v. Owen, 452 So. 2d 482, 485 (Ala.1984). The covenants of good title and of quiet enjoyment run with the land when it is conveyed or assigned, "so that when they are broken, the heir or assignee injured by the breach can maintain an action against the covenantor." Owen, 452 So.2d at 485. "Because the covenants of quiet enjoyment and of warranty are virtually identical in operation, whatever constitutes a breach of one covenant is a breach of the other." Id. However, "[n]either covenant is breached until there is an eviction under paramount title." Id. The eviction can be actual or constructive. Id.
The Association argues that there was not an actual or constructive eviction and, alternatively, that even if we were to hold that there was an eviction, it was not an eviction under paramount title, and, consequently, Callon cannot, as a matter of law, maintain its action. The Association further argues that as a matter of law Callon cannot recover the damages it seeks.
Normally, in an action for breach of a covenant of quiet enjoyment, an attack on the covenantee's title is made by a third party to the covenantee/covenantor relationship. In this case, however, the attack to the title and the claim of superior title were not made by a third party but by the Association, which was both the grantor and the covenantor. There is no Alabama case law addressing this fact situation, although some early cases from other jurisdictions address it.
The Alabama case that most closely resembles this case factually is Chicago, Mobile Development Co. v. G.C. Coggin Co., 259 Ala. 152, 66 So. 2d 151 (1953). The Association argues that Coggin requires that the summary judgment be upheld, because, according to the Association, under that case, there was no eviction and Callon cannot, as a matter of law, recover the damages it seeks. In G.C. Coggin, the Chicago, Mobile Development Company ("Development Company") owned a parcel of land in Mobile County. In July 1944, the Development Company executed a mineral lease to Sun Oil Company for a term ending in 1949 and then extended the term through July 1950. In December 1948, the Development Company sold a portion of its land to Rufus and H.W. Snow, by warranty deed containing covenants of warranty and for quiet enjoyment. In October 1949, the Snows executed a warranty deed to G.C. Coggin Company ("Coggin") and conveyed to Coggin all the land it had purchased from the Development Company. Coggin took possession of the land and began cutting timber and pulpwood. The Development Company never entered the land that it had leased to Sun Oil Company.
Coggin sued the Snows and the Development Company, claiming, inter alia, that the Development Company had breached covenants of warranty and for quiet enjoyment. The Snows cross-claimed against the Development Company for breach of the covenant of warranty of title and the covenant for quiet enjoyment.
The Court held that there had been no actual or constructive eviction, implying that the mere existence of the lease would not constitute eviction as a matter of law, when, as in that case, there had been no action taken to use the lease to enter the land. 259 Ala. at 160, 162, 66 So.2d at 156, 157. The Court further stated that the right to recover attorney fees that comes from the action for breach of the covenants does not exist in every action where the title is in some way attacked; rather, the Court held, the duty to pay attorney fees arises "only in a suit with the claimant of an outstanding superior right, usually seeking to obtain possession in order to profit *345 by that right." 259 Ala. at 162, 66 So.2d at 158.
G.C. Coggin does not support the Association's argument. In regard to the issue of eviction, the case addresses a lease that was never used, not a lawsuit by the covenantor to take title from the covenantee, as the Association tried to do. Furthermore, G.C. Coggin addresses eviction only in a summary fashion and does not provide meaningful discussion of the issue. Concerning the award of attorney fees, G.C. Coggin says that they are recoverable in a breach of covenant action exactly like the one the Association brought, an action with a "claimant of an outstanding superior right." Accordingly, G.C. Coggin actually supports Callon on the issue of recovery of attorney fees.
Several early cases from other jurisdictions address the relationship between the grantor/covenantor and the covenantee. In Cassada v. Stabel, 98 A.D. 600, 90 N.Y.S. 533, 535 (Sup.Ct.1904), the court wrote:
"A covenant that the grantee `shall quietly enjoy the said premises' must be construed as meaning that such grantee, his heirs, successors and assigns, shall and may at all times thereafter peaceably and quietly have, hold, use, occupy, possess and enjoy the said premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction or disturbance of the grantor, his heirs, successors, or assigns, or any person or persons lawfully claiming or to claim the same.
"....
"... [W]hile the main object of a covenant for quiet enjoyment is to protect the grantee ... from the lawful claims of third persons having a title paramount to that of the covenantors, the covenant may be broken by a forcible entry or disturbance by the grantor .... Where the acts done by the grantor amount to a claim of title by him, the covenant is broken."
(Emphasis added.)
Other courts and authorities have stated that every grant of any right, interest, or benefit carries with it an implied undertaking on the part of the grantor that the grant is intended to be beneficial, and that, so far as the grantor is concerned, he will do no act to interrupt the free and peaceable enjoyment of the thing granted. Akerly v. Vilas, 23 Wis. 207, 219-20 (1846); Atler v. Erskine, 50 Tex. Civ. App. 576, 111 S.W. 186, 187 (1908); 21 C.J.S. Covenants § 108, p. 965 (1940). The covenant has been regarded as an agreement that the grantor will not trouble, molest, evict, or disturb the grantee. 21 C.J.S. Covenants § 45, p. 916 (1940).
While in a third-party situation, the covenant of quiet enjoyment "applies only to the acts of those [third parties] claiming by title, [it is] subject, however to the exception that it shall extend to the act of the covenantor himself, done under color or mere claim of title." Akerly, 23 Wis. at 216. Thus, while the covenant is breached in a third party situation only if the third party attacking title in fact has paramount title, "the covenant ... bars the grantor from claiming the estate granted." 21 C.J.S. Covenants § 45, p. 916.
The court in Cassada wrote further that "the covenant for quiet enjoyment extends to all acts of the covenantor, whether tortious or not, if committed under color of title." (Emphasis added.) 90 N.Y.S. at 536 (quoting Cyc. of Law & Procedure, 1119); in Atler, 50 Tex. Civ. App. 576, 111 S.W. at 186, the court wrote that "the principle which requires the eviction or disturbance to be by one claiming under a superior title to constitute a breach of the covenant for quiet enjoyment is subject to certain well-settled exceptions, among which is that the covenant extends to all acts of the covenantor himself whether tortious or otherwise."
The holdings of those courts are sound. We hold that when the Association filed its action against Callon claiming paramount title, the action itself constituted constructive eviction for the purposes of Callon's claim alleging breach of the covenant of quiet enjoyment. The early cases support this holding. "The covenantor's suit, if wrongful, could not result in [a *346 physical] eviction of the covenantee; and to require proof of [physical] eviction would allow the covenantor to break the covenant, by suit, with impunity." Akerly, 23 Wis. at 218. "[A] groundless suit ... by the covenantor himself is a breach of the covenant [of quiet enjoyment]. The obligation he has assumed forbids that he should be at liberty to disquiet and disturb his grantee by groundless actions, with no other liability than to pay costs." Id. "Of a covenant for enjoyment without interruption or molestation, it shall be a breach if the covenantor prosecute him [the covenantee] in a court of equity." Akerly, 23 Wis. at 213.
The Association contends that even if there was an eviction, it was not under paramount title, and therefore that Callon cannot maintain its action. The law does require, as we stated in Owen, that when an attack on the title is made by a third party with an alleged superior claim of title, the eviction must be by actual paramount title, that is, the third party must succeed on its claim of superior title. We have not addressed, however, the question whether the attack on the title must actually be successful when the attack is made by the covenantor himself.
The authorities discussed earlier indicate that the covenantor's action need not be successful in its claim for paramount title to support an action by the covenantee for breach of the covenant of quiet enjoyment. Akerly, 23 Wis. at 216, 218; Cassada, 90 N.Y.S. 533, 536. With regard to the Association's argument that the attack must be successful, there is a reasonable basis for distinguishing between a third party's attack on the title of the covenantee and an attack instigated by the covenantor himself. A grantor/covenantor that covenants quiet enjoyment cannot control whether a third party will attack the grantee's (covenantee's) title under claim of paramount title. A covenantor cannot prevent a third party from filing a frivolous, groundless lawsuit; it can only control or affect whether a third party actually has paramount title because of some act by the covenantor. Accordingly, when a third party attacks title, the covenantor is liable for breach of the covenant of quiet enjoyment only if the third party actually has paramount title. However, the covenantor can control absolutely whether it attacks the title it has conveyed to the covenantee.
In addition to those distinctions, sound policy dictates that the Association as covenantor should not be able to file an action claiming superior title against its covenantee Callon without regard to its covenant of quiet enjoyment: The law should not penalize Callon as covenantee for choosing to defend its rightful claim to the royalty interest by taking away its cause of action for breach of that covenant when it does so. Callon should not be required to choose between relinquishing its claim of title and releasing its cause of action for breach of the covenant of quiet enjoyment.
The judgment is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES and SHORES, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
I concur with the well-reasoned opinion of Justice Kennedy. I write separately to address our standard of review.
Dauphin Island Property Owners Association, Inc., argues that our standard of review in this case is whether there has been an abuse of discretion. If this were the standard of review, I would dissent. However, in this action we are asked to determine if the trial court erred in entering a summary judgment for the Association on Callon's counterclaim for breach of covenant of quiet enjoyment. A trial court's entry of a summary judgment is not a discretionary act; no presumption of correctness attaches, and our standard of review in such a case is not whether there has been an "abuse of discretion." Hightower & Co. v. United States Fidelity & Guaranty Co., 527 So. 2d 698, 701 (Ala. 1988). In accordance with our standard of *347 review of determining whether there is evidence to support each element of Callon's counterclaimto raise a genuine question of material fact as to whether that element exists, Rule 56(c) A.R.Civ.P.this Court must review the record in a light most favorable to the non-movant, Callon, and resolve all reasonable doubts against the Association. Sanders v. Kirkland & Co., 510 So. 2d 138, 142 (Ala.1987). The Association had covenanted and warranted quiet enjoyment "against acts done ... by the grantor" (the Association). St. Paul Title Insurance Corp. v. Owen, 452 So. 2d 482, 485-86 (Ala.1984); Ala.Code 1975, § 35-4-271. The contention by the Association that it was merely trying to determine whether Callon had good title because of the Rule against Perpetuities does not support the Association's position. One whose title is defective because of the Rule against Perpetuities is not a pariah; one whose title is defective because of the Rule against Perpetuities and whose enjoyment of title is disputed is not deprived of a right to file a breach of warranty of quiet enjoyment action against his grantor, who covenanted and warranted quiet enjoyment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623461/ | 360 S.W.2d 472 (1962)
Mrs. Neva BOSTICK
v.
STATE of Tennessee.
Supreme Court of Tennessee.
September 21, 1962.
*473 Will Tom Abernathy, Selmer, Ross & Ross, Savannah, for plaintiff in error.
George F. McCanless, Atty. Gen., Lyle Reid, Asst. Atty. Gen., Nashville, for the State.
FELTS, Justice.
Plaintiff in error, Mrs. Neva Bostick, shot and killed her husband, Owens Bostick, with a pistol. For this, she was indicted for murder, tried, and found guilty of involuntary manslaughter, and sentenced to serve one year in the penitentiary.
She appealed in error and has assigned errors insisting that the evidence preponderates against the verdict of guilt and in favor of her innocence; and that the Trial Court erred in refusing four special requests by her for additional instructions to the jury upon her theory that the killing was in self-defense, unintentional, and accidental.
On the trial, there was adduced a large amount of evidence as to the past lives of these parties and as to the circumstances leading up to this homicide. It appears that the Bosticks lived in Selmer and operated a furniture store there. She was 43, and he seems to have been much older. They were married in 1956, this being her fourth and his third marriage. By her prior marriages, she had three daughters, one married and living in Memphis, and two, aged respectively ten and seven, living at the Bostick home in Selmer, and these two children had been adopted by him.
It appears that both the husband and wife were addicted to drinking alcoholic liquors, and this often caused trouble between them, or at least when drunk, they frequently had disagreements and quarrels. They had both been on a continuous drunk for two days at the time of the shooting; and she had no clear recollection of the details of the occurrence.
She had just come back from a trip to Memphis, and an old friend of hers, a Mrs. Fields, had come with her for a visit to her home in Selmer. They arrived in Selmer Tuesday evening September 13, 1960. On the next day (Wednesday) the stores in Selmer were not open; and the Bosticks and Mrs. Fields went in an automobile to Shiloh and Pickwick Dam, where they drove around, bought some whiskey, and each of them had a number of drinks. They came back to Selmer that evening, visited some friends there, had more drinks and two of the friends, and another man, referred to in the record as a "strange" man, came to the Bostick home where the drinking was continued until after midnight.
By that time they were all pretty drunk, and Bostick was so drunk that he had "passed out." Then Mrs. Bostick and Mrs. Fields and the man, above referred to, decided to go to a nightclub and do some dancing; and he accordingly took them *474 in his pickup truck to Club 45, located on the highway just below the Mississippi-Tennessee boundary line. There, they had more drinks and danced with a number of men until the "wee small hours" of the morning.
Meanwhile, this man disappeared, and Mrs. Bostick and Mrs. Fields became separated. Mrs. Fields started walking back alone to Selmer, but hitchhiked a ride with a truck driver who put her out somewhere in Selmer, and she called Bostick on the telephone to come and get her. He came in his car and they went somewhere out the highway, where he got some more whiskey, and they returned to the Bostick house and drank some more.
Mrs. Bostick had not come home. She testified that after she and Mrs. Fields had lost track of each other, she became so drunk she fell out, and waked up about 8 A.M. Thursday morning near Corinth, Mississippi, in a parked car with some man whom she did not know. He brought her back to Selmer and allowed her to get out some distance from her home, she not wishing her husband to see her with that man; and she walked the rest of the way home.
As she entered, Bostick met her at the front door. He was drunk, in a great rage, and began cursing and calling her vile names, and threatening to kill her with a pistol he had. He also threatened Mrs. Fields and made both of the women sit on the couch in the living room where he was sitting, and held the pistol on them for the greater part of the morning. Then he told Mrs. Bostick that he was going to behave himself, and handed her the pistol. She took it, said "I am going to be fair," and put it under the cushion of the couch.
About that time a customer came to the Bostick home, said a refrigerator he had bought at the store didn't work, and he wanted to exchange it for another one. Bostick was still too drunk to talk to the customer; and Mrs. Bostick and Mrs. Fields went to the store and exchanged the refrigerator. After they had finished with the customer, they found a full half-pint of whiskey in a desk drawer at the store, drank all of it, and then went back to the Bostick home.
When they got back to the house, Bostick reached under the cushion, got the pistol Mrs. Bostick had put there, and began cursing and threatening her and Mrs. Fields. It was then in the late afternoon, and one of the little girls telephoned that she had been let out of school and was ready to come home, and asked that they come for her in the car. Bostick went and picked her up, and then drove to a place where he got some more whiskey, and returned home with the child in a short time. He was still drunk and had the pistol in his outside coat pocket.
The pistol was a .25 caliber automatic. There was another pistol, the one with which he was slain, a .22 H & R revolver, which Mrs. Bostick had had hidden in the bathroom for three or four weeks. All the chambers of its cylinder were loaded, and it, with part of a box of cartridges, was in a pasteboard box, which she had put in the linen closet back behind a board that had been removed near the bathtub.
After he came back with the little girl, with two more bottles of whiskey, which he set on the kitchen cabinet, he sat down on the couch in the living room. He began cursing and threatening Mrs. Bostick, but did not take the automatic pistol out of his pocket. She then decided to disarm him; and she put her knees on his lap, held his arms, and Mrs. Fields got the pistol out of his pocket, and took it with her into the kitchen.
It was shortly after they disarmed him that Mrs. Bostick shot him. There was no eyewitness to the shooting, or the circumstances immediately preceding it, except Mrs. Bostick herself; and, as stated, she had no clear recollection of the details of the occurrence.
The shooting occurred about 5:30 or 6 P.M. Thursday (Sept. 15). The deceased *475 was sitting on the couch in the living room. The little girls, Mrs. Bostick and Mrs. Fields were in the kitchen, the two latter preparing the evening meal (neither of the women nor deceased had eaten any breakfast or lunch). According to Mrs. Bostick's testimony, she saw the two half-pint bottles of whiskey he had put on the kitchen cabinet, and she went to remonstrate with him about this.
She said he was sitting on the couch and she walked back "in the hallway there," and asked him why he had brought in more whiskey; that he said "`God damn it don't you start on that whiskey or I will kill you,' and began to reach under this couch and I said well I have got one too"; and that she "whirled into that linen closet and got it." Telling what followed, on direct examination, she said:
"Q. And after you got it out [the pistol out of the box], what did you do?
"A. I went back in the hallway is about all I remember.
"Q. At that time was Mr. Bostick still reaching under the cushion?
"A. Yes sir he was still fumbling under the couch cushion on this side and that one too.
"Q. And what was he saying at that time?
"A. He said God damn you I am going to kill you.
"Q. And what did you do then?
"A. I guess I fired the pistol.
"Q. Did you swing it around toward him?
"A. Yes sir, I was just standing there in the little doorway that went into the hall" (italics ours).
Under further questions by her counsel, she said that she did not know where the pistol was which they had shortly before taken from him; and that both he and she thought it "might be or could be under that couch." She further said she had no intention of killing deceased, and was only trying to "put him in fear enough that he wouldn't pull the pistol." She also said:
"Q. Did you feel like at the time that you were in danger of bodily harm yourself at the time you got the pistol?
"A. Yes sir, Mr. Ross, I sure did.
"Q. And did you, when the pistol fired, where was Mr. Bostick at that time?
"A. He was sitting on the couch, on this end.
"Q. When you say on this end, which end, the south end?
"A. The south end, yes sir.
"Q. And did you aim the pistol at him?
"A. I don't remember just how it did happen" (italics ours).
On direct examination she also said that she did not know what occurred after she fired the shot, because she "just went all to pieces." But she put the pistol back into the box and again hid it in the linen closet behind the board near the bathtub, where she had hidden it before. On cross-examination, she admitted that she knew that she and Mrs. Fields had disarmed deceased, taken the pistol from him, shortly before she walked into the hallway to ask him why he had brought in more whiskey. As to what happened just before the shooting, she said:
"Q. While you were standing there was that gun in your hand, and in the hallway, where was Mr. Bostick?
"A. He was on the couch.
"Q. And was it from where you were standing that you then shot him?
"A. I guess, to tell you the truth I really don't know what happened.
*476 "Q. Mrs. Bostick you remember most of these other things, why can't you remember that?
"A. Well, like I said, I just went all to pieces, I was excited and tore up, and I just don't know.
"Q. And drunk?
"A. Yes, drinking, yes" (italics ours).
As soon as she shot deceased, Dr. Peeler was called, and the sheriff and a state trooper also came. Mrs. Bostick had fired one shot from the pistol which entered the left front of deceased's abdomen and ranged toward the right side. The doctor and his nurse immediately took Bostick to the Hardin County Hospital in Savannah, where he died some days later as a result of this gunshot wound.
The doctor and the officers said that Mrs. Bostick and Mrs. Fields were drunk. But the officers hesitated to arrest them at that time, since there was no one to leave with the little girls. After counselling with the District Attorney General, they decided to defer the arrest until next day. Mrs. Fields and Mrs. Bostick then went in a taxicab to the hospital, and were so boisterous there that they were arrested, stayed in jail all night, and the next morning paid a fine on a plea of guilty of public drunkenness.
The learned Trial Judge submitted the case to the jury upon a charge, with which no fault is found, fully instructing the jury in all the degrees of homicide from murder in the first degree to involuntary manslaughter; and he also charged defendant's theory of self-defense in language which has been many times approved in our cases and with which defendant, likewise, finds no fault. Some of such cases are Sherman v. State, 125 Tenn. 19, 46, 140 S.W. 209; Frazier v. State, 117 Tenn. 430, 442-445, 100 S.W. 94, and like cases.
So, we think there is no merit in the first three assignments of error which are upon the facts, and through which plaintiff in error insists that the evidence preponderates against the verdict of guilt and in favor of her innocence. Under a fair and proper charge, and with ample evidence to support their verdict, the jury found defendant guilty of involuntary manslaughter and gave her the minimum punishment (T.C.A. § 39-2411). Indeed, upon the evidence, they might well have found her guilty of murder in the second degree.
The admitted fact of her killing deceased with a deadly weapon raised a presumption of malice and justified a finding of murder in the second degree, in the absence of facts or circumstances rebutting the presumption. Foster v. State, 74 Tenn. 213, 214, 216; Lewis v. State, 202 Tenn. 328, 332-333, 304 S.W.2d 332; Neely v. State, Tenn., 356 S.W.2d 401.
We think the jury might well have found that there were no such rebutting facts or circumstances. While the defense of justifiable killing in self-defense was sought to be set up for her, her own testimony failed to support such defense failed to show that, at the moment of the killing, she acted upon an honest belief, based on reasonable ground, that it was necessary to kill deceased in order to save her own life (Sherman v. State, supra). On the contrary, she admitted: "I didn't remember just what happened I really don't know what happened."
It is true the killing occurred after the parties had been upon a continuous and prolonged drunk; but it is well settled that voluntary drunkenness is no mitigation of crime, except where a specific intent, or deliberation and premeditation is an essential ingredient of the offense; and such drunkenness is no excuse or defense to a finding of murder in the second degree or lesser included offenses. Walden v. State, 178 Tenn. 71, 156 S.W.2d 385; Lewis v. State, 202 Tenn. 328, 336-337, 304 S.W.2d 322; Harper v. State, 206 Tenn. 509, 516-517, 334 S.W.2d 933.
*477 Plaintiff in error's fourth assignment is that the Trial Judge erred in refusing her special request to charge the jury that the burden of proof was on the State to prove, beyond a reasonable doubt, all the elements of one of the homicides charged, including the fact that she did not act in self-defense. We think there was no error in the refusal to charge this special request, because the matter had been fully and adequately covered in the Judge's general charge.
Plaintiff in error's fifth assignment of error complains of the Trial Judge's refusal to charge her special request for additional instructions to the jury to the effect that "if she had reasonable grounds to believe that the deceased would find or procure a gun, and if it appeared to her that she was in danger of death or great bodily harm at the hands of deceased, then she would be justified in shooting to protect herself, even though it might later appear that the deceased had no gun, or there was no gun in the place where he was looking."
We think there was no error in the refusal of this request because the matter had been fully covered in the Judge's general charge to the jury, by instructions which were correct and with which plaintiff in error has found no fault.
The sixth and seventh assignments respectively complain of the Trial Judge's refusal of two special requests by plaintiff in error for additional instructions to the jury, to the effect that if she intended no harm, and the killing was by accident or by non-culpable negligence, then the jury should acquit her. We think there was no error in refusing this request, because there was no factual basis for such instruction.
All of the assignments of error are overruled and the judgment of the Circuit Court is affirmed. The costs are adjudged against plaintiff in error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623548/ | 569 So. 2d 967 (1990)
Florence Mingo MILLER
v.
Fred MAHFOUZ, et al.
No. 90-C-1999.
Supreme Court of Louisiana.
November 16, 1990.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623571/ | 360 S.W.2d 251 (1962)
Kathy BUSH, a Minor, by her Next Friend Rosemarie Bush (Plaintiff) Appellant,
v.
Laverne ANDERSON (Defendant) Respondent.
No. 31007.
St. Louis Court of Appeals, Missouri.
September 18, 1962.
Motion for Rehearing or for Transfer Denied October 15, 1962.
*253 Librach, Heller, Byrne & Weber, William P. Byrne, St. Louis, for appellant.
Barnhart & Sommers, Don B. Sommers, St. Louis, for respondent.
Motion for Rehearing or for Transfer to Supreme Court Denied October 15, 1962.
SAMUEL E. SEMPLE, Special Commissioner.
This is a suit for damages for personal injuries sustained by plaintiff Kathy Bush, as a result of being bitten by a dog owned by defendant Laverne Anderson. A trial was had before a jury which resulted in a verdict and judgment for defendant, from which plaintiff has perfected an appeal to this Court.
A short summary of the evidence presented at the trial reveals that plaintiff, a child approximately three years old, attended a family picnic on July 26, 1960, in company with her mother Rosemarie Bush, defendant Laverne Anderson, Mrs. Cora Buss, Mrs. Gladys Koob, and seven other children, six of whom were the children of defendant. Mrs. Buss was the paternal grandmother of plaintiff, Mrs. Koob was a cousin of plaintiff's father, and defendant was the widowed aunt of plaintiff by marriage to plaintiff's deceased uncle.
Following the picnic the entire party drove to defendant's home. Defendant released *254 her Dalmatian dog named Pierre from the basement of her home, and most of the children, including plaintiff, together with the dog went into a bedroom of defendant's home to watch television. Plaintiff was petting the dog when her cousin Mike Bush, a son of the defendant, called the dog to him. Kathy came over and stepped on the dog's foot, and the dog jumped up and bit her right ear, taking off part of the top of the ear. Plaintiff was taken to a hospital and required the services of a plastic surgeon to repair the ear. On one occasion several months prior to the incident involved here, defendant's daughter Susan Wood had stumbled over the dog while chasing a ball and the dog jumped up on her leaving a mark on her ear. Defendant put disinfectant on her daughter's ear and applied a Band-Aid. The evidence was conflicting as to whether the dog at that time bit Susan's ear or scratched it with one of his toenails.
Plaintiff's first contention of error is that the Court erred in overruling plaintiff's Motion for a Directed Verdict at the close of defendant's opening statement. Plaintiff argues that defendant's counsel in his opening statement admitted that defendant's dog had made a prior attack on defendant's daughter and further admitted that defendant's dog bit and injured plaintiff thereby confessing plaintiff's cause of action. The portions of the opening statement referred to were as follows:
"They talk about this vicious dog, but the evidence will show that the only other occasion that the dog has ever done any damage to any of the children was to Susie, the young girl sitting to the left (indicating). She was playing out in the alley, playing ball or something, and the dog jumped up and Susie was scratched behind the ear with his fingernail or toenail. Her mother put a Band-Aid on it and she went back out and played."
"* * * but the next thing she knew the kids were in the back room with the dog, and Mike will tell you Kathy patted the dog and the dog walked over to Mike, and Mike was petting the dog, and Kathy followed the dog over and stepped on his foot, and that is when the dog nipped her on the ear. The dog reacted, as all dogs do, and nipped her on the ear; and she did, she sustained this injury to her ear, and was taken immediately to St. Anthony's Hospital where she was given this emergency treatment there."
The plaintiff cites the general rule laid down, in Pratt v. Conway, 148 Mo. 291, 49 S.W. 1028, l. c. 1030, that where counsel, in their opening statements, state or admit facts the existence of which precludes a recovery by their client, the court may close the case at once, and give judgment against their client.
The primary purpose of an opening statement is to inform the judge and jury of the nature of the action and defense so as to enable them to understand the case and to appreciate the evidence as it is presented. Hays v. Missouri Pacific Railroad Co., Mo.Sup., 304 S.W.2d 800, l. c. 804, 88 C.J.S. Trial § 161a, l. c. 314. Although a court may take a case from the jury at the close of an opening statement by directing a verdict (Pratt v. Conway, supra), this action should only be taken where it clearly and definitely appears from the opening statement that the plaintiff cannot recover or that the defendant has no defense. Such action by the Court is an extreme measure and should be exercised cautiously and only in a clear case. 88 C.J.S. Trial § 161b, l. c. 318, Hays v. Missouri Pacific Railroad Co., supra.
The remarks of defendant's attorney in his opening statement are not clearcut admissions of all of the essential elements of plaintiff's case leaving defendant without a defense. Defendant's counsel denied that the dog was vicious. The reference to the incident involving the dog jumping on Susie does not constitute an *255 unequivocal admission of the ultimate fact that the dog had vicious propensities. This is nothing more than a statement of what defendant's evidence would show, aimed at contradicting the anticipated evidence of plaintiff showing an attack on Susie by the dog. We therefore conclude that the trial court ruled correctly in overruling plaintiff's Motion for a Directed Verdict at the close of defendant's opening statement.
Plaintiff's next contention is that the trial court erred in overruling plaintiff's objection to defendant attorney's remarks in his opening statement that defendant was a widow with six children at the time of the incident here in question, and also in overruling an objection to the testimony of defendant that she had six children. Plaintiff argues that such remarks in the opening statement and testimony of defendant were irrelevant and were calculated to, and in fact did, create a feeling of sympathy for defendant.
Beginning with the case of Dayharsh v. Hannibal & St. Joseph Railway Co., 103 Mo. 570, 15 S.W. 554, 23 Am.St. Rep. 900, it has been generally held that in a damage suit for personal injuries it is improper to inquire of a plaintiff relating to the number of people comprising his family and to his marital status; the reason behind this rule being that ordinarily such evidence is irrelevant and would only serve to appeal to the sympathy of the jury and thereby enhance the assessment of damages. See 10 Mo.Digest, Damages Although the reported cases in Missouri have applied this general rule only where a plaintiff has offered evidence as to family status, it would appear that the rule should apply with equal force where a defendant offers evidence of family status and the number of people comprising his family when such evidence is irrelevant. The general rule declaring evidence of family status or number of people in a family inadmissible does not apply where such evidence is relevant or pertinent to any of the issues raised in the case. Kingsley v. Kansas City, 166 Mo.App. 544, 549, 148 S.W. 170, l. c. 171. Such evidence, even though inadmissible, does not always constitute reversible error where it appears that such evidence has not affected the merits of the action. Daniels v. Banning, Mo.Sup., 329 S.W.2d 647, l. c. 653.
The reference in defendant counsel's opening statement that defendant was a widow with six children at the time of the incident in question, when considered separate and apart from all the evidence and circumstances presented to the jury in this case, would at first blush appear to be improper. However, when considered against the background of all the evidence in the case relating to defendant's marital status and the size of her family, much of the evil complained of by plaintiff, to-wit: the appeal to the sympathy of the jury, disappears. Plaintiff presented evidence that defendant had been married to plaintiff's uncle, but did not show that the marriage was terminated by death, thus leaving an unfavorable inference that the marriage could have terminated at the fault of defendant. In addition, the defendant testified (without objection by plaintiff) that she had remarried about one month prior to the date of trial. In the light of this evidence, the disclosure that defendant was a widow in the opening statement does not constitute error which affected the merits of this action, such as would require a reversal of the judgment. Daniels v. Banning, supra; Baker v. Thompson-Hayward Chemical Co., Mo.App., 316 S.W.2d 652.
The reference in defendant counsel's opening statement and defendant's evidence that defendant had six children was relevant for the purpose of showing who was present in defendant's home at the time plaintiff was injured and in detailing the circumstances surrounding the incident. In addition, the circumstance of the keeping of a dog for a considerable time in a home where six children lived was relevant to the issue of whether the dog had vicious propensities which were known to defendant. *256 We therefore conclude that reference in the opening statement and in defendant's evidence as to the size of defendant's family was admissible under the circumstances shown in this case.
Plaintiff also contends that the trial court erred in allowing defendant to put on testimony as to the peaceable character of the dog for the reason that such evidence was irrelevant and immaterial to any issue in the case. Plaintiff concedes that no objection was made at the trial to the admission of this evidence, but argues that it is a material point which greatly affects the merits of the case and urges that this court review this allegation of error under the provisions of Supreme Court Rule 79.04, V.A.M.R. It is well settled that objections to evidence not presented to or ruled upon by the trial court are not open to review by an appellate court. Supreme Court Rule 83.13(a); Pierce v. New York Central Railway Co., Mo.Sup., 257 S.W.2d 84, l. c. 88(5). It has also been stated that Supreme Court Rule 79.04 is not to be a refuge for those who fail to make proper objections at the trial. Critcher v. Rudy Fick, Inc., Mo.Sup., 315 S.W.2d 421, l. c. 428(7). In addition of plaintiff's failure as a matter of procedure to preserve this point, it should be pointed out that defendant's evidence as to the dog's peaceable character was competent evidence. In a dog bite case, "the gist of the action is the keeping of a vicious dog after knowledge of his vicious propensities." Maxwell v. Fraze, Mo.App., 344 S.W.2d 262, l. c. 264(2), and cases therein cited. Defendant in this case was entitled to show the peaceable disposition of the dog for the consideration of the jury in contesting the issue of whether the dog had vicious propensities. Carrow v. Haney et ux., 203 Mo.App. 485, 219 S.W. 710, 712.
Plaintiff levels a number of objections at Instruction No. 4 given by the court at the request of the defendant. Said instruction reads as follows:
"The Court instructs the jury that under the Law of the State of Missouri, the owner of a dog is not liable for injuries caused by such dog unless the dog has vicious propensities and the owner knows of such dangerous propensities or by the exercise of ordinary care could and should have known of such vicious propensities.
"Therefore, the Court instructs you that unless you find from the evidence that the defendant's dog, Pierre, possessed vicious propensities and unless you find that the defendant knew or in the exercise of ordinary care could and should have known of such vicious propensities of her dog, Pierre, then the Court instructs you that the defendant was not liable, and your verdict in this case must be in favor of the defendant and against the plaintiff."
Plaintiff contends the instruction was misleading and confusing to the jury as the terms "vicious propensities" and "dangerous propensities", having different meanings, were used interchangeably.
The terms "vicious propensities" and "dangerous propensities" have been used by the courts of Missouri for years in this type of case. Maxwell v. Fraze, supra; State ex rel. Kroger Co. v. Craig, Mo.App., 329 S.W.2d 804, l. c. 808, 809; Merritt v. Matchett, 135 Mo.App. 176, 115 S.W. 1066, 1069; Clinkenbeard v. Reinert, 284 Mo. 569, 225 S.W. 667, l. c. 670, 13 A.L.R. 485; Gallagher v. Kroger Grocery & Baking Co., Mo.App., 272 S.W. 1005, l. c. 1006. These terms generally have been defined as the tendency of a dog to injure persons, whether the dog acted out of anger, viciousness, or playfulness. Dansker v. Gelb, Mo.Sup., 352 S.W.2d 12. The words "vicious" and "dangerous" as used in this instruction both generally connote a quality of the dog which could or would cause harm to a person. We do not believe that the use of both of the words in this instruction confused the jury.
Plaintiff also claims this instruction is erroneous because it is not supported *257 by defendant's evidence. Plaintiff argues that defendant's evidence showed that defendant knew of the prior incident when the dog jumped on her own daughter, and therefore there was no evidence in the case that defendant did not know of the propensity of the dog to attack. This contention is not well taken. It is well established that when a defendant submits a true converse instruction, it is not necessary for the defendant to support the instruction by evidence. This rule was well stated in the recent case of Sutton v. Fox Missouri Theatre Co., Mo.Sup., 356 S.W.2d 41, 1. c. 49, as follows:
"Concededly, when the defendant submits a true converse instruction, i. e., to the effect that unless the jury finds in favor of plaintiff each and every (or one or more) of the facts essential to his case, the verdict must be for defendant, it is not necessary that defendant support the instruction by evidence tending to disprove those facts. This, for the reason that the burden rests upon plaintiffs to prove every fact essential to his case before he is entitled to recover."
The instruction in this case was a true converse of two of the essential facts of plaintiff's case, i. e., the dog had vicious propensities and that defendant had knowledge thereof.
Plaintiff further argues that the instruction undertook to cover the whole case and direct a verdict for defendant without hypothesizing all of the facts necessary for a recovery. Plaintiff's complaint is that the Instruction No. 4 excluded the fact that defendant admitted knowledge of a prior incident when the dog jumped on her own daughter plus the additional fact that defendant allowed plaintiff to be with the dog and failed to warn plaintiff of the dog. This is a converse instruction and as such defendant may submit either a converse of each and every essential fact of plaintiff's right to recover, or a converse of one or more of such essential elements. Sutton v. Fox Missouri Theatre Co., supra. Defendant was not required to submit a converse of all the necessary facts to plaintiff's case. The cases cited by plaintiff are not in point in considering the essential requirements of a converse instruction.
Plaintiff's last point with respect to Instruction No. 4 is that it required the jury to find facts which had been conceded both by counsel for defendant in the opening statement and by defendant's own testimony, to-wit: a prior attack establishing a vicious propensity of the dog which was known by defendant. Plaintiff contends that it was error to require the jury to make a finding on the issue of knowledge of the defendant when such fact was admitted by defendant. The record does not disclose any admissions on defendant's behalf of the ultimate facts to be determined by the jury, to-wit: the vicious or dangerous propensities of defendant's dog and the defendant's knowledge thereof. The incident of defendant's daughter Susan stumbling over the dog resulting in the dog jumping up on her, was only evidence from which the jury could determine the ultimate fact of whether or not the dog had vicious propensities and that the defendant had knowledge thereof. It should also be noted that defendant's evidence of the incident raises an issue of fact as to whether the act of the dog was as a result of provocation caused by the defendant's daughter stumbling over the dog while chasing a ball. Provocation has a vital bearing on the question of whether an animal has vicious propensities as will be demonstrated in considering the plaintiff's final contention of error.
Plaintiff's last assignment of error is directed at Instruction No. 5 given by the Court at defendant's request, which reads as follows:
"The Court instructs the jury that what is meant by the term `vicious propensity' in an animal is such a propensity that the dog might attack or *258 injure the safety of persons without being provoked so to do."
Plaintiff asserts that this instruction does not correctly define the term "vicious propensities", as it limits its application only to those situations where the attack by the animal was unprovoked. To this contention we cannot agree. "The mere fact that a dog has previously bitten some one does not necessarily mean that it is of a vicious character, as sudden pain or fright sometimes causes a dog to snap involuntarily. So evidence that vicious acts were done under provocation is not sufficient to establish a vicious disposition which would make the owner liable." 3 C.J.S. Animals § 176 c, l. c. 1280. In Merritt v. Matchett, supra, the court, in approving an instruction identical to Instruction No. 5, said, "A `vicious propensity' is not confined to a disposition on the part of the dog to attack every person he might meet, but includes as well a natural fierceness or disposition to mischief as might occasionally lead him to attack human beings without provocation."
Plaintiff also argues that Instruction No. 5 is inconsistent and in conflict with Instruction No. 6 offered by plaintiff and given by the Court. Instruction No. 6 reads as follows:
"The Court instructs the jury that by the term `vicious dog' is not meant a mad dog but rather a dog that has a tendency to bite, whether in play or in anger."
The gist of Instruction No. 6 was that viciousness was a tendency of dog to injure a person, whether motivated by anger or playfulness. Instruction No. 5 does nothing more than inform the jury that the tendency of the dog to injure a person must be without provocation. Provocation or the lack of it if raised by the evidence, as it was in this case, is a proper consideration in determining the issue as to whether a dog has vicious propensities. Merritt v. Matchett, supra. The instructions were not in conflict.
The judgment is affirmed.
PER CURIAM.
The foregoing opinion by SEMPLE, Special Commissioner, is adopted as the opinion of the Court.
The judgment of the circuit court is accordingly affirmed.
ANDERSON, P. J., WOLFE, J., and JAMES D. CLEMENS, Special Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623583/ | 360 S.W.2d 423 (1962)
Roy GREENLAND, Appellant,
v.
Ben A. PRYOR et al., Appellees.
No. 14015.
Court of Civil Appeals of Texas, San Antonio.
July 18, 1962.
Rehearing Denied September 5, 1962.
*424 Strickland, Wilkins, Hall & Mills, Mission, for appellant.
Hill, King & McKeithan, Mission, for appellees.
POPE, Justice.
This is an appeal from an order granting a receivership over a tract of farm land and the crops produced from the land. Plaintiff, Ben A. Pryor, sued Roy Greenland and Clarence W. Burr for foreclosure of a deed of trust lien against the land and asked for a receivership over both the land and the crops. As of November, 1961, the sum of $17,500 was owing on the deed of trust note which Pryor holds. Burr was the maker of the note. At the time of the trial, Greenland was in sole possession, and Burr was out of possession of the land. Burr joined in Pryor's prayer for the receivership, which the court granted. Greenland asserts that the appointment of a receiver was wrong, because (1) Pryor's lien upon the land does not extend to the crops, and the land is more than ample security, (2) *425 Burr seeks a receivership but asks for no adjudication of his rights against Greenland in this action, and (3) the order appointing the receiver was not conditioned upon the applicants' making a bond, as required by Rule 695-a, Texas Rules of Civil Procedure. We sustain these contentions.
Section 1, Article 2293, Vernon's Tex.Civ.Stats., authorizes a receivership in an action by a creditor where, among other things, it is shown that the property or fund is in danger of being lost, removed or materially injured. Section 2 of the same article authorizes a receivership for a mortgagee in an action for foreclosure when he makes a similar showing, or that the property is probably insufficient to discharge the mortgage debt. A creditor, to be entitled to a receivership, is one who has a specific lien upon some specific fund or property belonging to the debtor. In other words, he must be a secured creditor. Carter v. Hightower, 79 Tex. 135, 15 S.W. 223; Comment, 40 Tex.Law Rev. 649. Pryor is a secured creditor only with respect to the land. His deed of trust lien does not extend to nor include the crops. Bowers v. Bryant-Link Co., Com.App., 15 S.W.2d 598; Gulf Stream Realty Co. v. Monte Alto Citrus Ass'n, Tex.Civ.App., 253 S.W.2d 933; McGarraugh v. McGarraugh, Tex.Civ.App., 177 S.W.2d 296; Zeigler v. Sawyer, Tex. Civ.App., 16 S.W.2d 894. Pryor has no rights in growing crops until they pass by a foreclosure sale, and then only if they have not previously been severed. Willis v. Moore, 59 Tex. 628; Standridge v. Vines, Tex.Civ.App., 81 S.W.2d 289; Ellwood v. Pollard, Tex.Civ.App., 46 S.W.2d 731; Zeigler v. Sawyer, supra; Sanger Bros. v. Hunsucker, Tex.Civ.App., 212 S.W. 514. Pryor, with respect to the land, is therefore a secured creditor; with respect to the crops, he is a general creditor. His proof and prayer relate to the dissipation of funds derived from the crops, but his lien does not prevent this.
Pryor has failed to prove his right to a receiver even with respect to the land upon which he holds security. He has failed to prove that the property is in danger of being lost or materially injured under Sections 1 and 2 of Article 2293. He has failed to prove that the property is probably insufficient to discharge the mortgage debt under Section 2 of the same article.
Burr, a co-defendant, also asked for a receiver. That was the only relief he sought. Burr, in a separate suit and in a different court, has sued Greenland. By that action he claims to be sole owner of the farm tract, and Greenland claims that they are partners. Burr v. Greenland, Tex. Civ.App., 356 S.W.2d 370. The rights between Burr and Greenland, both as to the land and the crops, will be determined in that case, not in this one. Burr, therefore, has his main suit filed separately from this one wherein he seeks only a receivership. Burr, in this suit, prays that the receiver sell the crops and apply the proceeds upon the debt. He prays that the receiver perform functions about a dispute which the appointing court is not asked to decide. This procedure violates the rule that the appointment of a receiver must be auxiliary to a suit about some right which constitutes an independent cause. Glaspy v. Grubbs, Tex.Civ.App., 110 S.W.2d 1188; Junkin v. Sterchi Furniture Co., Tex.Civ.App., 92 S.W.2d 1098; 75 C.J.S. Receivers § 5. Burr failed to prove his right to a receiver.
Greenland's final point is that the order appointing the receiver was not conditioned upon the applicants' compliance with Rule 695-a, T.R.C.P. The receiver made a bond, took his oath, and entered upon his duties as receiver. However, neither Pryor nor Burr made a bond conditioned for the payment of damages and costs in the event of a wrongful appointment of the receiver. This point, too, must be sustained. Compliance with Rule 695-a is a prerequisite to the appointment of a receiver. O'Connor v. O'Connor, Tex.Civ. App., 320 S.W.2d 384; Dinwitty v. McLemore, Tex.Civ.App., 291 S.W.2d 448, 452; Low Cost Homes Bldg. Co. v. Banks, Tex. *426 Civ.App., 228 S.W.2d 535; Bell v. Bell, Tex. Civ.App., 204 S.W.2d 527; Crittenden v. Heckman, Tex.Civ.App., 185 S.W.2d 495.
The order appointing a receiver must therefore be reversed as well as the injunction against Burr and Greenland not to interfere with the receiver. The orders for the receivership and injunction are dissolved. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623599/ | 360 S.W.2d 116 (1962)
CITY OF LITTLE ROCK et al., Appellants,
v.
D. H. GARNER, Appellee.
No. 5-2738.
Supreme Court of Arkansas.
September 17, 1962.
*117 Joseph C. Kemp, City Atty., by Wm. M. Stocks, Asst. City Atty., Little Rock, for appellants.
Barber, Henry, Thurman & McCaskill, by Guy Amsler, Jr.; Holt, Park & Holt, by Jack Holt, Sr., and Conley Byrd, Little Rock, for appellee.
McFADDIN, Justice.
This is a zoning case. Appellee Garner owns, either directly or through options to purchase, a tract of approximately six acres abutting Cantrell Road (State Highway No. 10) in the western part of the City of Little Rock. The tract has a frontage of approximately 530 feet on the highway, and an average depth of approximately 650 feet; and Mr. Garner desires to develop the tract into a modern shopping center. Three of the Garner lots fronting on Cantrell Road have already been zoned as "F" Commercial; but the remainder of the tract is zoned as "A" One-Family District.[1] After several hearings, as hereinafter to be mentioned, the City Board of Directors of Little Rock denied the application for rezoning. Garner then filed complaint in the Chancery Court and, after a thorough hearing, the Court granted Garner his prayed relief i. e., the City was enjoined from denying Garner's right to use the tract for "F" Commercial purposes. The City prosecutes this appeal, presenting, inter alia, the matters herein discussed.
I. The Court's Right To Reverse The City's Decision. Appellant, in urging that this Court should reverse the Chancery Decree and reinstate the action of the City Board of Directors, claims that reasonable minds might differ as to the rezoning; and since there might be difference of opinion, no court should overrule the decision of the City Board of Directors and substitute its opinion for that of the administrative body. This argument necessitates a brief review of the applicable zoning procedure. A landowner applies to the City for rezoning; the application goes to the Little Rock Planning Commission, which studies the application and makes a decision or a recommendation to the City Board of Directors; and the City Board of Directors acts on the application by either granting or refusing it, returning it to the Planning Commission, or by other appropriate action. If as here the City Board of Directors finally refuses the application for rezoning, then the property owner, having exhausted his administrative remedies, files as here a petition in the Chancery Court, alleging that the refusal of the City to rezone is arbitrary and amounts to depriving the landowner of the use of his property for its best purposes.[2]
The Chancery Court hears the case and decides whether the action of the City was arbitrary. In that trial, the burden, of course, is on the landowner to prove his allegations by the preponderance of the evidence; and if the evidence makes a mere question of whether the chancery court thinks it would be fairer to rezone the property, then, of course, the Chancery Court does not substitute its opinion for that of *118 the City.[3] But when as here the Chancery Court finds from the preponderance of the evidence that the City acted arbitrarily in refusing the application for rezoning, then, on appeal to this Court, it is a question of whether the Chancery Court finding is contrary to the preponderance of the evidence. That is the question next to be considered, and we have gone into this point in some detail because appellant has urged that there is confusion in the language of some of our cases. Isolated sentences lifted out of context might indicate confusion; but we think a careful study of the cases will show the statements herein to be the governing rules. We reiterate what we said in Little Rock v. Henson, 220 Ark. 663, 249 S.W.2d 118:
"In the recent case of City of Little Rock v. Hocott, [ante, 220] Ark. [p. 421], 247 S.W.2d 1012, 1014, it is said: `We have uniformly upheld the finding of the chancellor on the question as to whether the classification of property by zoning authorities is unreasonable and arbitrary where such finding is supported by the preponderance of the evidence.' Citing City of Little Rock v. Sun Building and Development Co., 199 Ark. 333, 134 S.W.2d 582; City of Little Rock v. Joyner, 212 Ark. 508, 206 S.W.2d 446."
II. Arbitrary Action Of The City. The Chancery Court found that the City had acted arbitrarily in refusing Garner's application for rezoning, and our problem is to decide whether such finding is against the preponderance of the evidence. A review of the record before us shows the following:
(a) Garner applied to the City on November 15, 1960 for rezoning from "A" One-Family District to "F" Commercial District all of the tract in question that was not already "F" Commercial. The City Planning Commission, after several delays,[4] voted in March, 1961, that the petition for rezoning be denied.
(b) Mr. Garner carried the matter to the City Board of Directors; and on April 3, 1961 it was voted to return the Garner application to the Planning Commission for further study.[5]
*119 (c) On May 11, 1961 the Planning Commission again voted to deny Mr. Garner's application, giving nine reasons for such denial.[6]
(d) The application for rezoning again went to the City Board of Directors, where, after a series of hearings, the matter was, on July 5, 1961, returned to the Planning Commission. The minutes of the City Board of Directors on this point are as follows:
"Director Winburn stated that the members of the Planning Commission had not reviewed this Development Plan showing Parking Plans and Traffic Patterns which had been submitted by Mr. Garner, and made the following motion: `I hereby move that the Petition of D. H. Garner to the Board of Directors asking that certain property along the south side of Highway No. 10 in the City of Little Rock be rezoned from Residential to "F" Commercial be returned to the Little Rock Planning Commission with the request that said Commission review the site plan and all covenants to furnish improvements in connection with the proposed use of said property should it be rezoned. Further, that said Planning Commission furnish the Board of Directors its recommendations on said Petition after study of all matters in relation thereto.' This motion was seconded by Director Blankenship. A roll call was then had on the motion, the result being as follows: Ayes Directors Winburn, Brown, Blankenship, Morse, and Mayor Knoop total 5; Noes Directors Hewitt and Steinkamp total 2; Absent none."
(e) The application thus went back to the Planning Commission from the City Board of Directors, the minutes of which, as above copied, reflected that the members of the Planning Commission had not reviewed this development plan, as submitted by Mr. Garner; and yet, on July 6, 1961 (the next day after the Board of Directors' action), the Planning Commission again denied the *120 Garner application, with assigned reasons similar to the nine heretofore copied.
(f) On July 17, 1961, the City Board of Directors finally voted to deny the Garner application for rezoning; and this suit was filed on July 21, 1961.
We have sketched the proceedings in considerable detail in order to show how the Planning Commission assigned first one, and then another alleged reason for refusing Garner's application; and in the trial in the Chancery Court, the City pursued the same tactics. For instance, it was practically conceded by some of the City's witnesses that the Garner property could not be used for "A" One-Family purposes; and the City sought to show that the best possible use of this property was "E-1" Quiet Business District, or "D" Apartment District. "E-1" Quiet Business, includes doctors' offices, clinics, insurance offices, or any office buildings; and "D" Apartment means a multiple apartment house.
When it was shown by competent witnesses that these uses for the property had been explored and found unfeasible and financially impossible, the City then claimed that the proposed shopping center would create a traffic hazard on Cantrell Road; and this testimony was in the face of testimony that property abutting on Cantrell Road for a distance of a quarter mile west (away from Little Rock) was already zoned as "F" Commercial, and that the property east of and adjacent to the Garner tract was likewise zoned as "F" Commercial; and the Garner tract was almost an island of residential property with "F" Commercial property lying to the east and west of it. It was furthermore shown that the Garner tract could not be used to advantage for residential property, and that the refusal to allow it to be rezoned as "F" Commercial for a shopping center would amount to depriving the landowner of the use of his property, which already bore a commercial valuation assessment on the tax books.
Without detailing all of the evidence, it is sufficient to say that it clearly preponderates in favor of the Chancery Decree, which finds:
"That the aforesaid property lies on and is adjacent to Highway No. 10, and that most of the property in the vicinity along said highway, both to the east and to the west of plaintiff's property, is either zoned or used `F' Commercial, or both; that said property is undesirable for residential purposes but that it has a high value for commercial purposes, and that its intended use for a community shopping center will not adversely affect the use or value of residential property in the vicinity.
"That the City of Little Rock * * in refusing to classify the (Garner) property for zoning purposes as `F' Commercial, is arbitrarily depriving the plaintiff of the use of his property."
The decree of the Chancery Court was correct and is in all things affirmed.
NOTES
[1] The Zoning Ordinance of the City of Little Rock lists thirteen "Districts", as follows: "A" One-Family District: "B" Residence District; "C" Two-Family District; "D" Apartment District; "E" Apartment District; "E-1" Quiet Business and Institutional District; "F" Commercial District; "G" Commercial District; "G-1" Commercial District; "H" Business District; "I" Light Industrial District; "J" Light Industrial District; and "K" Heavy Industrial District. The name of each lettered district tells the use to be made of property in such district.
[2] Some cases in which such allegations were made and sustained are:
City of Little Rock v. Henson, 220 Ark. 663, 249 S.W.2d 118; and City of Blytheville v. Lewis, 218 Ark. 83, 234 S.W.2d 374.
[3] This was all discussed in Herring v. Stannus, 169 Ark. 244, 275 S.W. 321, wherein we said:
"This was a question about which reasonable minds might differ, and did differ sharply as reflected by the testimony in the case, and the ordinance constituted the counsel as the tribunal to pass upon this question. * * * But this discretion, in so far as a discretion abides, is vested in the council, charged by law with the duty of passing on the question, and does not rest in the courts which review the counsel's action. North Little Rock v. Rose, 136 Ark. 298, 206 S.W. 449; Pierce Oil Corporation v. City of Hope, 127 Ark. 38, 191 S.W. 405.
"The question is not what a member of the court migh decide, if the question were submitted to him as a matter of discretion, but rather is whether it can be said that the council abused its discretion, and we may not say that such was the case, unless that fact clearly appears. This we are unable to say."
[4] In December 1960 the Planning Commission deferred action for a "staff study"; in February 1961 the study was filed but no action taken; and in March 1961 the Planning Commission voted to recommend denial of Mr. Garner's application.
[5] The minutes of the City Board of Directors contain the following regarding the Garner application:
"Upon question by members of the Board of Directors, Mr. Julius Breckling, Planner, stated that the Petition had been denied after it was determined from the Zoning Study and Report made by the Staff of the Little Rock Planning Commission of the area in general, that there was sufficient property zoned as Commercial property in this area which was not being utilized for this purpose. Mr. Joseph Kemp, City Attorney, advised members of the Board of Directors that in an earlier court suit in Supreme Court, it had been determined that under Zoning Laws in the State, if a particular piece of property is requested for rezoning to Commercial District, and said property is abutting or adjoining property used as business property, it can be extended and not be denied if proposed use of property is not obnoxious and conforms to other regulations. Upon question by Director Morse, as to what amount of a proposed business building on the property was leased, Mr. Garner indicated that he had signed leases for approximately seventy-five percent of the total square footage of the building. After lengthy discussion on the matter, Director Winburn moved, that the Petition of Mr. Garner for rezoning of this property to `F' Commercial District be referred to the Planning Commission for prompt reconsideration and study, so as not to delay applicant unnecessarily. This motion was seconded by Director Morse, and adopted. * * *"
[6] The nine reasons are quite interesting.
"1. This property is not adjacent to an established business district, nor has business been established on the lots zoned `F' Commercial adjacent to this property.
"2. The only satisfactory access presently available is from Highway No. 10, and the establishment of commercial uses on this property would create traffic hazards, during the busy time of the day in this vicinity. If future streets were extended to the South from this subdivision, heavy traffic would be extended into a most desirable residential district.
"3. The land is suitable for other uses and has a most desirable view.
"4. To rezone this property would result in an extension of strip zoning along Highway No. 10.
"5. The land slopes sharply to the rear and would not provide a one level commercial development, the commercial development would be encroaching, however, on a future desirable residential area.
"6. There is ample undeveloped `F' Commercial property along Highway No. 10 that is located in a much more logical place for the development of districts. This was reflected in the Highway No. 10 Zoning Commercial Study prepared by the staff and Metroplan earlier this year.
"7. This would be the establishment of a new business district with a total area much larger than the total business development in its vicinity.
"8. The applicant for this rezoning request made little effort to justify the rezoning of this property, nor was a market analyses submitted.
"9. The City Attorney's office has advised the Commission that the denial of this rezoning petition, if appealed to the court would be defensible." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623566/ | 360 S.W.2d 538 (1962)
Hiram W. KELLUM, Appellant,
v.
PACIFIC NATIONAL FIRE INS. COMPANY, Appellee.
No. 16027.
Court of Civil Appeals of Texas, Dallas.
July 27, 1962.
Rehearing Denied September 28, 1962.
*539 Fanning, Billings, Harper, Pierce & Gilley, Harlan Harper, Jr., Dallas, for appellant.
Touchstone, Bernays & Johnston, and Webber W. Beall, Jr., Dallas, for appellee.
WILLIAMS, Justice.
Declaratory judgment action by Pacific National Fire Ins. Co., as plaintiff, against Hiram W. Kellum and wife, Ruth Kellum, and J. B. Wilder, as defendants, wherein plaintiff sought a judgment declaring no liability under a comprehensive personal liability policy (being a part of a combination household policy) previously issued by plaintiff to Hiram W. Kellum and wife Ruth Kellum. Plaintiff alleged that on May 9th, 1957 it had issued a certain policy of insurance to Hiram W. Kellum and wife Ruth Kellum, effective from May 9th, 1957 to May 9th, 1960, containing coverage of *540 comprehensive personal liability with limitation of $10,000 for each occurrence and medical payment limited to $250 for each person. It was further alleged that on September 8th, 1959 Hiram W. Kellum and J. D. Wilder were on a hunting trip during which time a shotgun was discharged causing personal injuries to Wilder under such circumstances as would create legal liability under the policy issued in favor of Kellum. Plaintiff charged that the first notice it received concerning this occurrence was an oral notice about July 12th, 1960 and that the first written notice was given by Kellum on or about September 7th, 1960. The policy of insurance provided, as a condition precedent to coverage:
"(f) NOTICE OF OCCURRENCE: When an occurrence takes place written notice shall be given by or on behalf of the insured to this company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the occurrence, the names and address of the injured and the available witnesses."
Plaintiff alleged that defendant Kellum breached the provisions of the policy with reference to giving notice "as soon as practicable" and that a claim had been asserted under said policy of insurance growing out of the occurrence in question so that the court was requested to declare that the policy was of no force and effect by virtue of said alleged breach.
Defendants, Kellum and wife, answered with a general denial, followed by a plea that they had given written notice of the injury "as soon as practicable". Thereafter plaintiff filed its motion for summary judgment, supported by affidavit of an employee and representative, C. L. Hill. Also attached to the motion for summary judgment was a copy of the insurance policy in question, containing the provision copied above. Defendants, Kellum and wife, filed an answer to the motion for summary judgment consisting mainly of a statement by Kellum that he did not know that his insurance policy covered the occurrence in question and that as soon as he became aware of the fact that such policy did afford coverage he did notify the insurance company. No affidavits or other extrinsic evidence was filed by Kellum and wife in opposition to the motion for summary judgment.
Upon hearing, the trial court sustained the motion for summary judgment, holding no liability on the part of the plaintiff. While notice of appeal was given by all three defendants, only one defendant, Hiram W. Kellum, has filed an appeal bond and thereby perfected an appeal to this court.
By a plethora of points, many being too general to be considered, appellant, Kellum, assails the action of the trial court in sustaining the motion for summary judgment.
Appellant's point, complaining of the failure of the trial court to make findings of fact and conclusions of law at his request, is without merit. This is a summary judgment action wherein no facts are decided. In such a case the court determines, as a matter of law, whether there are any fact issues to be decided. Therefore, there was no obligation on the part of the trial judge to file findings of fact and conclusions of law. Riemenschneider v. Missouri Pacific Railroad Company, Tex.Civ. App., 316 S.W.2d 949; Rolfe v. Swearingen et al., Tex.Civ.App., 241 S.W.2d 236; Quarels v. Traders & General Ins. Co., Tex.Civ.App., 340 S.W.2d 545.
Appellant complains of the failure of the court to sustain defendant Wilder's exceptions contained in his answer to the plaintiff's motion for summary judgment. This point is without merit for several reasons. In the first place defendant Wilder has not perfected an appeal to this Court. Also since the record is devoid of any *541 showing that such special exceptions were ever called to the court's attention, same were waived. Lozano v. Kazen, Tex.Civ.App., 313 S.W.2d 894; Tex.Jur.2d Vol. 3, p. 647, § 393.
Appellant contends that the court erred in rendering summary judgment in that the affidavit of C. L. Hill, in support of the motion is insufficient and further contains hearsay matters which would not have been admissible in evidence. An examination of the affidavit of C. L. Hill reveals that he was an employee and representative of Pacific Nat. Fire Ins. Co., and was cognizant of the facts stated in the affidavit. Rule 166-A(e) Texas Rules Civ.Proc. provides that supporting affidavits shall be made on personal knowledge and show affirmatively that the affiant is competent to testify to the matters stated in said affidavit. We believe that Hill's affidavit meets all the requirements. Womack v. Allstate Ins. Co., Tex.Civ.App., 286 S.W.2d 308, reversed on other grounds, 156 Tex. 467, 296 S.W.2d 233. It is true that Hill's affidavit contains certain conclusions and other matters that would probably be inadmissible in evidence upon the trial of the case. However, the material facts, i. e., those relating to the issuance of the policy, and its contents; the first receipt of oral notice on July 12th, 1960; and the first written notice received by the company on September 7th, 1960, are clearly demonstrated and would be admissible if testified to by Hill on the trial of the case. The fact that Hill's affidavit contains both admissible and inadmissible matters does not render the affidavit entirely void. Farmers & Merchants, etc. v. City of Dallas, Tex.Civ.App., 335 S.W.2d 854; Bogert v. South Pac. Co., 2 Cir., 285 F. 46. It is to be presumed from the recitations contained in the judgment in this case, that the trial court correctly received sufficient legal evidence to justify his judgment and also applied the applicable law thereto. McFarland v. Connally, Tex.Civ.App., 252 S.W.2d 486; Reese v. Davittle et al., Tex. Civ.App., 255 S.W.2d 1015; Burnett v. Cory Corp., Tex.Civ.App., 352 S.W.2d 502.
Appellant next contends, without citing supporting authority, that an issue of fact was presented by appellee's motion for summary judgment and appellant's general denial. The motion for summary judgment was supported by the affidavit of C. L. Hill, together with attachments thereto. There was a general denial in the first amended original answer of Kellum. That a mere general denial in a case of this kind, is insufficient to create an issue of fact has been held by this and other courts on many occasions. Sparkman v. McWhirter, Tex. Civ.App., 263 S.W.2d 832; Sessions Co. v. Sheaffer Pen Co., Tex.Civ.App., 344 S.W.2d 180; Schmidt v. Kuper, Tex.Civ.App., 324 S.W.2d 307, reversed on other grounds, 161 Tex. 189, 338 S.W.2d 948; Allen v. Western Alliance Ins. Co. (Tex.) 349 S.W.2d 590; McDonald, "Texas Civil Practice" § 17.26, p. 1379; Benson v. Harrell, Tex.Civ.App., 324 S.W.2d 620.
We come now to a consideration of what we consider the gravamen of appellant's appeal. Was there an issue of fact presented by the pleadings, motions and affidavits before the Court? The burden of proof was definitely upon appellee to establish no genuine issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. Appellee did this by introducing extrinsic evidence in support of its petition and motion for summary judgment, same demonstrating facts which would justify the granting of an instructed verdict had the case proceeded to trial on its merits. In order to defeat the motion it then was incumbent upon appellant to present more than pleadings. It became necessary for him to counter with extrinsic evidence, as stated by the Supreme Court in Gulf C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492:
"When motion for summary judgment is supported by affidavits, depositions, stipulations or other extrinsic evidence sufficient on its face to establish facts, which, if proven at trial, would entitle the movant to an instructed verdict, *542 opponent must show opposing evidentiary data which will raise an issue as to a material fact or must justify his inability to do so and seek appropriate relief under Rule subdivision. Rules of Civil Procedure, rule 166-A(f)."
We are of the opinion that the facts developed by appellee were sufficient to demonstrate that, as a matter of law, the provisions of the insurance policy relating to the notice had been breached. There are no denials concerning the provisions of the policy concerning notice, nor is there any denial of the fact that notice was not given until approximately one year after the occurrence of the accident.
Our Supreme Court has had occasion to pass upon and construe the identical provisions of the insurance policy in question. In the recent case of Allen v. Western Alliance Ins. Co., Tex.Civ.App., 343 S.W.2d 765 notice was not given until 107 days after the accident. In construing an identical provision concerning notice "as soon as practicable" the Supreme Court, 349 S.W.2d 590, 594, said:
"We hold that as a matter of law the failure to give notice for 107 days, under the circumstances of this case, did not constitute the giving of notice "as soon as practicable" after the accident."
Again in the case of Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95, our Supreme Court passed upon the identical question wherein notice was delayed for a period of 32 days. The court held that such delay was not "as soon as practicable" as a matter of law.
In Trinity Universal Ins. Co. v. Weems, Tex.Civ.App., 326 S.W.2d 302, the Court of Civil Appeals at Austin, held that failure to give notice of the accident for three and one-half months was not "as soon as practicable" as a matter of law.
In National Surety Corp. v. Diggs, Tex. Civ.App., 272 S.W.2d 604, the Court of Civil Appeals at Fort Worth held that delay of 104 days in reporting the accident was, as a matter of law, not "as soon as practicable."
That failure to give notice "as soon as practicable" is a defense under a policy was decided in New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56, wherein our Supreme Court held that the failure of the insured to give notice "as soon as practicable" is a valid defense under the policy, regardless of whether any loss or damage to the insurer resulted from the delay.
Appellant's efforts in unsworn answer and other pleadings to excuse his failure to notify the insurance company because of lack of knowledge of the policy coverage and his mistaken belief that the injury was not insured against is not sufficient to defeat the judgment rendered in this case. It is undisputed that appellant Kellum had possession of the policy and ample opportunity to read the same and familiarize himself with the terms thereof. Lack of knowledge of coverage and lack of knowledge that a claim could be made are not good excuses, as a matter of law, for complying with the provisions of the policy concerning notice. Jefferson Standard Life Ins. Co. v. Williams, Tex.Civ.App., 62 S.W.2d 661, writ ref.; Trinity Universal Co. v. Weems, Tex.Civ.App., 326 S.W.2d 302; Allstate Ins. Co. v. Hoffman, 21 Ill. App. 2d 314, 158 N.E.2d 428; Segal v. The Aetna Casualty & Surety Co., 337 Mass. 195, 148 N.E.2d 659; Acosta v. Roach, 12 Misc. 2d 494, 172 N.Y.S.2d 116; Gluck v. London & Lancashire, Sup., 134 N.Y.S.2d 889; Campbell v. Continental Casualty Co. of Chicago, 8 Cir., 170 F.2d 669; Dixie Furn. Co. v. Central Surety & Ins. Co., D. C., 173 F. Supp. 862, affirmed, 8 Cir., 272 F.2d 190.
We have carefully considered all of appellant's points and finding same to be without merit, they are overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623578/ | 360 S.W.2d 458 (1962)
CITY OF NASHVILLE
v.
STATE BOARD OF EQUALIZATION et al.
Supreme Court of Tennessee.
September 7, 1962.
Rehearing Denied October 4, 1962.
*459 Robert H. Jennings, Jr., City Atty., Frank S. King, Jr., Special Counsel, Nashville, for plaintiff.
George F. McCanless, Atty. Gen., Milton P. Rice, David M. Pack, Asst. Attys. Gen., Nashville, for State Board of Equalization.
Reber Boult, Edwin F. Hunt and Val Sanford, Nashville, for Baptist Sunday School Bd.
FELTS, Justice.
The Sunday School Board (the Board) of the Southern Baptist Convention owns a large amount of real estate in the City of Nashville. The City assessed this real estate for ad valorem taxation under Tennessee Code Annotated (T.C.A.) § 67-501, which requires that "all property," except such as is declared to be exempt, "shall be assessed for taxation for state, county and municipal purposes."
The Board protested the assessments and claims its properties are exempt from taxation under T.C.A. § 67-502(2) (quoted pp. 14, 16, infra), which exempts the real estate of a "religious, charitable, scientific or educational institution," when occupied and used by such institution "exclusively for carrying out thereupon one (1) or more of the purposes" for which it "was created"; but any part of its property not so exclusively used for such purpose shall be taxed to the extent of its value.
The Board's claim of exemption was upheld by the State Board of Equalization. Asserting this holding was illegal and in excess of the State Board's jurisdiction, the City filed a petition for certiorari in the Chancery Court. That Court dismissed the petition and sustained the State Board's holding. The Court of Appeals affirmed the Chancellor's decree. Because of the importance of the question involved, we granted certiorari and the case has been heard here.
There is no dispute as to the facts, the only evidence being that adduced by the Board. The Board is a "religious institution". It was organized in 1921 as a nonprofit, general welfare corporation under the laws of Tennessee. Its corporate name is "The Sunday School Board of the Southern *460 Baptist Convention". The purposes for which it was created and exists, as stated in its charter, are:
"the establishment, support, and maintenance of any Sunday School undertaking on the part of said Southern Baptist Convention, and to print or purchase and disseminate, by gift or sale, religious literature for the purpose of the propagation of the Gospel and the advancement and spread of the religious faith which said Southern Baptist Convention is engaged in advancing or promulgating."
The Board's headquarters or situs is in Nashville. It operates a publishing house and a bookstore here and bookstores elsewhere. Its principal activities are the publication and sale of religious materials or literature and books to the members of the churches and to the churches in the Southern Baptist Convention throughout the South; and it also carries on service programs for church conventions and for the training of people for the work of the Baptist churches.
From its operations the Board receives a gross income of nearly $2,000,000.00 per month, it employs some 900 employes, and its net assets on July 31, 1960, were $28,703,920.00. Among its "fixed assets" listed are: "Land and land improvements $2,318,908" and "Buildings and improvements $14,871,021" (balance sheet, Ex. 2, Dr. Sullivan). The Board owns 16 parcels of real estate in the City of Nashville.
The City in 1960 assessed this real estate for taxation at a total assessment of $5,083,600.00. Four of these parcels, assessed at a total of $287,400.00, were not occupied by the Board but were leased by it to other persons for purposes of their own businesses, such as a parking lot, filling station, etc. It is conceded that these parcels are not exempt but are to be taxed ad valorem for state, county, and city purposes.
As to all of the other parcels, assessed at a total of $4,796,200.00, the Board protested these assessments and claimed these properties are exempt. It appears that upon the hearing before the State Board, the City conceded that these properties were being occupied and so used by the Board as to be exempt, except certain parts of them which were being used by the Board for the purposes of operating a restaurant or cafeteria, a snack bar, and parking lots for parking or storing automobiles.
Upon one of these parcels the Board has a large building, its "Administration Building". Part of this building is used by the Board for the restaurant or cafeteria for its employes. The floor space of the part so used is 2610 square feet, that of the whole building being 133,336 square feet. The City had assessed this building as a whole at $1,116,300.00, but conceding all of it to be exempt except this 2610 square feet, the City asked the State Board to value it at $21,800.00.
Upon another of these parcels the Board has another large building, its "Operations Building." It uses part of this building for the operation of a snack bar a place with machines which dispense hot soups, coffee, eat-a-snacks, etc., upon deposit of coins. The total area of this building (not counting its roof used for parking automobiles) is 321,650 square feet, and that of the part used for the snack bar is 4176 square feet. The City asked the State Board to value this part at $28,000.00.
The Board owns five other parcels which it uses as parking lots for automobiles of its employees. The total area of these five lots is 128,000 square feet and accommodates some 300 automobiles. The Board also uses the roof of its Operations Building for parking of automobiles of its employees, this space accommodating 365 automobiles. It issues parking permits to its employees, and has an employee at each lot to supervise the parking and to keep other persons from parking there.
Before the State Board, the City contended that these parts of the Board's properties, used by it for the parking lots, restaurant, and snack bar, were not being used for any *461 of its charter purposes, but for other and different purposes, and so were not exempt, but should be separately taxed to the extent of their value, which the City asked the Board to fix at $704,000.00.
The State Board held that these parts of the properties so used for other purposes (parking lots, cafeteria, and snack bar) were exempt from taxation: that they were being used "either purely and exclusively for religious purposes or for purposes so close thereto as to come within the exemption provided by the statute" (italics ours).
The Chancellor concluded that "the operation of these units" were "fringe benefits for the employees," which tended to promote the efficient operation of the Board, resting his conclusion upon these facts found by him:
"The Court takes judicial knowledge that many big concerns provide nonprofit cafeterias for convenience of their employees. The `coffee break at the snack bar' is also a well established fact in business.
"The furnishing of parking space, cafeterias and snack bars are in a sense `fringe benefits' for the employees, all of which makes for more satisfied, efficient, and permanent employees."
The Court of Appeals took the same view. It held our present exemption Act (ch. 47, 1935, now T.C.A. § 67-502(2)) made no change in the pre-existing acts (of 1883, 1889, 1899, 1907), but its "relevant language was substantially the same" as those acts, and its interpretation was controlled by our cases interpreting those former acts, giving them a liberal construction in favor of the exemption.
And so construing this Act, the Court held that even though these parts of the Board's properties were being used for the other purposes stated, they were nonetheless to be regarded as being used exclusively for religious purposes, and exempt from taxation, because their use for such other purposes was incidental to their primary use for religious purposes (citing State ex rel. v. Waggoner, 162 Tenn. 172, 35 S.W.2d 389).
This holding was erroneous, the City insists. It argues that this act displaced the former acts, narrowed the scope of tax exemption, and the cases construing those acts are not relevant in interpreting this act; that the Board's use of its properties for the other purposes stated (parking lots, restaurant, and snack bar) is a use not for a religious purpose, but for business purposes, and its claim of exemption for the properties so used can not be maintained under this act.
In debating these questions, learned counsel have discussed this act, together with its constitutional background, the former acts and our cases under them, the public policy of the State, and the relevant rules of statutory construction. So, a consideration of these matters seems appropriate to an understanding and decision of the questions in this case.
It is a fundamental rule that all property shall be taxed and bear its just share of the cost of government, and no property shall escape this common burden, unless it has been duly exempted by organic or statute law; and that one claiming such exemption has the burden of showing his right to it. 2 Cooley on Taxation (4th Ed.) sec. 672; 51 Am.Jur., Taxation, sec. 524; American Bemberg Corp. v. Elizabethton, 180 Tenn. 373, 378, 175 S.W.2d 535; American Nat. B. & T. Co. of Chatta. v. McFarland, 209 Tenn. 263, 352 S.W.2d 441, 443, 444.
"Taxes are the life blood of civil government. The right of taxation is an attribute of sovereignty. It is inherent in the state, and essential to the perpetuity of its institutions; consequently he who claims exemption must justify his claim by the clearest grant of organic or statute law." Knoxville & O.R. Co. v. Harris, 99 Tenn. 684, 693, 43 S.W. 115, 53 L.R.A. 921.
*462 "It is the policy of the state, and but justice between its citizens, that all property shall be taxed, and that no property shall escape this common burden, unless it comes fairly within the exemption; and it is incumbent on the plaintiff [claiming exemption for its property] to show that it comes within the exempting clauses of the constitution and statute." (M.E. Church, South v. Hinton (1892), 92 Tenn. 188, 21 S.W. 321, 19 L.R.A. 289). State ex rel v. Waggoner, 162 Tenn. 172, 176, 35 S.W.2d 389.
Our Constitution (1870) provides (Art. 2, sec. 28[1]) that "all property" shall be taxed, but "the Legislature may except" such as may be held by the State, etc., and "such as may be held and used for purposes purely religious, charitable, scientific, literary, or educational." (Italics ours) Thus, this provision of our Constitution does not grant any tax exemption, does not establish any public policy of exemption, but merely authorizes, permits, the Legislature to grant exemption in the cases specified.
In 1883 the Legislature (by Acts 1883, ch. 105) exempted "all property belonging to any religious, charitable, scientific, literary, or educational institution, and actually used for the purposes for which such institution was created." (Italics ours) Under that act arose the case of State v. Fisk University (1888), 87 Tenn. 233, 10 S.W. 284, cited and relied on by the Board and the court below.
That case involved not a religious, but an educational, institution. Fisk University had purchased land lying between its two main buildings with the idea of erecting other buildings on such land as soon as funds could be raised therefor. While the land was thus vacant, it was used by the University for the growing of vegetables and corn for use in the mess hall to feed students living in its dormitory on the campus.
The Court held that since the traditional idea of a university, as an educational institution, includes buildings where students are housed, fed and instructed, and since a mess hall or dining room is a customary and essential part of such institution, the use of this vacant land for the growing of vegetables to supply the mess room for these students, was a use for a purpose purely educational, and the land so used was exempt from taxation under this Act of 1883.
The Court emphasized that this was an educational institution, quoted that provision of our Constitution (Art. 11, sec. 12[2]) making it the duty of the General Assembly "to cherish literature and science", and pointed out that this provision, with our statutes respecting public schools, established education as a State policy; and the Court said that since this educational institution aided in carrying out that policy, the legislative intention of that act was to be interpreted "from the language used, and from the policy of the state with reference to such institutions."
The next case cited by the Board and by the court below is M.E. Church, South v. Hinton (1892), supra. It arose under the Act of 1889 (ch. 96), which exempted property owned by a religious, charitable, or educational institution and "used exclusively *463 for the purpose for which said institution was created" (Italics ours).
That case involved not an educational institution (not a school or university) but an institution religious and charitable religious, in that it was under the control of the Church; and charitable, in that its profits were to be used for a named class of beneficiaries (superannuated preachers, etc.). It was the "Book Agents of the M.E. Church, South," a corporation chartered by special act of the Legislature (1855) and put under control of the Church.
Its principal activity was that of a publishing house and bookstore of the Church. It also used its property in "secular business" job printing, etc., in competition with other like business that paid taxes. A majority of the Court held that its property, though used for purposes of business, was still "used exclusively" for religious and charitable purposes, because the profits of the business were used for such purposes. It was there said:
"Even if we concede that the work done could not strictly be called religious, still the proceeds therefrom are wholly devoted to the charitable purposes contemplated in the creation of the institution, and the work done cannot be considered immoral, or at variance with the religious feature of the institution."
There was, however, a vigorous dissent by Justice Snodgrass, expressing the view, which has since been widely accepted, that the intent of the Constitution and of the act was to exempt only such of the institution's property as was physically occupied by it and used directly for its necessary purposes, and not property used for other purposes or business from which it derived a consequential benefit; that the exemption did not depend on how the profits from such business might be ultimately used; if so, he said:
"any business enterprise may be organized, and purporting to be an agency or auxiliary of a religious, literary, educational, scientific, or charitable institution, run, free from taxation, in competition with other like institutions; and so, finally, all business in the state might be run, as competition by taxed enterprises would be driven out." (Italics ours) (92 Tenn. 205, 21 S.W. 325).
The next case involved an educational institution. It was Vanderbilt University v. Cheney (1905), 116 Tenn. 259, 94 S.W. 90. It arose under the Act of 1899 (ch. 435), which exempted the property of any religious, charitable, or educational institution, "when used exclusively for the purpose for which said institution was created," with the proviso that all of such property used in "secular business" competing with a like business that pays taxes to the State, shall be taxed * * *."
There, the University owned an apartment house and an office building in uptown Nashville, which it rented out in competition with other like taxpaying property. It was held, however, that such renting of the property was not a use of it in "secular business competing with a like business that pays taxes to the State," but was for a charter purpose of the institution, since it used such rents and profits for that purpose.
It seems the basis of this holding, that the University's renting of its properties did not constitute a use of them in "secular business" competing with other like taxpaying property, was that the renting of property had not been declared a business and taxed as a privilege. The Court said: "It is conceded that no privilege or tax is imposed upon private owners for merely renting out their property * * *." (Italics ours).
Our next revenue act was the Act of 1907 (ch. 602). It was a complete, comprehensive act covering the whole subject. Its section (2) contained a provision for tax exemption, which was expressed in the same language as that of the 1899 Act above referred to. This provision was likewise *464 re-enacted without change as sub-section (2) of section 1085 of the Code of 1932.
The scope of exemption, as applied in the Cheney and Hinton cases, was somewhat narrowed in Ward Seminary v. City Council (1913), 129 Tenn. 412, 167 S.W. 113, which involved the 1907 Act. There, an educational institution, a corporation organized for profit, not general welfare, owned several pieces of real estate, some used in carrying on the school and some not so used but rented to others for business purposes. It was held that the property used for the purpose of the school was exempt, but that which had been rented for business purposes was not exempt.
There, Chief Justice Green said that the Fisk, Hinton, and Cheney cases had held that certain income-bearing property, though "not actually used for religious, charitable or educational purposes," was exempt, upon the theory that the income had been used for such purposes; but that in those cases the property was owned by corporations not for profit but for general welfare; and that the rule applied to them would not be extended to a corporation for profit. He said:
"The doctrine of Methodist Episcopal Church, South, v. Hinton, and of other cases above cited, was announced by divided courts, and has been subjected to criticism. It certainly will not be extended. * * *" (129 Tenn. 421, 167 S.W. 115). For further criticism of the Hinton case, see Zollman American Law of Charities (1924) section 724.
The tax exemption was further narrowed in State ex rel. v. Waggoner (1931), 162 Tenn. 172, 35 S.W.2d 389. There, Ward-Belmont College owned a house, located just across the street from its campus, which it furnished "rent-free" as a residence to its vice-president and business manager. It claimed exemption for the house on the ground that it was being used primarily for an educational purpose and only incidentally as a home of the school's employee. The Court denied this claim.
The tax exemption under the Act of 1907 (1932 Code sec. 1085(2)) was again restricted in State et al v. Rowan et al. (1937), 171 Tenn. 612, 106 S.W.2d 861. There, the University Club, a non-profit general welfare corporation, claimed its property was exempt, because it was used primarily for the purpose of education and only incidentally for social and athletic activities. The Court, however (opinion by Chief Justice Green) denied this claim.
Thus, it is seen that the scope of tax exemption of property of such institutions has been steadily narrowed by decisions of this Court under our successive revenue acts, including the Act of 1907 (1932 Code sec. 1085(2)); and that Act was expressly repealed, and the exemption further restricted, by the Act of 1935 (ch. 47, now T.C.A. § 67-502(2)).
This change in the law was pointed out in Baptist Memorial Hospital v. Couillens (1940), 176 Tenn. 300, 140 S.W.2d 1088. There, the Court, in determining the extent of the immunity of a charitable institution's property from liability for its torts, said it should be the same as its exemption from taxation, and thus the Court was called on to consider the scope of such exemption. In this connection, the Court said:
"It is pertinent to observe that the public policy of this State in regard to tax exemption of such institutions has undergone a change, evidenced by Court constructions of our older statutes, and more emphatically, by recent legislative action."
And the Court referred to the cases of State ex rel. v. Waggoner, supra, and State et al. v. Rowan et al., supra, as cases "in which further emphasis is put on the limitations upon exemptions under our laws. A tendency has been shown to tighten, rather than expand, the scope of our tax exemptions."
The Court further said that in 1935, "obviously in response to a growing public sentiment against abuse of our exemptions of *465 educational and charitable institutions, the Legislature enacted Chapter 47, Pub.Acts of 1935, re-defining, limiting, and restricting the exemption * * *" (italics ours) (176 Tenn. 311, 140 S.W.2d 1092).
As above stated, our 1907 exemption act (1932 Code sec. 1085 (2)) was expressly repealed by the Act of 1935 (ch. 47, sec. 1, p. 131), by striking out its language and substituting new and different language. This 1935 Act still stands as our statute law, since it was re-enacted, without change, in 1950 Code Supp. (sec. 1085(2)) and again as T.C.A. § 67-502(2).
So, in view of the change in our public policy above noted, and in view of the fact that our former exemption acts have been displaced by the 1935 Act (T.C.A. § 67-502 (2)), "redefining, limiting and restricting the exemption," we think our earlier cases under those former acts do not control in interpreting this Act, but it is to be interpreted upon its own words, construed in the light of our public policy. The pertinent part of this Act is as follows:
"67-502. The property herein enumerated shall be exempt from taxation: * * *
"(2) The real estate owned by any religious, charitable, scientific or educational institution and occupied by such institution or its officers exclusively for carrying out thereupon one (1) or more of the purposes for which said institution was created or exists, and the personal property of any such institution used exclusively for one (1) or more of the purposes for which such institution was created or exists.
"But the property of such institution shall not be exempt if the owner, or any stockholder, officer, member or employee of such institution shall receive or may be lawfully entitled to receive any pecuniary profit from the operation of that property in competition with like property owned by others which is not exempt, except reasonable compensation for services in effecting one (1) or more of such purposes, or as proper beneficiaries of its strictly religious, charitable, scientific or educational purposes; or if the organization thereof for any such avowed purpose be a guise or pretense for directly or indirectly making any other pecuniary profit for such institution, or for any of its members or employees, or if it be not in good faith organized or conducted exclusively for one (1) or more of said purposes. The real property of any such institution not so used exclusively for carrying out thereupon one (1) or more of such purposes, but leased or otherwise used for other purposes, whether the income received therefrom be used for one (1) or more of such purposes or not, shall not be exempt; but if a portion only of any lot or building of any such institution is used exclusively for carrying out thereupon one (1) or more of such purpose of such institution, then such lot or building shall be so exempt only to the extent of the value of the portion so used, and the remaining or other portion, to the extent of the value of such remaining or other portion, shall be subject to taxation" (italics ours).
Thus, the first paragraph of subsection (2) above clearly restricts the exemption of such an institution's real estate to that "occupied" by it or its officers "exclusively for carrying out thereupon one (1) or more of the purposes for which said institution was created or exists." Its real estate not so occupied exclusively for such purpose is not exempt.
The second paragraph of subsection (2) above further spells out this restriction by specifying these four cases in which such property shall not be exempt:
(1) Where anyone receives, or may be entitled to receive, "any pecuniary profit from the operations of that property in competition with like property owned by others which is not exempt" *466 (with the exceptions stated, not here material).
(2) Where the organization of such an institution "for any such avowed purpose be a guise or pretense for directly or indirectly making any other pecuniary profit for such institution, or for any of its members or employees."
(3) "The real property of any such institution not so used exclusively for carrying out thereupon one (1) or more of such purposes, but leased or otherwise used for other purposes, whether the income received therefrom be used for one (1) or more of such purposes or not, shall not be exempt" (italics ours).
(4) "If a portion only of any lot or building of any such institution is used exclusively for carrying out thereupon one (1) or more of such purposes of such institution, then such lot or building shall be so exempt only to the extent of the value of the portion so used, and the remaining or other portion, to the extent of the value of such remaining or other portion, shall be subject to taxation" (italics ours).
Thus, from the plain meaning of this language, it is quite clear that this Act excepts and exempts real estate of such an institution from the common burden of taxation only if and when such real estate
(1) is "occupied by such institution or its officers exclusively for carrying out thereupon one (1) or more of the purposes" of its charter, and
(2) is being "used exclusively" for such purpose, and any part of such real estate "not so used exclusively" for such purpose, "but leased or otherwise used for other purposes," shall be taxed to the extent of its value.
For the Board, however, it is urged that this Act made no change in the pre-existing law as to "property occupied by such institution," but only as to its property "leased" to others, or its investment property, which had been held exempt, not because such property had been used for an exempt purpose, but because its income had been; and that this Act took away the exemption of only that class of property.
To support this, the Board invokes the rule of ejusdem generis, which, in substance, is that wherein a statute special words limiting its scope are followed by general words, such general words will ordinarily be limited to things of the same class as that denoted by the special words. State v. Grosvenor, 149 Tenn. 158, 163, 258 S.W. 140; City of Knoxville v. Brown, 195 Tenn. 501, 508-510, 260 S.W.2d 264.
And it is argued that, under this rule, in the above phrase, "but leased or otherwise used for other purposes" ((3) supra), the general words "otherwise used for other purposes" should be limited to the class indicated by the special word "leased," and should be held to refer only to the institution's "leased" or investment property, and not to any of its property used otherwise than exclusively for one of its charter purposes.
The rule ejusdem generis is not a rule of law but merely a rule of construction to aid in reaching the intent of a statute that is doubtful or ambiguous. Where, as here, the Act is free from doubt or ambiguity and its intent clear, there is no room to resort to any auxiliary rule of construction. State ex rel. Weldon v. Thomason, 142 Tenn. 527, 539, 221 S.W. 491; Gilmore v. Continental Casualty Co., 188 Tenn. 588, 591, 221 S.W.2d 814; Hickman v. Wright, 141 Tenn. 412, 418, 210 S.W. 447.
As said above, the plain intent of this Act is to exempt such an institution's real estate only when it is both (1) "occupied" and (2) "used exclusively" by the institution for one of its charter purposes; and the exemption is denied not only to property "leased" by it to others, but also to property occupied by it but "not used exclusively" for a charter purpose.
*467 As above stated, the Board is a non-profit general welfare corporation organized for the purposes stated in its charter (p. 459, supra), which are the support of Sunday Schools in the Churches of the Southern Baptist Convention, the printing and sale of religious literature to them, and the spread of their religious faith; that is, the Board is a religious institution and its charter purposes are religious purposes.
We think, however, it can hardly be said that the Board's use of these parts of its real estate, as above described, for the operation of its parking lots, cafeteria, and snack bar, is a use "for purposes purely religious," as contemplated in our Constitution (Art. 2, sec. 28), or a use "exclusively" for a religious purpose of its charter, as contemplated by the Act of 1935.
It is emphasized by the Board that its operation of the parking lots, restaurant, and snack bar, is for its employees only, not for profit, and not commercial. Nevertheless, such operations are not religious activities, but are secular business enterprises, carried on in competition with other like businesses that pay taxes to the state, the county, and the city; and such businesses are taxed as a privilege.
Our statute (T.C.A. § 67-4203) imposes a privilege tax upon the operation of such a restaurant or cafeteria as that here operated by the Board, and measures the amount of the tax by the number of seats, based on a population classification of the county in which the business is run. The part of the statute here pertinent is as follows:
"General welfare corporations, operating restaurants, cafeterias, etc., for members only, and persons operating restaurants, cafeterias, etc., for their employees only and not for profit, shall pay a tax for each seat provided by chair, stool, bench and otherwise, of twenty-five cents (25¢) per seat" (67-4203, Item 92).
Likewise, the operation of parking lots or places for parking or storing of automobiles is not a religious undertaking, but a secular business taxed as a privilege by the state, the county, and the city (T.C.A. §§ 67-4201, 67-4202, 67-4203, Item 8(j)). The pertinent parts of Item 8(j) are as follows:
"(j) AUTOMOBILE STORAGE GARAGES OR LOTS. Each person operating or conducting a garage, parking lot or other place of business for the purpose of storing or parking automobiles shall pay a privilege tax as follows: (here follows schedule).
* * * * * *
"Provided, however, that where the places of business for the purpose of storing or parking automobiles are conducted on open-air lots and not in buildings or garages, the tax shall be only two-thirds (2/3) of the above amounts as classified by population" (T.C.A. Supp. § 67-4203, Item 8(j)).
So, its seems clear that the parts of the Board's real estate used by it for purposes of these businesses, in competition with other like tax-paying businesses, cannot, under the plain terms of this Act, be said to be "used exclusively" for a religious purpose as authorized by its charter (Cf. State ex rel. v. Southern Pub. Ass'n, 169 Tenn. 257, 84 S.W.2d 580, 100 A.L.R. 576), and are not exempt, but should bear their just share of the common burden of taxation.
For the Board, it is argued that its operation of these facilities (parking lots, etc.), for its employees makes them more efficient and thus promotes the efficiency of the Board's operation in its religious work; and that these parts of its property, though used for such other purposes, should, nevertheless, be held to be "used exclusively" for religious purposes, because their use for the other purposes is only incidental to their primary use for religious purposes.
This argument proceeds upon the premise that a religious institution's property may be used for two purposes, one business *468 and the other religious; that because the business operation results in benefits to the religious purpose, the former is to be called incidental, and the latter primary, for the purpose of bringing the whole operation of the property within our exemption from taxation.
This contention overlooks the terms of our act and the change of our public policy of tax exemption, above noted, and goes back for its support to our earlier cases of State v. Fisk University (1888), supra; and State ex rel. v. Waggoner (1931), supra, and like cases. But we think even those cases do not support the Board's contention in this case.
As we have seen, the use of the property in the Fisk case was a use for a purpose (supplying the mess hall) which was a traditional and an integral part of the carrying on of such an educational institution, and not, as here, a use for a secular business purpose outside the purposes stated in the Board's charter and in competition with other like businesses that pay taxes.
In the Waggoner case, as we have seen, the college owned a house near its campus which it furnished rentfree as a residence to its vice-president and general manager, and claimed exemption for the house upon the ground that it was being used primarily for an educational purpose and only incidentally as a home for its employee. The Court denied this claim of exemption.
There, the Court stated that counsel agreed that the school's property might "be regarded as used exclusively for educational purposes" if its primary use was for such purpose, even though its incidental use was for another purpose; that such had been the holding in cases where teachers or other employees had occupied houses of schools; that such cases could not easily be reconciled; and that such a judgment as to the use of property was "necessarily relative" (italics ours).
And, as said above, those cases under former acts are not controlling under this Act. We think that this Act does not recognize such a two-purpose use of a religious institution's property; that it exempts only property "occupied" and "used exclusively" by the institution for a purpose within its charter "property physically used in the work of the institution" (italics ours)[3]; and that the Act refers to the direct and immediate use of the property itself and not to any indirect and consequential benefit to be derived from its use. See Zollmann, American Law of Charities (1924), 488.
It may well be that the Board, like many other large business concerns, finds that its furnishing eating and parking facilities for employees makes them better satisfied and furthers its efficiency. The same would no doubt be true as to furnishing them many other "fringe benefits" of modern-day living; and if the Board may operate the parking lot and restaurant businesses tax-free, why may it not also operate other businesses tax-free, such as housing project, clothing store, automobile repair shop, etc., for its employees?
To sustain the Board's contention in this case, to hold that it may use its real estate for purposes of secular business enterprises, outside the purposes stated in its charter, with no relation to such purposes except the consequential benefits to be derived from such operation, would be in our opinion, to disregard our Act and our public policy of exemption.
Moreover it would open the way for religious institutions to acquire real estate tax-free and run thereon business enterprises *469 tax-free, in competition with other like tax-paying businesses, and would bring about the problems and the dangers envisioned 70 years ago by Justice Snodgrass (M.E. Church S. v. Hinton, supra, p. 463.)
It is a matter of current history, which the Court judicially knows, that during the last quarter of a century, the tax burdens of the individual taxpayer have grown increasingly heavier. The care and support of the poor and needy, formerly the work of charities, has been largely taken over by government, federal, state and municipal, and is carried on by means of public taxation; and our cities, with their tax sources largely pre-empted by the federal government, are constantly struggling to find new sources of revenue to meet the growing needs for police and fire protection, schools, and social welfare.
The policy of tax exemption of religious institutions, established when they were struggling to get along, has enabled them, during the last quarter of a century, to acquire large real estate holdings and to accumulate great wealth; and many of them are engaged in operating various kinds of secular businesses tax-free, in competition with other like businesses that are taxed. This development creates inequities and endangers both the churches and the state.
This danger is recognized by many thoughtful leaders of the churches. For example, Dr. Eugene Carson Blake, former President of the National Council of Churches, and leader of the ecumenical movement, recently said: "`In view of their favored tax positions, with reasonably prudent management America's churches ought to be able to control the whole economy of the nation within the predictable future' (CHRISTIANITY TODAY, Aug. 3, 1959, issue)."[4]
That writer (Mr. Armstrong) asks whether, since the income from church-operated businesses is used for religious purposes, this is a reason for tax exemption; and in reply says: "Most church leaders say no. They are concerned by the frequent charge that tax exemptions are poorly-concealed forms of tax support for organized religion" (CHRISTIANITY TODAY (Oct. 13, 1961), p. 22).[5]
For many thoughtful churchmen, the question of tax exemption of church-operated businesses raises a question of moral principle. Says Dr. Blake, "We must seriously ask ourselves whether Christianity's lofty goals are not severely compromised by our tax exemptions."[6]
Referring to the privileged position of the churches by reason of tax exemption of their business operations, and to the fact that such exemption creates inequities which endanger the future of the churches of our nation, Dr. Blake says:
"It is obvious to any taxpayer that too much tax-exempt property creates serious problems for governments beset by a population explosion. Cities are struggling to find new sources of revenue to meet the growing needs for police and fire protection, schools, and social welfare.
"Since the biggest exemptions go to schools and government properties it *470 is clear that eliminating all religious exemptions would not solve the revenue problem. Nevertheless, if churches continue to accumulate land and business, the problem could become explosive, Revolutionary expropriation of church properties was the solution resorted to in 16th-century England, 18th-century France, 19th-century Italy, and 20th-century Russia. Mexico still suffers social convulsions from such a seizure.
"Hard-pressed governments sooner or later will turn on wealthy churches, and a wave of anticlericalism and atheism always precedes the clash. Such feeling already is apparent in the U.S. It has not yet reached the dangerous stage, but it is growing steadily" (TOGETHER, supra, p. 29).
Such considerations as these, we think, serve to reinforce our change of public policy, as above noted, and our act limiting tax exemptions of such institution's property to that "occupied" and "used exclusively" by it for a purpose within its charter "property physically used in the work of the institution," and not property used for a business purpose outside its charter.
The Board relies upon Sunday School Board v. Evans, 192 Tenn. 495, 241 S.W.2d 543, as supporting its claim that these parts of its real estate used by it in the business of operating parking lots, restaurant and snack bar, should be held exempt from taxation under our 1935 Act.
That case is not in point. It is true it was a claim of tax exemption by this same claimant not, however, under this 1935 Act, but a claim of exemption under another and different act our Sales and Use Tax Act (Acts 1949, Ch. 110, T.C.A. § 67-3014), exempting religious, educational, and charitable institutions from the sales or use tax on tangible personal property sold to them. So, that case affords no support to the Board's claim here.
The argument is made that the tax assessors over a long period have not assessed the properties of the Board, or of other like institutions, for taxation under this 1935 Act; and that this administrative construction of the officers charged with the enforcement of the Act is entitled to great consideration in ascertaining its legislative intent.
This rule as to the administrative construction of a statute applies only where the statute is doubtful or ambiguous. Price-Bass Co. v. McCabe, 161 Tenn. 67, 29 S.W.2d 249; City of Nashville v. Gibson County, 201 Tenn. 216, 227, 298 S.W.2d 540. It has no application to this Act which, as we have seen (supra, pp. 465, 466), is free from doubt or ambiguity, and its intent clear, without resort to any auxiliary rule of construction.
Learned counsel for the Board cite a number of cases from other states, but they frankly concede that such cases involved statutes different from ours and are of limited value in interpreting and applying our Act. Upon full consideration of those cases, we think none of them is applicable to this case, and that they do not require further discussion.
For these reasons, we think the decrees below were erroneous, and a decree will be entered here reversing them, sustaining the City's right to assess the parts of the Board's real estate used for business purposes, as above described, and remanding the case to the Chancery Court for further proceedings not inconsistent with this opinion. The costs of the cause are adjudged against Respondent Board.
BURNETT, WHITE and DYER, JJ., concur.
PREWITT, C. J., dissents.
PREWITT, Chief Justice, (dissenting).
I respectfully dissent from the majority opinion for for the following reasons:
The Chancellor held the properties in question to be exempt under our statutes *471 and the Court of Appeals affirmed the action of the Chancellor.
There is no controversy as to the use to which the subject real estate is applied.
Under Article 2, Section 28, of our Constitution it provides that all properties real, personal or mixed shall be taxed, but that the Legislature may except such as is held by States, Counties or Cities, and used exclusively for public purposes, and such as may be held and used for purposes purely religious, charitable, scientific, literary or educational.
Section 67-502 T.C.A., entitled "Exemption Generally" provides that the property therein enumerated shall be exempt from taxation. Sub-section (2) of the Code provides that the real estate owned by any religious, charitable, scientific or educational institution and occupied by such institution or its officers exclusively for carrying out thereon one or more purposes for which said institution was created or exists, shall be exempt.
The section further provides that any other real estate, or property not used for such purposes, shall not be exempt.
Now it appears that the Sunday School Board owns certain other real estate that is taxable of which no question is made.
It is conceded by the City that the Administrative Building and the Operations Building are exempt from taxation. It appears that in the basement of the Administrative Building there is operated by the Board a cafeteria for employees, which is not a commercial operation, and this cafeteria is operated at a loss.
Another building operated by the Board is known as the Operations Building in which said Board maintains a snack bar, which has automatic machines to disepnse cold drinks.
The Board also owns and maintains certain parcels of land as parking areas for employees. These are not commercial parking lots and no portion of them is leased to any outsider, and no income is received.
Under the foregoing statement I think that the State Board of Equalization, the Chancellor, and the Court of Appeals were unquestionably right in holding that under the above stated statutes the property is exempt, that is the cafeteria for employees, the automatic machines to dispense cold drinks and the certain parcels of land as parking areas for employees, all are simply incidental to the real estate and are exempt from taxation under our statutes.
In this connection see Sunday School Board of the Southern Baptist Convention v. Evans, 192 Tenn. 495, 241 S.W.2d 543; M.E. Church South v. Hinton, 92 Tenn. 188, 21 S.W. 321; State v. Fisk University, 87 Tenn. 233, 10 S.W. 284; State ex rel. Davidson County v. Waggoner, 162 Tenn. 172, 35 S.W.2d 389; Baptist Memorial Hospital v. Couillens, 176 Tenn. 300, 140 S.W.2d 1088.
For the foregoing reasons, I think the properties above enumerated are exempt from taxation and I would affirm the decree of the Court of Appeals.
ON PETITION TO REHEAR
FELTS, Justice.
The Sunday School Board has filed an able and earnest petition to rehear, asserting that this Court erred in substituting its judgment for that of the State Board of Equalization "on a question of fact" in this case; and that we erred in holding that the terms of the 1935 Act (T.C.A. § 67-502 (2)) are clear and unambiguous, erred in our construction of it, and erred in holding that the Board's operations of its parking lots, restaurant and snack bar, were not religious activities, but secular business enterprises; and that the parts of its property used for such purposes are not exempt under that Act.
*472 The record shows we did not substitute our judgment for that of the State Board on a question of fact. As pointed out in our opinion (page 459), there was no dispute or question of fact, the only evidence being that offered by the Board. The circumstances as to the purposes for which the properties were used being admitted, it was purely a question of law whether such purposes came within the exemption of the statute.
In support of the petition, learned counsel make an able, forceful and lengthy argument; but it is only a re-argument of matters already thoroughly argued by counsel and fully considered by us in reaching our conclusion. It points out no new matter of fact or law overlooked, but only re-argues things which counsel insist were improperly decided after full consideration.
"A petition for rehearing should never be used merely for the purposes of re-arguing the case on points already considered and determined, unless some new and decisive authority has been discovered, which was overlooked by the court. The office of a petition to rehear is to call the attention of the court to matters overlooked, not to those things which counsel supposes were improperly decided after full consideration" (Louisville & N. Railroad v. Fidelity & Guaranty Co., 125 Tenn. 658, 691-693, 148 S.W. 671, 680). Gulf, M. & O.R. Co. v. Underwood, 182 Tenn. 467, 476, 187 S.W.2d 777; Memphis St. Ry. Co. v. Cooper, 203 Tenn. 425, 437-439, 313 S.W.2d 444; Oliver v. State, 208 Tenn. 692, 698, 348 S.W.2d 325; Rule 32, 209 Tenn. 806, 807.
"`If re-hearings are to be had, until the counsel on both sides are entirely satisfied, we fear that suits would become immortal, and the decision be postponed indefinitely.' Story's Eq. Pl., 8th Ed., sec. 421, page 395, note. Compare Andrews v. Crenshaw, 51 Tenn. 151, 153." Gulf, M. & O.R. Co. v. Underwood, supra, 182 Tenn. 476, 187 S.W.2d 777; Louisville & N. Railroad v. Fidelity & Guaranty Co., supra, 125 Tenn. 692-693, 148 S.W. 671.
The petition to rehear is denied at petitioner's cost.
NOTES
[1] Art. 2, Sec. 28: "All property real, personal or mixed shall be taxed, but the Legislature may except such as may be held by the State, by Counties, Cities or Towns, and used exclusively for public or corporation purposes, and such as may be held and used for purposes purely religious, charitable, scientific, literary or educational * * *."
[2] "Knowledge, learning, and virtue, being essential to the preservation of republican institutions, and the diffusion of the opportunities and advantages of education throughout the different portions of the State, being highly conducive to the promotion of this end, it shall be the duty of the General Assembly in all future periods of this Government, to cherish literature and science."
[3] Chief Justice Green said "that, under the Act of 1935, only such property of religious, charitable, scientific or educational institutions as is exclusively used for carrying out one or more of the purposes of that institution is exempt from taxation. In short, the property physically used in the work of the institution is exempt." State ex rel. Beeler v. City of Nashville (1942), 178 Tenn. 344, 349, 157 S.W.2d 839, 841.
[4] Quoted by O.K. Armstrong, prominent Baptist layman and former member of Congress, in "Tax Churches on Business Profits?", CHRISTIANITY TODAY (Oct. 13, 1961), pp. 19-23, condensed under title "Should Churches Be Exempt From Business Taxes?", READERS DIGEST (Nov. 1961), pp. 111-115. This article states that churches and church-related agencies have accumulated large real estate holdings, and operate tax-free businesses of various kinds in many of our cities.
[5] Our state Constitution (Art. 1, sec. 3) guarantees freedom of worship and separation of church and state, and provides that "no preference shall ever be given, by law, to any religious establishment or mode of worship" (italics ours).
[6] Quoted from Dr. Blake, "Should Church Property Be Taxed," TOGETHER (April 1962), pp. 28-30, published by the Methodist Publishing House, Nashville, Tennessee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623585/ | 564 N.W.2d 872 (1997)
455 Mich. 25
Donald L. KIDDER and Dawn M. Kidder, Plaintiffs/Appellants,
v.
MILLER-DAVIS COMPANY, Defendant/Appellee.
David L. WOLTHUIS and Esther Wolthuis, husband and wife, Plaintiffs/Appellants,
v.
MILLER-DAVIS COMPANY, a domestic corporation, Defendant/Appellee.
Docket Nos. 105498, 103024, Calendar Nos. 8-9.
Supreme Court of Michigan.
Argued January 15, 1997.
Decided July 8, 1997.
*873 Ford, Kriekard, Domeny & Byrne, P.C. by Thomas H. Rosenhagen and David W. McMorrow, Portage, for plaintiffs/appellants Wolthuis.
Schenk, Boncher & Prasher by Frederick J. Boncher and Curtis D. Rypma, Grand Rapids, for plaintiffs/appellants Kidder.
Straub, Seaman & Allen, P.C. by John M. Donahue, St. Joseph, for defendant/appellee.
OPINION
MALLETT, Chief Justice.
We granted leave in these consolidated labor broker cases to determine whether defendant Miller-Davis is a coemployer of the plaintiffs and thus immune from tort liability under the exclusive remedy provision of the Worker's Disability Compensation Act. In both cases the Court of Appeals affirmed grants of summary disposition in favor of the defendants, holding that the defendant was a customer of Construction Labor Services, a labor broker, and as such was protected from suit under the exclusive remedy provision of the WDCA. We affirm and hold further that under the economic-reality test defendant was also the plaintiffs' employer for purposes of the exclusive remedy provision of the WDCA.
I
The two cases are almost factually indistinguishable. Both Mr. Kidder and Mr. Wolthuis, plaintiffs in their respective cases, were injured on construction sites at which the defendant was the general contractor. Both men were employees of Construction Labor Services (CLS). CLS is a labor broker in the business of providing "leased services of construction trades personnel on an independent contractor basis" to construction contractors. Both Mr. Kidder and Mr. Wolthuis were leased construction trades personnel furnished to Miller-Davis by CLS. The *874 lease agreements between CLS and Miller-Davis, covering both employees, are identical.
A
Plaintiff Wolthuis, leased to Miller-Davis through CLS, was performing demolition work on a multimillion dollar construction project in Kalamazoo when he was impaled through the neck by a piece of jagged reinforcement steel protruding from a block of concrete being hoisted by defendant's crane at the work site. He was subsequently burned by an acetylene torch that fell on him after he was impaled. Plaintiff alleged in his complaint that defendant was negligent in failing to provide a safe workplace and negligent in the operation of the crane. Just before trial, the court entertained and granted the defendant's motion for summary disposition, holding that Miller-Davis was a coemployer and immune from liability under the exclusive remedy provision of the WDCA.[1]
In the Court of Appeals, plaintiff argued that Miller-Davis was not a coemployer, that, in the alternative, the court erred in granting the motion because more than a single inference could be drawn from the facts, and that the issue should have been decided by a jury. In addition the plaintiff asserted that Miller-Davis was estopped from asserting that it was an employer by virtue of the express language in the contract. The Court of Appeals rejected these arguments. The majority held that only one conclusion could be drawn from the facts: defendant was a customer of CLS, a labor broker, and as such was entitled to the exclusive remedy of the WDCA. Unpublished opinion per curiam, issued February 23, 1995 (Docket No. 168754), citing Howard v. Dundee Mfg. Co., 196 Mich.App. 38, 40, 492 N.W.2d 478 (1992); Farrell v. Dearborn Mfg. Co., 416 Mich. 267, 330 N.W.2d 397 (1982); Renfroe v. Higgins Rack Coating & Mfg. Co., 17 Mich.App. 259, 169 N.W.2d 326 (1969). With regard to the contract between CLS and Miller-Davis, the Court stated, "[w]e also find no merit to plaintiffs' estoppel argument on these facts because courts will look beyond the labels placed on relationships in applying the WDCA." Id., citing Fitzgerald v. Mobil Oil Corp., 827 F. Supp. 1301 (E.D.Mich., 1993).
Judge Neff dissented, stating that under the terms of the agreement the only inevitable conclusion was that defendant was not plaintiff's employer and was not entitled to the exclusive remedy provision of the WDCA. Judge Neff distinguished this case from Farrell and its progeny on the basis of explicit language of the contract, which she noted was never repudiated by either party. Because the majority's opinion "turns the agreement between defendant and CLS on its head and effectively nullifies an otherwise valid contractual agreement between the parties," Judge Neff would have reversed and remanded this case for trial on the liability issue. Id.[2]
*875 B
Plaintiff Kidder, an iron worker also leased to Miller-Davis through CLS, was working on the renovation of the Kalamazoo Center when he plummeted ten feet from some roof decking through an open skylight, shattering both his elbows. Plaintiff Kidder filed suit against Miller-Davis for negligently failing to place covers on or guardrails around the open skylights, negligently failing to supervise subcontractors, and negligently failing to provide a safe workplace. Miller-Davis moved for summary disposition, claiming that the plaintiff was an employee of both CLS and Miller-Davis and therefore his only remedy was under the WDCA. M.C.L. § 418.131; M.S.A. § 17.237(131). The trial court agreed in spite of express language in the CLS-Miller-Davis contract, stating "[s]uch leased personnel shall be employees of CLS for all purposes. Such leased personnel shall not be employees of [Miller-Davis] for any reason."
The Court of Appeals affirmed, relying on Farrell v. Dearborn Mfg. Co., supra, and held that a labor broker relationship existed between CLS and Miller-Davis. The Court stated: "Accordingly, the economic reality being that both CLS and defendant were employers within the meaning of the WDCA, defendant was entitled to the enforcement of the WDCA exclusive remedy provision." Unpublished opinion per curiam, issued January 12, 1996 (Docket No. 166059). Judge Neff again dissented, reiterating her dissent in Wolthuis.
II
A
The determination of who is an employer for purposes of the exclusive remedy provision of the WDCA, as well as other statutory schemes, has had a rich and voluminous history. Early cases that addressed this question, first in the arena of unemployment compensation, evaluated the existence of the relationship under a "control" test.
The control theory is the traditional common-law test used to delineate the master-servant relationship. The theory, in its delineation of the servant concept, has for its purpose the definition and delimitation of the scope of the master's liability under the doctrine of respondeat superior. Because most compensation acts contain no specific definition of the term "employee", it was generally taken for granted that the common-law definition of employee, or servant, used for purposes of vicarious tort liability was to be used for purposes of workmen's compensation laws. [Nichol v. Billot, 406 Mich. 284, 293-294, 279 N.W.2d 761 (1979).]
This test attempted to separate those persons who were employees from those who were independent contractors. This assessment examined who controlled the work, the hours, the process, and the methods of the work involved. The initial rule was "where the person employed is in the exercise of an independent and distinct employment, and not under the immediate control, direction, or supervision of the employer, the latter is not responsible for the negligence or misdoings of the former." Powell v. Employment Security Comm., 345 Mich. 455, 469, 75 N.W.2d 874 (1956) (Smith, J., dissenting) (citations omitted). "The control test is also used to determine when an independent contractor has become an employee for purposes of respondeat superior liability on the part of his employer who has exercised a degree of control inconsistent with independent contractor status." Nichol v. Billot, supra, at 296, 279 N.W.2d 761, citing Powell at 471, 75 N.W.2d 874.
Justice Talbot Smith's thoughtful dissent in Powell, which later became the prevailing law, strongly criticized the rigid control test and the absurd, chaotic decisions that resulted from it. He noted that the control test failed to achieve any uniformity or certainty and that this tort concept should be inapplicable to the administration of social legislation.[3]*876 Id. at 471, 75 N.W.2d 874. Justice Smith noted that accepting this rigid control test could lead to much mischief, in that employers would start hiring independent contractors to do everything to avoid their "statutory obligations under the national labor relations act, under the social security, unemployment compensation, and fair labor standards acts, and, in addition, many of the other Federal and State laws...." Id. at 473, 75 N.W.2d 874.
Justice Smith was influenced by federal case law administering the National Labor Relations Act. In United States v. Silk, 331 U.S. 704, 713, 67 S. Ct. 1463, 1468, 91 L. Ed. 1757 (1947), the United States Supreme Court first articulated an economic-reality test for assessing the employer-employee relationship.
The problem of differentiating between employee and an independent contractor or between an agent and an independent contractor has given difficulty through the years before social legislation multiplied its importance. When the matter arose in the administration of the National Labor Relations Act, we pointed out that the legal standards to fix responsibility for acts of servants, employees or agents had not been reduced to such certainty that it could be said there was "some simple, uniform and easily applicable test." The word "employee," we said, was not there used as a word of art, and its content in its context was a federal problem to be construed "in the light of the mischief to be corrected and the end to be attained." We concluded that, since that end was the elimination of labor disputes and industrial strife, "employees" included workers who were such as a matter of economic reality. The aim of the Act was to remedy the inequality of bargaining power in controversies over wages, hours and working conditions. We rejected the test of the "technical concepts pertinent to an employer's legal responsibility to third persons for acts of his servants." This is often referred to as power of control, whether exercised or not, over the manner of performing service to the industry. [United States v. Silk, 331 U.S. 704, 713, 67 S. Ct. 1463, 1468, 91 L. Ed. 1757(1947) (citations omitted).]
Persuaded by the reasoning in Silk, Justice Smith adopted the economic-reality test in his frequently cited dissent in Powell. He determined that a court must examine the work performed, whether it is part of a common objective integral to the employer's business, and whether this work would normally follow the usual path of an employee. Powell at 479, 75 N.W.2d 874, citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S. Ct. 1473, 91 L. Ed. 1772 (1947). Accordingly, control is only one factor to be considered.
In Tata v. Muskovitz, 354 Mich. 695, 94 N.W.2d 71 (1959), this Court overwhelmingly abandoned the control test in favor of the economic-reality test to determine who is an employer for purposes of the Worker's Disability Compensation Act. In Schulte v. American Box Board Co., 358 Mich. 21, 99 N.W.2d 367 (1959), Justice Smith defined more fully the parameters of the economic-reality test:
The earlier cases tested this relationship through application of the "control" factor, originally a test for tortious liability, having its roots in the relationship of the apprentice to his master in early English industrial society. As applied to today's complex economy of the assembly line, of dispersed industrial operations, of concentrated operations but with semi-autonomous "departments" or branches, and of general contractors who, in turn, employ subcontractors and sub-subcontractors, the "control" test is often meaningless, usually ambiguous, and always susceptible of paperwriting evasions. Consequently we have abandoned it. The test is now one of economic reality. This is not a matter of terminology, oral or written, but of the realities of the work performed. Control is a factor, as is payment of wages, hiring and firing, and the responsibility for the *877 maintenance of discipline, but the test of economic reality views these elements as a whole, assigning primacy to no single one. [Id. at 32-33, 99 N.W.2d 367 (Smith, J., concurring) (citations omitted).]
The economic-reality test was embraced by this Court as a more realistic attempt to define the employer-employee relationship through a "balancing of all the relevant factors in each case," than the rigid control test. Renfroe v. Higgins Mfg. Co. Inc., supra at 265, 169 N.W.2d 326. Given the increasingly complicated relationships developing in today's business and economic marketplaces anything other than a totality of the circumstances test would be an insufficient guide by which to evaluate the employee-employer relationship.
B
A labor broker-customer arrangement presents a unique employment relationship and adds a further dimension to the analysis of who is an employer for purposes of the WDCA. Renfroe, supra, was one of the first cases to examine the labor broker relationship within the context of the Worker's Disability Compensation Act. The issue in Renfroe was whether the defendant, Higgins Co, a customer of a labor broker, was an employer, for purposes of the exclusive remedy provision of the worker's compensation act, thus precluding separate recovery. Id. at 261, 169 N.W.2d 326. The plaintiff in Renfroe was employed by Employers Temporary Service (ETS) whose sole business was supplying temporary labor to industrial and commercial customers. Customers would contact ETS on a daily basis, and ETS would dispatch the required numbers of workers. ETS paid the workers and withheld their taxes. The customer, however, instructed the workers and had the authority to dismiss them.
Higgins Co. frequently used ETS to supply it with temporary help. The plaintiff, supplied by ETS to Higgins, injured his right hand in a punch press and received medical and disability compensation for his injury from ETS's worker's compensation insurer. He then sought additional recovery from Higgins, arguing that a restrictive definition should be used to define "employer" because it was in his best interests to be able to sue Higgins as a third party tortfeasor. The Court rejected the plaintiff's argument, acknowledging the preference for a more liberal approach to defining the term "employer," which necessarily followed the purposes behind "providing social remedial legislation in an attempt to provide benefits for injured employees under the workmen's compensation act". Id. at 263, 169 N.W.2d 326. That approach favors the economic-reality test over the rigid control test.
In evaluating this triangular relationship, the Court of Appeals noted that ETS workers agreed to work for ETS, and then agreed to work for ETS customers. The Court of Appeals reasoned that, regarding labor brokers, the
economic reality is based on the fact that a profit can be made by efficiently matching workers with temporary work needs. ETS maintained control of the workers by its practice of daily reassignment and daily payment at its offices. It also maintained the formalities of employment by handling all paper work and payments incident to the employment. [Id. at 266, 169 N.W.2d 326.]
The Court of Appeals held that under the economic-reality test both ETS and Higgins were the plaintiff's employers, even though each employment situation was different. In holding that the plaintiff could not proceed against Higgins, and that the suit was barred by the exclusive remedy provision of the worker's compensation act, the Court stated: "It is not necessary to make fine semantic distinctions as to types of degrees of control, et cetera. It is enough to say that either could be liable under the workmen's compensation act, therefore, both are protected by it." Id. at 266-267, 169 N.W.2d 326.
In Nichol v. Billot, supra at 299, 279 N.W.2d 761, this Court examined the employer-independent contractor relationship and held that the economic-reality test "in its consideration of factors beyond the control element, achieves a more realistic determination" of who is entitled to the exclusive remedy defense under the worker's compensation act. Id. In addition, and more importantly, we held that the question of the defendant's *878 status is one of law for the court and not one of fact for the jury when the evidence and facts are susceptible of one inference only. Id. at 302, 279 N.W.2d 761, quoting Flick v. Crouch, 434 P.2d 256 (Okla., 1967).[4]
In Farrell v. Dearborn Mfg. Co., supra, this Court had yet another chance to evaluate the application of the exclusive remedy provision of the WDCA in four cases, three of which involved labor brokers.[5] In each of these cases, labor brokers State Labor, Inc., Kelly Services, Inc., and Employers Temporary Service furnished employees to others. In each, a worker was injured, received worker's compensation benefits, and brought suit against the customer of the labor broker. We held that "the exclusive remedy available to the employee in a labor broker situation is provided by the worker's compensation statute and that a separate tort action against the customer of the labor broker may not be maintained." Id. at 278, 330 N.W.2d 397.
In arriving at this conclusion, we first discussed the purpose and meaning behind the WDCA and its exclusive remedy provision. We noted that a fundamental premise of the act is that if the employee's injury falls within its provisions, then worker's compensation will be the only remedy against the employer and the employer's insurance carrier. In assuming responsibility for work-related injuries, the employer is thus protected from excessive damage awards, and injured employees are automatically compensated for their injuries.[6]Id. at 274, 330 N.W.2d 397.
In Farrell, the plaintiffs argued that this separate cause of action should not be barred under the exclusive remedy provision because the conditions of liability as stated in the statute did not exist. In rejecting this argument, we examined the roles of the labor broker and its customers to assess who should be considered an employer for purposes of the statute. We noted that in each of the cases the labor broker's business was to supply the customer with temporary employees pursuant to the customer's expressed needs. In addition, we noted that, once the employee reported to the customer, the employee was under the control and supervision of the customer's supervisory personnel. The customer could discharge an employee, or refuse to accept an employee. We noted further that the customer does not pay the employee directly. The employee is paid by the labor broker who charges the customer a fee for the services provided. Id. at 275, 330 N.W.2d 397.
We also addressed whether an employment relationship existed using the economic-reality test as our guide and adopted the standard enunciated in Renfroe. See supra. In Farrell, we stated that "[t]he economic reality test looks to the employment situation in relation to the statutory scheme of workers' compensation law with the goal of preserving and securing the rights and privileges of all parties. No one factor is controlling." Id. at 276, 330 N.W.2d 397 (emphasis added). Embracing the reasoning in Farrell we stated:
The customer received a worker each day who was subject to its authority. By engaging the services of the labor broker, the customer knew that, in exchange for a set fee, the broker would pay the employees, handle all paperwork, and provide compensation coverage. The Court concluded that the economic reality was that both the labor broker and its customer were employers within the meaning of the workers' compensation statutes. We *879 agree with the reasoning and result of this decision.
The labor broker providing personnel for temporary employment is a common business practice. The roles of the broker and its customer are defined and structured to fulfill short-term needs of many types of industries. When viewed in terms of control, payment of wages, allocation of responsibilities, maintenance of discipline, etc., it is clear that the two are so integrally related that their common objectives are only realized by a combined business effort. The broker supplies as the customers demand.
To conclude that an individual so employed is outside the scope of the exclusive remedy provision would clearly disregard the overall objectives of the statutory scheme. [Id. at 277, 330 N.W.2d 397.]
Accordingly, we held that a separate action against the customer could not be maintained.
III
Turning our focus to the cases at hand, we find that a labor broker relationship existed between CLS and Miller-Davis to such an extent that a dual or coemployer relationship was formed, precluding a separate tort action against the customer of the labor broker.[7] This conclusion is further supported by our analysis of the economic realities of the employment situation which compels us to hold that Miller-Davis was the plaintiffs' employer for purposes of the exclusive remedy provision of the worker's compensation statute.
A
The parties do not dispute that CLS is a labor broker whose business is the provision of construction trades personnel to contractors. The labor broker-customer relationship is very different from an independent contractor-subcontractor relationship. CLS is not a subcontractor. No bids were ever solicited or received, and Miller-Davis did not relinquish its ultimate supervision or control of the work site to CLS or any other subcontractor. CLS provided the workers "pursuant to the job description requests furnished to CLS by [Miller-Davis] from time to time."[8] Further, CLS designated supervisors on the work site also pursuant to job description requests furnished by Miller-Davis.
CLS billed Miller-Davis on a weekly basis for the workers' wages, fringe benefits, payroll taxes, worker's compensation and liability insurance premiums, state corporate tax, trade travel pay, and FICA. CLS also billed Miller-Davis an additional fee that covered the cost both of administering the contract and the handling of all other employment matters. The fact that Miller-Davis did not directly pay the workers is a distinction without a difference. CLS was a payment conduit for Miller-Davis. Miller-Davis reimbursed CLS dollar for dollar, including an amount for worker's disability compensation. Miller-Davis unequivocally assumed the responsibility for these payments. This alone is evidence that Miller-Davis was not giving up completely its role as employer. Clearly, the trades construction personnel worked for both CLS and Miller-Davis. Miller-Davis paid a premium for this particular service. There is no question, under both our reasoning in Farrell and the Court of Appeals opinion in Renfroe that this was a coemployer situation. Accordingly, we reaffirm our decision in Farrell and hold that under these *880 circumstances a labor broker and its customer both are subject to, and protected by, the exclusive remedy provision of the WDCA.
B
Establishing a labor broker relationship does not, however, necessarily end the analysis. The relationship must still be evaluated under the economic reality test, which in this case yields the same conclusion: Both Miller-Davis and CLS must be considered dual or coemployers for purposes of the exclusive remedy provision of the worker's compensation statute. Again, this standard examines a number of criteria including control, payment of wages, hiring, firing, the maintenance of discipline, and common objective. These factors are viewed together in their entirety under a totality of the circumstances test. We repeat: No one factor is controlling.
First, both employers shared control of the workers. Miller-Davis requested the types of workers it needed to do its bidding at the job site. "[Miller-Davis] will make all directives deemed necessary for the efficient jobsite utilization of leased CLS construction trades personnel through the assigned CLS on-site supervisor (foreman), or the designated CLS official." Miller-Davis never relinquished its ultimate control or supervision over the work site.[9] This decentralization of control is not tantamount to a lack of control or authority on the project. Miller-Davis also furnished the appropriate tools for the workers to perform their tasks (unless otherwise provided by union agreement or custom).[10] Miller-Davis controlled the hours on the job, and daily told the workers exactly where they would be working. Miller-Davis did not have to stand over each worker's shoulder, explaining what to do minute to minute or where to put each beam and rivet. "It is not necessary to make fine semantic distinctions as to types of degrees of control, et cetera." Renfroe at 266, 169 N.W.2d 326.
Second, the payment of wages indicates that both Miller-Davis and CLS were employers. Miller-Davis reimbursed CLS, dollar for dollar, the actual amount of fringe benefits, withholding and other employment taxes, worker's compensation, and life and health insurance premiums that were incurred *881 by CLS. Again, who writes the check is not dispositive of the employer-employee relationship under Renfroe and Farrell. The economic reality is that Miller-Davis paid the wages and benefits for each plaintiff through CLS.
The third factor concerns who has the right to hire, fire, and discipline the employees. We find that, under the agreement, this was also a shared responsibility. Miller-Davis hired CLS to provide workers, and although Miller-Davis could not directly hire, fire, or discipline it is undisputed that "CLS agree[d] to remove any person leased to [Miller-Davis] as leased construction trades personnel which [Miller-Davis] deem[ed], at its sole discretion, as unsatisfactory...." Thus it is clear that Miller-Davis could accomplish indirectly that which it could not do directly. Even though the agreement specifies that Miller-Davis could not evaluate CLS employees, Miller-Davis had the right to order CLS to remove unsatisfactory workers.
The fourth criterion traditionally evaluated under the economic-reality test examines the work performed and whether it is part of a common objective, integral to the employer's business. In both cases a common objective or goal was undertaken by both employers. Miller-Davis could not have completed its renovations without employing CLS workers and the CLS workers were working toward completing Miller-Davis' project goals. In fact, in testimony taken during the Wolthuis trial a person stated that there were so many workers on the site and the duties were so intertwined that it could not readily be determined who worked for CLS and who worked for Miller-Davis. Clearly, the two were "so integrally related that their common objectives [were] only realized by a combined business effort." Farrell at 277, 330 N.W.2d 397. A labor broker-customer relationship may very well presume a common objective. See Tolbert v. U.S. Truck Co., 179 Mich.App. 471, 476, 446 N.W.2d 484 (1989) ("[a] labor broker relationship established ... [a] common objective in a business effort").
Finally, this analysis would not be complete without discussing the meaning of the agreement between CLS and Miller-Davis. We are cognizant that this contract attempts to disavow any employer-employee relationship between the two parties. However, we can not accept the plaintiffs' characterization of the agreement and refuse to hold that it alone is dispositive of the status of the parties. Just as we have held that control is but one factor to consider under the economic-reality test, so is the contract but one factor. Parties enter into contracts to serve all kinds of purposes in delineating rights, responsibilities, and liabilities, whether for tax, insurance, or other reasons.[11] We hold that the economic reality of these cases is that the rights and responsibilities over these workers were shared by both Miller-Davis and CLS and that the agreement is neither dispositive nor controlling. See Fitzgerald v. Mobil Oil Corp, supra at 1303; White v. Central Transport, Inc., 150 Mich.App. 128, 388 N.W.2d 274 (1986); Tolbert v. U.S. Truck Co., supra.[12] We believe this conclusion best *882 advances the principles embodied within the WDCA.
IV
In sum, we find that a labor broker relationship existed between CLS and its customer, Miller-Davis, to an extent that each was a coemployer of the plaintiffs for the purposes of the WDCA. Accordingly, each employer is protected by, and entitled to, the benefit of the exclusive remedy provision of the WDCA. In addition, we further hold that under the economic-reality test, which examines the totality of circumstances surrounding the employment relationship and work performed, Miller-Davis was the plaintiffs' employer for purposes of the WDCA and thus entitled to enforcement of the exclusive remedy provision.
BRICKLEY, RILEY, and WEAVER, JJ., concurred with MALLETT, J.
KELLY, J. (dissenting).
I respectfully dissent from the majority's conclusion that defendant was plaintiffs' employer for purposes of the exclusive remedy provision of the Worker's Disability Compensation Act. The contract between defendant and Construction Labor Services states clearly and unequivocally that defendant was not plaintiffs' employer. Therefore, defendant is liable in tort to plaintiffs if shown to be negligent. I would remand this matter to the trial court for further proceedings.
The majority sets forth two separate rationales to support its conclusion that defendant was plaintiffs' employer. First, as a labor broker relationship existed between defendant and CLS, defendant became one of plaintiffs' employers. Second, application of the economic realities test reveals that defendant was plaintiffs' employer.
I
With respect to the first holding, I do not agree with the majority's conclusion that coemployer status can be found solely because two parties enter into a labor broker relationship. To support its holding, the majority relies on this Court's decision in Farrell v. Dearborn Mfg. Co.,[1] and the Court of Appeals decision in Renfroe v. Higgins Mfg. Co., Inc.[2] However, in neither case did the courts find that employment status could be determined solely from the fact that a labor broker relationship existed.
In Renfroe, Employers Temporary Service (ETS) was in the business of supplying temporary labor to businesses, including to the defendant, Higgins. The plaintiff was a worker supplied by ETS to Higgins. He was injured in a punch press accident. After receiving worker's compensation benefits from ETS, he sued Higgins as a third-party tortfeasor.
The Court of Appeals found that ETS was a labor broker. However, the labor broker relationship was not the basis for the finding that Higgins was the plaintiff's employer. Instead, the Court applied the economic realities test. It concluded that ETS maintained control of its workers by reassigning and paying them daily at its offices. ETS handled all the paper work incident to employment. Higgins maintained control of the workers by directing them to perform various tasks in its factory. It was responsible for paying the workers even though it did so indirectly, through ETS. The Court concluded that both ETS and Higgins were plaintiff's employers, each for different purposes.
Similarly, in Farrell, in three out of the four cases consolidated for appeal, a labor broker supplied personnel to various businesses on a temporary basis. This Court did not rely solely on the labor broker relationship to reach its decision. Instead, it applied the economic reality test to determine whether the defendant was the plaintiffs' employer for purposes of the worker's compensation laws.[3] I do not dispute that application of *883 the economic realities test to the typical labor broker situation generates a finding that the labor broker and its customer are both employers. However, I disagree with the majority's conclusion that, in some circumstances, dual employment can be found solely because a labor broker situation exists. In the typical labor broker case, the economic realities test should be applied.
II
Even were the majority correct that sometimes the labor broker relationship alone is dispositive, the factual scenario presented in this case is an excellent example of when it is not. The contract that defendant and CLS signed makes theirs an atypical labor broker relationship. The language renders it so clear and unambiguous that defendant is not plaintiffs' employer, that it alone must control. There is no reason to go on to the economic realities test.
An underlying rationale of the worker's compensation statutes is often cited by this Court. It is that the employer, by agreeing to assume responsibility for all injuries in the course of employment, protects itself from potentially excessive damage awards. Statutory compensation, limited in amount, is substituted for common law negligence liability. Farrell, supra at 274-275, 330 N.W.2d 397.
In Farrell, we discussed the labor broker situation. In a typical situation, the labor broker is in the business of supplying temporary labor to companies. A company needing labor assistance calls the labor broker and explains the skills that the temporary workers require and the number of workers needed. The labor broker then sends the necessary number of qualified workers to the company. In return, the company pays the labor broker an agreed-upon rate per hour. The labor broker then pays the workers and covers its costs. See Farrell, Renfroe, supra. Once the workers arrive at the business, its agent instructs them what to do and how to do it. If the workers do not perform up to expectations, the business can dismiss or discipline them. Farrell, supra.
In Farrell, we applied the economic realities test to the typical labor broker situation. We held that both the labor broker providing the personnel and the company using the temporary workers' services are employers for purposes of the WDCA. Id. at 275-278, 330 N.W.2d 397.
Here, however, we do not have a typical labor broker situation. The contract that defendant and CLS signed has a significant distinguishing feature. It explicitly sets forth the duties of Miller-Davis and CLS. Throughout it, defendant is described as not being the temporary workers' employer. The contract declares that for all purposes CLS is the sole employer. It states in pertinent part:
2. MD hereby leases construction trades personnel from CLS pursuant to the job description requests furnished to CLS by MD from time to time. Such leased personnel shall be employees of CLS for all purposes. Such leased personnel shall not be employees of MD for any reason.
3.(a) For all leased construction trades personnel furnished to MD by CLS, CLS shall be responsible for all employment matters including, but not limited to, withholding of taxes; payment of all withheld taxes and any employment related taxes; providing workers' compensation, disability, life and group health insurance; providing pension plan coverage, if applicable; and providing all other nonobligatory fringe benefits programs. With respect to these obligations on the part of CLS, CLS, at the request of MD, shall submit evidence to MD that such obligations have been met. CLS shall also have the sole responsibility for the payment of all wages to leased personnel furnished to MD.
(b) CLS shall be the employer, and as such, responsible for any and all obligations, *884 including contract administration, with respect to any collective bargaining agreements covering leased construction trades personnel to which CLS is bound.
* * *
7.(a) CLS shall be sole responsibility [sic] for recruiting, hiring, training, evaluation, replacement, supervision, discipline, and discharge of individuals furnished to MD by CLS.
(b) CLS shall designate on-site supervisors (foremen) from among its employees to fill positions pursuant to job description requests furnished to CLS by MD. These on-site supervisors (foremen) shall direct operational and administrative matters relating to services provided by CLS leased constructions trades personnel and shall be under the direct supervision of CLS. If CLS does not designate an on-site supervisor (foreman), CLS employees leased to MD shall be responsible and shall report to the CLS official designated by CLS.
(c) Procedures to be followed by CLS employees regarding the time and performance of their duties as leased construction trades personnel to MD shall be determined by the on-site supervisor employed by CLS, or in the absence of an on-site supervisor, the CLS official designated by CLS. MD shall not participate in or be responsible for employment related matters which are normally incident to CLS' employer/employee relationship with leased personnel. MD will make all directives deemed necessary for the efficient jobsite utilization of leased CLS construction trades personnel through the assigned CLS on-site supervisor (foreman), or the designated CLS official. MD shall have no authority or power to modify the terms and conditions of any employment agreement between CLS and its leased personnel, nor shall MD have the right to recruit, hire, train, evaluate, replace, supervise, discipline or discharge individuals leased to MD by CLS. MD's rights with respect to the leased personnel shall be limited to making routine directives to such leased personnel and notifying CLS that specific leased personnel are unsatisfactory to MD.
(d) CLS agrees to remove any person leased to MD as leased construction trades personnel which MD deems, at its sole discretion, as unsatisfactory, and to furnish a suitable replacement for such leased personnel within a reasonable period of time. The provisions of this subparagraph shall not be construed as granting to MD any right to discharge or suspend leased personnel furnished to MD by CLS.
As the contract demonstrates, defendant did everything it could to establish that it was not plaintiffs' employer. CLS had the exclusive right to hire, fire, and discipline the workers. It had the responsibility of controlling the workers at the job site. Defendant absolved itself of all the responsibilities of an employer. The contract expressly states that the temporary workers are employees of CLS and shall not be defendant's employees "for any reason."
The majority refuses to accept defendant's characterization of itself in paragraph two of the agreement, stating that it is not dispositive of the status of the parties. It cites three cases for the proposition that the contract is not controlling: Fitzgerald v. Mobil Oil Corp., 827 F. Supp. 1301 (E.D.Mich., 1993), Tolbert v. U.S. Truck Co., 179 Mich.App. 471, 446 N.W.2d 484 (1989), and White v. Central Transport, Inc., 150 Mich.App. 128, 388 N.W.2d 274 (1986).
In Tolbert and White, the Court held that a contract's characterization of the employment arrangement is not controlling. There, both contracts stated that the employees were independent contractors. Tolbert, supra at 476, 446 N.W.2d 484; White, supra at 129, 388 N.W.2d 274. In Fitzgerald, the contract specifically disclaimed the existence of an employer-employee relationship.
It is true that, normally, the parties' characterization of the employment relationship alone should not control. However, where, as here, the contract so thoroughly disclaims an employer-employee relationship, a different situation is presented.
Defendant contracted in the manner it did to avoid an employer's responsibilities, including *885 the purchasing of worker's compensation insurance. If plaintiffs had sought worker's compensation benefits through defendant, it is evident that defendant would have used its contract with CLS to demonstrate that it was not plaintiffs' employer.
We agree with plaintiffs that defendant cannot be allowed to have its cake and eat it, too. The judicial system should not enable defendant to emerge as a nonemployer when plaintiffs seek worker's compensation benefits, but as their employer when they sue for third-party negligence.
The majority concludes that the policies and purposes of the WDCA are best advanced by treating the contract as just one of many factors, not dispositive in and of itself. See Op., p. 881, n. 11. However, the purpose of the WDCA is to "afford maximum benefit to injured parties." Nichol v. Billot, 406 Mich. 284, 299, 279 N.W.2d 761 (1979). The employee in this case has already recovered worker's compensation benefits from CLS. Therefore, allowing defendant to successfully assert that it too is plaintiffs' employer in contravention of its clear and unambiguous contract does nothing to further the act's purpose.
Moreover, we recognized in Farrell the underlying rationale of the exclusive remedy provision of the WDCA.[4]It is to shield the employer from tort liability when the employer agrees to assume automatic liability for all employee injuries. Farrell, supra at 274, 330 N.W.2d 397. Here, according to the unambiguous terms of the contract, defendant never agreed to assume worker's compensation responsibility. Therefore, defendant should not be allowed to assert the exclusive remedy provision as an affirmative defense.[5]
CONCLUSION
I have difficulty imagining a clearer example than this of a case where neither the labor broker relationship nor the economic realities test should control employment status. Where the terms of a contract are clear and unambiguous, they should be enforced as written. Defendant entered into an agreement that, by its clear and unambiguous terms, denied that defendant was plaintiffs' employer, specifically spelling out that CLS was the sole employer. Under the circumstances, defendant should be bound by the terms of its contract. As it is not plaintiffs' employer, defendant is liable in tort for any negligence to plaintiffs. I would remand these cases to the trial court for further proceedings.
MICHAEL F. CAVANAGH and BOYLE, JJ., concurred with KELLY, J.
NOTES
[1] The statute provides in pertinent part: "The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer...." M.C.L. § 418.131(1); M.S.A. § 17.237(131)(1). The only exception to the exclusive remedy provision is an intentional tort, which has not been alleged in these cases. Id.
[2] In her dissent, Judge Neff highlighted the following provisions in the agreement between CLS and Miller-Davis, entitled "Agreement Between Construction Labor Services, Inc. and Miller-Davis Company":
1. CLS provided construction trades personnel on an independent contractor basis.
2. Such leased personnel were not to be employees of Miller-Davis for any reason.
3. CLS was responsible for all employment matters. This included withholding taxes; payment of withheld taxes and employment-related taxes; providing worker's compensation, disability, life and group health insurance; providing a pension plan. In addition CLS was responsible for any contract administration matters respecting any collective bargaining agreements covering the leased employees.
7. CLS had the sole responsibility for recruiting, hiring, training, evaluating, replacing, supervising, disciplining, and discharging construction workers leased to Miller-Davis. CLS also was to designate on-site supervisors to direct operational and administrative matters and directly supervise CLS trades personnel. CLS retained the responsibility to establish procedures under which CLS employees conducted their job performance and times of employment. Further, Miller-Davis could not modify the contract between CLS and its leased personnel, nor could it recruit, hire, train, evaluate, replace, supervise, discipline, or discharge leased individuals. However, CLS agreed to remove any person leased to Miller-Davis that Miller-Davis in its sole discretion deemed unsatisfactory and find a suitable replacement.
8. CLS was to implement its policies and procedures relating to leased personnel.
9. CLS agreed to indemnify and hold harmless Miller-Davis as owner and architect.
[3] In Powell, the majority found that a women employed as an industrial homeworker retouching photographic negatives was an independent contractor and thus not an employee for purposes of unemployment compensation. Everything about her employment was controlled by the employer except that her work was completed at home. Id. at 457, 460, 75 N.W.2d 874.
[4] In Nichol, after applying the economic-reality test, we held that the defendant was an independent contractor as a matter of law, and remanded the case for trial on the issue of negligence. Id. at 306, 279 N.W.2d 761.
[5] The fourth case involved an International Hockey League linesman who was attacked by an irritated hockey player. Applying the economic-reality test to the relationship between the linesman, the league, and the team, we held that the hockey team was not the plaintiff's employer; thus, the hockey player was not a fellow employee, and the linesman's suit against the team was not barred.
[6] "[T]ort litigation is an adversary contest to right a wrong between contestants; workers' compensation is a system, not a contest, to supply security to injured workers and distribute the cost to the consumers of the product." 1 Larson, Workmen's Compensation, § 2.70, pp 1-16. The notion of fault is eliminated, and the idea is compensation tied to earnings, the costs of which are ultimately passed on to the consumers. Id., §§ 3.00-3.30, pp 1-17 to 1-19.
[7] We stop short of holding that a labor broker-customer relationship will always establish dual employer status as a matter of law. In this regard, we note that Farrell may be seen as ambiguous. We held in Farrell that the exclusive remedy provision bars a separate tort action against the employer in a labor broker situation. Yet, additional language in that opinion indicates that the inquiry does not end there because we recognized that the labor broker relationship must still be "viewed in terms of control, payment of wages, allocation of responsibilities, maintenance of discipline, etc....." Id. at 277, 330 N.W.2d 397. We realize that this may appear to be inconsistent. However, each case turns on its own facts and, as hinted at in Farrell and reemphasized in our decision today, we note that the existence of a labor broker relationship in and of itself may not always be dispositive.
[8] The fact that the contract was for twelve months, renewable yearly, does not change the fact that CLS was a labor broker providing temporary workers.
[9] Excerpts from the depositions of CLS employees are illustrative: The first excerpt is from the deposition of Frank Lombardo, a CLS foreman on the site where plaintiff Kidder was injured. Benny Korndyke "was the big boss" from Miller-Davis:
Q. Was there a particular company or person from whom you received your daily supervision? In other words, who told you what to do when you got to the job every day?
A. Well the job supervisor was Benny Korndyke.
Q. Korndyke, K-o-r-n-d-y-k-e?
A. Yes.
Q. Would Benny Korndyke have the power and authority to tell you, hey, we are not going to start until 10:00 o'clock today, something like that?
A. Oh, yes.
Q. That would be one of his jobs?
A. Right.
Q. If Ben Korndyke saw something that you were doing that he believed should have been done in a different area or done differently, could he direct you to direct your people to do it differently?
A. Oh, yes. Yes.
Q. If Ben Korndyke was not happy with one of the people who was working under you, you have given me these three journeymen iron workers, could he have told you to remove them from the job?
A. Yes. He could have.
The following excerpts are taken from the depositions of James Lash, a Miller-Davis superintendent.
Q. What if CLS had too many people on the job, how would that affect you as a Miller-Davis superintendent?
A. If CLS had too many people on the job, then I have the authority to dismiss the ones that I don't feel are necessary.
Gerald Lash testified:
Q. Would it be unusual for CLS, the company, to provide tools for its employees?
A. Yes, it would.
[10] Still other excerpts are illustrative:
Q. When you were using the acetylene torch are there other pieces of equipment or clothing or safety things that are required for you to wear?
A. Yes.
Q. What are those things?
A. Goggles and you have to wear a hard hat all the time.
Q. Are gloves required?
A. No, not necessarily.
Q. Is that part of your standard equipment that you bring to a job or is that something you get from the Miller-Davis people?
A. Get that from Miller-Davis.
[11] Miller-Davis did not want day-to-day administrative responsibility for paperwork and general employment matters. This is specifically why it hired a labor broker. However, this in no way lessens the fact that control of the work site and project belonged unequivocally to Miller-Davis. Further, the record indicates that the contract was necessary for the protection of the union workers hired by CLS and keeping their business affairs separate from nonunion Miller-Davis employees.
[12] We are cognizant that other jurisdictions may decide differently just how much deference to give the employment agreement. Again, we are persuaded that our view, to treat the agreement as one of many factors, not dispositive in and of itself, best advances the policies and purposes embodied in the worker's compensation act. See O'Loughlin v. ServiceMaster Co. Ltd. Partnership, 216 Ill.App.3d 27, 159 Ill. Dec. 527, 576 N.E.2d 196 (1991) (contract is to be considered, but is not necessarily conclusive); Red Line Express Co. v. Workmen's Compensation Appeal Bd., 138 Pa. Cmwlth. 375, 384, 588 A.2d 90 (1991) (lease providing for "exclusive possession and use" is important factor in determining who is employer, but is not conclusive). But see Kirby v. Union Carbide, 373 F.2d 590, 595 (C.A.4, 1967) (the contract is controlling); Dugas v. Pelican Construction Co., 481 F.2d 773, 778 (C.A.5, 1973) (the contract is controlling); Thornton v. Paktank Florida, Inc., 409 So. 2d 31, 33 (Fla.App., 1981) (the contract is controlling); Hill v. Erdle Perforating Co., 53 A.D.2d 1008, 386 N.Y.S.2d 265 (1976) (the contract is a factor in creating the jury question with regard to an employer-employee relationship); see O.H. Jackson v. Weaver, 516 So. 2d 702, 705 (Ala.Civ.App. 1987) (the lease agreement is a factor to be considered in assessing the employer-employee relationship).
[1] 416 Mich. 267, 330 N.W.2d 397 (1982).
[2] 17 Mich.App. 259, 262, 169 N.W.2d 326 (1969).
[3] Likewise, other jurisdictions have discussed the relationship between labor brokers and worker's compensation laws. Different tests such as the control test and the economic realities test have been used to determine employment status. My research reveals no case that has found immunity under the respective worker's compensation laws solely because of the existence of a labor broker situation. See, e.g., McMaster v. Amoco Foam Products Co., 735 F. Supp. 941 (D.S.D., 1990); Honey v. United Parcel Service, 879 F. Supp. 615 (S.D.Miss., 1995); Wingate Taylor-Maid Transportation, Inc. v. Baker, 310 Ark. 731, 840 S.W.2d 179 (1992); Pettaway v. Mobile Paint Mfg. Co., Inc., 467 So. 2d 228 (Ala., 1985); Whitehead v. Safway Steel Products, Inc., 304 Md. 67, 497 A.2d 803 (1985); Danek v. Meldrum Mfg. & Engineering Co., Inc., 312 Minn. 404, 252 N.W.2d 255 (1977).
[4] M.C.L. § 418.131; M.S.A. § 17.231(131).
[5] As noted by the majority, other jurisdictions, in similar circumstances, have found the contract signed by the parties controlling. See Dugas v. Pelican Construction Co., 481 F.2d 773 (C.A.5, 1973); Kirby v. Union Carbide Corp., 373 F.2d 590 (C.A.4, 1967). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623604/ | 360 S.W.2d 297 (1962)
Thomas GREATHOUSE (Plaintiff) Respondent,
v.
Norman E. WOLFF (Defendant) Appellant.
No. 31080.
St. Louis Court of Appeals, Missouri.
September 18, 1962.
Motion for Rehearing or to Transfer Denied October 15, 1962.
*298 James W. Jeans, Gray & Jeans, St. Louis, for appellant.
James F. Koester, St. Louis, for respondent.
Motion for Rehearing or to Transfer to Supreme Court Denied October 15, 1962.
WOLFE, Judge.
This is an action for damages arising from personal injuries sustained by the plaintiff. The injuries occurred when the plaintiff was violently jerked forward, by a boat operated by the defendant, while engaging in water skiing. There was a verdict and judgment for $5,000 for the plaintiff, and after an unavailing motion for a new trial the defendant appealed.
The facts giving rise to this action come exclusively from the plaintiff and the defendant. They are brothers-in-law, and in July, 1960 they went to Lake Wappapello for a weekend in which they engaged in water skiing. Plaintiff Greathouse owned a fifteen-foot boat which was powered by a 70 horsepower motor. Greathouse, who was 32 years of age, six feet four inches in height and weighed about 260 pounds, *299 was an experienced water skier. He described himself as an "expert amateur".
He told in detail the manner in which the skiing was done. He stated that the skis are about five feet long and six inches in width, with a small finlike rudder or stabilizer toward the rear end and turning up slightly at the front. They have a rubber pocket into which the skier's feet fit. The skier is pulled along over the water by a motor boat, to which a seventy-five foot line is attached. The line is attached to one corner of the stern of the boat, and on the skier's end of the line is a wooden handle. This handle, which is about twelve inches long, is fastened in the middle to the tow line. The skier holds on to the handle with both hands and may release it at any time he wishes to do so. Neither the skier nor the skis are attached to the boat or the tow line by anything more than the skier's grip on the tow line handle.
Preparing to get out of the water to an upright position upon the surface, the skier doubles his knees and puts his arms around both legs. The skis are mostly submerged, tilting forward and upward with about a foot of their front above the water. With the skier in this crouched position in the water, gripping the tow line handle, the boat is started forward with sufficient speed to pull the skier to the surface. Greathouse stated that he could ski in a conventional position behind a boat such as he owned at a speed of 35 miles per hour. He said that the conventional posture of skiing was with the arms outstretched and the knees slightly bent. Falls into the water are not infrequent, and it is a mild sensation to so fall. One may do so by releasing the rope handle.
Prior to the weekend venture in question, the defendant Wolff had never done any water skiing, and he had never before operated a boat towing a skier. Wolff was experienced in the operation of motor boats, having engaged in boating on weekends over a period of two years. He had never operated a boat with a 70 horsepower motor before. Greathouse instructed him in the proper way to ski and in the proper way to operate a boat pulling a skier.
They arrived at the lake on Saturday and spent about six or eight hours skiing. They alternated, with Wolff skiing part of the time and Greathouse operating the boat, and then Greathouse would ski and Wolff would operate the boat. Wolff had operated the boat for about three or four hours on the day before the accident, and for about the same time on the day that the accident occurred. Greathouse said that he saw nothing wrong with his operation of the boat until the time of this injury.
As to the accident, Greathouse said that the water was claim and there were no other boats in their immediate vicinity. He had been skiing along in a conventional fashion for about five or ten minutes, at a speed of 20 to 25 miles per hour, when the boat slowed enough for the line to slacken slightly. Then Wolff threw the throttle of the boat wide open without any warning, and Greathouse was jerked from the skis and thrown into the water. His arm bone was dislocated at the shoulder, causing some splinter fractures.
After accelerating the boat Wolff looked back to see how Greathouse was faring, and saw that "he was in the air". He turned the boat, and when he came up to Greathouse he found him in a semi-conscious condition. He got him into the boat, and upon docking, he took him to a hospital. Wolff said to Greathouse, "I don't know what I was thinking about when I threw the throttle wide open. I should have known better than to throw the throttle wide open."
Wolff testified that the proper way to take slack out of the tow line is to slowly accelerate the speed of the motor. His explanation of the reason for the maneuver that he made with the boat, given at the trial, was that there were two racing boats ahead of him. They were about *300 two blocks away, and he was about to enter their wake. His testimony was as follows:
"A. Well, actually there is a double set of wakes from a boat, each side produces a separate set and when I saw the first set I felt that it would be better to slow the boat down and hit them easy because of the angle of the wake. If you hit a wake at an angle the boat rolls on you and if you hit it too fast with a rolling boat you can do damage not only to the boat but you can throw the operator out of the boat and I slowed down to pull back just as I went into the wake.
"Q. Did you earlier that day or the day before, had you ever encountered a wake such as this while you were towing Tom behind you? A. No.
"Q. Could you tell us what you did when you saw you were going to hit this wake at an angle and you were fearful of some of the things that might happen?
"A. Being afraid that I could possibly be tossed from the boat because of the size of the wake, I slowed the boat down and to do that I had to pull the accelerator back and as I went through the first set, the boat would pitch sideways on me slightly and in order not to lose Tom, I opened the throttle to keep Tom on board and while I was doing that the other boat would be going away from me and I had no more fear of it.
* * * * * *
"Q. In this particular instance, what were the particular factors that affected your judgment in moving the throttle forward when you felt the roll of the boat and the lessening of the pull from the back?
"A. I wanted to accomplish three things, one to keep from losing the boat or to keep myself from losing the boat and the other was not to lose the skier and that is why I accelerated."
There was considerable medical testimony about the plaintiff's injuries which need not be here considered, for no point is raised in relation to it. The first point raised by the appellant is that the court erred in giving Instruction No. 1, which is a verdict-directing instruction submitted by the plaintiff-respondent. It is as follows:
"The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence, the defendant was operating a motor boat on Lake Wappapello and that at said time the plaintiff was skiing behind the boat being operated by defendant at the end of a ski rope, if you so find, and if you further find that defendant caused the speed of said motor boat to be decreased by pulling back on the throttle, thereby permitting said ski rope to become slack and that while there was slack in said ski rope, defendant suddenly and without warning to plaintiff increased the speed of the said motor boat by pushing the throttle completely forward and to its maximum speed position, causing said line to become taut and to jerk plaintiff from said skis, thereby causing plaintiff to become injured, if you so find, and if you further find that defendant by suddenly increasing the speed of the boat failed to exercise ordinary care and that defendant was thereby negligent, and that plaintiff was in the exercise of ordinary care for his own safety and could not have known of said sudden increase of speed of said boat, in time thereafter to avoid said accident and injury to plaintiff, if you so find, and if you further find that defendant in the exercise of ordinary care could have known that a sudden increase of speed may jerk and injure the plaintiff, as shown in evidence, and if you further find that said accident and injury was a direct result of the negligence of defendant, then your verdict must be in favor of the plaintiff and against the defendant."
*301 It is asserted that the instruction omits any mention of the wakes of the boats that the defendant encountered, and that by reason of these wakes it was necessary to accelerate the speed of the boat in order to prevent himself from being pitched from the boat and losing the skier behind him. We are cited to the following cases which the defendant considers authority for the point raised. Lloyd v. Alton R. Co., 348 Mo. 1222, 159 S.W.2d 267; Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541; Evans v. Colombo, Mo.Sup., 319 S.W.2d 549; Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496.
We do not find these cases in any way analogous to the one here considered. The first case, Lloyd v. Alton R. Co., has to do with an instruction which assumed facts as to which there were valid inferences to the contrary and another instruction which was not supported by the evidence. The other cases involve action in an emergency situation which was raised as a defense in an automobile collision case; the skidding of an automobile raised as a defense; and divergent conflicting evidence as to the cause of an automobile collision.
The negligence here charged and submitted was that the defendant suddenly threw the throttle of the motor to full speed without warning at the time when the tow line was slack. There was no dispute about this. The defendant admitted it, and the above-quoted instruction covered it. The defendant did not plead or state in evidence that it was necessary, because of the wake of the other boats, to suddenly accelerate to full speed, and a gradual acceleration admittedly would have been harmless. He did not state that it was necessary to approach the wake at the angle of approach employed, or to approach it at all. He did not request any instruction, and none was given nor requested, which covered an emergency situation. The only defense set up by the instructions offered was that under certain facts, not in relation to the wake, the plaintiff could be found guilty of contributory negligence in failing to release the tow line.
We must hold the appellant here to the theory upon which he tried the case below. Blankenship v. St. Joseph Fuel Oil & Mfg. Co., 360 Mo. 1171, 232 S.W.2d 954; Huber v. Western & Southern Life Ins. Co. of Cincinnati, Mo.App., 341 S.W.2d 297; Jones v. Missouri Petroleum Products Company, Mo.Sup., 331 S.W.2d 573.
It is further asserted that Instruction No. 1 gave the jury a "roving commission" and is confusing. We do not think the instruction could have misled the jury in passing upon the simple issues presented to them, or that it invited them to consider negligence beyond the pleadings and proof.
We consequently hold that the giving of the instruction was not error.
The second point raised is that the court erred in permitting the plaintiff to testify that "the normal way to take slack out of the line" is to "ease the throttle slowly forward."
This answer came upon redirect examination of the plaintiff after the defendant's counsel, on extensive cross-examination, had qualified the plaintiff as an expert on skiing and had asked many questions about the manner in which it was done. It was a valid opinion by an expert, and there appeared to be no controversy whatsoever that it properly stated the normal way to take slack out of the line. The defendant himself testified that it was. We find this point to be without merit.
The last point raised goes to the final argument of plaintiff's counsel. He made but slight mention of the plaintiff's injuries in the first part of his argument, and when he started to speak of them in rebuttal, defendant's counsel objected on the grounds that it was not proper rebuttal as nothing had been said about the injuries in the opening part of plaintiff's final argument. This objection was overruled.
It is true that the Canons of Ethics provides (V.A.M.R. 4.22) that it is not candid or fair for a lawyer, where he has the opening *302 and closing arguments, to mislead his opponent by "concealing or withholding positions in his opening argument upon which his side then intends to reply." There appears to be no "concealing or withholding" with the intention to mislead here. The argument in rebuttal did not elaborate upon the injuries to any great extent or even suggest the amount of the verdict. The trial court has wide discretion in passing upon the effect and propriety of arguments by counsel. In the absence of an abuse of that discretion, we defer to the trial court. Votrain v. Illinois Terminal R. Co., Mo. Sup., 268 S.W.2d 838; Goldstein v. Fendelman, Mo.Sup., 336 S.W.2d 661. It may further be stated that there is no claim that the damages awarded are excessive. We find nothing prejudicial to the defendant by reason of the argument.
For the reasons stated, the judgment is affirmed.
ANDERSON, P. J., concurs.
RUDDY, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623593/ | 569 So. 2d 597 (1990)
STATE of Louisiana, Appellee,
v.
Barry E. EDWARDS, Appellant.
No. 21850-KA.
Court of Appeal of Louisiana, Second Circuit.
October 31, 1990.
Rehearing Denied November 29, 1990.
*598 Wellborne Jack, Jr., Shreveport, for appellant.
Whitley R. Graves, Ass't. Dist. Atty., Benton, for appellee.
Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
FRED W. JONES, Jr., Judge.
Defendant Edwards, originally charged with possession of cocaine, stood trial on the amended charge of possession of cocaine with intent to distribute. R.S. 40:967(A). He was convicted by a jury and sentenced to 10 years at hard labor. He appealed, assigning 20 errors raising these issues:
1) Whether errors during his trial deprived defendant of fundamental fairness and allowed him to be wrongfully convicted by affidavit, unconfrontable hearsay, gossip, innuendo and police opinion.
2) Whether the evidence was insufficient to convict defendant of possession of cocaine or possession of cocaine with intent to distribute.
3) Whether the rush to judgment leading up to defendant's trial and errors relating to pre-trial motions and discovery denied him due process of law.
4) Whether the trial court erred post-trial in ruling upon the motion for post-verdict judgment of acquittal, motion for new trial and motion in arrest of judgment.
5) Whether the 10 year sentence was excessive for this first offender convicted of possessing a small amount of cocaine with intent to distribute.
By defendant's first assignment he contends the trial court committed reversible error when it admitted into evidence, over defense objection, State Exhibit No. 1, the affidavit in support of the search warrant. Since the contention is meritorious, we reverse defendant's conviction and sentence and remand for a new trial.
At the commencement of trial, the State called as its first witness, Ricky Spiers, Captain of the narcotic and vice section of the Bossier City Police Department. Spiers testified that after receiving information from a "non-police officer" concerning defendant, he sought and was granted a search warrant for a 1983 gold Mercedes Benz commonly driven by defendant. The warrant, which authorized the seizure of cocaine, was based on an affidavit executed by Spiers reciting information allegedly received by him. The State emphasized to the jury that these documents had been signed by a judge.
*599 Spiers testified that in the early morning hours of June 10, 1989 he and other members of the Bossier Police Department went to the parking lot of the LeBossier Hotel and located the gold Mercedes Benz. At Spiers' instruction, one officer went into the Vertigo Lounge, which is located inside the LeBossier Hotel, found the defendant, informed him that a search warrant for the Mercedes had been obtained and asked him to come out to the car. Because defendant stated he did not have the keys to the car, a locksmith was called in order to gain entry. The ensuing search revealed 0.42 grams of cocaine powder located in an envelope inside a folded magazine page in the glove box. Defendant was then placed under arrest.
At the conclusion of Spiers' testimony, the State offered the affidavit and search warrant into evidence. Defendant objected on the ground that the affidavit contained hearsay evidence. The objection was overruled without explanation.
When defendant requested that the hearsay portions of the document be stricken prior to its exhibition to the jury, the court told him, in the presence of the jury:
"(T)he document is introduced into evidence. If you want to introduce some other evidence to counter that some way, that's fine when it comes the right time to do it but I'm not going to introduce allow a document to be introduced and I'm not going to strike any portion of it and I'm not going to allow counsel to make statements to the Jury as to what you think about it or don't think about it. When you get an opportunity to argue the case, you can do that. Right now the document's introduced into evidence as is. I'm going to allow the State to show it to the jury as it is."
The affidavit was then presented to the jury for examination. The affidavit stated in pertinent part:
Within the past forty eight (48) hours, affiant has been contacted by a confidential reliable informant (hereinafter referred to as C.I.) who has given information that a Shreveport, Louisiana attorney, black male, Barry Edwards, is distributing illegal narcotics, namely cocaine, in Bossier City, Louisiana. C.I. further stated that Barry Edwards distributes the cocaine out of a gold colored, four (4) door Mercedes, bearing Louisiana license # 540X831. C.I. told affiant that these illegal narcotic transactions are occurring in the parking lots of the Cowboys Lounge and Vertigos Lounge, which are both located in Bossier City, Bossier Parish, Louisiana. C.I. further stated that he/she has been lawfully present inside the above mentioned Mercedes several times with Barry Edwards and each time while present, has seen white powder that Edwards reported was cocaine.
The Bossier City Narcotics Division, the Shreveport Narcotics Division and the Federal Bureau of Investigations all have had numerous narcotics intelligence reports concerning Barry Edwards dealing cocaine in the Shreveport/Bossier area.
This C.I. has given the Bossier City Narcotics Division numerous information in the past concerning narcotic violators from our area and all of the information has been proven very accurate and reliable.
Based upon the above reliable information, the affiant believes that he has just and probable cause to believe that now located in a gold colored Mercedes bearing Louisiana license # 540X831 there is a quantity of white powder, believed to be cocaine. Due to this information, the affiant prays that a search warrant be issued for this vehicle.
The State now concedes that the affidavit contained inadmissible hearsay and the trial court erred in permitting its introduction. C.E.Art. 802; State v. Wille, 559 So. 2d 1321 (La.1990); State v. White, 559 So. 2d 541 (La.App. 2d Cir.1990). However, the State contends the error was harmless.
The State asserts that one of its witnesses, Audrey Smith, Lawrence Holland or Thomas Jessup, was the confidential informant (CI) referred to in the affidavit. Accordingly, the State argues defendant's right to confront his accusers was *600 not impinged upon by the trial court's error because defendant was permitted to fully cross-examine these witnesses. The State further argues the testimony of these three witnesses merely reiterated the information contained in the affidavit, rendering the hearsay information cumulative evidence.
There is absolutely no evidence in the record indicating that Smith, Holland or Jessup was the CI referred to in the affidavit. No witness so testified and the trial court prevented each of defendant's attempts at discovery of the CI's identity. Introduction of the affidavit served to effectively deny defendant his constitutional right to confront his accusers. State v. Bazile, 386 So. 2d 349 (La.1980); State v. Graham, 486 So. 2d 1139 (La.App.2d Cir. 1986), writ denied, 493 So. 2d 633 (La.1986).
The record further shows that the hearsay evidence attributed to the CI was not cumulative with the testimony of Smith, Holland or Jessup. There were facts purportedly provided by the CI tending to establish defendant's guilt of possession of cocaine with intent to distribute other than those testified to by these three witnesses. Although the testimony suggested the witnesses knew defendant through his frequenting Vertigo's lounge, none of the three specifically stated that the illegal narcotics transactions occurred in the parking lots of Cowboys and/or Vertigo's Lounge. None of the three indicated the drug transactions occurred so close to the issuance of the warrant as to give the police probable cause to believe the Mercedes contained cocaine. No one stated that he knew the license number of the Mercedes. None of the three indicated he had contacted Spiers within 48 hours of the execution of the affidavit. Finally, no State witness indicated that any of the three had previously given information to the Bossier Narcotics Division and the information had proven reliable and accurate.
Ms. Smith testified she had received cocaine from defendant in a gold Mercedes Benz approximately seven or eight times on Saturday nights, with the last occurrence being the beginning of March 1989. Although she admitted being at the LeBossier Hotel and having seen defendant on March 10, the night of his arrest, she could not provide the date which they had last used cocaine.
Holland testified he had received cocaine from defendant in a gold Mercedes Benz approximately eight to ten times. Although he admitted being at the LeBossier Hotel on the night of defendant's arrest, he denied seeing defendant. He did not indicate when he was last given cocaine by defendant.
Jessup testified he had received cocaine from defendant in a gold Mercedes Benz approximately fifteen to twenty times. He stated he had seen defendant at the LeBossier Hotel on the night of his arrest. He did not indicate when he was last given cocaine by defendant.
In addition to the hearsay information allegedly provided by the CI, the affidavit made reference to "numerous narcotics intelligence reports" in the possession of the Bossier City Narcotics Division, the Shreveport Narcotics Division and the Federal Bureau of Investigations. Insofar as the FBI report is concerned, the State argues the sources of the information in the FBI report were Holland, Jessup and Smith and their direct testimony at trial eliminated the necessity for an FBI agent's testimony. There is nothing in the record indicating the basis for the information contained in the alleged FBI report. Spiers himself testified he had never actually seen any of these reports and only "knew of" their existence.
The hearsay information contained in the affidavit cannot be called cumulative as it was significantly more extensive than that provided by the State's evidence. State v. Banks, 439 So. 2d 407 (La.1983).
In order for an appellate court to affirm a defendant's conviction when hearsay evidence has been improperly admitted at trial, the court must determine, beyond a reasonable doubt, that the improperly admitted evidence did not contribute to the verdict. State v. Banks, supra; State v. White, supra.
*601 Given the emphasis placed on the contents of the affidavit through the State's presentation of the exhibit to the jury at the beginning of trial, the trial court's discussion of defendant's objection to the exhibit's introduction in the presence of the jury, and the repeated reference to the fact the affidavit had been signed by a judge, the trial was tainted by hearsay from the time the first witness left the stand. As in Banks, the hearsay was the very first evidence that the State put on and probably made a lasting impression on the jury. Neither was this error cured by subsequent events at trial. The record belies the State's contention that the hearsay evidence contained in the affidavit was merely cumulative. State v. Banks, supra. Nor is there any basis for the State's claims that its witnesses provided the basis for hearsay information in the affidavit. Finally, as in State v. White, supra, the State discussed the hearsay in its closing argument to the jury stating:
"Remember the affidavit that Captain Spier (sic) said that he wrote out and was signed by Judge Robinson, part of the evidence. Showed it to you and you had the opportunity to read it."
and
"(I)ntelligence reports are not mere rumors."
The court itself, in its charge to the jury, instructed the jurors to consider the evidence which consisted of "the testimony of witnesses and of exhibits such as writings and physical objects which the court has permitted the parties to introduce." The fact the jury gave credence to this exhibit is evidenced by the fact it requested the affidavit during its deliberations.
Without the trial court's erroneous admission of the affidavit and the State's emphasis on the information therein contained, the jury may not from the State's evidence have drawn the conclusion of inference that defendant intended to distribute the small quantity of cocaine discovered in his possession.
We find the erroneous admission of the hearsay evidence was prejudicial and affected substantial rights of the accused and was not harmless beyond a reasonable doubt. C.Cr.P. Article 921; State v. Banks, supra; State v. White, supra.
Having found reversible error in defendant's first assignment, we pretermit consideration of the remaining assigned errors.
Decree
For these reasons, defendant's conviction is REVERSED and his sentence VACATED, and the case is REMANDED to the district court for a new trial.
Application for Rehearing
Before MARVIN, FRED W. JONES, Jr., SEXTON, NORRIS and HIGHTOWER, JJ.
Rehearing denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/68954/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10705 ELEVENTH CIRCUIT
SEPTEMBER 21, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00531-CR-2-KOB-TMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD ORLANDO MCCRAY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(September 21, 2009)
Before BIRCH, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Richard Orlando McCray appeals his conviction and 180-month sentence for
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
McCray initially pled guilty to the felon-in-possession charge, but in a prior
appeal, United States v. McCray, No. 07-13878 (11th Cir. June 11, 2008)
(“McCray I”), we vacated his guilty plea and remanded the case. On remand, a
jury found McCray guilty and the district court imposed the mandatory-minimum
sentence of 180 months’ imprisonment after finding that McCray qualified as an
armed career criminal under U.S.S.G. § 4B1.1 and 18 U.S.C. § 924(e). In this
appeal, McCray argues that: (1) the district court erred in allowing the government
to propose an alternate theory of guilt in its closing rebuttal argument; (2) the court
abused its discretion in denying his motion for sanctions under the spoliation
doctrine; (3) his 180-month mandatory-minimum sentence under the Armed Career
Criminal Act (“ACCA”) is cruel and unusual; and (4) his sentence is
unconstitutional because the prior convictions used to enhance it were not alleged
in the indictment or proved to the jury. After thorough review, we affirm.
Typically, we review a claim of prosecutorial misconduct during closing
arguments de novo because it is a mixed question of law and fact. United States v.
Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). We also review de novo questions
of law. See United States v. Clark, 83 F.3d 1350, 1352 (11th Cir.1996). However,
because McCray failed to object to the theory of guilt proposed by the government
in its rebuttal argument, we review his prosecutorial misconduct claim under the
plain-error standard. See United States v. Newton, 44 F.3d 913, 920 (11th Cir.
2
1995). “We will correct plain error only where (1) there is an error; (2) the error is
plain or obvious; (3) the error affects the defendant’s substantial rights in that it
was prejudicial and not harmless; and (4) the error seriously affects the fairness,
integrity, or public reputation of a judicial proceeding.” United States v. Dorman,
488 F.3d 936, 938 (11th Cir. 2007).
In addition, “[w]e review the district court’s decision regarding spoliation
sanctions for abuse of discretion,” Flury v. Daimler Chrysler Corp., 427 F.3d 939,
943 (11th Cir. 2005), just as we review a district court’s evidentiary decisions in a
criminal case for abuse of discretion, United States v. Gunn, 369 F.3d 1229, 1236
(11th Cir. 2004). We review de novo whether a sentence violates the Eighth
Amendment. United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006).
First, we disagree with McCray’s argument that the district court erred in
allowing the government to argue in its closing rebuttal argument that he
knowingly possessed the firearm based solely on evidence that showed that he
removed the firearm from his truck. In order to establish prosecutorial misconduct,
a defendant must show that (1) the prosecutor’s remarks are improper, and (2) the
remarks prejudicially affect his substantial rights. Eckhardt, 466 F.3d at 947. A
felon-in-possession conviction under 18 U.S.C. § 922(g)(1) requires proof of the
following three elements: “(1) that the defendant was a convicted felon, (2) that the
3
defendant was in knowing possession of a firearm, and (3) that the firearm was in
or affecting interstate commerce.” United States v. Deleveaux, 205 F.3d 1292,
1297 (11th Cir. 2000).
Possession may be actual or constructive. United States v. Pedro, 999 F.2d
497, 500 (11th Cir. 1993). Knowing possession means that the possession was
voluntary and intentional, and not the result of a mistake or accident. See United
States v. Woodruff, 296 F.3d 1041, 1047 (11th Cir. 2002). To establish the
knowing possession element of § 922(g)(1), “[t]he prosecution need show only that
the defendant consciously possessed what he knew to be a firearm.” Deleveaux,
205 F.3d at 1298. The prosecution need not show that the defendant knew that his
possession of a firearm was unlawful. Id. A defendant’s motive or purpose for
possessing the firearm is not the focus of § 922(g)(1). United States v. Reynolds,
215 F.3d 1210, 1214 (11th Cir. 2000).
On this record, the district court did not err, plainly or otherwise, in allowing
the government to argue to the jury its theory that McCray possessed the firearm
when he removed it from his truck. Consistent with the government’s theory,
McCray admitted to removing the firearm from his truck knowing what it was and
with the intent to dispose of it, which satisfied the knowing possession element of
§ 922(g)(1) because he consciously and voluntarily possessed the firearm, not as a
4
result of a mistake or accident. See Woodruff, 296 F.3d at 1047; Deleveaux, 205
F.3d at 1298. Therefore, the government’s alternate theory of guilt, that McCray
possessed the firearm as soon as he removed it from his truck, did not give rise to a
prosecutorial misconduct claim because it was based on a proper statement of the
law and facts. See Eckhardt, 466 F.3d at 947.1
We likewise reject McCray’s claim that the district court abused its
discretion in denying his request for sanctions under the spoliation doctrine due to
the destruction of the firearm at issue while McCray I was pending. In criminal
cases, courts have developed law regarding a defendant’s “constitutionally
guaranteed access to evidence.” Arizona v. Youngblood, 488 U.S. 51, 55 (1988)
(quotation omitted). That area of law includes claims, under Brady v. Maryland,
373 U.S. 83 (1963), that the prosecution suppressed exculpatory evidence, as well
as claims that the government destroyed potentially exculpatory evidence. See
Youngblood, 488 U.S. at 55-57. In the latter cases, involving the destruction of
evidence, a defendant’s constitutional right to due process is violated only if the
evidence was constitutionally material because it was likely to significantly
contribute to his defense. United States v. Brown, 9 F.3d 907, 910 (11th Cir.
1
Despite McCray’s contention, Rent v. United States, 209 F.2d 893 (5th Cir. 1954), does
not provide a basis for relief because the offense there required evidence of criminal intent in
order for possession to be unlawful, which was the basis of the Court’s holding, whereas §
922(g)(1) requires no such evidence. Compare id. at 900, with Deleveaux, 205 F.3d at 1298.
5
1993). To meet this standard of materiality, the evidence must have possessed
exculpatory value that was apparent before its destruction, and the defendant must
be unable to obtain comparable evidence. Id. Moreover, the defendant must
demonstrate that the government acted in bad faith in destroying the evidence. Id.
We have recognized the potential availability of spoliation sanctions in a
civil case if a party fails to preserve evidence. Flury, 427 F.3d at 943-45.
“[S]poliation sanctions constitute an evidentiary matter,” and “are intended to
prevent unfair prejudice to litigants and to insure the integrity of the discovery
process.” Id. at 944 (emphasis added). A court has broad power to impose
spoliation sanctions, but it may dismiss a case only if “there is a showing of bad
faith and where lesser sanctions will not suffice.” Id.
A party is prejudiced by the absence of evidence only if the evidence is
material, such that there is a reasonable probability that, had the evidence been
introduced, the result of the proceeding would have been different. See United
States v. Bagley, 473 U.S. 667, 679-82 (1985) (involving a case of prosecutorial
failure to disclose exculpatory evidence). “A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.” Id. at 682.
Even assuming, arguendo, that sanctions were available to McCray under the
spoliation doctrine, the district court did not abuse its discretion in denying his
6
motion for sanctions. There is no dispute that sanctions under the spoliation
doctrine only were warranted in this case if the evidence destroyed, the firearm,
was material to McCray’s defense. See id.; Flury, 427 F.3d at 944. The firearm
was not material, however, because there is no reasonable probability that the
fingerprint evidence that in theory could have been recovered from the firearm and
ammunition would have changed the outcome of the trial. This speculative
fingerprint evidence could have, at best, corroborated McCray’s claim that a
second man named Roosevelt left the firearm in his truck without his knowledge.
But as discussed above, McCray’s story -- that he removed the firearm from his
truck and, when the police approached, placed it into his pocket -- demonstrated
that he voluntarily possessed the firearm and was guilty under § 922(g)(1). Thus,
there is no reasonable probability that the jury would not have found him guilty.
See Bagley, 473 U.S. at 682; see generally United States v. Ramirez, 426 F.3d
1344, 1352 (11th Cir. 2005) (“A jury is presumed to follow the instructions given
to it by the district judge.”). Accordingly, any fingerprint evidence McCray
theoretically could have obtained from the firearm was not material to his defense.
Next, we are unpersuaded that McCray’s 180-month mandatory-minimum
sentence imposed under the ACCA is cruel and unusual under the Eighth
Amendment. The Eighth Amendment’s prohibition of cruel and unusual
7
punishment in non-capital cases encompasses only a narrow proportionality
principle. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). In
reviewing an Eighth Amendment challenge, we first
must make a threshold determination that the sentence imposed is
grossly disproportionate to the offense committed and, if it is grossly
disproportionate, the court must then consider the sentences imposed
on others convicted in the same jurisdiction and the sentences
imposed for commission of the same crime in other jurisdictions.
Reynolds, 215 F.3d at 1214. Successful proportionality challenges are rare
because we give Congress substantial deference to determine the types and limits
of criminal punishment. Raad, 406 F.3d at 1323. Accordingly, “a sentence within
the statutory limits generally does not violate the Eighth Amendment.” Johnson,
451 F.3d at 1243.
In Reynolds, we held that the 15-year mandatory-minimum sentence for
violating the ACCA, 18 U.S.C. § 924(e), does not constitute cruel and unusual
punishment. 215 F.3d at 1214. Although the defendant, who was convicted under
§ 922(g), argued that “his recent possession of the firearm was for an innocent
reason,” we noted that §§ 922(g) and 924(e) “do not focus on the motive or
purpose of the current possession of firearms, but rather on the fact that a person
with three or more violent felony or serious drug convictions currently possesses a
8
firearm.” Id. Thus, the defendant could not show that his sentence was grossly
disproportionate to the offense committed. Id.
As the record shows, the district court did not err in rejecting McCray’s
argument that his 180-month mandatory-minimum sentence under the ACCA
violated the Eighth Amendment. McCray fails to demonstrate that his sentence is
grossly disproportionate to his felon-in-possession offense -- an offense that
focused on the fact that he possessed a firearm after previously committing four
violent felonies. See id. Although he argues that his conduct in the instant case
was innocent and not “morally blameworthy,” we have has rejected a similar
argument while also holding that the ACCA’s 15-year mandatory-minimum
sentence did not violate the Eighth Amendment. See id. McCray therefore has
failed to show that his sentence is cruel and unusual.
Finally, we find no merit in McCray’s argument that his sentence is
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), on the
ground that the prior convictions used to enhance it were not alleged in the
indictment or proved to the jury. In Almendarez-Torres v. United States, 523 U.S.
224 (1998), the Supreme Court held that “the government need not allege in its
indictment and need not prove beyond a reasonable doubt that a defendant had
prior convictions for a district court to use those convictions for purposes of
9
enhancing a sentence.” United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.
2004). Almendarez-Torres preceded Apprendi, in which the Court held that,
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. We have held that
Almendarez-Torres remains binding despite Apprendi. United States v. Greer, 440
F.3d 1267, 1273 (11th Cir. 2006). Under our prior precedent rule, “a prior panel’s
holding is binding on all subsequent panels unless and until it is overruled or
undermined to the point of abrogation by the Supreme Court or by this court sitting
en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
McCray’s 180-month enhanced mandatory minimum sentence under the
ACCA is not unconstitutional based on the government’s failure to allege the prior
convictions used to enhance his sentence in the indictment or prove them to the
jury. See Marseille, 377 F.3d at 1257 (citing Almendarez-Torres). As McCray
concedes, his argument is foreclosed by binding precedent. See Greer, 440 F.3d at
1273.
AFFIRMED.
10 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/86063/ | 37 U.S. 654
12 Pet. 654
9 L.Ed. 1232
THE UNITED STATES, APPELLANTSv.JOSEPH DELESPINE'S HEIRS, LAZARUS AND OTHERS
January Term, 1838
APPEAL from the superior court of East Florida.
The heirs of Joseph Delespine, and others, purchasers from Joseph Delespine, filed a petition to the supreme court of East Florida, praying confirmation of a grant to Joseph Delespine, made by Don Jose Coppinger, on the 9th day of April, 1817; he being then the Spanish governor of East Florida. The grant was for forty-three thousand acres, under which surveys were made by George J. F. Clarke, then surveyor of the province, according to the terms of the grant.
The petitioners exhibited, in support of their claim, the original translation, certified by Francis I. Facio, of the certified copy by Thomas de Arguilar, the government secretary of the province, which was brought into court by the keeper of the public archives of East Florida. Evidence was given, that the original grant by governor Coppinger had not been found among the archives, or any where. It was also in evidence, that a copy of the memorial of Joseph Delespine, and of the concession thereupon, for the forth-three thousand acres of land, purporting to have been certified by Thomas de Arguilar, as secretary of the government, was exhibited to the board of land claims of East Florida, which was, before the board, proved to have been in the handwriting of the government secretary, and signed by him. This document had been mislaid or lost.
The superior court of East Florida gave a decree in favour of the petitioners; and the United States prosecuted this appeal.
Mr. BUTLER, the attorney general of the United States, informed the Court, that on an examination of the record, he found nothing in the case to distinguish it from those which had been already decided in favour of claimants under Spanish grants; unless the Court should consider the circumstance of the original grant by governor Coppinger not having been found in the archives of Florida, as rendering the evidence of the grant insufficient.
The grant should have been found filed with similar papers in the proper office, but there it was not. It is admitted that the papers of the office are in disorder; and evidence was given in the superior court of Florida, which showed that negligence in the preservation of the papers frequently prevailed there. But the certified copy of the grant was not produced, it also had been lost; and the only evidence exhibited to the court, was a certified translation of a copy of the grant.
It is admitted that when a grant of land is made, the original is retained, and a copy only is furnished to the grantee; but the original is filed in the proper office. There no original can be found. The case must stand before the court as if the certified copy of the grant had been produced, for its loss is accounted for; but the question which this Court have to decide, is whether the grantees ought not to prove the original to be in existence. Cited Mitchell v. The United States, 9 Peters, 731; Owens v. Hull, 9 Peters, 621.
Mr. Justice WAYNE delivered the opinion of the Court:
1
In this case, it is conceded by the attorney general that the only ground upon which it can be taken out of the decisions of this Court, confirming the decrees of the courts of Florida, upon grants and concessions of land made by the authorities of the king of Spain to his subjects, before the 24th January, 1818; was, that the superior court of East Florida, in adjudicating upon this claim, received as evidence the copy of a copy of a concession or grant to Joseph Delespine. We think the copy, in this instance, was properly received by the court. The first copy was made from the original, filed in the proper office, from which the original could not be removed for any purpose. That copy, it is admitted, would have been evidence in the cause. It is shown, by the affidavit of Mr. Drysdale, to have been lost whilst the claim was under examination by the board of commissioners established by congress for ascertaining land claims in Florida; and that the copy received as evidence, is a translation of the first, certified by the secretary of the board of land commissioners, whose duty it was to translate Spanish documents given in evidence before the board of land commissioners; and is a part of the papers in this claim, transferred, according to law, to the keeper of the public archives of East Florida. And it appears, also, by proofs in this cause, that the papers in the office from which the first copy was taken, and the original of which is also sufficiently proved to have been on file, have been, by accident or otherwise, mutilated, since the first copy was taken; that the original could no longer be found; and, consequently, that the copy in this case, was the best evidence, from the nature of the case, which could be given of the existence of an original paper lost or destroyed.
2
The decree of the superior court of East Florida was confirmed.
3
This cause came on to be heard on the transcript of the record from the superior court for the district of East Florida, and was argued by counsel. On consideration whereof, it is now here decreed and ordered by this Court, that the decree of the said superior court in this cause be, and the same is hereby affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1623616/ | 360 S.W.2d 906 (1962)
Virginia CLEMENTS et al., Appellants,
v.
Harry McClelland SCHAEFFER, Appellee.
No. 13987.
Court of Civil Appeals of Texas, San Antonio.
October 3, 1962.
*907 Coneway & Forrester, Harlingen, for appellants.
Strickland, Wilkins, Hall & Mills, Asa V. Bland, Jr., Mission, Fillmore, Schaeffer & Fillmore, Wichita Falls, for appellee.
BARROW, Justice.
This is an appeal from a judgment awarding custody of a five-year-old boy to his father, Harry McClelland Schaeffer, after a hearing before the court on a writ of habeas corpus. Appellants are the maternal grandmother, with whom the boy resided following the death of his mother, and interveners, Ruth C. Smith, sister of the boy's mother, and her husband.
Harry McClelland Schaeffer and Alice Clements Schaeffer were divorced in the Circuit Court of Boyd County, Kentucky, In February of 1959, and their son, Jefferson King Schaeffer, who was then two years of age, was placed in the custody of his mother with the right of his father to visit Jeff at reasonable times. Immediately following the entry of said decree, and in accordance with its terms, Alice Schaeffer and her son moved to Texas, and lived in Nueces County with her father. Thereafter, Alice married James Bogatz, a chief petty officer in the Navy, and went overseas with him to Italy. She became pregnant and returned to the United States in December 1960, where she lived part of the time with her father in Corpus Christi, and part of the time with her mother in Cameron County, Texas. In August 1961, while living at the home of her mother, she was suddenly taken ill and died. Following her death, Jeff remained in his grandmother's custody, but spent much time with his aunt and uncle, Ruth C. and Clifton Earl Smith. The affection of the maternal grandmother for Jeff was not in issue, but in view of her age and physical condition she did not seek custody.
Shortly after the death of the boy's mother, appellee filed a petition in the Boyd County Circuit Court for custody of the child, and out of State service and notice were served on the maternal grandparents. They did not enter an appearance in the Kentucky Court. After a hearing, the Kentucky Court amended the original decree and the care and custody of the minor child was awarded to his father, who then instituted the present proceedings in the 103rd District Court of Cameron County, Texas. Ruth C. Smith and husband intervened and sought custody.
After a full hearing, the trial court awarded the father custody of his son and, at the request of appellants, filed findings of fact and conclusions of law. The trial judge found that the father was a fit and proper person to have the care, custody and control of Jeff, and that the best interest of the boy would be served by placing custody in his natural father. In the conclusions of law, the trial judge concluded that he was required to give full faith and credit to the decree of the Circuit Court of Boyd County, *908 Kentucky, awarding custody of the minor child to appellee, and that there was no change in conditions to justify changing said decree. The court further concluded that there was no showing that the interest of the minor child demands that his natural father be deprived of the custody of his child. Thus it will be seen that the trial court awarded said minor boy to his natural father upon two separate theories: giving full faith and credit to the Kentucky decree, and the right of a fit and proper person to have the custody of his natural child.
We do not deem it necessary to determine application of the full faith and credit of the Kentucky decree, in that appellee joined issue with appellants on their petition in intervention. This gave the court jurisdiction to determine custody. Short v. Short, Tex., 354 S.W.2d 933.
Upon the death of Alice Schaeffer Bogatz, the child's father, Harry McClelland Schaeffer, was entitled to custody of said minor child. Vernon's Annotated Probate Code § 109(a); Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79; Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551. In order to justify changing this custody to an outsider, it was necessary for interveners to show that the surviving parent was not a fit or proper person, or that he had relinquished his parental rights. Castro v. Castellanos, Tex.Com.App., 294 S.W. 525; Prock v. Morgan, Tex.Civ.App., 291 S.W.2d 489; Silva v. Aranda, Tex.Civ.App., 223 S.W.2d 333; Ochotorena v. Galarza, Tex.Civ.App., 210 S.W.2d 473.
The trial court's finding that appellee is a fit and proper person to have the care, custody and control of his son is fully supported by the evidence. Appellee remarried in November of 1960, and he and his wife maintain a good home; he is gainfully employed by the Kentucky Highway Department; and there is no evidence whatsoever of any intemperate or immoral conduct on the part of appellee.
Appellants assert that appellee did not fully comply with the support provision of the divorce decree prior to the death of Alice Schaeffer Bogatz, and therefore forfeited his right to the custody of his minor son. Appellee introduced evidence to explain his failure to make the support payments. He testified that at the time of the divorce the couple owed debts amounting to nearly $2,500.00, which he paid; that Alice and her new husband advised him that they were able to support Jeff and wanted appellee to make arrangements to provide for Jeff's secondary education; and he testified to gifts that he made to the boy. His failure to make the support payments was a factor to be considered by the trial court, but that alone would not support a conclusion of his unfitness. De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359. The trial court concluded that there was no showing which should deprive the surviving father of the care and custody of his minor child. This conclusion is fully supported by the evidence and the law applicable to this case.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623817/ | 569 So. 2d 493 (1990)
Russell HANSTEIN, Appellant,
v.
CITY OF FT. LAUDERDALE, Appellee.
No. 89-3380.
District Court of Appeal of Florida, First District.
October 8, 1990.
Rehearing Denied December 3, 1990.
Anthony J. Aloneftis of Jo Ann Hoffman, P.A., Plantation, for appellant.
Edward D. Schuster of Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, Fort Lauderdale, for appellee.
PER CURIAM.
Claimant appeals a workers' compensation order by which a claim for benefits was denied upon a determination that an injury sustained while on the way to work did not occur within the course of claimant's employment as a police officer. We find that the undisputed facts establish that claimant was within the course of his employment, and we therefore reverse the order appealed.
Claimant is a police officer who serves as a patrolman, and at a hearing on this claim it was established that claimant's primary responsibility includes "enforcement of all the laws ... including criminal laws and traffic laws." The alleged injury occurred while claimant was traveling from his home to the police station to begin work on his normal duty assignment. Claimant observed a tractor-trailer rig making an improper turn, and testified that he made "a conscious decision" to issue a citation for this violation, but that before he could do so his vehicle was struck by the tractor-trailer rig. Indicating that he has issued *494 other citations or made arrests while traveling to the police station to report for duty, claimant noted that he was driving his own private motor vehicle but was fully uniformed. Departmental policy provides that an off-duty officer will automatically be transferred to on-duty status upon observing a violation of law and taking "affirmative action." Because departmental policy also precludes an officer from issuing a citation for an accident in which the officer is involved, claimant did not issue a citation to the driver of the tractor-trailer rig. However, another officer arrived on the scene and did issue a citation.
After the hearing was concluded the judge entered an order acknowledging that the case law has established police officers as a special category to whom the "going and coming" rule, which might otherwise exclude coverage for injuries sustained while traveling to and from work, does not fully apply. But the judge erroneously construed section 440.091, Florida Statutes, as precluding coverage in the present case. In so ruling the judge noted that when the accident occurred claimant had not yet attempted to stop the driver of the tractor-trailer rig, and had not physically begun to issue a citation. The judge also found that claimant's intent to issue a citation did not place him in position to be involved in the accident. The judge then incorrectly determined that claimant was not discharging his primary law enforcement responsibility at the time of the accident.
Because police officers are generally charged with a duty of law enforcement while traveling on public thoroughfares, it has long been established that injuries which such officers sustain while traveling to and from work may be compensated under the Florida Workers' Compensation Law. See Warg v. City of Miami Springs, 249 So. 2d 3 (Fla. 1971); Sweat v. Allen, 200 So. 348 (Fla. 1941). In 1982 the legislature adopted section 440.091, Florida Statutes, which specifies when law enforcement officers should be considered to be acting within the course of their employment. The statute expressly requires that the officer be within the state and discharging a "primary responsibility" which includes "the prevention or detection of crime or the enforcement of the penal, criminal, traffic, or highway laws... ."
In City of Ft. Lauderdale v. Abrams, 561 So. 2d 1294 (Fla. 1st DCA 1990), this court determined that a forensic detective who was involved in an automobile accident while traveling to work was not discharging her "primary responsibility" and was thus not entitled to compensation since under section 440.091 her injury did not occur within the course of the employment. The detective in Abrams was traveling to work in her personal vehicle, and it was indicated that had she been called to make an investigation she would have proceeded to the police station to obtain a police van. While in the present case claimant was also in a personal vehicle, unlike the detective in Abrams claimant is a patrol officer whose primary responsibility is not limited to crime scene investigation, but rather includes the enforcement of traffic laws. Claimant was discharging this primary responsibility while traveling to the police station, and it was not necessary to actually issue a citation or take any affirmative action in this regard for the officer to be within the course of his employment as delineated in section 440.091. The ruling in Abrams does not apply to the circumstances of this case, and insofar as claimant was within the course of his employment the undisputed facts establish that the injury also arose out of the employment so as to be within the ambit of coverage under the Florida Workers' Compensation Law.
The order appealed is reversed and the cause remanded.
SHIVERS, C.J., and BOOTH and ZEHMER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1920575/ | 107 B.R. 628 (1989)
In re SLEFCO.
SLEFCO, Plaintiff,
v.
FIRST NATIONAL BANK OF STUTTGART, Defendant.
Bankruptcy Nos. AP 88-560, PB 87-518S.
United States Bankruptcy Court, E.D. Arkansas, Pine Bluff Division.
October 27, 1989.
*629 Richard Ramsay, Kim Tucker, Pine Bluff, Ark., John Gregg, Batesville, Ark., for debtors.
Baker Kurrus, Little Rock, Ark., for First Nat. Bank of Stuttgart.
Walter Dickinson, Little Rock, Ark., Trustee.
MEMORANDUM OPINION
MARY D. SCOTT, Bankruptcy Judge.
Now before the Court is an Objection and Counterclaim to the Claim filed by *630 First National Bank of Stuttgart ("FNB"). Slefco is an Arkansas general partnership. In addition to the partnership, three of its partners have sought the protection of the bankruptcy court. On June 9, 1987, Carl W. Simpson filed a Chapter 7 bankruptcy case, PB 87-240, and an adversary proceeding against FNB, AP 88-588, was filed by the Trustee on December 27, 1988. On September 4, 1987 Leland and Mildred Simpson filed a Chapter 11 bankruptcy case, PB 87-363, and an adversary proceeding against FNB, AP 88-363, was filed on December 16, 1988. On December 28, 1987 Slefco also filed a Chapter 11 bankruptcy case, PB 87-518, as well as an adversary proceeding against FNB, AP 88-560, which was filed on December 16, 1988. Because the claims and counterclaims in these cases and adversary proceedings are virtually identical, on January 10, 1989, they were, by agreement of all parties and the Chapter 7 trustee, consolidated for trial under Slefco, AP 88-560. The designations Plaintiff, Slefco, and/or debtor throughout this opinion include all Plaintiffs in the consolidated adversary proceedings.
The matter came on for trial January 24-26, 1989. The Plaintiff appeared by its partners and counsel, Richard Ramsay, Esq. and Kimberly Tucker, Esq. The Defendant, First National Bank of Stuttgart, appeared by its executive Vice-President, Cole Martin, and by counsel, Baker Kurrus, Esq. and John Gregg, Esq.
This Court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334. Moreover, the Court finds that it is a "core proceeding" within the meaning of 28 U.S.C. § 157(b)(2)(B) and (C) and may enter a final order.
The evidence presented by the parties was substantial and often conflicting. Testimony at trial revealed the following:
First National Bank of Stuttgart is a small bank located in the delta farming region of Arkansas with holdings of approximately $58,000,000.00. Of that amount, $14,000,000.00 is dedicated to agricultural loans with approximately 85% of its other loans being farm related. FNB characterizes its dealings with its customers as "informal" or "casual" due to the size of the bank, the small size of the town, and the fact that the bank deals mainly with farmers. Officers of FNB testified that most of its customers would be classified as unsophisticated borrowers who do not utilize the professional services of accountants. The legal lending limit for FNB is $1,600,000.00.
Leland and Mildred Simpson have been in the farming business for 35 years. In addition to farming, they also own a general store located at Lodge Corner, Arkansas and run a part-time trucking business. The part-time trucking business utilizes the debtor's farm trucks when they are not in use on the farm. When they are used as over-the-road vehicles, they are offered for hire to other farmers to haul grain to storage facilities.
Prior to 1985, the Simpsons obtained their farm financing from the Production Credit Association ("PCA") through its DeWitt, Arkansas office. The Simpsons had both real estate and crop production loans with PCA. Beginning in 1983 and through 1984, problems developed in the Simpson's relationship with PCA. The loan officer at PCA was Waylan Wiggins ("Wiggins"). In 1984, the Simpsons, pursuant to a request from PCA to liquidate some of their land, did sell 525 acres of land. Being dissatisfied with PCA and the loan officer there, however, they transferred their farm financing to the FNB. In January, 1985, the Simpsons borrowed $260,000.00 from FNB to retire their debt to PCA. This initial loan was collateralized by farm equipment. At that time, the loan officer in charge of the FNB agricultural loans was Tommy Gunnell, and he began to handle the Simpson account.
In order for the Simpsons to include their sons, C.W. and Terry, in the farming operation, the Slefco Partnership was formed on March 11, 1985. The partners at the time of formation were Leland Simpson, Mildred Simpson, C.W. Simpson, and Terry Simpson. Leland Simpson was the overall manager of the farming operation and Mildred Simpson kept the books. C.W. and *631 Terry Simpson did the actual farming of the land.
On March 22, 1985 Slefco borrowed $263,000.00 from FNB and pledged as security all of the partnership's 1985 crops and all of its then existing and thereafter acquired machinery and equipment, including pickup trucks, grain trailers and tractor trucks. Leland and Mildred Simpson also mortgaged 120 acres owned by them and 466.8 acres in which Leland Simpson held a one-half interest. On March 22, 1985 Slefco borrowed an additional $50,000 secured by the same crops and machinery.
On December 17, 1985 Slefco applied to FNB for a loan of $192,334.22 to renew the unpaid portion of its previous carry over loan. Slefco pledged as security its remaining unsold 1985 crops, government deficiency payments, 1986 wheat crop, machinery and equipment. The previously pledged real estate belonging to the individuals was repledged. This renewal note had a maturity date of July 1, 1986. On December 17, 1985 Slefco also borrowed $160,000.00 for the purpose of purchasing new equipment. Slefco again pledged all of its crops and old farm implements and equipment. Leland and Mildred Simpson executed another mortgage on the 120 acres owned by them and on the 466.8 acres in which Leland Simpson had an undivided one-half interest. In late December of 1985 Slefco borrowed an additional $50,000.00 and pledged all 1986 crops now growing or to be grown, as well as again pledging all farm implements and equipment belonging to or after acquired by Slefco.
Finally, on February 19, 1986 Slefco signed a new loan application and promissory note for $650,000.00 for the partnership's 1986 crop production. Slefco pledged as collateral for this loan all 1986 crops, all machinery and equipment then existing and thereafter acquired, Leland and Mildred Simpson's 120 acres and Leland Simpson's one-half interest in 466.8 acres.
By this time in February, 1986 Slefco was farming approximately 4,000 acres. Also, at this time the Simpson's two daughters, Diane Dalton and Rose Wood, were added as partners. Slefco's banking relationship with FNB continued, and the partnership dealt exclusively with bank officer Tommy Gunnell. Gunnell was aware of the Simpson's ownership of the Lodge Corner Store and that they ran a part-time trucking business with the farm trucks. He was also aware that some of Slefco's crop production loan proceeds were used in the part-time trucking business. Each time a loan with FNB was made, Slefco and its partners signed the loan request and promissory note simultaneously. These loans were all approved per the face amount on the various notes, and proceeds were immediately available for use by the partnership.
About the time Slefco finalized its $650,000.00 crop production loan for the 4,000 acres, Terry Simpson became aware of an opportunity to farm additional land, the Mehaffy farm, which consisted of 618.8 acres of rice land, 219.8 acres of cotton land, and 406 acres of set aside land. Terry Simpson spoke with Tommy Gunnell about this opportunity and the partnership's need for more money for the 1986 crop year if Slefco farmed this land. A few days later, and before signing a contract to farm the Mehaffy land, Terry and Leland Simpson met with Gunnell again about the Mehaffy land. Gunnell informed the Simpsons that by his calculations the land would cash flow if Slefco could obtain a contract on a 75/25 crop share basis. If Slefco could obtain those terms, Gunnell told Slefco it should go ahead and farm the Mehaffy land. Gunnell also told the Simpsons there was no need to rework the Slefco crop production loan at that time. He knew that Slefco, like most of the farming operations, would run out of money under the $650,000.00 loan and would need additional funds to harvest the crops. Gunnell told the Simpsons that they could at that time come back to FNB and include in their request the additional funds needed for the Mehaffy farm. Slefco, based on Gunnell's representations, signed a contract on a 75/25 crop share basis and began farming the Mehaffy land. The partnership utilized funds from the original $650,000.00 *632 crop production loan to put in the crops on the Mehaffy land.
On June 15, 1986 Tommy Gunnell left the bank and FNB replaced Gunnell July 1, 1986 with Waylan Wiggins, who formerly worked with PCA. One of the first duties Wiggins undertook for FNB was to review its portfolio of farm loans. Slefco's loan file was part of this review. After reviewing the Slefco file Wiggins sent a Memorandum on July 23, 1986 to the bank President, Neil Maynard, noting the following ten "major deficiencies" in the Slefco loan portfolio.
1. No new partnership agreement for 1986 reflecting the two additional partners.
2. No lien searches reflecting outside debts.
3. Partnership name is Slefco, we have financing statements shown as Selfco and Slefco A Partnership.
4. All financing statements signed as individuals only no partnership signatures.
5. Financing statements filed with Secretary of State and North District of Arkansas County and Jefferson County. Not in Southern District Arkansas County were major portion of crops are growing.
6. No machinery or equipment appraisals in file.
7. Real Estate mortgage on property in Northern and Southern District of Arkansas County and filed only in Northern District.
8. Real Estate mortgage on lands owned jointly with brother (O.W. Simpson) and part of Real Estate mortgage covers lands owned by Arkansas Game & Fish plus part of Real Estate description reflect wrong section number.
9. All notes are signed by individuals only and not by partners.
10. No ASCS Assignments covering 1986 deficiency payments.
This memo also summarized the Slefco loans as follows:
There are four notes to Slefco (two machinery notes in the amounts of $370,400.00, one collateral note $94,328.00, and one draw note $650,000.00). For a total of $1,111,728.00 plus an individual note to Leland for $58,679.00. All Real Estate, Machinery, and Equipment is owned by individuals. Slefco is at this time requesting additional monies to harvest 1986 crops. Will follow up with complete update of file around 1st of August.
Wiggins, on July 23, 1986, also sent a letter to Slefco notifying the partnership that its carry over loan was past due. Wiggins advised FNB officers that he would attempt to cure the deficiencies in this loan file. He realized that bank procedure at times included recommending renewal of a problem loan to correct documentation deficiencies.
On July 21, 1986, Slefco made its last draw on the $650,000.00 crop production loan. About the same time, Slefco went back to FNB seeking additional financing to finish the 1986 crop year and for the funds for the Mehaffy land they had discussed with Gunnell.
After Slefco requested new money from FNB, Waylan Wiggins inspected the crops and real estate held by Slefco on July 22 and 23, 1986 and asked for a list of anticipated expenses. The inspection according to his notes revealed crops in excellent condition with no mismanagement and the real estate was appraised adequately to back the loans. During this inspection, which included conversations with the partners, Wiggins learned about the Mehaffy land. The loan file, according to Wiggins, contained no information regarding this additional land or Gunnell's agreement with Slefco to loan additional funds to bring in the crops on this land. Slefco advised Wiggins it would need $400,000.00 of new money to cover anticipated expenses to finish out the 1986 crop year for all land it farmed including the Mehaffy land.
At Wiggins' suggestion, all of the Slefco loans were consolidated into two loans with two new notes, one for the equipment at $370,400.00 and another for the crops at *633 $1,201,000.00. The consolidated equipment loan provided for a lower interest rate than that charged under the previous equipment loans which were not then past due. In addition to preparing notes for the consolidated loans, Wiggins also drafted documents providing pledges of additional collateral from Slefco to FNB, as well as multiple documents to correct the Slefco loan deficiencies.
The additional collateral, by the debtor's account, was valued at $540,000.00 and included the personal guarantees of the two new Slefco partners, Diane Dalton and Rose Wood, assignment of the U.S. Department of Agriculture's Agricultural Stabilization and Conservation Service (ASCS) 1986 payments valued at $160,000.00, the crops growing on the Mehaffy land valued at $317,000.00 before deduction for production costs, $46,378.00 worth of Riceland Food Capital Base Credit and trucks not previously pledged valued at $15,000.00. Wiggins also asked Slefco for an updated list of its accounts payable and directed Slefco to stop writing checks for a while. Mildred Simpson informed Wiggins that the accounts she needed to pay at this time totalled $42,000.00. The bank was also holding approximately $54,000.00 in checks already written by Slefco in anticipation of the new funds being approved.
On July 29, 1986 Wiggins went to the Simpson's farm to have the Slefco partners sign the multiple loan documents, including two promissory notes for $370,400.00 and $1,201,000.00. At this time, Slefco was under the impression the consolidated crop note of $1,201,000.00, which included its request for $400,000.00 of new money, represented a loan approved in that amount. This was so because this was the same procedure that had been followed in their past dealings with FNB. Wiggins also submitted all of the other documents he had prepared for partnership signatures. These documents covered security agreements for the new collateral being pledged as well as the documents Wiggins felt were necessary to correct the Slefco loan deficiencies he had noted in the review of the Slefco loan file.
The FNB discount committee met on August 7, 1986 and Wiggins presented the two Slefco consolidated loans. After much discussion about the Slefco operation, the discount committee approved one of the loans at the face amount, the $370,400.00 equipment loan, but only approved $1,001,000.00 of the second loan. The discount committee felt the bank could only loan Slefco an additional $200,000.00. The loans were then referred to the full bank Board on these recommendations. Wiggins visited with the Simpsons that same day, and admits that he did not inform them that one of the consolidated loans, which included their request for $400,000.00 of new money, was reduced by $200,000.00 to $1,001,000.00.
On August 12, 1986 FNB took steps to properly perfect liens on Slefco's collateral, both old and newly pledged, paid the past due interest on the old loans to Slefco and paid $54,000.00 in outstanding Slefco checks FNB had been holding. When the full Board met on August 13, 1986 it approved the loans in the amounts recommended by the discount committee. The Board also made a decision to refuse to loan any more money to Slefco during 1986. Neil Maynard, Chairman of the Board, also placed the Slefco loans on the monitor list at the bank until the 1986 crops were harvested.
It is not clear, but sometime between August 13 and 18, 1986, Wiggins informed Leland Simpson that the full Board had not approved the Slefco loan request for $1,201,000.00, but only $1,001,000.00, $200,000.00 less than requested. Wiggins did not tell Simpson of the Board's decision not to lend any more money to Slefco during 1986. FNB did not submit a new note to Slefco evidencing the finally approved loan amount. The only note in existence is the one Slefco signed for $1,201,000.00. FNB did not offer to release any of the additional collateral it has obtained from Slefco as part of the consolidated loan package Wiggins presented to Slefco on July 29, 1986.
In mid-August, at the height of harvest, Slefco advised Wiggins, pursuant to his request, that the accounts payable for Slefco *634 had now reached $192,371.71. On August 26, 1986 Slefco, realizing it was running out of money, approached Wiggins for additional funds from FNB. Wiggins again did not tell the partners of the bank's decision not to loan them any more money in 1986. He told Simpson he could not present a new loan request at that time but would have to wait until he knew the crop yields on the 1986 crops. Slefco partners testified that they were advised by Wiggins to "ride" their trade creditors until then. At this time, Wiggins also wrote in his Slefco loan file notes, "this operation has no survivability." During August, FNB refused to honor a check from Slefco to Riverside Terra for about $35,000.00, but later honored the check. In September, FNB also refused to honor a Slefco check for $3,500.00. Again, that check was ultimately honored. Both times, Slefco had funds in the account. Slefco accounts were only being paid after Slefco submitted invoices to Wiggins and after he approved payment.
On September 24, 1986 Slefco presented to FNB through Wiggins yet another loan request for an additional $250,000.00. Wiggins took the request to the FNB Board on October 8, 1986. The request was refused. On October 23, 1986 Slefco thought it made its last draw on the new consolidated crop loan. However, there was apparently $30,000.00 left in the account. To compound Slefco's problems the harvested crops were yielding less than projected which caused the partnership more financial difficulties.
Again, in December, 1986 Slefco approached the bank with yet another new loan request and this request was also refused. Slefco, however, did sign an extension agreement of the crop loan. FNB still had not changed the face amount of the note to reflect the actual loan amount approved by the bank, namely, $1,001,000.00. About that time, FNB documents and notes indicate FNB felt liquidation was the only alternative for Slefco. At the end of harvest Slefco owed approximately $207,000.00 to trade creditors. These creditors now make up Slefco's unsecured creditors listed on the bankruptcy petition.
In March of 1987 Slefco, in an attempt to work out of its problems, met with Cato Corporation farm advisors to see if Slefco could restructure its farm loans. Ms. Ida Hurley of Cato met with Waylan Wiggins and Cole Martin on March 9, 1987 to discuss the Cato proposal for Slefco. The bank refused to accept the proposal due to the length of the refinancing which was thirty years for the real estate and seven years for the machinery and equipment. The bank also felt this proposal would not cash flow properly.
Slefco advertised and held an auction on April 14, 1987 selling most of its machinery and equipment to help satisfy the outstanding loans due FNB. However, Slefco was still in a financial crisis; its loans with FNB were past due and the partnership was unable to obtain financing from any other source for the 1987 crop production year. FNB filed a complaint in state court against Slefco initiating foreclosure proceedings May 14, 1987. The remainder of 1987 FNB closely monitored the sale of the Slefco 1986 crops and collected as much as it could on the liquidation of the collateral securing the Slefco loans.
On June 9, 1987, Carl W. Simpson filed a Chapter 7 bankruptcy. On September 4, 1987, Leland and Mildred Simpson filed a Chapter 11 bankruptcy and finally on December 28, 1987 Slefco filed a Chapter 11 bankruptcy.
The debtor has filed an Objection to the claim of FNB and filed a Counterclaim against the bank as follows.
1. The debtor denies that it is indebted to the First National either on a secured or unsecured basis.
2. The debtor admits the execution of the documents marked as Exhibits A through G to First National's Proof of Claim, but affirmatively states that the claim of First National should be denied due to fraudulent misrepresentations, constructive fraud and breach of duty and good faith and fair dealing by First National and due to the fact that the loan as contemplated in Exhibits A through G and upon which First National's Proof of *635 Claim is based was not made and, therefore, Exhibits A through G are of no effect; in the alternative the debtor affirmatively states that the claim of First National has been discharged due to a material alteration of the promissory note attached as Exhibit A to First National's Proof of Claim. The debtor further states that the claim of First National is subject to a set-off which is the subject of debtor's counterclaim set forth below and incorporated herein by this reference; or in the alternative that the claim of First National should be subordinated to the unsecured creditors. The basis for each of the above grounds for objection are more fully set forth in debtor's counterclaim set forth below and incorporated herein.
3. The debtor specifically denies that the claim filed by First National is not subject to any set-off or counterclaim. WHEREFORE, the debtor-in-possession, Slefco, prays that the claim of First National be denied.
COUNTERCLAIM
Comes the debtor-in-possession, Slefco, and for its counterclaim to the claim filed by First National Bank in Stuttgart states:
1. Slefco is a partnership organized and existing under the laws of the State of Arkansas, and is the debtor in the Chapter 11 case pending herein. Slefco's principal place of business is in Arkansas County, Arkansas.
2. First National Bank in Stuttgart is a national banking association organized under and by virtue of the laws of the United States of America with its principal place of business in Stuttgart, Arkansas County, Arkansas.
3. This counterclaim is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(C).
COUNT I
FRAUDULENT MISREPRESENTATION AND CONSTRUCTIVE FRAUD
4. In January of 1986, the debtor-in-possession, Slefco, and its partners, applied for and were granted a crop loan for the 1986 crop year in the amount of $650,000.00 from First National. Thereafter, in April of 1986, additional acreage became available that the partnership desired to lease. Before leasing the property and in order to lease such land, the partners discussed the need for a larger crop loan with a representative of First National. The partners were assured that the loan would be made when needed. With this assurance from First National, Slefco leased the additional land.
5. In July of 1986, the partners approached First National for the promised additional funds. The first loan officer has since resigned from First National. They discussed the loan with another First National loan officer, Waylan Wiggins. Mr. Wiggins unilaterally determined to consolidate the January loan and four other loans which were all current into two notes as a condition to the loan of the additional funds as promised.
6. On July 29, 1986, Slefco and each partner, individually, executed a promissory note in the amount of $1,201,000.00. A copy of such note is attached as Exhibit A First National's proof of claim filed herein. In order to secure this note, Slefco executed a security agreement granting First National a security interest in collateral not previously held by First National, and Leland and Mildred Simpson executed a mortgage on real property. The security agreements and mortgage form, in part, the basis of the motions for relief from stay filed in both the Slefco case and the Mildred and Leland Simpson case. However, the contemplated loan was never made and funds were not disbursed as agreed, and available funds were frozen, causing checks drawn on the partnership to bounce. When the partners discussed the loan with First National, First National's loan officer stated that First National had made a loan in the amount of $1,001,000.00, but assured the partners that if the partnership would harvest the corn the additional funds would be made available. The loan made by First National *636 in the principal amount of $1,001,000.00 was not documented and no note, security agreement and/or mortgage exist on this loan. At the time the representative of First National informed the partners that the intended loan of $1,201,000.00 would not be made, the loan officer urged the partners to "ride" their trade creditors until the crops were harvested. The loan officer assured the partners that additional funds would be forthcoming to pay these trade creditors once the crops were harvested.
7. The actions and assurances of First National with regard to the loan to Slefco constituted fraudulent misrepresentations and constructive fraud and the partners were fraudulently induced to execute the security agreements and mortgages attached to First National's motion for relief from stay. As a result of the actions of First National, the loan documents attached to First National's motion for relief from stay should be voided and Slefco and its partners are entitled to punitive damages.
COUNT II
BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING
8. These counterclaimants adopt and reallege each and every material allegation contained in Paragraphs 1 through 7 of the counterclaim.
9. The actions of First National in inducing the debtor and counterclaimant to consolidate the loans and First National's actions thereafter with respect to the debtor and counterclaimant constituted a breach of good faith and fair dealing and a breach of the fiduciary duty it owed to the debtor and counterclaimant.
10. As a result of First National's actions Slefco is entitled to discharge of the claim of First National and to compensatory damages in an amount to be determined at trial.
COUNT III
OBJECTION TO CLAIM AND RECOVERY OF PREFERENTIAL TRANSFER
11. The debtor counterclaimant adopts and realleges each and every material allegation contained in Paragraphs 1 through 10 of the counterclaim.
12. The claim of First National is based upon a certain promissory note attached as Exhibit A thereto in the principal amount of $1,201,000.00. The mortgage and security agreement attached as Exhibits D and E, respectively, to First National's motion for relief from stay were executed by the counterclaimants and intended to provide security for a loan in the amount of $1,201,000.00.
13. The loan evidence by the promissory note and intended to be secured by the mortgage and security agreement was not made. Instead, First National unilaterally determined to make a loan in the amount of $1,001,000.00 and, in fact, disbursed loan proceeds on that loan to pay off prior indebtedness to First National without informing the counterclaimants or documenting such loan. No mortgage or security agreement exists securing the loan actually made by First National.
14. The secured claim asserted by First National should be denied inasmuch as the alleged security interest was never taken, and, pursuant to 11 U.S.C. § 547(b), all payments received by First National within one year prior to the filing of the petition herein should be recovered by the debtor-in-possession inasmuch as such payments were made to or for the benefit of a creditor on or account of an antecedent debt at a time which the partnership was insolvent and enabled the creditor to receive more than it would have if the case under Chapter 7 at the time the payments were made.
COUNT IV
MATERIAL ALTERATION DISCHARGE OF CLAIM
15. The debtor and counterclaimant adopts and realleges each and every material allegation contained in Paragraphs 1 through 14 of the counterclaim.
16. As an alternative to Count III herein, if the Court finds that the loan was *637 evidenced by the note described in Paragraph 11 herein, evidences the claim of First National, the note was materially and fraudulently altered by representative of First National by the placement of the notation thereon as shown by a copy of the promissory note attached hereto as Exhibit A.
17. Pursuant to ACA Section 4-3-407, such material and fraudulent alteration discharges all parties thereto.
COUNT V
EQUITABLE SUBORDINATION
18. The debtor and counterclaimant adopts and realleges each and every material allegation contained in Paragraphs 1 through 17 of their counterclaim.
19. As an alternative to Counts III and IV herein, if the Court finds that First National has a valid claim and that such claim was not discharged, the claim of First National should be subordinated to those of the debtor's unsecured creditors.
20. First National, after refusing to extend the promised financing, continued to urge the partners of Slefco to harvest the 1986 crops and represented that once the crops were harvested and proceeds paid to First National, the outstanding indebtedness would be refinanced. During the at time, First National urged Slefco and its partners to "ride its (unsecured) trade creditors" in order to harvest the crops and represented that once the crops were harvested these unsecured creditors would be paid with the refinancing. However, no such refinancing occurred.
21. The actions of First National in causing Slefco and its partners to incur unsecured debt should cause any claims of First National to be subordinated to the claims of the unsecured trade creditors.
COUNT VI
USURY
22. The debtor and counterclaimant adopts and realleges each and every material allegation contained in Paragraphs 1 through 21 of its counterclaim.
23. The promissory note executed by the debtor provides that interest at the rate of 11 percent will be paid from that date of July 29, 1986, on $1,201,000.00. In the event that the court finds that the actual loan made to the debtor was in the reduced amount of $1,001,000.00 the note is usurious on its face. Article 19, Section 13 of the Constitution of Arkansas provides that the rate of interest for contracts in which no interest is agreed shall be six percent per annum. In the event that the Court finds that the actual contract between the parties was for $1,001,000.00 no rate of interest was agreed upon on such loan and, therefore, the maximum rate of interest which could be charged by First National was six percent.
24. The debtor should recover twice the amount of interest paid to First National and in the event the Court finds a valid contract between the parties the rate of interest in excess of six percent should be voided.
25. The debtor and counterclaimant hereby reserves the right to plead further herein by amendment or other appropriate pleading.
The debtor and counterclaimant seeks to have FNB's claim denied, judgment against First National for all sums due it as a result of First National's actions, punitive damages in the sum of $3,600,000.00 as a result of First National's fraudulent misrepresentations and constructive fraud, compensatory damages to be determined at trial, that the claim of First National be declared void or denied or alternatively, that the Court find that such claim has been discharged, or, that any claims of First National be subordinated to the claims of the unsecured creditors, recovery of usurious interest paid to First National, and recovery of the counterclaimant's costs.
First National Bank, in its reply to the counterclaim filed on behalf of Slefco, stated as follows:
*638 1. The allegations contained in paragraph 1 of the counterclaim are admitted.
2. The allegations contained in paragraph 2 of the counterclaim are admitted.
3. The allegations contained in paragraph 3 of the counterclaim are admitted.
4. FNB admits that Slefco received a loan in the amount of $650,000.00 from FNB. FNB denies all remaining allegations contained in paragraph 4 of the counterclaim.
5. FNB admits that Slefco requested an additional loan and admits that the additional loan was discussed with Waylan Wiggins. FNB denies that Mr. Wiggins unilaterally took any actions and further denies that the loans in question were current. All remaining allegations contained in paragraph 5 of the counterclaim are denied.
6. FNB admits that Slefco and each of its partners executed the promissory note and other documents attached as exhibits to the FNB proof of claim filed herein. FNB denies that the contemplated loan was never made and denies all remaining allegations contained in paragraph 6 of the counterclaim. Answering further, FNB states that Slefco applied for a loan in the amount of $1,201,000.00 but was approved for a loan in the amount of $1,001,000.00. Slefco was promptly advised of the approval in the amount of $1,001,000.00 and Slefco thereafter made requests for advances under this loan with full knowledge of the fact that the loan was in the amount of $1,001,000.00. Because of the dire financial condition of Slefco and the fact that it had outstanding checks in excess of its balances at the time of loan approval, a new note was not executed. The circulation for execution of such a new note would have required further delays due to the fact that Slefco's partners were not immediately available to execute any new note. Slefco, through its partners, was aware of the fact that its loan was in the amount of $1,001,000.00 and acquiesced to this loan amount.
7. The allegations contained in paragraph 7 of the counterclaim are denied.
8. The allegations contained in paragraph 8 of the counterclaim are denied.
9. The allegations contained in paragraph 9 of the counterclaim are denied. Answering further, FNB denies that it breached any duties of any kind and asserts that it acted at all times in good faith and dealt fairly with Slefco.
10. The allegations contained in paragraph 10 of the counterclaim are denied.
11. For the reasons stated previously, the repetitive allegations contained in paragraphs 11, 12, and 13 of the counterclaim are denied. The loan in question, in the amount of $1,001,000.00 was approved by FNB and accepted and drawn by Slefco. Although Slefco applied for a loan in the amount of $1,201,000.00, the loan was only approved in the amount of $1,001,000.00. Slefco was advised upon the approval of the loan and thereafter made draws under the $1,001,000.00 loan. Although revised loan documents were not executed because of the time constraints involved and the immediate need by Slefco of the loan funds which were approved, Slefco was fully advised of the amount of its loan and acquiesced in this by making draws thereunder. The counterclaim does not contain any essential allegations for a cause pursuant to 11 U.S.C.A. § 547. To the extent that the counterclaim contains factual allegations in support of such a claim, the allegations are denied, and all remaining allegations contained in paragraph 14 of the counterclaim are denied.
12. The allegations contained in paragraph 15 of the counterclaim are denied.
13. Although the pleading served upon FNB fails to contain the exhibit which shows that "The note was materially and fraudulently altered by representatives of First National," FNB denies any material and fraudulent alternation and further denies that any notation placed on the promissory note which evidences the loan to Slefco discharges Slefco or its partners. Although Slefco applied for a *639 loan in the amount of $1,201,000.00, Slefco was advised that this application did not constitute a loan in the amount of $1,201,000.00 and was further advised after the appropriate loan committees convened that the Slefco loan had been approved only in the amount of $1,001,000.00. Therefore, Slefco acquiesced in and accepted the loan in this amount by making draw requests under the loan as approved. Slefco was fully advised of the amount of its loan and FNB engaged in no fraudulent conduct of any kind. The allegations contained in paragraph 16 are therefore denied.
14. The allegations contained in paragraph 17 of the counterclaim are denied.
15. The allegations contained in paragraph 18 of the counterclaim are denied.
16. The allegations contained in paragraph 19 of the counterclaim are denied.
17. The allegations contained in paragraph 20 of the counterclaim are denied.
18. The allegations contained in paragraph 21 of the counterclaim are denied.
19. The allegations contained in paragraph 22 of the counterclaim are denied.
20. The allegations contained in paragraph 23 of the counterclaim are denied.
21. Although the promissory note executed by Slefco shows the amount of $1,201,000.00, Slefco was advised after the appropriate committee meetings that the loan was approved only in the amount of $1,001,000.00. Slefco was never charged interest on any funds which were not advanced and was only charged interest at a lawful rate on funds advanced during the time which they were outstanding. No usurious interest was charged or collected and no usury exists in this transaction. The allegations contained in paragraph 23 are therefore denied.
22. The allegations contained in paragraph 24 of the counterclaim are denied.
23. The allegations contained in paragraph 25, to the extent they attempt to vary the terms of the applicable bankruptcy rules, are denied.
24. All allegations not specifically admitted are denied.
AFFIRMATIVE DEFENSES
25. After the Slefco loan was approved in the amount of $1,001,000.00 rather than in the amount requested of $1,201,000.00, Slefco made draws under the loan in the amount of $1,001,000.00 without reserving any rights or without any objections whatsoever. Slefco, through its partners, took funds which were drawn under the Slefco note and misapplied these funds to other projects, including a trucking company, thereby leaving Slefco with insufficient funds to conduct its business. Slefco, in its loan application, substantially understated its liabilities to its creditors. Slefco did not, in fact, draw all funds available to it under its loan from FNB. Any claim by Slefco or its partners that it failed to have sufficient funds with which to complete its operations is barred because this claim was caused by Slefco's own fraudulent misrepresentations, constructive fraud, and misapplication of funds. Based upon these facts, FNB pleads the affirmative defenses of waiver, estoppel, laches, unclean hands, and compromise and settlement.
First National Bank seeks to have its original proof of claim allowed as filed, that the counterclaim against it be dismissed, that it be awarded all of its costs expended as well as reasonable attorney's fee, and all other just, proper and equitable relief.
Summarizing these pleadings, then, the debtor seeks under various theories either to have the FNB claim disallowed in full or, if any part of the FNB claim is allowed, that it be subordinated to the claims of all other creditors. Slefco also seeks to recover any funds paid to FNB within the year preceding the filing of the Slefco bankruptcy petition as preferential payments. This request is, according to the debtor, based upon the assumption that the Court declares part or all of the debt to FNB to be unsecured. The debtor also seeks punitive damages.
FNB argues that there was no contract or commitment to loan money to allow Slefco *640 to farm additional property, that its actions throughout its transactions with the debtor do not constitute fraudulent misrepresentation, constructive fraud or bad faith, that there was no material alteration of the operating loan note and, even if one occurred, it was waived by Slefco. FNB also contends that it did not receive a preference and no grounds exist for subordination of its claim to the unsecured creditors. FNB also asserts that even if Slefco's claims were substantiated, Slefco suffered no damages and hence, is not entitled to any recovery.
Initially, the Court notes that Slefco's allegation regarding usury was dismissed at the completion of the Plaintiff's case, there being no evidence to support this assertion. The remaining issues before the Court then are whether the actions of FNB with regard to Slefco constitute (a) fraudulent misrepresentation, constructive fraud or bad faith, (b) a material alteration of the Slefco operating loan note, (c) avoidable preferences, and/or (d) grounds for equitably subordinating the FNB debt to the claims of the Slefco unsecured creditors. Upon resolving these questions the Court must then decide whether damages are warranted and, if so, in what amount.
The parties have submitted lengthy post-trial briefs. Although their organization and definition of the issues outlined by the Court above is not exactly identical, the Court believes it can decide all the issues by utilizing FNB's outline.
FNB argues that there was no contract or commitment to loan money to allow Slefco to farm the Mehaffy property. It contends that the statements of its loan officer, Tommy Gunnell to Slefco partner, Terry Simpson, did not amount to an oral commitment and therefore there was no contract which could be breached which in turn could give rise to damages.
Typically, cases which present this issue to the courts involve an allegation by a borrower that a bank agreed to make a loan for a certain amount, then failed to honor that agreement. Generally, there is no written document to evidence any agreement, and the borrower cries foul because he acted to his detriment in anticipation of receiving the promised loan. In some situations there may be a written document revealing that a loan was made in a lesser amount than the amount the borrower believed he was to receive per the oral agreement. Under the latter scenario, borrowers' counterclaims for breach of a contract to loan money have generally been unsuccessful because courts have held that all preliminary negotiations leading up to a written contract are merged into it when executed. Farmers Cooperative Assn., Inc. v. Garrison, 248 Ark. 948, 952, 454 S.W.2d 644, 646 (1970); Standard Rice Co. v. Dilday, 191 Ark. 754, 548, 87 S.W.2d 588, 591 (1935); Pyramid Life Insurance Co. v. Belmont, 177 Ark. 564, 575, 7 S.W.2d 32, 36 (1928). See Restatement (Second) of Contracts, 209(1) and § 213(1) (1981). See also 17A C.J.S. Contracts, § 381, at 445-48.
The facts presented in this case are atypical. Here the debtor contends that the bank made an oral commitment to loan it sufficient additional funds to complete its 1986 crop year which included all its original acreage plus the additional 1,200 acres it had taken on after the crop year began. The debtor states $400,000.00 of additional money was needed. The bank states it made no such promise or oral commitment. The written document, i.e., the note evidencing the agreement of the parties, however, matches the debtor's version.
What ultimately happened, of course, was that the written document upon which the debtor asserts it relied was not, according to FNB, the final agreement of the parties. Instead, the bank contends that "revised loan documents," presumably reflecting the real final agreement, were never executed because of time constraints and the debtor's immediate need for loan proceeds.
The court finds this account incredible. If one is to accept the bank's argument and its version of the facts, there is, at this point, no other conclusion to be drawn than that there is no written document evidencing the agreement. The bank, however, filed a foreclosure action in state court *641 seeking to foreclose mortgages securing a note for an amount it says it neither informally nor formally agreed to lend the debtor. Yet, the note, which the bank now claims is not evidence of its agreement with the debtor, is attached not only to its Complaint in state court but, to its Proof of Claim filed in the bankruptcy proceedings. FNB argues that it can rely on this note because it reflects a "line of credit" which, for various business reasons, was cut off before the full amount was borrowed. But it also insists that the loan committee and Board of Directors never agreed to loan the debtor the face amount of the note. The two arguments cannot be reconciled.
FNB contends that none of its actions throughout the transactions surrounding the loan consolidations constitute fraudulent misrepresentation, constructive fraud or bad faith. The debtor asserts and the Court agrees that the bank's first misrepresentation occurred when the bank, through Wiggins, initiated the idea of consolidating the partnership loans, prepared and had the Simpsons execute notes, mortgages, security agreements, as well as all other supporting documents reflecting two loans, one for $370,400.00 and one for $1,201,000.00. Slefco contends the bank never intended to loan them the full amount under the $1,201,000.00 crop loan.
FNB argues that the backward chronology of events, i.e. execution of all loan documents and perfection of security agreements prior to loan approval, generally occurred in farm loans. All the evidence presented, however, contradicts this bald assertion. The debtor had a multiple loan transaction history with this bank which does not support the bank's contention. All activities surrounding the debtor's prior loans followed the exact pattern as the ones under scrutiny. The bank could offer no evidence that it had handled any other loan for any other borrower, farm or otherwise, in this fashion.
FNB relies on the testimony of Wiggins and its president, Neil Maynard, to support its argument that it did not misrepresent its intentions during this transaction with the debtor. The Court finds that neither witness presented a demeanor consistent with truthfulness. The Court finds that FNB knew the debtor's financial position was very questionable and set about a course of conduct that would lead this borrower to execute those documents which would correct major deficiencies in its loan file as well as substantially enhance the bank's deficient security position. The bank's own policy manual spelled out for Wiggins his course of conduct; the bank may have to renew the loan to correct deficiencies.
Wiggins knew what would motivate the debtor to give him the corrections and additions the bank needed. The debtor had presented to him an estimate of the new funds immediately needed as well as funds needed in the near future to complete the 1986 crop year, approximately $400,000.00. The evidence ultimately proved the debtor's estimates to be correct. The $200,000.00 of new money was, but for approximately $30,000.00, used and the trade creditors the debtor was encouraged to "ride" are now owed some $207,000.00. The total is approximately $400,000.00.
The bank asserts that the debtor's own conduct caused its financial problems because it grossly underestimated accounts payable in July, and when it presented an updated account in late August for almost $200,000.00 the bank justifiably became alarmed. FNB says these "massive delinquent debts" were unknown to it when the consolidated loans were considered in July and early August. Mildred Simpson's explanation, however, makes sense and rings of the truth. The accounts payable list she gave Waylan Wiggins in July contained the accounts that needed to be paid then. The full accounting, or the amount Slefco needed to finish the crop season for all the lands including the Mehaffy property, was $400,000.00 and they had given this figure to Wiggins. Mildred Simpson testified that the bulk of the debt for harvest would come in at the end of August and, that is exactly what happened. The Court believes the bank's alarm is a hindsight reaction and an attempt to justify its subsequent actions.
*642 The Court also finds that the bank's course of conduct after the initial misrepresentation regarding the amount of money the bank intended to loan in exchange for the debtor's agreement and pledge of old and new collateral amounted to a further misrepresentation, namely, that additional funds would be forthcoming. The Court was again faced with conflicting testimony and again it does not find the bank's witnesses credible. The debtor at this time was expending all its energies getting the crops harvested, all to the advantage of the bank. The debtor's prior relationship with the bank (and apparently it is the "informal" relationship most farmers have with their banks according to all witnesses including the debtor's expert) understandably led them to conclude that as soon as the work was accomplished they would ultimately get with the bank and accounts would be set straight. Gunnell testified that the bank knew that farmers generally run out of funds toward the end of the season and have to request supplements to the crop production loans and that is what he told the debtor the bank would do in its case. FNB, according to its own records as early as July, 1986, had changed loan officers, however, and had no intention of continuing with this debtor. The bank never communicated this decision to the debtor.
The Court agrees with the debtor's contentions that FNB, through Wiggins, misrepresented the debtor's future borrowing capabilities with the bank in order to keep the partners in the fields to get the bank's collateral harvested. Wiggins admitted he was afraid that the debtor might abandon the crops.
FNB argues that Slefco cannot, in any event, now complain because it never took any action to disaffirm what it ultimately found out to be the true amount of its operating loan. FNB also argues that Slefco accepted the benefits of the loan in the lesser amount and drew funds from the new money ultimately approved and even made repayments. FNB asserts that the debtor, under the circumstances, has waived its right to assert fraud citing Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980). But the bank, as it does throughout most of its argument, focuses on particular events and ignores the overall picture.
The bank's misrepresentations to the debtor began with Wiggins' concerted effort to correct FNB's loan file deficiencies and shore up its secured position. In order to reach its ultimate goal of repayment of the loan, the misrepresentations continued to keep this borrower in the fields tending the bank's collateral. This course of conduct was based upon the bank's hidden agenda which was thoroughly spelled out in its internal loan file memoranda and board minutes, but never explained that to the debtor. The bank took advantage of its "informal" or "casual" relationship with this unsophisticated borrower. Recovery for these misrepresentations is warranted, which will be discussed infra. Before reaching that discussion, however, the Court will continue with the issues as presented under the outline it is following.
The parties also dispute whether there was a material alteration of the operating loan note of the type which would discharge the debt owed by Slefco. The debtor relies on Section 3-407 of the Uniform Commercial Code (Ark.Code Ann. 4-3-407), which provides at (2)(a) that alteration by the holder which is both fraudulent and material discharges any party whose contract is thereby damaged. Both parties point out correctly that the alleged alteration must be both material and fraudulent.
The alleged alteration of the operating loan note took the form of a memo affixed to the note advising that the loan limit was less than the face amount of the note. The note itself was not altered other than this affixed (stapled) memo which provided as follows:
"do not make any advances without the approval of Waylan Wiggins. Also, freeze the amount of $202,537.34 on this note. Max draw $998,462.66."
Any party whose contract is changed by the alteration of a note is discharged from his obligation under the note if he can show that the alteration (1) was made by the *643 holder of the note, (2) was material, and (3) was made for a fraudulent purpose. To show fraud the party seeking discharge must show that the holder altered the instrument with a deceitful purpose. Citizens National Bank of Willmar v. Taylor, 41 U.C.C.Rep.Serv. 516, 368 N.W.2d 913 (Minn.1985).
The Court has reviewed the relatively few cases which interpret this provision of the Uniform Commercial Code. They are not very helpful in that there really is no fact situation similar to the case before the Court. What is apparent though, after reading the cases, is that this section of the Uniform Commercial Code should be strictly construed due to the drastic remedy provided if the section is violated.
The facts in this case, as earlier noted, are atypical. The bank never "altered" the note but attached what the parties have referred to as a "limiting memorandum." The fact is, however, that there is no note reflecting the final loan amount approved by the bank. The note is for an amount in excess of the amount finally approved by FNB. The bank attempts to characterize this note as a "line of credit" note which, in the way it was handled, is probably a correct characterization. But, as earlier noted, the cap or the credit level, beyond which the debtor could not draw, was not the figure on the face of the note but a lesser amount. The facts in this case do not reflect a "freeze" of a line of credit before the debtor reached the face amount of the note. Rather, the "limiting memorandum" on the note reflects the cap on the final loan approved.
The Court notes again, as it did during the above discussion of the original consolidated loan transactions, that it is the atypical nature of the facts which is making it difficult, if not impossible, to apply the facts to the law. Even though this difficulty does exist the Court does agree with the bank that the debtor, at least by August 13-18, knew of the limitation and continued to operate under it, albeit not well and to the great detriment of the partnership's unsecured creditors. Hence, the Court cannot conclude that the drastic remedy of discharge of the debtor's entire obligation to the bank is appropriate.
The debtor also argues, in the event the Court determines that any or all of the FNB is unsecured or bars the claim of FNB, it is entitled to recovery of $297,633.93 in preferential payments made to FNB within the year preceding the filing of the Slefco bankruptcy case. The Court finds that this allegation was not sufficiently developed at trial to permit any recovery.
Lastly, Slefco asserts that the claim of FNB should be subordinated to the claims of its other creditors and relies on 11 U.S.C. § 510(c) which provides that the court may
1) under principles of equitable subordination, subordinate for purposes of distribution all or any part of an allowed claim to all or part of another allowed interest; or
2) order that any lien securing such a subordinated claim be transferred to the estate.
According to legislative history and under existing case law, a claim is generally subordinated only if the holder of such claim is guilty of inequitable conduct, and the misconduct has resulted in injury to creditors of the debtor or conferred an unfair advantage on the claimant. Wegner v. Grunewaldt, 821 F.2d 1317, 1323 (8th Cir.1987), In Re Baugh, 73 B.R. 414, 417 (Bkrtcy.E.D. Ark.1987). The fact that such a claim is secured is of no consequence to the issue of subordination. See 3 Collier on Bankruptcy, para. 510-02 [15th ed. 1986] which provides as follows:
Allowance and subordination are judicial acts. The court sits as a court of equity in passing on an allowance of claims. When a claim has no basis in law, is nonexistent or illegal, the claim should be disallowed. If a creditor's misconduct has been directed toward the debtor, the creditor's claim is either invalid or else it is barred by a valid defense of the debtor. In such a case, the claim of the creditor is disallowed. Section 502 of the Code states the bases for disallowance and includes, under subsection (d), provisions for disallowance of the claims of "dirty hands" transferees. There are *644 times, however, when a claim is valid but the claimant has been guilty of misconduct which requires an equitable remedy. In such a case, the valid claim may not be disallowed but will be subordinated or postponed in rank until the claims of the other creditors have been satisfied. Subordination is an equitable remedy in which the order of payment rather than the existence of the debt is in issue. If recognized principles of equity have been violated by the claimant, the court has the power, under section 510(c) of the Code, to subordinate or postpone his claim. Whereas the issue in disallowance may be whether the claimant has directed his harmful conduct toward the debtor, the issue in subordination is whether such conduct was directed at other creditors. If it was, the claim which is otherwise provable and allowable should be postponed until the claims of the creditors, who were harmed, have been satisfied. This remedy is a compromise between allowance and disallowance and is usually, in effect, a mode of general disallowance which was judicially created but is now incorporated into section 510 of the Code.
All or part of a claim may be subordinated to all or part of another claim. Thus, depending on the circumstances, a subordinated claim "may be relegated to the bottommost rung of claims or may be simply allowed after rather than ahead of the claim of a party who has in some way been injured by the conduct of the holder of a subordinated claim." 3 Collier on Bankruptcy, para. 510.05[1] (15th ed. 1986). See also Benjamin v. Diamond, (In Re Mobile Steel Co.), 563 F.2d 692 (5th Cir.1977) wherein the Court of Appeals stated that claims should only be subordinated to the extent necessary to offset the injury to the debtor and its creditors. Under section 510(c)(2), when a claim that is subordinated is secured by a lien, the lien is transferred to the debtor's estate under section 541, i.e., the subordinated claim becomes unsecured and the property securing such claim becomes part of the debtor's estate.
FNB contends that the Slefco and Leland and Mildred Simpson have no standing to assert a claim for subordination. FNB does not argue that the Trustee in the C.W. Simpson case has no standing but asserts that he has "apparently not actively pursued the claim." This is an inaccurate assessment. The Trustee filed a separate adversary proceeding seeking equitable subordination and agreed to have his action consolidated for trial. Hence, the Trustee's case is in fact actively being pursued.
The Court earlier spent considerable time outlining what it finds to be the misrepresentations of FNB. These misrepresentations led the debtor to pledge all its remaining assets to FNB and "ride" its trade creditors resulting in approximately $207,000.00 in unpaid unsecured debt. Since the debtor now has no unencumbered assets there remains no feasible way for these claimants to be paid. The Court finds that FNB's actions in its dealings with the debtor was inequitable conduct which resulted in injury to other creditors.
What remains is the issue of what damages, if any, are warranted under the findings of the Court. On one side there is a debtor with no future by everyone's account. Even its own expert witness testified that FNB should never have made the first loan and the debtor was hopelessly insolvent. On the other side there is a bank asserting that it acted in accordance with its duty to its shareholders, pursued that duty with great diligence and without regard to any responsibility it might have to its borrower. Presumably the bank cannot envision a situation where it could fulfill its responsibilities to both. In the middle there are the trade creditors, the unsecured debt and the administrative claims incurred in these bankruptcy proceedings. The unsecured creditors were unaware of the debtor's precarious financial situation. The debtor, unaware of the bank's hidden agenda, pledged all of its remaining unencumbered assets to the bank and now has no way to pay the unsecured debts and the administrative claims in these bankruptcy proceedings. These administrative claims have been incurred as a result of the efforts to recover funds sufficient to pay the unsecured claims.
Under the circumstances, the Court determines that FNB's claim should be subordinated *645 not only to the claims of these creditors, but any administrative costs incurred pursuant to the recovery of funds sufficient to pay these claims. Any lien obtained by FNB by virtue of its inequitable conduct is transferred to the estate until all other claims per this opinion are satisfied in full.
The Court has reached this determination after considering all the debtor's alternative remedies as well as its request for punitive damages. The Court is aware that the award of punitive damages can at times serve to deter inequitable conduct of the type engaged in by this bank. However, a determination that the bank must go to the bottommost rung before its claim is to be paid can also serve as a sufficient deterrent to any others who might engage in similar conduct.
A party seeking damages has the burden of proving the claim, not just a right to the claim. If no proof is presented to the trial court that would allow it to fix damages in dollars and cents the court cannot award damages. Likewise, if actual damages cannot be awarded, neither can punitive damages which must bear some reasonable proportion to actual damages shown. Winkle v. Grand National Bank, 267 Ark. 123, 601 S.W.2d 559 (1980); Mason v. Russenberger, 260 Ark. 561, 542 S.W.2d 745 (1976); and Tolbert v. Samuels, 229 Ark. 676, 317 S.W.2d 715 (1958). Evidence of actual damages sustained by the debtor was speculative, inconclusive and/or unreliable.
The debtor does not argue, nor would the evidence support such an argument, that but for the bank's inequitable conduct, the farming operation would not have failed. It would be difficult to conclude, under the evidence before the Court, that the debtor was injured. Rather, what occurred was great injury to the unsuspecting trade creditors. The bank knew it had taken all the debtor's available unpledged assets and knew the debtor was running up unsecured debt. The bank, simply stated, had an unfair advantage over these creditors. It knew the debtor had "no survivability" and knew it would lend the debtor no additional funds. If the bank did not know, it should have known that the trade creditors would be irreparably injured. Under the circumstances, the equitable remedy of subordination is consistent with bankruptcy laws and particularly appropriate in these circumstances. The bank clearly placed its right to be repaid before the other creditors. Given the bank's unique knowledge of the debtor's poor financial condition, it clearly violated rules of fair play and good conscience. It used information not available to other creditors to gain an unfair advantage.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that the claim of First National Bank of Stuttgart be subordinated to other claims in these bankruptcy proceedings per the findings of the Court in this Memorandum Opinion. It is further
ORDERED that any lien securing such subordinated claim be transferred to the bankruptcy estate until other claims are paid in full.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623763/ | 360 S.W.2d 403 (1962)
David Gonzales MEZA, Appellant,
v.
The STATE of Texas, Appellee.
No. 34686.
Court of Criminal Appeals of Texas.
June 20, 1962.
Rehearing Denied October 10, 1962.
*404 Ralph Chambers, Houston, King C. Haynie (on appeal only) Houston, for appellant.
Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Neil McKay, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
WOODLEY, Presiding Judge.
The offense is murder; the punishment, life.
The sufficiency of the evidence to sustain the conviction is challenged.
The question is whether the circumstantial evidence, viewed in the light most favorable to the state, is sufficient to sustain the jury's finding that the appellant is the person who committed the offense.
The deceased, a 50 year old Latin American, 5 feet 6 inches in height and weighing 131 pounds, met his death in Houston shortly after 1:15 A.M. by being stabbed in the back.
The wound was described by the Harris County Medical Examiner, whose qualifications as an expert were stipulated, as being a knife wound 1½ inches in length and 2 inches in depth, the edges sharply demarcated. The witness testified that the wound penetrated the aorta, and that it was a wound such as could have been caused by the knife introduced in evidence.
The evidence shows that the blood stained knife was taken from the pocket of a suit of clothes found in appellant's room which appellant claimed, and which he was wearing at the trial. The knife was described as having a sharp blade ½ inch wide and some 4 inches in length, with a very sharp point.
The deceased left the Sibony Night Club in company with the band leader and operator Ponce after closing time, which was 1:15 on Sunday morning. When they got downstairs Ponce went to his car and he and his wife left for home.
Ponce testified that he never saw the deceased again and did not know what direction he went as they parted.
The deceased passed the Fire Station on Hogan Street, walking west toward North Main Street and the old Henke-Pillot building. He was alone and nodded at the firemen as he passed.
The deceased also passed Vincent Lucio, his wife Isabella and his sister Mary Lou, who were at or near the corner where there was a bus stop.
The appellant, according to the testimony of the Lucios, had come with them from the Pan-American Night Club where he and Mary Lou had been dancing and drinking. They were considering going to the Casa Blanca but appellant declined and Mary Lou, who had been walking behind with appellant, left him and joined her brother and sister-in-law and walked to the bus stop.
When the deceased passed going in the direction where she had left appellant, Mary Lou started to walk back. She testified that she called the appellant but he did not answer; that she got within three feet of the northwest corner of Henke-Pillot building and, as she returned to the bus stop, the deceased fell near the corner of *405 the building, and that right after he fell she saw appellant pass the fire station.
Captain Kent, of the Houston Fire Department, testified that after the deceased, known to him only as "Cheto", passed the station and the bus stop going in the direction of the old Henke-Pillot building, Mary Lou followed behind him some 20 feet; that Cheto hollered "No, No" * * * "and there was a person chasing him. And they chased him up to this building. The girl, then, headed back hastily toward the corner. * * * The person shoved Cheto out of sight * * * Immediately, the man came around the building. Cheto collapsed on the sidewalk."
Captain Kent further testified that as Cheto was around behind the building "You could hear the thud of him being slammed on the building. * * * I heard a groan, as Cheto was slammed into the building * * *"; that as Cheto fell and Mary Lou ran to her brother and sister-in-law she said, and repeated many times, "It could have been me" or "It might have been me."
Captain Kent called the police dispatcher and, as he stepped to the door: "I seen a figure run across the street, from the rear of Henke & Pillot's old store, which is now the World Market. Ran across the street, into the driveway of a Fire Department Garage, and stopped, and started walking. Stopped running, and started walking toward us. * * *
"Q. * * * Where did that person go, as he was walking toward you? Show us where he went.
"A. He passed beyond us, and as he approached the station, he glanced up. Glanced in my direction, turned the corner, and went on down Hogan Street, going west. * * *
"Q. All right, sir. How was this defendant dressed at that time?
"A. In the same suit he has on now, or approximately the same suit."
It was a matter of seconds, according to this witness, between the time Cheto fell and the time he saw appellant come around the corner. He identified appellant at a police line up and at the trial as the person who came around the corner and passed the station.
M. B. Jones, who was visiting at the fire station, followed the appellant, and Captain Kent and other firemen went to Cheto and found that he was dead.
Firemen Itson and Irwin and M. B. Jones gave testimony similar to that of Captain Kent, though neither heard the sound or groans described by Kent.
According to all of these witnesses, there were no persons seen in the vicinity at the time the deceased was stabbed other than those above mentioned. Several assembled after the officers arrived, however.
Captain Kent testified that he was the first person to get to the body of Cheto and "there was no other person in the general vicinity whatsoever."
Appellant did not testify or offer evidence in his behalf.
We find the evidence sufficient to sustain the jury's verdict finding the appellant guilty of murder with malice.
Appellant's third complaint relates to his several informal bills of exception to testimony of Officer Kennedy relating to acts and statements of appellant while under arrest.
Several days after the killing, appellant was arrested by Officer Kennedy at the rooming house where he lived. The officer testified that appellant consented to the search of his room.
The trial court was careful to exclude testimony as to any statement or declaration of the appellant, but it is contended that the witness was permitted to testify as to acts of the appellant which were in the nature of a confession and might have been used by the state as a criminative fact against him. He cites Hill v. State, 95 Tex. Crim. 500, 255 S.W. 433; Glover v. State, 92 *406 Tex.Cr.R. 617, 247 S.W. 556; and Kennison v. State, 97 Tex. Crim. 154, 260 S.W. 174.
The only act we find which could be said to come within the rule relied upon is the testimony of the witness to the effect that he asked the appellant what clothes he was wearing on the previous Saturday night (to which there was no objection). The witness was then asked and answered: "Q. All right. Did he point out any clothes to you? A. He did." After this question and answer objection was made and overruled, but there was no motion to exclude the evidence. The question having been asked and answered before the objection, and there being no effort to have the evidence withdrawn from the jury, no error is presented warranting reversal. See Earwood v. State, 161 Tex. Crim. 171, 275 S.W.2d 652; Bearden v. State, Tex.Cr. App., 334 S.W.2d 447.
The witness then testified without further objection: "And what clothes did he point out to you, sir? A. He pointed out a charcoal colored suit. The same suit that he is wearing now * * *."
As presented, the court's rulings do not call for reversal.
The remaining complaint relates to the testimony of Officer Kennedy that a suit of clothes was found in appellant's room, which was identified by the witness as the suit appellant was wearing at the time of the trial, in which the knife above referred to was found. The contention is that the clothing was not the subject of a lawful search and seizure, it being purely evidentiary. La Rue v. State, 149 Tex. Crim. 598, 197 S.W.2d 570, is relied upon.
The clothes do not appear to have been seized. The search was with permission of the appellant, and therefore lawful, hence the rule relied upon by appellant has no application. The fact that appellant was under arrest when he gave consent did not vitiate the same. Henderson v. State, Tex.Cr.App., 353 S.W.2d 226, 227; Graves v. State, Tex.Cr.App. 336 S.W.2d 156; Sikes v. State, Tex.Cr.App., 334 S.W.2d 440; Feather v. State, Tex.Cr.App., 333 S.W.2d 851.
No reversible error appearing, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623772/ | 360 S.W.2d 169 (1962)
Ray LAMBE et al., Appellants,
v.
C. G. GLASSCOCK et al., Appellees.
No. 13932.
Court of Civil Appeals of Texas, San Antonio.
July 5, 1962.
Rehearing Denied September 5, 1962.
*170 Fischer, Wood, Burney & Nesbitt, Corpus Christi, Strickland, Wilkins, Hall & Mills, Mission, for appellants.
Wm. H. Shireman, David M. Coover, Robert L. Bunting, Jr., Ralph J. Graham, Corpus Christi, for appellees.
BARROW, Justice.
This is an appeal from a judgment rendered in a suit filed by Ray Lambe and others, individually and as statutory liquidating trustees of North Starr Petroleum Corporation, a dissolved Texas corporation, against C. G. Glasscock and others, for accrued and future overriding royalty on the Amalia R. de Canales lease, and for damages for failure to reassign the lease to appellants. Following a jury trial, a take-nothing judgment was rendered and appellants complain only of the action of the trial court in denying them recovery of the sum of $6,264.61, which was stipulated as accrued overriding royalty, plus $400.00 found by the jury as the value of future overriding royalty. The jury findings defeated the claim for damages and there is no appeal from that part of the judgment.
North Starr Petroleum Corporation was the owner of a number of leases on land in Starr County, which were leased by Cervacio Canales and others to George R. Boyle, and subsequently assigned to North Starr, including a tract of 120.94 *171 acres leased from Amalia R. de Canales on August 20, 1948, which is involved in this suit. On December 8, 1949, North Starr assigned said leases to Glasscock and it was provided that Glasscock had the option of surrending any of said tracts to North Starr by notifying North Starr thirty days prior to the rental paying date on such surrendered tract. The Amalia R. de Canales lease required a delay rental payment on or before August 20, 1949, and a question arose as to whether or not Amalia R. de Canales and other lessors had received payment for same. Therefore, Glasscock and North Starr entered into an escrow agreement whereby the consideration was deposited with the First National Bank of McAllen. Glasscock had the option to reassign any of the leases in which he could not verify that delay rentals had been properly paid. There was a letter from North Starr's attorney to Glasscock in June, 1953, concerning reassignment of these leases, but they were never reassigned.
On December 27, 1949, Glasscock assigned a one-half interest in the Boyle lease in question to Pontiac Refining Corporation and warranted that all rentals had been duly paid. This interest was subsequently reassigned to Glasscock on August 12, 1953. Amalia R. de Canales refused to acknowledge payment of the delay rental under the Boyle lease, and on Dec. 13, 1949, she leased the same land to Clark, who on August 30, 1950, assigned the lease to Glasscock.
Three issues were submitted to the jury:
"SPECIAL ISSUE NO. 1. What do you find from a preponderance of the evidence to have been the fair market value per acre of the Canales Oil and Gas Leases in the La Socatosa Grant involved in this suit in June, 1953? * * * ANSWER: $1.00 per acre.
"SPECIAL ISSUE NO. 2. What do you find from a preponderance of the evidence to be the fair market value of a 1/16 of 7/8 overriding royalty on the Amalia de Canales tract of 120.94 acres, being Tract No. 8 of share 2, El Haveli Grant, excluding any production therefrom prior to January 1, 1961? * * * ANSWER: $400.00
"SPECIAL ISSUE NO. 3. Do you find from a preponderance of the evidence that the Defendant C. G. Glasscock mutually agreed to and with the Plaintiffs in the latter part of January, 1953, to amend the assignment in question of December 8, 1949, to provide that if he thereafter drilled an additional well on the Antoco Munoz, et al., property and it was abandoned as a dry hole then the oil, gas and mineral leases in question herein, excluding the Amalia R. de Canales lease, would be allowed to expire and terminate under their own terms and provisions by not paying the delay rentals next falling due under each such lease in June, 1953? * * * ANSWER: Yes."
No issue was submitted to the jury as to whether the delay rental was properly paid to Amalia R. de Canales under the Boyle lease and the record does not reflect any objection to the charge for failure to submit same, or request for said issue. In entering judgment, the trial judge expressly found that the Amalia R. de Canales lease to Boyle had expired, due to the failure of North Starr to properly pay to her the annual delay rental before August 20, 1949, and that the assignment to Glasscock on December 8, 1949, was a nullity. Appellants assert, under their third and fourth points, that there is no evidence to support such a finding. On examining the record in the light most favorable to support this finding as we are required to do, we overrule this contention. Harrison v. Chesshir, 159 Tex. 359, 320 S.W.2d 814; In re King's Estate, 150 Tex. 662, 244 S.W.2d 660.
North Starr attempted to pay the delay rentals on several leases by sending one check to the designated bank and directed *172 the bank to deposit said check to the account of Cervacio Canales and wife, Manuela G. Canales and Fernando Canales. There is evidence that someone other than lessor Amalia R. de Canales, withdrew all of said funds and that she was not paid her delay rental. There was evidence that Glasscock, by personal investigation, was led to believe that she would never deny payment. The Boyle lease was never reassigned to North Starr by Glasscock, and although Glasscock secured assignment of the Clark lease on August 30, 1950, he authorized the McAllen Bank, on August 9, 1951, to release to North Starr the balance of the escrow monies. There is no allegation or evidence of fraud on the part of Glasscock in so acquiring the Clark lease.
Thus we have a situation where appellants are claiming an overriding royalty interest under a senior lease which had expired at the time of its transfer to assignee who subsequently acquired a junior lease on the same property.
Appellants, as successors to North Starr, contend that since Glasscock recognized and relied upon the Boyle lease after knowledge of all facts, he can not assert its invalidity under the established in Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626, and that they are entitled to recover for their overriding royalty interest as a matter of law.
In Greene v. White, supra, the court in considering the validity of a mineral reservation held that the question was not whether the grantor had good title, but whether the parties to the deed and those claiming under them, were bound as between themselves by the recitals and provisions of the deed. The Supreme Court held that the parties to the deed were bound by the terms of their contract, and it was not necessary as between said parties and those holding under them, that good title be shown in grantor.
Glasscock had the right to acquire independent rights after the expiration of the senior Boyle lease. Thomas v. Warner-Quinlan Company of Texas, Tex.Civ. App., 65 S.W.2d 321; Montgomery v. Phillips Petroleum Co., Tex.Civ.App., 49 S.W.2d 967.
An overriding royalty interest is an interest carved out of the working interest created by an oil and gas lease. MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334. It is derived from a particular oil and gas lease which constitutes the assignor's mineral estate, and its validity is subject to the terms, conditions and existence of such a lease. Gruss v. Cummins, Tex.Civ.App., 329 S.W.2d 496. Appellees concede that in an appropriate case the holder of an overriding royalty interest under a lapsed senior oil and gas lease can recover under equitable principles on such interest in the production under a junior lease on the same property. However, in the absence of pleadings, evidence and findings, such a recovery is waived. Newton v. Town of Highland Park, Tex.Civ.App., 282 S.W.2d 266.
It is undisputed that Glasscock accepted the assignment from North Starr and paid the final consideration after knowledge of lessor's refusal to ratify payment of delay rental; the assignment to Pontiac recited that all rentals were paid and unquestionably this senior lease, together with the junior lease, did make Glasscock's working interest more secure. Appellees assert that these facts as a matter of law estopped Glasscock from asserting the invalidity of the expired Boyle lease.
The general rule in Texas is that recitals in a deed are binding only when the parties thereto claim under such deed. Talley v. Howsley, 142 Tex. 81, 176 S.W.2d 158; Robert Oil Corporation v. Jones, Tex.Civ.App., 23 S.W.2d 472; Haley v. Sabine Valley Timber & Lumber Co., Tex. Civ.App., 150 S.W. 596; 31 C.J.S. Estoppel *173 §§ 37, 38, pp. 214, 216. The rule in Greene v. White, supra, does not apply when the parties to the deed in question never attempted to use same in their chain of title. Dean v. Hidalgo County Water Improvement Dist. No. Two, Tex.Civ.App., 320 S.W.2d 29. Here the trial court found that the senior Boyle lease had expired and that therefore production was had under the junior Clark lease. We, therefore, hold that Glasscock was not estopped as a matter of law from asserting the expiration of the senior lease.
Appellants have neither made nor briefed any points of error as to appellee Pontiac Refining Corporation or appellee Riddell Petroleum Corporation.
The judgment is affirmed as to all parties. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623756/ | 360 S.W.2d 870 (1962)
Roy Lee ALLEY et al., Appellants,
v.
PONCA WHOLESALE MERCANTILE COMPANY, Appellee.
No. 7175.
Court of Civil Appeals of Texas, Amarillo.
September 17, 1962.
Shaver, Hurley & Sowder, Boling & Griffith, Lubbock, for appellants.
Harris E. Lofthus, Amarillo, for appellee.
*871 DENTON, Chief Justice.
This is an appeal from an order of the District Court of Potter County overruling each appellants' pleas of privilege which sought to transfer the case to Lubbock County where each appellant resided at the time the suit was filed. Appellee Ponca Wholesale Mercantile Company brought this suit against appellants, Roy Lee Alley, R. A. Pendergrass, W. L. Combes, Doy Nichols and H. P. Terry, seeking to recover on a surety bond. The five defendants below were represented by two different law firms. Defendants, Alley, Combes and Pendergrass, were represented by one firm and defendants Nichols and Terry by another firm. On October 12, 1961 a joint plea of privilege was filed by Alley and Combes, and on the same date defendant Nichols filed his plea of privilege. Pendergrass filed his plea of privilege on October 13, 1961 and the plea of Terry was filed October 18, 1961. Appellee's controverting affidavit was filed on October 13, 1961 and by its own language controverted only the pleas of privilege filed by Alley, Combes and Nichols. The record reveals that no controverting affidavits were filed in answer to the pleas of privilege of defendants Pendergrass and Terry.
It is apparent the trial court erred in overruling the pleas of privilege of defendants Pendergrass and Terry. It is well settled that where a defendant has filed a plea of privilege to be sued in the county of his residence, and gives notice thereof in accordance with Rule 86, Vernon's Ann.Tex. Rules, and the plaintiff fails to controvert such plea within ten days thereafter, the trial court possesses no jurisdiction over said cause other than the authority to enter an order transferring the case to the county of defendant's residence as set forth in the plea of privilege. John E. Quarles Co. v. Lee (Tex.Com.App.) 58 S.W.2d 77; Bell v. Jasper Lbr. Corp. (Tex.Civ.App.) 287 S.W.2d 746 (writ dismissed); Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154 (opinion adopted); Terrell v. Vandergriff (Tex.Civ. App.) 351 S.W.2d 910 (no writ history).
Appellee takes the position that in as much as the attorneys who were representing Pendergrass and Terrell were also attorneys for the other three defendants, and who were present in response to notice given in the controverting affidavit so filed, there was a waiver of notice as to Pendergrass and Terry. We are not concerned here with the question of "notice" or "appearance." An appearance by an attorney for a defendant at a hearing on a plea of privilege does not constitute a waiver of the requirement to file controverting affidavits in reply to pleas of privilege filed by other defendants. A statutory plea of privilege is more than a pleading and amounts to prima facie proof of a defendant's right to have venue changed from the county in which the suit was filed to the county named in the plea. Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222; Pool v. Sanders (Tex.Civ. App.) 241 S.W.2d 739 (no writ history); Stull's Chemicals v. Davis (Tex.Civ.App.) 263 S.W.2d 806 (no writ history); Atteberry v. Standard Brass & Mfg. Co. (Tex. Civ.App.) 270 S.W.2d 252 (n. r. e.). Each defendant was sued jointly and severally, and there were no allegations in either the petition or controverting affidavit that any of the defendants were necessary parties.
Appellants further complain of the sufficiency of the controverting affidavit filed in response to the pleas of privilege of Alley, Combes and Nichols. The material portions of the affidavit read as follows:
"PLAINTIFF FILED herein, on the 22nd day of September, 1961, its original petition including Exhibit A thereto, which said exhibit is a written instrument executed by each of the defendants named herein, and provides as follows:
"That defendants, and each of them, are held and firmly bound `in the sum of $2,000.00 in lawful money of the United *872 States of America to be paid at Amerillo, Potter County, Texas * * *'
and that said instrument further provides:
"`Any action at law hereon or under may be filed in Amarillo, Potter County, Texas.'
"THAT the foregoing allegations in support of this controverting affidavit are true and correct: * * *
"BEFORE ME, the undersigned authority, on this day personally appeared Harris E. Lofthus, who, on his oath, stated that he is the attorney of record for plaintiff in the above entitled and numbered cause, and qualified and authorized in all respects to make said affidavit, and that the allegations, denials and facts set out in the foregoing controverting plea are true and correct."
It is to be noted appellee's controverting affidavit did not specifically adopt the allegations of its petition. It simply alleges the petition was filed with an exhibit attached thereto and quoted the exhibit to the extent shown above. This fact was clearly brought to the attention of the court at the hearing when objection was made to the introduction into evidence of the surety bond. In the absence of the controverting affidavit making the petition in such case a part thereof, the controverting affidavit must be tested by its own allegations unaided in any way by the petition. Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347; Jeffries v. Dunklin, 131 Tex. 289, 115 S.W.2d 391; Fair v. Mayfield Feed & Grain Co. (Tex.Civ.App.) 203 S.W.2d 801 (no writ history). Thus the controverting affidavit itself must set out specifically the fact or facts relied on by the plaintiff to establish venue in the county where the case is pending. Rule 86 places the burden on the plaintiff to plead in his controverting affidavit and to prove the facts which will sustain venue where the case was filed. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. When the controverting affidavit is thus tested by its own allegations we reach the unescapable conclusion it fails to allege a cause of action against any of these defendants. A reading of the affidavit fails to reveal even the nature of the cause of action, thus falling far short of the requirement that a cause of action be alleged.
Because of the disposition of this case it becomes unnecessary to discuss and dispose of other points of error brought forward by the appellants.
The judgment of the trial court overruling appellants' pleas of privilege is reversed and the trial court is directed to enter an order transferring this case to the District Court of Lubbock County, Texas. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332794/ | 213 Va. 660 (1973)
MARYLAND CASUALTY COMPANY
v.
JAMES E. CRAIG AND H. R. FAUBER.
Record No. 8040.
Supreme Court of Virginia.
March 5, 1973.
Present, All the Justices.
Agent who had knowledge that building was vacant and that vacancy would continue, led beneficiary to believe that occupancy clause would not be relied upon by company. Occupancy clause waived.
Error to a judgment of the Circuit Court of Augusta County. Hon. Paul A. Holstein, judge presiding.
Wayt B. Timberlake, Jr. (Timberlake, Smith, Thomas & Moses, on brief), for plaintiff in error.
Lloyd T. Smith, Jr. (Tremblay & Smith, on brief), for defendants in error.
HARRISON
HARRISON, J., delivered the opinion of the court.
James E. Craig and H. R. Fauber, plaintiffs below, recovered a judgment for $8,000 against Maryland Casualty Company (Company), representing the amount allegedly due them under a fire insurance policy issued by the Company. The policy insured an unoccupied dwelling owned by Craig which was destroyed by fire. The Company denied liability and Craig and Fauber brought action. At the trial the Company moved to strike plaintiffs' evidence. The trial court concluded that the issue was solely one of law, took the motion under advisement and discharged the jury. Thereafter the court overruled the motion and, having been advised by the Company that it did not intend to offer any evidence, awarded judgment to the plaintiffs. The Company appeals this final judgment.
The evidence consists solely of the testimony of Craig and H. R. *661 Fauber. In April of 1970 Craig, who lives in Earlysville, Virginia, purchased a parcel of land in Augusta County on which was located a large frame dwelling that had been unoccupied for several years. He engaged Colin Thomas, a Staunton attorney, to represent him and asked if Thomas knew anyone who would make him a loan on the property. Thomas contacted James Fauber, a Staunton realtor and also a casualty insurance agent for the W. J. Perry Corporation (Perry), who in turn negotiated with H. R. Fauber regarding the loan.
H. R. Fauber went to the office of James Fauber and agreed to make Craig a $13,000 loan, provided James Fauber could get him insurance on the dwelling. James Fauber responded that "he thought it could be arranged" and gave him "assurance that there would be insurance on the property. . . ."
Thereafter Craig went to Staunton to close the transaction and for the first time met the Faubers. During the closing conference the subject of fire insurance on the dwelling was discussed, for such coverage was one of the conditions of the loan. He inquired about local insurance agencies and James Fauber replied that he would get the insurance for him. Craig testified that he made it very clear to all present that he did not wish to rent the house or to occupy it himself, and while he was hopeful it would sell within 90 days, the house was vacant and he intended to leave it vacant until he sold it. James Fauber's response to these statements was, according to Craig: "Well, that's no problem. We'll just put a 90-day vacancy permit on it and then I'll get it renewed for you."
After this exchange, the Faubers left the conference and Craig and Richard Smith, an attorney, proceeded with the closing. Craig told Smith that James Fauber had offered to get the insurance for him and asked Smith if Fauber was a reputable man. Smith responded that Fauber was going to place the insurance with Maryland Casualty through the Company's local agent, Perry, and advised the purchase. At Craig's request James Fauber was called and the insurance was obtained. A return telephone call was made by Fauber who quoted the premium as $20, and this amount was paid Perry from the proceeds of the H. R. Fauber loan.
The Company issued to Craig its fire policy for one year beginning April 27, 1970. The policy named James E. Craig as the insured, with a mortgage clause to H. R. Fauber, and provided coveron a 2-story frame building in the amount of $8,000. Attached to the policy was a vacancy permit which reads: *662
{"Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring while building described in this policy is vacant or unoccupied beyond a period of 90 consecutive days, which permitted period includes the sixty consecutive days allowed in printed conditions of this policy."
Copies of the policy were duly mailed to Craig and to H. R. Fauber. Subsequent to the issuance of the policy Craig was advised that the premium on this policy was in fact $38. Craig was billed for the balance due of $18 and paid it by his check dated August 10, 1970.
There were no further dealings between any of the parties until August 28, 1970, when the dwelling was totally destroyed by fire.
Neither Craig nor H. R. Fauber ever read the policy. Craig testified that he relied on James Fauber fully after the closing, for he "felt that I had satisfied Mr. H. R. Fauber's requirement and I felt comfortable about the entire matter, as pertaining to insurance".
The Company admits that the W. J. Perry Corporation is its agent and that at the time of the transaction the said James Fauber "was a sub-agent of W. J. Perry Corporation authorized to solicit and submit to said W. J. Perry Corporation applications for insurance". The Company contends, nevertheless, that Fauber's authority was not such as to bind the Company to any oral agreement or impute to it any knowledge of continuing vacancy beyond the period provided for in the policy. It says Fauber's authority as a solicitor is more limited in scope.
The authority of a subagent of an insurance company has long been held the equivalent to that of a general agent in the solicitation of insurance policies. In Goode Ga. Home Insurance Co., 92 Va. 392, 395, 23 S.E. 744, 745 (1895) it was held:
{"Insurance companies know, or ought to know, when they appoint general agents, that, according to the ordinary course of business, they have clerks and other persons to assist them, and that their agents in many instances could not transact the business entrusted to them if they were required to give their personal attention to all of its details. It being necessary, therefore, and according to the usual course of business, for their agents to employ others to aid them in doing the work, it is just and reasonable that insurance companies should be held responsible not only for the *663 acts of their agents, but also for the acts of their agents' employees, within the scope of the agents' authority."
This principle was reaffirmed in Royal Indemnity Co. Hook, 155 Va. 956, 968, 157 S.E. 414, 418 (1931), where it was said: "'. . . notice given a subagent or clerk of matters vitiating a policy will be imputable to the company, the same as though communicated to the regularly appointed agent.'"
Assuming that James Fauber's authority as subagent was that of a solicitor only, this in itself works no limitation on his authority as the Company's representative in the transaction under review. "'. . . [Before] the execution of a policy the powers and authority of a soliciting agent are coextensive with the business intrusted to his care, so that his positive knowledge of material facts is chargeable to his principal.'" 155 Va. at 965, 157 S.E. at 417.
Code | 38.1-292 provides that:
{"A person who is authorized by any company to solicit insurance or applications therefor shall, in any controversy between the insured or his beneficiary and the company, be held to be the agent of the company which issued the insurance solicited or applied for, anything in the application or policy to the contrary notwithstanding."
It is true that James Fauber acted as Craig's agent in obtaining the loan from H. R. Fauber, and that this relationship continued until the loan transaction was completed and James Fauber was compensated for his services as a "finder". However, it is equally clear that James Fauber was also acting in his capacity as a representative of the Company and Perry when he assured Craig at the closing meeting that he could obtain the insurance, and when he later had the policy executed. Craig and H. R. Fauber thus dealt with James Fauber as an insurance agent, the representative of Maryland Casualty and the Perry insurance agency. James Fauber was the only individual with whom Craig and H. R. Fauber, and the Company and Perry, had any contact regarding the issuance of the fire insurance policy on Craig's dwelling. "One who deals with an agent and has no knowledge of any limitations upon his power may deal upon the faith of his ostensible powers, whether this agency be general or special." Royal Indemnity Co. Hook, supra, at 968, 157 S.E. at 418. See also Home Beneficial Asso. Clark, 152 Va. 715, 148 S.E. *664 811 (1929); Mutual Life Ins. Co. Brown, 137 Va. 278, 119 S.E. 142 (1923).
Notwithstanding the provisions of the vacancy permit attached to the fire insurance policy, if James Fauber at the time of the execution of the policy knew that the dwelling insured would remain vacant beyond the ninety-day period provided for therein, then the Company is charged with such knowledge, and, as we observed in Ruffin U.S. Fire Ins. Co., 208 Va. 463, 464, 158 S.E.2d 672, 673-74 (1968):
{"We have consistently held that an insurance company cannot rely on a provision of its policy to defeat coverage if the facts making the provision operative were known to the company when it issued the policy . . .."
We further noted in Ruffin that this was the position taken in the landmark case of Georgia Home Ins. Co. Kinnier, 69 Va. (28 Gratt.) 88 (1877) and that it "was based, at least in part, upon waiver or estoppel by virtue of the conduct of the insurance company's agent". 208 Va. at 466, 158 S.E.2d at 674. There the insurance company's agent, who knew that the premises to be insured were unoccupied and would not be again occupied by the family, was asked when the policy was delivered "if the policy was all right, and if the house was burned would the money be paid", and the agent replied "it was all right, and the money would be paid". By 1904 this court could say:
{"On a similar state of facts, this court has so often decided that the conduct of the agent estops the insurance company from asserting the forfeiture relied on that it may be stated as established law in this jurisdiction." Virginia Fire and Marine Ins. Co. Richmond Mica Co., 102 Va. 429, 432, 46 S.E. 463, 464.
James Fauber knew that the dwelling to be insured was vacant at the time of his conference with H. R. Fauber, when he assured the latter that fire insurance would be obtained on the property. He knew of the vacancy at the time of the closing meeting with Craig, and Craig at that time told him he had no intention of renting the house or occupying it himself but that his intention was to sell, if and when he could. James Fauber knew that the $13,000 loan made by H. R. Fauber to Craig, for which adequate fire coverage on the *665 dwelling was a prerequisite, was payable two years after date. Craig and H. R. Fauber were led to believe by James Fauber's express representations and statements that the vacancy posed "no problem" and that the dwelling which burned was fully covered against loss or damage by fire, at least for the life of the policy. They accepted the policy mailed to them by the Company with that understanding and belief.
In the Ruffin case, supra, we held that the insurance company was not estopped from relying on the occupancy clause of its policy. Knowledge of a "possibility" the dwelling would remain vacant beyond the period permitted by the policy's terms was not sufficient, we said, to charge the agent with knowledge of any continuing vacancy, and furthermore the agent there did nothing to lead the policyholder to believe that the insurance company would not rely upon the occupancy clause, if it should become applicable at some future time. We are presented here with an agent who had knowledge that the vacancy would continue indefinitely, at least for the duration of the policyholder's ownership of the insured dwelling, and who led the beneficiaries to believe that the occupancy clause of the policy would not be relied upon by the Company.
The conduct of the Company's subagent James Fauber was such as constituted a waiver of the condition found in the policy that it should be vitiated if the premises insured remained vacant for a period of more than ninety days. A breach of such condition cannot be relied on here to defeat a recovery by appellees Craig and H. R. Fauber upon the policy.
The judgment of the lower court is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624828/ | 121 S.W.3d 715 (2003)
Charles E. MORITZ, M.D., Central Texas Kidney Associates, P.A., Wilbert Polson, M.D., and Austin Radiological Association, P.A., Petitioners,
v.
Duane PREISS, individually and as next friend of Alexis Preiss and Ronni Preiss, minor children, and as Representative of the Estate of Traci L. Rasmussen-Preiss, Deceased, and Shirley Rasmussen, Respondents.
No. 01-1270.
Supreme Court of Texas.
June 12, 2003.
*717 Stephen W. Harris, the Harris Firm, Austin, Diana L. Faust, R. Brent Cooper, Cooper & Scully, P.C., Dallas, and James B. Ewbank, II, Terri S. Harris, Ewbank & Byrom, P.C., Austin, for Petitioner.
J. Woodfin Jones, Scott, Douglass & McConnico, L.L.P., Paul Schorn, Gary Lawrence Rodriguez, Rodriguez & Schorn, PC, Austin, for Respondent.
Justice SCHNEIDER delivered the opinion for the Court.
The trial court rendered a judgment against petitioner that did not name one of the defendants. We must decide whether the trial court's original judgment was final. If it was, then the petitioner's amended motion for new trial filed more than thirty days after the trial court signed the judgment was untimely. Concerned that the original judgment was not final, the court of appeals abated the appeal and remanded to the trial court to enter a final judgment that expressly disposed of all parties. 60 S.W.3d at 287. The trial court then signed a new judgment that included the originally unnamed defendant. The court of appeals then reversed the trial court's judgment based on the amended new trial motion's merits. Id. at 295. We disagree that the trial court's original judgment was not final. Therefore, the amended new trial motion was untimely, and the court of appeals should not have considered it. Accordingly, we reverse the court of appeals' judgment and render judgment that petitioner take nothing.
I. BACKGROUND
Traci Preiss died three weeks after a kidney biopsy. Her husband, Duane Preiss (individually, and on behalf of his children and his wife's estate) sued the healthcare providersDr. Charles Moritz, Central Texas Kidney Associates, P.A. (CTKA), Wilbert Polson, and Austin Radiological Association, P.A.for medical malpractice. Traci Preiss's mother, Shirley Rasmussen, also sued.[1] Preiss claimed the doctors negligently performed the kidney biopsy, and their negligence caused Traci's death. The claim against CTKA was limited to vicarious liability for Moritz's acts.
The jury failed to find that Moritz, Polson, or Austin Radiological Association proximately caused Traci's death. The jury charge did not include a question about CTKA's liability. On August 29, 2000, the trial court rendered judgment based on the jury's verdict that Preiss take nothing from defendants Moritz, Polson, and Austin Radiological Association. The judgment named all the defendants except CTKA. Afterward, at the request of CTKA's attorney, Preiss prepared and executed a notice of non-suit for CTKA. Preiss delivered the document to CTKA's attorney; however, the non-suit was never filed with the court.
*718 Preiss filed a timely motion for new trial and alleged juror misconduct. Then, more than thirty days after the trial court signed the judgment, Preiss filed an amended motion for new trial and alleged another juror was disqualified. Preiss simultaneously filed a motion for leave to file the amended new trial motion. At the hearing on the new trial motions, the trial court questioned Preiss regarding the propriety of granting leave for an untimely motion. Preiss conceded that the amended new trial motion preserved no error for appeal. But, relying on Kalteyer v. Sneed, Preiss argued that the trial court could consider the arguments and facts in the untimely motion to determine whether it should exercise its inherent power and grant a new trial. See Kalteyer v. Sneed, 837 S.W.2d 848, 851 (Tex.App.-Austin 1992, no writ) (stating that an untimely motion's only purpose is to guide the trial court in the exercise of its inherent plenary power). The trial court granted the motion for leave, and after the hearing, denied both the motion for new trial and the amended motion for new trial.
Later, Preiss discovered the non-suit of CTKA was never filed with the trial court and filed a "Motion to Vacate Interlocutory Order and Enter Final Judgment." Preiss asserted that the trial court's original judgment was interlocutory, because it did not expressly dispose of CTKA. The trial court denied the motion.
Preiss appealed and argued, among other things, that the trial court erred in denying its motion to vacate. Expressing concern that it did not have jurisdiction absent a final judgment from the trial court, the court of appeals abated Preiss's appeal and remanded to the trial court to enter a final judgment disposing of all parties. 60 S.W.3d at 287; see also Tex. R.App. P. 27.2 (allowing an appealed order that is not final to be modified so as to be made final). In response, the trial court rendered a new judgment that included CTKA as a party. Preiss then filed a motion for the trial court to reconsider the amended motion for new trial, and the trial court denied the motion. See Tex.R. Civ. P. 329b(b).
Back before the court of appeals, Moritz and the other healthcare providers (Moritz) argued that the trial court's original judgment rendered August 29, 2000, was final, and therefore, the court of appeals could not consider whether the trial court abused its discretion in denying Preiss's untimely amended motion for new trial. The court of appeals concluded in a footnote that the trial court's signing the amended final judgment and overruling Preiss's subsequent motion for new trial rendered this argument moot. 60 S.W.3d at 287 n. 1. Then, based on the juror disqualification issue raised in Preiss's amended new trial motion, the court of appeals reversed and remanded for a new trial. Id. at 295.
Moritz petitions this Court for review and asks us to reverse the court of appeals' judgment. Moritz contends the trial court's original judgment was final, and therefore, the court of appeals erred in reviewing the trial court's denial of Preiss's untimely amended motion for new trial. Alternatively, Moritz argues that, because the juror in question was not disqualified, the court of appeals erred in holding the trial court abused its discretion in denying the amended motion for new trial.
II. ANALYSIS
A. FINAL JUDGMENT
This Court has long recognized a presumption of finality for judgments that follow a trial on the merits:
When a judgment, not intrinsically interlocutory in character, is rendered and *719 entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to [our procedural rules,] it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.
N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897 (Tex.1966); see also John v. Marshall Health Serv., Inc., 58 S.W.3d 738, 740 (Tex.2001); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 198 (Tex.2001). If a judgment actually disposes of every issue in a case, then it is not interlocutory simply because it does not include one of the parties. See Lehmann, 39 S.W.3d at 200; see also Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161, 1162 (1913) (if a judgment implicitly, but necessarily, disposes of all claims it is presumed final).
We recently affirmed the finality presumption for judgments rendered after a full trial on the merits. John, 58 S.W.3d at 740. In John, after the jury failed to reach a verdict, the trial court granted certain defendants' motion for directed verdict and rendered a judgment stating that John take nothing from those defendants. The judgment did not name three other defendants, who did not participate in the trial because John had negotiated a preliminary settlement with them. Id. at 739. We held that, although the judgment did not expressly dispose of all parties, the finality presumption applied to all parties, including the defendants the judgment did not name. Id. at 740. In concluding the finality presumption was "entirely appropriate," we relied on several factors, including John's not moving for separate trials, proceeding to trial against certain defendants only, and failing to move for an agreed judgment or a dismissal of his claims against the defendants with whom he was settling. Moreover, we determined "there is nothing to indicate that the trial court did not intend the judgment to finally dispose of the entire case." Id. at 740; see also Aldridge, 400 S.W.2d at 897-98.
Here, as in John, there is nothing to indicate that the trial court did not intend to finally dispose of the entire case. See John, 58 S.W.3d at 740. Preiss did not request, and the trial court did not enter, any orders for a separate trial against CTKA. See id. at 740; Aldridge, 400 S.W.2d at 897. Moreover, the trial court did not submit CTKA's liability to the jury. In fact, Preiss did not request the trial court to submit a jury question on CTKA's liability. And Preiss did not object to the charge submitted. Therefore, we likewise conclude the finality presumption is "entirely appropriate" here. John, 58 S.W.3d at 740. Accordingly, we conclude that the trial court's original judgment, rendered on August 29, 2000, was final.
B. AMENDED MOTION FOR NEW TRIAL
We now consider whether Preiss's amended new trial motion, filed more than thirty days after the trial court signed the August 29, 2000 judgment, was timely. Preiss argues that, even if we conclude the August 29, 2000 judgment was final, the amended motion for new trial was rendered timely when the trial court granted Preiss leave to file the motion, heard arguments, and ruled on the amended new trial motion. Thus, according to Preiss, the court of appeals properly considered whether the trial court abused its discretion by denying the amended motion. We disagree.
A party may file an amended motion for new trial without leave of court before any earlier motion for new trial is overruled and within thirty days after the judgment. Tex.R. Civ. P. 329b(b). The court may not enlarge the period for taking any action under the rules relating to new trials except as the rules allow. Tex.R. Civ. P. 5.
*720 Nothing in the express language of Rule 329b or Rule 5 suggests that a party receives appellate review of a trial court's decision to deny an untimely amended motion for new trial simply because the trial court grants a party leave to file the untimely amended motion. Rather, Rule 329b(b) merely allows a party to file an amended motion without the trial court's permission so long as the trial court has not yet ruled on an earlier new trial motion, and the party files the amended motion within thirty days after the trial court signs the judgment. Tex.R. Civ. P. 329b(b). If a party timely files a motion for new trial, the trial court's plenary power extends an additional thirty days after the motion is overruled. During that time, the court may grant a new trial, or vacate, modify, correct or reform the judgment. Tex.R. Civ. P. 329b(e). And Rule 5 prohibits a trial court from enlarging the period for taking any action under the rules relating to new trials. Tex.R. Civ. P. 5.
Read together, Rules 5, 329b(b) and 329b(e) demonstrate that an amended motion for new trial filed more than thirty days after the trial court signs a final judgment is untimely. The trial court's inherent power does not allow a trial court to disregard the plain language of Rule 5 and enlarge the time for filing new trial motions. A.F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853, 854 (1952). A trial court's order overruling an untimely new trial motion cannot be the basis of appellate review, even if the trial court acts within its plenary power period. Thomas v. Davis, 553 S.W.2d 624, 626 (Tex.1977). But, the trial court may, at its discretion, consider the grounds raised in an untimely motion and grant a new trial under its inherent authority before the court loses plenary power. Jackson v. Van Winkle, 660 S.W.2d 807, 808 (Tex.1983).
To summarize the purpose of an untimely motion or amended motion for new trial:
If the trial court ignores the tardy motion, it is ineffectual for any purpose. The court, however, may look to the motion for guidance in the exercise of its inherent power and acting before its plenary power has expired, may grant a new trial; but if the court denies a new trial, the belated motion is a nullity and supplies no basis for consideration upon appeal of grounds which were required to be set forth in a timely motion.
Kalteyer, 837 S.W.2d at 851 (citing 4 McDonald, Texas Civil Practice in District and County Courts § 18.06.02 (Frank W. Elliott ed., rev. ed.1984)).
Here, Preiss filed the amended motion for new trial thirty-five days after the trial court signed the original judgment. We have concluded that this judgment was final for purposes of appeal. Accordingly, Preiss's amended motion for new trial was untimely. See Tex.R. Civ. P. 329b(b). The untimely motion's only purpose was to guide the trial court in the exercise of its inherent authority, and it is a nullity for purposes of preserving issues for appellate review. See Kalteyer, 837 S.W.2d at 851. The court of appeals, therefore, erred in reviewing Preiss's contention that the trial court abused its discretion in denying the amended motion for new trial and reversing the trial court's judgment based on the juror disqualification issue raised for the first time in that motion.
We acknowledge that in Jackson, decided under the prior version of Rule 329b, we allowed appellate review of issues raised in an untimely motion and amended motion for new trial after the trial court considered the merits of the untimely motions and denied the motions before its plenary power expired. Jackson, 660 S.W.2d at 808. However, to give full effect *721 to our procedural rules that limit the time to file new trial motions, today we hold that an untimely amended motion for new trial does not preserve issues for appellate review, even if the trial court considers and denies the untimely motion within its plenary power period. We overrule Jackson only to the extent that it allows appellate review of a trial court's decision to deny an untimely new trial motion.
III. CONCLUSION
In sum, because the trial court's original judgment followed a trial on the merits and was not intrinsically interlocutory in character, it is presumed final. Consequently, Preiss's amended motion for new trial filed more than thirty days after the trial court signed the judgment is untimely, and the court of appeals should not have considered whether the trial court abused its discretion in denying it. Accordingly, without hearing oral argument, we reverse the court of appeals' judgment and render judgment that Preiss take nothing. See Tex.R.App. P. 59.1, 60.2(c).
NOTES
[1] Preiss and Rasmussen will be referred to collectively as Preiss unless otherwise noted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2442389/ | 3 A.3d 1098 (2009)
PAOLI
v.
GLENN.
No. 180, 2008.
Supreme Court of Delaware.
February 4, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623643/ | 360 S.W.2d 302 (1962)
Norman CAPOBIANCO, Plaintiff-Respondent,
v.
YACOVELLI RESTAURANT, INC., Defendant-Appellant.
No. 30990.
St. Louis Court of Appeals, Missouri.
September 18, 1962.
*303 Alexander & Robertson, Ernest E. Baker, Louis A. Robertson, St. Louis, for defendant-appellant.
Flynn, Parker & Badaracco, Joseph L. Badaracco, St. Louis, for plaintiff-respondent.
DOERNER, Commissioner.
Defendant appeals from a verdict and judgment for $5,000 entered in favor of plaintiff for personal injuries and damages resulting from a fall on defendant's premises.
Defendant, a corporation, operates a restaurant located on Big Bend Road in St. Louis County. Plaintiff, a self-employed refrigeration and air-conditioning service man, had been taking care of the defendant's equipment for about ten years. On July 19, 1960, plaintiff went to the defendant's restaurant to install a new water pump adjacent to the water tower which supplied water to the defendant's two air-conditioning units. The water tower was located outdoors, in the southwest corner of a Ushaped court formed by the main brick building on the east, by two frame additions on the north and south, and by a picket fence on the west which ran from the northwest corner to the water tower. A stairway to the basement was located on the east side of the court, and so constructed that the walls of the stairwell were formed of the brick wall of the building on the east, and walls of eight inch concrete blocks on the south and west, with the concrete steps descending from the north. The steps and stairwell were entirely enclosed by wooden folding doors over the steps and by a wooden cover or platform over the remainder of the stairwell, such coverings having been constructed about five years previously. The doors were nailed shut, and the entranceway had not been in use for that period of time. The cover was from 3 to 4 feet wide, from the wall to the western edge, and was about a foot and a half or two feet above the ground. There was a window about 3 feet above the platform.
At the time plaintiff installed the water pump the restaurant had not yet opened for business for the day, and the only other person on the premises was one Hoppe, the porter, who was working inside. Plaintiff testified that after installing the pump, and aligning it visually, he desired to align it while it was in operation so as to achieve the least possible amount of vibration. There was no way to start the pump other than by throwing on the switch on either of the defendant's air-conditioning units in the building, which automatically activated the pump. Plaintiff said that he did not want to go into the building and throw on the switch because of the possibility that the pump might tear itself apart before he could return and properly align it. He decided to attract Hoppe's attention, and to ask him to throw on the switch. To that end, plaintiff testified, he stepped on the western edge of the platform over the stairwell, leaned forward with his left hand against the wall, and was about to knock on the window with his right hand when the boards forming the platform broke, causing plaintiff to fall about 7 to 8 feet to the bottom of the stairwell. Plaintiff said he had followed the same procedure on prior occasions when he wanted the porter to turn on a switch.
On direct examination by his counsel plaintiff was asked whether on any prior occasion or any other time before the fall he had ever been warned to stay off of the cover, and answered "Yes." However, an objection was made to the question, and sustained. Plaintiff was then asked whether Mr. Yacovelli had ever talked to him about the areaway when he had been there on any prior occasion, and replied that he had been *304 told "* * * to be careful of it," meaning the cover over the stairwell. On cross-examination his testimony regarding the warning given him was as follows:
"Q. There was no previous arrangement with Mr. Yacovelli with reference to using that cover as a step, was there?
"A. No.
"Q. In fact, or as a matter of fact, Mr. Yacovelli had warned you about the use of that cover on a previous occasion, didn't he?
"A. Yes.
"Q. And told you because of your and I am notI don't mean to be personalbut your height and weight, that that well might not carry you, didn't he?
"A. I don't believe that was specifically brought out. He just warned me in the use of it.
"Q. And what did he say to you?
"A. To be careful.
"Q. And what did you say to him?
"A. I don't remember. I probably acknowledged it.
"Q. Sir?
"A. I probably acknowledged it. I don't remember the words.
"Q. As a matter of fact, didn't Mr. Yacovelli tell you not to step up on that because of your weight?
"A. I don't remember it stated as such no.
* * * * * *
"Q. Could you say the number of times you stepped up on there?
"A. Normally any time I had to service the tower I would step up on this.
"Q. And the only time that Mr. Yacovelli was there when he saw you step on there, he cautioned you about using that, didn't he?
"A. I don't believe I was standing on it when Mr. Yacovelli cautioned me. He just cautioned
"Q. Cautioned you not to use it?
"A. That's right.
"Q. You were not even using it then but he cautioned you not to use is, is that right?
"A. I think so."
Plaintiff insisted that he had stood with both feet only on the edge of the cover that was supported by the concrete blocks, and denied that he had stepped on any other part of the cover or had started to walk over to the window.
On behalf of the defendant, its general manager, Dewey Yacovelli, testified that he could not remember when he advised the plaintiff not to step on the platform, but that he did recall he had told plaintiff "* * to be careful, that it was not made to walk on and it might not hold his weight." On cross-examination he stated that the warning had been given prior to the accident, on just one occasion because most times he wasn't there when the plaintiff was. He was asked how he happened to know that it was necessary to warn plaintiff, and replied:
"It wasn't built for that, it wasn't built to be walked on. I mean, it was strictly for cover, and he is quite heavy and I just figured that it wasn't the safest thing for him to do to be up there, so I warned him to stay off of it."
Subsequently he testified that he had seen plaintiff stand on the cover "* * * a few times," but whether he had warned plaintiff the first time he saw him stand on it or the second time he couldn't recall. He also stated that he stood on the cover on one occasion to repair a window broken by robbers, but that he had been quite careful not to step in the center section, and walked on the outer edge.
*305 The opinion we have reached regarding defendant's initial point on appeal makes it unnecessary to recite the nature and extent of plaintiff's injuries and damages. That contention is that the court erred in overruling defendant's motion for a directed verdict at the close of the evidence because the plaintiff had failed to make a submissible case. The parties differ as to the status of plaintiff on defendant's premises at the place where he fell, plaintiff maintaining that he was a business invitee, and defendant arguing that plaintiff had become a mere licensee because he had exceeded the scope of the invitation extended to him by stepping on the stairwell cover after he had been told not to do so. Because of the view we take of the case it is unnecessary to rule this question, and for the purposes of this opinion we shall assume that plaintiff was a business visitor or invitee.
It is an elementary principle of the law of torts that there can be no actionable negligence in the absence of the existence of some duty on the defendant's part owing to the plaintiff, which duty has been neglected or violated by the defendant, with the injury suffered by the plaintiff directly attributable thereto, and flowing therefrom. Reichholdt v. Union Electric Company, Mo., 329 S.W.2d 634; Hiltner v. Kansas City, Mo., 293 S.W.2d 422. What duty, then, does a possessor of land owe to his business invitee? The law governing that subject is clearly set forth in 2 Restatement of the Law of Torts, Sec. 343, p. 938, as follows:
"A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he
"(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
"(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and
"(c) invites or permits them to enter or remain upon the land without exercising reasonable care
"(i) to make the condition reasonably safe, or
"(ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility."
Thus the possessor of land owes his invitee the alternate duty to keep his premises in a reasonably safe condition or to warn him of the dangerous condition. But the possessor of land is not an insurer of the safety of his business invitee, Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Lindquist v. S. S. Kresge Co., 345 Mo. 849, 136 S.W.2d 303, and, "The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers." 65 C.J.S. Negligence § 50, p. 541; Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226, 229, 74 A.L.R. 2d 938; Dixon v. General Grocery Co., Mo., 293 S.W.2d 415; Small v. Ralston-Purina Co., Mo.App., 202 S.W.2d 533.
Thus the true basis of a landowner's liability is his superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Harbourn v. Katz Drug Co., supra; Stafford v. Fred Wolferman, Inc., Mo., 307 S.W.2d 468; Murray v. Ralph D'Oench Co., 347 Mo. 365, 147 S.W.2d 623; Stoll v. First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97. It was said in Stafford v. Fred *306 Wolferman, Inc., supra, 307 S.W.2d l. c. 473:
"* * * Such a defendant is not liable for injuries due to dangers which are obvious, or as well known to plaintiff as to defendant. And in such circumstances there is no duty to warn because the invitee has the information which would be conveyed by a warning. Wattels v. Marre, Mo.Sup., 303 S.W.2d 9; Douglas v. Douglas, Mo.Sup., 255 S.W.2d 756; Cameron v. Small, Mo. Sup., 182 S.W.2d 565; Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723."
To the same effect see Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623; Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318, 142 A.L.R. 858; Stoll v. First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97; Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Stein v. Battenfield Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345; Goetz v. Hydraulic Press Brick Co., 320 Mo. 586, 9 S.W.2d 606, 60 A.L.R. 1064; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Mullen v. Sensenbrenner Mercantile Co., Mo., 260 S.W. 982, 33 A.L.R. 176; Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Heidt v. Lauless, Mo. App., 348 S.W.2d 599. It logically follows that if the invitee is in fact warned of the dangerous condition no liability can be maintained against the possessor of the land. Murray v. D'Oench Co., 347 Mo. 365, 147 S.W.2d 623; Paubel v. Hitz, supra; Main v. Lehman, supra.
In the instant case plaintiff readily admitted, on both direct and cross-examination, that prior to his fall Yacovelli had warned him about the danger of standing on the cover. In fact, had no warning been given, it might well have been argued that the care which plaintiff claimed he exercised to stand only on the edge amply illustrated his awareness of the obvious danger inherent in stepping on the platform. But in any event, here plaintiff's own evidence conclusively showed that the defendant was not guilty of any negligence because it had discharged its duty to plaintiff by warning him of the danger. Murray v. D'Oench Company, supra. Plaintiff attempts to escape the effect of the foregoing authorities by arguing, first, that he had continued to stand on the cover; and second, that he was not contributorily negligent in doing so. There was no evidence that Yacovelli or anyone else in authority was aware that defendant was continuing to stand on the cover after being warned not to do so; and even if there had been, there was no obligation on defendant to repeat the warning each time plaintiff did so. Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226, 231, 74 A.L.R. 2d 938. Secondly, as was said of a female business invitee in Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 657, 101 S.W.2d 723, 728, " * * * whether she was careful or not, or whether her conduct was contributory negligence or not, makes no real difference, because there is no evidence to show that defendant was guilty of any negligence, and, even if plaintiff was careful, defendant is only liable if it was negligent. * * *"
It follows that the court erred in overruling defendant's motion for a directed verdict, and that the judgment should be reversed. The Commissioner so recommends.
PER CURIAM.
The foregoing opinion by DOERNER, C., is adopted as the opinion of the court.
Accordingly, judgment is reversed.
ANDERSON, P. J., and WILLIAM M. KIMBERLIN and MARSHALL CRAIG, Special Judges, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623695/ | 360 S.W.2d 64 (1961)
Arnold GARNER, Percy Wells, Bobby Maness, and Robert Wamble, d/b/a Wamble's Trucking Co., Plaintiffs in Error,
v.
L. H. MAXWELL, Defendant in Error.
Court of Appeals of Tennessee, Western Section of Jackson.
December 20, 1961.
Rehearing Denied March 23, 1962.
Certiorari Denied September 7, 1962.
*65 W.R. Menzies, Jr., Jackson, for plaintiffs in error.
Whit LaFon and Jack Woodall, Jackson, for defendant in error.
Certiorari Denied by Supreme Court September 7, 1962.
BEJACH, J.
This cause involves an appeal in error by Arnold Garner, Percy Wells, Bobby Maness and Robert Wamble, who had been sued in the lower court as partners or joint adventurers d/b/a Wamble Trucking Company, and against whom a jury had returned a verdict of $21,400, of which $21,000 was for compensatory damages, and $400.00 for punitive damages. This verdict was approved by the trial judge and judgment entered accordingly.
The suit grew out of an accident which occurred on Tennessee State Highway 20 at a point about 8 miles northwest of Jackson, Tennessee. It happened at about 12:30 o'clock A.M., October 24, 1959. In this accident the plaintiff, L.H. Maxwell, a member of the Tennessee Highway Patrol, ran his automobile into a tractor trailer outfit which was left parked in the highway without lights and without warning devices as required by Tennessee statutes. The tractor trailer outfit was at the time hauling bales of cotton, the point of shipment of which was from Mauldin, Missouri. Arnold Garner was the owner of the tractor; Bobby Maness was owner of the trailer; Percy Wells was the driver; and Robert Wamble, d/b/a Wamble Trucking Company, was named on the bill of lading for the cotton. The parties will be referred to according to the status which they occupied in the lower court, defendant in error having been the plaintiff and plaintiffs in error the defendants, or they may sometimes be referred to by their individual names.
The operation here involved was conducted in the name of Robert Wamble, d/b/a Wamble Trucking Company, in whose name the bill of lading was issued. All of the defendants were to share in the profits of the enterprise. A trailer belonging to Robert Wamble had become disabled and the trailer owned by Bobby Maness had been substituted, for the use of which it was agreed that Maness should receive 13% of the profits.
The plaintiff's declaration is in two counts, the first count being based on alleged acts and omissions constituting common law negligence, and the second count on violation of statutes of the State of Tennessee regulating the operation of trucks on the highways, which require certain precautions in the event same become disabled. The declaration alleges and the proof establishes that the tractor trailer outfit had been parked about four hours before the accident. The declaration also alleges and the proof establishes that after the tractor became disabled, defendant Garner returned *66 with defendant Wells to the scene of the accident where he turned off the lights, and went home to bed leaving the tractor and trailer unattended, without lights or flares. No excuse for failure to employ a wrecker to remove the tractor trailer from the highway was offered, except that he did not have money to pay for such service. There is proof that reflectors were put out, one in front of and one behind the tractor and trailer; but the statute involved, sec. 59-918 and 59-919, T.C.A., requires three flares or three reflectors.
In this Court, as plaintiffs in error, defendants have filed seven assignments of error. These present for consideration by this Court four questions, which are as follows:
1. Whether or not plaintiff should have been held, as a matter of law, guilty of contributory negligence because of failure to stop his automobile within the distance lighted by his headlights.
2. Whether or not the defendants were engaged in a joint venture or a partnership so as to warrant the verdict against defendants Wamble and Maness, as well as against defendants Garner and Wells.
3. Whether or not evidence of plaintiff with respect to alleged medical and hospital expenses was properly admitted in evidence.
4. Whether or not the verdict was excessive.
We will dispose of these questions in the order named.
1. What is known as the "The assured clear distance rule" arises out of the decision of the Supreme Court in 1914 in the case of West Construction Co. v. White, 130 Tenn. 520, 172 S.W. 301, in which case it was held that the failure of a plaintiff to stop his car within the distance lighted by the headlights of the car, and thus avoid a collision, amounted, as a matter of law, to contributory negligence which barred plaintiff's suit. Since that decision, however, numerous decisions of the Supreme Court and of the Court of Appeals have modified this rule, at least to the extent that exceptional circumstances make the applicability of the rule a question of fact for the jury, rather than a question of law for the court. These cases include Main Street Transfer & Storage Co. v. Smith 166 Tenn. 482, 63 S.W. (2d) 665; Patterson v. Kirkpatrick, 11 Tenn. App. 162; Huntsman Bros., Inc. v. Grocers Baking Co., 12 Tenn. App. 535; Halfacre v. Hart, 192 Tenn. 342, 241 S.W. (2d) 421; and Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 178 S.W. (2d) 756.
In the case of Inter-City Trucking v. Daniels, 181 Tenn. 126, 178 S.W. (2d) 756, which case was quite similar on its facts to the case at bar, it was also held that, where the defendant was guilty of gross negligence, the defendant was thereby precluded from relying on the defense of contributory negligence. In the instant case, not only was gross negligence alleged, but the jury returned a verdict of $400.00 for punitive damages based upon such allegation. The defendant Garner testified that he knew the law required that three flares or reflectors be displayed, but that he put out only two. He also testified that he turned out the lights on the tractor to avoid running the battery down, and went home to bed. The record discloses that there were wrecker companies available at Jackson, Tennessee, some eight miles distant from the scene of the accident, which could have removed the tractor trailer from the highway before the wreck occurred; and the only excuse given by Garner for failure to employ one of these was that he did not have the money to pay for such service.
The gross negligence involved in the Inter-City Trucking Co. case, which deprived the defendant of the right to rely on the defense of contributory negligence consisted of violation of the same statute involved in the instant case, which at that time (1942) required the placing of three flares capable of being seen and distinguished at a distance of 500 feet under normal atmospheric conditions. In that *67 case, the Supreme Court, speaking through Mr. Justice Chambliss, later Chief Justice, said:
"The violation of this statute was negligent per se. The driver of an approaching vehicle had a right to assume that the law was being observed and until this glaring and inescapable warning appeared might proceed on the assumption that no standing obstruction of this character was ahead. The failure to place these protective signals, under circumstances which disclosed no reasonable excuse for such neglect, would seem to bring this actionable negligence per se within the definition of gross negligence, as charged in the declaration in this case, which precludes reliance upon the defensive plea of contributory negligence, relied, on by the defendant." Inter-City Trucking Co. v. Daniels, 181 Tenn. 129, 178 S.W. (2d) 757.
We think the conduct of the defendants in the instant case warranted the jury verdict for punitive damages, and justifies the conclusion that defendants were guilty of such gross negligence as to deprive them of the right of relying on the defense of contributory negligence. It thus becomes immaterial whether or not the "assured clear distance rule" might or could be applicable to the facts of the instant case. In any event, defendants' counsel made no effort to correct the failure of the trial judge to charge, with reference to the "assured clear distance rule" by submitting a special instruction on the subject; and it has long been held that mere meagerness of the trial judge's charge will not be reversible error in the absence of special instructions submitted for amplification of the charge. Sutherland v. Shelton, 59 Tenn. 374; Guaranty Fund Life Soc. v. Ford, 104 Tenn. 533, 58 S.W. 239, and numerous other cases.
But, it is contended on behalf of defendants that the facts of the instant case did not justify a charge on the subject of gross negligence. Aside from the fact, as heretofore stated, that we think the facts did justify the jury's verdict for punitive damages, this question was not presented in the defendant's motion for new trial. Consequently, it cannot be considered by this Court on appeal. Hyter v. Wheland Co., 207 Tenn. 127, 338 S.W. (2d) 571.
2. The question on whether or not the jury's verdict was properly returned against all four defendants turns on whether or not the proof establishes that said defendants were engaged in a joint venture or partnership transaction. On this subject, 30 Am. Jur. 940, says:
"Admittedly it is difficult to distinglish between joint adventures and partnerships. The relations of the parties to a joint adventure and the nature of their associations are so similar and closely akin to a partnership that it is ordinarily held that their rights, duties and liabilities are to be tested by rules which are closely analogous to and substantially the same, if not exactly the same, as those which govern partnerships."
And, on this same subject, our Supreme Court in Pritchett v. Thomas Plater & Co., 144 Tenn. 406, 232 S.W. 961, said:
"A joint adventure is generally regarded as of a similar nature to that of a partnership and governed by the same rules applicable to partnerships."
We are therefore justified in resorting to the Uniform Partnership Act which has been enacted in Tennessee, and which is contained in sections 61-101 to 61-142, T.C.A. Section 61-105, T.C.A. defines a partnership as "An association of two (2) or more persons to carry on as co-owners a business for profit"; and subsection (4) of section 61-106 T.C.A. provides, "The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business." In applying these Code sections, our Supreme Court, in *68 Memphis Natural Gas Co. v. Pope, 178 Tenn. 580, 161 S.W. (2d) 211, said: "The sharing by a person of profits of a business is prima facie evidence [that] he is a partner in the business."
A joint adventure is defined in 48 C.J.S. § 1, page 801, as follows:
"A joint adventure is a legal relation of recent origin created by the American courts and is generally described as an association of persons to carry out a single business enterprise for profit."
The Supreme Court, speaking through Mr. Justice Burnett in Spencer Kellogg & Sons, Inc. v. Lobban, 204 Tenn. 79, 315 S.W. (2d) 514, at page 520, said:
"Many courts over the country have in the past few years defined this term of a joint venture. It signifies to the judicial mind (a joint venture is a creation of the American Courts) that it is something more or less temporary something gone into to more or less take a gamble on this proposition or that, or as they say sometimes, `take a flier'."
In Memphis Natural Gas Co. v. Pope, 178 Tenn. 580, at page 586, 161 S.W. (2d) 211, at page 213, the Supreme Court said:
"But whether a corporation can technically become a partner, or whether it requires charter authority to become a partner, a corporation can make contracts in pursuance of its corporate powers that will bind it in joint adventures or undertakings."
In the case of Southern Bell T. & T. Co. v. Lee, 40 Tenn. App. 352, 292 S.W. (2d) 45, in an opinion written by Judge Avery, Presiding Judge of this section of the Court of Appeals, the Southern Bell T. & T. Company was held liable to plaintiffs for injuries resulting from stepping into a hole from which had been removed a pole jointly owned by the Southern Bell Company and the Memphis Street Railway Co., even though the pole had been removed by the Memphis Street Railway Company's employees, who had left the hole in the condition which caused plaintiff to step into it. This decision resulted from the ruling by this Court that the ownership and maintenance of the pole in question was under a joint enterprise agreement, and that the removal of the pole, and negligent leaving of the hole into which plaintiff had stepped was incidental to that joint enterprise.
The facts of the instant case warrant a conclusion that if the defendants were not formal partners, they were at least engaged in a joint enterprise which makes them liable as partners.
In any event, the defendants in the instant case were sued as partners, d/b/a Wamble's Trucking Company, and no sworn pleading or answer was filed denying the existence of such partnership. It follows that under the provisions of section 24-511 T.C.A., proof of partnership was unnecessary. Section 24-511 T.C.A. is as follows:
"Where two (2) or more persons are sued as partners, in law or equity, it shall not be necessary to prove the partnership unless the fact of the partnership is denied under oath of those so sued."
3. Defendants' Assignment of Error VI complains of the ruling of the trial judge in allowing witness John W. Headrick, Office Manager of the Jackson-Madison County Hospital, to testify as to hospital and physical therapy bills incurred by plaintiff, without a showing that such medical expenses were necessary, and that charges therefor reasonable.
The witness, Headrick, testified as to the reasonableness of the charges made by the hospital as compared to charges made by other hospitals in the general area. Also, Dr. Dodson testified that he treated plaintiff at the Jackson-Madison *69 County General Hospital and "put him on physiotherapy to limber up his knee", and Dowling testified, specifically, that the amount of his bill, $200.00, was reasonable. We think the testimony objected to was competent. At most, even if the testimony objected to were considered as having been improperly admitted, it would not justify a reversal of the cause, but only a remittitur. And under the provisions of our "harmless error statute", section 27-117 T.C.A., we cannot say that the result of the trial would have been different, even if this testimony had been excluded. This issue is to a considerable extent inseparable from defendants' contention that the verdict of the jury was excessive, which will be separately treated.
4. Defendants' insistence that the verdict in the instant case was so excessive as to indicate passion, prejudice or confusion on the part of the jury, is, in our opinion, without merit. On the date of the accident, October 24, 1959, plaintiff was 48 years old, in good health, and earning $370.00 per month. He had a life expectancy of 23.6 years. He received a bilateral fracture of the mandible, the condinent portions of the mandible were broken, and he had multiple injuries to his face and general injuries. His upper jaw was used as a splint, and his lower jaw was wired to it to hold it in place. Wires and rubber bands were used to hold it in place for several weeks, and after that a false joint developed which was not perfect. Plaintiff was fed liquids for six or eight weeks. He lost five teeth from injuries sustained in the accident, some of which were broken off in the jaw bone. There was testimony that plaintiff would have permanent impairment of his jaws. He had 50 or 60 stitches taken in his face, and five in his head. Plaintiff's head was swollen to three times its ordinary size, and he had black-out spells after receiving treatment. His wife stayed with him at the hospital to save nursing bills, and his sister, a registered nurse, donated her services for five weeks. Plaintiff lost from 20 to 30 pounds as a result of the accident, and still has headaches and pain for which he has to take medicine for relief. He had extensive lacerations of his right cheek and jaw, and a comminuted fracture of the right knee cap, together with a contusion of the right ankle. One cut on his face ran diagonally from the right corner of the mouth, down over the lower jaw beneath the chin, leaving a scar approximately 31/8 inches in length, with a second scar which formed a Y, about 2 inches in length. His knee cap was so badly injured that it had to be removed. It was placed in a splint for two weeks, and thereafter until the time of the trial, had been regularly taking physiotherapy treatments. The injury to plaintiff has resulted in atrophy of his right thigh. In addition, his out-of-pocket expenses were in excess of $6,000.
Under all the facts and circumstances of the case, we think the award of $21,000 as compensatory damages was reasonable. As to the award of $400.00 for punitive damages, if punitive damages were recoverable at all, and we hold that they were, the award of that amount is modest.
All of defendants' assignments of error will be overruled, and the judgment of the lower court will be affirmed at the cost of defendants and their sureties on the appeal bond.
CARNEY, J., and CROWNOVER, Special Judge, concur.
On Petition to Rehear.
BEJACH, Justice.
Plaintiffs in Error have filed a petition to rehear seeking a reconsideration by this court of our opinion filed December 20, 1961, in which we affirmed the judgment of the lower court.
The petition to rehear sets out that, in our opinion filed December 20, 1961, it is *70 stated that all of the petitioners, the defendants in the lower court, were sued as partners, d/b/a Wamble Trucking Co., and that since no sworn pleading was filed denying the existence of such partnership, the plaintiff (obviously meaning the dedendant), does not have to offer proof of such partnership, under the provisions of section 24-511 T.C.A. The petition to rehear asserts that, "This court's statement concerning petitioners being sued as partners is absolute error", because the original declaration in this cause alleges, "that the truck tractor owned by the defendant, Arnold Garner, and the trailer owned by the defendant, Bobby Maness, were at the time being used by them in a joint venture with the defendant, Robert Wamble, d/b/a Wamble's Trucking Co."
It is true that the plaintiff in the lower court, who is now respondent to the petition to rehear, sued the defendants, now petitioners, as members of and participants in a joint venture, instead of labeling that joint venture a partnership. We think this is immaterial. On this subject, we quote from 30 Am. Jur. Joint Adventures sec. 4, p. 940, as follows:
"Admittedly, it is difficult to distinguish between jont adventures and partnerships. The relations of the parties to a joint adventure and the nature of their association are so similar and closely akin to a partnership that it is ordinarily held that their rights, duties, and liabilities are to be tested by rules which are closely analogous to, and substantially the same, if not exactly the same, as those which govern partnerships. From the standpoint of the element of mutual agency of the members of a joint adventure, the relationship has often been said to be akin to that of partnership or of partnership for a single transaction. In general, however, it is now understood that the two relationships are not identical, and that decisions defining and describing partnerships are not necessarily controlling upon the question of whether parties to a particular contract are joint adventurers. In other words, it is not necessary, in order that there be a joint adventure, that a legal partnership exist."
Also, from the opinion of our own Supreme Court in Pritchett v. Thomas Plater & Co., 144 Tenn 406, 437, 232 S.W. 961, written by Mr. Justice Hall, we quote as follows:
"The partnership may exist for a single transaction, venture or undertaking. 30 Cyc., 370, 380; 115 Am. St. Rep., 408, note; 18 L.R.A. (N.S.) 1090, note.
"A joint adventure is generally regarded as of a similar nature to that of a partnership and governed by the same rules applicable to partnerships." Pritchett v. Thomas Plater & Co., 144 Tenn. 437, 232 S.W. 970.
Such being the state of the law on this subject, we think that even if the statement complained of in our former opinion be considered as technically inaccurate, such inaccuracy was immaterial, and a correction of it would not change the result reached in our opinion, nor entitle petitioners to have their petition to rehear granted.
All other questions presented by the petition to rehear were fully covered in the original briefs and arguments presented in open court, and were disposed of by our opinion filed December 20, 1961.
We find no merit in the petition to rehear and same is accordingly denied and overruled.
CARNEY, J., and CROWNOVER, Special Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623687/ | 569 So. 2d 897 (1990)
STATE of Florida, Petitioner,
v.
Peter Vincent WEIR, Respondent.
No. 90-2680.
District Court of Appeal of Florida, Fourth District.
November 14, 1990.
*898 Michael J. Satz, State Atty., and Lewis Michael, Asst. State Atty., Fort Lauderdale, for petitioner.
Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Asst. Public Defender, Fort Lauderdale, for respondent.
POLEN, Judge.
The State of Florida brings this petition for writ of certiorari seeking review of a trial court order granting a defendant's motion in limine, barring a dying declaration offered in a pending second degree murder prosecution. In an order released earlier, this court granted certiorari and quashed the trial court order which held that the dying declaration exception to hearsay in Florida is unconstitutional. This opinion provides the rationale for that order.
On the point of jurisdiction, certiorari review has been allowed in this case on extremely narrow grounds and exceptional circumstances, and is limited to the facts of this case. The order on review arose from a motion in limine filed on or about September 24, 1990, and argued on September 26, 1990, five days before trial commenced. The defendant sought a pretrial ruling on the motion in limine, which included a challenge to the admission of electronically recorded statements by the victim of a stabbing made at the emergency room of the hospital, where the victim later died. The statements were objected to as hearsay and unreliable because the victim was said to have been intoxicated when he made them. The trial judge deferred ruling on the motion until the week trial was to commence, citing the need to hear testimony from a doctor not then available. The order granting the motion was entered on the second day of trial.
It is settled that certiorari review may be taken from pretrial orders in criminal cases where a petitioner claims a departure from the essential requirements of law and the unavailability of a remedy by way of appeal. Otherwise, in the case of an order challenged by the prosecution, the state would be deprived of the right of appellate review of non-final orders which could, in some cases, effectively negate its ability to prosecute. If forced to proceed, and if the defendant were ultimately acquitted, double jeopardy would bar the state from further recourse. The harm from the earlier order thus would be irreparable. Recognizing this, the Supreme Court of Florida acknowledged the availability of certiorari review of non-final pretrial orders in criminal cases in State v. Pettis, 520 So. 2d 250 (Fla. 1988), and Wilson v. State, 520 So. 2d 566 (Fla. 1988). However, those cases did not address the issue of whether certiorari could in any circumstances extend to rulings on motions filed and argued prior to trial, but not actually ruled on until trial had commenced.
In somewhat analogous circumstances, the first district acknowledged its jurisdiction to review an order granting a motion to suppress filed prior to trial but not ruled on until after trial had commenced. In State v. Stevens, 563 So. 2d 188 (Fla. 1st DCA 1990), the court took jurisdiction of the appeal of an order granting a pretrial motion to suppress under Florida Rule of Appellate Procedure 9.140(c)(1)(B), where it was not entered until after trial had commenced, and a mistrial was granted after the suppression ruling. The court said that in light of the subsequent mistrial, the order on suppression was, in effect, pretrial for purposes of review under rule 9.140(c)(1)(B).
Although we don't have the same circumstances here of our case reverting to a pretrial posture, we are faced with equally compelling circumstances warranting the exercise of certiorari review. The order on review in this case barred admission of *899 testimony offered under the dying declaration exception to hearsay. More specifically, the trial court found section 90.804(2)(b), Florida Statutes (1989) to be unconstitutional and in violation of the First, Fifth, Sixth and Fourteenth Amendments of the United States Constitution as well as Article I, Sections 3, 9 and 16 of the Florida Constitution. The state as petitioner argues that as there were no other witnesses to the stabbing involved, this ruling eviscerates its entire case, preventing it from refuting the defendant's theory of self defense. Applying Pettis and Wilson, certiorari would lie to review the order granting the defense motion in limine, since the state convincingly argues irreparable harm by virtue of the interlocutory order. The fact that the trial court unilaterally decided to defer ruling on the motion filed prior to trial until it could hear further evidence, which was not even the basis of its ultimate findings of unconstitutionality, should not divest this court of certiorari review over this order of fundamental, far reaching and potentially irreparable impact, even though a mistrial was not entered. The effect of the order could well have led to entry of a mistrial by the court. Recognizing the lack of and need for guidance on this point of great public importance, however, we certify this question to the Supreme Court of Florida:
WHETHER A DISTRICT COURT OF APPEAL HAS CERTIORARI JURISDICTION TO REVIEW AN ORDER GRANTING A CRIMINAL DEFENDANT'S MOTION IN LIMINE FILED PRIOR TO TRIAL BUT NOT ACTUALLY RULED ON UNTIL TRIAL COMMENCED, AT THE TRIAL JUDGE'S DIRECTION, WHERE SUCH ORDER POSES POTENTIALLY IRREPARABLE HARM TO THE STATE BECAUSE APPEAL OR RETRIAL ARE NOT AVAILABLE IN THE EVENT OF AN ACQUITTAL?
Having answered the question affirmatively in our case, we proceed to the merits. As stated earlier, the trial court order on review declared the dying declaration provision in the Florida Evidence Code to be unconstitutional on several grounds. Reduced to its essence, the order contains what we divide into four findings: (1) that the dying declaration statute contains an unconstitutional presumption that the dying declarant was speaking the truth, (presumably a due process claim); (2) that the statute is based on religious beliefs that a declarant would not want to die with a lie on his lips, a de facto judicial establishment of religion based on the premise of life after death; (3) that the statute denies an accused of the right to confront his accuser; (4) that it illegally shifts the burden of proof onto the accused. Analysis of case law and the authorities cited below establishes that these findings constitute a departure from the essential requirements of law.
According to 5 Wigmore, Evidence, § 1430, (Chadbourn rev. 1974), judicial use of dying declarations stems from a tradition long before the evidence system arose in the 1500s. It became recognized as an exception to the hearsay rule in the first half of the 1700s. Indeed, the ruling of Lord Mansfield in Wright v. Littler, 3 Burr. 1244 (1761) is a leading early case recognizing the propriety of dying declarations.
In Florida, the common law precept was articulated as early as 1870. In Dixon v. State, 13 Fla. 636 (1870), the court, in finding trial court error in allowing unfounded dying declaration evidence, acknowledged that dying declarations were properly admissible based upon the concept that:
they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by an oath administered in court. Woodcock's case, I Leach, 502.
Id. at 638-639, citing Chief Baron Eyre, in Rex v. Woodcock, 1 Leach 500, 168 Eng. Rep. 352 (K.B. 1789).
Now codified in the Florida Evidence Code, enacted in 1976, and more specifically, *900 section 90.804(2)(b), Florida Statutes (1989), the dying declaration exception to hearsay, provides in part:
(2) Hearsay exceptions. The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:
(b) Statement under belief of impending death. In a civil or criminal trial, a statement made by a declarant while reasonably believing that his death was imminent, concerning the physical cause or instrumentalities of what he believed to be his impending death or the circumstances surrounding his impending death.
The trial court first challenged the exception as based on a presumption that the decedent in question was speaking the truth when making the dying declaration, without the need to present evidence on the desire or need to "absolve one's self of the immorality of lying before one dies." (Page 3 of trial court opinion.) The trial court concluded that this forced the accused "to respond to a legal fiction devised by the judiciary as a means of convenience when independent proof of guilt is unavailable!" (Page 4, opinion.)
Admission of dying declarations is justified on the grounds of public necessity, manifest justice and the sense that impending death makes a false statement by the decedent improbable. Section 90.804, Law Revision Council Note 1976. To the extent that the trial court in its order on review here suggests that dying declaration testimony creates an irrebuttable presumption of truth however, we cannot agree. As the Florida court said in Coatney v. State, 61 Fla. 19, 55 So. 285, 286 (1911), "[w]hether a proper predicate has been laid for the introduction of evidence of a dying declaration is to be determined primarily by the court, and, when the evidence is admitted, its weight and credibility are for the jury to determine." See also Bland v. State, 210 Ga. 100, 78 S.E.2d 51 (1953) (where there is room for doubt as to whether declaration is based on knowledge, question is for jury).
Indeed, the United States Supreme Court, Florida courts and the great majority of other jurisdictions have allowed impeachment and discrediting of dying declaration evidence by admission of other statements contradictory to it, inconsistent or in conflict with it. See Carver v. United States, 164 U.S. 694, 17 S. Ct. 228, 41 L. Ed. 602 (1897); Morrison v. State, 42 Fla. 149, 28 So. 97 (1900); 16 A.L.R. 411, Impeaching or Discrediting Dying Declarations (1922). Impeachment is allowed based on bad testimonial character, by conduct showing a revengeful or irreverent state of mind, by conviction of a crime, or prior or subsequent inconsistent statements. 5 Wigmore, Evidence, § 1445-46, (Chadbourn rev. 1974). The reasoning articulated for allowing impeachment is that inasmuch as dying declarations are allowed based largely on public policy grounds to prevent crime from going unpunished, the accused should not be prevented from impeaching them by any lawful means, where cross-examination of the declarant is obviously impossible. The courts uniformly agree in allowing impeachment of dying declarations where the impeachment is directed to a living witness. 16 A.L.R. at 422-23.
In addition to impeachment, evidence showing the declarant did not accurately observe the facts recounted is allowed, and can be the basis for a court's exclusion of the dying declaration altogether. See e.g. Jones v. State, 52 Ark. 345, 12 S.W. 704 (1889) (where declarant could not see who shot him, declaration that defendant shot him properly excluded). See also McCormick, Evidence, § 285 (3d ed. 1984).
Thus, while it may be true that dying declarations are afforded a measure of credibility due to their very nature, it is also true that they are not taken as absolute, to the exclusion of impeachment or other evidence as to their truthfulness or accuracy.
The trial court noted the absence of evidence on the declarant's attitude toward life or death or the need to tell the truth when dying. The record does not show this point was probed, but we fail to see why it could not have been, and in the *901 absence of evidence on the matter, left to the jury for the ultimate question of credibility. However, the trial court's conclusion that the entire rule forces an accused to respond to a "legal fiction" when independent proof of guilt is unavailable is unfair and inaccurate. Nothing in the dying declaration law in Florida supports the conclusion that it is a substitute for proof of guilt. It is evidence, whose weight is assigned by the trier of fact. Furthermore, it is just as available to the defense as the prosecution. McCormick, Evidence § 284 (3d ed. 1984).
The second claim of unconstitutionality of the dying declaration rule is the trial court's conclusion that it constitutes judicial establishment of religion, and thus violates the First Amendment to the United States Constitution and Article I, Section 3 of the Florida Constitution. This too is a departure from the law. Here, the trial court stated that the concept of one speaking the truth when "at death's door" is "clearly ecclesiastical in nature." The court referred to a presumption behind the rule that the declarant "does not wish to meet a Higher Being after death with a lie upon the lips, does this not require the existence of religious belief on the part of the declarant during mortal life? Indeed, has it been established, to the degree required by law, that there is life after death? If proof of afterlife is unavailable, is not the dying declaration a de facto judicial establishment of religion?" (Page 4, opinion.)
This analysis does not reflect the present state of the law. The basic philosophies of morality and ethics, premised at least in part on prevailing religious values, may have formed the underpinnings of the early use of dying declarations centuries ago. However, religious justification for the exception has long lost judicial recognition. Indeed, as early as 1897, the United States Supreme Court in Carver v. United States, 164 U.S. 694, 17 S. Ct. 228, 41 L. Ed. 602 (1897) held that the disbelief in a "future state of rewards and penalties" does not warrant exclusion of dying declarations. See also State v. Agnesi, 92 N.J.L. 53, 104 A. 299 (1918) (not necessary to prove belief in Supreme Being); State v. Hood, 63 W. Va. 182, 15 L.R.A. (N.S.) 448, 129 Am.St. Rep. 964, 59 S.E. 971 (1907); Donnelly v. State, 26 N.J.L. 507 (1857).
Recognizing that the religious justification for the common-law exception has lost some popular conviction, Wigmore acknowledged the "still powerful psychological pressures on a declarant to be truthful when death is imminent." See 5 Wigmore, Evidence § 1443 (3d ed. 1940); McCormick, Evidence § 283 (2d ed. 1972). As petitioner state correctly points out, many criminal statutes could be traced back to Biblical times as well, such as murder statutes based on the commandment against murder and theft statutes as based on the commandment against stealing. Such challenges to these statutes as establishing religion is beyond the pale.
It is axiomatic that a state cannot pass a law to endorse or aid religion, and if the primary purpose of state action or law is to promote religion, that action or law is in violation of the First Amendment. Johnson v. Presbyterian Homes of the Synod of Florida, Inc., 239 So. 2d 256 (Fla. 1970). Clearly that cannot be said of the dying declaration exception to hearsay in Florida. The trial court's attempt to cast the dying declaration rule as "clearly ecclesiastical in nature," must fall of its own weight.
Next, the trial court held that the dying declaration rule violates the Sixth Amendment to the United States Constitution and Article I, Section 16 of the Florida Constitution, as it denies an accused of the right to confront his accuser. This proposition has been soundly defeated by case law and authorities. According to Wharton's Criminal Evidence, § 316, (13th ed. 1972), "[t]he right of a defendant to be confronted with the witnesses against him is deemed satisfied on the theory that the witness who testifies to the dying declaration, and not the declarant, is the witness against the defendant, and hence the witness with whom the defendant is entitled to be confronted." Id. at pp. 122-23, citing widespread state case law authority in footnotes 51, 52.
*902 Two Supreme Court decisions in related cases are frequently cited to support the constitutionality of dying declaration rules in the context of a defendant's right to confrontation. The first is Mattox v. United States, 146 U.S. 140, 13 S. Ct. 50, 36 L. Ed. 917 (1892), where the Supreme Court held, inter alia, that dying declarations were admissible against an accused. It did not expressly address a Sixth Amendment challenge, however. The case returned as Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895), wherein the court held that testimony of a deceased witness who testified at a former trial was admissible. While that case did not involve a dying declaration, the Court did acknowledge the admissibility of such a declaration in the context of a Sixth Amendment analysis.
Many of its [the constitution] provisions in the nature of a bill of rights are subject to exceptions, recognized long before the adoption of the constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried further than is necessary to the just protection of the accused, and further than the safety of the public will warrant. For instance, there could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations. They are rarely made in the presence of the accused; they are made without any opportunity for examination or cross-examination, nor is the witness brought face to face with the jury; yet from time immemorial they have been treated as competent testimony, and no one would have the hardihood at this day to question their admissibility. They are admitted, not in conformity with any general rule regarding the admission of testimony, but as an exception to such rules, simply from the necessities of the case, and to prevent a manifest failure of justice. As was said by the chief justice when this case was here upon the first writ of error (146 U.S. 140, 152, 13 S. Ct. 50 [54]), the sense of impending death is presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath. If such declarations are admitted, because made by a person then dead, under circumstances which give his statements the same weight as if made under oath, there is equal, if not greater, reason for admitting testimony of his statements which were made under oath.
Id. at 243-44, 15 S.Ct. at 340, 39 L.Ed. at 411. See also Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) (acknowledging in general the admissibility of dying declarations notwithstanding the Sixth Amendment right of confrontation and cross examination).
Finally, the trial court cited as an "additional weakness in the dying declaration rule" the manner in which it purportedly shifted the burden of proof to the accused. The court looked to State v. Cohen, 568 So. 2d 49 (Fla. 1990), in which the Supreme Court of Florida found a portion of the witness tampering statute unconstitutional. The court found that section 914.22(3), Florida Statutes (1985), impermissibly shifted the burden of proof to the defendant by creating an "affirmative defense" for the defendant to prove by a preponderance of the evidence.
To be sure, the dying declaration exception to hearsay in Florida does not similarly shift the burden of proof to the accused. It does not impose any affirmative defense of innocence on the defendant. It does allow evidence to be admitted in the absence of cross examination and confrontation of the declarant, but under justifications of public necessity and manifest justice, pronounced and approved since early common law, and by the United States Supreme Court and state courts throughout the nation. If evidence is available to impeach the declarant's reputation for truth and veracity, or to question the accuracy or basis for the statement, it may be admitted. Also, the party against whom a dying declaration is used has the right to testify on his own behalf to refute the dying declaration, to present corroborative witnesses *903 and any other evidence. It still remains the state's burden to prove guilt of the accused beyond a reasonable doubt.
The petition for writ of certiorari is granted. Also, this court sua sponte strikes from the caption of this case the Honorable J. Leonard Fleet, Circuit Court Judge in and for the Seventeenth Judicial Circuit.
ANSTEAD and DELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623685/ | 360 S.W.2d 382 (1962)
O'HANLON REPORTS, INC., National Inspection Bureau, and Standard Accident Insurance Company, Plaintiffs-Appellants.
v.
Ben NEEDLES, d/b/a Ben Needles & Son Hauling and Express Company, Willie Johnson, and Utilities Insurance Company, Defendants-Respondents.
No. 31012.
St. Louis Court of Appeals, Missouri.
September 18, 1962.
*383 Leritz & Leritz, Joseph L. Leritz, St. Louis, for plaintiffs-appellants.
Schwartz, James & Sweet, Wilbur C. Schwartz, Grove Sweet, St. Louis, for defendants-respondents.
DOERNER, Commissioner.
Plaintiffs O'Hanlon Reports, Inc. and National Inspection Bureau, the joint employers of one Lawrence E. Rosebrock, and Standard Accident Insurance Company, their workmen's compensation insurer, seek by this action to enforce an alleged right of subrogation against the third party tortfeasor and his liability insurer. After the jury had been impaneled and plaintiffs had concluded their opening statement, defendants moved that plaintiffs' claim be dismissed for the reason that under the facts outlined in the opening statement no cause of action existed against defendants. After a lengthy discussion between the court and counsel it was agreed between the parties that in ruling on the motion the court should take into consideration the facts as stated in plaintiffs' opening statement, Count II of plaintiffs' petition (to which further reference will be made), and a stipulation by defendants that they had not reimbursed plaintiff Standard Accident Insurance Company for the compensation it had paid the injured employee. Thereupon the court directed the jury to return a verdict for defendants, judgment conforming therewith was entered, and after an unavailing motion for a new trial plaintiffs appealed.
The facts as outlined in plaintiffs' opening statement, which are to be taken as undisputed, were these: On July 31, 1951, Lawrence E. Rosebrock, an employee of plaintiffs O'Hanlon Reports, Inc. and National Inspection Bureau, was injured in the city of St. Louis in an accident arising out of and in the course of his employment when his automobile was struck by a truck owned by defendant Needles, doing business as Ben Needles & Son Hauling and Express Company, and operated by defendant Johnson. Shortly thereafter (the record in the main is devoid of precise dates), Rosebrock employed counsel and filed a personal injury action for $47,000 against Needles. Rosebrock was disabled and unable to work, and plaintiff Standard Accident Insurance Company, the insurer, began to pay him compensation. Thereafter, on October 25, 1951, Standard Accident notified these defendants by letter of its claim for reimbursement for the compensation it was paying Rosebrock. As far as the record shows, defendants did not answer the letter. Standard Accident continued to pay Rosebrock compensation until sometime in October 1952, and in all paid him a total of $1,262.50. Standard Accident knew that Rosebrock had filed suit against Needles, and that Needles' liability insurer, Utilities Insurance Company, was defending it on his behalf, but Standard Accident did not seek to intervene in that action. A settlement *384 was negotiated by Rosebrock's counsel, whereby Utilities Insurance paid Rosebrock and his wife the sum of $12,500.00, and on October 21, 1952, Rosebrock dismissed his suit against Needles, with prejudice.
In addition to the foregoing facts given in the opening statement, the record also shows that this action was instituted by the plaintiffs on July 28, 1956, by the filing of a petition containing two counts, the first of which was directed at defendants, and the second at Rosebrock. In Count I plaintiffs pleaded in substance the foregoing facts, alleged that they did not learn of the settlement by Rosebrock of his suit until after it had been made, and prayed judgment against the defendants for $1,262.50. In Count II plaintiffs incorporated the same facts by reference, and in addition alleged (1) that at the time Standard Accident undertook to pay compensation, Rosebrock and his attorneys agreed that they would reimburse it out of any recovery made in Rosebrock's suit against Needles; and (2) "* * * that under the provisions of the Missouri Workmen's Compensation Act the defendant Lawrence E. Rosebrock became and was constituted a Trustee to hold for the use and benefit of plaintiff Standard Accident Insurance Company, from the aforesaid payment, the compensation that had been paid to him in the sum of One thousand two hundred sixty-two and 50/100 Dollars ($1262.50) by the plaintiff Standard Accident Insurance Company; that under the provisions of said law plaintiffs were subrogated to any recovery made by defendant Lawrence E. Rosebrock to the extent of compensation paid to him by said plaintiff. * * *" The record further shows that after the case had been assigned to a jury division for trial plaintiffs voluntarily dismissed Count II of their petition against Rosebrock, without prejudice, and prosecuted their action against only defendants Needles and Utilities Insurance.
Plaintiffs' theory of their case is that by Section 287.150, RSMo 1959, V.A.M.S. they were given the right of subrogation against Needles for the compensation they had paid Rosebrock; and that the settlement made by Needles of the suit brought against him by Rosebrock did not foreclose or extinguish their right to indemnification, even though the amount paid Rosebrock in settlement was far in excess of the total compensation. Plaintiffs concede that under the many cases which have construed Section 287.150 (see Cunliff's Compensation Digest), when Rosebrock sued Needles Rosebrock became, in part at least, a trustee of an express trust for plaintiffs. General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442; McKenzie v. Missouri Stables Inc., 225 Mo.App. 64, 34 S.W.2d 136. They also concede that when Rosebrock received the $12,500 paid in settlement he became the trustee of an express trust for plaintiffs to the extent of the compensation of $1,262.50, which they had paid him. McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W.2d 788; Giambelluca v. Missouri Pac. R. Co., Mo., 320 S.W.2d 457; Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913; Reiling v. Russell, 345 Mo. 517, 134 S.W.2d 33; McKenzie v. Missouri Stables, Inc., supra. But they argue that, "* * * Though the employee, by operation of law, may have held part of his settlement as trustee for the employer, this fact should not serve to destroy the employer's right against a negligent third party. Appellants know of no rule of law that would require one to proceed only against a trustee in such a case."
We cannot agree with plaintiffs' contentions. The effect of their argument would be to allow a double recovery against the third party, which was condemned in Schumacher v. Leslie, supra, l. c. p. 919 of 232 S.W.2d, as "* * * an evil to be avoided * * *." If Needles had paid the $12,500 to Rosebrock in satisfaction of a judgment, plaintiffs could have looked only to Rosebrock, their trustee, for the recovery of the compensation they had paid. Giambelluca v. Missouri Pac. R. *385 Co., supra; Schumacher v. Leslie, supra; McKenzie v. Missouri Stables, Inc., supra. The cases of McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., supra, and Sommers v. Hartford Acc. & Indem. Co., Mo.App., 277 S.W.2d 645 indicate that the same result follows when a settlement is made after a judgment has been obtained. We can see no logical reason why the rule should be different when the settlement is made before judgment as long as the amount paid in settlement is not inadequate or unfair, or a fraud on the employer or his insurer.
Plaintiffs were at all times aware that Rosebrock had sued Needles on their behalf, as well as on his own. They had the right to intervene in that action, had they so desired, Beck v. Moll, Mo.App., 102 S.W.2d 671, McKenzie v. Missouri Stables, Inc., supra, but they elected not to do so. They may have decided to let Rosebrock bear the expense of the litigation, as Section 287.150 required before it was amended. Zasslow v. Service Blue Print Co., Mo. App., 288 S.W.2d 377; or they may have relied on Rosebrock's express promise to reimburse them, as they pleaded in Count II of their petition (which plaintiffs specifically requested the court to take into account). Whatever may have been their reason, Rosebrock, as they admit, received the settlement as their trustee, and it is to Rosebrock they should look for reimbursement. Needles should not be required to pay twice.
Plaintiffs cite Everard v. Woman's Home Companion Reading Club, 234 Mo.App. 760, 122 S.W.2d 51 and Smith v. Yellow Cab Co., 288 Pa. 85, 135 A. 858. In the Everard case the third party settled with the employee for a sum less than the compensation paid by the employer, and the court held that the settlement did not extinguish the employer's right of subrogation because it was inadequate and a fraud on the employer. Plaintiffs make no claim of inadequacy or fraud in the instant case, and the amount of the settlement was almost ten times the compensation. As to the Smith case, it does not appear that the Pennsylvania courts recognize the doctrine of trust relationship as it has been developed in this state since McKenzie v. Missouri Stables, Inc., supra.
Plaintiffs also contend that their right of subrogation is analagous to that acquired by a collision insurance carrier which pays its insured for the damage to the insured's automobile caused by a negligent third party and takes an assignment of the insured's whole claim for such loss. In the case cited by plaintiffs, General Exchange Insurance Corporation v. Young, Mo.App., 206 S.W.2d 683, affirmed 357 Mo. 1099, 212 S.W.2d 396, it was held that under those circumstances a subsequent settlement by the insured for his personal injuries and property damages did not bar an action by the insurance carrier against the third party tort-feasor who had been given prior notice of the assignment. The defendant in that case contended that the insured could not split his cause of action. This court held that in cases involving subrogation under insurance policies an exception existed to the general rule against splitting a cause of action. The Supreme Court thought it was more accurate to say that by the assignment "* * * there has been no split of the cause of action, but the creation of two separate causes of action." 212 S.W.2d 396, 400. Regardless of the difference in terminology, the fact which was considered decisive and the basis for both opinions was that the insured had assigned his whole claim for his entire property loss to the insurance carrier. It was held that after making such an assignment the insured had no further right or interest in the claim for property damages (and in fact, he had not sued for them); and that the insurance carrier thereby became "* * * the real party, and the only party, interested in collecting property damages * * *." 212 S.W.2d 396, 401.
By Section 287.150 the employer is not subrogated to the whole claim of the *386 employee. In fact, he is not even subrogated to the employee's whole claim for lost wages. His right of subrogation is limited to the compensation paid or payable. Nor does the statutory subrogation create two separate causes of action, as did the assignment in the General Exchange case. Section 287.150 does not take away from the employee his common law right of action against the third party tort-feasor, Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913; Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153. Regardless of the employer's rights of subrogation, the employee remains a real party in interest, and may bring a suit for all of his damages. McKenzie v. Missouri Stables, Inc., supra. In fact, he must do so, for he may not defeat the employer's right to subrogation by only suing for what he claims to be noncompensable elements of damages. Sommers v. Hartford Acc. & Indem. Co., Mo. App., 277 S.W.2d 645. In short, either the employee or the employer (or both together) may sue the negligent third party for all elements of the employee's damages, and whichever brings the action becomes the trustee of an express trust for the benefit of the other. General Box Co. v. Missouri Utilities Co., supra; McKenzie v. Missouri Stables, Inc., supra. Thus the right of subrogation given to the employer by Section 287.150 is not analagous to that acquired by the insurance carrier in the General Exchange case. Actually, while the word "subrogated" is used in Section 287.150, as pointed out in McKenzie v. Missouri Stables, Inc., 34 S.W.2d 136, 141, "* * * it is indemnity, and not true subrogation, for which the act provides."
While the question is somewhat academic, since the judgment for defendants should be affirmed, there is an additional reason why plaintiffs could not recover in this action against defendant Utilities Insurance. The charge in plaintiffs' petition was that defendant had in force and effect a liability insurance policy covering defendant Needles' truck. Rosebrock, the injured employee, had no cause of action against the third party's automobile liability insurer, Faught v. Washam, Mo., 329 S.W.2d 588; State ex rel. Anderson v. Dinwiddie, 359 Mo. 980, 224 S.W.2d 985; Haines v. Harrison, 357 Mo. 956, 211 S.W.2d 489, nor do plaintiffs, as his alleged subrogees.
For the reasons stated, the Commissioner recommends that the judgment should be affirmed.
PER CURIAM.
The foregoing opinion by DOERNER, C., is adopted as the opinion of the court.
Accordingly, judgment is affirmed.
ANDERSON, P. J., and MARSHALL CRAIG and WILLIAM M. KIMBERLIN, Special Judges, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623729/ | 15 So. 3d 582 (2009)
BENEDITH
v.
STATE.
No. 1D07-3548.
District Court of Appeal of Florida, First District.
August 20, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623794/ | 332 F. Supp. 866 (1971)
PURE MILK PRODUCTS CO-OPERATIVE, Fond du Lac, Wisconsin, and Associated Milk Producers, Inc., a Kansas corporation, Plaintiffs,
v.
The NATIONAL FARMERS ORGANIZATION, Corning, Iowa, et al., Defendants.
No. 71-C-467.
United States District Court, E. D. Wisconsin.
October 19, 1971.
St. Peter & Hauer by George St. Peter, Fond du Lac, Wis., for plaintiffs.
Bradway A. Liddle, Jr., Madison, Wis., for defendants.
DECISION and ORDER
MYRON L. GORDON, District Judge.
The plaintiffs in this action seek to enjoin the defendants from allegedly interfering with milk marketing contracts between the plaintiffs and their dairy farmer members. The case originally was brought in a state court and subsequently was removed to this court upon the petition of the defendant National Farmers Organization. The plaintiffs since have moved to remand the action pursuant to 28 U.S.C. § 1447.
Following removal, but prior to the filing of the plaintiffs' motion to remand, the defendants moved to stay all proceedings pending a determination by the Judicial Panel on Multidistrict Litigation of a motion to transfer this action to another federal district court. In addition, the plaintiffs have moved for an order declaring the defendants to *867 be in contempt for their alleged violation of a temporary restraining order issued by the state court. These motions have been held in abeyance pending the present decision on the plaintiffs' motion to remand.
The plaintiffs contend that this action was improvidently removed because of the absence of both a federal question and diversity of citizenship. In addition, they argue that the action was removed without the consent of all of the defendants. However, after the plaintiffs filed their motion to remand, the defendants who did not join in the petition for removal filed a "consent" to such removal, provided a federal question exists.
Three of the four defendants are citizens of Wisconsin; thus, removal would appear to be improper under 28 U.S.C. § 1441(b), which states that, in the absence of a federal question,
"* * * [an] action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought."
In addition, the presence of both a Wisconsin plaintiff and the Wisconsin defendants would destroy the diversity of citizenship necessary for the exercise of this court's jurisdiction under 28 U.S.C. § 1332.
The defendants argue, however, that the three Wisconsin citizens are only "nominal and formal" parties and that since injunctive relief against the employer is sought, the employees are not indispensable by operation of Rule 65(d), Federal Rules of Civil Procedure. The plaintiffs counter with the contention that, even if the Wisconsin defendants are not indispensable parties, they are "necessary" or "proper" ones and that their status may be considered for purposes of determining whether this court has jurisdiction over the instant action.
The defendants do not suggest that the plaintiffs fraudulently joined the Wisconsin defendants in order to prevent removal. It has been held that the inclusion of formal or unnecessary parties is to be disregarded in passing upon a plaintiff's motion to remand. Salem Trust Co. v. Manufacturers' Finance Co., 264 U.S. 182, 44 S. Ct. 266, 68 L. Ed. 628 (1924); Stonybrook Tenants Association v. Alpert, 194 F. Supp. 552 (D. C.Conn.1961).
There appears to be some conflict of authority as to whether "proper" or "necessary" parties should be considered in deciding whether a federal court has jurisdiction over a removed action. In Helms v. Ehe, 279 F. Supp. 132, 133 (S. D.Tex.1968), it is noted:
"There is a substantial line of relatively old authority holding that only indispensable parties are considered in determining if proper diversity jurisdiction exists for removal of a suit to a federal court. * * * [There] is recent authority which challenges the older cases which look only to the indispensable parties' citizenship. These recent cases advance the proposition that the real parties at interest, in determining if removal is proper, include indispensable, necessary and proper parties. Interstate Bakeries Corp. v. McKee Baking Co., 248 F. Supp. 946 (W.D.Mo.1965); Cole v. Continental Oil Co., 240 F. Supp. 642 (W.D.Okl.1965); Frederick Innkeepers Corp. v. Krisch, 230 F. Supp. 800 (D.Md.1964). The rule espoused by these cases finds support in two prominent treatises on federal procedure. See 1A Moore's Federal Practice 523, n. 15 (Rev.Ed.1961); 1 Barron and Holtzoff, Federal Practice and Procedure 476, n. 32, Pocket Supp., (Wright Ed.1960)."
The complaint in the case at bar alleges that the Wisconsin defendants are employees of the National Farmers Organization, and the plaintiffs appear to concede that such defendants are not "indispensable" parties. However, I believe that it is appropriate to consider, for removal purposes, the citizenship of necessary and proper parties, and that *868 the named Wisconsin defendants do have a substantial interest in the outcome of this action; thus, they are proper parties in the litigation. Notwithstanding the fact that an injunction against their employer undoubtedly will affect the individual defendants, the plaintiffs do not appear to be foreclosed from seeking relief against the defendants allegedly responsible for implementing their employer's policies. In the absence of fraudulent joinder, "a large measure of choice in shaping the action is * * * left to the plaintiff." Frederick Innkeepers Corp. v. Krisch, supra, 230 F. Supp. at page 802, quoting from Wright on Federal Courts § 29, at 80 (1963). Cf. Rule 20, Federal Rules of Civil Procedure. Thus, unless removal may be predicated upon the existence of a federal question, 28 U.S.C. § 1441(b) deprives this court of jurisdiction.
With reference to federal question jurisdiction, 28 U.S.C. § 1441(a) and (b) provides, in part:
"(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants * * *.
"(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. * * *"
The complaint in the present action appears to state a claim for the tort of procuring a breach of contract. Wisconsin law recognizes a cause of action for wrongful interference with a contractual right. See Flood v. Margis, 322 F. Supp. 1086, 1092 (E.D.Wis.1971); § 185.43(2), Wis.Stats. (1969). However, the defendants argue that "Congress has pre-empted the field of agricultural marketing" under the provisions of the Agricultural Adjustment Act, 7 U.S.C. § 601 et seq., and that, in addition, 7 U. S.C. § 2305, cited by the plaintiffs, does not give "the state court the power to determine enforceability of cooperative contracts."
In Columbia Pictures Corp. v. Towne Theatre Corp., 282 F. Supp. 467, 469 (E. D.Wis.1968), this court stated:
"The court is not free to apply the arguments presented by the defendant in its petition for removal since the law is clear that the presence of a federal question must be found in the complaint unaided by the petition for removal."
Moreover, in Spring City Flying Service, Inc. v. Vogel, 281 F. Supp. 594, 595 (E.D.Wis.1968), this court said:
"For this court to have jurisdiction * * * a controversy under federal law must be present in the state complaint. It is not sufficient to give this court jurisdiction to have the federal question arise by way of defense, or even in anticipation of a defense. Robertson v. Eastern Air Lines, Inc., 221 F. Supp. 349, 351 (S.D.N.Y.1963)."
An action may be removed "where the real nature of the claim asserted * * * is federal, irrespective of whether it is so characterized or where the plaintiff inadvertently, mistakenly or fraudulently conceals the federal question * * *." 1A Moore's Federal Practice ¶ 0.160, at 474 (1965). Absent such considerations, however, if the plaintiff alleges a state action, he is entitled to have his case heard in the state court even though a different complaint could have been drawn to qualify for federal jurisdiction. Crow v. Wyoming Timber Products Co., 424 F.2d 93, 95 (10th Cir. 1970).
As already noted, the complaint in the case at bar appears to state a claim cognizable by the state court. No federal question is apparent on the face of the complaint, and I am not persuaded that the plaintiffs have deliberately concealed a federal question or that the federal court has exclusive or pre-emptive jurisdiction over this action.
*869 The determination that the plaintiffs' motion to remand must be granted obviates the need to pass upon the parties' other motions now before this court.
Therefore, it is ordered that the plaintiffs' motion to remand this action to the Circuit Court of Fond du Lac County, Wisconsin, be and hereby is granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623635/ | 15 So. 3d 41 (2009)
Robenson KERSAINT, Petitioner,
v.
The STATE of Florida, Respondent.
No. 3D09-543.
District Court of Appeal of Florida, Third District.
May 20, 2009.
Rasco, Klock, Reininger, Perez, Esquenazi, Vigil & Nieto and Joseph P. Klock, Jr., Coral Gables, for petitioner.
Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for respondent.
Before COPE, SHEPHERD, and SUAREZ, JJ.
COPE, J.
Because the trial judge should have disqualified himself, we grant the petition for writ of prohibition.
Defendant-petitioner, Robenson Kersaint, was charged with drug trafficking. The jury found the defendant guilty of the lesser included charge of possession of cocaine with intent to distribute.
For present purposes, we accept as true the facts stated in the sworn motion to *42 disqualify. After the trial, the court ordered a presentence investigation (PSI) and then asked the State how the defendant scored for sentencing purposes. The State responded that defendant scored non-state prison sanction, meaning that defendant could be sentenced to less than 365 days in jail, or another non-state prison sanction. See § 921.0024(2), Fla. Stat. (2006).
The trial judge was told that defendant had been incarcerated for over two years, which exceeded the guidelines minimum. According to the motion, the judge stated that he would not consider a sentence to time served, wanted the defendant to have a prison number, was not inclined to go as high as 15 years, but was talking in the range of four years or more. Based on this exchange, the defendant moved to disqualify the trial judge. The motion was denied and the defendant has filed this petition for writ of prohibition.
We conclude that the motion for disqualification was legally sufficient and should have been granted. In this case, a PSI had been ordered and the sentencing hearing was not to occur until after the PSI had been obtained. The judge made statements indicating that he had predetermined the sentence, even though the sentencing hearing had yet to be held. The Florida Supreme Court has said:
The facts alleged in the motion need only show that "the party making it has a well grounded fear that he will not receive a fair trial at the hands of the judge. If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there." Further, "it is a question of what feeling resides in the affiant's mind and the basis for such feeling."
Livingston v. State, 441 So. 2d 1083, 1087 (Fla.1983) (citations omitted).
The trial judge's statement in this case would create a fear in the mind of a litigant that the trial judge had prejudged the sentence to be imposed. Florida's courts have held that disqualification is required where a judge "has made statements indicating that he or she has predetermined the appropriate sentence...." Konior v. State, 884 So. 2d 334, 335 (Fla. 2d DCA 2004); see also Thompson v. State, 990 So. 2d 482 (Fla.2008); Dorch v. State, 952 So. 2d 1244, 1245 (Fla. 3d DCA 2007); State v. Ballard, 956 So. 2d 470 (Fla. 2d DCA 2007); Gonzalez v. Goldstein, 633 So. 2d 1183, 1184 (Fla. 4th DCA 1994).
We conclude that, as argued by the petitioner, the trial judge is disqualified from presiding over the sentencing phase of this case. We are confident that in view of this opinion, the trial judge will withdraw and it will not be necessary to formally issue the writ.
Petition granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623724/ | 569 So.2d 267 (1990)
Larry Raymond TOLAR, Plaintiff-Appellant,
v.
Tammy Kay Hutton TOLAR, Defendant-Appellee.
No. 21,815-CA.
Court of Appeal of Louisiana, Second Circuit.
October 31, 1990.
*268 Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff-appellant.
Linda Bradley Norwood, West Monroe, for defendant-appellee.
Before MARVIN, FRED W. JONES, Jr., and SEXTON, JJ.
SEXTON, Judge.
The defendant-in-rule/father appeals the district court judgment modifying the joint custody plan by which he and his ex-wife, the plaintiff-in-rule/mother shared the custody of their minor child, a 4-year-old boy, by naming the mother as the new domiciliary parent. We affirm.
The parties married on March 22, 1985, and their son, Trevor, was born on November 14, 1985. The parties experienced a substantial amount of discord during their brief marriage, which culminated when they separated in late July 1986.
On August 31, 1987, the appellant filed suit for divorce on the basis of the parties having lived separate and apart for over one year, asking that he be awarded the sole custody of his son. However, shortly thereafter, he filed an amended petition, alleging that joint custody would be in the best interest of the child. On October 21, 1987, the parties were divorced and were awarded the joint custody of their son, with the appellant/father named as the domiciliary parent of the boy by consent.
With the appellant as his domiciliary parent, the boy continued to live in West Monroe in the same house where he had lived since birth, approximately two miles from his paternal grandparents and in the same community as his maternal grandfather. Although there was a structured joint custody plan in place, the parties amicably deviated from the plan when its structure conflicted with the plans or circumstances of either party or the child.
The child's maternal grandmother died as a result of a brain tumor shortly after the parties' divorce. Appellee testified that the amount of time required of her during the diagnosis and treatment of her mother contributed to her agreeing to permit the appellant to be the domiciliary parent. Appellant testified that his ex-wife had turned over custody of the boy because she could or would not manage him. The appellee denied this during her testimony.
The appellee remarried in March 1989 establishing a matrimonial domicile in Bossier City, and on May 2, 1989, she filed a petition to modify the joint custody plan, seeking to have herself named the domiciliary parent. During the summer of 1989, the parties followed the written joint custody plan, whereas before they had liberally *269 and frequently deviated from the plan in order to accommodate each other's desires for visitation with the child.
At the hearing on the mother's petition, both sides presented evidence in support of their respective cases, including character witnesses who presented varying and sometimes conflicting testimony regarding the two parties. Additionally, teachers and supervisors from two different day care centers which the child had attended in West Monroe and Bossier City testified regarding the child's development and problem areas in that regard.
Following the conclusion of evidence, the district court orally noted the strong and weak points of the parties' respective cases. The court noted that continuity of environment favored the father continuing as domiciliary parent, while the wife's remarriage supported a modification of the joint custody plan in order to provide the boy with a stable mother-father residential environment. After briefly taking the matter under advisement, the district court ruled in favor of the mother and reversed the established roles of domiciliary and non-domiciliary parent.
The father now appeals, arguing that the mother failed to meet her burden of proving that there had been a material change in circumstances, that the father was unfit to continue as domiciliary parent, and that it was in the best interest of the child to have a new domiciliary parent named.
In all cases involving change of custody after an original award, permanent custody of the child shall be granted to the parents in accordance with LSA-C.C. Art. 146. LSA-C.C. Art. 157. Any order for joint custody may be modified if it is shown that the best interest of the child requires modification or termination of the order. The court shall state in its decision the reasons for modification or termination of the joint custody order if either parent opposes the modification. LSA-C.C. Art. 146 E.
In written reasons in support of judgment, the district court found that the domiciliary parent should be changed from the appellant to the appellee because her remarriage reintroduced stability into her life which had been diminished during the breakup of her marriage to the appellant and the death of her mother. The court further found that the appellee and her new husband offered the child a normal, stable family environment with both male and female participants.
When a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).
Where, however, no evidence was adduced at the district court level prior to the entry of the joint custody order which is sought to be modified, that joint custody decree was not a "considered decree" within the meaning of Bergeron. Dungan v. Dungan, 499 So.2d 149 (La.App. 2d Cir. 1986); Foy v. Foy, 505 So.2d 850 (La.App. 2d Cir.1987); Bailey v. Bailey, 527 So.2d 1030 (La.App. 2d Cir.1988), writ denied, 528 So.2d 565 (La.1988); McGee v. McGee, 552 So.2d 576 (La.App. 2d Cir.1989). In those cases a party seeking to modify the joint custody arrangement must still prove a change in circumstances since the original decree, but the heavy burden of proof requirement is not applicable. Foy v. Foy, supra; Meredith v. Meredith, 521 So.2d 793 (La.App. 2d Cir.1988).
In the instant case, the original joint custody decree was entered by the consent of the parties. It was therefore not a "considered decree," and the "heavy" burden of proof required by Bergeron is not applicable. Accordingly, the appellee was required to prove that there had been a material change in circumstances since the entry of the original decree and that the modification which she proposed was in the best interest of the child.
*270 Stability of environment and continuity is a factor which should be taken into account to determine what is in the best interest of the child. Bailey v. Bailey, supra; Geisler v. Geisler, 506 So.2d 1332 (La.App. 2d Cir.1987); Dungan v. Dungan, supra.
As we noted earlier, the trial court was primarily influenced by the family atmosphere now available in the mother's home. However, appellant counters with our Bailey v. Bailey, supra, in which we reversed a change of custody the trial court granted in favor of the recently remarried father. In that case, the mother had had the child approximately three and one-half years. Our reversal was in the following terms:
Thus, in the final analysis, the issue is the stability of daily environment (which appears superior at [the father's] residence) as opposed to the stability of remaining in the present long-term environment (at his mother's home). In this particular case, we opt for the latter, believing that there is no showing that the child's current routines have been detrimental or that they are extreme. We determine that the long-term stability of environment the child has had with his mother is a more important consideration than an improved "daily routine" at [the father's] residence. More succinctly, there is no compelling reason to remove this child from a competent three and one-half year environment to obtain a somewhat better daily routine.
Bailey, supra at 1034.
Our holding, then, was that while the standard was best interest of the child, there should be a compelling reason to uproot the child from a stable environment and that remarriage by itself did not present such a compelling reason.
In the instant case, the child resided with both parties while they were living as husband and wife until their separation in July 1986 when the child was approximately eight months old. At the time of the parties' divorce, they agreed to a joint custody arrangement with the father as the domiciliary parent.
Following the separation, the child continued to spend approximately one-half of his time with each of his parents, with minor fluctuations in that arrangement as the needs of the appellee's work schedule and the appellant's school schedule required. Accordingly, roughly the first two years of the child's life were spent as much with one parent as with the other. This arrangement continued from the time of the parties' divorce in October 1987 until October 1989, at which time the district court modified the joint custody arrangement to name the mother as the new domiciliary parent.
At the time of the hearing on the rule to modify, the mother and her husband were living in Bossier City. Both were employed full-time. The stepfather's job required that he be out of town periodically as a federal examiner of financial institutions.
The father continued to reside in the same home where he and the child's mother had lived as husband and wife. Because he was a full-time university student with only part-time employment, he was compelled to rent out one room of the house to a friend in order to make ends meet.[*] This house is situated on a dead-end street and the parties testified in somewhat contradictory terms regarding the relative quality of the neighborhood. Suffice it to say, however, the record does not indicate that the neighborhood was undesirable or unacceptable for a small child.
Appellant lived not far from his parents and in the same community as the appellee's father. The child continued to attend the same day care in which he had been first enrolled in April 1987.
The instant circumstances seem to this point to be similar to Bailey v. Bailey, supra. There is one additional factor demonstrated by the record which distinguishes this case. The veteran nursery school teacher in Monroe, Mrs. Nolan, who taught at the school the child attended when under *271 the father's domiciliary care, testified that the child's personality was not as well-developed as his peers. She noted that he did not make complete sentences, did not perform his nursery school assignments, lacked self-confidence, had no friends among the other children, and required her continual assistance in the placing of his papers "on his shelf," contrary to the other children. In contrast, the nursery school teacher in Bossier City, who taught at the school the child attended when in the mother's domiciliary care, failed to note these difficulties. She also testified that the child's communication skills regressed after he had been with his father for summer visitation. This teacher is not as experienced as the Monroe teacher, having spent only one year in day care. However, she has three daughters of her own, between 17 and 19 years of age. She has "worked with children for the past six years."
It should be noted that she testified that the child had some difficulty adjusting to this day care for the first couple of weeks. He was initially incommunicative and would cry on occasion. Of interest, the day care teacher in Monroe testified the child never cried there.
In the oral comments the trial court noted that the contest was between maintaining the stability of the status quo with the father and the family environment with the mother. Unfortunately, the trial court in its oral comments at the end of the evidence and in its written opinion did not comment on this evidence. However, it appears that inherent in the trial court's choice is a determination that the record indicated that the child performed better in familial surroundings and thus it was in the child's best interest for the mother to be domiciliary custodian.
While we believe the matter to present an extremely close question, particularly in the light of Bailey, we conclude that the record presents something more than a simple conflict between the status quo versus remarriage. We therefore conclude that there is a change of circumstances and a sufficiently compelling reason for a change in this previously unconsidered custody case. Thus, the trial court did not abuse its discretion.
The judgment of the trial court is therefore affirmed at appellant's cost.
AFFIRMED.
NOTES
[*] Appellant's testimony at the hearing on the rule indicated that he would be completing his college degree in the spring of 1990. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623653/ | 15 So. 3d 8 (2009)
SAFEWAY PREMIUM FINANCE COMPANY, a Florida corporation, Appellant,
v.
Lazaro E. SOSA, in his own right and on behalf of all persons similarly situated, Appellees.
No. 3D06-2579.
District Court of Appeal of Florida, Third District.
April 8, 2009.
Rehearing and Rehearing En Banc Denied August 28, 2009.
*9 Colodny, Fass, Talenfeld, Karlinsky & Abate, and Maria Elena Abate, and Krista S. Kovalcin, Fort Lauderdale, for appellant.
Equels Law Firm and Thomas K. Equels; Alvarez Almazan and Rodriguez and Benjamin R. Alvarez, Miami, for appellees.
Before GERSTEN, C.J., and SHEPHERD and SUAREZ, JJ.
SUAREZ, J.
Safeway Premium Finance Company appeals the trial court's order certifying a class action. Lazaro E. Sosa's Motion for Certification alleges that Safeway violated section 627.840(3)(b), Florida Statutes (2002), by overcharging Sosa and other Safeway customers. We find that Sosa failed to allege sufficiently a knowing violation of the statute, and therefore his claim is not an appropriate claim for a class action. We reverse the granting of the Motion for Certification.
On November 26, 2002, Sosa entered into a six-month premium finance agreement *10 with Safeway for which he was charged an additional service charge of twenty dollars, provided for in section 627.840(3)(b), Florida Statutes (2002). Sosa renewed his six-month automobile policy two more times, and, each time, obtained a new, six-month premium finance contract with Safeway wherein with each new contract he was charged the additional service charge of twenty dollars. He claims that section 627.840(3)(b) does not allow for more than one twenty-dollar additional charge in a twelve-month period and that the two additional service charges constituted a violation by Safeway of section 627.840(3)(b). He alleges that Safeway has made the same unauthorized charges to other customers. Safeway admits the overcharge, but states that the violation was an error and denies any knowing violation.
Section 627.840(3)(b), Florida Statutes (2002) allows a premium finance company to charge a twenty-dollar additional charge once every twelve months. The twenty-dollar additional charge may be charged more than once every twelve months only if the customer's policy was cancelled due to nonpayment within the preceding twelve-month period. Section 627.840(3)(b) states:
The service charge shall be a maximum of $12 per $100 per year plus an additional charge not exceeding $20, which additional charge need not be refunded upon prepayment. Such additional charge may be charged only once in a 12-month period for any one customer unless the customer's policy has been canceled due to nonpayment within the immediately preceding 12-month period.
§ 627.840(3)(b), Fla. Stat. (2002).
Sosa claims that he and other Safeway customers are entitled to certain specific damages provided for in section 627.835 because Safeway billed them and accepted more than one twenty-dollar additional charge within a twelve-month period in violation of section 627.840(3)(b). Section 627.835 states:
Any person, premium finance company, or other legal entity who or which knowingly takes, receives, reserves, or charges a premium finance charge other than that authorized by this part shall thereby forfeit the entire premium finance charge to which such person, premium finance company, or legal entity would otherwise be entitled; and any person who has paid such unlawful finance charge may personally or by her or his legal or personal representative, by suit for recovery thereof, recover from such person, premium finance company, or legal entity twice the entire amount of the premium finance charge so paid.
§ 627.835, Fla. Stat. (2002) (emphasis added).
In order for Sosa to state an individual cause of action and one which qualifies for class certification pursuant to section 627.840(3)(b), based on damages specified in section 627.835, the premium finance company must have knowingly charged or accepted the additional twenty-dollar premium finance charge unauthorized by statute. By the very terms of section 627.835, Sosa's Motion for Class Certification is insufficient on its face and subject to dismissal for failure to allege facts demonstrating that Safeway "knowingly" billed or received the additional premium finance charge from its customers.
When one acts "knowingly," he or she acts with knowledge, consciously, willfully, and intentionally. Black's Law Dictionary 784 (5th ed. 1979). As such, Sosa must allege facts to show that Safeway billed and accepted the additional *11 twenty dollars from him and from each class member with knowledge that its actions violated Florida Statutes. This claim differs from the unfair and deceptive trade practices class action claim found in Latman v. Costa Cruise Lines, N.V., 758 So. 2d 699 (Fla. 3d DCA 2000). In Latman, the alleged deceptive trade practice consisted of the cruise line collecting port taxes on each ticket purchased, passing through a portion of the charge and the cruise line keeping the excess money from each ticket. The factual circumstances were the same for every class member. In the class action against Safeway, there would be different circumstances for each individual member of the class which would serve as the bases for and as defenses to the additional premiums charged such that the class action requirement of commonality cannot be met. See Fla. R. Civ. P. 1.220(a) (requiring court to consider claims or defenses of the representative parties and whether they raise questions of law or fact common to the class). These different facts leading to the additional premiums charged include situations where an insured changed his or her name or his or her address from one six-month premium application to the next, leading Safeway to treat the applications as though they were from different individuals, or the company generated more than one bill to the same address in a twelve-month period or committed other mistakes, unintentionally, in the processing of an application. Sosa personally has not alleged any individual facts showing intentional actions by Safeway or on behalf of potential members of the class sufficient to demonstrate a cause of action for damages under sections 627.840(3)(b) and 627.835, Florida Statutes (2002), for knowingly collecting an excess finance charge sufficient to meet the commonality requirement of a class action. See Pop's Pancakes, Inc. v. NuCO2, Inc., 251 F.R.D. 677 (S.D.Fla. 2008); Stone v. CompuServe Interactive Servs., Inc., 804 So. 2d 383 (Fla. 4th DCA 2001); Chateau Cmtys., Inc. v. Ludtke, 783 So. 2d 1227 (Fla. 5th DCA 2001); Shoma Dev. Corp. v. Vazquez, 749 So. 2d 1287 (Fla. 3d DCA 2000). In order to prove damages, individual questions pertinent to all potential class members are subject to different explanations and defenses relating to knowing violations of these statutes. Therefore, individual questions of law and fact predominate over common allegations of simple overcharge. Fla. R. Civ. P. 1.220(b); see Gibbs Props. Corp. v. Cigna Corp., 196 F.R.D. 430 (M.D.Fla.2000) (holding that fraudulent scheme to charge excessive premium required a determination of amount of damages in each individual case in order to satisfy class action element that common issues predominate over individual questions of fact and law); Egwuatu v. South Lubes, Inc., 976 So. 2d 50 (Fla. 1st DCA 2008) (holding that allegation of changing unauthorized environmental fee required individualized facts supporting claims of individualized plaintiffs precluding class certification). The requirement of knowledge is a prerequisite to stating and proving a cause of action for damages under the statutes. We find that Sosa does not state a cause of action for which a class action is appropriate.
Reversed and remanded.
SHEPHERD, J., concurs.
SHEPHERD, J., concurring.
I agree the proposed class action in this case fails to satisfy the requirements of Florida Rule of Civil Procedure 1.220. I write only to further clarify why I believe that to be true on the facts of this case.
The trial court defined the class in this case as:
All persons in the State of Florida who since December 10, 1999[,] entered into *12 a premium financing agreement with SAFEWAY PREMIUM FINANCE COMPANY and were assessed an additional charge in excess of twenty dollars ($20) during one or more 12-month periods. . . [and] who had [not] had their policy cancelled due to nonpayment within the immediately preceding 12-month period.
The plaintiff, Lazaro Sosa, entered into three successive six-month premium finance agreements with Safeway Premium Finance Companyon December 2, 2002, June 3, 2003, and November 10, 2003, respectivelyto facilitate the purchase by Sosa of three personal injury protection benefit policies of insurance for those periods from Safeway affiliate, United Automobile Insurance Company. None of the policies were cancelled for any reason.
Safeway does business through independent insurance agents, who are neither employees nor agents of Safeway. The agents are in no way integrated into the company. They do not have access to either the Safeway computer system or company files. Agents are free to submit a financing application or proposed agreement to any premium finance company.
Premium financing is a service made available by an insurance agent to a proposed insured when he or she either lacks the means to pay the full policy premium at the time the policy is purchased or elects not to do so. The procurement of automobile insurance by a proposed insured in such a circumstance is a dual step process. The agent takes an application for insurance and a down payment on the policy from the proposed insured and forwards them both to the insurance company. At the same time, the agent prepares a proposed financing agreement to submit to the premium finance company on a boilerplate form, approved by the Florida Office of Insurance Regulation (formerly the Florida Department of Insurance). See § 627.839, Fla. Stat. (2006). Safeway has no knowledge of the existence of a proposed agreement until it arrives in its office. For this reason, each proposed financing agreement states, "This contract shall not become effective until accepted by the finance company by payment of its draft [for the amount of the premium the insured elects to finance] to the agent, or to the insurance company."
Importantly, no money accompanies a proposed financing agreement submitted to Safeway or is later paid to Safeway for the service. Nor does the agent receive any compensation from Safeway for submitting a proposal. The agent's compensation comes in the form of a commission from the insurance company. Safeway's compensation comes from the insured in the form of monthly payments of interest on the amount financed. The image penned by the dissent of "the big guy . . . lift[ing] $20 from unsuspecting customer's pockets" as each proposed financing agreement floats through the premium finance company's door, see infra p. 16, is a false one.
To the contrary, during the years Safeway financed Sosa's policies, Safeway employed a manual process to check each incoming proposed premium finance agreement by customer name to determine whether the applicant was a former Safeway customer and, if so, whether he had been charged a twenty-dollar service charge within the preceding six-month period. If so, a second Safeway employee performed an additional records check to determine whether the insurance contract was cancelled for non-payment.[1] If the *13 twenty-dollar service charge had been improperly assessed, then the balance due under the premium finance agreement would be reduced by that amount. Safeway instituted this process on February 16, 2001, in response to a Florida Department Insurance audit, which found instances of overcharges in Safeway's records. According to Safeway, no computerized process existed in the industry that could perform this task at the time.
Finally, it is important to note that the manual review of each proposed finance agreement received by Safeway during this period was undertaken immediately upon arrival of the proposed agreement in the Safeway mailroom. Thus, only if the manual check failed to accomplish a required reduction might there be a statutory offense of the type alleged by Sosa in this case. Accordingly, the necessary legal inquiry with respect to proposed financing agreements received by Safeway after February 16, 2001, is whether Safeway's manual system failed to accomplish a service charge adjustment that should have been accomplished, and, if so, whether the failure was a "knowing[]" failure within the meaning of section 627.835 of the Florida Statutes.
During the three years this case has been pending below, neither Sosa nor his counsel has unearthed any evidence that the failure of Safeway to adjust his (or any other) proposed premium financing agreement resulted from some uniform action by Safeway. As indicated by the majority, there are multiple explanations for any given failure of the manual process, ranging from a change of name or address by the premium finance customer during a prior policy period, purchase of the subsequent policy in another family member's name, the premium finance application being incorrectly completed, or human error in the review process.[2] Because scienter will be the central, if not sole, contested issue in Sosa's case, as in all others where a required manual adjustment was not accomplished, individual proof will be required to adjudicate liability. For the post-February 16, 2001 class period, this case is no more than a gaggle of mini-trials masquerading as a class action.[3]See, e.g., Volkswagen of Am., Inc. v. Sugarman, 909 So. 2d 923, 925 (Fla. 3d DCA 2005) (reversing class certification where a series of minitrials would be required to resolve factual determinations unique to each plaintiff); Chase Manhattan Mortgage Corp. v. Porcher, 898 So. 2d 153, 158 (Fla. 4th DCA 2005) (reversing class certification in action for wrongful assessment of late fees where the "single individual issue will predominate, namely whether each individual borrower's payments were received within the grace period"); Execu-Tech Bus. Sys. Inc. v. Appleton Papers, Inc., 743 So. 2d 19, 21 (Fla. 4th DCA 1999) (affirming denial of motion to certify class where "plaintiffs . . . failed to meet their burden to come forward with a methodology *14 by which they would be able to show by generalized proof that the alleged price-fixing conspiracy had impacted each class member individually").
Of course, the proposed class in this case spans a greater time period than the period Safeway was manually reviewing each incoming premium finance agreement. The analysis to this point does not resolve the certification question for time period beginning December 10, 1999, and ending February 16, 2001. Although, in a proper case, we might remand with the direction there be a separate adjudication for this group of potential claimants, we cannot consider that alternative here because Sosa's claim is not typical of that group of potential claimants. See Fla. R. Civ. P. 1.220(a)(3).
The "typicality" requirement of Rule 1.220(a)(3) requires consideration of the relationship of the class representative's claims to the claims of other members of the class. Seminole County v. Tivoli Orlando Assocs., Ltd., 920 So. 2d 818 (Fla. 5th DCA 2006) (citing Atlanta Cas. Co. v. Open MRI of Pinellas, Inc., 911 So. 2d 135, 138 (Fla. 2d DCA 2005)) (stating that typicality "compels an examination of the relationship of the class representative's claim to the claims of the class members"). "`[M]ere presence of factual differences will not defeat typicality[.]'" State Farm Mut. Auto. Ins. Co. v. Kendrick, 822 So. 2d 516, 517 (Fla. 3d DCA 2002) (quoting Broin v. Philip Morris, Cos., 641 So. 2d 888, 892 (Fla. 3d DCA 1994)). On the other hand, merely pointing to common issues of law is insufficient to satisfy the requirement. See Terry L. Braun, P.A. v. Campbell, 827 So. 2d 261, 267 (Fla. 5th DCA 2002).
In this case, Sosa is in a totally different position than the putative class members in this second group. By prosecuting his own case, Sosa will not advance the cases of any member of this subgroup. This is contrary to the raison d'etre for the class action rule. Bouchard Transp. Co. v. Updegraff, 807 So. 2d 768, 771 (Fla. 2d DCA 2002) (stating that in assessing whether class action requirements are met, "`[t]he trial court must determine whether the purported class representatives can prove their own individual cases and, by so doing, necessarily prove the cases for each one of the thousands of other members of the class'") (quoting Humana, Inc. v. Castillo, 728 So. 2d 261, 266 (Fla. 2d DCA 1999)); Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133, 1136 (Fla. 3d DCA 2008). Sosa's claim is not typical of each member's of this subgroup within the meaning of Rule 1.220(a)(3). See State Farm, 822 So.2d at 517.[4]
It is the burden of the party seeking class action status to establish the propriety of class action status. See Wyeth, Inc. v. Gottlieb, 930 So. 2d 635, 638 (Fla. 3d DCA 2006); Ernie Haire Ford, Inc. v. Gilley, 903 So. 2d 956, 958 (Fla. 2d DCA 2005). We have said that because of due process and other concerns, a trial court is authorized to certify a class action only *15 after conducting a rigorous analysis to determine whether all of the elements of the class action rule have been satisfied. See Kia Motors, 985 So.2d at 1136; Wyeth, 930 So.2d at 638; Ortiz v. Ford Motor Co., 909 So. 2d 479, 480 (Fla. 3d DCA 2005); Baptist Hosp. of Miami, Inc. v. Demario, 661 So. 2d 319, 321 (Fla. 3d DCA 1995). In this case, Sosa has not met his burden. The trial court abused its discretion in certifying a class.
SUAREZ, J., concurs.
GERSTEN, C.J. (dissenting).
I respectfully dissent. Because the trial court did not abuse its discretion in certifying this class action, I would affirm.
Lazaro E. Sosa ("Sosa") financed the premium for his automobile insurance policy with Safeway Premium Finance Company ("Safeway"). The policy was for a six-month term. Safeway charged Sosa an additional service charge of $20 when he financed the six-month premium. When Sosa renewed his policy for another six-month term, Safeway again assessed him the $20 additional service charge.
Section 627.840(3)(b), Florida Statutes (2002), allows a premium finance company to charge a maximum of $20 per year as an additional service charge. A premium finance company that knowingly charges more than the statutorily permitted amount is liable for damages pursuant to section 627.835, Florida Statutes (2002). Sosa sues Safeway alleging a statutory violation and seeks class certification.
In determining whether to certify the class, the trial court considered evidence from Safeway's representative, Mr. Ferrer. Mr. Ferrer described Safeway's procedure for processing its premium finance agreement and application forms ("the PFA & A"). Independent insurance agents prepare the PFA & A for the proposed insured, and then they submit the forms to Safeway. Apparently, the $20 service charge is automatically included in the amount the proposed insured is charged at this point.
Upon receipt of the PFA & A, Safeway employees check to see if the insured was charged the $20 previously. If the $20 was charged previously and the insured's prior policy was not cancelled for non-payment, then the insured's account is credited with the $20 overcharge. Mr. Ferrer acknowledged that, through human error, some of these overcharges may not have been spotted and credited.
Class action certification requires that: (1) the members of the class be so numerous that a separate joinder of each member is impracticable (numerosity); (2) the claim of the representative party raises questions of law or fact which are common to questions of law or fact raised by the claim of each member of the class (commonality); (3) the claim of the representative party is typical of the claim of each member of the class (typicality); and (4) the representative party can fairly and adequately represent the interests of each member of the class (adequacy). Fla. R. Civ. P. 1.220(a); Wyeth, Inc. v. Gottlieb, 930 So. 2d 635, 639 (Fla. 3d DCA 2006).
In addition, the lawsuit must fall within one of the provisions of rule 1.220(b): (1) the action creates a risk of inconsistent adjudication or adjudication affecting non-members of the class; (2) the action seeks injunctive or declaratory relief which appropriately concerns the class as a whole; or (3) the action presents common questions which predominate over any questions affecting only individual members and class representation is superior to other available methods of adjudication. Fla. R. Civ. P. 1.220(b).
Here, the trial court determined numerosity was satisfied because the class is so *16 numerous that joinder of all members is impracticable. The class included all persons in Florida who financed insurance premiums with Safeway and were charged an amount in excess of the $20 per year since December 10, 1999. Given the geographical and chronological span of the class, numerosity was clearly established.
Turning to commonality, the trial court concluded that the whole class shared this liability question: Whether the Defendant knowingly violated 627.840, Florida Statutes, by assessing and accepting for payment from Plaintiff and the Class members an additional charge in excess of twenty dollars ($20) in a 12-month period. Thus, this question satisfied the commonality requirement.
Next, the trial court determined that Sosas claim was typical of the claim of the other class members. Sosas interests are the same as those of the other class members. Additionally, the same conduct and legal theory prompted his claim and the claims of the other class members. Thus, typicality was satisfied.
The trial court also found Sosa was an adequate class representative. The trial court concluded that Sosa was willing and able to take an active role in the litigation and to protect the absent class members. Further, the trial court determined that Sosas legal team had vast class action experience and would competently represent the class. Therefore, the adequacy requirement was satisfied.
Finally, the trial court decided that Sosa satisfied the requirements of rule 1.220(b)(3). The trial court found that common questions of law and fact predominate over any individual questions in the case. Accordingly, the trial court determined that class action litigation is superior to any other method to fairly and efficiently adjudicate this claim.
The majority concludes that the claims here do not meet the standard for class treatment because Sosa's complaint fails to "allege facts demonstrating that Safeway `knowingly' billed . . . the additional premium finance charge." Supposedly, the insufficiency arises from Safeway's allegations that any unrefunded duplicative service charges were due to human or inadvertent error. These contradictory allegations, however, create an issue of proof to be determined subsequently by the trier of fact. The trial court is not required to, nor should it, determine the merits of the case before certifying a class. Rollins, Inc. v. Butland, 951 So. 2d 860, 868 (Fla. 2d DCA 2006).
At this point, Sosa has met his burden of alleging that Safeway, as a common practice, charged more than one annual $20 service charge. Safeway's representative admitted this when he described the procedure for processing the PFA & As. Safeway initially charges the duplicative service charge on each contract, and then determines if the charge should be credited or refunded.
When multiplied by several thousand applicants, Safeway's method allows Safeway to use considerable sums of money for considerable periods of time. This practice clearly violates the statute. Thus, Safeway's general intent and common practice are at issue, and there is no need for a case-by-case factual determination of each plaintiff's circumstances. The trier of fact here would be faced with a single question on liability: Did Safeway knowingly and systematically charge an improper fee?
Florida courts have found violation of a statutory duty in cases of systematic overcharging to present a common question suitable for class action consideration. See, e.g., Dep't of Revenue v. Kuhnlein, 646 So. 2d 717 (Fla.1994); Johnson v. Plantation *17 Gen. Hosp. Ltd. P'ship, 641 So. 2d 58 (Fla.1994); Equity Residential Props. Trust v. Yates, 910 So. 2d 401 (Fla. 4th DCA 2005); Smith v. Foremost Ins. Co., 884 So. 2d 341 (Fla. 2d DCA 2004); Smith v. Glen Cove Apartments Condos. Master Ass'n, 847 So. 2d 1107 (Fla. 4th DCA 2003); Colonial Penn Ins. Co. v. Magnetic Imaging Sys. I, Ltd., 694 So. 2d 852 (Fla. 3d DCA 1997); McFadden v. Staley, 687 So. 2d 357 (Fla. 4th DCA 1997); Hall v. Humana Hosp. Daytona Beach, 686 So. 2d 653 (Fla. 5th DCA 1996).
I believe it is as clear as lux diei ad paludum venit[5] that this case is ideal for class action. Rather than have an unmanageable number of plaintiffs filing individual $20 lawsuits, this class action empowers the little guy and gives him leverage to fight an otherwise insurmountable foe. If plaintiff prevails, the big guy no longer lifts $20 from unsuspecting customers' pockets, the plaintiffs are made whole, and justice can reign supreme.
Accordingly, because the trial court did not abuse its discretion in certifying the class action, I would affirm the trial court's order in all respects.
NOTES
[1] Although not expressly stated, it appears from the record that Safeway exists for the primary purpose of financing, and therefore facilitating, the sale of United Auto insurance products. United Auto and Safeway share the same business location.
[2] Safeway's chief financial officer, Juan Ferrer, testified that the manual system inadvertently failed to recognize the need for an adjustment to Mr. Sosa's account at the time Mr. Sosa's second proposed financing agreement was received, but that the error was discovered when Mr. Sosa's third proposed financing agreement was received and before the complaint in this case was filed.
[3] While, as stated by the dissent at page nineteen, it is true Florida courts have aggregated claims "in cases of systematic overcharging," none of the cases cited by dissent are pertinent here where there is no evidence of uniform or systematic conduct by Safeway, and the centralif not solefactual issue to be resolved is unique to each adjudication of liability.
[4] The analysis made here could as well have been made under Florida Rule of Civil Procedure 1.220(a)(4), which requires the class proponent to demonstrate that "the representative party can fairly and adequately represent the class." (emphasis added). Courts and commentators have recognized the existence of overlap between the federal counterparts to Florida Rules of Civil Procedure 1.220(a)(3), (4). See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157, n. 13, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982) ("The commonality and typicality requirements of [Federal Rule of Civil Procedure] 23(a) . . . tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest."); see generally 5 James Wm. Moore et al., Moore's Federal Practice ¶ 23.20 (3d ed. 2006).
[5] An approximate English translation of this Latin phrase is "daylight upon the swamp." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623834/ | 15 So. 3d 1229 (2009)
Annette R. NESBITT, Plaintiff-Appellant
v.
B. Woodrow NESBITT, Jr., Defendant-Appellee.
No. 44,413-CA.
Court of Appeal of Louisiana, Second Circuit.
June 24, 2009.
*1231 Donald L. Kneipp, Monroe, for Appellant.
Francis M. Gowen, Jr., Shreveport, for Appellee.
Before WILLIAMS, DREW and LOLLEY, JJ.
LOLLEY, J.
Both former spouses appeal a judgment from the First Judicial District Court, Parish of Caddo, State of Louisiana. For the following reasons we amend the judgment, and affirm as amended.
FACTS
Defendant, Woodrow Nesbitt, Jr. ("the husband") and plaintiff, Annette R. Nesbitt ("the wife"), were married in 1968. They were divorced June 14, 2002. The parties entered into a voluntary partial partition of the community property. Several partition issues were previously decided by this court and the remaining unresolved issues were remanded to the trial court for its determination. See Nesbitt v. Nesbitt, 40,442 (La.App. 2d Cir.01/13/06), 920 So. 2d 326 ("Nesbitt I"). Both parties appeal from a judgment rendered May 28, 2008, involving the remaining partition of the community property.
LAW AND DISCUSSION
A trial court's factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. McDaniel v. McDaniel, 35,833 (La.App. 2d Cir.04/03/02), 813 So. 2d 1232. An appellate court may not set aside a trial court's finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So. 2d 840 (La.1989). Where there is 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.; Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978).
Issues raised by the husband
Wine Collection
The husband argues that the trial court erred in the valuation of the wine collection and further erred in awarding the entire collection to him, as opposed to a distribution in kind. We disagree. The trial court accepted a value established by an expert, and the record supports its finding. The trial court's choice of one expert's method of valuation over that of another will not be overturned unless it is manifestly erroneous. Ellington v. Ellington, 36,943 (La.App. 2d Cir.03/18/03), 842 So. 2d 1160. The record is clear that collecting wine is the husband's hobby. While the wife may have enjoyed a glass of wine or two, the record is clear that the *1232 husband was a wine enthusiast, and, therefore, the trial court did not err in awarding the husband the entire collection. The wife is entitled to a reimbursement for half the value.
Interest on a past judgment
The husband argues that the interest from the reimbursement amount that resulted from the husband's personal injury case, determined in Nesbitt I, should have accrued from the date of judgment and not the date of opinion. We disagree. An equalizing payment is not due until after the trial court has determined the assets and liabilities of the community therefore judicial interest has not accrued. Reinhardt v. Reinhardt, XXXX-XXXX (La.10/19/99), 749 So. 2d 423.
Community funds given to the campaign
In Nesbitt I, this court ruled that any debt incurred by the campaign committee for the husband's judicial campaign was not a community debt. The campaign committee is a separate entity. As such, the $266,300.00 loaned from BancorpSouth to the campaign committee is not a community obligation, and, therefore, the wife is entitled to a reimbursement.
Value of campaign debt owed to the community
The husband and wife gave the husband's campaign $92,210.57 during the community, and this court in Nesbitt I explained that this was the husband's asset given his unique position to control its collection. However, the husband now argues that the debt owed to the community is worth zero dollars in light of his current situation, namely that he is no longer a trial judge and will not seek re-election. We disagree. We cannot find error in the trial court's finding that the value of the loan is equal to the actual amount lent to the campaign, and the wife is entitled to a reimbursement. Further, the trial court accurately found that the husband's lack of fundraising abilities was solely his fault and the wife played no role in the matter.
Value of Professional Law Corporation
The husband argues that the trial court erred in its valuation of his professional law corporation (PLC) which included several annuities. Here, the trial court used the actual value of the PLC without discount. The husband urges this court that the correct value is what a third party would paythe "marketability" approach. Since there is no evidence that a third party was interested in purchasing the PLC, and it is unlikely that this will occur, we cannot find that the trial court erred in its dismissal of the "marketability" approach. Head v. Head, 30,585 (La.App. 2d Cir.05/22/98), 714 So. 2d 231; Ellington, supra.
Matrimonial Domicile
The trial court held that the husband was responsible for the neglect and deterioration of the matrimonial domicile and the resulting decreased value of the property. The trial court found the damage totaled $40,000.00, and the wife was entitled to a reimbursement. The husband argues that he did not live there and so he is not at fault, while the wife, on the other hand, argues that the amount is greater and the reimbursement should be increased to reflect the actual damage.
A spouse has a duty to preserve and to manage prudently former community property under his control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default, or neglect. La. C.C. art. 2369.3. We cannot find that the trial court erred in finding that the damage to the domicile *1233 was caused solely by the husband. Whether he chose to live there is irrelevant as he had complete control of the matrimonial domicile and insisted that the wife could not live there despite his choice to abandon the house.
While there was testimony as to the expense involved in repairing the various issues with the housee.g., mold and moisture damageactual remediation did not occur. Eventually, the house, in its condition, was sold in foreclosure. Because the record does not set forth a concrete devaluation amount, and we find the cost to fix the problems are not necessarily equivalent to devaluation, we must affirm the trial court's finding of $40,000.00.
However, we disagree with reimbursing the wife only half the amount, $20,000.00. This in effect gives the husband a windfall in only having to pay for half the damage he caused, and penalizes the wife through no fault of her own. As such, the wife is entitled to the entire $40,000.00 as supported by La. C.C. art. 2369.3 which states, "He is answerable for any damage caused by his fault, default, or neglect." As such, we amend the judgment to reflect this finding.
Appraiser Expense
The husband makes much of the trial court's allowance of community funds to pay Bruce Mercer, an appraiser that the wife used in response to the husband's desire to refinance the former matrimonial domicile. The record is clear that there were several requests from both sides to use community funds with respect to the instant partition. The trial court has wide discretion in allowing experts to be paid from the community funds, and it attempted to maintain fairness among the parties during the partition process. We do not find that the trial court erred in granting community funds to pay Bruce Mercer. The wife is entitled to a reimbursement for half the amount.
Issues raised by the wife
Mismanagement claims
The wife argues that the husband mismanaged the community assets, specifically the wine collection, and is entitled to a reimbursement for such. The trial court denied the claim. The wife argues that the husband drank several bottles of wine despite the stay on all community property. An expert, Joseph Fertitta, accounted for the individual wine bottles and ascertained a range for what the collection was worth. The trial court used the higher value for the collection which we agree remedied the potential monetary discrepancy if there were any bottles of wine unaccounted for. Furthermore, since the husband was awarded the wine collection in its entirety we see no need in speculating over the husband's actions as he would have done himself a disservice. As such, we cannot find that the trial court erred in its decision.
Rental Reimbursement
The wife asserts that she is entitled to rent from the husband for his use of the matrimonial domicile. Only if a rental reimbursement claim is made against the husband at the time occupancy is determined, or if the parties agreed, can rent be collected. See McCarroll v. McCarroll, 1996-2700 (La.10/21/97), 701 So. 2d 1280. While the amount of rent is stipulated to in the record, it is strictly for the period of time the wife occupied the house prior to her eviction, which was determined to be two months' rent. The colloquy does not suggest that rent from the husband was contemplated and we cannot find that both parties agreed, as required, to pay rent for the duration that either party was living at the matrimonial domicile. Since the record does not support the wife's claim for rental *1234 reimbursement, we find this argument to be without merit.
Contempt
The wife argues that the trial court erred in not finding the husband in contempt for causing a crack in the marble coffee table during its move from the husband's residence back to the matrimonial domicile. As we stated in Nesbitt I, the trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying the court's orders and its decision will only be reversed when the appellate court discerns an abuse of that discretion. After a review of the record, we find that the trial court did not abuse its discretion.
Other Matters
The wife argues that the trial court erred in the failure to award her $24,000.00 that was used for the purpose of servicing a campaign finance committee debt. In the November 30, 2004, judgment the wife reserved all rights to seek reimbursement following the determination of the type of debt involved. Since we have concluded that the funds from BancorpSouth were associated with the campaign committee, and that it was not a community debt, the wife is entitled to a reimbursement of half. We amend the judgment to include this amount.
CONCLUSION
For the foregoing reasons we bring the judgment into conformity with the trial court's well-reasoned opinion, in addition to the amendments mentioned above. In all other respects the judgment is affirmed. Costs for this appeal are assessed to the parties equally.
The judgment of the trial court is amended and recast, in part, as follows:
JUDGMENT OF PARTITION
IT IS ORDERED, ADJUDGED AND DECREED THAT DEFENDANT, B. WOODROW NESBITT, JR., is hereby granted the following reimbursement claims:
1. $127,146.27Judgment rendered on December 2, 2002, and signed January 13, 2005.
2. $4,600.00Rent due from the wife for two months' occupancy in the former matrimonial domicile.
3. $3,839.00One-half the payments made on former matrimonial domicile.
4. $23,700.00One-half of the funds from utilization by the community of the proceeds from sale of separate immovable assets.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that DEFENDANT, B. Woodrow Nesbitt, Jr., is hereby allocated the following community assets at the value listed beside each asset:
1. Wine Collection $309,085.00
2. Funds paid by the community to
the Campaign $ 92,210.57
3. B. Woodrow Nesbitt, Jr. Ltd,
PLC $173,765.84[1]
4. Retirement Plan (Judicial Deferred
Compensation Plan) $ 11,400.00
IT IS FURTHER ORDERED PLAINTIFF, ANNETTE R. NESBITT, is hereby granted the following reimbursements:
1. $133,150.00 + $12,000.00One-half the campaign debt owed to Bancorp-South by the campaign committee and secured by the community.
2. $743.16One-half of the electric bills and Bruce Mercer bill
3. $5,443.26Additional amount owed to Annette R. Nesbitt for community fund advances to the PLC.
4. $154,542.50One-half value of wine collection.
*1235 5. $46,105.29One-half funds paid by the community to the campaign.
6. $86,883.97One-half value of the PLC.
7. $5,700One-half value of the husband's retirement plan.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the claim for devaluation of the former matrimonial domicile is recognized to be $40,000.00 and accordingly there be judgment in favor of the plaintiff, Annette R. Nesbitt, and against B. Woodrow Nesbitt, Jr., for the entire sum to reflect the devaluation of matrimonial domicile caused by the husband's fault, default, or neglect, in accordance with La. C.C. art. 2369.3.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a lien is hereby issued under La. R.S. 9:2801 against the wine collection and other property belonging to defendant necessary to effectuate said equalizing payment to plaintiff. Should there be a deficiency, the collection of the lien shall first apply to the wine collection, then the defendant's share of the community and finally to the separate property of B. Woodrow Nesbitt, Jr.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the claim by defendant, B. Woodrow Nesbitt, Jr., for interest on the judgment rendered December 2, 2005, in the amount of $127,146.27 is hereby denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Rule for Contempt filed by plaintiff, Annette R. Nesbitt, regarding defendant's consumption of some of the community wine is hereby denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the reimbursement claim of plaintiff, Annette R. Nesbitt, for devaluation or neglect in care of said wine is hereby denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the claim of plaintiff, Annette R. Nesbitt, for reimbursement for community funds spent by defendant, B. Woodrow Nesbitt, Jr., prior to termination of the community is hereby denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Rule for Contempt filed by plaintiff, Annette R. Nesbitt, regarding the marble coffee table is hereby denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff, Annette R. Nesbitt, and defendant, B. Woodrow Nesbitt, Jr., are each recognized as owing one-half of the community debt of $117,500.00, which debt was paid through foreclosure of the former matrimonial domicile and thus no reimbursement is due.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the bills of the following Special Masters have been submitted to the Court and are recognized to be:
Susan Whitelaw, $15,466.39; defendant, B. Woodrow Nesbitt, Jr., is to be assessed one hundred percent of the bill.
Zoe Meeks, $10,843.75; plaintiff, Annette R. Nesbitt, is to be assessed one hundred percent of the bill.
Gwen Harju, $5,960.15; defendant, B. Woodrow Nesbitt, Jr., is to be assessed one hundred percent of the bill.
Joseph Fertitta, $4,059.00; one-half of the bill is to be assessed to Annette R. Nesbitt, and one-half is to be assessed to B. Woodrow Nesbitt, Jr.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the furs and jewelry are hereby allocated to plaintiff, Annette R. Nesbitt, as her separate property and the claim of defendant, B. *1236 Woodrow Nesbitt, Jr., for reimbursement is hereby denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Smith and Wesson .38 revolver is hereby allocated to defendant, B. Woodrow Nesbitt, Jr., as his separate property and the claim by plaintiff, Annette R. Nesbitt, for reimbursement is hereby denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED the Court recognizes each party has in their possession property ordered retained herein and an equal share of their interest in the former community property.
AFFIRMED IN PART, AMENDED IN PART, AND RENDERED.
NOTES
[1] There were a few discrepancies, only a matter of cents, between the judgment and the opinion with respect to the figures used. Accordingly, we have corrected the calculation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623706/ | 569 So. 2d 1168 (1990)
Felix FREELON
v.
STATE of Mississippi.
No. 89-KP-1290.
Supreme Court of Mississippi.
October 3, 1990.
Rehearing Denied November 21, 1990.
*1169 Felix Freelon, Parchman, pro se.
Mike C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and PRATHER and SULLIVAN, JJ.
SULLIVAN, Justice, for the Court:
On August 5, 1977, Felix Freelon pled guilty to a charge of sale of a controlled substance in the Circuit Court of Grenada County, Mississippi, and was sentenced to serve four (4) years in the custody of Mississippi Department of Corrections.
On or about August 4, 1982, Freelon was convicted for the sale of a controlled substance, and was sentenced pursuant to Miss. Code Ann. § 99-19-81 (Supp. 1990), to serve twenty (20) years in the custody of the Mississippi Department of Corrections, without the possibility of probation or parole. The 1982 sentence was enhanced, in part, because of Freelon's prior 1977 conviction.
On May 22, 1989, Freelon petitioned the Circuit Court of Grenada County, under the Post-Conviction Collateral Relief Act, to set aside the guilty plea entered on August 5, 1977. That court denied the petition by order dated May 26, 1989, and filed May 31, 1989.
Under the authority of the Post-Conviction Collateral Relief Act, Miss. Code Ann. § 99-39-5(2) (Supp. 1990), and Odom v. State, 483 So. 2d 343 (Miss. 1986), Freelon was time barred when he petitioned the circuit court. Under the above cited statute and case, a defendant convicted prior to April 17, 1984, has three years from that date to file a petition for post-conviction relief. Clearly Freelon was required to petition for post-conviction relief on or before April 17, 1987, and he did not do so until on or about May 22, 1989. His application for post-conviction relief was properly denied by the circuit court.
The posture of the case before us at this time, however, deals with whether or not Freelon should have an out-of-time appeal from the order of the circuit court denying his Petition for Post-Conviction Relief. Freelon claims he never received a copy of the order denying his petition from the Circuit Clerk of Grenada County. On or about November 9, 1989, Freelon petitioned the Grenada County Circuit Court for leave to proceed with an out-of-time appeal alleging that he had never received a copy of the order from whence he seeks appeal. He argues that this prevented him from timely appealing through no fault of his own. The circuit court by order filed November 13, 1989, denied Freelon's Motion without a hearing. This is the decision appealed to this Court.
In Williams v. State, 456 So. 2d 1042 (Miss. 1984), this Court held that when a prisoner makes out a prima facie case that he failed to timely perfect an appeal through no fault of his own, the prisoner is entitled to a hearing in the trial court on the issue of whether or not he is entitled to an out of time appeal.
It is undisputed that the circuit clerk mailed the order to Freelon at the Mississippi Department of Corrections but it is equally undisputed that Freelon did not receive it. The real heart of this appeal by Freelon, however, is an effort to litigate his underlying claim, which is whether or not his guilty plea in 1977 was knowingly and voluntarily entered. In this effort Freelon must fail.
Under other circumstances no doubt the court might grant Freelon an out-of-time appeal. However, when one seeks an out-of-time appeal from a ruling of a trial court on a petition that was already time barred by law at the time it was filed, an out of time appeal would accomplish nothing.
Therefore under the facts and circumstances of this case, the order of the Circuit Court of Grenada County, Mississippi, *1170 dismissing Freelon's Motion to Proceed With an Out-of-Time Appeal is affirmed.
AFFIRMED.
ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ANDERSON, PITTMAN and BLASS, JJ., concur.
ROBERTSON, J., concurs in result and files separate concurring opinion.
ROBERTSON, Justice, concurring:
I agree that Felix Freelon has made no showing that would suggest he is entitled to an out of time appeal and for that reason I concur in the judgment below. I write because I fear the opinion may be read by some as deciding a proposition which has been neither raised nor litigated and is not necessary to the decision today.
In my view, the enforceability of the three-year statute of limitations in the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann. § 99-39-5(2) (Supp. 1990), is highly problematical. It likely constitutes a suspension of the writ of habeas corpus in violation of Miss. Const. Art. 3, § 21 (1890). The question was before us in Reynolds v. State, 521 So. 2d 914, 915 (Miss. 1988), but we did not decide it because the complaining prisoner lacked standing. Nothing in Odom v. State, 483 So. 2d 343 (Miss. 1986) is to the contrary. Odom merely holds that the UPCCRA is prospective only from its date of enactment and, accordingly, the three-year statute of limitations could have no effect upon a prisoner's pre-Act claim. Nothing in Odom could or did hold that the three-year statute of limitations passes constitutional muster. Of course we do not go looking for constitutional questions to decide, see Western Line Consolidated School District v. Greenville Municipal Separate School District, 433 So. 2d 954, 958 (Miss. 1983); Tribou v. Gunn, 410 So. 2d 378, 380 (Miss. 1982), and certainly do not decide questions such as that noted here absent full briefing and argument, the day for which will surely come. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623717/ | 360 S.W.2d 444 (1962)
J. R. HITCHCOCK et ux., Appellants,
v.
SOJOURNER DRILLING CORPORATION et al., Appellees.
No. 3741.
Court of Civil Appeals of Texas, Eastland.
September 7, 1962.
Rehearing Denied September 28, 1962.
R. J. Balch, Seymour, for appellants.
Whitten, Harrell & Wilcox, Abilene, Turner, Rodgers, Winn, Scurlock & Terry, Dallas, Ratliff & Ratliff, Haskell, for appellees.
GRISSOM, Chief Justice.
On June 11, 1949, J. R. Hitchcock and wife executed an oil lease on 156.7 acres of land owned by them in Haskell County, including 24 acres which they had conveyed to John Covey in 1958. The lease was for a primary term of ten years with a provision that it should continue so long thereafter as oil was produced from said land. Thereafter, under a 40 acre spacing rule, a well was drilled and oil was produced in paying quantities on the 24 acre tract sold to Covey. The Hitchcocks used Covey and wife, the oil and gas lessee and the operator of said well contending that they were entitled to 16/40ths of the 1/8th royalty because they own 16 of the 40 acres in the spacing unit fixed by the Railroad Commission. The facts were undisputed. The court held that the Hitchcocks were not entitled to any part of the royalty from oil produced from the 24 acres sold to Covey and rendered judgment accordingly. The Hitchcocks have appealed.
As stated, appellants contend that they are entitled to 16/40ths of the 1/8th royalty to be paid from the oil produced from a well *445 on Covey's 24 acres because the Railroad Commission in fixing the 40 acre spacing unit used 16 acres of their land and 24 acres of Covey's land. They say that a denial of that claim conflicts with Article 1, Section 19, of the Constitution of Texas, Vernon's Ann.St. which provides that no citizen shall be deprived of property or privileges except by due course of the law of the land. They further contend that such spacing arrangement constituted a forced pooling of their 16 acres with Covey's 24 acres and that, therefore, they should share with Covey in said proportion in the royalty from oil produced anywhere on the 40 acre spacing unit. They ask us to apply the dissenting opinion in Ryan Consolidated Petroleum Corp. v. Pickens, 155 Tex. 221, 285 S.W.2d 201, 210.
The judgment is in accord with the rule of law long approved by our Supreme Court. In Japhet v. McRae, (Tex.Com. App.), 276 S.W. 669, the owner of a 15 acre tract subject to an oil lease sold 5 acres to the plaintiff and 10 acres was retained by the defendant. Thereafter, a producing oil well was drilled on the 10 acre tract. The purchaser of the 5 acre tract claimed 5/15ths of the 1/8th royalty from oil produced solely from the 10 acres retained by the defendant. There Japhet took the same position that the Coveys take in this case. The Commission, in an opinion adopted by the Supreme Court, said:
"Where the lessor of land for oil and gas, subsequently to the execution of the lease, but prior to the development of the land and the production of oil or gas under the lease, sells a portion or portions of the land to others, and oil and gas are thereafter produced under the lease from some portion of the leased premises, the royalties therefrom belong to the owner of the particular tract upon which the well is located, and the owner or owners of other portions of the leased premises have no interest therein."
In Garza v. De Montalvo, 147 Tex. 525, 217 S.W.2d 988, 993, it was held that where a portion of the leased premises is sold by the lessor that the royalties will not be apportioned on the basis of acreage "in the absence of an express contract to that effect, but the owner of each separate tract will be entitled to receive royalties only on oil and gas produced from his tract." See also McKinnon v. Lane, Tex.Civ.App., 285 S.W.2d 269, 272, (Ref.N.R.E.); 31-A Tex. Jur. 494. The regulations of the Railroad Commission in fixing spacing units cannot effect a change of property rights. Mueller v. Sutherland, Tex.Civ.App., 179 S.W.2d 801, (Ref.W.M.). Notwithstanding the hardships asserted by the Hitchcocks, the applicable law is established and supports the judgment. It is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623773/ | 569 So. 2d 496 (1990)
Elizabeth J. METTLER, Appellant,
v.
Peter W. METTLER, Appellee.
No. 88-2185.
District Court of Appeal of Florida, Fourth District.
October 10, 1990.
Rehearing Denied November 26, 1990.
*497 Arthur England, Paul R. Lipton, and Linda Ann Wells of Fine Jacobson Schwartz Nash Block & England, Miami, for appellant.
Mark T. Luttier and Odette Marie Bendeck of Gunster, Yoakley, Criser & Stewart, P.A., West Palm Beach, for appellee.
POLEN, Judge.
Elizabeth Mettler seeks review of the trial court's order granting trial and appellate attorney's fees to the former husband and to counsel for the minor children for representation in post-dissolution modification and related appellate proceedings. Appellant alleges error in four areas, one of which we find requires reversal.
During the three-year period following the parties' final judgment of dissolution, both parties filed numerous motions relating to custody of the children and visitation rights as well as the awarding of attorney's fees. The trial court granted former husband's petition for modification, transferring immediate sole parental responsibility for the children to him and granting appellant restricted visitation privileges, and denied appellant's claim for attorney's fees. The trial court reserved jurisdiction on former husband's claim for fees and for the purpose of reapportioning fees already *498 paid the court appointed attorney ad litem. Appellant sought review of the modification order.
In Mettler v. Mettler, 519 So. 2d 998 (Fla. 4th DCA 1988), this court affirmed the judgment of modification and granted the attorney ad litem's motion for appellate attorney's fees in accordance with the final judgment and the former husband's motion for appellate attorney fees conditioned upon a determination of entitlement pursuant to the final judgment. The final judgment made specific findings of fact that the file reflected a "pattern of extensive, expensive and needless litigation," that appellant "instigates litigation at considerable expense and aggravation over matters that could easily be resolved if she were reasonable" and that her family's resources had enabled her to pursue "this needless, futile and fruitless litigation."
Former husband filed a motion requesting a hearing on the issue of attorney's fees and costs incurred in trial representation. Former husband subsequently requested an award of appellate fees and an apportionment of the fees already paid to the attorney ad litem for representation at trial. The attorneys ad litem subsequently filed motions for payment of post-trial and appellate attorneys' fees and costs.
Following a two-day evidentiary hearing, the trial court ordered appellant to reimburse former husband $31,993.78 for fees and costs incurred in the modification action. Appellant was also required to pay $10,000 to former husband's attorney for his representation on appeal and $20,535 to appellate counsel for representing the children. The $16,682 awarded trial counsel for the children for post-judgment, non-appellate fees and costs was apportioned twenty-five percent to former husband, and seventy-five percent to appellant.
We find ample support for the trial court's findings as to the former wife's conduct. Her conduct unnecessarily engendered recalcitrant or vexatious litigation and served to frustrate the public policy of this state to promote settlement of litigation and where possible to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.
Appellant argues the trial court erred in taxing costs against her regardless of either her conduct or her family's ample financial resources, when she herself had no ability to pay any portion of the former husband's fees and costs and such an award must be based upon consideration of the financial resources of both parties subject to their individual control. See § 61.16, Fla. Stat. (1987). Contra to the former wife's allegation, the record evidences facts such as the final judgment awarding her lump sum alimony and half interest in the house, some of these funds being used as payment for another house but no disclosure as to use of the remaining funds, and her failure to file a financial affidavit, from which the trial court could have concluded she had some ability to pay.
While the purpose of considering the parties' finances in awarding attorney's fees is to insure that both parties are not limited in their ability to receive adequate representation due to disparate financial status, this equitable principle must be flexible enough to permit the courts to consider cases with special circumstances. Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828, 835 (Fla. 1990). A party's financial status should not insulate them from the consequences of their conduct within the judicial system. See generally Steinfeld v. Steinfeld, 565 So. 2d 366 (Fla. 4th DCA 1990); Landers v. Landers, 550 So. 2d 554 (Fla. 5th DCA 1989); Meloan v. Cloverdale, 525 So. 2d 935 (Fla. 3d DCA 1988). Here appellant abused the system through inequitable conduct which resulted in needless litigation and legal fees. She cannot now avoid the consequences of that conduct by using her diminished financial status as a shield. Rather than impermissibly awarding the fee as a punitive measure, the award was based on the additional work made necessary by appellant. The award serves to avoid an inequitable diminution of former husband's share of the parties' assets. See generally Canakaris v. Canakaris, 382 So. 2d 1197 *499 (Fla. 1980); Dyer v. Dyer, 438 So. 2d 954 (Fla. 4th DCA 1983).
We affirm the trial court's finding of former husband's entitlement to the award of attorney's fees. We also affirm the awards of attorneys' fees to the two appellate attorneys as the record supports the work was performed with efficiency and without duplication of effort. Nor do we find error in the trial court's apportioning of those fees.
We do find persuasive appellant's assertion of error as to the amount of the post-judgment, non-appellate attorney ad litem fee award because insufficient expert testimony was presented to justify the reasonable value of those services. Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); Ashourian v. Ashourian, 519 So. 2d 35 (Fla. 1st DCA 1987); Cottman v. Cottman, 418 So. 2d 1241 (Fla. 4th DCA 1982). We therefore reverse and remand as to this point.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
STONE and WARNER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4259396/ | Matter of Brennan Ctr. for Justice At NYU Sch. of Law v New York State Bd. of Elections (2018 NY Slip Op 02227)
Matter of Brennan Ctr. for Justice At NYU Sch. of Law v New York State Bd. of Elections
2018 NY Slip Op 02227
Decided on March 29, 2018
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: March 29, 2018
524905
[*1]In the Matter of BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW et al., Appellants,
vNEW YORK STATE BOARD OF ELECTIONS et al., Respondents.
Calendar Date: January 12, 2018
Before: Garry, P.J., McCarthy, Egan Jr., Lynch and Pritzker, JJ.
Emery Celli Brinckerhoff & Abady LLP, New York City (Elizabeth S. Saylor of counsel) and Wendy R. Weiser, Brennan Center for Justice at NYU School of Law, New York City, for appellants.
William J. McCann Jr., New York State Board of Elections, Albany, for New York State Board of Elections, respondent.
Sinnreich, Kosakoff & Messina, LLP, Central Islip (John Ciampoli of counsel), for Edward Cox and another, respondents.
Garry, P.J.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Fisher, J.), entered March 16, 2016 in Albany County, which dismissed petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review a determination of respondent State Board of Elections denying a
request to rescind said respondent's 1996 Opinion No. 1.
The background of this matter is more fully discussed in this Court's decision in a related appeal (Matter of Brennan Law Ctr. for Justice at NYU School of Law v New York State Bd. of Elections, ___ AD3d ___ [appeal No. 524950, decided herewith]). In 1996, respondent State Board of Elections (hereinafter respondent) issued 1996 Opinion No. 1 (hereinafter the 1996 opinion), which opines that limited liability companies (hereinafter LLCs) are not subject to the campaign contribution limits imposed upon corporations and partnerships by the Election Law, and may thus make contributions subject to the higher limits imposed upon individuals — a result known as the "LLC Loophole." Critics assert that LLCs have acquired inordinate political [*2]influence as a result of the 1996 opinion, but legislative efforts to lower the contribution limits imposed upon them have been unsuccessful.
In April 2015, one of respondent's commissioners made a motion for respondent to direct its counsel to prepare an opinion that would rescind the 1996 opinion and provide updated guidance on the applicability of the Election Law's contribution limits to LLCs. The motion failed in a tie vote when two of the four commissioners voted against it (see Election Law § 3-100 [1], [4]). Petitioners — the Brennan Center for Justice at NYU School of Law and six individuals — then commenced this combined CPLR article 78 proceeding and action for a declaratory judgment against respondent seeking, among other things, a judgment rescinding the 1996 opinion and ordering respondent "to issue a new opinion or regulation consistent with the text and purpose of the Election and [Limited Liability Company] Laws."[FN1] Supreme Court dismissed the petition/complaint, finding, among other things, that petitioners lack standing. Petitioners appeal.
To establish standing to pursue this litigation, petitioners must show that they have suffered injury-in-fact and that the injury is within the zone of interests protected by the statute at issue (see Matter of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23 NY3d 1, 6 [2014]; Matter of Animal Legal Defense Fund, Inc. v Aubertine, 119 AD3d 1202, 1203 [2014]). Here, as in the related appeal, the contested issue is the injury-in-fact element, which requires a showing that petitioners "will actually be harmed by the challenged action. As the term itself implies, the injury must be more than conjectural" (Matter of Graziano v County of Albany, 3 NY3d 475, 479 [2004] [internal quotation marks, ellipsis and citation omitted]).
The six individual petitioners are current or former legislators or candidates for legislative office. The Brennan Center describes itself as "a not-for-profit, non-partisan public policy and law institute that focuses on issues of democracy and justice." Petitioners assert that respondent should have granted the motion to rescind the 1996 opinion because the LLC Loophole damages effective governance by intensifying the influence of large financial contributions upon elections. As in the related appeal, their arguments that the LLC Loophole raises issues "of vital public concern" are persuasive, but do not, without more, entitle them to standing (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769 [1991] [internal quotation marks omitted]; see Matter of Gilkes v New York State Div. of Parole, 192 AD2d 1041, 1042 [1993], lv denied 82 NY2d 654 [1993]). We find that petitioners lack standing because they have not established the required element of injury-in-fact.
To confer standing, a claimed injury may not depend upon speculation about what might occur in the future, but must consist of "cognizable harm, meaning that [a petitioner] has been or will be injured" (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 214 [2004] [internal quotation marks and citation omitted; emphasis added]). Here, all of petitioners' claims of injury resulting from the denial of the April 2015 motion rely upon the assumption that the LLC Loophole would have been eliminated if the motion had been granted. That assumption is not supported by the open-ended language of the motion, which merely asked respondent to direct its counsel to prepare an opinion "provid[ing] updated guidance on the applicability of [Election Law] article 14 to [LLCs]." Nothing in this language required the new opinion to eliminate the LLC Loophole. If respondent had granted the motion, the resulting opinion might [*3]have reaffirmed the same analysis that established the LLC Loophole in 1996, rather than providing the altered statutory interpretation that petitioners contend should be adopted. Thus, petitioners' claims of injury-in-fact rely upon events that might not have occurred and are too speculative to demonstrate "concrete injury fulfilling the requirement of standing" (Matter of Town of E. Hampton v State of New York, 263 AD2d 94, 96 [1999]; see New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d at 214-215 [2004]; Schulz v Cuomo, 133 AD3d 945, 947 [2015], appeal dismissed 26 NY3d 1139 [2016], lv denied 27 NY3d 907 [2016]). The parties' remaining contentions are rendered academic by this determination.
McCarthy, Egan Jr., Lynch and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
Footnotes
Footnote 1: Supreme Court granted a motion to intervene filed by respondents New York Republican State Committee and Edward Cox. | 01-03-2023 | 03-29-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/461980/ | 779 F.2d 47
Taylorv.Johnson
85-6632
United States Court of Appeals,Fourth Circuit.
12/2/85
1
E.D.N.C.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1476922/ | 137 S.W.3d 797 (2004)
Dale A. WOLF, Appellant
v.
The STATE of Texas, Appellee.
No. 10-02-147-CR.
Court of Appeals of Texas, Waco.
May 12, 2004.
*799 Kelly R. Myers, Attorney At Law, Corsicana, for Appellant/Relator.
Steve A. Keathley, Navarro County District Attorney, David P. Lamb, Navarro County Asst. District Attorney, Corsicana, for Appellee/Respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.[*]
OPINION
VANCE, Justice.
This is an appeal from a conviction for the offense of Possession of a Controlled Substance, Penalty Group 1, in an amount over one gram. A jury determined that Dale Arthur Wolf (Wolf) had possessed *800 3,4-Methylenedioxy Methamphetamine, also known as MDA or ecstasy, and assessed punishment, which the court imposed, of ten years' confinement at the Texas Department of Criminal Justice Institutional Division. Wolf brings two issues on appeal: (1) whether the court erred in denying his motion to suppress evidence, and (2) whether the court erred in overruling his objection to the admission of evidence that marihuana was also found in his truck. Because we find that the court should have granted Wolfs motion to suppress, we reverse the conviction and remand the cause to the trial court for further proceedings.
BACKGROUND
At about three o'clock in the morning on July 28, 2000, Officer John Nelson, a state trooper with the Texas Department of Public Safety, stopped Wolf and his companion, Teressa Freed, because of a defective "tag lamp" on the Chevy 5-10 Blazer that Wolf was driving. Freed's four-yearold grandchild was in the backseat, and the back of the vehicle was filled with luggage and boxes. The patrol-car videotape, taken at the scene of the detention, shows Nelson asking Wolf and Freed for their drivers' licenses and looking inside the Blazer. Nelson asked "What's in that black thing?" and Wolf and Freed responded, "Tools." When Nelson commented that it looked as if they had been on vacation, Freed explained that they were "bringing [her] grandbaby home." Nelson told them it would be just a warning, not a ticket, and returned to his patrol car, where he radioed a request for criminal history and outstanding warrant reports on both Wolf and Freed.
About four minutes later, he called Officer John Semetko, a K-9 patrol officer with the City of Corsicana Police Department, and asked him to listen to the criminal history as it came back on Wolf and Freed, noting that he was "not sure what we're going to have," but that "there was nervousness there." Nelson testified during the suppression hearing and at trial that Freed was nervous and Wolf was overly cooperative.
Semetko said that he was en route to the scene with a narcotics-sniffing dog. He and the dog arrived about ten to fifteen minutes after the car was stopped, only about three minutes after the dispatcher indicated that no criminal history was available on either Wolf or Freed. The videotape shows Wolf walking toward the patrol car to talk to Nelson at the same time the dog sniff began.[1] At the suppression hearing, both officers testified that Wolf consented to their search of the vehicle, however Wolf contends that he could not have consented to the search because he did not own the Blazer. Although neither officer testified to the dog's positive alert, the videotape shows Nelson telling Wolf that the dog had alerted to the presence of drugs and asking Wolf if he would mind if the officers searched the vehicle. Wolf responded, "I don't." The officers found marihuana in the front center console, in Freed's purse, and packed in an envelope in a black overnight bag in the back of the truck. The bag also contained about seven pills, later determined to be ecstasy.
At the suppression hearing, Officer Nelson testified, "I don't know if I've ever issued a citation [for a defective tag lamp]." He said, on cross-examination, that he prolonged the detention, after receiving a clear warrant-report, because of *801 Freed's nervousness and Wolf's overly cooperative behavior.
DEFENSE ATTORNEY: There were other reasons that you would, had, had decided to base your further detention on Mr. Wolf on other than the defective tag lamp.
OFFICER NELSON: Correct. Nervousness.
DEFENSE ATTORNEY: Right. The tag lamp issue had fairly well been resolved after you made the contact. It was the nervousness and the weirdness of his response that gave you suspicion to go ahead and continue the, continue what turns into an investigation; is that fair to say?
OFFICER NELSON: Fair to say.
The court denied Wolf's motion to suppress, and the ecstasy was admitted into evidence.
THE SEARCH
Standard of Review
Wolf first argues that the court erred in denying his motion to suppress evidence. In reviewing a ruling on a motion to suppress, we give "almost total deference to a trial court's determination of historical facts" and review de novo the court's application of the law of search and seizure. Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App.2000) (quoting Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim. App.1997)). Because the Fourth Amendment is applicable to the states through the Fourteenth Amendment, we look to both state and federal case law in our analysis. See Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The facts here are not disputed, so we review only for application of law to fact.
The Initial Traffic Stop
In general, the decision to stop an automobile is reasonable when the police have probable cause to believe that a traffic violation has occurred. Walter, 28 S.W.3d at 542; see also Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). During such a routine traffic stop, an officer may detain an individual to check for outstanding warrants. Walter, 28 S.W.3d at 542 (citing Davis v. State, 947 S.W.2d 240, 245 n. 6 (Tex.Crim.App.1997)). Therefore, both the initial stop related to the tag lamp and Officer Nelson's demand for identification and the warrant checks were lawful.
The patrol-car videotape, however, indicates that Officer Nelson detained Wolf and Freed for approximately three minutes after learning that neither was the subject of an outstanding warrant and that criminal-history reports[2] were unavailable due to technical difficulties. In fact, Officer Nelson radioed Officer Semetko saying, "I'll just hold up here until you get here." This prolonged detention is the subject of our inquiry.
Reasonable Suspicion for the Extended Detention
In the landmark case of Terry v. Ohio, the United States Supreme Court held that a temporary investigative detention may be reasonable if: (1) the officer's action was justified at its inception; and (2) the detention was reasonably related in scope to the circumstances which justified the interference in the first place. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). For the officer's *802 action to be justified, he "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id., 392 U.S. at 21, 88 S.Ct. at 1880; Davis, 947 S.W.2d at 242. Moreover, an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Davis, 947 S.W.2d at 243 (citing Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983)). On appeal, we review the reasonableness of the detention from the same perspective as the officer: using an objective standard, we ask whether the facts available at the moment of detention would warrant a man of reasonable caution in the belief that the action taken was appropriate. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880; Davis, 947 S.W.2d at 243.
Under this construct, we conclude, as we have previously noted, that Officer Nelson's initial detention of Wolf because of the defective tag lamp was justified at its inception. But Officer Nelson prolonged the detention to allow time for the drugsniffing dog to arrive. This detention was neither necessary to allow Nelson time to issue a warning to Wolf, nor was it reasonably related in scope to his inquiry about the defective tag lamp. Therefore, this prolonged detention would violate the Fourth Amendment, unless Officer Nelson had developed reasonable suspicion of illegal activity that would justify the extended detention under Terry v. Ohio. Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879.
Both the Court of Criminal Appeals and the Fifth Circuit Court of Appeals have addressed similar situations in the past few years. See Davis, 947 S.W.2d at 240; United States v. Portillo-Aguirre, 311 F.3d 647 (5th Cir.2002); United States v. Jones, 234 F.3d 234 (5th Cir.2000); United States v. Dortch, 199 F.3d 193 (5th Cir. 1999).
Davis v. State
Police officers stopped Davis on suspicion of driving while intoxicated at one o'clock in the morning in a rural location. Davis, 947 S.W.2d at 241. Davis exited his vehicle and explained that he was not intoxicated, but merely tired. Id. The officers did not smell alcohol on Davis, nor did they smell alcohol or drugs coming from his vehicle. Id. Although the initial purpose of the traffic stop had been completed at this time, the officers questioned both Davis and his passenger, and the officers believed the answers were inconsistent. Id. A background check on Davis showed no history of convictions, however, his passenger had one prior drug-related conviction. Id. Finally, although the vehicle was not registered to Davis, it had not been reported stolen, and Davis told the officers that he had borrowed it from his girlfriend. Id. The officers told Davis he was free to leave, but they detained his vehicle and called a canine unit to the scene. Id. After the dog alerted to the presence of narcotics, Davis gave the officers his keys and allowed them to search his trunk, where they found marihuana. Id.
The Beaumont Court of Appeals found that the circumstances were sufficient to constitute reasonable suspicion, but the Court of Criminal Appeals disagreed. Id. at 241-42. The Court noted that consistent with Terry, Texas courts require reasonable suspicion before a seizure of the person or property can occur. Id. at 244. "To justify an investigative detention, the officer must have specific articulable facts, which, premised upon his experience and personal knowledge, when coupled with the logical inferences from those facts, would warrant the intrusion on the detainee. These facts must amount to more than a mere hunch or suspicion." Id. The articulable facts used by the officer must create reasonable suspicion of: (1) some activity out of the ordinary that is occurring *803 or has occurred; (2) some suggestion to connect the detainee with the unusual activity; and (3) some indication the unusual activity is related to crime. Id. The Court emphasized that "an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Id. at 245.
In reversing the judgment of conviction, the Court concluded that the purpose of the investigative detention was effectuated when the officers determined that Davis was not intoxicated. Id. As to the continued detention, the Court found, "when viewed in an objective fashion, no known fact, or rational inferences from those facts, would support the conclusion that appellant was engaged in or soon would engage in criminal activity." Id.
United States v. Portillo-Aguirre
The Fifth Circuit Court of Appeals followed a similar approach in cases involving border patrol searches at an immigration checkpoint. United States v. Portillo-Aguirre, 311 F.3d 647, 650 (5th Cir.2002); see also U.S. v. Ellis, 330 F.3d 677, 678 (5th Cir.2003).[3] In Portillo-Aguirre, Agent Woodruff boarded a bus to perform an immigration inspection, in accordance with border patrol procedure. Portillo-Aguirre, 311 F.3d at 650. Portillo-Aguirre, a resident alien, was seated near the front of the bus. Id. Woodruff checked Portillo-Aguirre's documents and was satisfied that Portillo-Aguirre's presence in the United States was lawful. Id. After completing his inspection, however, Woodruff walked from the back of the bus to front, and he noticed a small carry-on bag underneath Portillo-Aguirre's seat. Id. He later testified that Portillo-Aguirre appeared rigid, nervous, and looked straight ahead at that moment. Id. Woodruff stopped and asked him if he had a bag on the bus, and Portillo-Aguirre pointed to a backpack in the overhead bin. When Woodruff asked for permission to look in the bag, Portillo-Aguirre opened the bag, and "attempted to show that the bag contained only books and clothes." Id. at 651. Woodruff requested permission to search the bag for himself, and Portillo-Aguirre consented. Id. Woodruff discovered a bundle of narcotics, which was later determined to be cocaine. Id. The extended detention, during which Woodruff questioned Portillo-Aguirre and searched his bag for drugs, took approximately three to five minutes. Id. at 656. After the district court denied Portillo-Aguirre's motion to suppress, a jury convicted him of possession with intent to distribute cocaine. Id. at 651.
The circuit court of appeals first concluded that the initial stop was constitutionally permissible. "Although not supported by reasonable suspicion, the [Supreme] Court [has] considered the programmatic purpose of the stopsinterdicting the flow of illegal aliensto be sufficient justification for checkpoint seizures." Id. at 652; see City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). The court noted, however, "any further detention beyond a brief question or two or a request for documents evidencing a right to be in the United States must be based on consent or probable cause." Portillo-Aguirre, 311 F.3d at 652.
The court further noted that questions outside the scope of the stop are permissible, so long as they do not extend the duration of the stop. Id. at 653. "A stop *804 may not exceed its permissible duration unless the officer has reasonable suspicion of criminal activity ... if the initial, routine questioning generates reasonable suspicion of other criminal activity, the stop may be lengthened to accommodate its new justification." Id. Citing with approval its prior decisions in Jones and Dortch, the court added, "when officers detain travelers after the legitimate justification for a stop has ended, the continued detention is unreasonable." Id. at 654; see Jones, 234 F.3d at 234; Dortch, 199 F.3d at 193.
Jones and Dortch
Similarly, in both Jones and Dortch, which dealt with traffic stops, the circuit court of appeals found prolonged detentions of motorists to violate the Fourth Amendment. Dortch was stopped for traveling too close to a tractor-trailer. Dortch, 199 F.3d at 195. Jones was a passenger in a vehicle driven by Daniel, who was stopped for a speeding violation. Jones, 234 F.3d at 237. In both cases the officers prolonged the detention while awaiting the arrival of narcotics-sniffing dogs, despite a lack of reasonable suspicion of illegal activity, and after the dispatcher in each case notified the officers that the motorists had clean criminal histories or no outstanding warrants. Jones, 234 F.3d at 238, 241; Dortch, 199 F.3d at 196, 199. Jones was detained an additional three minutes, and Dortch was detained about five minutes before the dog and its handler mustered to the scene. Jones, 234 F.3d at 238; Dortch, 199 F.3d at 196. Because of the absence of reasonable suspicion, the court found these prolonged detentions to violate the Fourth Amendment. Jones, 234 F.3d at 241; Dortch, 199 F.3d at 202-03. The Dortch court opined: "To hold otherwise would endorse police seizures that are not limited to the scope of the officer's reasonable suspicion and that extend beyond a reasonable duration." Dortch, 199 F.3d at 199-200.
Application
Officer Nelson stopped Wolf to give him a warning about his defective tag lamp. He detained Wolf approximately three minutes after learning that no criminal history information was available for Wolf or his passenger, Freed. The only articulable reasons that Officer Nelson gave for detaining Wolf were that Freed was nervous and Wolf was overly cooperative.[4] "It is not indicative of guilt for a person to be nervous when confronted by police officers asking questions."[5]Davis, 947 S.W.2d at 248 (Mansfield, J., concurring). Nor can we conclude that cooperating with police officers who are asking questions supports an inference of illegal activity. We find in the record no articulated basis for a reasonable suspicion that some activity out of the ordinary related to crime was occurring or had occurred. Id. at 244. Rather, we conclude that the facts available to Nelson after receiving the criminal history information would not warrant a man of reasonable caution in the belief that prolonging the detention was appropriate.[6]Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880; Davis, 947 S.W.2d at 243.
*805 Because the initial detention was longer than was reasonably necessary to effectuate the purpose of the stop, that is, to warn Wolf about the defective tag lamp, and because the prolonged detention was not supported by reasonable suspicion, we find that the prolonged detention violated Wolfs Fourth Amendment rights. See Davis, 947 S.W.2d at 243.
Consent to Search
Under the "fruit of the poisonous tree" doctrine, all evidence derived from the exploitation of an illegal seizure must be suppressed, unless the State shows that there was a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation. See Portillo-Aguirre, 311 F.3d at 658. "`Consent to search may, but does not necessarily, dissipate the taint of a fourth amendment violation.' "Id., (quoting United States v. Chavez-Villarreal 3 F.3d 124, 127 (5th Cir. 1993)). Therefore, we must now consider whether Wolf's consent to a search of the truck attenuated the taint of the unlawful detention, such that the court's denial of his motion to suppress was not erroneous.
In evaluating Wolf's consent, we use a two-pronged test: (1) whether the consent was voluntarily given; and (2) whether the consent was an independent act of free will. Portillo-Aguirre, 311 F.3d at 658 (quoting Chavez-Villarreal, 3 F.3d at 127). Six factors bear on the first prong, voluntariness of the consent: (1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found. Portillo-Aguirre, 311 F.3d at 658. Although all six factors are relevant, no single factor is dispositive. Id. As to the second prong, whether the consent was an independent act of free will, we consider: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct. Id. at 659.
With these principles in mind, we turn to the facts at hand. We focus our attention on the second prong of the test: whether the consent was an independent act of free will, where the record clearly guides our decision. First, the patrol-car videotape and the officers' testimony at the suppression hearing indicates that there was a close temporal proximity between the illegal conductthe extended detentionand the consent. As in Portillo-Aguirre, the consent to search came about five minutes after the illegal, extended detention began. See id. No circumstances intervened between the detention and the consent, and there is nothing to suggest that Wolf believed he was free to go during that time. See id. In fact, Officer Nelson testified at the suppression hearing that although Wolf had been told he was not under arrest, he would not have been free to go during the time when the narcotics *806 dog was en route to the scene. Moreover, Nelson also said that he detained Wolf and Freed for two reasons: (1) to obtain a criminal history return; and (2) to allow the narcotics dog time to arrive. The former reason was justified and the latter was not. The results of the criminal history are audible in the patrol-car videotape, after which Nelson told Semetko "I'll hold up here until you, get here." Although not flagrant, the purpose of the misconduct was to illegally detain Wolf until an unsubstantiated hunch could be acted upon. Thus, using these three factors, we conclude that Wolf's consent was not an independent act of free will. See id. at 659. Therefore, the court should have granted Wolf's motion to suppress.
Harm Analysis
Finally, under Texas law, having concluded that the court should have granted Wolf's motion to suppress, we are bound to conduct a harm analysis. TEX. R.APP. P. 44.2(a) ("If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment."); Atkins v. State, 951 S.W.2d-787, 797 (Tex. Crim.App.1997) (citing Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997)) ("[A]11 errors, except certain federal constitutional errors deemed `structural,' are subject to a harm analysis."). Without the evidence discovered as a result of the illegal detention and search, the State would have had no basis on which to convict Wolf of possession of ecstasy. See Dortch, 199 F.3d at 203; see also Hall v. State, 74 S.W.3d 521, 527 (Tex.App.-Amarillo 2002, no pet.). Therefore, we cannot conclude beyond a reasonable doubt that the error did not contribute to the conviction. TEX. R.App. P. 44.2(a). Accordingly, we must reverse the judgment. Id. We sustain Wolf's first issue.
CONCLUSION
Having sustained Wolf's first issue, we do not reach his second issue. The judgment is reversed, and the cause is remanded to the trial court for further proceedings.
Chief Justice GRAY dissenting.
GRAY, Chief Justice, dissenting.
In not giving "almost total deference" to the trial court's determinations of fact, the majority has used the wrong standard of review. See Rayford v. State, 125 S.W.3d 521, 528 (Tex.Crim.App.2003); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). I respectfully dissent.
The trial court's ruling on a motion to suppress evidence is "subject to the discretion of the court." TEX.CODE CRIM. PROC. ANN. art. 28.01(6) (Vernon 1989); see Dyar v. State, 125 S.W.3d 460, 462 (Tex.Crim. App.2003). Only when the case presents the appellate court with "a question of law based on undisputed facts" does the court review the ruling de novo. Id. However, a reviewing court must "give almost total deference to a trial court's determination of historical facts." Rayford at 528; accord Guzman at 89. Moreover, an appellate court is "obligated to uphold the trial court's ruling on [an] appellant's motion to suppress if that ruling was supported by the record." Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003), cert. denied, 158 L.Ed.2d 469 (2004). Where the trial court does not make express findings of fact, appellate courts "review the evidence in a light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported in the record." Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002).
*807 The majority states that the facts are not disputed, and thus uses a de novo standard of review. (137 S.W.3d at 801.). But the facts are disputed. Appellant introduced a video recording of the stop. As the record shows, the trial court did not view the recording in the hearing on the motion to suppress, although he had done so in a proceeding concerning Appellant's co-defendant. For that reason, we should be leery of putting much weight on the video. But the majority apparently credits the video to the exclusion of the live testimony before the court. We must, instead, defer to the trial court's determination of the facts, and to the trial court's determination of mixed questions of law and fact, even when those determinations are based on evidence concerning which the trial court has little or no advantage over the appellate court, such as affidavits. Manzi v. State, 88 S.W.3d 240, 242-44 (Tex.Crim. App.2002). This rule has even stronger effect in the review of video recordings, whose images and sounds are often difficult to understand and interpret. Appellant testified that the video recording was partial and imperfect, in that "there's parts of it that the audio has been dropped out." To the extent that the recording differs from the testimony of the witnesses, the historical facts are disputed. Moreover, there were conflicts between the arresting officer's testimony on direct and on cross-examination. For example, on direct examination, he testified that he had "[p]rior [criminal] histories on both subjects" while he was writing warnings for Appellant and his passenger; but on cross-examination, the officer testified to the contrary. Accordingly, we must give almost total deference to the trial court's determination of those facts and of mixed questions of law and fact, so long as those determinations are supported by the record. Here, the trial court's determinations are supported by the record. That record does not show that the officer extended his detention of Appellant any longer than was necessary to complete writing Appellant a warning.
We should consider the matter of Appellant's apparent voluntary consent to search, and if necessary, consider Appellant's other issue. Because the Court does otherwise, I respectfully dissent.
NOTES
[*] This case was submitted with former Chief Justice Davis on the panel, but he resigned effective August 4, 2003. Justice Reyna, who took office on January 5, 2004, participated in the decision.
[1] The videotape is part of the record, although not played at the suppression hearing. The court knew its contents from an earlier hearing in Freed's case. During this portion of the tape, there is no audio.
[2] Although Officer Nelson testified at the suppression hearing that both Wolf and Freed had prior criminal histories, he conceded on cross-examination that he was not aware of that at the time.
[3] See also U.S. v. Chacon, 2003 WL 22231298 (W.D.Tex. Sep. 19, 2003) (following Portillo-Aguirre after remand from Fifth Circuit); contra U.S. v. Garcia-Garcia, 319 F.3d 726, 729 (5th Cir.2003) (detention not unreasonable because agent formed reasonable suspicion of drug activity before completing purposes of immigration stop).
[4] Wolf argued in his brief that these behaviors are as consistent with innocent activity as with criminal activity. The "as consistent with innocent activity as with criminal activity" construct is no longer a viable test for reasonable suspicion. Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997).
[5] The Fifth Circuit also rejected the "generic claim of nervousness" as justifying the extension of the immigration checkpoint stop in Portillo-Aguirre. Portillo-Aguirre, 311 F.3d at 656.
[6] The State suggests in its brief that the prolonged detention was reasonable because of the unavailability of criminal history information. The patrol-car videotape reveals that one of two checks came back clear for both Wolf and Freed and that the other could not be completed due to technical difficulties. To say that the absence of information can support reasonable suspicion would be to emasculate the concept of reasonable suspicion and to endorse police seizures based only on the officer's subjective hunch. Rather, we echo the sentiment of Justice Mansfield's concurrence in Davis, "No person, however, may be detained, even momentarily, without reasonable and objective grounds." Davis, 947 S.W.2d at 246 (Mansfield, J., concurring) (citing Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555135/ | 36 So.3d 124 (2010)
Juan ARRIETA-ROLON, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-2269.
District Court of Appeal of Florida, Fourth District.
April 21, 2010.
Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, for appellant.
*125 Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
GERBER, J.
Juan Arrieta-Rolon (the "defendant") appeals his conviction for first-degree murder. He argues that the trial court erred by admitting into evidence, as excited utterances, hearsay statements which a witness gave to a police officer at the scene. We agree with the defendant that the statements were not excited utterances. However, the state has shown beyond a reasonable doubt that the statements, which merely corroborated the witness's trial testimony, did not affect the verdict. Therefore, we affirm.
The defendant and his girlfriend, Janaina, were sitting outside of his apartment complex along with Janaina's friend, Fernanda, who lived in another unit. Janaina said something which upset the defendant. Fernanda never had seen the defendant so upset. The defendant said he was going home and left. Ten or fifteen minutes later, the defendant returned and put a gun to Janaina's face. The defendant asked Janaina, "Don't you think I have courage?" Janaina did not reach up to touch or block the gun. The defendant pulled the trigger, and Janaina fell to the ground.
Fernanda ran to a neighbor's unit. The neighbor observed Fernanda was crying. Fernanda said the defendant killed her friend, and she wanted to call her mother. She reached her brother and told him to call 911. Fernanda then ran into the parking lot and asked a driver to stop. The driver observed Fernanda was "[v]ery nervous and crying a lot." Fernanda said her friend was hurt, and she asked the driver to call 911.
Fernanda then returned to the scene. The defendant was holding Janaina. The defendant said, "Please tell them that it was not me." He said he did not want to do it, and it was an accident. He said he wanted to scare Janaina, not kill her. Fernanda and the defendant stayed there until the police arrived about twenty minutes later.
Fernanda testified that, when the police arrived, she initially told the police that she did not know who shot Janaina, and that the bullet came from someplace else. She testified she made this initial statement because the defendant was standing nearby, and she was scared he "was going to do something against me." She testified that about ten minutes later, when the police separated them, she told the police the truth.
The officer who separately spoke to Fernanda testified later in the trial. He stated that, when he initially approached Fernanda, she was upset and crying. She said that she did not know who shot Janaina. When the officer testified that Fernanda was concerned about the defendant standing nearby, and that she did not want him to hear what she was saying, the defendant objected as to hearsay. The state agreed it was hearsay, but argued the excited utterance exception applied. The trial court required the state to have the officer lay a predicate as to Fernanda being upset and crying. After the officer did so, the trial court overruled the objection. The officer then testified that he put Fernanda in his patrol car. When the state asked the officer what Fernanda said in the car, the defendant made another hearsay objection. The state argued Fernanda's response would be another excited utterance. The trial court overruled the objection. The officer then testified Fernanda said "what happened to her friend could happen to her."
*126 The jury found the defendant guilty. This appeal followed. The defendant argues the trial court erred in finding that Fernanda's statements to the officer were excited utterances. According to the defendant, the state presented no evidence that Fernanda still was under the stress of excitement from the shooting at the time of the statements. The defendant adds that Fernanda had time for reflection because she gave the police two different versions of how the shooting occurred. The defendant also argues the state cannot prove the error was harmless. According to the defendant, the statements bolstered the state's case that he murdered Janaina with premeditation, destroyed his credibility, and contradicted his only defense that the shooting was a tragic accident. The defendant also contends the state compounded the error during closing arguments by referring to the statements.
Section 90.803(2), Florida Statutes (2008), provides that "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is not inadmissible. The determination of whether a statement is an excited utterance "involves a factual finding by a trial court, which is reviewed under the abuse of discretion standard." Vanevery v. State, 980 So.2d 1105, 1107 (Fla. 4th DCA 2008). "In order for a statement to qualify as an excited utterance exception to the hearsay rule pursuant to section 90.803(2) ... the statement must be made: (1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event." Hayward v. State, 24 So.3d 17, 29 (Fla.2009) (internal citations and quotations omitted).
As to the first prong, Fernanda's statements were related to the shooting, which obviously was an event startling enough to cause nervous excitement. See id. ("It is not necessary that the statement illustrate the startling event; it is enough that the statement relate to the event."). As to the second and third prongs, the supreme court has held:
[W]hile an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection. The statement must be made without time for reflective thought because it is the lack of time to contrive or misrepresent the facts that provides the reliability for such statements.... [T]he test regarding the time elapsed is not a bright-line rule of hours or minutes.... [T]he [f]actors that the trial judge can consider in determining whether the necessary state of stress or excitement is present are the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements.
Id. (internal citations and quotations omitted).
Here, the trial court overruled the defendant's objections without expressing whether it had considered those factors. Our review of the record indicates that Fernanda was eighteen when the shooting occurred, though we cannot say her age was significant. The record also suggests that Fernanda was under greater stress immediately after the shooting than she was after the police arrived. That is, immediately after the shooting, she ran away, frantically crying and searching for help. She then returned to the scene. When the police arrived twenty minutes later, she was still upset. But she told the police a false version of how the shooting occurred before asking to be moved away from the *127 defendant. Only after being put in the police car did she indicate that the defendant was the shooter. Such circumstances demonstrate that Fernanda had the time for reflective thought. Thus, her statements to the police were not excited utterances.
Cases with similar facts support our conclusion. See, e.g., Evans v. State, 838 So.2d 1090, 1093-94 (Fla.2002) (witnesses' statements were not excited utterances where the witnesses initially told the police that the victim was shot by a man driving by and only after new officers arrived and significant time had elapsed did the witnesses identify the defendant as the shooter); Elysee v. State, 920 So.2d 1205, 1207-08 (Fla. 4th DCA 2006) (victim's statement was not an excited utterance where the victim initially told an officer that the defendant was taking her home, but fifteen to twenty minutes later, asked to speak with the officer alone and told him that the defendant had attempted sexual battery upon her; even though the victim appeared visibly upset, the victim had engaged in reflective thought).
Although the trial court erred in finding Fernanda's statements to the officer to be excited utterances, we find the error was harmless. In its answer brief, the state has proven beyond a reasonable doubt there is no reasonable possibility that the error contributed to the conviction. See Ventura v. State, 29 So.3d 1086 (Fla.2010) (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986)) ("The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.") (emphasis added in Ventura).
Among other arguments, the state has shown that Fernanda's statements to the officer merely corroborated Fernanda's trial testimony that Fernanda was afraid of the defendant after the shooting occurred and that the defendant was the shooter. Because of this corroboration, the error in admitting Fernanda's statements to the officer was harmless. See Hojan v. State, 3 So.3d 1204, 1210 (Fla. 2009) ("[W]here the evidence introduced in error was not the only evidence on the issue to which the improper evidence related, the introduction can be harmless."); Esteban v. State, 967 So.2d 1095, 1099 (Fla. 4th DCA 2007) (trial court committed harmless error in allowing a witness to testify that the victim stated she knew her attacker, where the witness's testimony was merely cumulative to the victim's testimony); Erickson v. State, 565 So.2d 328, 334 (Fla. 4th DCA 1990) ("It is well settled that even incorrectly admitted evidence is deemed harmless and may not be grounds for reversal when it is essentially the same as or merely corroborative of other properly considered testimony at trial."). Cf. Mariano v. State, 933 So.2d 111, 117 (Fla. 4th DCA 2006) (trial court's error admitting hearsay was not harmless where the victim's statement relayed by one witness went beyond the victim's statements relayed by other witnesses and were inconsistent with the victim's trial testimony); but see Elysee, 920 So.2d at 1208 ("Allowing the officer to bolster the credibility of the victim, who was the only witness to the crime, with her prior consistent statements, was prejudicial.").
Because the error in admitting Fernanda's statements to the officer was harmless, we affirm the defendant's conviction.
Affirmed.
TAYLOR and LEVINE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555158/ | 46 F.Supp. 531 (1942)
SCHMALSTIG et al.
v.
CONNER, Collector of Internal Revenue.
Civil No. 332.
District Court, S. D. Ohio, W. D.
August 21, 1942.
*532 Murray Seasongood, Bert H. Long, and Harry Stickney, all of Cincinnati, Ohio (Paxton & Seasongood, of Cincinnati, Ohio, of counsel), for plaintiffs.
Samuel O. Clark, Jr., Asst. Atty. Gen., Andrew D. Sharpe and Carl J. Marold, Sp. Assts. to Atty. Gen., and Calvin Crawford, U. S. Atty., and Frederic W. Johnson, Asst. U. S. Atty., both of Cincinnati, Ohio, for defendant.
DRUFFEL, District Judge.
Plaintiffs bring their action against defendant seeking a refund of $34,817.42 with interest alleging that the same was erroneously and illegally assessed and collected by reason of the fact that the sum so paid was computed and paid on a net estate subject to tax without allowance of administration expenses of $118,012.67 for attorney fees, contrary to the provisions of Section 303 of the Revenue Act of 1926, Section 812 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev. Code § 812.
The cause was submitted on agreed stipulation of facts after argument. It appears that the last will and testament of Charles Schmalstig was admitted to probate and record in the Probate Court of Hamilton County, Ohio, on August 29, 1935. The will, after providing for certain bequests to charities and cash legacies aggregating $7,500, directed that the residue should pass to Julius M. Schmalstig and Charles F. Blum in trust for the life of the decedent's nieces and nephews and their children and grandchildren living at the decedent's death and for 21 years after the death of the last survivors of the persons named, subject to other qualifying and contingent clauses.
Subsequently Margaretha M. Rudolph, one of fourteen beneficiaries under the will, made demand of the executors of the estate to bring an action under the provisions of Ohio General Code, Section 10504-66, for construction of the will and for instructions seeking the direction and judgment of the Court as to whom distribution should be made, and the executors having failed to bring the action requested, Margaretha M. Rudolph brought an action in the Common Pleas Court of Hamilton County on behalf of herself and others interested in the estate to construe the will and have instructions as to the distribution thereof. In that action, Rudolph v. Schmalstig, 4 Ohio Supp. 58, the Common Pleas Court held the trust provisions of the decedent's will were invalid for the reason that the legal title of the trustees is an executory interest contingent upon the determination of an implied trust, which contingency being for an indefinite period of time may cause the legal title of the said trustees to vest too remotely in violation of the Rule of Perpetuities and ordered distribution of the residuary estate to the fourteen heirs.
From the decision of the Court of Common Pleas, plaintiffs, as executors and trustees, appealed. Thereafter, on motion of appellants, and with the concurrence of the other interested parties, the appeal was dismissed. An application was then filed in the Probate Court by Margaretha M. Rudolph and others asking the court for an order directing payment of compensation to their counsel, James A. McDonald and his associates, out of the estate of Charles Schmalstig, deceased, for valuable services rendered the estate in the action to construe the will and to determine the principles of law for the administration and settlement of the estate. Among other things, the application recited that the heirs at law of Charles Schmalstig, deceased, were desirous of discontinuing said proceedings on appeal; to have distribution made according to law as soon as expedient, and that after negotiations Julius M. Schmalstig and Charles F. Blum, as executors and as agents of all the heirs other than these applicants, agreed to pay to James A. McDonald for his services and others employed by him, 7½% of the residue of the estate of Charles Schmalstig less all debts, costs of administration, etc. The court upon consideration found the application well taken and authorized and directed the executors to pay to James A. McDonald and his associates fees amounting to $118,012.67, which was on the basis of 7½% of the residue of the estate.
In the computation of the estate tax defendant held this sum not to be deductible as an administration expense. So that the sole issue for determination here is whether or not the fee in question is an administration expense within the meaning of Section 303 (a) (1) of the Revenue Act of 1926 as amended by Section 805 of the Revenue Act of 1932 and Section 403 (a) of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev. Acts, page 232. The pertinent parts of the section provide:
"For the purpose of the tax the value of the net estate shall be determined
*533 "(a) In the case of a citizen or resident of the United States, by deducting from the value of the gross estate
"(1) Such amounts * * *
"(B) for administration expenses * * * as are allowed by laws of the jurisdiction * * * under which the estate is being administered, * * *."
Thus Congress by this statute imposed only two restrictions: First, that the deductions fall within the class of administration expenses or claims against the estate; and, second, that they must be such as are allowable under the law of the jurisdiction under which the estate is being administered.
Defendant contends that the services were not rendered on behalf of the estate but in behalf of certain individual legatees and were not properly chargeable as administrative expenses under the laws of the State of Ohio, and in the alternative, if the fee was an administration expense, it was unreasonably high.
From the many authorities furnished by counsel, but a few need be noted. Counsel for defendant suggest that the only case upon which plaintiffs rely which even remotely approaches the facts of this case is Neff v. Neff, 13 Ohio Dec.Reprint 287, 2 Disn. 468. There it was held that attorneys' fees for both parties in a suit for construction of a will could be charged against the fund held by the court. Counsel then say it is doubtful whether this case is still the law in view of the decision of the Court of Appeals in Schreiner v. Cincinnati Altenheim, 63 Ohio App. 42, 25 N.E.2d 296, decided November 20, 1939, a case involving attorney fees in a will construction case. An examination of the opinion in the Schreiner case reveals the fact that the Neff case was not considered. On the other hand, in Fifth-Third Union Trust Co. v. Davis et al., 55 Ohio App. 377, page 387, 10 N.E.2d 4, 8, decided July 6, 1936, the same court which decided the Schreiner case had this to say: "The only Ohio case on the point is that of Neff v. Neff, 13 Ohio Dec.Reprint 287, 2 Disn. 468, by the superior court of Cincinnati, which always occupied a high position in the estimation of the legal profession. The case squarely holds that the court has jurisdiction to award compensation to defendant's counsel for services in an action to construe a will creating a trust. The authorities cited by the court sustain its conclusion."
From this it would appear that the law of the Neff case is still the law of the jurisdiction in which the Schmalstig estate is being administered, particularly in view of the fact that judgments of the Courts of Appeals shall be final in all cases (except in certain cases not involved here). Art. IV, Sec. 6, Ohio Constitution.
Thus it would seem that the Probate Court was obliged to consider the application for fees in the will construction case and had ample legal authority for making the allowance of the fee in issue here.
Article 30 of the Federal Estate Tax regulations reads in part as follows: "Effect of court decree. The decision of a local court as to the amount of a claim or administration expense will ordinarily be accepted if the court passes upon the facts upon which deductibility depends. * * * It must appear that the court actually passed upon the merits of the case. This will be presumed in all cases of an active and genuine contest. * * *"
A careful examination of the entire record fails to disclose anything out of the ordinary. The record definitely shows that the court upon consideration found the application well taken following an agreement with the executors and all of the heirs, except one, who reserved his exception and gave notice of appeal. The fee was a substantial one as was the estate.
In the absence of effective evidence that the fees were unreasonably high, this court is without authority to interfere with the decision of the Probate Court. The fact that the heirs benefited by receiving the residuary estate instead of the income therefrom does not alter the case. The distribution merely followed the decision of a court of competent jurisdiction in an action provided by the statute law of Ohio. The further fact that the suit to construe the will, etc., was necessary is evidenced by the well considered opinion of the Common Pleas Court holding that the will violated the Ohio law against perpetuities.
In consideration of the foregoing this court has no alternative but to find as a matter of fact that the fee in question was an administration expense fixed and allowed by a court of competent jurisdiction and is properly deductible as such, and concludes that plaintiffs are entitled to recover in accordance with their complaint. Exceptions to defendant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1558307/ | 224 F.Supp. 15 (1963)
Mary E. SEEBACH, Plaintiff,
v.
Joseph M. CULLEN, District Director, Bureau of Internal Revenue, San Francisco, et al., Defendants.
No. 41406.
United States District Court N. D. California, S. D.
November 1, 1963.
*16 Oliphant, Hopper & Stribling, Oakland, Cal., for plaintiff.
Cecil F. Poole, U. S. Atty., San Francisco, Cal., for defendants.
SWEIGERT, District Judge.
The case is before the Court on a motion for summary judgment by defendant Cullen, District Director, Bureau of Internal Revenue, San Francisco, California; defendant Macy, Chairman of the United States Civil Service Commission; and defendant Lawton, a member of said Commission.
Plaintiff's complaint, invoking jurisdiction under 28 U.S.C. Sec. 1361, alleges in substance that plaintiff, who resides in this judicial district and who had been a civil service employee of the Bureau of Internal Revenue Service since 1935, was wrongfully discharged from her position.
The following facts are uncontroverted:
On October 7, 1960, defendant Cullen informed plaintiff by a letter that her performance rating was being withheld due to the existence of some questions concerning her work performance. Cullen directed plaintiff to report to the United States Public Health Service for an examination. As a result of that examination, plaintiff was placed on sick leave on October 18, 1960. On November 9, 1960, the Bureau filed an application for disability retirement on plaintiff's behalf. After two appeals and a reexamination of plaintiff, the Board of Appeals and Review of the Civil Service Commission on January 5, 1962, denied the agency application for disability retirement.
During this period, plaintiff's annual and sick leave was exhausted. As of June 19, 1961, the Bureau placed plaintiff on leave-without-pay status, pending the final decision on the disability retirement application, then pending before the Board. Plaintiff's appeal of this action was denied on November 30, 1962.
After the Board's denial of the agency's application for disability retirement for plaintiff, plaintiff returned to duty on February 19, 1962. On the same day, defendant Cullen notified plaintiff by letter of her proposed removal on charges of inefficiency in the handling of assigned tax cases and emotional instability. On May 11, 1962, plaintiff was removed from Federal service and on May 15, 1962, plaintiff appealed the removal to the San Francisco Region of the Civil Service Commission. After an adverse decision from the San Francisco Region, plaintiff appealed to the Board of Appeals and Review, which again affirmed the action.
Plaintiff, in opposing defendant's motion for summary judgment, contends that there are genuine issues of material facts with respect to the following issues:
(1) Whether defendant Cullen and others entered into a conspiracy to have plaintiff either retired or discharged as a governmental employee;
(2) Whether defendant Cullen illegally and without just cause placed plaintiff on sick and annual leave;
(3) Whether any alleged misconduct which took place when plaintiff received "good" or better, or "satisfactory" efficiency ratings, could be made the basis of any charge against plaintiff;
(4) Whether any of the alleged instances of misconduct charged against plaintiff by the letter of February 19, 1962, were specific and in detail as required by 5 U.S.C. § 652;
(5) Whether defendant Cullen in the written notice dismissing plaintiff from her position made the findings required by 5 U.S.C. § 652;
(6) Whether plaintiff ever received any notification as required by law of inefficiency in her work and whether she ever received a 90-day warning letter requiring her to improve her work, as required by law;
(7) Whether defendant Cullen acted arbitrarily and capriciously in dismissing plaintiff from her Government position.
*17 JURISDICTION OF THE COURT
Under 28 U.S.C. § 1361, enacted October 5, 1962, the District Court has original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. Such a suit may be brought in the judicial district in which the plaintiff resides. 28 U.S.C. § 1391 (e).
Title 28 U.S.C. § 1361 was enacted in order to make it possible to sue government officials and agencies in actions which previously could only have been brought in the United States District Court for the District of Columbia. Although the purpose of the statute is to confer jurisdiction on district courts to compel a Government official or agency to perform a duty owed to the plaintiff or to make a decision, the statute does not confer jurisdiction to direct or influence the exercise of discretion of the officer or agency in the making of a decision. The statute neither creates new liabilities nor new causes of action against the United States Government, nor does it give access to the District Courts for an action which previously could not have been brought against a Federal official in the United States District Court for the District of Columbia. Senate Report No. 1992, 2 U.S.Code Cong. & Adm. News, pp. 2784-2787 (87th Cong., 2d Sess., 1962).
The rule in cases of employee removal, which are almost entirely matters of executive agency discretion, both prior to and following the enactment of Sec. 1361, is that judicial review is limited to a determination of whether there has been a substantial compliance with the pertinent statutory procedures and no misconstruction of governing legislation. So long as there is substantial compliance with applicable procedures and statutes, the administrative determination is not reviewable as to the wisdom or good judgment used in the exercise of discretion. Eustace v. Day, 114 U.S.App.D.C. 242, 314 F.2d 247 (1962); Hargett v. Summerfield, 100 U.S.App.D.C. 85, 243 F.2d 29, 32 (1957), and cases cited therein.
This rule of limited judicial review and the legislative history of 28 U.S.C. § 1361 clearly shows that the jurisdiction of the Court in the case at bar is limited to ascertaining whether defendants substantially complied with the applicable procedures and statutes.
THE ISSUE OF SUBSTANTIAL COMPLIANCE
The Lloyd-LaFollette Act, as amended, 5 U.S.C. § 652, provides that no person in the classified civil service of the United States shall be removed or suspended without pay except for such cause as will promote the efficiency of such service and for reasons given in writing. Any person whose removal or suspension without pay is sought shall (1) have notice of the same and of any charges preferred against him; (2) be furnished with a copy of such charges; (3) be allowed a reasonable time for filing a written answer to such charges with affidavits; and (4) be furnished at the earliest practicable date with a written decision on such answer. However, no examination of witnesses nor any trial or hearing is required except in the discretion of the officer or employee directing the removal or suspension without pay.
Plaintiff contends that defendant Cullen's written charges dated February 19, 1962, were not specific; that Cullen did not specifically find in his decision, dated May 8, 1962, that plaintiff's discharge was for such cause as would promote the efficiency of the service; and that, therefore, defendant Cullen has not complied with the requirements of Sec. 652.
However, the letter dated February 19, 1962, containing defendant's written charges, filed as Exhibit A to plaintiff's complaint, covers 16 pages and is replete with numerous, specific examples relating to the charges of emotional instability and inefficiency. The Court holds *18 that the letter provided plaintiff with specific, written charges as required by Section 652.
Further, the letter of defendant Cullen, dated May 8, 1962, officially notifying plaintiff of her removal, specifically states that the action to remove plaintiff "is for such cause as will promote the efficiency of the Service." The Court concludes that the letter, dated May 8, 1962, discharging plaintiff also complies with the requirements of Section 652.
The record also establishes that defendant complied with the applicable regulations and statutes in placing plaintiff on sick and annual leave.
As to plaintiff's contentions concerning the fact that she received satisfactory efficiency ratings during the period of misconduct charged in the letter dated February 19, 1962, and that she did not receive a 90-day notice of a proposed unsatisfactory efficiency rating, as required by 5 U.S.C. § 2005, it is clear that, while an employee's ordinary overall performance of duties throughout the rating period may be rated as satisfactory under the Performance Rating Act of 1950, 5 U.S.C. § 2001 et seq., such an employee may still be subject to dismissal in the interest of promoting the efficiency of the service under the more summary procedures authorized by 5 U.S.C. § 652. Thomas v. Ward, 96 U.S.App.D.C. 302, 225 F.2d 953 (1955), cert. denied 350 U. S. 958, 76 S.Ct. 348, 100 L.Ed. 833 (1955); De Fino v. McNamara, 109 U. S.App.D.C. 300, 287 F.2d 339 (D.C.Cir. 1961), cert. denied 366 U.S. 976, 81 S.Ct. 1947, 6 L.Ed. 1265 (1961); cf. Jones v. Hobby, 96 U.S.App.D.C. 53, 223 F.2d 345 (1955).
Accordingly, the Court concludes that there are no genuine issues of material fact; that the uncontroverted record before the Court establishes that defendants substantially complied with the applicable statutes and regulations; and that, therefore, defendants' motion for summary judgment should be, and hereby is, granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623836/ | 360 S.W.2d 71 (1962)
INTERSTATE LIFE & ACCIDENT INSURANCE CO., Plaintiff in Error,
v.
Mary HOUSTON, Defendant in Error.
Court of Appeals of Tennessee, Western Section.
June 29, 1962.
Certiorari Denied September 7, 1962.
Edward P. Russell, Jr., Memphis, Canada, Russell & Turner, Memphis, of counsel, for appellant.
Harry U. Scruggs, Jr., Memphis, Riley, Pritchard & Scruggs, Memphis, of counsel, for appellee.
Certiorari Denied by Supreme Court September 7, 1962.
BEJACH, J.
The sole question involved on this appeal from the Circuit Court of Shelby County is whether or not the appellant, Interstate Life & Accident Insurance Company, should be held liable to appellee, Mary Houston, for hospitalization from December 12, 1959 to March 11, 1960, under a policy which contains the following exception: "No benefits will be paid for hospitalization: (4) resulting from insanity."
For convenience, the parties will be referred to as plaintiff and defendant, Mary Houston having been the plaintiff in the lower court, and Interstate Life & Accident Insurance Co., the defendant.
The Circuit Court judge held the defendant liable and entered judgment against it for $1,000.25, from which judgment the defendant has appealed to this court. The cause was tried in the lower court without the intervention of a jury. The plaintiff, Mary Houston, a colored woman, about 46 years old, was employed by Mr. and Mrs. Jack L. Erb of Memphis, Tennessee, as cook and nurse. She had been so employed for about eleven years. She lived in the servants' quarters of their home place. Plaintiff was taken ill during the month of December 1959, and on December 22, 1959 she was hospitalized at the John Gaston Hospital, where she remained in the psychiatric ward of that hospital until January 4, 1960, at which time, she was removed to Gailor Psychiatric Hospital where she remained until March 11, 1960.
Plaintiff testified in her own behalf, and introduced three other witnesses, Mr. Jack L. Erb, her employer, Ed Houston, her husband, and Frank Bailey, her brother. The defendant introduced three witnesses, Mrs. *72 Virginia Harper, keeper of the records at John Gaston Hospital, Augustine Davidson, keeper of the records at Gailor Psychiatric Hospital, and Dr. Edward R. Seiler, Senior Resident at Gailor Psychiatric Hospital, the last named of whom testified by deposition.
Plaintiff testified that she remembered going to the hospital, that she was taken there by her husband and her brother-in-law, and that she told them at the hospital that she was "nervous and tired". Mr. Erb testified that Mary was ill, and that he advised taking her to the hospital. He said, "She was ill your Honor, but we didn't know, or couldn't formulate, in our opinions, exactly what was Mary's trouble." When he was asked whether he could classify his employee's illness as "an organic illness or mental illness", he answered that he was not able to classify the illness.
Ed Houston, plaintiff's husband, testified that Mary, "Just taken sick", "I didn't know what was wrong so I called Mr. Erb and then they told me to take her to the hospital." * * *. "Just something unusual, I had never seen her act like that."
Frank Bailey, plaintiff's brother, testified that Mary frequently visited his home on weekends at Oakville, Tennessee, and that she appeared to be all right on those occasions. He accompanied plaintiff to John Gaston Hospital when she was admitted December 22, 1959, and stated with reference to that, that he thought she had a "nervous breakdown".
Dr. Edward R. Seiler, Senior Resident in Psychiatry at Gailor Psychiatric Hospital, testified that he saw plaintiff every other day while she was in Gailor Psychiatric Hospital. He said that his diagnosis of plaintiff's illness was "schizophrenic reaction, paranoid type". He defined schizophrenic reaction as "a loss of contact with reality, inability to think clearly, loss in trend of associations of thought, feelings of persecution." A paranoid, he said, "feels that he or she is being persecuted." Dr. Seiler said that from a psychiatric standpoint, the word "insanity" was previously used to include a wide variety of the more serious mental illnesses, especially psychosis. He said, however, that the term "sane" or "insane" is not used now in psychiatry, but that the divisions of psychiatry now are "neuroses and psychoses." He said that psychosis is a serious mental illness, and that plaintiff was seriously ill mentally. He said that psychosis embraces the more serious mental illnesses, one of which is schizophrenia, and that Mary Houston would be insane if that word were used to mean a severe mental illness. He said that when Mary Houston was first admitted to Gailor Psychiatric Hospital she was kept in a locked room, that she thought she was God, thought she had been crucified, thought people were taking babies away from her, that she was very disturbed, unmanageable, used profane language, and would not keep her clothes on, that she thought she was going to have a baby when she was not pregnant and had been through her menopause, thought people were going to take her children away, and had fits of crying and laughter.
Since the policy sued on in this cause expressly excludes payments for hospitalization "resulting from insanity", the question for us to decide, which is determinative of this law suit, is whether or not plaintiff's hospitalization from December 22, 1959 to March 11, 1960, resulted from insanity, within the meaning of the policy. Webster's New International Dictionary, General Edition, defines insanity as follows:
"1. State of being insane; unsoundness or derangement of mind; madness; lunacy. Insanity takes so many forms that a satisfactory rigid or narrow definition cannot be made. It may be congenital, as idiocy (which see), or acquired. It does not include certain states of transitory mental disorder, such as trances, epilepsy, hysteria, delirium, etc. The four principal types are melancholia, mania, delusion insanity, and dementia. Insanity may be due to defective development, acquired disease, or natural decay.
*73 "`All power of fancy over reason is a degree of insanity.' Johnson.
"2. For legal purposes, as sometimes essentially defined: Such unsoundness of mental condition as, with regard to any matter under action, modifies or does away with individual legal responsibility or capacity, criminal or civil, differs from that by which insanity is determined for medical or psychological purposes, with the result that various conditions which are medically recognized as insane are not considered as doing away with legal responsibility or capacity. The rule which has been generally followed in criminal cases in Great Britain and the United States is that laid down in McNaughton's Case (10 Cl. and Fin. 200) as follows: `To establish a defense on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the party accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know, that he did not know he was doing what was wrong.'
"This rule does not absolve from criminal responsibility for acts done under the influence of an uncontrollable impulse, if the actor knows that the act done is morally wrong; but there is a tendency to recognize such an impulse as a sufficient defense in such a case as is done in some of the United States and in South Africa. The nature and degree of insanity required to affect a person's civil capacity varies with the nature of the case, the general test being as to whether with respect to the matter in hand, the person can act rationally, understanding the nature of his act and the natural consequences of it in affecting his rights, obligations and liabilities.
"3. Extravagant foolishness or folly or an example of it. Syn. Insanity, lunacy, madness, derangement, alienation, mania, delirium, frenzy, monomania, dementia."
Black's Law Dictionary defines insanity as follows:
"Unsoundness of mind; madness; mental alienation or derangement; a morbid psychic condition resulting from disorder of the brain, whether arising from malformation or defective organization or morbid processes affecting the brain primarily or diseased states of the general system implicating it secondarily, which involves the intellect, the emotions, the will, and the moral sense, or some of these faculties, and which is characterized especially by their non-development, derangement, or perversion, and is manifested, in most forms by delusions, incapacity to reason or to judge, or by uncontrollable impulses. In law, such a want of reason, memory, and intelligence as prevents a man from comprehending the nature and consequences of his acts or from distinguishing between right and wrong conduct. Crosswell v. People, 13 Mich. 427, 87 Am. Dec. 774; Johnson v. [Maine & N.B.] Ins. Co., 83 Me. 182, 22 A. 107; Frazer v. Frazer, 2 Del. Ch. [260] 263.
"`Insanity' does not include certain states of transitory mental disorder, such as trances, epilepsy, hysteria, and delirium. Martin v. Fraternal Reserve Life Ass'n, 200 Ill. App. 359, 364, and from both the pathologic and the legal definitions are to be excluded temporary mental aberrations caused by or accompanying alcoholic or other intoxication and the delirium of fever.
"The distinction between the medical and the legal idea of insanity has, perhaps, not been better stated than by Ray, who is quoted by Ordronaux, and again by Witthaus & Becker: `Insanity in medicine has to do with a prolonged departure of the individual from his natural mental state arising from bodily disease.' `Insanity in law covers *74 nothing more than the relation of the person and the particular act which is the subject of judicial investigation. The legal problem must resolve itself into the inquiry, whether there was mental capacity and moral freedom to do or abstain from doing the particular act.' 1 Whitth. & Beck. Med. Jur. 181; U.S. v. Faulkner, D.C. Tex., 35 F. 730."
His Honor, the trial judge, was of opinion "that insanity means a complete condition of derangement as distinguished from mental illness;" and he concluded, therefore, that the plaintiff was merely suffering from a a mental disease, which did not disentitle her to recovery in the instant case. We cannot agree with this conclusion of the learned judge.
In the first place, since the insurance contract is not ambiguous, it is the duty of the courts to apply the words used in their ordinary meaning, and neither party is to be favored in that construction. Brown v. Tennessee Auto. Ins. Co., 192 Tenn. 60, 237 S.W. (2d) 553; Wallace v. State Farm Mutual Auto. Ins. Co., 187 Tenn. 692, 216 S.W. (2d) 697; Gilmore v. Continental Cas. Co., 188 Tenn. 588, 221 S.W. (2d) 814; Bowlin v. State Farm Mut. Auto. Ins. Co., 46 Tenn. App. 260, 327 S.W. (2d) 66. From the opinion of the Supreme Court, written by Mr. Justice Burnett in Wallace v. State Farm Mutual Auto. Ins. Co., we quote as follows:
"There is no ambiguity in the language used in the policy before us. Where the insurance contract is not ambiguous it is our duty to apply to the words used their ordinary meaning and neither party is to be favored in their construction. Seay v. Georgia Life Ins. Co., 132 Tenn. 673, 179 S.W. 312, Ann. Cas. 1916E, 1157. The well recognized rule of construing language of an insurance policy most strongly against the insurance company (the one who writes the policy), Pacific Mutual Life Insurance Co. v. Galbraith, 115 Tenn. 471, 91 S.W. 204, 112 Am. St. Rep. 862, does no permit us or cause us to create an ambiguity where none exists." Wallace v. State Farm Ins. Co., 187 Tenn. 692, 701, 216 S.W. (2d) 697.
In Gilmore v. Continental Casualty Cas. Co., Mr. Justice Gailor, speaking for the Supreme Court, said:
"It is a familiar principle of construction that if the actual language and provisions of the document are plain and clear and are devoid of contradiction or any affirmative ambiguity, there is no judicial duty but to give the language its usual and ordinary meaning. Hickman v. Wright, 141 Tenn. 412, 210 S.W. 447; Moore v. Life & Casualty Ins. Co., 162 Tenn. 682, 40 S.W. (2d) 403; Inman v. Life & Casualty Ins. Co., 164 Tenn. 12, 45 S.W. (2d) 1073; United States Stove Corp., for Use and Benefit of Henderson v. Aetna Life Ins. Co., 169 Tenn. 264, 84 S.W. (2d) 582."
In Brown v. Tennessee Auto. Insurance Co., Mr. Justice Prewitt, now Chief Justice, speaking for the Supreme Court, said:
"The policy in question is a standard form and there is no ambiguity whatever in the endorsement or rider. Where there is no ambiguity, it is the duty of the Court to apply to the words used their ordinary meaning and neither party is to be favored in their construction. The well recognized rule of construing language of an insurance policy most strongly against the insurance company does not permit or cause the court to create an ambiguity where none exists. Wallace v. State Farm Mut. Auto. Ins. Co., 187 Tenn. 692, 701, 216 S.W. (2d) 697." Brown v. Tennessee Auto. Ins. Co., 192 Tenn. 60, 63, 237 S.W. (2d) 553.
In Bowlin v. State Farm Mutual Automobile Insurance Co., Howard, J., speaking *75 for the Court of Appeals, Eastern Section, said:
"In Standard Life Ins. Co. v. Hughes, [203] Tenn. [636], 315 S.W. (2d) 239, 243, our Supreme Court quoted with approval from Murphey v. Inter-Ocean Casualty Co., 98 Ind. App. 668, 186 N.E. 902, wherein the Indiana court said:
"`Generally speaking, an exclusion clause cannot be used to create liability where none would otherwise exist. While we recognize and adhere to the rule that insurance contracts which are reasonably subject to conflicting interpretations are strictly construed against the insurer, yet, the construction should be a fair and reasonable one, and such as will be in accord with the language used in the contract itself. It does not seem reasonable that the parties to the contract intended or understood that, by the exclusion of injuries sustained under certain conditions, liability should be incurred if the insured was injured or killed while at a place where the insuring clause did not cover him.'
"The rule is well settled that where there is no ambiguity, it is the duty of the Court to apply to the words used their ordinary meaning, and neither party is to be favored in their construction. Brown v. Tennessee Auto. Ins. Co., 192 Tenn. 60, 237 S.W. (2) 553. Nor will the Court create an ambiguity where none exists. Wallace v. State Farm Mutual Automobile Ins. Co., 187 Tenn. 692, 216 S.W. (2d) 697." Bowlin v. State Farm Mutual Auto. Ins. Co., 46 Tenn. App. 260, 263-264, 327 S.W. (2d) 66.
Tried by the test of the above quoted authorities, it is our opinion that there is no ambiguity in the policy involved in the instant case, and that the hospitalization of plaintiff resulted from insanity, and, consequently, that defendant is not liable on the claim sued for. We agree with the contention of counsel for defendant, as set out in his brief, that industrial policies such as that here involved, must be written in language understandable to the policy holder; and that he understands (or should understand), that insanity is an illness treated by psychiatrists, which relates to the malfunction of the mind, as distinguished from illness of and injury to the body.
In the second place, we think that the learned trial judge should have been controlled in his decision by the testimony of Dr. Edward R. Seiler, the psychiatrist at Gailor Psychiatric Hospital, who saw plaintiff every other day while she was in that hospital, and whose diagnosis should have been controlling to the exclusion of the testimony of plaintiff's lay witnesses who had no similar opportunity for observing her during that period of time, and whose testimony is not really in conflict with that of Dr. Seiler. Under decisions of our court, if there had been a jury, it would have been the duty of the trial judge to grant a peremptory instruction in favor of the defendant. Since there was no jury in the instant case, it comes to us under the provisions of section 27-303, T.C.A. for trial de novo, with a presumption of the correctness of the judgment of the trial court, unless the preponderance of the evidence is otherwise. We think that the clear preponderance of the evidence is with the defendant.
In the case of American National Insurance Co. v. Smith, 18 Tenn. App. 222, 74 S.W. (2d) 1078, the Court of Appeals, Eastern Section, reversed and dismissed a case where plaintiff had recovered on an industrial insurance policy which "contained a provision that no obligation was assumed by the company unless on the date thereof, September 7, 1931, the insured was alive and in sound health." The defense made was that the insured was not in sound health on said date, the insured having died on September 14, 1931 of peritonitis resulting from a gastric ulcer, and consequently that the insured was seriously afflicted with the ulcer on September 7, 1931, and therefore, was not in sound health on that date. Witnessees *76 for plaintiff had testified that he appeared to be in good health, but the Court of Appeals, speaking through DeWitt, J., said:
"There is no conflict among the expert witnesses as to this fact of unsound health at the date of the policy. Dr. Rule, an expert introduced by the plaintiff testified on cross examination that the pathological condition the ulcer must have existed before the rupture, or puncture, although the patient did not know of it; and that one in the condition of the insured at the time of the operation must have had an unsound condition in his stomach for a considerable time theretofore. He testified that such rupture might result from any violent exercise, such as pushing a lawn mower, and that eating rough food, like a green pear, would have a tendency to cause an aggravation of the trouble, might be a causative factor. But the question does not depend upon the time or immediate cause of the rupture but upon the existence, at the date of the policy, of the ulcerated condition as constituting an unsound condition of health. This question did not lie within the common observation and experience of laymen. Looking alone to the lay testimony relied upon to support the verdict, and disregarding all to the contrary positive lay testimony as to the insured's ill health for many antecedent months we are yet unable to treat it as evidence. It is almost wholly negative in character. It is not based upon any result of medical examination or opinion. It rises no higher than the mere evidence of appearance of good health, some physical exertions, failure to complain of illness. It does not conflict with a fact of the existence of a dangerous ulcer on September 7, 1931. It is but the facts which a lay witness details as to such matters, the appearance and conduct which he describes, which chiefly and primarily constitute his testimony as evidence of any substantial value. Fitch v. [American] Trust Co., 4 Tenn. App. 87.
* * * * * *
"Ordinarily, the value of an expert's opinion is for the jury to determine; and this would apply in the instant case to the testimony given in answer to hypothetical questions. But the testimony of certain of these physicians was positive, direct, not mere opinion, as to the existence of the ulcer on the date of the policy. In Bennett v. Fail, 26 Ala. 605, it was held that an opinion of the medical expert as to the length of time a disease has existed, based upon personal examination, should not be discredited by the court by a charge that the testimony of such physician is a matter of opinion only. We deal here with a hidden disease, the very symptoms of which would not be apparent to a layman. When the case concerns a highly specialized branch of medical science, with respect to which a layman could have no knowledge (as to the length of the prior existence of an ulcer which had ruptured), the court must depend upon expert testimony; and, in such case, the absence of substantial evidence to the contrary, it is improper to submit the issue to the jury. Vaughan v. Oliver, 3 Tenn. App. [559] 566; Ewing v. Goode (C.C.) 78 F. 442, 444; Moratzky v. Wirth, 74 Minn. 146, 76 N.W. 1032; Clark v. State, 12 Ohio 483, 40 Am. Dec. 481.
"The testimony of these physicians must therefore be deemed conclusive. The appellate court does not weigh evidence in a cause tried to a jury, according to its preponderance, but must and does determine whether or not the evidence relied on to support the verdict is substantial in itself has fitness to induce conviction. The facts detailed by the lay witnesses in this cause are not after all in conflict with the testimony of the physicians, for they relate only *77 to the external things which existed contemporaneously with the disease.
"The undisputed, material, determinative evidence warrants only the conclusion that Laurence M. Smith was not in sound health at the date of the policy, and therefore there can be no recovery upon the policy." American National Insurance Co. v. Smith, 18 Tenn. App. 222, 227-228, 74 S.W. (2d) 1078.
In Adams v. Manhattan Life Insurance Co., 24 Tenn. App. 171, 141 S.W. (2d) 930, the insurance company defended on the ground that the insured had answered falsely questions in the application as to whether he had been rejected by other insurance companies, whether he had certain diseases, and whether he had been treated by physicians within the past five years; and that this policy was therefore procured by fraud. The lower court's judgment for defendant was affirmed. From the opinion of the Court of Appeals, Middle Section, written by Crownover, J., we quote as follows:
"The uncontroverted evidence is that Adams knew that he had had syphilis and heart disease and had been treated by physicians for both before he signed this application, as he asked the doctor to cure him of these diseases so that he might obtain insurance.
"His wife denied that he had syphilis, gonorrhea, and heart disease, but she did not deny that he had been treated for these diseases. However, her testimony on these diseases is only the testimony of a layman and is not entitled to any weight as against medical expert testimony.
"`We deal here with a hidden disease, the very symptoms of which would not be apparent to a layman. When the case concerns a highly specialized branch of medical science, with respect to which a layman could have no knowledge * * *, the court must depend upon expert testimony; and, in such case, in the absence of substantial evidence to the contrary, it is improper to submit the issue to the jury. Vaughan v. Oliver, 3 Tenn. App. (559), 566; Ewing v. Goode (C.C.) 78 F. 442, 444; Moratzky v. Wirth, 74 Minn. 146, 76 N.W. 1032; Clark v. State, 12 Ohio 483, 40 Am. Dec. 481.' American Nat. Ins. Co. v. Smith, 18 Tenn. App. 222, 227, 228, 74 S.W. (2d) 1078, 1081; Standard Life Ins. Co. v. Strong, 19 Tenn. App. 404, 89 S.W. (2d) 367; National Life & Accident Ins. Co. v. Follett, 168 Tenn. 647, 80 S.W. (2d) 92." Adams v. Manhattan Life Ins. Co., 24 Tenn. App. 171, 141 S.W. (2d) 930.
In the third place, we think the General Assembly of the State of Tennessee has foreclosed the question for us and in favor of the contentions of defendant. Title 33, which deals with "Insane and Mentally Deficient Persons", same being Chapters 1 through 12, sections 33-101 through 33-1214, T.C.A., as same existed in 1957, contained at numerous places therein the terms "insane" and "insanity"; but Chapter 127, Public Acts of 1957, enacted March 8, 1957, amends said title 33 of the Tennessee Code Annotated, sec. 33-100, as follows:
"(a) Wherever the term `insane' shall appear, [in said title] the term `mentally ill' shall be substituted therefor.
"(b) Wherever the terms `insanity' or `lunacy' shall appear, the term `mental illness' shall be substituted therefor."
It thus appears to us that by legislative enactment, the terms "insanity" and "mental illness" are made synonymous with each other. There can be no question on the evidence before us in the instant case, even when taken most strongly in favor of the plaintiff, that the hospitalization of plaintiff, Mary Houston, resulted from mental disease, which, in turn, must be treated as the equivalent of insanity. Such being the case, under the clear and unequivocal *78 terms of the policy sued on, the defendant insurance company is not liable.
It results that the judgment of the lower court in favor of the plaintiff and against the defendant will be reversed and dismissed at the cost of the plaintiff, Mary Houston.
AVERY, P.J. (W.S.), and CARNEY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623875/ | 360 S.W.2d 543 (1962)
James W. WYATT, Appellant,
v.
Donald M. MOTSENBOCKER, Appellee.
No. 16024.
Court of Civil Appeals of Texas, Dallas.
July 13, 1962.
Rehearing Denied September 28, 1962.
*544 Bowyer, Thomas, Crozier & Harris, and Wm. W. Sweet, Jr., Dallas, for appellant.
Thompson, Knight, Wright & Simmons and Timothy E. Kelley, Dallas, for appellee.
WILLIAMS, Justice.
Gloria Ann Wyatt, a five year old child, sustained personal injuries when she fell from an automobile owned by Donald M. Motsenbocker. James W. Wyatt, father of the child, brought this suit (1) in his individual capacity to recover hospital and medical bills incurred by him as a result of the injuries sustained by his daughter, and (2) as next friend for the child, to recover damages sustained by her. At the conclusion of a jury trial, a special issue verdict found Motsenbocker to be guilty of negligence which proximately caused the injuries to the minor child, and also found Wyatt guilty of contributory negligence in failing to supervise his child at the time of the occurrence in question. Upon these findings the trial court rendered judgment awarding damages to the child in the amount of $250.00, and denying all relief to Wyatt, individually. Wyatt appeals, limiting his appeal solely to that part of the judgment which denies him recovery.
Appellant's points attack three special issues and jury finding, as follows:
"SPECIAL ISSUE NO. 8-A
"Do you find from a preponderance of the evidence at the time, place and on the occasion in question and before the event in question, James W. Wyatt permitted Gloria Ann Wyatt to be absent from her home without parental supervision for approximately one hour, if you have so found in answer to the preceding special issue?
"Answer `Yes' or `No'
"Answer: `Yes'.
"SPECIAL ISSUE NO. 8-B
"Do you find from a preponderance of the evidence that such conduct on the part of James W. Wyatt, if any you have found in answer to the preceding special issue, was negligence, as defined herein?
"Answer `Yes' or `No'
"Answer: `Yes'.
"SPECIAL ISSUE NO. 8-C
"Do you find from a preponderance of the evidence that such negligence, if any you have found in answer to the preceding special issue, was a proximate cause as defined herein, of the injuries to Gloria Ann Wyatt at the time, place and occasion in question?
"Answer `Yes' or `No'
"Answer: `Yes'".
Appellant contends that (1) there was no evidence to sustain an affirmative finding of the jury to such issues; (2) that the court erred in not sustaining appellant's motion to disregard the answers of the jury to these issues and enter judgment for appellant on the balance of such verdict; and (3) that the court erred in overruling appellant's motion for new trial on the ground that there was insufficient evidence to sustain the answer of the jury to these issues.
In considering appellant's "no evidence" and "insufficient evidence" points, we are guided by the rules announced by Chief Justice Robert W. Calvert of our Supreme Court in his Article entitled "No Evidence" and "Insufficient Evidence" points of error, Texas Law Review, Vol. 38, pp. 361, 372, and also by the Supreme Court in Re King's Estate, 150 Tex. 662, 242 S.W.2d 660. Bearing in mind these rules it has become necessary for us to review carefully the entire statement of facts. We summarize herewith the material testimony having to do with the issue on contributory negligence of the father.
On April 24, 1960 Wyatt and his wife and three children, ages 5, 3 and 1, lived at 6512 *545 Racine Street, which appears to be a residential street in the City of Dallas. Gloria Ann, age five years and nine months, returned home from Sunday School with the family shortly after 11 a. m. on April 24, 1960, changed her clothes and asked her mother if she could go to the park to play. The park referred to was a playground in connection with a grade school located about two blocks from the Wyatt home. Mrs. Wyatt refused Gloria Ann's request to go to the park unattended, but did grant her permission to go across the street, with her younger brother, to play with a little girl named Cindy Nettles, with whom Gloria Ann had played on many previous occasions. Mrs. Wyatt specifically instructed Gloria Ann to return home when Cindy went in to eat, or when her mother called her for dinner. Mrs. Wyatt then watched the two children go across the street to Cindy Nettles' home, and then began the preparation of the family meal. Without the knowledge of either Mr. or Mrs. Wyatt, Gloria Ann and her brother apparently left Cindy Nettles' home and went up the street to the playground. It was not until about 12 o'clock noon that either Mr. or Mrs. Wyatt knew that Gloria Ann and her brother had left the Nettles' home and gone to the playground. The fact was brought to their attention when Mr. Motsenbocker came to their house about noon and informed them that their daughter had been run over by his automobile and had been injured. There was no conflict in the testimony but that Gloria Ann was a normal child of average intelligence. She had never disobeyed instructions and gone to the playground on previous occasions.
The circumstances surrounding the accident which resulted in Gloria Ann's injuries are rather unusual and the only testimony concerning this is from the appellee Motsenbocker. He lived about 1 block south of appellant's home and on the day in question he was at the playground with his four-year-old son engaged in flying a kite. He had parked his automobile at the curb adjacent to the playground, on an incline. His automobile was a 1957 Chevrolet with a standard transmission, with the ignition controlled by a key on the dashboard. When the key was turned this would engage the starter and the engine. Appellee had left the key in his car while he engaged in flying the kite, and the car was left in reverse gear. The emergency brake was not engaged. According to appellee, Gloria Ann and her little brother, whom he knew, joined appellee and his son in the kite flying operation. About noon appellee informed Gloria Ann and her brother that he would take them home in his car and told all of the children to go and get in his car and wait for him until he brought in the kite. The children all proceeded to get into the car, after which the motor of the car started and the car backed down the incline. There is no evidence as to which of the children turned on the ignition and started the car. After the motor started, Gloria Ann, in attempting to get out of the door of the car, fell under the wheels of the car sustaining her injuries. The testimony was uncontradicted to the effect that Gloria Ann had been instructed by both her parents not to operate any of the instruments on the dashboard of an automobile. She had never violated these instructions nor was there any evidence she had ever violated instructions concerning where to go and when to return.
It is elementary that the burden of proving contributory negligence and proximate cause was on the appellee. In order to establish contributory negligence and proximate cause a defendant must prove (1) that the victim's conduct was the cause of the injury or damage, i. e., that, but for some act or omission on his part, the harm would not have been done, and (2) that he could have foreseen or anticipated the event and prevented it from happening by acting otherwise than he did. 30-B Tex.Jur. p. 382. To convict Wyatt of contributory negligence, his actions or failure to act must have been contrary to ordinary care and further, and equally important, the results of his actions or failure to act must have been reasonably anticipated and foreseen by him in exercise *546 of ordinary care. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359, 363; Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 355.
By foreseeability as a necessary element of proximate cause is meant that a wrongdoer is not responsible for the consequence which is merely possible, but is responsible only for a consequence which is probable according to ordinary and usual experience. Texas & Pacific Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; Dallas Ry. & Term. Co., v. Hendrix, Tex.Civ.App., 261 S.W.2d 610; Mabry v. Lee, Tex.Civ.App., 319 S.W.2d 125; Davidson v. Methodist Hospital of Dallas, Tex.Civ.App., 348 S.W.2d 400; 30-B Tex.Jur. 216-220; 38 Am.Jur. 712; see also the opinion of our Supreme Court in Genell, Inc. v. Flynn, Tex., 358 S.W.2d 543.
The cases dealing with the question of negligence and proximate cause relating to supervision or lack of supervision by parents over their minor children and circumstances such as involved in this case are numerous and diverse in their holdings. Many courts have held that permitting children of tender age to be upon the public streets and sidewalks unattended is not, in itself, any evidence of negligence. Other courts have held that even though, under some circumstances a jury might be justified in finding that parents are negligent in permitting a child to be on the public streets and side-walks unattended, nevertheless such negligence is not necessarily a proximate cause of injuries which resulted to the child because such negligence is, at most, a remote rather than a proximate cause. Houston City St. Ry. Co. v. Dillon, 3 Tex. Civ. App. 303, 22 S.W. 1066; Sciachitano v. City of Beaumont et al., Tex.Civ.App., 266 S.W. 558; and cases collated in 51 A.L.R. pp. 216-218.
However we find it unnecessary to decide the question of basic negligence of appellant Wyatt. Assuming, without deciding, that Wyatt and his wife should not have permitted their little daughter to go across the street and play with her little friend for a period of less than 60 minutes, such conduct on the part of the parent cannot defeat his recovery for damages where there is no evidence that such conduct was the cause which produced the injury to his daughter or that Wyatt could have reasonably anticipated that his daughter would be injured as a result of the chain of circumstances demonstrated in this record. The gravamen of appellant's appeal is, in our opinion, the issue of proximate cause. The court, in connection with issue 8-C, relating to proximate cause, gave the standard definition of the term, including the elements of "new and independent cause" and foreseeability. Analyzing the testimony on this issue it is found that Gloria Ann was specifically denied by her parents permission to go to the park. They granted her specific permission to go across the street to a neighbor's house to play with her little friend, as she had frequently done. She was instructed that she should return home at lunch time which was in about one hour. There is nothing in this record to suggest that the parents had any reason to believe that she would not remain in the neighbor's yard. Moreover, the appointed time for her return had not arrived when Motsenbocker appeared and informed appellant of the accident. Appellant, and his wife, were bound by law to foresee that which they reasonably should have foreseen. It is reasonable that they may have foreseen that their child might have been injured in the yard of the neighbor while playing with her little friend, or even may have been struck by an automobile while crossing the street between her house and the neighbor's house. However, it cannot be reasonably said that the appellant-parents could have reasonably anticipated and foreseen the peculiar chain of circumstances that led to the eventual injury of the child.
Furthermore, Motsenbocker's acts and conduct created in him a new and independent cause or a new and independent agency that led to Gloria Ann's injuries. A new and independent cause must be the *547 act or omission of a separate and independent agency. Motsenbocker was an independent agency insofar as the Wyatt family was concerned. The new and independent cause must have destroyed the causal connection between the negligent act, if any, of appellant, and the eventual injury. Assuming, without deciding, that Gloria Ann's father was guilty of some negligence in failing to exercise supervision over her for less than one hour such negligence, if any, ceases to be a proximate or producing cause of the eventual injury by virtue of the intervention of the new and independent cause in the form of Motsenbocker who, himself, assumed to exercise supervision over the child thereby effectively breaking the causal connection between any alleged negligent act on the part of the parent and the eventual injury. Under the definition "new and independent cause" the cause must be the immediate cause of such injury. The record here clearly demonstrates that the negligent acts of Motsenbocker were the immediate cause of Gloria Ann's injury.
We therefore hold that there is no evidence in this record to support the submission to the jury, or the affirmative answer of the jury to Special Issue 8-C relating to proximate cause on the part of Wyatt. The trial court should have disregarded the answer of the jury to such issue and rendered judgment for Wyatt for his damages found by the jury in the amount of $3,719.
Appellee, by four cross-points, complains of the judgment against him in favor of the minor child. James W. Wyatt, as next friend of Gloria Ann Wyatt, a minor, moves to dismiss the attempted appeal of Motsenbocker, contending that since Motsenbocker failed to perfect his appeal from that part of the severable judgment awarding damages to the minor, such cross-points may not be legally considered. We sustain the motion to dismiss Motsenbocker's appeal.
The judgment in this case recites a recovery by the minor, represented by her father and next friend, and also recites a denial of recovery by the father, individually, against Motsenbocker. Motsenbocker did not file a motion for new trial. Notice of appeal was given by James W. Wyatt following the overruling of his amended motion for new trial. The only appeal bond is executed by James W. Wyatt, individually, and not in his capacity as next friend. No appeal bond was filed by Motsenbocker. In appellant's brief it is recited that the appeal is limited only to that part of the judgment denying relief by Wyatt.
The general rule is stated in 4 Tex.Jur.2d § 671, p. 180:
"* * * if an appellant appeals from a part only of a severable judgment, the appellee may not complain of any matters falling wholly within that portion of the judgment not brought up for review by the appellant. In such case, it is incumbent on the appellee to prosecute his separate appeal from the portion of the judgment adverse to him. The court will on motion strike the cross-points where the appeal is taken only from a severable portion of the judgment and the appellee does not perfect an independent appeal from the portion of the judgment adverse to him."
The judgment in this case is definitely a severable one. The record is clear that appellant Wyatt only perfected an appeal from that part of the judgment adverse to him. Appellee filed no appeal bond nor made any effort to appeal from that part of the judgment awarding damages to the minor. Appellee's cross-points are disregarded. Connell Const. Co. v. Phil Dor Plaza Corp., 158 Tex. 262, 310 S.W.2d 311; Speckels v. Kneip, Tex.Civ.App., 170 S.W.2d 255, err. ref.
That part of the judgment in favor of Gloria Ann Wyatt against Motsenbocker is affirmed. That part of the judgment denying recovery to James W. Wyatt, individually, against Motsenbocker, is reversed and rendered, whereby James W. Wyatt, individually, have and recover from Donald M. Motsenbocker, the sum of $3,719, together *548 with interest thereon from May 26th, 1961 at the rate of 6% per annum.
Affirmed in part and reversed and rendered in part.
YOUNG, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623790/ | 360 S.W.2d 875 (1962)
Bennie Lee McINTYRE, Appellant,
v.
The STATE of Texas, Appellee.
No. 34153.
Court of Criminal Appeals of Texas.
January 31, 1962.
Certiorari Denied October 15, 1962.
*876 John Saleh, Lamesa, Mitchell Williams (Court-Appointed), Tahoka, Robert Penrice, Temple, for appellant.
George H. Hansard, Dist. Atty., Lamesa, and Leon B. Douglas, State's Atty., Austin, for the State.
Certiorari Denied October 15, 1962. See 83 S. Ct. 130.
MORRISON, Judge.
The offense is rape; the punishment, death.
Appellant's plea of guilty was amply supported by the positive testimony of the prosecutrix and appellant's confession, the voluntary nature of which is not questioned. It was shown that appellant entered a farm house in the absence of prosecutrix's husband and there, by force and by threats to kill, had carnal knowledge and committed an act of sodomy upon her.
Appellant did not testify in his own behalf but called his mother and his uncle, who established that he had never before been convicted of a felony.
We shall discuss the contentions advanced in a highly professional manner by appellant's two court-appointed attorneys, both by brief and in argument.
By bill of exception No. 1, it was shown that during the course of the selection of the jury an emergency arose in the family of a juror who had been accepted and qualified. When such fact became known, the court stated in open court that the State, the defendant and his attorneys would have to agree to excuse the juror or a mistrial would be declared. At this juncture, defense counsel asked for time to consult about the matter; the defendant was present "during the discussion," at the conclusion of which defense counsel stated the defendant would agree to dismiss the juror and, because defendant made no statement, the court considered that his attorneys were speaking for him.
Both the State and appellant rely upon the relatively recent opinion of this Court in Houston v. State, 162 Tex. Crim. 551, 287 S.W.2d 643. While it is true that the court in the case at bar was not as careful as the trial judge in Houston, yet it appears that he did what he thought at the time was necessary to secure the assent of the accused. He made the statement in accused's presence that unless the accused himself agreed a mistrial would be declared. A conference was then called for, and time was allowed for such conference, at the conclusion of which counsel for appellant state that his client agreed, and appellant remained silent. By such silence, he lead the court to believe that his attorney was speaking for him. The case at bar differs from any which has been called to our attention because during the voir dire examination of this particular juror, who was later excused, appellant challenged such juror for cause. While it is true that the court overruled the challenge, the fact remains that such juror was at one time not of appellant's liking. It would be a strange rule which would permit an accused to complain of the excuse of a juror when he had already indicated that he did not want such person to serve on his jury.
Appellant next contends that the court erred in failing to grant his motion for change of venue. We have been cited a number of authorities in support of his position, but note at the outset that in each case the plea was that of not guilty. Here, the issue of guilt and opinions as to guilt pass out of the case when the plea of guilty is entered. There remains then *877 only the question of punishment. We look to the voir dire examination of the jurors who actually served, in line with the reasoning employed in Williams v. State, 162 Tex. Crim. 202, 283 S.W.2d 239, to determine if they had any preconceived opinion that the supreme penalty was called for in this case. At most, it can be said that two jurors said they had heard discussions by unnamed parties to the effect that if appellant was found guilty the electric chair was the proper punishment. Each of them denied that they had ever formed or expressed such an opinion themselves. We conclude that the court did not abuse its discretion in denying the motion for change of venue. See also Jones v. State, 156 Tex. Crim. 248, 240 S.W.2d 771; Gordy v. State, 160 Tex. Crim. 201, 268 S.W.2d 126; McCarley v. State, 161 Tex. Crim. 263, 276 S.W.2d 300; and Kizzee v. State, 166 Tex. Crim. 191, 312 S.W.2d 661.
Appellant urges that his motion for continuance should have been granted because (1) appellant was confined in jail in Lubbock some distance from the offices of his counsel, which fact consumed more time in the preparation of a defense, (2) they had engaged a psychiatrist in Lubbock to examine appellant and had not received his report at the time they questioned the venire, and (3) bitter feelings existed in the community and a delay would have caused them to subside.
As to the first, our attention has been called to no defense which appellant's counsel now (months after the trial) knows that he might have interposed. He does not now assert that he would have entered any plea other than that of guilty.
As to the report of the psychiatrist, we observe that when it did arrive it concluded with the statement, "It is the feeling of this examiner that Bennie Lee McIntyre is sane and responsible for his acts."
As to the last, we call attention to the holding of this Court in Gordy v. State, supra, wherein we said a motion to postpone in order that unfavorable public sentiment against appellant might subside was not a statutory motion but one addressed to the sound discretion of the trial judge. Having found that no preconceived idea as to punishment invaded the jury which tried the accused, we necessarily conclude that no abuse of discretion is shown. Since the voluntary nature of the confession was not questioned, we find it unnecessary to discuss the facts as to where or why appellant was confined after he was taken into custody. The publicity which the incident or the trial received, the fact that some of the jurors knew prosecutrix, her husband or her father, would not necessarily mean that the jury would be more inclined to inflict the death penalty. We must give some verity to the jurors' statement, under oath, that they had no preconceived idea as to punishment. The fact that the officers took precautions in their handling of accused after arrest and during the course of the trial does not prove that such a hostile atmosphere existed in the community that the jury were unable to freely choose the penalty which they concluded the facts justified.
Appellant objected to the admission into evidence of certain statements found in the confession. It is his contention that the statement "I have gone to about three or four farm houses in the area around where I work with the same idea in mind, but just on my mind, and did not actually do that. I have wanted to do that with a white woman for about two or three years" constituted proof of extraneous crimes and proof that appellant was a potential rapist. This proved no other crimes because the statement conclusively shows that this was appellant's first offense. Clearly, appellant's state of mind prior to the commission of the instant offense was admissible.
His last contention is that he was denied an examining trial. The confession recites, "* * * I did not want an *878 examining trial. * * *" The record discloses that appellant was carried before a magistrate the day after the offense was committed. The magistrate asked him if he knew the nature of the charges against him, and he replied that he did. Appellant then asked that a bond be set; such request was denied, and a few days later attorneys were appointed to represent him and he was indicted. Recently, in Singleton v. State, Tex.Cr.App., 346 S.W.2d 328, we held that an accused might not be heard to complain if the grand jury indicted him prior to the holding of an examining trial.
Finding no reversible error, the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2481966/ | 939 N.E.2d 600 (2010)
Leonard RUTKA, Plaintiff-Appellant,
v.
The BOARD OF TRUSTEES OF the CICERO POLICE PENSION BOARD, Defendant-Appellee.
No. 1-10-0298.
Appellate Court of Illinois, First District, Third Division.
November 24, 2010.
*601 Law Offices of Jerome F. Marconi, Chicago (Jerome F. Marconi, of counsel), for Plaintiff-Appellant.
Atwell & Atwell Law Offices, Aurora (Charles H. Atwell, of counsel), for Defendant-Appellee.
Justice NEVILLE delivered the opinion of the court:
Leonard Rutka, a police officer with the Cicero police department, requested that the Cicero Police Pension Board (Pension Board) recalculate his pension benefits. Following a hearing, the Pension Board denied Rutka's request to recalculate his pension benefits, finding that it lacked jurisdiction because Rutka's request was not filed within 35 days of its prior final decision as required by section 3-103 of the Administrative Review Law. 735 ILCS 5/3-103 (West 2002). Rutka appeals from the order of the trial court, which upheld the Pension Board's decision.
Rutka presents two issues for our review: (1) whether the Pension Board had jurisdiction on January 27, 2009, to reconsider its January 10, 2005, decision to recalculate his pension benefits; and (2) whether the Pension Board had jurisdiction to change his creditable service years from 25 to 24 years of service. We find that a final decision was made to approve Rutka's pension benefits on February 18, 1999, and that no complaint was filed within 35 days of that decision, so the Pension Board did not have jurisdiction on January 10, 2005, to recalculate Rutka's pension. Therefore, we affirm the trial court's order finding that the Pension Board's February 18, 1999, calculation of Rutka's benefits and years of creditable service was proper.
BACKGROUND
The facts material to the disposition of this case are not in dispute. Rutka became an officer with the Cicero police department on February 1, 1974. On April 29, 1997, he was appointed to the position of "Deputy Superintendent." On March 2, 1998, his appointment as deputy superintendent was terminated and he assumed the rank of "Lieutenant."
On February 9, 1999, Rutka entered into a settlement agreement and Release with the Town of Cicero regarding a complaint he filed with the Equal Employment Opportunity Commission alleging age discrimination. Pursuant to the terms of the agreement, Rutka agreed to "voluntarily retire from his position as Lieutenant" as of February 9, 1999. Rutka also received a lump-sum payment of $30,095.35, equal to the amount of his salary between January 11, 1999, through June 30, 1999. Rutka's pension benefits were approved during *602 a Pension Board meeting on February 18, 1999, and his pension benefits were calculated at $65,759.38 based upon the rank of lieutenant. That same day, Rutka's benefits were recalculated based upon the combined rank of deputy superintendent and lieutenant at $68,759.38, pursuant to section 3-111 of the Illinois Pension Code (Code) (40 ILCS 5/3-111(a) (West 2002)). Rutka immediately started receiving his pension benefits.
Approximately six years later, on January 10, 2005, the Pension Board's minutes indicate that Rutka submitted correspondence to the Pension Board requesting that his salary be recalculated to reflect a base salary of $76,040.64, based upon the rank of deputy superintendent instead of a base salary based upon the combined rank of deputy superintendent and lieutenant. The Pension Board voted to recalculate Rutka's pension pursuant to his request, but the pension benefits voted upon and approved by the Pension Board, during the vote on Rutka's request for modification, were never paid to Rutka.
On July 6, 2007, Rutka sent a letter to the Pension Board requesting a hearing before the Pension Board to recalculate his pension benefits based upon the salary rate of a deputy superintendent. A hearing on Rutka's request was held on October 10, 2008, and on January 27, 2009, the Pension Board entered a decision and order denying Rutka's request for modification. The Pension Board held: (1) that it lost jurisdiction 35 days after its February 18, 1999, final decision on payment of benefit, and (2) that Rutka was not entitled to creditable service for the period of time represented in the lump sum amount pursuant to the terms of the settlement agreement.
On March 6, 2009, Rutka filed a complaint in the trial court for administrative review of the Pension Board's January 27, 2009, decision denying his request for modification of his pension benefits. The trial court held that the Pension Board's 1999 decision was proper and that the Pension Board was estopped from changing Rutka's creditable service from 25 years to 24 years. Rutka filed the instant appeal on January 28, 2010.
ANALYSIS
Standard of Review
In this case, we must determine whether the Pension Board had jurisdiction on January 10, 2005, to modify its prior decision entered on February 18, 1999. Because this jurisdictional issue presents a question of law, our review is de novo. Blount v. Stroud, 232 Ill. 2d 302, 308-09, 328 Ill. Dec. 239, 904 N.E.2d 1 (2009), citing In re A.H., 207 Ill. 2d 590, 593, 280 Ill. Dec. 290, 802 N.E.2d 215 (2003) (applying a de novo standard to the jurisdiction issue). Finally, we review the decision of the administrative agency rather than the decision of the circuit court. Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 504, 315 Ill. Dec. 772, 877 N.E.2d 1101 (2007).
Jurisdiction
On appeal, Rutka argues that the Pension Board lacked jurisdiction on January 27, 2009, to reconsider its January 10, 2005, decision to recalculate his pension. However, before reaching this issue, we must determine whether the Pension Board's February 18, 1999, decision on Rutka's pension benefits was final and whether the Pension Board had jurisdiction to recalculate Rutka's pension benefits on January 10, 2005.
The Cicero Pension Board is governed by article 3 of the Code, which regulates and establishes the powers of police pension boards in municipalities such as Cicero *603 whose populations are between 5,000 and 500,000 inhabitants. 40 ILCS 5/3-148 (West 2006). Pursuant to section 3-148 of the Code, "`[t]he provisions of the Administrative Review Law, and all amendments and modifications thereof and rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the retirement board provided for under this [a]rticle.'" Kosakowski v. Board of Trustees of City of Calumet City Police Pension Fund, 389 Ill.App.3d 381, 383, 329 Ill. Dec. 491, 906 N.E.2d 689 (1st Dist., 2009), quoting 40 ILCS 5/3-148 (West 2006).
Section 3-103 of the Administrative Review Law provides, in pertinent part, that "[e]very action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision." 735 ILCS 5/3-103 (West 2002); Kosakowski, 389 Ill. App.3d at 383, 329 Ill. Dec. 491, 906 N.E.2d 689. Therefore, the Pension Board, an administrative agency, lacks jurisdiction to reconsider its final decisions after the expiration of the 35-day period. Kosakowski, 389 Ill.App.3d at 384, 329 Ill. Dec. 491, 906 N.E.2d 689, citing Sola v. Roselle Police Pension Board, 342 Ill.App.3d 227, 231, 276 Ill. Dec. 805, 794 N.E.2d 1055 (2003).
The record establishes that Rutka and the Town of Cicero entered into a settlement agreement and Rutka agreed to voluntarily retire effective February 9, 1999. Pursuant to the settlement agreement, on February 18, 1999, the Pension Board made a decision to approve Rutka's pension benefits pursuant to section 3-111 of the Pension Code, which provides in pertinent part:
"(a) A police officer age 50 or more with 20 or more years of creditable service * * * shall receive a pension of ½ of the salary attached to the rank held by the officer on the police force for one year immediately prior to retirement or, beginning July 1, 1987 for persons terminating service on or after that date, the salary attached to the rank held on the last day of service or one year prior to the last day, whichever is greater." 40 ILCS 5/3-111(a) (West 2002).
Rutka's salary was calculated at $65,759.38 based upon his rank as lieutenant at the time of retirement with 25 years of service. That same day, Rutka's salary was recalculated based upon a combined rank of deputy superintendent and lieutenant at $68,759.38 with 25 years of service. In addition, Rutka executed and swore in a Police Pension Trust Fund document that the pension benefits calculations were true and correct, and he immediately began receiving his benefits.
The Administrative Review Law defines an administrative decision as "any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency." 735 ILCS 5/3-101 (West 2002). "`"A final and binding decision by an administrative agency requires, at the very least, that the agency has taken some definitive action with regard to the application before it and that the applicant has been informed of the action."'" Sola, 342 Ill.App.3d at 231-32, 276 Ill. Dec. 805, 794 N.E.2d 1055, quoting Key Outdoor, Inc. v. Department of Transportation, 322 Ill.App.3d 316, 324, 255 Ill. Dec. 792, 750 N.E.2d 709 (2001), quoting Illinois Wood Energy Partners, L.P. v. County of Cook, 281 Ill.App.3d 841, 851, 217 Ill. Dec. 388, 667 N.E.2d 477 (1995). On *604 February 18, 1999, the Pension Board took definitive action which affected Rutka's legal rights when he was awarded and received pension benefits based upon 25 years of service and the decision terminated the proceedings before the Pension Board. Therefore, the Pension Board's February 18, 1999, decision approving Rutka's pension benefits was a final decision. See Kosakowski, 389 Ill.App.3d at 384, 329 Ill. Dec. 491, 906 N.E.2d 689 (the board issued its final decision when it awarded the plaintiff a disability pension and calculated his monthly benefits).
Section 3-103 requires a party seeking administrative review of a final Pension Board decision to file a complaint and issue a summons within 35 days after the Pension Board makes its final decision. 735 ILCS 5/3-103 (West 1998). The record is clear that neither Rutka nor the Pension Board filed a complaint or issued a summons within 35 days after the Pension Board made its final decision and approved Rutka's benefits as required by section 3-103. 735 ILCS 5/3-103 (West 1998). Therefore, because a final decision was made to approve Rutka's pension benefits on February 18, 1999, and no complaint was filed in the circuit court within 35 days of that decision, the Pension Board did not have jurisdiction on January 10, 2005, or on January 27, 2009, to recalculate Rutka's pension. Kosakowski, 389 Ill. App.3d at 384, 329 Ill. Dec. 491, 906 N.E.2d 689, citing Sola, 342 Ill.App.3d at 231, 276 Ill. Dec. 805, 794 N.E.2d 1055.
Rutka also argues that the Pension Board made an "error" when it combined his salary as Deputy Superintendent with his salary as lieutenant to calculate his pension, and that the error could be corrected by invoking section 3-144.2 of the Pension Code. Both Rutka and the Pension Board rely upon the Kosakowski court's interpretation of section 3-144.2 to support their positions. Section 3-144.2 gives the Pension Board the authority to modify pension benefits based upon an "overpayment, due to fraud, misrepresentation or error, of any pension or benefit granted under" the Pension Code. (Emphasis added.) 40 ILCS 5/3-144.2 (West 2006). In Kosakowski, the court interpreted section 3-144.2 because of an appeal by the Pension Board challenging an alleged overpayment to one of its pensioners. Kosakowski, 389 Ill.App.3d at 384-87, 329 Ill. Dec. 491, 906 N.E.2d 689. This case does not involve an "overpayment" of pension benefits but an underpayment of benefits. Therefore, Rutka's reliance on Kosakowski is misplaced. If the legislature intended for section 3-144.2 to apply to the underpayments of pension benefits, it would have included that language. See Roselle Police Pension Board v. Village of Roselle, 232 Ill. 2d 546, 552, 328 Ill. Dec. 942, 905 N.E.2d 831 (2009) (the best evidence of legislative intent is the language used in the statute itself, which must be given its plain and ordinary meaning). Accordingly, we hold that the legislature did not intend for section 3-144.2 of the Pension Code to be used to correct alleged underpayments of pension benefits.
CONCLUSION
We find that the Pension Board had no jurisdiction on January 10, 2005, or on January 27, 2009, to recalculate Rutka's pension benefits, because no administrative review action was filed within 35 days after the Pension Board entered its final decision on February 18, 1999. Kosakowski, 389 Ill.App.3d at 383-84, 329 Ill. Dec. 491, 906 N.E.2d 689, citing Sola, 342 Ill. App.3d at 231, 276 Ill. Dec. 805, 794 N.E.2d 1055. Therefore, we affirm the trial court's order finding that the Pension Board's February 18, 1999, calculation of *605 Rutka's benefits and years of creditable service was proper.
Affirmed.
QUINN, P.J., and STEELE, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/101902/ | 285 U.S. 502 (1932)
SPENCER KELLOGG & SONS, INC.
v.
HICKS, ADMINISTRATRIX, ET AL.[*]
No. 430.
Supreme Court of United States.
Argued February 16, 17, 1932.
Decided April 11, 1932.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
*503 Mr. D. Roger Englar, with whom Messrs. Chauncey I. Clark, Leonard J. Matteson, and George S. Brengle were on the brief, for Spencer Kellogg & Sons, Inc.
Miss Elizabeth Robinson, with whom Messrs. Lucien V. Axtell and Vernon S. Jones were on the brief, for Alexander et al.
Mr. Lester Hand Jayne for Roberts et al.
Messrs. Samuel B. Seidel and Sidney Newborg filed a brief for Ifill et al.
Messrs. Walter R. Kuhn and George W. Riley filed a brief for Hicks.
*506 MR. JUSTICE ROBERTS delivered the opinion of the Court.
These cross-writs were granted in a proceeding for limitation of liability under Sec. 3, Act of March 3, 1851, c. 43,[1] initiated by Spencer Kellogg & Sons, Inc., owner of the motor launch "Linseed King," which sank on December 20, 1926, causing personal injuries and loss of life.
Kellogg & Sons is a New York corporation engaged in the manufacture of linseed oil at a number of factories, among them one at Edgewater, New Jersey, on the west shore of the Hudson River, opposite 96th Street, New York. The home office of the corporation is in Buffalo, where the chief executive officers reside. The Edgewater plant employs many workmen who live in New York. In order to ferry these men to and from the factory the company owned and operated the "Linseed King," a gasoline launch of a length of forty-five feet and a beam of ten feet, having a small wheel house forward, and behind that an enclosed cabin which occupied practically the entire deck space. The company's practice was to send the boat from Edgewater, early in the morning, to the foot of 96th Street, where the men went on board and were transported to the factory in time for their work. Although the safe load was estimated at not over sixty passengers, she had eighty-six life preservers aboard and had frequently carried more than eighty persons. This number seriously crowded her cabin, the total superficial area of which was two hundred thirty-three square feet, two lengthwise seats occupying about one-third of the space.
*507 On the morning in question the boat left the New Jersey pier before daybreak, in charge of one man. As the New York shore was approached drift ice was encountered which had come down the river during the night and been driven to the easterly side by a west wind. The launch passed safely through the ice and reached the foot of 96th Street. There another of the company's employees, who was detailed to give general assistance and may be considered a deckhand, came on board. The launch was immediately filled from a crowd of waiting men. It is difficult to ascertain exactly how many boarded her; but the courts below have found that there were at least seventy-eight. On the return trip the thicker part of the ice towards the New York shore was successfully traversed, and when the master considered himself clear of ice he proceeded at full speed, about seven miles an hour. Shortly thereafter a cake or floe of ice stove a hole in the boat's port bow and caused her to fill and sink in about two minutes. The result was a panic in the cabin, a rush for the exits, which were small, and one of which opened inward, thus being difficult of operation on account of the crowded condition. Some of the passengers were thrown into the river, reached floating cakes of ice, and were rescued. Thirty-five bodies were found in the cabin, but the number lost was never definitely determined.
Actions were brought in the New York courts against Kellogg & Sons by certain of the survivors and by the administrators of some of those who had been drowned. One libel was filed in the District Court for Southern New York. Claims were made by others and suits threatened. The company filed a petition for limitation and sought an injunction against all proceedings upon any claim, including those for workmen's compensation under the New Jersey act, except that no injunction was asked against the mere filing of claims with the New Jersey State Workmen's *508 Compensation Bureau. The launch was surrendered, its value ascertained as $1,500, proper stipulation entered, and an order of reference made to a commissioner to receive claims. An injunction pendente lite was issued as prayed embracing not only the claimants, but the State Compensation Bureau, service being made upon the secretary of that body. Claims were filed, and the claimants in their answers to the petition denied the company's right to limitation.
Upon the issues so made the cause came on for hearing before the District Court, and at the conclusion of the evidence that court denied the owner's right to limit and referred all of the claims to a commissioner for report as to their validity and the amounts to be awarded. The latter recommended awards to sundry claimants. On exceptions the District Court confirmed some and altered others.
Those who were killed and injured in the disaster were of three classes: (1) Regular employees of Kellogg & Sons in the Edgewater plant; (2) Men who had applied on December 18 for work in discharging the cargo of a ship expected on that day. She did not then arrive, and they were given employment check stubs and told to return on the following day, which they did; but as she had not then docked they were advised to report again on the morning of the accident. The vessel had berthed the evening before, and if these men had succeeded in reaching the pier at Edgewater they would have been preferred in the allotment of work in discharging her cargo. (3) Men seeking employment in answer to an advertisement for laborers inserted in the New York newspapers, who had, however, not been interviewed by the company officials, and who would therefore have had to apply and be accepted upon arrival at the Edgewater pier.
*509 The owner insisted that as the men in groups (1) and (2) were employees within the intent of the workmen's compensation law of New Jersey their remedy was exclusively under that act, and no damages could be granted to any of them or to the personal representatives of deceased members of these classes in this proceeding. No such objection was urged against awards to men in the third class. The commissioner overruled the owner's contention, held the workmen's compensation act was inapplicable, and all of the claimants should receive awards in the admiralty court. Upon exceptions the District Court reversed the commissioner's conclusions and held that those falling within the first class must be dismissed from the case, as any redress to which they were entitled was under the New Jersey act, but that the men in the second had never been actually employed, and were consequently outside the compensation law, and the commissioner's recommendations as to awards to them should be confirmed. The Circuit Court of Appeals affirmed the action of the District Court.
The petition for certiorari (No. 430) by the owner alleged error in refusing to limit liability and in not remitting the claimants in the second group to their remedy under the workmen's compensation act. Claimants of the first group also filed a petition (No. 444) asserting the court below improperly disposed of their claims, and that they were entitled to awards in the pending cause. The cases were heard together.
The first question for decision is whether Kellogg & Sons, as owner, was entitled to a decree limiting its liability. The master's negligence is not denied; indeed the owner proved that definite and peremptory instructions had been given him never to run when there was ice in the river. His disregard of these was the proximate cause of the disaster.
*510 The right to limit liability turns upon whether such negligence was with the owner's privity or knowledge.[2] Both courts below, after painstaking examination of the evidence, found there was such privity or knowledge and accordingly ruled that the claim for limitation must be denied. We accept this concurrent finding. There was sufficient evidence to support it.[3]
The "Linseed King" was admittedly unfit to run through ice. This fact was known to the owner's executive officers, who had instructed one Stover, the works manager and representative of the company in charge of the Edgewater plant, that the boat should never be run through ice, and that as soon as ice showed itself in the river she was to be laid up for the winter. He was also directed that whenever there was a likelihood of the presence of ice all trips were to be made only in broad daylight, and even these were to be discontinued when ice definitely appeared. The decision as to when the ferry should be withdrawn for the winter rested with him.
In view of the weather conditions and the observation of ice in the river some days prior to the accident by several witnesses, amongst them one of Stover's own subordinates, he should not have rested upon the mere instruction to the master not to run through ice. Before allowing the ferriage operation he was under obligation to assure himself by inquiries or by personal inspection that the "Linseed King" should not incur the hazard of colliding, as she did, with ice floes in the river.
*511 We agree with the courts below that Stover's position as works manager of the Edgewater plant and the scope of his authority render his privity or knowledge that of the company. Parsons v. Empire Trans. Co., 111 Fed. 202; Oregon R.L. Co. v. Portland & A.S.S. Co., 162 Fed. 912; Sanbern v. Wright & Cobb Co., 171 Fed. 449; aff'd 179 Fed. 1021; Boston Towboat Co. v. Darrow-Mann Co., 276 Fed. 778. Compare Craig v. Continental Ins. Co., 141 U.S. 638, 647. The owner was therefore chargeable with negligence in not taking measures for the safety of the passengers which the weather conditions required, Texas & Gulf S.S. Co. v. Parker, 263 Fed. 864; The Virginia, 264 Fed. 986; aff'd 278 Fed. 877.
It is said that the master, admittedly competent, had definite and postive instructions not to run through ice; that when he encountered ice on his trip from the New Jersey shore, it became his duty at once to abandon the trip and return to the Edgewater plant. The argument is that as the boat was seaworthy when there was no ice and instructions had been given to a competent master not to run her through ice, the owner did its full duty and cannot be held responsible as having privity or knowledge of a violation by the master of these explicit instructions. Cases such as La Bourgogne, 210 U.S. 95, which involved the master's failure to obey rules and instructions when on the high seas and disaster attributable to such fault, are cited. But there is a vast difference between the cases relied on and the instant one. The launch was used for ferriage over a distance of about a mile and a third. She was known to be unseaworthy and unfit if there was ice in the river. There is no analogy between such a situation and that presented in the cited cases where the emergency must be met by the master alone. In these there is no opportunity of consultation or cooperation or of bringing the proposed action of the master to the owner's knowledge. The latter must rely upon the master's obeying *512 rules and using reasonable judgment. The conditions on the morning in question could have been ascertained by Stover, if he had used reasonable diligence, and we think the evidence is adequate to support the finding that the negligence which caused the disaster was with his, and therefore with the owner's, privity or knowledge.
What was the duty of the admiralty court after it found the circumstances did not permit limitation of liability? Having found that certain claimants were within the scope of the workmen's compensation act the District Court refused them any awards and remitted them to the Compensation Bureau. This was approved by the Circuit Court of Appeals. But we think that the admiralty court, having taken jurisdiction and brought all claimants into concourse, should have given complete relief. Hartford Accident & Indemnity Co. v. Southern Pacific Co., 273 U.S. 207. The petitioners in No. 444 maintain, first, that the state statute providing workmen's compensation is inapplicable to the maritime torts here in question and that they were entitled to relief under the maritime law or the death statutes of New York adopted as part of that system. Secondly, they say that the owner having invoked the jurisdiction of admiralty, enjoined prosecution of claims before the Workmen's Compensation Bureau, compelled claimants to appear in the admiralty court to try the question of limitation, and delayed for years any prosecution before the Bureau, has chosen its forum, forced them to litigate therein, and the jurisdiction so lawfully attaching cannot be surrendered in favor of that under the workmen's compensation law of the state. As we think the first contention well founded we have no occasion to pass upon the second.
Kellogg & Sons undertook the interstate carriage of passengers by water on a launch operated by its servants. This was a maritime matter. The ferriage was for the facilitation of the company's business and for its convenience *513 as well as that of the employees.[4] The injury to the passengers resulted from negligence of the company's agents in the navigation of the launch. It was a maritime tort. The rights and obligations of the parties depended on and arose out of the maritime law. A proceeding to impose liability for such a tort is a cause in admiralty within the meaning of Article III, Sec. 2 of the Constitution, triable in the United States courts sitting in admiralty. Leathers v. Blessing, 105 U.S. 626, 630; Workman v. New York, 179 U.S. 552, 565; Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 58; § 9, Judiciary Act of 1789.[5] As the tort, though maritime, was committed upon the waters of the state of New York, the personal representatives of those who lost their lives were entitled to sue in admiralty and to recover as provided by the state statute giving a remedy for death by wrongful act. American Steamboat Co. v. Chase, 16 Wall. 522, 531; Sherlock v. Alling, 93 U.S. 99; Western Fuel Co. v. Garcia, 257 U.S. 233; Washington v. Dawson, 264 U.S. 219, 226.
The workmen's compensation law of New Jersey, the purpose of which was to supersede the common law redress in tort cases and statutory rights consequent upon death by wrongful act, and to substitute a commuted compensation for injury or death of an employee, irrespective of fault, is not applicable to the injuries and deaths under consideration.
The decisions hold that the remedy which the compensation statute attempts to give is of a character wholly unknown to the common law, incapable of enforcement *514 by the ordinary processes of any court, and is not saved to suitors from the grant of exclusive jurisdiction to the courts of the United States of all civil cases of admiralty and maritime jurisdiction. Southern Pacific Co. v. Jensen, 244 U.S. 205, 218; Chelentis v. Luckenbach S.S. Co., 247 U.S. 372; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149; Washington v. Dawson, supra. None of the employees or the personal representatives here concerned could have proceeded in admiralty to enforce the workmen's compensation law of New Jersey. That law has not been recognized and taken up as part of the admiralty jurisprudence of the United States.
The compensation act is inapplicable to such a maritime tort, and the injured person is entitled to his remedy under rules recognized in admiralty. Messel v. Foundation Co., 274 U.S. 427; Warren v. Morse Drydock & Repair Co., 235 N.Y. 445, 447; 139 N.E. 569.
In the Jensen case, supra, this Court said:
"And finally this remedy [under the compensation act] is not consistent with the policy of Congress to encourage investments in ships manifested in the Acts of 1851 and 1884 (Rev. Stats., §§ 4283-4285; § 18, Act of June 26, 1884, c. 121, 23 Stat. 57) which declare a limitation upon the liability of their owners."
Kellogg & Sons sustained towards employees injured or killed the dual relationship of a carrier by water and a general employer at its Edgewater plant.[6] Under the federal statutes the company, acting in the first capacity, was entitled to a limitation of liability unless the claimants could prove negligence with the owner's privity or knowledge. They assumed the burden of proving such negligence. They sustained it and are entitled to recover according to the rules of the maritime law, including, of course, any applicable death statute.
*515 The court below was right in refusing a limitation of liability and in holding that the applicants for employment who had been told to return on the morning in question were entitled to awards in this proceeding; but it erred in denying awards according to the rules recognized in admiralty to the surviving employees and personal representatives of deceased employees of Kellogg & Sons, and remitting them to their remedy under the New Jersey Compensation Act. The decree is therefore reversed and the cause remanded to the District Court for further proceedings in conformity with this opinion.
Reversed.
MR. JUSTICE BRANDEIS and MR. JUSTICE STONE join in so much of the opinion as holds that limitation of liability was rightly refused. They concur also in the conclusion that Kellogg & Sons are liable in this proceeding, but they do so upon the ground that the owner having invoked, as stated, the jurisdiction in admiralty, it cannot be surrendered in favor of that under the workmen's compensation law of the state.
MR. JUSTICE SUTHERLAND is of opinion that the petition in No. 444 is not well founded and that the decree should be affirmed.
MR. JUSTICE CARDOZO took no part in the consideration or decision of these cases.
NOTES
[*] Together with No. 444, Alexander, Administratrix, et al. v. Spencer Kellogg & Sons, Inc.
[1] 9 Stat. 635; R.S. § 4283; U.S.C., Tit. 46, § 183, as amended by § 4 of the Act of June 19, 1886, c. 421; 24 Stat. 80; R.S. § 4289, U.S.C., Tit. 46, § 188.
[2] R.S. § 4283; U.S.C., Tit. 46, § 183. "The liability of the owner of any vessel . . . for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending."
[3] The Hypodame, 6 Wall. 216, 223; The North Star, 106 U.S. 17, 18; The Carib Prince, 170 U.S. 655, 658; Oelwerke Teutonia v. Erlanger, 248 U.S. 521, 524.
[4] In such circumstances the New Jersey Compensation Law is applied by the courts of that State, which hold that the relation of employer and employee exists during such transportation. DePue v. Salmon Co., 92 N.J.L. 550; 106 A. 379; Alberta Contracting Corp. v. Santomassimo, 107 N.J.L. 7; 150 A. 830.
[5] 1 Stat. 76, 77; Jud. Code, §§ 24 and 256; U.S.C. Tit. 28, § 41 (3); § 371 Third.
[6] Page 514 See note 4, supra. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1624099/ | 121 S.W.3d 748 (2003)
Tommy Lynn SELLS, Appellant,
v.
The STATE of Texas.
No. 73993.
Court of Criminal Appeals of Texas, En banc.
March 12, 2003.
Rehearing Denied April 23, 2003.
*752 Mark Stevens, San Antonio, for appellant.
Fred Hernandez, Dist. Atty., Del Rio, Matthew Paul, State's Attorney, Austin, for state.
OPINION
KELLER, P.J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.
In September 2000, a jury convicted appellant of capital murder.[1] Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death.[2] Direct appeal to this Court is automatic.[3] Appellant raises thirty-six points of error. We will affirm.
I. SUFFICIENCY OF THE EVIDENCE
A. Background
On the evening of December 30, 1999, appellant was at a convenience store when Terry Harris drove up and spoke to him. *753 Harris said that, when he returned from Kansas, he would repay the $5,000 drug debt he owed appellant. Later that evening, appellant went to a bar where he stayed until closing time. A waitress there, Noell Houchin, confirmed that appellant arrived around 10:00 p.m. and stayed for four hours. During that time he drank four beers and seemed obsessed with having sex with her. Houchin told the jury that appellant repeatedly asked to have sex with her, even offering to pay for it, despite her refusing repeatedly and telling him that she had a boyfriend. Houchin also testified that appellant did not seem intoxicated when he left around 2:15 a.m.
After leaving the bar, appellant went to a flea market and drank more beer. After a while, appellant started thinking that Harris "had been fucking with" him about paying the debt, and he decided "to do something about it." Appellant thereafter retrieved more beer and a knife from his house and drove over to Harris's house. Appellant parked down the street from Harris's home, which was located in a somewhat remote area. When appellant entered the backyard, the dog, who was in the front yard, began to bark. Appellant walked to the front yard and petted the dog. Because appellant had previously befriended the Harris's dog, the dog stopped barking. After trying unsuccessfully to break in through the back door and a locked window, appellant found an open window and entered the residence. After looking in various rooms, appellant went into a room where two young girls were sleeping on bunk beds. Appellant laid on the bottom bunk with thirteen-year-old Kaylene Harris and cut off her panties with his knife. After appellant inserted his finger into Kaylene's vagina, she jumped out of bed. Appellant, however, blocked the door and stabbed Kaylene as she tried to escape. Appellant then cut Kaylene's throat several more times and went over to her eleven-year-old companion, Krystal Surles, who was still on the top bunk, and cut her throat.
Appellant left the trailer, wiped his fingerprints off a doorknob, and took two window screens with him because they had his fingerprints on them. Appellant disposed of the screens and his knife on the way to his home.
Krystal survived the attack and walked about a quarter of a mile to a neighbor's house to get help. She later supplied a description of the man who had attacked her, and appellant was subsequently identified and arrested. When Harris returned home, he found the telephone line had been cut. He told the authorities that appellant had been to his home on several occasions and had learned where the telephone line was the day appellant helped Harris fix a leaking pipe at the house.
Scientific tests conducted on the clothes recovered from appellant and testimony from the medical examiner regarding Kaylene's wounds corroborated statements appellant gave to the police concerning the incident. However, appellant claimed that he had no specific intent to commit sexual assault when he broke into the Harris home. Rather, everything happened spontaneously.
B. Analysis
In point of error twenty-six, appellant asserts that the evidence is legally insufficient to prove capital murder because he did not specifically intend to commit aggravated sexual assault when he broke into the Harris trailer. In point of error twenty-seven, he asserts that the evidence is factually insufficient for the same reason.
In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential *754 elements of the offense beyond a reasonable doubt.[4] The indictment in the instant case alleged that appellant intentionally caused the death of Kaylene Harris while in the course of "committing burglary of a habitation with intent to commit aggravated sexual assault."[5] The State's evidence included appellant's own statements that he broke into the Harris trailer without consent and sexually assaulted a young girl at knifepoint. His statements also indicated that he prepared to encounter persons in the home by securing a knife before arriving at the residence. Other evidence showed that appellant knew the Harris family and the layout of their home, knew that Terry Harris would be out-of-town, and knew the location of the phone line. Finally, the jury could have rationally inferred appellant's intent to commit aggravated sexual assault from his obsession with sex at the bar earlier in the evening and from the fact that he secured a weapon before he went to the Harris home.
Looking at the evidence in the light most favorable to the verdict, we hold that the jury could have rationally determined that appellant murdered Kaylene Harris while in the course of committing burglary with the intent to commit aggravated sexual assault. Point of error twenty-six is overruled.
In a factual sufficiency review, this Court views all the evidence without the prism of "in the light most favorable to the prosecution" and sets aside the verdict only if the evidence supporting the verdict is so weak or so against the great weight and preponderance of contrary evidence as to render the verdict clearly wrong and manifestly unjust.[6] A clearly wrong and unjust verdict occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias."[7]
In conducting such a review, we consider all of the evidence weighed by the jury, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence which tends to disprove it.[8] We are authorized to disagree with the jury's determination even if probative evidence exists which supports the verdict, but we must avoid substituting our judgment for that of the fact-finder.[9]
The evidence that appellant asserts weighs against a finding that he broke into the Harris home with a specific intent was his own statement that he had no such intent. This does not render the evidence factually insufficient. Point of error twenty-seven is overruled.
II. VOIR DIRE
A. Parole questions
1. Background
In points of error six through nineteen, appellant contends that the trial court violated Article I, section 10 of the Texas Constitution and the Due Process Clause *755 of the Fourteenth Amendment to the United States Constitution when it refused to allow him to question the entire venire and various individual veniremembers on the law of parole. Specifically, he asserts that he was not allowed to ask the following four questions:
1. Would the minimum length of time a defendant could serve in prison before he could be paroled be something you would want to know in answering the special issues?
2. On which special issue would this be important? How would this 40 year minimum sentence be important to you in answering the special issues?
3. Would you be more likely, or less likely, generally, to view a defendant as a continuing threat to society if you knew he could not be paroled for a minimum of 40 years?
4. What kind of evidence would you expect, as a juror, to help you in considering the 40-year parole ineligibility factor when answering the special issue?[10]
He also complains that the trial court specifically ruled that no questions regarding parole law would be permitted. Appellant contends that, after the statutory amendment adding Article 37.071, § 3(e)(2)(B),[11] parole eligibility became an issue applicable to capital murder prosecutions, and thus, a proper inquiry for voir dire.
The State contends that, despite the enactment of the parole instruction provision, parole remains an improper subject of voir dire because "society" includes both free and prison society, and therefore, incarceration does not reduce or increase the defendant's future dangerousness. Alternatively, the State argues that parole does not become an issue applicable to the case until requested under the statute, and therefore, appellant was not entitled to ask questions about parole because he had not yet submitted a written request for an instruction under § 3(e)(2)(B).
2. Analysis
The trial court has broad discretion over the process of selecting a jury.[12] Without the trial court's ability to impose reasonable limits, voir dire could go on indefinitely.[13] Thus, we leave to the trial court's discretion the propriety of a particular question and will not disturb the trial court's decision absent an abuse of discretion.[14] A trial court abuses its discretion when it prohibits a proper question *756 about a proper area of inquiry.[15] A question is proper if it seeks to discover a juror's views on an issue applicable to the case.[16] However, an otherwise proper question is impermissible if the question attempts to commit the juror to a particular verdict based on particular facts.[17] In addition, a trial judge may prohibit as improper a voir dire question that is so vague or broad in nature as to constitute a global fishing expedition.[18]
With the change in the law effective September 1, 1999, a jury may now be instructed on a capital defendant's eligibility for parole.[19] Assuming, without deciding, that the statutory change renders questioning about parole permissible in some situations,[20] appellant has failed to show error here.
To preserve error, appellant must show that he was prevented from asking particular questions that were proper. That the trial court generally disapproved of an area of inquiry from which proper questions could have been formulated is not enough because the trial court might have allowed the proper question had it been submitted for the court's consideration.[21] Here, none of appellant's proposed questions were proper.
All of appellant's questions relate to how a particular fact (in this case, the minimum amount of time a capital life defendant must be incarcerated before becoming eligible for parole) might influence jury deliberations. These types of questions implicate the strictures imposed by Standefer against commitment questions and by Barajas against ambiguous questions.[22] Appellant's questions all appear to be attempts, either directly or through ambiguously worded questions, to commit the veniremembers to giving mitigating or aggravating effect to the minimum parole eligibility requirement. Appellant's first proposed questionabout whether a veniremember would want to know the minimum time a defendant could serve in prison before he could be paroledis not strictly relevant to a juror's duties or any issue in the case. What the jurors wants to know is immaterial; the trial court will give jurors the proper information about the application of the law. The perceived relevance of the question stems from why a juror wants to know about parole law. This implied "why" question is ambiguous. *757 Does the prospective juror want to know minimum parole eligibility because that knowledge will foreclose honest consideration of the special issues or because that knowledge will have an impact on how evidence is evaluated with regard to the special issues?[23] If the latter, the question is really designed to determine whether the veniremember would give, or to commit the veniremember to giving, mitigating or aggravating impact to the minimum parole eligibility requirement. Appellant's second and fourth questions invite the prospective jurors to set the parameters for their decision-making by determining to which special issues the parole eligibility instruction would be considered relevant, the mitigating or aggravating impact the instruction would have on the juror's consideration of the special issues, and what evidence would tend to accentuate or minimize the parole instruction's mitigating or aggravating effect.[24] Appellant's third question directly seeks to determine whether a prospective juror will give the parole instruction mitigating or aggravating effect in the context of the future dangerousness special issue. Although a capital life inmate's minimum parole eligibility is in some sense a fact, it is also codified by statute and now provided for by statute as an instruction. Because of this incorporation into the statutory framework, a prospective juror must be able to keep an open mind on the punishment special issues even after acquiring knowledge of this fact.[25] But the law neither requires nor precludes the factoring of the parole instruction into the jurors' analysis of the special issues; so, any attempt to commit prospective jurors to giving mitigating, aggravating, or even no effect to the parole instruction is impermissible.[26] Thus, the trial judge did not err when he refused to allow appellant to ask the entire venire or various individual veniremembers the proposed questions on the law of parole. Points of error six through nineteen are overruled.
B. Future dangerousness question
In his twenty-third point of error, appellant complains that the trial court erred when it prohibited him from asking a venireperson whether she could answer the future dangerousness issue "no" if the defendant had just been convicted of the capital murder of a young girl. Specifically, the following occurred:
[By defense counsel] Q. That's fine. Can you imagine a set of circumstances, set of facts where you would find a person guilty of capital murder, of killing a young girl where you would answer question number one no if you thought that that is the kind of case that was
THE COURT: Well, just disregard thethat clause, killing of a young girl. Now counselgo ahead, [prosecutor].
[By the prosecutor]: We'll object on the basis that [defense counsel] is trying to commit the juror to a specific course of action or a specific set of facts.
THE COURT: Sustained. *758 Without further comment to the court, defense counsel rephrased his question and asked it again.
As we explained in Standefer, a commitment question is one which seeks to "commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact."[27] Further, such a question is proper only when it includes such facts, and only those facts, that lead to a challenge for cause.[28]
The question that appellant wanted to ask the venireperson sought to commit her to a particular answer after learning a particular fact. Thus, as phrased, it was a commitment question. Further, that a defendant has been convicted of the capital murder of a young girl is a factor that a juror could consider in determining punishment. However, the law does not require the juror to consider the factor or to give it any weight. Therefore, regardless of her answer to the specific question asked, the prospective juror would not have been subject to a challenge for cause. The trial court did not err in refusing to allow appellant to ask an improper commitment question. Point of error twenty-three is overruled.
C. Challenges for cause
In his twentieth, twenty-first, and twenty-second points of error, appellant complains about the trial court's failure to grant his challenges for cause to venirepersons Urbano Gonzalez and Gregory Sedbrook. Specifically, he complains that each had a bias against some phase of the law upon which he was entitled to rely.[29]
To preserve error on denied challenges for cause, an appellant must demonstrate on the record that: 1) he asserted a clear and specific challenge for cause; 2) he used a peremptory challenge on the complained-of venireperson; 3) all his peremptory challenges were exhausted; 4) his request for additional strikes was denied; and 5) an objectionable juror sat on the jury.[30] The record reflects that appellant exhausted all fifteen of his peremptory challenges, received an additional challenge, used that challenge, and then requested, but was denied, further challenges. Appellant then objected to the seating of the twelfth juror, thereby preserving any error for review on appeal.[31]
When the trial judge errs in overruling a challenge for cause against a venireperson, the defendant is harmed if he uses a peremptory strike to remove the venireperson and thereafter suffers a detriment from the loss of the strike.[32] Because the record reflects that appellant received an extra peremptory challenge in addition to the fifteen he was granted by statute, appellant can demonstrate harm only by showing that both of his complained-of challenges were erroneously denied. Feldman, 71 S.W.3d at 743-45; Penry v. State, 903 S.W.2d 715, 732 (Tex. Crim.App.), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995).
A defendant may properly challenge any prospective juror who has a *759 bias or prejudice against any phase of the law upon which he is entitled to rely.[33] When reviewing a trial court's decision to grant or deny a challenge for cause, we look at the entire record to determine if there is sufficient evidence to support the trial court's ruling.[34] The test is whether the bias or prejudice would substantially impair the prospective juror's ability to carry out his oath and instructions in accordance with the law.[35] Before a prospective juror can be excused for cause on this basis, however, the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views.[36] Finally, the proponent of a challenge for cause has the burden of establishing his challenge is proper.[37] The proponent does not meet his burden until he has shown that the venireman understood the requirements of the law and could not overcome his prejudice well enough to follow it.[38]
In point of error twenty-two, appellant complains about prospective juror Sedbrook. Specifically, he complains that the trial court erred in denying his challenge to Sedbrook because the prospective juror "was biased against the law that `society' comprises persons inside prison." Specifically, appellant bases his claim on the following exchange:
Q. [By defense counsel] You know, in answering [the future dangerousness question], would you consider whether those persons are going to commit acts of violence in prison?
A. [Venireperson] I'm not sure about that one, I guess. To me when I saw society I guess we all kind of feelor I feel like it is people that are outside of the prison.
THE COURT: No, that's not necessarily the meaning of the term. It can be the person's environment.
We must look at this exchange in the context of the entire conversation. Just prior to the above-quoted exchange, defense counsel asked Sedbrook for his definition of society. Sedbrook responded that society meant all individuals. When counsel asked Sedbrook if he could envision a type of society existing behind prison walls, Sedbrook said that he could. This was the extent of the conversation regarding the definition of society. After the judge's brief comment that society did not necessarily mean just the people outside of the prison, Sedbrook was never asked whether he could follow any instructions the judge gave him regarding the term.
Given the record, appellant has failed to meet his burden of showing that the law was explained to the venireperson, or that the venireperson was asked whether he could follow that law regardless of his personal views. As such, we cannot say that the trial judge erred in denying appellant's challenge for cause to veniremember Sedbrook. Point of error twenty-two is overruled.
Because the trial court did not err in denying appellant's challenge to Sedbrook, appellant cannot show on appeal that both of his complained-of challenges for cause were erroneously denied. Thus, he cannot show harm.[39] Points of error twenty and twenty-one are overruled.
*760 III. ADMISSION OF EVIDENCE
A. Videotaped statements
1. Background
In his first two points of error, appellant complains that the trial court erred when it overruled his objections to State's Exhibits One-A and Three because the State failed to provide the defense with a copy of either exhibit "within 20 days of commencement of the pre-trial hearing in this case," in violation of Article 38.22, § 3(a)(5).
On February 16, 2000, defense counsel filed a motion to suppress any statements appellant gave to authorities on the ground that they were not given voluntarily. In a pretrial hearing on April 28, defense counsel asked that his motion to suppress be reset to a later pretrial hearing to give him time to have appellant examined by his appointed psychologist. The trial court granted appellant's request and also set jury selection to begin on August 22.
On June 25, the trial court held a second pretrial hearing. The judge noted at this hearing that the motion to suppress was still pending and asked if the parties were ready to litigate the matter. The State responded that it was ready to proceed; however, defense counsel stated that he was not. Nonetheless, the court proceeded to hold a Jackson v. Denno hearing to determine whether any statements appellant had made were given voluntarily.[40] The prosecutor advised the court of the existence of two videotapes containing statements made by appellant.[41] Defense counsel objected that he did not have copies of the videotapes. He then argued that competency was an issue in determining the voluntariness of the statements and complained that the court had not allowed him funds to have appellant evaluated. The judge reminded defense counsel that he had, in fact, provided him funds. The judge also noted that he was not concerned with the contents of the tapes and therefore saw no need to play the tapes. The judge then proceeded with the hearing on the motion to suppress.
During direct examination of the first witness, the prosecutor introduced State's (pretrial) Exhibit One, a videotaped statement that appellant had given authorities, and State's (pretrial) Exhibit Two, a videotaped walk-through of the crime scene. After the State questioned its remaining witnesses and rested, the prosecutor urged the court to overrule appellant's motion to suppress. Defense counsel argued in response:
Your Honor, first of all, 38.22 does provide that theprior to the statement not later than the 20th day before the date of the proceeding the attorney representing the defendant is to be provided with a true, complete and accurate copy of the recordings, and I was not given a completeor any copies of the recordings. Apparently they have been available since January.
The Court responded, "You will get to look at them." Counsel further asked the court to reserve ruling on the motion until he had a chance to have appellant evaluated by the defense expert. He also asked for time to review blood evidence that had been taken from appellant. The court overruled the motion to suppress.[42]
*761 On September 12, the first day of trial, the videotaped walk-through of the crime scene (State's (pretrial) Exhibit Two) was offered and admitted into evidence as State's (trial) Exhibit Three. Defense counsel reiterated many of the objections he had made previously but did not reassert the Article 38.22, § 3(a)(5) objection he made at the pretrial hearing on the motion to suppress. The next day, the State had a witness identify State's (trial and pretrial) Exhibit One, appellant's videotaped statement. However, when the prosecutor offered the exhibit into evidence, defense counsel asked the court to withhold its ruling until counsel had an opportunity to visit with the court. The court granted counsel's request, explaining to the jury that certain preliminary requirements must be met before a tape can be admitted, and the court had to review the tape before it could rule on the tape's admissibility. State's (trial) Exhibit One was never admitted into evidence at trial.
On September 14, the State identified State's (trial) Exhibit One-A through its witness and offered it into evidence. The trial court explained that the exhibit was a redacted version of appellant's original videotaped statement (State's (trial and pretrial) Exhibit One) which was prepared by defense counsel at the court's direction. Defense counsel objected to the exhibit on the same grounds that he had objected to State's Exhibit One. The trial judge overruled counsel's objections and admitted the exhibit.[43]
Relying upon Tigner v. State[44] and commentary by Professors Dix and Dawson,[45] appellant contends that § 3(a)(5) applies to pretrial hearings and that the State's failure to provide the videotapes within twenty days of the pretrial hearing precludes their admission at trial. Relying upon Lane v. State[46] and Article 28.01, § 2, the State contends § 3(a)(5) does not apply to proceedings occurring before voir dire.
2. Analysis
Article 38.22, § 3(a)(5) provides that:
No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:
* * *
(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.
Under our decision in Boykin v. State, we interpret a statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have intended.[47] In accordance with those standards, we have twice before construed the language of this provision. In Tigner, we construed the word "criminal proceeding" to encompass voir dire as part of the trial in a *762 criminal prosecution.[48] In so doing, we relied upon the language of the statute, the legislative history, and commentary from Professors Dix and Dawson's treatise on criminal procedure.[49] We observed that the phrase "criminal proceeding" is a "very broad" term, "conceivably extending to all phases of a criminal prosecution."[50] After examining the legislative history, we found that the purpose of the twenty-day requirement was to give defense counsel "adequate time to prepare possible challenges to the admissibility or credibility" of the recorded statements at issue.[51] We referred to one senator's remarks that the time requirement would enable testing of the recording to determine whether any splicing, alteration, or other improprieties had occurred.[52] The provision's author indicated that the twenty-day requirement would enable counsel to have a copy of the recording with ample time to plea bargain.[53] We found that these purposes would be frustrated in many cases if defense counsel were unable to obtain a copy of the recording before voir dire and that defense counsel might be precluded from questioning the venire about the application of Article 38.22.[54] Finally, we cited Professors Dix and Dawson's opinion that the term "proceeding" includes a pretrial hearing "if there is one."[55]
In Lane, a plurality of this Court construed the word "provided" and held that actual delivery of the recording was unnecessarydefense counsel was provided with the recording when it was made available to him.[56] The opinion turned to whether counsel had been provided the recording in a timely fashion.[57] It held that the defense counsel procedurally defaulted any claim that the recording was not provided within twenty days of the pretrial hearing because he failed to object on that basis at the pretrial hearing.[58] The plurality remarked that, had he objected, "he may have been entitled to a twenty-day continuance of the hearing to examine copies of the recordings."[59]
Although we have not yet held that § 3(a)(5) applies to pretrial hearings, our prior opinions have certainly laid the groundwork for doing so. Such a holding would be consistent with the language of the statute, which employs the broad term "criminal proceeding." The legislative history regarding the need for time to prepare challenges to the recording also supports the notion that such time to prepare should be given before the pretrial hearing, where such challenges will take place. And of course, such a holding would also be consistent with Professors Dix and Dawson's commentary on the issue.
The State contends that it should not be required to provide recordings twenty days before the pretrial hearing because the provision of recordings twenty days before voir dire gives the defendant sufficient time to evaluate and test the evidence. That contention ignores the purpose of having a pretrial hearing on a suppression of evidence questionto settle the issue before trial. This purpose becomes *763 especially salient for the plea-bargaining defendant because his appellate rights are limited, one category of appealable issues being motions that have been raised and ruled upon before trial.[60] The State also suggests that defendants can manipulate the system because they can wait until ten days before the pretrial hearing to file a motion to suppress thereby making it impossible for the State to give the requisite twenty days notice. But the State is not entitled to wait for the defendant to file a motion to suppress to turn over a copy of the recording. If there had been no pretrial hearing and the defendant had first objected to the evidence at trial, the State would not be excused from the twenty-day requirement simply because it did not know the defendant would object.[61] The same reasoning applies to pretrial hearings. The State possesses the recording and knows that it may offer the oral statement at trial, and therefore, the State knows that the oral statement's admissibility may be litigated at the pretrial hearing.
Moreover, the State misinterprets Article 28.01, as that statute precludes the filing of any motions less than seven days before the pretrial hearing but only if the defendant has had at least ten days in which to file motions.[62] In other words, the statute contemplates that, if the defendant has at least seventeen days notice of the pretrial hearing, then he must file pretrial motions at least seven days in advance of that hearing. It is possible that the trial court could provide such short notice of the pretrial hearing that there would not be twenty days from the time of notice to the time of hearing, either because the trial court gives at least seventeen but less than twenty days notice or because the trial court decides to waive the seven-day filing requirement as to the defendant. Nevertheless, such an occurrence is not attributable to the defendant, and in any event, can be remedied without significant prejudice to the State, as will be explained below.
The State also contends that our decision in Lane favors the State's interpretation because that decision showed that we are "inclined to construct section 3(a) in a manner that will not require exclusion of evidence when the defense has shown no appreciable harm." In Lane, we indicated that the purpose of the statute can guide interpretation of ambiguous language,[63] but the above discussion shows that applying the twenty-day requirement to pretrial hearings actually furthers the purpose of giving the defendant adequate notice to prepare a challenge to the evidence and to conduct plea negotiations. And in fact, Lane recognized the possibility, albeit in dicta, of the twenty-day provision applying to pretrial hearings.[64]
Finally, one might contend that evidence is not really "admitted" at pretrial hearings, as pretrial hearings are not governed by the rules of evidence in the first place, so the statute must refer to the trial phase of the prosecution. While it is now true *764 that the rules of evidence do not apply to suppression hearings,[65] at the time the twenty-day provision was added to Article 38.22, the rules of evidence did apply to such hearings.[66] And while the rules of evidence, in general, do not apply to suppression hearings, the statute has priority over the rules,[67] and thus carves out an exception in this instance. We conclude that § 3(a)(5) applies to pretrial hearings.
Even though the statute applies to pretrial hearings, one might contend that the statute does not apply here because the trial court never formally admitted the oral statements into evidence, did not examine the recordings, and did not inquire into the statements' contents. But the oral statements were the subject of a voluntariness claim. Where the oral statement is the subject of the hearing, we will not engage in hairsplitting and perhaps confusing distinctions concerning whether the statement was "admitted" at the pretrial proceeding. We believe the legislative purpose of giving defense counsel time to prepare is effectuated by preventing the trial court from considering the statement for any purpose.
Having held that the statute applies to pretrial hearings, and to any use of the statement at such hearings, we turn next to the effect of the statute's application. Appellant contends that the failure to provide a copy of the recording twenty days in advance of the pretrial hearing renders the oral confession inadmissible at trial. We disagree. Isolating the pertinent language shows the provision to read as follows: "No oral ... statement ... shall be admissible against the accused in a criminal proceeding unless ... not later than the 20th day before the date of the proceeding [a copy of recording is provided]" (emphasis, ellipses, and bracketed material added). The plain meaning of the statutory language is that "the proceeding" in § 3(a)(5) is the same proceeding as "a criminal proceeding" in the introductory clause of § 3(a). The proceeding to which the twenty-day requirement applies is the same proceeding at which the evidence is rendered inadmissible, when there is no compliance. Thus, failure to provide the recording twenty days before the pretrial hearing renders the oral confession inadmissible at the pretrial hearing. The State complied with the twenty-day requirement with regard to trial, and so, the oral confession was not rendered inadmissible at trial under this provision.
As we suggested in Lane, the practical remedy for the failure to comply with § 3(a)(5) with regard to the pretrial hearing is a twenty-day continuance of the hearing. Essentially, the defendant has the right to prevent the trial court from considering the admissibility of the oral confession until twenty days after a copy of the recording is provided. Appellant's reliance upon Professors Dix and Dawson is a double-edged sword because, in the second edition of their treatise, they express approval of the remedy suggested in Lane: "as Lane suggests, the most appropriate remedy would seem to be to give the defendant a right to delay of the pretrial hearing to enable the defense to make use of the copies for purposes of addressing the pretrial hearing issues."[68]
Because a violation of § 3(a)(5) is statutory, the appropriate harm analysis is the standard found in Rule 44.2(b).[69] In *765 interpreting former Rule 81(b)(2), Tigner held that the focus of the harm analysis is on the harm flowing from the erroneous admission of the evidence.[70] We agree that the focus of a harm analysis for this statute remains unchanged under Rule 44.2(b), but in this case, the erroneous use of the evidence occurred not at trial, but at the pretrial hearing. Appellant reurged his objection to Exhibit One and was allowed to litigate further its admissibility at a time when the twenty-day requirement had long since been fulfilled. Defense counsel was also given the opportunity to edit that exhibit so that a redacted version, rather than the original, was played before the jury. Although exhibit three's admissibility was not relitigated, appellant had the opportunity at trial to lodge a § 3(a)(5) objection to its admissibility and did not do so.[71] We do not agree with appellant's contention that the error at the pretrial hearing requires the trial court to bar admission of the evidence at trial, and appellant offers no reason for us to conclude that he was otherwise harmed by the error. On this record, the error clearly appears to us to be harmless because appellant was given a timely opportunity to relitigate the admissibility of the evidence. The State points to the strength of other evidence supporting the conviction as rendering the error harmless, and we agree that the strength of other evidence is relevant to a harm analysis, but even without such evidence, we conclude the error is harmless here. Points of error one and two are overruled.
B. Videotape of prison facilities
Appellant complains in points of error three, four, and five that the trial court erred under Texas Rule of Evidence 403, the Eighth Amendment to the United States Constitution, and the Due Process Clause of the Fourteenth Amendment when it held inadmissible Defendant's Exhibit Two, a videotape depicting the administrative segregation facilities of a Texas prison unit. Appellant called psychologist Windell Dickerson to testify at the punishment stage of trial. During direct examination, Dr. Dickerson identified a fifty-seven minute videotape that showed "the physical facilities of an administrative segregation unit in the Texas Department of Criminal Justice, and the buildings in which those units are housed." He testified that the video "[c]onceivably [] could" assist the jury "in determining whether or not a prison system can, in fact, control [appellant.]" No evidence was offered that the circumstances portrayed in the videotape would specifically apply to appellant in his situation.
Outside the presence of the jury, the State objected that the tape was not relevant, that it was more prejudicial than probative under Rule 403, that it was cumulative of testimony Dickerson had already given, and that it was long and did not add anything that would assist the jury. Defense counsel responded that the tape was not cumulative and would aid the jury in answering the future dangerousness issue because it showed generally how prisoners are moved, housed, and fed, and how they go to the nurse or to recreate. Defense counsel also offered to cut the tape down to a length of ten to fifteen minutes.
Questioning the relevancy of the videotape, the court sustained the State's objection, noting that the tape showed only one *766 aspect of prison life and did not portray the prison system's entire method of operation. The judge further held that any probative value the tape had was substantially outweighed by the danger of misleading the jury as to all aspects of the Texas prison system.
On appellate review a trial court's admission or exclusion of evidence is subject to an abuse of discretion standard.[72] If the trial court's decision was within the bounds of reasonable disagreement we will not disturb its ruling.[73]
Texas Rule of Evidence 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." Further, except as otherwise provided by statute or rule, a jury is entitled to have before it "all possible relevant information about the individual defendant whose fate it must determine."[74] The videotape was not offered as information about the individual defendant or about how the individual defendant might be handled. Rather, as the judge noted, it portrayed only one aspect of an entire system and offered only general information about some procedures used in that system. That others have been controlled in the prison system or that certain procedures are in place without specifically connecting those procedures to appellant was not evidence of consequence to the jury's factual determination of whether appellant would pose a continuing threat to society.[75] Even assuming that the evidence was minimally relevant, however, the trial court was within its discretion to exclude the evidence pursuant to Rule 403. Under that rule, 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 needless presentation of cumulative evidence."[76] Rather than assist in the jury's factual determination of the danger appellant posed to society, the videotape might have confused and distracted the jury from its factfinding task. Thus, it was reasonable for the trial court to conclude that the risks of confusing the jury substantially outweighed any probative value the video might have. Under these circumstances, the trial court did not abuse its discretion in excluding the exhibit. Likewise, the court's exclusion of the tape did not violate Eighth and Fourteenth Amendment principles. Points of error three through five are overruled.
C. Written confession
Appellant asserts in his twenty-fourth and twenty-fifth points of error that the trial court erred in admitting into evidence his second written statement (State's Exhibit Five) because he made the statement involuntarily in violation of Article I, section 10 of the Texas Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.[77] Specifically, appellant states that he had expressed his desire to die rather than spend his life in prison. He contends *767 that the officer taking the statement used this knowledge to coerce appellant into giving the second statementwhich solidified the evidence of the aggravating element of capital murderby promising appellant that the confession would result in the State seeking the death penalty for the offense.
"[A] defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction."[78] The defendant has a right to object to the use of the confession and the right to a hearing to determine whether the confession was voluntary.[79] The trial court is the sole factfinder at a Jackson v. Denno hearing and may choose to believe or disbelieve any or all of the witnesses' testimony.[80] This Court is not at liberty to disturb any finding which is supported by the record.[81]
During the hearing on appellant's motion to suppress, Deputy Sheriff Larry Pope testified about his investigation of the case which led to appellant's arrest and about the circumstances surrounding the taking of the oral and written confessions. On cross-examination, Pope agreed that appellant had made comments about wanting to die rather than spend his life in prison. However, Pope contested defense counsel's interpretation of the comments as showing mental instability. Rather, Pope explained to the court that he took the comments as appellant trying to appear "con tough." Pope also stated that appellant told him that he had no remorse for the crime. Texas Ranger John Allen, who also participated in some of the interviewing process, did not recall appellant stating at any time that he wanted to die. Appellant did not call any witnesses for the hearing.
After the conclusion of the testimony, the trial judge heard arguments. He then entered findings of fact and conclusions of law that appellant freely and voluntarily gave both oral and written statements after intelligently and voluntarily waiving his rights. Because the record evidence supports the trial court's conclusions, we hold the trial court did not abuse its discretion in denying appellant's motion to suppress. Points of error twenty-four and twenty-five are overruled.
IV. CONSTITUTIONALITY OF STATUTE
In points of error twenty-eight through thirty-six, appellant challenges the constitutionality of Article 37.071. Specifically, appellant asserts that Article 37.071 is unconstitutional for the following reasons:
(Point 28) The future dangerousness issue is vague because it does not define the terms "probability," "criminal acts of violence," and "continuing threat to society." (Point 29) The mitigation issue does not provide for meaningful appellate review. (Point 30) The mitigation issue fails to place a burden of proof on the State. (Point 31) The "10-12 rule" violates constitutional principles. (Point 32) Failure to allow holdout jurors to know the consequences of their actions violates the Eighth Amendment. (Point 33) The mitigation issue allows openended *768 discretion. (Point 34) The mitigation definition improperly limits the concept of mitigation. (Point 35) The death penalty, as presently administered, violates the Eighth Amendment ban against cruel and unusual punishment. (Point 36) The death penalty, as presently administered, violates the Texas Constitution's ban against cruel or unusual punishment.[82]
We have addressed and rejected all of these challenges before, and appellant has given us no reason to revisit these decisions here.[83] Points of error twenty-eight through thirty-six are overruled.
We affirm the judgment of the trial court.
JOHNSON, J., filed a concurring and dissenting opinion.
MEYERS and PRICE, JJ., concurred in the result.
JOHNSON, J., concurring and dissenting.
I respectfully dissent to the disposition of points of error six through nineteen for the reasons stated in my opinion in Standefer v. State, 59 S.W.3d 177, 186-87 (Tex. Crim.App.2001). As to the remainder of the points of error, I concur in the judgment of the Court.
NOTES
[1] Tex. Penal Code Ann. § 19.03(a).
[2] Art. 37.071, § 2(g). Unless otherwise indicated all future references to Articles refer to the Code of Criminal Procedure.
[3] Art. 37.071, § 2(h).
[4] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[5] The indictment contained a second count charging appellant with murdering Kaylene Harris while in the course of committing aggravated sexual assault, however, this count was subsequently quashed.
[6] Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App.2000); see also Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Crim.App.2001).
[7] Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997) (holding that death penalty convictions can be reviewed for factual sufficiency).
[8] Johnson, 23 S.W.3d at 7.
[9] Johnson, 23 S.W.3d at 7; Santellan, 939 S.W.2d at 164.
[10] Appellant also points out that the trial court sua sponte disallowed defense counsel's attempt to ask a prospective juror "when you think of a life sentence, what does that mean to you?" as an example of the trial court's actions in precluding questioning about minimum parole eligibility. However, a juror's preconceived opinion about a capital life inmate's eligibility for parole is irrelevant to the case.
[11] The statute provides in relevant part:
(2) The court, on the written request of the attorney representing the defendant, shall:
* * *
(B) charge the jury in writing as follows: "Under the law applicable in this case, if the defendant is sentenced to imprisonment in the institutional division of the Texas Department of Criminal Justice for life, the defendant will become eligible for release on parole, but not until the actual time served by the defendant equals 40 years, without consideration of any good conduct time. It cannot accurately be predicted how the parole laws might be applied to this defendant if the defendant is sentenced to a term of imprisonment for life because the application of those laws will depend on decisions made by prison and parole authorities, but eligibility for parole does not guarantee that parole will be granted."
[12] Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim.App.2002).
[13] Id.
[14] Id.
[15] Id. at 38.
[16] Id.
[17] Id.; see also Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App.2001).
[18] Id.
[19] See Art. 37.071 § 2(e)(2)(B).
[20] In Jones v. State, we addressed a defendant's claim that the trial court erred in failing to permit voir dire on parole law as it applied to the lesser-included offense of murder. 843 S.W.2d 487, 498 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). We did not determine whether the refusal to permit questioning on the subject was error; instead, we held that any error that might have been committed was harmless because the defendant was convicted of capital murder, and thus, there was no occasion to submit parole instructions to the jury on the lesser offense. Id.
[21] See Tex.R.App. P. 33.1(a)(1)(A).
[22] These are not questions, for example, that inquire into a prospective juror's personal background for the purpose of determining whether that background will adversely affect the juror's ability to decide the case in an impartial manner, nor are they inquiries into a prospective juror's general philosophical outlook on the justice system (such as whether the retribution, deterrence, or rehabilitation is the prime goal of the criminal justice system). The parties are given broader latitude to ask such general background and philosophy questions.
[23] See Barajas, 93 S.W.3d at 39.
[24] See Allridge v. State, 850 S.W.2d 471, 480 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993); see also Standefer, 59 S.W.3d at 180.
[25] Standefer, 59 S.W.3d at 181; Johnson v. State, 982 S.W.2d 403, 405 (Tex.Crim.App. 1998).
[26] Standefer, 59 S.W.3d at 181-182; Raby v. State, 970 S.W.2d 1, 3 (Tex.Crim.App.), cert. denied, 525 U.S. 1003, 119 S.Ct. 515, 142 L.Ed.2d 427 (1998).
[27] 59 S.W.3d at 179.
[28] Id. at 182.
[29] See Art. 35.16(c)(2).
[30] Feldman v. State, 71 S.W.3d 738, 743-45 (Tex.Crim.App.2002); Green v. State, 934 S.W.2d 92, 105 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997).
[31] See Feldman, 71 S.W.3d at 743-45; Green, 934 S.W.2d at 105.
[32] Feldman, 71 S.W.3d at 743-45; Demouchette v. State, 731 S.W.2d 75, 83 (Tex.Crim. App.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987).
[33] Art. 35.16(c)(2).
[34] Feldman, 71 S.W.3d at 743-45; Patrick v. State, 906 S.W.2d 481, 488 (Tex.Crim.App. 1995), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996).
[35] Feldman, 71 S.W.3d at 743-45.
[36] Id.
[37] See Feldman, 71 S.W.3d at 747.
[38] Id.
[39] See Feldman, 71 S.W.3d at 747.
[40] See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
[41] The court also reviewed the voluntariness of two written statements appellant gave the authorities (identified as State's (pretrial) Exhibits Three and Four). However, the written statements are not at issue in these two points of error.
[42] We will assume, without deciding, that appellant properly objected at the pretrial hearing.
[43] We will assume, without deciding, that appellant's objections to exhibit One and One-A at trial were sufficiently clear incorporations of his § 3(a)(5) objections at the pretrial hearing to make the trial court aware that he was lodging a § 3(a)(5) complaint at trial.
[44] 928 S.W.2d 540 (Tex.Crim.App.1996).
[45] George E. Dix and Robert O. Dawson, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE, § 13.104 (1995); see also George E. Dix and Robert O. Dawson, TEXAS PRACTICE CRIMINAL PRACTICE AND PROCEDURE, 2nd Ed., § 13.166 (2001).
[46] 933 S.W.2d 504 (Tex.Crim.App.1996)(plurality opinion).
[47] 818 S.W.2d 782, 785 (Tex.Crim.App.1991).
[48] 928 S.W.2d at 546.
[49] Id. at 543-546,
[50] Id. at 544.
[51] Id. at 545.
[52] Id.
[53] Id.
[54] Id.
[55] Id. (citing Dix and Dawson, CRIMINAL PRACTICE AND PROCEDURE, § 13.104).
[56] 933 S.W.2d at 516.
[57] Id.
[58] Id.
[59] Id.
[60] See TEX. R. APP. P. 25.2(b)(3).
[61] See Tigner, 928 S.W.2d at 546 n. 8.
[62] Article 28.01, § 2, which provides in relevant part:
When a criminal case is set for such pretrial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters.
See also Postell v. State, 693 S.W.2d 462, 465 (Tex.Crim.App.1985).
[63] 933 S.W.2d at 516.
[64] Id. at 516.
[65] Granados v. State, 85 S.W.3d 217, 227 (Tex.Crim.App.2002).
[66] See former TEX. R. CRIM. EVID. 1101(d)(4)(1988).
[67] See TEX. R. EVID. 101(c).
[68] Dix and Dawson, 2nd ed., § 13.166 n. 3.
[69] "Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b).
[70] 928 S.W.2d at 547-548.
[71] Arguably, the failure to lodge an objection to the admission of exhibit three at trial procedurally defaults any error in that regard. Due to our disposition on the harm analysis, we do not address this potential preservation issue.
[72] Rachal v. State, 917 S.W.2d 799, 816 (Tex. Crim.App.), cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 539 (1996).
[73] Id.
[74] See Matson v. State, 819 S.W.2d 839, 850 (Tex.Crim.App.1991).
[75] See Art. 37.071 § 2(b)(2).
[76] See Tex.R. Evid. 403.
[77] Appellant does not complain about the voluntariness of either of his oral statements or his first written statement.
[78] Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
[79] See id. at 377.
[80] Dewberry v. State, 4 S.W.3d 735, 747-48 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).
[81] Id.
[82] We have paraphrased appellant's points to convey the thrust of his complaints, as developed in the argument sections relating to each point of error. Although each point was argued separately, we find it convenient to group discussion of them here.
[83] See Feldman, 71 S.W.3d at 757; Cannady v. State, 11 S.W.3d 205, 214 (Tex.Crim.App.), cert. denied, 531 U.S. 850, 121 S.Ct. 125, 148 L.Ed.2d 80 (2000); Ladd v. State, 3 S.W.3d 547, 572-75 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000); McFarland v. State, 928 S.W.2d 482, 498-99, 518-21 (Tex.Crim.App. 1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997); Lawton v. State, 913 S.W.2d 542, 555-60 (Tex.Crim.App. 1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623922/ | 522 So.2d 937 (1988)
Herbert HONEYCUTT, Appellant,
v.
BOSWELL VOYLE APPLIANCES, and Cigna, Appellees.
No. BT-134.
District Court of Appeal of Florida, First District.
March 15, 1988.
*938 J.W. Chalkley, III, of Chalkley & Sims, P.A., Ocala, for appellant.
Ralph J. McMurphy, of Green and Simmons, P.A., Ocala, for appellees.
SHIVERS, Judge.
The claimant in this workers' compensation case, Herbert Honeycutt, argues that the deputy commissioner erred in failing to award temporary total disability (TTD) benefits subsequent to September 1, 1986. We agree, and reverse the deputy commissioner's (DC's) order.
The record on appeal indicates that claimant suffered an accident on September 25, 1984, while working for the employer, resulting in both physical and psychological injuries. Claimant's treating orthopedic surgeon, Dr. Webster, testified at the hearing on the claim for benefits that he had treated claimant between January 6, 1986 and January 16, 1987 for injuries resulting from an industrial accident, that claimant was temporarily totally disabled during that entire period of time, and that he had reached maximum medical improvement (MMI) when Webster last examined him on January 16, 1987. On cross-examination, however, Webster stated that claimant could probably have performed some light sedentary work after the end of August 1986, with restrictions that he avoid lifting, bending, and stooping. Webster stated that his opinions were from an orthopedic basis only, and not from a psychological basis. Dr. Kitchin, claimant's treating psychiatrist, testified that the claimant was totally disabled from the date of accident through the date of Kitchin's deposition (February 6, 1987), and that claimant had not yet reached MMI psychologically at the time of the deposition. Kitchin's testimony was confirmed by Ms. Murray, a certified counsellor at the mental health center directed by Dr. Kitchin, who had worked with claimant on at least fifteen separate occasions since August 1986.
Despite this evidence, the DC entered an order finding that claimant was TTD from January 1, 1986 through August 31, 1986, that he reached MMI on September 1, 1986 in accordance with the testimony of Dr. Webster, but that he was not entitled to wage loss benefits after September 1, 1986 because he had not conducted a job search and was not excused from doing so.
First, we agree with appellant that there is no evidence in the record to support the deputy's finding that claimant reached MMI on September 1, 1986. Dr. Kitchin clearly testified claimant had not yet reached MMI and Dr. Webster testified only that claimant had reached MMI from an orthopedic standpoint when he last examined him on January 16, 1987. Second, since Dr. Webster's opinions were from an orthopedic standpoint only, and Dr. Kitchin's were from a psychiatric standpoint only, their opinions regarding claimant's ability to work and his arrival at MMI were not conflicting, and thus the DC did not have the discretion to choose one over the other. To the contrary, Dr. Kitchin's testimony was unrefuted that claimant had not yet reached MMI with regard to his psychiatric injuries, and was TTD at the time of the deposition. As such, the DC erred in *939 rejecting Kitchin's unrefuted testimony, Calleyro v. Mt. Sinai Hospital, 504 So.2d 1336 (Fla. 1st DCA 1987), and in determining that claimant had reached MMI.
Since permanent benefits may not be awarded until a claimant has reached MMI with regard to both physical and psychological injuries, Martin-Marietta Corp. v. Vargas, 472 So.2d 833 (Fla. 1st DCA 1985), and since it is clear that the claimant had not yet reached psychological MMI, we find that the DC erred in focusing his determination solely on whether the claimant was entitled to wage loss benefits. We therefore reverse the denial of wage loss benefits as well as the finding that claimant reached MMI as of September 1, 1986, and remand for determination as to whether claimant was entitled to TTD benefits subsequent to September 1, 1986.
Accordingly, the DC's order is reversed, and the matter is remanded for further proceedings consistent with this opionion.
REVERSED and REMANDED.
JOANOS and THOMPSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588802/ | 197 P.3d 225 (2008)
Lance ERSKINE and Theresa Erskine, Plaintiffs-Appellants and Cross-Appellees,
v.
Gloria BEIM, M.D., and Alpine Orthopaedics & Sports Medicine, P.C., Defendants-Appellees and Cross-Appellants.
No. 07CA0429.
Colorado Court of Appeals, Div. VI.
September 18, 2008.
As Modified on Rehearing October 16, 2008.
*226 The Law Firm of Saul R. Sarney, P.C., Saul R. Sarney, Denver, Colorado; Leventhal, Brown & Puga, P.C., Jim Leventhal, Benjamin Sachs, Denver, Colorado, for Plaintiffs-Appellants and Cross-Appellees.
Cooper & Clough, P.C., Paul D. Cooper, Deanne C. Potestio, Denver, Colorado; Jaudon & Avery, L.L.P., David H. Yun, Denver, Colorado, for Defendants-Appellees and Cross-Appellants.
Opinion by Judge WEBB.
In this medical malpractice case, plaintiffs, Lance and Theresa Erskine, appeal the judgment entered on a jury verdict in favor of defendants, Gloria Beim, M.D., and Alpine Orthopaedics & Sports Medicine, P.C., on the basis that the trial court improperly struck one of their expert witnesses for failure fully to disclose testimonial history. Defendants conditionally cross-appeal, in the event we reverse, on the basis that the trial court improperly struck three of their expert witnesses, two for failure fully to disclose testimonial history and one for other reasons. We reverse and remand for a new trial at which all experts stricken for failure to disclose testimonial history shall be allowed to testify, but subject to other sanctions that the court may impose, if any.
*227 I. Background
During trial, plaintiffs moved to preclude testimony from two defense experts for incomplete disclosure of testimonial history, relying on several court of appeals decisions, including Trattler v. Citron, 2006 WL 2506741 (Colo.App. No. 04CA2113, Aug. 31, 2006)(not published pursuant to C.A.R. 35(f))(Trattler I). Defendants then moved to preclude testimony of one of plaintiffs' experts for the same reason. The trial court struck all three of these experts, citing Svendsen v. Robinson, 94 P.3d 1204 (Colo. App.2004), overruled by Trattler v. Citron, 182 P.3d 674 (Colo.2008)(Trattler II).
During the pendency of this appeal, the supreme court announced Trattler II, which held that "preclusion of expert witnesses for failure to provide testimonial history is a disproportionate sanction." 182 P.3d at 683. The parties were ordered to file supplemental briefs addressing Trattler II. Plaintiffs argue that Trattler II applies retroactively, is directly on point, and requires reversal. Defendants argue that Trattler II should not apply retroactively, that the doctrine of invited error prevents plaintiffs from relying on Trattler II, and that even under Trattler II the trial court acted within its discretion in striking plaintiffs' expert.
We agree with plaintiffs that Trattler II should be applied retroactively, that they are not precluded from relying on it by their position below, and that it requires the judgment be reversed and the case remanded for a new trial at which all experts stricken for failure fully to disclose their testimonial histories shall be allowed to testify.
II. Retroactivity
We first address and reject defendants' contention that we should depart from the general rule that judicial decisions are applied retroactively. Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 113 (Colo.1992).
To determine whether Trattler II should be given only prospective effect, we apply a three-part test: first, the decision must establish a new principle of law; second, the merits of each case must be weighed by looking to whether retrospective application will further or retard the purpose and effect of the rule in question; and third, the inequity imposed by retroactive application must be weighed to avoid injustice or hardship. See Marinez v. Indus. Comm'n, 746 P.2d 552, 556 (Colo.1987) (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971)). We need address the second and third factors only if we can say with fair assurance that Trattler II established a new rule of law. See Martin Marietta Corp., 823 P.2d at 113.
A. New Rule of Law
To establish a new rule of law, a judicial decision must either resolve an issue of first impression not clearly foreshadowed by prior precedent or overrule clear past precedent on which the litigants may have relied. Id.
Here, the following statements in Trattler II suggest that it did not establish a new rule of law:
The Trattler II majority stated that the trial court had "misread C.R.C.P. 37(c)(1)." 182 P.3d at 683. It did not find that C.R.C.P. 37(c)(1) was ambiguous. Rather, it interpreted Rule 37 by looking to the plain language. See Curlin v. Regional Transp. Dist., 983 P.2d 178, 180 (Colo.App.1999) ("the supreme court's decision ... merely determined" what "the plain language of [the statute]" required); Jaimes v. State Farm Mut. Auto. Ins. Co., 53 P.3d 743, 747 (Colo. App.2002)("In a case of first impression before it, the supreme court in DeHerrera [v. Sentry Ins. Co., 30 P.3d 167 (Colo. 2001)] interpreted § 10-4-609(1), an unambiguous statute ... The court did not overrule any of its prior precedent, nor did it resolve an issue of first impression not clearly foreshadowed by prior precedent....").
The Trattler II majority did not overrule its prior cases interpreting Rule 37(c)(1), Cook v. Fernandez-Rocha, 168 P.3d 505 (Colo.2007), and Todd v. Bear Valley Vill. Apartments, 980 P.2d 973 (Colo. 1999), but rather distinguished them because "the evidence that was precluded was the evidence that was not disclosed." *228 182 P.3d at 681. See Curlin, 983 P.2d at 180 ("the court noted that its decision was consistent with the result reached in two prior decisions by different divisions of this court.").
The Trattler II majority also stated, "We reaffirm the principle that sanctions should be directly commensurate with the prejudice caused to the opposing party." 182 P.3d at 682 (emphasis added). See Rocky Mountain Power Co. v. Colorado River Water Conservation District, 646 P.2d 383, 389 (Colo.1982) (a new rule of law is not created if a decision reaffirms the holdings of prior decisions).
In contrast to these statements, when discussing the court of appeals decisions in Woznicki v. Musick, 119 P.3d 567, 575 (Colo. App.2005); Svendsen, 94 P.3d at 1208; and Carlson v. Ferris, 58 P.3d 1055, 1059 (Colo. App.2002), aff'd on other grounds, 85 P.3d 504 (Colo.2003), the Trattler II majority observed, "It is unclear from the sparse detail concerning the nature and extent of undisclosed information ... whether these decisions can be reconciled with our opinion today. To the extent, if any, that they are inconsistent with our opinion, they are overruled." Trattler II, 182 P.3d at 681 n. 2 (emphasis added).
These court of appeals decisions were final. Compare Williams v. Trailmobile, Inc., 745 P.2d 267, 269 (Colo.App.1987)(new rule created when supreme court overruled two court of appeals decisions in which "the applicable rule had been as stated."), with Marinez, 746 P.2d at 558 n. 6 ("The court of appeals judgments that were reversed ... were not final in that they were under review by certiorari. Therefore, the reversal of those judgments did not constitute the overruling of prior precedent.").
Thus, because the first factor is not free of doubt, we consider the second and third factors. See Martin Marietta Corp. v. Lorenz, 823 P.2d at 113 ("we cannot conclude with fair assurance that the first element ... for retroactive application has been satisfied, and for that reason we continue with the ... analysis.").
B. Further or Retard Operation
We conclude that retroactive application of Trattler II furthers its operation.
The Trattler II majority emphasized that "it is unreasonable to deny a party an opportunity to present relevant evidence based on a draconian application of pretrial rules." 182 P.3d at 682. Rather, "the trial court must strive to afford all parties their day in court and an opportunity to present all relevant evidence at trial." Id.
These statements show that retroactive application of Trattler II would further its purpose by allowing parties who have been precluded from presenting relevant expert testimony, based on incomplete disclosure of the expert's testimonial history, the opportunity to present such testimony at retrial. Cf. People in Interest of C.A.K., 652 P.2d 603, 607 (Colo.1982) (noting that the second factor "argues most strongly for retroactivity" because "the standard of proof directly influences the basic reliability of the factfinding decision," although ultimately concluding prospective application required based on the third factor).
C. Injustice or Hardship
We also conclude that retroactive application of Trattler II will not result in injustice or hardship.
In People in Interest of C.A.K., 652 P.2d at 608, the supreme court explained:
[T]here are two justifications for a denial of retroactive effect. The first is the protection of persons who have relied on the earlier state of the law; the second is the protection of stability in areas where society attaches particular importance to stability.
...
The reliance factor is more persuasive when the change in the law at issue concerns pre-litigation conduct that becomes the subject of later litigation, because most acts, once done, cannot be undone ... Here, the conduct that is governed by the change in the law can be undone. The case could be remanded for a new trial, and the parties would then begin again at square one.
*229 See also Cash v. Califano, 621 F.2d 626, 629-30 (4th Cir.1980) (nonretroactive cases have involved "unexpected interpretations of procedural law, the retroactive application of which would have clearly prejudiced an unwary litigant by erecting, directly or indirectly, an absolute bar to his claim" or "substantive interpretations of law which would have altered significantly pre-existing patterns of behavior, and concomitant vested rights, which had been premised upon reasonable interpretations of legal precedent."), cited with approval in Marinez, 746 P.2d at 559.
Here, applying Trattler II retroactively neither bars claims nor undercuts vested rights. Rather, the parties would be allowed to present additional relevant expert testimony that was improperly stricken. Further, retroactive application of Trattler II will not erode any stability interests. See People in Interest of C.A.K., 652 P.2d at 608 ("It is the stability factor that more strongly mandates prospectivity here. By the time a termination proceeding reaches trial, the child has usually been subjected to a great deal of emotional trauma."); see also Ground Water Comm'n v. Shanks, 658 P.2d 847, 849 (Colo. 1983) (applying a judicial decision prospectively because "[o]ur system of water law is designed to promote the orderly and stable development of Colorado's water resources... upsetting long held rights would not advance these goals.").
Defendants fail to show any hardship created by retroactive application. See Marinez, 746 P.2d at 559 ("It is the State Fund's burden to prove its contention that serious adverse consequences to insurers would result from retroactive application"); Martin Marietta Corp., 823 P.2d at 114 ("the responsibility of demonstrating the likelihood of serious adverse consequences resulting from the retroactive application of a judicial decision rightly falls on Martin Marietta.").
Instead, they argue that because plaintiffs "created the situation they now complain of" it would be inequitableand therefore unjust for them to take the opposite position on appeal. For the reasons discussed in Section III below, however, we discern nothing inequitable per se in allowing a party on appeal to obtain the benefits of a post-trial supreme court decision.
Moreover, applying Trattler II retroactively benefits all parties. As also discussed in Section III below, two of defendants' experts who were stricken based on failure to disclose testimonial history shall be allowed to testify on retrial. Thus, while defendants face the risk of an adverse outcome on retrial, because this factor is common to all retroactive applications it cannot establish hardship or injustice in the absence of vested rights or stability interests as discussed above.
Accordingly, we conclude that the three-part test for determining retroactive application of a judicial decision requires us to apply Trattler II here.
III. Invited Error
We next address and reject defendants' contention that the doctrines of invited error and judicial estoppel preclude plaintiffs from relying on Trattler II.
The judicial estoppel doctrine requires "parties to maintain a consistency of positions in the proceedings, assuring promotion of truth and preventing the parties from deliberately shifting positions to suit the exigencies of the moment." Estate of Burford v. Burford, 935 P.2d 943, 947 (Colo. 1997).
The invited error doctrine prevents a party from inducing an erroneous ruling and then seeking to benefit by appealing that error. A party's affirmative action during litigation triggers this doctrine and usually bars appellate review of any alleged error arising from such action. Vista Resorts, Inc. v. Goodyear Tire & Rubber Co., 117 P.3d 60, 65 (Colo.App.2004).
Here, defendants argue that because plaintiffs moved to strike their experts for failure fully to disclose testimonial history based on Carlson, Svendsen, and Trattler I, plaintiffs cannot now change their position and rely on Trattler II to argue that the trial court erred by striking their own expert for the same reasons. We are not persuaded.
*230 For judicial estoppel to apply, five circumstances must be present, including "the inconsistency must be part of an intentional effort to mislead the court." American Guarantee and Liability Ins. Company v. King, 97 P.3d 161, 167 (Colo.App.2003). But here plaintiffs did not mislead the trial court because at the time of the trial, Carlson and Svendsen were final, published decisions of this court to be "followed as precedent by the trial judges of the state of Colorado." C.A.R. 35(f). The supreme court granted certiorari in Trattler I after judgment had entered.
Under the invited error doctrine, a party is prevented from "inducing an inappropriate or erroneous [ruling] and then later seeking to profit from that error." Horton v. Suthers, 43 P.3d 611, 618 (Colo.2002). However, based on Carlson and Svendsen, here plaintiffs did not induce any error. See Henderson v. S.C. Loveland Co., Inc., 396 F.Supp. 658, 660 (N.D.Fla.1975)(rejecting similar invited error argument because "under the law, as the court and the parties understood it to be, there was no error, and there was no other position Loveland could have taken at the time.").
Defendants cite no case in Colorado applying these doctrines to preclude an appellant from relying on a post-trial supreme court opinion despite having argued otherwise below based on cases overruled by that opinion. We reject such a limitation because it would frustrate the general application of judicial decisions retroactively. Further, "[a] contrary rule would induce parties to drown the trial judge with reservations." United States v. Charley, 189 F.3d 1251, 1279 (10th Cir. 1999) (Holloway, J., concurring) (quoting McKnight v. General Motors, 908 F.2d 104, 108 (7th Cir.1990)).
We are not persuaded otherwise by defendants' reliance on Maiz v. Virani, 253 F.3d 641 (11th Cir.2001), and United States v. Tandon, 111 F.3d 482 (6th Cir.1997). These cases held that invited error precluded appellate challenge to jury instructions requested below which were rendered incorrect by an intervening change in governing law. Both of them explained that because the change was foreshadowed, taking a contrary position "would not necessarily have been futile." Tandon, 111 F.3d at 489; Maiz, 253 F.3d at 677.
Here, in contrast, the supreme court had denied certiorari in Svendsen and granted certiorari on another ground in Carlson, which it affirmed. We discern nothing in our supreme court's prior C.R.C.P. 37(c)(1) cases that predicted Trattler II. Defendants cite no trend in federal cases interpreting the comparable federal rule that foretold Trattler II. See Hensley v. CSX Transportation, Inc., No. E2007-00323-COA-R3-CV, 2008 WL 683755 (Tenn.Ct.App. Mar.14, 2008) (applying invited error to a party that had requested a contributory negligence instruction, although pending appeal the state's highest court adopted comparative negligence, because of "a raging debate [over] comparative versus contributory negligence," Tennessee being "one of only a handful of states still using the traditional all-or-nothing approach," and language in a prior Tennessee Supreme Court case that "put everyone on notice of a possible change fifteen years earlier.").
Accordingly, we conclude that neither invited error nor judicial estoppel precludes plaintiffs from relying on Trattler II.
IV. Trattler II
Finally, we agree with plaintiffs that under Trattler II the trial court erred by striking one of their expert witnesses for failure fully to disclose testimonial history. Plaintiffs concede, and we agree, that for the same reason the trial court erred by striking two of defendants' experts.
The Trattler II majority held that C.R.C.P. 37(c)(1) "only requires the preclusion of undisclosed evidence." 182 P.3d at 682. Unlike cases precluding expert testimony where the fact that the expert would be testifying was not timely disclosed, see Cook and Todd, the undisclosed information in Trattler II, as here, was only a portion of the expert's testimonial history. However, the majority explained that because "precluding the experts' undisclosed testimonial history would have been an inappropriate sanction in that it would have further disadvantaged the *231 defendants who sought to use the testimonial history to cross-examine the experts at trial, the [trial] court should have looked to the alternative sanctions" in C.R.C.P. 37(c)(1). Id. at 682.
Here, concerning two of defendants' experts the trial court explained:
I think the Svendsen case is rather inflexible. And it reaffirms the concept that the failure to disclose is not harmless almost as a matter of law.
...
So it seems to me the disclosures were not made and were not made prior to the deposition; that Rule 37 compels that the witness not be allowed to testify.
(Emphasis added.) Then as to plaintiffs' expert, the court said:
[The expert] has testified that there are probably some trials missing and the rule is very clear that you have to list both deposition and trial testimony.
...
So for those same reasons, I'll exclude [the expert's] testimony.
Observing that a C.R.C.P. 37 sanction "is automatic and self-executing," the court did not consider any of the alternative sanctions in C.R.C.P. 37(c)(1).
Because this analysis was rejected in Trattler II, we conclude that the trial court erred by striking these three expert witnesses. We are not persuaded otherwise by defendants' argument that the trial court acted within its discretion because C.R.C.P. 37(b)(2)(B) permits preclusion of evidence for nondisclosure.
C.R.C.P. 37(c)(1) provides that a court "may impose other appropriate sanctions, which ... may include any of the actions authorized pursuant to subsections (b)(2)(A), (b)(2)(B), and (b)(2)(C) of this Rule." C.R.C.P. 37(b)(2)(B) authorizes an order "refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence."
Here, as in Trattler II, the trial court did not consider C.R.C.P. 37(b)(2)(B) because it believed C.R.C.P. 37(c)(1) required preclusion of the experts. However, even if the trial court had done so, as explained in Trattler II, "[t]o properly exercise its discretion to impose an appropriate sanction, the trial court should first look to the nature and severity of the violation and then to the alternative sanctions specified in the rule." 182 P.3d at 682. Here, as in Trattler II, the record does not show that plaintiffs were to blame for the incomplete disclosure at issue, which was a factor in the majority's conclusion that preclusion was a disproportionate sanction.
Thus, on remand the trial court "may consider rescheduling depositions or trial, payment of attorney fees and costs, contempt proceedings against the experts, admitting evidence of the noncompliance, instructing the jury that noncompliance may reflect on the credibility of the witness, or any other sanction directly commensurate with the prejudice caused." Trattler II, 182 P.3d at 683. But we conclude that preclusion of expert testimony for incomplete disclosure of testimonial history, absent bad faith, would be disproportionate. Id. at 683
Accordingly, we further conclude that the trial court erred by striking one of plaintiffs' experts and two of defendants' experts for failure to provide complete testimonial histories.
Having so concluded, we need not address plaintiffs' alternate argument that their failure fully to disclose the expert's testimonial history was substantially justified or harmless. See Trattler II, 182 P.3d at 680. And because it is unlikely to occur on retrial, we also need not address plaintiffs' remaining contention that the trial court erred by excluding the rebuttal testimony of an expert witness who was unavailable without a very short continuance.
V. Cross-Appeal
As noted above, we agree with defendants that their two experts who were stricken for failure fully to disclose testimonial histories should be allowed to testify on retrial. However, as to defendants' third expert, who was stricken for other reasons, Trattler II does not apply.
*232 We decline to address defendants' contention on cross-appeal that the trial court erred by striking this expert because he "was not endorsed or made available" before the deadline for expert depositions.
According to defendants' Statement of Relevant Facts:
Plaintiffs argued that [the expert] should be precluded from testifying because his deposition was not taken before ... the court imposed deadline. [The expert's] father-in-law was terminally ill with cancer and [the expert's] wife had to travel to visit her father while [the expert] took care of their two small children.
However, defendants make no argument and cite no authority as to why the trial court's ruling striking this witness was an abuse of discretion. See People in Interest of D.B.-J., 89 P.3d 530, 531 (Colo.App.2004) (declining to address contention lacking references to supporting facts, specific arguments, or authorities).
Reversal and remand for a new trial does not automatically reopen discovery. See Cleveland By and Through Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1449 (10th Cir.1993)("Our remand for a new trial was not an invitation to reopen discovery for newly retained expert witnesses and to enlarge trial time unnecessarily through the addition of totally new exhibits and testimony."); cf. Todd, 980 P.2d 973, 977 (Colo.1999) ("when the trial court grants a continuance for reasons unrelated to discovery issues, postponement of the trial date does not automatically create a parallel postponement of discovery deadlines.").
However, our holding does not preclude defendants from moving the trial court for leave to reopen discovery to afford plaintiffs an opportunity to depose their third expert, and on the basis of such a deposition, if it is allowed, to request that the court reconsider its ruling striking this expert.
VI. Cost Award
Given our conclusion that the underlying judgment must be reversed, the award of costs against plaintiffs is vacated. See Nichols v. Burlington Northern & Santa Fe Ry., 56 P.3d 106, 110 (Colo.App. 2002).
The judgment is reversed and the case is remanded with directions.
Judge LOEB and Judge GABRIEL concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3075552/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
'
' No. 08-13-00147-CR
IN RE: THE STATE OF TEXAS,
' AN ORIGINAL PROCEEDING
Relator.
' IN MANDAMUS
'
JUDGMENT
The court has considered this cause on the Relator=s petition for writ of mandamus
against the Honorable Alma Trejo, Judge of the County Criminal Court of Law No. 1 of El Paso
County, Texas, and conditionally grants relief, in accordance with the opinion of this court. The
writ will issue only if the trial court fails to comply with this opinion.
IT IS SO ORDERED THIS 30TH DAY OF MAY, 2014.
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, J., and Chew, C.J. (Senior Judge)
Chew, C.J. (Senior Judge), sitting by assignment | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1623908/ | 603 S.W.2d 254 (1980)
Jerome Wayne BLAYLOCK, Appellant,
v.
Lynda Kay BLAYLOCK, Appellee.
No. A2310.
Court of Civil Appeals of Texas, Houston (14th Dist.).
June 25, 1980.
*255 Toby C. Bonds, Cleveland, for appellant.
William De La Garza, Gay, De La Garza & Roscoe, Houston, for appellee.
Before BROWN, C. J., and PAUL PRESSLER and MILLER, JJ.
J. CURTISS BROWN, Chief Justice.
This is an appeal from a judgment granting a divorce in which attorney's fees were awarded.
Lynda Kay Blaylock, appellee, filed for divorce against Jerome Wayne Blaylock, appellant, seeking the divorce, managing conservatorship of the minor child, child support and a division of the property. In response to special issues, the jury found that appellee should be appointed managing conservator; that legal services were rendered by appellee's attorney; and that such services were necessary. The final decree, among other things, made a division of community property, part of which was an order to appellant to pay $7,500.00 of appellee's attorney's fees to appellee's attorney. Appellant appeals only from the award of attorney's fees.
Appellee has filed a motion to dismiss appellant's appeal. In this motion, and in her brief, appellee argues that appellant is estopped from attacking the judgment because he accepted and used a large portion of the benefits received under the judgment. The Supreme Court has held that a "litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom." Carle v. Carle, 234 S.W.2d 1002, 1004 (Tex.Sup.1950). It does not appear that appellant's actions fit within one of the narrow exceptions to this rule; that is, the acceptance of benefits due to financial duress or where the reversal of judgment cannot possibly affect appellant's right to the benefits accepted. In the instant case, there is no evidence of financial duress, and if reversed and remanded, a redivision of the property would be required, which would jeopardize appellant's right to benefits already accepted.
While there appears to be merit to appellee's motion we do not reach it since we hold that there is sufficient evidence to affirm the award of attorney's fees on the merits. Appellant complains that the trial court abused its discretion in awarding attorney's fees because the jury failed to award such fees. This point is not well taken. All too often courts routinely award attorney's fees in cases in which substantial property rights are involved. Instead, we would rather allow both parties their respective property settlements and let each pay its own attorney's fees. However, we recognize that the law is settled that the award of attorney's fees is within the discretion of the trial court in making an equitable division of property under Tex. Fam.Code Ann. § 3.63 (Vernon 1975). Trevino v. Trevino, 555 S.W.2d 792 (Tex.Civ. App. Corpus Christi 1977, no writ).
We find no abuse of discretion in the trial court's action. Appellant's point of error is overruled. The judgment of the trial court is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623906/ | 522 So. 2d 550 (1988)
Lesley BASTIEN, Appellant,
v.
STATE of Florida, Appellee.
No. 87-552.
District Court of Appeal of Florida, Fifth District.
March 31, 1988.
James B. Gibson, Public Defender, and Nancye R. Crouch, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Paula C. Coffman, Asst. Atty. Gen., Daytona Beach, for appellee.
*551 COWART, Judge.
Lesley Bastien appeals an order denying his motion to suppress evidence. Based upon approximately forty purchases of "rock" cocaine by confidential informants at the Heat Wave Bar in Reddick, Marion County, Florida, arrest warrants were obtained for nineteen black males. In order to serve these warrants, a SWAT team, comprised of numerous two-man squads, was organized. Each member of the SWAT team was clothed in camouflage uniforms and instructed to detain all persons in the bar's parking lot for "warrant identification."
Upon receiving a confidential tip that several of the persons for whom arrest warrants had been obtained were present in and around the bar, the SWAT team members converged on the area, shouting "Sheriff's Department, freeze!" Numerous persons began to flee, including Bastien. As he fled, two members of the SWAT team grabbed Bastien's arms, told him to stop, and asked him his name. The officers then "took him to the ground.[1]" As they did, the officers observed two concealed pistols protruding from the back of Bastien's waistband. After the weapons were seized, the officers discovered a film canister containing rock cocaine and some cash in Bastien's possession. No warrant had been obtained for the arrest or search of Bastien.
Bastien pled nolo contendere to one count of possession of cocaine while armed and two counts of carrying a concealed firearm, reserving his right to appeal the order denying his motion to suppress. The state stipulated that the evidence seized was essential to its proof and that the suppression question therefore was dispositive of the case. We reverse.
The admissibility of the cocaine and weapons in this case turns on whether the warrantless stop and forcible detention of Bastien was legally justified and permissible under the "stop and frisk" law, section 901.151, Florida Statutes. To justify such a stop and detention, a law enforcement officer must have a "founded suspicion" based upon factual observations in light of his knowledge and experience that the person has committed, is committing, or is about to commit a crime. § 901.151, Fla. Stat.; Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). As the Florida Supreme Court has noted, the officer's assessment of the totality of the circumstances "must raise a suspicion that the particular individual being stopped is engaged in wrongdoing." Tamer v. State, 484 So. 2d 583 (Fla. 1986) (quoting United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981)). A "mere suspicion" or "hunch" is not enough.
In the present case, the detaining officers testified at the suppression hearing that they saw nothing suspicious or criminal about Bastien other than the fact he was running. One officer stated that he detained Bastien simply because he was the nearest person to him. Notwithstanding the implication of ancient precedent,[2] running (flight) alone does not justify a belief that an individual is engaged in criminal activity; nor will it justify an investigatory stop. See Cobb v. State, 511 So. 2d 698 (Fla. 3d DCA 1987) and cases cited therein. Nor is the bar's location in a "high crime area" a sufficient basis upon which to justify a Terry stop. Id. at 699-700. See also Walker v. State, 514 So. 2d 1149 (Fla. 2d DCA 1987); Bartlett v. State, 508 So. 2d 567 (Fla. 2d DCA 1987). Finally, the fact that the SWAT team members were attempting to serve arrest warrants on some of the patrons at the bar, either considered alone or combined with Bastien's attempted flight and the location of the bar in a high crime area, can not justify the officers' actions.[3]
*552 We hold that the stop, detention, and search of Bastien was improper under Terry, its progeny, and section 901.151, Florida Statutes. The evidence of the cocaine and weapons should have been suppressed. Because the suppression question was stipulated to be dispositive of the case, Bastien's convictions are reversed and remanded with instructions to discharge Bastien as to these offenses.
REVERSED; REMANDED.
DAUKSCH and DANIEL, JJ., concur.
NOTES
[1] One SWAT team member testified that they were generally putting everyone "on the ground" for identification.
[2] "The wicked flee when no man pursueth; but the righteous are bold as a lion." Proverbs 28:1.
[3] This case is distinguishable from cases in which a search (not arrest) warrant is involved, such as Zaner v. State, 444 So. 2d 508 (Fla. 1st DCA 1984). There, the defendant contended his search was improper because it had been conducted a few feet from the steps leading to his apartment. The district court rejected this argument, reasoning that the search warrant expressly authorized a search of the premises, the yard and curtilage, any vehicle parked therein, and "any person on said premises reasonably believed to be engaged in or connected with said illegal activity." Id. at 511. Similarly, in State v. Haugee, 402 So. 2d 1216 (Fla. 5th DCA 1981), rev. denied, 415 So. 2d 1360 (Fla. 1982), this court affirmed the search of a vehicle on the curtilage of a dwelling where the warrant authorized a search of the dwelling "together with the yard and curtilage thereof, any and all outbuildings and vehicles thereon," notwithstanding that none of the occupants of the dwelling owned the vehicle. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623974/ | 603 S.W.2d 213 (1980)
Janet DAY, Petitioner,
v.
Norman J. DAY, Respondent.
No. B-9203.
Supreme Court of Texas.
July 2, 1980.
Rehearing Denied July 30, 1980.
*214 Ruth Rayner, and George Adams, Dallas, for petitioner.
Roger D. Bush, Dallas, for respondent.
DENTON, Justice.
This is a suit to enforce a judgment lien obtained in a prior divorce property division, and to impose a resulting trust on the property securing the lien for the proportional appreciation in value of the property. The trial court awarded the plaintiff, Janet Day, foreclosure of the judgment lien, post judgment interest on the amount of the lien, and a judgment for the proportional share of the property's increased value from the time of the divorce. The defendant, Norman Day, appealed and court of civil appeals reversed the trial court judgment, and dismissed the appeal for want of jurisdiction. 592 S.W.2d 77. We reverse the judgment of the court of civil appeals, and remand the cause to that court for further consideration.
In May 1977, Janet and Norman Day obtained a divorce in the Domestic Relations Court Number Two of Dallas County. As her share of the community property, Mrs. Day was awarded a money judgment for $12,500.00. This judgment was secured by a lien on a house and lot which were determined to be Mr. Day's separate property. Mrs. Day obtained and recorded an abstract of judgment, and she sought execution of the lien. Mr. Day sought an injunction against the constable's sale in the 192nd District Court of Dallas County.
While the injunction suit was pending, Mrs. Day filed suit in the 44th District Court of Dallas County. The pleadings were captioned "Suit to Declare a Resulting Trust and to Partition Real Property by Order of Sale." Mr. Day filed a plea in bar alleging that the suit was void as a collateral attack on the judgment of the Domestic Relations Court.[1] Mrs. Day made a motion to consolidate the injunction suit and the partition suit, and this motion was granted.
About the time that Mrs. Day sought enforcement of her judgment lien, Mr. Day filed a bankruptcy petition in the United States District Court for the Northern District of Texas. Mrs. Day contested the bankruptcy discharge as a secured creditor. The bankruptcy court discharged Mr. Day's outstanding debts, but specifically reserved the question of Mrs. Day's secured creditor status, noting that the matter could be determined in the litigation pending in state court.
The 44th district court denied Mr. Day's request for a permanent injunction, and held that Mrs. Day was a secured creditor with an express lien on Mr. Day's house and lot. The district court also ordered that the house and lot be listed with a real estate broker for sale, and that Mrs. Day receive from the proceeds of sale, the amount of her lien and post judgment interest. In addition, it was ordered that she receive a proportion of the appreciated value of the property.
Mr. Day appealed the district court judgment. While the appeal was pending, Mrs. Day initiated contempt proceedings against him for his failure to list the property for sale as ordered by the district court. Mr. Day then filed a motion for leave to file a writ of prohibition alleging that the district court had no jurisdiction to issue a contempt order. The motion was granted, and the district court proceedings were stayed pending the outcome of the appeal. The court of civil appeals then held that the district court erred when it denied Mr. *215 Day's plea in abatement, because the district court had no jurisdiction over Mrs. Day's partition suit. The basis for the court's holding was twofold: (1) that the judgment in the Domestic Relations Court Number Two was res judicata of the judgment rendered by the 44th District Court; and (2) that the Domestic Relations Court had jurisdiction to dispose of the whole subject matter of the litigation, including the suit to enforce the judgment. Id. at 80.
The court of civil appeals held that the trial court erred in failing to sustain Mr. Day's "plea in abatement." Id. at 81. However, since the basis of the pleading was the allegation that the prior divorce judgment was res judicata of the relief sought in the pending suit, it was correctly captioned as a plea in bar, and was not in substance a plea in abatement. The pleading did not allege the pendency of another action, the continuing jurisdiction of another court, or any other basis of a plea in abatement. See generally, McDonald, Texas Civil Practice § 7.08-7.16; § 7.43 (1970).
It is undisputed that the divorce judgment entered by the Domestic Relations Court became final in June 1977, and that no appeal was taken from the judgment. The court of civil appeals correctly determined that the judgment of the Domestic Relations Court was res judicata of any attempt to relitigate the divorce property division in a subsequent partition suit. Faglie v. Williams, 569 S.W.2d 557 (Tex.Civ. App. Austin 1978, writ ref'd n.r.e.); Marks v. Marks, 470 S.W.2d 83 (Tex.Civ.App. Tyler 1971, writ ref'd n.r.e.); White v. White, 380 S.W.2d 672 (Tex.Civ.App. Tyler 1964, writ ref'd n.r.e.).
Mrs. Day's share of the community property was awarded as a sum certain, $12,500.00, and she was not awarded any proportional share in the appreciated value of the secured property. Any attempt to obtain such relief in a later partition suit would by barred as a collateral attack on the prior divorce judgment.
However, the partition suit in the district court involved more than a collateral attack on the prior divorce judgment. In addition to pleadings which attempted to alter the prior property division, there were pleadings which sought enforcement of Mrs. Day's judgment lien.[2]
It is well-settled that a judgment lienholder may bring an independent suit in equity to enforce the judgment lien against property which the debtor may have fraudulently conveyed or claimed to be exempt as homestead. Baker v. West, 120 Tex. 113, 36 S.W.2d 695, 697 (1931); Hull v. Naumberg, 1 Tex. Civ. App. 132, 20 S.W. 1125, 1126 (1892, no writ). Here, Mr. Day has claimed that the house and lot are his homestead and are exempt from the foreclosure of Mrs. Day's judgment lien. He has also claimed that Mrs. Day's judgment against him was unsecured, and was discharged by the bankruptcy court. Therefore, the district court had equity jurisdiction to decide these matters and to order the foreclosure of the lien.
Tex.Rev.Civ.Stat.Ann. art. 2338-9a, § 5 (1971), repealed in 1977, was in effect when the divorce suit was tried. It provided:
... The Court of Domestic Relations No. 2 for Dallas County shall have the jurisdiction concurrent with the District *216 Courts in Dallas County ... of all divorce and marriage annulment cases, including the adjustment of property rights ... and any and every other matter incident to divorce or annulment proceedings ... and all other cases involving justiciable controversies and differences between spouses.
(Emphasis added).
The matters involved in an independent suit to enforce a judgment lien are not matters incident to or related to the underlying divorce. Also, this is not a controversy between spouses. Therefore, we hold that the district court had jurisdiction of the suit to enforce the judgment lien. It necessarily follows that the court of civil appeals has jurisdiction to consider the appeal from the district court judgment.
This case is factually distinguishable from Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1070 (1926). The Domestic Relations Court would have had jurisdiction to order the issuance of a writ of execution to enforce the judgment lien had such relief been sought. However, the fact remains that at the time the partition suit was filed in the district court, no matter, either incident to the divorce, or to the enforcement of the judgment lien, was pending in another court.
The sole basis for the court of civil appeals judgment was that the partition suit was outside the trial court's jurisdiction, and therefore the appeal was dismissed for want of jurisdiction. Since we have determined that the court of civil appeals erred in reversing the judgment of the trial court on the basis of no jurisdiction, we must next examine the brief filed by the appellant, Mr. Day in the court of civil appeals in order to determine whether it contains other grounds upon which the judgment of the court of civil appeals should be affirmed. Custom Leasing, Inc. v. Texas Bank & Trust Co. of Dallas, 491 S.W.2d 869, 872 (Tex.1973); King v. Skelly, 452 S.W.2d 691, 694 (Tex.1970); Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444, 449 (Tex.1967); McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964).
Of those points remaining, none contains an alternate basis for the affirmance of the court of civil appeals judgment on the jurisdictional issue. We reverse the judgment of the court of civil appeals, and remand to that court for further consideration on the merits. Richey v. Bolerjack, 589 S.W.2d 957 (Tex.1979); Block v. Aetna Casualty & Surety Co., 138 Tex. 420, 159 S.W.2d 470, 471 (1942).
NOTES
[1] The plea in bar filed by Mr. Day which was characterized as a plea in abatement by the court of civil appeals stated in pertinent part:
... any claim by Plaintiff regarding a resulting trust in that property awarded to Defendant ... should have been, and indeed would have had to have been asserted into the action before the Domestic Relations Court Number Two of Dallas County, Texas, prior to entry of Judgment by said Court, and that, as no appeal was taken from the aforesaid judgment ... said Judgment became final by operation of law on the 6th day of June, 1977, and Plaintiff's attempt to request this Honorable Court to declare a resulting trust in property awarded under the aforesaid Judgment is an attempt by Plaintiff to go behind the aforesaid Judgment in an attack not recognized by law or in equity in the State of Texas....
[2] "Plaintiff's First Amended Pleadings to Declare a Resulting Trust And to Partition Real Property by Order of Sale" states in pertinent part:
IV.
... the Court should declare that the Defendant is a Resulting Trustee as that is understood in law as to the lien of the Plaintiff herein in the amount of $12,500. plus 9% interest on said amount per annum from the date of May 6, 1977, plus a proportionate share of the appreciated value of the property as $12,500. was to the $45,000. value of the property at the time Judgment was awarded to the Plaintiff.
V.
Plaintiff would further show the Court that she is in direct need of the funds that she is entitled to as set forth hereinabove and that the Court should appoint a Receiver to sell the said property which has a present value in excess of $50,000.00 and to divide the net proceeds therefrom between the parties as their interests appear. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623970/ | 603 S.W.2d 755 (1980)
STATE of Tennessee, Appellee,
v.
Jesse Allen McKINNEY, Appellant.
Court of Criminal Appeals of Tennessee, at Nashville.
May 15, 1980.
*756 Hugh E. Green, Jr., B.F. Lowery, Richard M. Brooks, Carthage, Tenn., for appellant.
William M. Leech, Jr., Atty. Gen., Charles L. Lewis, Asst. Atty. Gen., Tom P. Thompson, Jr., Dist. Atty. Gen., Hartsville, Guy E. Yelton, Asst. Dist. Atty., Mount Juliet, for appellee.
*757 OPINION
TATUM, Judge.
The defendant, Jesse Allen McKinney, was convicted of second-degree murder and sentenced to serve 45 years in the State penitentiary. On this appeal, he makes several issues for review on the various grounds that will hereinafter be discussed. We find no reversible error and must, therefore, affirm the judgment of conviction.
Since the defendant attacks the weight and sufficiency of the evidence, we will summarize it. At about 7:30 A.M., on September 7, 1978, the defendant, then 18 years of age, picked up the 51-year old victim, Robert St. John, hitchhiking near Gordonsville in Smith County. The two men went to a beer tavern where they spent several hours shooting pool and drinking beer. At the beer tavern, the victim had a large sum of money, but the defendant stated that he had none. They reappeared at the victim's home about 2:30 P.M. and went into the barn for about 20 minutes before leaving in the defendant's truck. The defendant returned to the beer tavern alone where he bought a quantity of beer with a $20 bill. Between 5:00 and 6:00 P.M., the victim's wife saw the defendant, who was driving alone at a fast rate of speed, return to the area.
After several days, the victim's wife, aware of her husband's drinking problem, reported to the Sheriff that the victim was missing and requested him to check jails in adjoining counties. Not being able to locate the victim, officers asked the defendant if he had seen the victim; and the defendant replied, "I don't know what you are talking about-I don't know him. I have never seen or heard tell of him." Shortly thereafter, the defendant told another officer that he had been with the victim on September 1 but had "put him out in Gordonsville about 3:00 in front of the Baptist Church."
On September 10, 1978, the victim's body was found in a secluded area on the back side of the farm belonging to the defendant's family. The body, in a partially decomposed state, was lying with the carcasses of farm animals in an area referred to in the record as an "animal graveyard." An autopsy revealed that the victim died from a bullet wound that entered the posterior right side of the chest and exited from the front of the chest. The exit was approximately 8 inches higher than the entry. The victim also suffered a gunshot wound in the leg and two tears on the side and toward the back of the head. Both gunshot wounds were to the back portion of the body and traveled toward the front.
On September 10, after the body was found, a TBI Agent was summoned to the McKinney farm by the defendant's attorney. A recorded statement was taken on this occasion in the presence of the attorney. In the statement, the defendant admitted shooting the victim and removing the body to the animal graveyard. The defendant told the officers that he used a pistol that had been seized by a Tennessee State Trooper on September 7 in Lebanon. The defendant told of being at the beer tavern where he loaned the victim a few dollars and then drove him home. In this version, the defendant said that the victim appeared at his home and demanded money. The defendant got a gun from under the porch and hit the victim with it. After this, the victim came in possession of the gun, but it was subsequently recovered by the defendant. The defendant said that the victim started running away and threatening to kill him and that he shot the victim. The defendant then went to Carthage for a hamburger.
On September 29, 1978, the defendant, his mother, and his attorney returned to the TBI Agent's office and gave another statement. In this statement, he said that he and the victim were accompanied by a woman when they left the beer tavern. The defendant claimed that he passed out; and when he woke up at his home, the woman told him that the victim was dead and that his body was in the truck. The defendant then assisted the woman in concealing the victim's body at the animal *758 graveyard. The defendant was under the impression that the woman killed the victim in the garage and then put the body in the truck.
Testifying in his own behalf, the defendant gave yet another version of the incident. He testified that after drinking at the beer tavern and going by the victim's home, they went to the McKinney farm to feed the pigs. While the defendant was changing shoes, the victim ordered him to perform an oral homosexual act. When the defendant refused, the victim pushed him; and the defendant hit the victim. The defendant then got the pistol; and while they wrestled, the victim threatened to kill him if he did not perform the sex act. The defendant fell to the ground, according to this version, and started shooting at the victim to keep him back but did not intend to hit him. After the killing, the defendant was "scared and ashamed" and hauled the victim's body to the animal graveyard. The victim's wife, members of his family, and other witnesses testified that the victim had no homosexual tendencies.
We find ample evidence upon which a rational jury could be convinced beyond a reasonable doubt of the defendant's guilt of murder in the second degree. We must therefore overrule the issue attacking the weight of the evidence. Rule 13(e), Tennessee Rules of Appellate Procedure; Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
The defendant complains of the trial judge's allowing the State to introduce photographs of the victim's body taken before the body was removed. The Supreme Court, which has followed a policy of liberality in the admission of photographs, has held that the admissibility of photographs lies within the discretion of the trial court whose ruling will not be overturned on appeal except upon a clear showing of an abuse of discretion. Before admitting photographs in evidence, the trial judge should weigh its prejudicial effect against its probative value. State v. Banks, 564 S.W.2d 947 (Tenn. 1978).
The two small photographs admitted in evidence are in black and white; they are three inches by three inches in size. One of them depicts the victim's leg and feet protruding from weeds, and the other shows the torso of the victim's body surrounded by weeds or bushes. The victim's wounds are not discernible, as the photographs are not clear. The only probative value in offering the photographs was to show the manner in which the body was hidden. While we find the probative value to be limited, we also find little or no inflammatory effect. We do not find that the trial judge abused his discretion in admitting these photographs.
The defendant next insists that the trial judge erred in permitting the jury to return to their homes at night even though he consented to this procedure at trial. He cites T.C.A. § 40-2528 which provides:
"40-2528. Separation of jurors.-In all criminal prosecutions except those in which a death sentence may be rendered, the judge of the criminal court may, in his discretion, with the consent of the defendant, and with the consent of the district attorney general, permit the jurors to separate at times when they are not engaged upon the actual trial or deliberation of the case." (Emphasis supplied.)
The defendant was indicted for first-degree murder. However, the trial judge, with consent of the State, directed a verdict to the capital offense and submitted the case to the jury as second-degree murder, which, of course, is a non-capital felony.
Since the jury could not consider the death sentence for the crime, any error committed by the trial judge in not sequestering the jury was cured by the direction of the verdict. The exception in the statute, with respect to those cases in which a death sentence could be rendered, was obviously intended by the legislature to provide an extra safeguard for those who might be sentenced to pay the extreme price. The exception was no longer applicable to the defendant after the trial judge directed a verdict in his favor as to the capital offense.
*759 As noted above, the defendant consented to the separation of the jury. In view of our holding that any error was cured by the direction of the verdict, we pretermit the question of whether the defendant's consent to the jury's separation constitutes a waiver of the benefits of the statute or whether he is estopped from raising this question.
The defendant next avers that the trial court erred in permitting the testimony of a Tennessee State Trooper regarding another arrest of the defendant seven days after the shooting. The trooper testified that he stopped the defendant's vehicle in Wilson County on September 7 for having no taillights. The officer observed a pistol in the truck in plain view, confiscated it, and arrested the defendant for carrying the pistol with the intent to go armed. The defendant admitted in a pre-trial statement that this is the same pistol that had been used by him in shooting the defendant.
It is axiomatic that if evidence is competent, material and relevant to the issues on trial, it is not rendered inadmissible merely because it may show the defendant guilty of another crime. Dandridge v. State, 552 S.W.2d 791 (Tenn.Cr.App. 1977); Campbell v. State, 469 S.W.2d 506 (Tenn.Cr.App. 1971); Russell v. State, 489 S.W.2d 535 (Tenn.Cr.App. 1972). Evidence that the defendant had possession of the murder weapon seven days after it was used to shoot the defendant is material. We also find no prejudice from this evidence. This issue is overruled.
The defendant complains that during the closing argument, the Assistant District Attorney General mentioned that punishment for second-degree murder is 10 years to life in the State penitentiary. While the defendant cites no authority supporting his theory that the State cannot legitimately argue punishment, we cannot consider this assignment because the defendant did not object to this argument. Woodson v. State, 579 S.W.2d 893 (Tenn.Cr. App. 1978), (See, also, cases cited therein); Lillard v. State, 528 S.W.2d 207, 211 (Tenn. Cr.App. 1975); Rule 36(a), Tennessee Rules of Appellate Procedure (1979).
The defendant assigns issues concerning other portions of the State's argument, but the only ground mentioned in the motion for a new trial concerning argument is:
"That the Assistant Attorney General, Guy Yelton, made improper and prejudicial statements to the jury in his voir dire examination in that he argued the proposition of punishment stating on occasion the number of years for certain offenses contained in the indictment, and made further prejudicial statements in his final argument to the jury that were in violation of the defendant's rights to a fair and impartial trial." (Emphasis supplied.)
The other issues concerning the State's argument are in no way related to the proposition of punishment. Rule 3(e) of the Rules of Appellate Procedure (1979) provides in part:
"... Provided, however, that in all cases tried by a jury, no assignment of error shall be predicated upon alleged error in the admission or exclusion of testimony, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial in the lower court and decided adversely to the appellant; otherwise such assignments will be treated as waived... ."
In Memphis St. Ry. Co. v. Johnson, 114 Tenn. 632, 88 S.W. 169, 171 (Tenn. 1905), the Court states:
"We are of the opinion that the grounds set out in the motion should be as specific and certain as the nature of the error complained of will permit. Thus, if the error consists in the admission or rejection of evidence, the evidence admitted or rejected should be stated. If it be for affirmative error in the charge, or for failure to give an instruction properly and seasonably presented, it should set out the portion of the charge complained *760 of, or the instruction refused, or otherwise definitely identify the instruction. If it be for misconduct of the opposite party or that of the jury, the facts constituting it should be stated."
In a motion for a new trial, the grounds relied upon must be specified with reasonable certainty for several reasons: (1) to advise the trial court and opposing counsel of the error or irregularity relied upon and (2) to advise the appellate courts that the trial court was made aware of the alleged error and was given an opportunity to consider and pass on it. Memphis St. Ry. Co. v. Johnson, supra; Ferguson v. State, 166 Tenn. 308, 61 S.W.2d 467 (1933). Therefore, to comply with Rule 3(e), supra, the motion for a new trial must specify the portion of oral argument complained of with reasonable certainty; otherwise, the matter cannot be considered by the trial court on the motion for a new trial or by an appellate court on appeal.
The defendant also insists that the two pre-trial statements given to the police by him in the presence of his attorney were inadmissible in evidence under the holding of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant and his retained counsel voluntarily came to the policemen in each instance for the purpose of giving a statement. The defendant stated, in the presence of his attorney, that his attorney had advised him of his rights. The Miranda case itself holds that the presence of the defendant's attorney obliterates the necessity for a police officer to advise one in custody of his rights as mandated by Miranda:
"The presence of counsel ... would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [i.e., against self-incrimination]. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion."
Miranda, supra, at 466, 86 S.Ct. at 1623.
We also note that in neither instance when the defendant gave these statements was he in police custody. He voluntarily came to the policemen with his attorney; therefore, he was deprived of no right sought to be protected by Miranda.
In another issue, the defendant complains of a statement by the trial judge during the testimony of a State's witness to the effect that "every witness is presumed to speak the truth under the law." The defendant insists that the trial judge's statement was improper judicial comment. While we do not agree that this statement affected the results of the trial, we cannot consider it since it was not presented in the defendant's motion for a new trial. Rule 3(e), Tennessee Rules of Appellate Procedure.
In another issue, the defendant contends that the trial judge should have instructed the jury that his intoxication must be taken into consideration to determine whether the defendant had the specific intent to commit the crime of second degree murder. Second-degree murder is not a specific intent crime, and voluntary intoxication will not mitigate, excuse, or justify this offense. Harrell v. State, 593 S.W.2d 664 (Tenn.Cr.App. 1979).
Finally, the defendant makes an issue on the grounds that the widow of the victim was permitted to remain in the courtroom. The record reflects that the widow was designated as prosecutrix and sat in the courtroom while preliminary questions were asked the State's first witness. She was then placed under the rule of sequestration. While we find neither error nor prejudice in this procedure, we must overrule this issue because the question was not presented to the trial judge in the defendant's motion for a new trial as required by Rule 3(e), Tennessee Rules of Appellate Procedure.
The judgment below must be affirmed.
DWYER and DUNCAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623973/ | 15 So. 3d 1083 (2009)
Janos VOROS, M.D., Individually and on Behalf of Janos Voros, M.D., a Professional Medical Corporation
v.
Charley DORAND, Individually and Dorand, Individually and Dorand Consulting Services.
No. 08-CA-667.
Court of Appeal of Louisiana, Fifth Circuit.
May 26, 2009.
*1084 Bruce A. Miller, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
Henry L. Klein, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
CLARENCE E. McMANUS, Judge.
This appeal concerns a claim for damages by Dr. Janos Varos against Damien Knight, the Bank of Louisiana, and Charley Dorand & Dorand Consulting Services resulting from the unauthorized conversion of funds by Knight from Dr. Voros' Bank of Louisiana accounts. The Bank of Louisiana now files this appeal from the trial court's judgment in favor of Dr. Voros in the amount of $22,000.00, finding the Bank to be 50% at fault, and thus ordering the bank to pay $11,000 to Dr. Voros.
For the following reasons, we amend the judgment of the trial court, in part, and affirm the judgment as amended.
STATEMENT OF THE CASE
Janos Voros, M.D. is the sole shareholder, director and officer of Janos Voros, MD, A Medical Corporation. In approximately 1983, Dr. Voros hired Damien Knight, who eventually became his officer manager and handled his financial and banking affairs. Dr. Voros also had an accountant, Charley Dorand of Dorand Consulting Services, that reviewed bank statements for reconciliation and performed other necessary accounting services.
*1085 Dr. Voros, with the assistance of Knight, opened bank accounts at Bank of Louisiana in 2000, including a personal money market account and a corporate checking account for his medical corporation. Sharon Welch, a patient of Dr. Voros, was the branch manager of the Lapalco location of the Bank of Louisiana. She processed and opened the bank accounts for Dr. Voros. The signature cards on both the personal money market account and the corporate checking account included only Dr. Voros' signature. Knight was not listed on the signature card for either account.
Knight was responsible for making deposits for Dr. Voros and paying all expenses due. Dr. Voros would sign blank checks for Knight to use to pay the expenses. Unknown to Dr. Voros at the time, Knight was using some of the blank checks he signed to pay her own personal bills. In addition, Knight made telephone transfers from Dr. Voros' personal money market account to his corporate account. Knight would speak with Welch at Bank of Louisiana and request these transfers. These transfers were made without Dr. Voros' knowledge.
Dr. Voros discovered the problem with the accounts and unauthorized checks and transfers by Knight after his wife pointed out to him that the credit card debt was high and the bills were not being paid. Dr. Voros contacted Welch at the bank and she helped him review the accounts and they discovered that Knight had stolen money from his accounts using the signed blank checks to pay her personal bills and by making unauthorized transfers from Dr. Voros' personal account at Bank of Louisiana.
Criminal charges were brought against Knight. On June 15, 2004, she pled guilty to theft over $500. She was sentenced to imprisonment at hard labor for 3 years. That sentence was suspended and she was placed on five years active probation. She was also ordered to pay costs and ordered to pay a total of $190,000.00 in restitution to Dr. Voros.
On September 27, 2002, Dr. Voros, individually, and on behalf of his medical corporation, filed a Petition for Damages against his accountant, Charley Dorand, individually, and Dorand Consulting Services. Dr. Voros alleged Dorand was negligent in balancing accounts, preparing ledgers and failing to detect irregularities to prevent the systematic removal of funds by Knight.
On June 7, 2005, Dr. Voros filed a First Amended Petition for Damages naming Knight and Bank of Louisiana as defendants. Dr. Voros alleged Knight purposefully converted his money for her own use by paying credit card bills with his funds and taking cash directly from his bank accounts. Dr. Voros alleged the Bank of Louisiana negligently permitted Knight to transfer funds from Dr. Voros' individual account to his corporate account without appropriate authority. In a second amending petition, Dr. Voros alleged the Bank of Louisiana permitted Knight to make the transfers by telephone.
On April 7, 2006, Bank of Louisiana filed a peremptory exception of prescription arguing the amended petition naming it as a defendant was filed more than three years after the original petition. The trial court denied this exception July 19, 2006.
Trial was held on January 10, 2008 with regards to Dr. Voros' claim against Bank of Louisiana for reimbursement of $22,000.00 in losses resulting from the unauthorized telephone transfers, which were not covered by the order of restitution in the criminal action against Knight. On March 5, 2008, the trial court rendered judgment in favor of Dr. Voros for $22,000.00. However, the trial court also found Dr. Voros to be 50% at fault for the lack of due diligence in the supervision or *1086 review of his own financial accounts. Therefore, the trial court reduced his award to $11,000.00 in accordance with the finding of comparative fault.
Bank of Louisiana now appeals the trial court's judgment arguing four assignments of error: 1) the trial court erred in failing to find that the negligence claims against Bank of Louisiana had prescribed and failed to rule on this matter, 2) the trial court erred in failing to find that Dr. Voros' claims were barred as a matter of law by La. R.S. 10:3-405 and La. R.S. 10:3-406, 3) the trial court erred in failing to apply the legal principles enunciated in Black v. Whitney National Bank, 618 So. 2d 509 (4th Cir.1993), and 4) the trial court erred in failing to apply fault to either Charley Dorand or Damien Knight. For the reasons which follow, we amend the trial court's judgment in part and affirm the judgment as amended.
DISCUSSION
First, Bank of Louisiana claims the trial court erred in failing to find that the negligent claims against the Bank had prescribed. Bank of Louisiana further argues that, despite considerable focus on the issue of prescription, there was no ruling made by the trial court.
In opposition, Dr. Voros argues the exception of prescription was heard and denied by the trial court. We agree with Dr. Voros and find the issue of prescription was heard and decided by the trial court prior to the commencement of trial. Bank of Louisiana filed the peremptory exception of prescription on April 7, 2006. The trial court heard arguments on the exception and it was denied on July 19, 2006. Bank of Louisiana argued the issue of prescription again at the beginning of the trial, although no formal written exception was filed at that time. We find that since the trial court did rule on the exception of prescription prior to trial, a second ruling in the judgment following trial was not necessary. Further, we note that following the trial court's July 19, 2006 denial of its peremptory exception of prescription, Bank of Louisiana did not file an application for supervisory writs with this Court.
Even though we find the Bank of Louisiana is incorrect in its assertion that the trial court failed to rule on its exception of prescription, we will address the merits of the exception and consider the Bank of Louisiana's assignment of error to address the trial court's 2006 denial of the exception. In its original exception, the Bank of Louisiana argued the alleged negligent acts by the Bank of Louisiana that Dr. Voros complained of took place between February 21, 2002 and July 12, 2002. The First Amended Petition filed by Dr. Voros adding Bank of Louisiana as a defendant was filed June 6, 2005. Therefore, Bank of Louisiana argued the amended petition containing Dr. Voros' claims against it was filed more than one year after the last alleged act of negligence and the claim was prescribed. Bank of Louisiana further argued Dr. Voros complained that Bank of Louisiana's independent negligence caused his damages and this negligence had nothing to do with the actions of Knight. Therefore, Bank of Louisiana argued the claims against it were prescribed.
In opposition to the exception of prescription, Dr. Voros argued in the trial court that Bank of Louisiana and Knight are solidary obligors because the negligence and actions of the bank were extricably intertwined with the actions of Knight. Dr. Voros further argued the applicable prescriptive period for the claims against Knight is ten years under La. C.C. art. 3499 because the action is a personal action. Further, Dr. Voros argued in accordance with La. C.C. art. 3503, when *1087 prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors and their successors.
The trial court denied the exception without reasons. We find the trial court correctly denied the exception. We agree with Dr. Voros and find that Knight and Bank of Louisiana are solidary obligors in this action. Dr. Voros' claim against Knight is a personal action and is governed by La. C.C. art. 3499 which states "[u]nless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years." Therefore, a liberative prescription of ten years applies to the claims against Knight and Dr. Voros' amending petition naming her as a defendant was timely filed. Further, La. C.C. art. 1793 provides that "[a]ny act that interrupts prescription for one of the solidary obligees benefits all the others."
Since we find Knight and Bank of Louisiana to be solidary obligors in this matter, and the ten year liberative prescription applies to Dr. Voros' claim against Knight, the claim against Bank of Louisiana was also timely filed. Thus, the trial court correctly denied the exception of prescription.
Second, Bank of Louisiana argues the trial court should have applied LSAR.S. 10:3-405 and LSA-R.S. 10:3-406. Bank of Louisiana argues these statutes apply and bar the claims against it by Dr. Voros. Bank of Louisiana argues La. R.S. 10:3-405 and 406 dictate that an employer who fails to exercise ordinary care in connection with defalcations by an employee is barred from making any claims against a financial institution which handles the employer's bank accounts.
In opposition, Dr. Voros argues these statutes deal only with negotiable instruments, and do not apply to the unauthorized transfer of funds from the one account to another. Dr. Voros argues there is no instrument related to the account that would trigger an obligation under these statutes on the part of the account holder. Dr. Voros contends these statutes concerning negotiable instruments between a bank and a depositor relate only to money within an account that is demanded by a written instrument from that account and has nothing to do with a verbal and unauthorized telephone transfer of funds by a non-customer.
Chapter 3 of Title 10 of the Louisiana Revised Statutes specifically refers to and is titled "Negotiable Instruments". Further, the language of both statutes cited by Bank of Louisiana refers to defalcations made by "instrument". Therefore, we agree with Dr. Voros and find these statutes apply only to acts by an employee dealing with negotiable instruments. Since this case does not deal with negotiable instruments, but instead involves unauthorized telephone transfers of funds from an account, we find these statutes inapplicable in this case. Therefore, we find Bank of Louisiana's second assignment of error lacks merit.
Third, Bank of Louisiana argues the trial court should have applied the case of Black v. Whitney National Bank, 618 So. 2d 509 (4th Cir.1993) and found that Dr. Voros is barred from making a claim against Bank of Louisiana. Bank of Louisiana argues Dr. Voros, like the plaintiff in Black, did not exercise supervision or review of his bank statements or the actions of Knight, therefore, he cannot bring a claim against the bank.
In opposition, Dr. Voros argues this case concerns negotiable instruments, unlike the unauthorized telephone transfers made by Knight. Thus, Dr. Voros contends this case does not apply and does not bar his claim against Bank of Louisiana.
A review of Black indicates the plaintiffs claims in that case center around the *1088 acts of an employee/office manager who forged the employer/physician's signature on checks payable to the physician. These acts clearly involved the use of negotiable instruments, unlike the telephone transfers that took place in the instant case.
Additionally, we find Black is distinguishable from the instant case because in Black, the employee was given much more authority with regards to the employers bank accounts. The employee and the employer in Black had joint bank accounts and the employee was a signature on the employer's account. Therefore, as noted by the Fourth Circuit in that case, this authority held the employee out to the banking community as having the authority to engage in the questionable transactions.
In the instant case, Knight was given no such authority. She was not a signature on Dr. Voros' accounts with Bank of Louisiana. The claims in the instant case stem from Bank of Louisiana's allowance of the transfers without authority from a signature on the account. Black only addresses the employee's forging of the employer's signature on checks payable to the employer.
For the reasons discussed above, we find Black to be distinguishable from this instant case and find Bank of Louisiana's third assignment of error lacks merit.
Finally, Bank of Louisiana argues the trial court erred in failing to apply fault to either Dorand or Knight. Bank of Louisiana argues Dorand should have been assessed some fault because she was responsible for evaluating the checking accounts and failed to catch the defalcations. Bank of Louisiana also argues the trial court should have assessed some fault to Knight since she actually stole the money. Bank of Louisiana contends Knight has offered no defense and has admitted she was the proximate cause of Dr. Voros' losses.
Dr. Voros argues in opposition that the fault of the co-defendants Dorand and Knight was not an issue before the trial court and should not be addressed by this Court. Dr. Voros argues there were only two parties to the contract between the bank and Dr. Voros and there is no way the other defendants breached its terms. Dr. Voros goes on to argue the trial court's judgment should be affirmed and not disturbed, and specifically points out that he has chosen not to appeal the trial court's judgment which found him to be 50% at fault for the losses he sustained.
After reviewing the record and trial testimonies presented, we agree with the trial court that Dr. Voros was partially at fault for the losses he sustained. Additionally, we agree with the trial court that Bank of Louisiana was also at fault. However, we agree with Bank of Louisiana and find that some fault must be assessed to Knight, the individual that actually stole the funds and initiated the unauthorized telephone transfers. We do not find the evidence and testimonies presented at trial support an assessment of fault on behalf of Dorand.
First, with regards to the fault of Bank of Louisiana, we agree with the trial court that the bank was at fault for allowing Knight to make the transfers by telephone that resulted in her stealing funds from Dr. Voros.
Welch, the branch manager, handled the unauthorized transfers on behalf of the bank and she testified at the trial of this matter. She testified that Bank of Louisiana is a small bank and she knew 90% of her customers. She further testified that if she knew a customer, she would make a transfer for them if they called and requested it. She stated she complied with the "know your customer rule", which she claimed was contained in bank regulation literature. Welch testified that she knew *1089 Dr. Voros and had set up both his corporate and personal accounts with Bank of Louisiana. Welch further stated that she knew Knight worked for Dr. Voros and she felt she had expressed authority to permit Knight to request these transfers on Dr. Voros' accounts because Knight "handled the office." Welch testified that she had not talked directly to Dr. Voros concerning Knight's requests, but Knight handled all his affairs, so this led her to believe Knight had the authority to do the transfers. However, Welch also testified that she knew Knight was not a signatory on Dr. Voros' personal or corporate accounts and knew Knight was not an officer, director, or shareholder of Dr. Voros' corporation.
Additionally, Welch did not get authority from Dr. Voros for Knight to make the transfers, nor did she call him for approval prior to completing the transfers. Welch also did not call Dr. Voros after the transfers, instead she completed the written debit advices and mailed a copy to Dr. Voros' office. The original debit advices were sent in the monthly bank statements. Ultimately, Welch testified she would not have made the transfers if she had not personally known Knight.
Dr. Voros testified that he never added Knight's name to any accounts, never provided her or the bank with the express authority or written authority, for Knight to access the accounts. He further testified that he never told Knight or Welch that Knight was authorized to make transfers. Additionally, Dr. Voros never told anyone at Bank of Louisiana that his advance approval would not be needed for employees to make transfers.
At trial, Dr. Voros also presented the testimony of a banking expert, Clayton Domingue, who was a former bank examiner for the Louisiana Office of Financial Institutions. He testified that transfers like the ones Welch made for Knight, must be made by the owner or beneficiary and no other. He further testified that he "know-your-customer rule" which Welch stated she relied upon, was a published regulation by the federal agencies that regulate banks, however, he believed this rule had been abrogated by new banking laws, especially after September 11th and the passage of the Patriot Act. He testified that banks have moved to a customer identification program. Domingue further explained that authority to make such transfers must be in writing and this writing must delegate authority to the non-owner in order to make the transfer legal. Domingue testified that transfers by telephone by a non-account holder who was not listed on the signature card were neither customary nor ordinary and did not comply with law. He also testified that there were no internal procedures in place at the Bank of Louisiana for transfers by telephone of an account holder's funds by a non-customer.
Based on the testimonies presented at trial, we find that Welch, working on behalf of Bank of Louisiana, did not have the authority to make the telephone transfers requested by Knight. Therefore, Welch's actions allowed Knight to steal the funds from Dr. Voros' account at Bank of Louisiana. Thus, we agree with the trial court and find Bank of Louisiana to be at fault in this matter.
We further agree with the trial court that Dr. Voros is partially at fault for his lack of due diligence in the supervision and/or review of his financial accounts. At trial, Dr. Voros testified regarding Knight's role in the handling of his financial affairs. He testified that Knight would go to Bank of Louisiana to make deposits in his accounts. Further, Knight would come to him and tell him certain bills needed to be paid. He would sign blank checks and Knight would fill in the *1090 payee and amount. Dr. Voros testified that Knight opened most of the mail at his office, including the bank statements. Dr. Voros stated he never opened or reconciled a bank statement. He thought Knight sent the statements directly to his accountant, Charley Dorand.
In addition, Dr. Voros testified that his wife had warned him for years that she suspected Knight was stealing funds. But, he did not personally take any steps to check his accounts because he was under the impression that Dorand was checking all his accounts and she had assured him everything was fine. Ultimately, Dr. Voros testified at trial that he thinks he probably has some responsibility in taking care of his business and he should have been more careful. He agreed that part of the losses were his responsibility.
Based on the above, we find Dr. Voros did not properly supervise or review his own financial accounts. If he had reviewed the monthly bank statements and seen the debit advices, Dr. Voros would have known immediately that Knight was making transfers from his personal account that he had not authorized. Further, if Dr. Voros had discovered these unauthorized transfers immediately after the first one occurred, he could have taken action to stop Knight and alert the bank as to the wrongdoing. Therefore, we agree with the trial court that Dr. Voros was partially at fault for his lack of due diligence in supervising his financial accounts.
Unlike the trial court, we also attribute some fault to Knight, who actually stole the money by initiating these transfers. At trial, Knight admitted she made the telephone transfers and then used the funds to pay her personal bills. After criminal charges were brought against her, she pled guilty to theft over $500.
Since Knight actually initiated the unauthorized transfers and ultimately took the money from Dr. Voros, we find her to be 25 % at fault for her role in this matter. Further, we find Dr. Voros to be 25% at fault for his failure to review his financial accounts and discover the actions of Knight. And finally, we agree with the trial court's assessment of fault as to Bank of Louisiana and find it to be 50% at fault for its role in allowing Knight to make the unauthorized transfers by telephone. Ultimately, Knight would not have been able to take these funds from Dr. Voros if Bank of Louisiana had never allowed her to make the telephone transfers. Bank of Louisiana failed to protect its account holder, Dr. Voros, by requiring the transfers to be made by an account holder only, or by requiring written authority from Dr. Voros before allowing the transfers by Knight. Therefore, we agree with the trial court's 50% assessment of fault for Bank of Louisiana.
Accordingly, we amend the trial court's judgment to reflect that Dr. Voros is 25 % at fault, Knight is 25% at fault for their respective roles in this theft matter. We affirm the trial court's judgment finding Bank of Louisiana to be 50% at fault and affirm the trial court's award of $22,000.00 to Dr. Voros for reimbursement of funds stolen by Knight and not covered by restitution in the criminal matter. Dr. Voros proceeded to trial in this matter against only Bank of Louisiana. Therefore, we order judgment in favor of Dr. Voros and against Bank of Louisiana in the amount of $11,000.00, which reflects Bank of Louisiana's 50% fault assessment. As amended, we affirm the trial court's judgment.
JUDGMENT AMENDED; JUDGMENT AFFIRMED AS AMENDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1623971/ | 564 N.W.2d 125 (1997)
222 Mich. App. 363
Chester E. BROWN, Jr., Plaintiff-Appellant,
v.
GENESEE COUNTY BOARD OF COMMISSIONERS, Defendant-Appellee.
Docket No. 179788.
Court of Appeals of Michigan.
Submitted August 6, 1996, at Detroit.
Decided March 21, 1997, at 9:00 a.m.
Released for Publication June 6, 1997.
*126 Schreier & Weiss, P.C. by Mark Schreier and Alyce M. Haas, Royal Oak, for plaintiff-appellant.
Plunkett & Cooney, P.C. by Christine D. Oldani and H. William Reising, Detroit, for defendant-appellee.
Before TAYLOR, P.J., and MARKEY and N.O. HOLOWKA[*], JJ.
MARKEY, Judge.
Plaintiff appeals as of right from the trial court's order granting summary disposition for defendant pursuant to MCR 2.116(C)(7) on the basis that defendant was entitled to governmental immunity. We affirm.
While incarcerated at the Genesee County Jail in March 1993, plaintiff was injured when, after showering, he slipped and fell on a wet floor. In plaintiff's complaint, which was predicated on the public building exception to governmental immunity, M.C.L. § 691.1406; M.S.A. § 3.996(106), he alleged that the shower area of defendant's jail was defectively designed or dangerously maintained in light of improper water drainage and the absence of a shower curtain to prevent the floor from becoming wet and slippery. Defendant moved for, and the trial court granted, summary disposition. The court reasoned that the situs of plaintiff's fall (the shower area) did not come within the public building exception because members of the general public were denied access to the inmate shower area. Plaintiff appeals from that determination.
This Court reviews a trial court's grant or denial of summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Citizens Ins. Co. v. Bloomfield Twp., 209 Mich.App. 484, 486, 532 N.W.2d 183 (1994). When the motion is brought under MCR 2.116(C)(7), the pleadings, together with all *127 documentary evidence submitted, are reviewed in a light most favorable to the nonmoving party to determine whether the moving party has established that it is entitled to governmental immunity. Id.; Wade v. Dep't of Corrections, 439 Mich. 158, 162-163, 483 N.W.2d 26 (1992). In order to survive a motion brought under this subrule, the plaintiff must allege facts that justify an exception to governmental immunity. Wade, supra; Steele v. Dep't of Corrections, 215 Mich.App. 710, 712-713, 546 N.W.2d 725 (1996).
Plaintiff first contends that the trial court erred in finding that the prisoner shower area of the Genesee County Jail was not, as a matter of law, open for use by members of the public under the public building exception contained in M.C.L. § 691.1406; M.S.A. § 3.996(106). We disagree.
While generally immune from tort liability pursuant to M.C.L. § 691.1407; M.S.A. § 3.996(107), governmental agencies are liable for injuries arising out of dangerous or defective public buildings. M.C.L. § 691.1406; M.S.A. § 3.996(106). The public building exception to governmental immunity provides in part:
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 the condition or to take action reasonably necessary to protect the public against the condition. [M.C.L. § 691.1406; M.S.A. § 3.996(106).]
Before the public building exception will apply to pierce the shield of governmental immunity, the plaintiff must prove that (1) a governmental agency is involved, (2) the public building in question is open for use by members of the public, (3) a dangerous or defective condition of the building itself exists, (4) the governmental agency had actual or constructive knowledge of the defect, and (5) the governmental agency failed to remedy the alleged defective condition after a reasonable period. Jackson v. Detroit, 449 Mich. 420, 428, 537 N.W.2d 151 (1995); Steele, supra at 713-714, 546 N.W.2d 725.
The purpose of the building exception to governmental immunity is to protect the general public from injury by imposing a duty on the government to maintain safe public buildings but not necessarily safety in public buildings. Steele, supra; Carlton v. Dep't of Corrections, 215 Mich.App. 490, 493-494, 546 N.W.2d 671 (1996). Accordingly, with respect to this issue, the focus of the trial court's and this Court's inquiry is on the "accessibility [of the accident site] to members of the general public, rather than on the extent to which the building might benefit the community." Steele, supra at 714, 546 N.W.2d 725 (emphasis added); Griffin v. Detroit, 178 Mich.App. 302, 306, 443 N.W.2d 406 (1989).
As in Steele, where the prisoner-plaintiff was injured while renovating a state-owned building for future use as a correctional facility, plaintiff relies on Green v. Dep't of Corrections, 386 Mich. 459, 464, 192 N.W.2d 491 (1971) (Green II). In Green II, our Supreme Court affirmed this Court's findings that prisons or jails were public buildings and prisoners were members of the general public despite their incarceration, thereby permitting a prisoner to successfully pursue relief from the Department of Corrections for a finger amputation he suffered while working in a prison shop. Green v. Dep't of Corrections, 30 Mich.App. 648, 654, 186 N.W.2d 792 (1971) (Green I). Both Green decisions defined a public building as "one which exists as a benefit to the whole community and is operated and maintained by the governing body of that same community." Green II, supra at 464, citing Green I, supra at 654, 186 N.W.2d 792. In finding that the plaintiff was a member of the public community whether he was in or out of jail for purposes of the public building exception, this Court did not rely on prior precedent but merely observed that "[t]he difference [is] that when incarcerated, he is prevented, by law, from exercising the rights and privileges he enjoyed as a free member of society." Green I, supra at 654-655, 186 N.W.2d 792. Further, in footnote 7, this Court also *128 distinguished between and defined the terms "private" and "public" in order to show that the plaintiff was not a private citizen while incarcerated, so he must be a public citizen. Id.
More recently, however, the boundaries of governmental immunity and the public building exception have been redefined. Our Supreme Court in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), explained that the statutory grant of governmental immunity must be broadly construed and its exceptions narrowly drawn. Chaney v. Dep't of Transportation, 447 Mich. 145, 154, 523 N.W.2d 762 (1994); Wade, supra at 166, 483 N.W.2d 26. Indeed, "the scope of this [public building] exception has been narrowed considerably in the time since [1978]." Puroll v. Madison Heights, 187 Mich.App. 672, 673, 468 N.W.2d 52 (1990); see also Wade, supra at 167, 483 N.W.2d 26. In light of the test currently applied to establish the public building exception and the impact of Ross on governmental immunity cases, we find that the decisions in Green are not controlling here and that the trial court did not err in granting summary disposition for defendant.
The five-part test for applying the public building exception requires that "the public building in question is open for use by members of the public" and that the trial court focus on the "accessibility to members of the general public, rather than on the extent to which the building might benefit the community." Steele, supra at 713-714, 546 N.W.2d 725 (emphasis added). In contrast, the Supreme Court in Green II, supra at 464, adopted this Court's definition of a public building as "one which exists as a benefit to the whole community and is operated and maintained by the governing body of that same community." Green I, supra at 654, 186 N.W.2d 792. Notably, both our Supreme Court in Jackson, supra, and this Court in Steele, supra, have reverted to a more narrow construction of the public building exception than that which was applied before Ross. We must do the same. Assuming, arguendo, that although the jail building where plaintiff was incarcerated is a public building, the shower area where plaintiff fell is not "open for use by members of the public" or accessible to members of the general public. Steele, supra; Griffin, supra. Thus, we must conclude that the public building exception does not apply here. See also Andrews v. Detroit, 450 Mich. 875, 539 N.W.2d 506 (1995), where the Supreme Court ruled that the Detroit Wastewater Plant was not a building open for use by members of the public.
Plaintiff argues that, as stated in Green II, supra at 464, he and the other inmates are members of the public community even though they cannot exercise the rights and privileges enjoyed by free members of society. In light of Ross' mandate that we narrowly construe the exceptions to governmental immunity, and in view of the fact that this issue has no effect on our decision today, we need not address it. The trial court herein relied on two cases that support this conclusion: Putman v. Wayne Co. Community College (After Remand), 189 Mich.App. 557, 558-559, 473 N.W.2d 711 (1991), and Taylor v. Detroit, 182 Mich.App. 583, 588, 452 N.W.2d 826 (1989). In Taylor, the plaintiff's son was electrocuted after he entered an electrical substation that the city owned and operated. This Court found that the public building exception was inapplicable because only authorized persons were allowed entry into the substation and the structure was not designed or intended to be accessible to the general public. Id. In Putman, supra, this Court relied on Taylor, supra, to find that the area where the plaintiff was injured, i.e., a catwalk above a stage, was neither designed nor intended to be used by or to be accessible to the general public. "Only authorized persons, i.e., members of the theater group, were allowed entry to the catwalk area." Putman, supra at 559, 473 N.W.2d 711. Accord Griffin, supra at 306-308, 443 N.W.2d 406[1] ("In applying the public buildings *129 exception, the focus is on the accessibility of members of the general public to the situs of the accident rather than on the extent to which the building may benefit the community") (emphasis added).
Applying the same reasoning to the case at bar, we believe that the shower area of the jail was open only for certain individuals, i.e., inmates housed in the vicinity of the shower who were assigned to bathe there and any supervisory or cleaning crews scheduled to oversee or maintain the area. The shower area was not designed to be used by or to be accessible to members of the general public; this was not a public restroom.[2]Putman, Taylor, and Griffin clearly instruct us that the situs of the accident is key, and areas where the public cannot visit without proper authorization do not fall within the public building exception.
Plaintiff also argues that the Green cases must be followed because our Supreme Court has had two opportunities to overrule them but has declined to do so. Wade, supra at 166-170, 483 N.W.2d 26; Hickey v. Zezulka (On Resubmission), 439 Mich. 408, 420-427, 440 Mich. 1203, 487 N.W.2d 106 (1992). In light of the fact that neither case addressed what we believe to be the implicit public accessibility requirement of the public building exception, we are not persuaded by this argument. Likewise, we do not believe that the Supreme Court implicitly found that a hallway at the Lakeland Correctional Facility in Wade or the Michigan State University Department of Public Safety holding cell in Hickey constituted areas of a public building open to members of the public under M.C.L. § 691.1406; M.S.A. § 3.996(106). Rather, in Wade and Hickey, our Supreme Court apparently addressed only the "dangerous or defective condition" prong of the public building analysis. After finding that this prong was not satisfied, it had no need to address the remaining requirements. Not infrequently does judicial expediency mandate addressing issues according to their ease of resolution. See, e.g., Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069-70, 80 L. Ed. 2d 674 (1984) ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed"). Here, for the same reason, we begin and end our analysis of this case with the second prong of the test. Therefore, we cannot draw any negative or implied inferences from Wade and Hickey.
Accordingly, we find that the trial court did not err in granting defendant's motion for summary disposition. The situs of plaintiff's accident was not an area open to the public within a public building, Jackson, supra; Steele, supra; Griffin, supra, so defendant was entitled to judgment as a matter of law because plaintiff failed to establish an exception to governmental immunity. Steele, supra at 712-713, 546 N.W.2d 725.
Plaintiff additionally contends that the trial court erred in ruling sua sponte that the allegedly defective shower conditions that caused his injuries fell outside the purview of the public building exception because they were transitory, not dangerous or defective conditions of the building itself. Wade, supra at 170, 483 N.W.2d 26. In light of our decision upholding the grant of summary disposition in favor of defendant for the reasons previously discussed, we need not review this issue on appeal.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] In Griffin, supra, the plaintiff's decedent apparently fell in the bathtub of her apartment located in the city's housing projects when a supporting railing affixed near the bathtub gave way; the woman drowned in the bathtub. This Court found that the bathroom of the dwelling unit where the injury occurred was not open for use by the public even though the housing complex constituted a public building. Rather, it was only open to the decedent as part of her private residence pursuant to her lease. Accordingly, the public building exception to governmental immunity was inapplicable, and the defendant was entitled to summary disposition. Id. at 306-308, 443 N.W.2d 406.
[2] Cf. Williamson v. Dep't of Mental Health, 176 Mich.App. 752, 759-760, 440 N.W.2d 97 (1989), where this Court found that the public building exception applied regarding a mental health inpatient shower facility "in light of the use for which the shower and bathing facilities was specifically assigned; that is, the bathing and showering place for a known epileptic and mildly retarded patient subject to convulsions which occured [sic] without warning whom the staff was well aware was at risk for drowning if subject to a seizure while taking a bath." The institution's water flow system for the shower was also "complex and unwieldy." To the extent our decision conflicts with Williamson, we believe it was wrongly decided and is not binding on us under Administrative Order No. 1996-4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624015/ | 603 S.W.2d 666 (1980)
Richard G. HREBEC et al., Plaintiffs-Appellants,
v.
AETNA LIFE INSURANCE CO., Defendant-Respondent.
No. 41156.
Missouri Court of Appeals, Eastern District, Division Two.
July 15, 1980.
*668 W. Scott Pollard, Florissant, for plaintiffs-appellants.
Hiram W. Watkins, Sullivan & Watkins, Clayton, for defendant-respondent.
GUNN, Presiding Judge:
This appeal arises from a suit to determine coverage and enforce payment under a medical insurance plan. Plaintiffs-appellants, Mr. and Mrs. Richard Hrebec, are insureds under a group medical insurance policy issued by defendant Aetna Life Insurance Company. In a jury waived trial, the trial court ordered Aetna to pay the Hrebecs $13,410.73 for certain medical expenses but denied their claims for other items of expense amounting to approximately $30,000. The Hrebecs appeal the denial of the balance of their claims. We affirm in part and reverse in part, remanding for a determination of the amount of expense recoverable under the terms of this opinion.
In September, 1973, Mrs. Hrebec suffered a massive stroke. A craniotomy was performed at Firmin Desloge Hospital in St. Louis where she was confined until February, 1974. Since the operation she has remained in essentially a comatose state, paralyzed and completely helpless-a condition from which she is unlikely to recover.
Mrs. Hrebec was transferred in February, 1974 from Firmin Desloge Hospital to the Extended Care Facility at St. Louis County Hospital under the care of Dr. Wolfgang Schuessler. Dr. Schuessler testified that her condition appeared to improve until January, 1975-her temperature stabilized and a urinary tract infection healed. In April, 1975 Dr. Schuessler determined that continued treatment would not improve her condition. She was then transferred to St. Sophia Geriatric Center in Florissant, where she now is. As mentioned, there is no reasonable likelihood of her recovery or improvement. She continues to be fed via nasal tubes and has a catheter in place. She must be turned periodically to avoid decubitis ulcers and is bathed and clothed by the nursing staff at St. Sophia. She is also given prescribed medication, receives physical therapy and is visited by a staff physician at least monthly.
The items of expense forming the cynosure of this appeal are those incurred by the Hrebecs at St. Sophia. Aetna agrees that it is responsible for physicians' fees and medical supplies and medicines. But it contends that within the terms of the policy, St. Sophia is not a hospital and that Mrs. Hrebec is receiving "custodial care"; that the cost of such care at St. Sophia is excluded under the policy.
The relevant portions of the insurance policy are as follows:
In Article I, Section 1-General Definitions, "hospital" is defined:
(f) The term "hospital" means only an institution which meets fully every one of the following tests, namely, (a) it is primarily engaged in providing-for compensation from its patients and on an inpatient basis-diagnostic and therapeutic facilities for the surgical and medical diagnosis, treatment, and care of injured and sick persons by or under the supervision of a staff of physicians, and (b) it continuously provides twenty-four hour a day nursing service by registered graduate nurses, and (c) it is not, other than incidentally, a place for rest, a place for the aged, a place for drug addicts, a place for alcoholics, or a nursing home.
In Article II "covered medical expenses" are defined:
Covered Medical Expenses are the reasonable charges which an employee is required to pay for the following services and supplies received by a covered family member for the necessary treatment of any non-occupational injury or non-occupational disease:
HOSPITAL BOARD AND ROOM EXPENSES: These are the charges made by a hospital, in its own behalf, for board and room. However, if private accommodations are used, any excess of daily board and room charges over the applicable Private Room Limit will be disregarded.
*669 OTHER MEDICAL EXPENSES: The following charges are considered "Other Medical Expenses", provided that they have not been considered as "Hospital Board and Room Expenses":
(1) The charges made by a hospital, in its own behalf, for necessary hospital services and supplies, other than board and room;
(2) The fees of a physician or surgeon;
(3) The charges of a registered graduate nurse-other than a nurse who ordinarily resides in the employee's home, or is a member of the family of either the employee or the employee's spouse;
(4) The charges for the following medical services and supplies:
(i) Drugs and medicines obtainable only upon a physician's prescription;
(ii) Diagnostic x-ray and laboratory examinations;
(iii) X-Ray, radium, and radioactive isotopes therapy;
(iv) Anesthesia and oxygen; . . .
The following exclusion appears under "Exclusions, Limitations, and Provisions Applicable to All Titles Under Article II":
No insurance is afforded under any title of Article II as to charges for custodial care; and before determining benefits under any Title, the amount of any such charges shall be deducted from the family member's expenses which are covered under such Title and from his Allowable Expenses (as hereinafter defined).
Article I, Section 1-General Definitions defines "custodial care" as follows:
(s) The term "custodial care" means care comprised of services and supplies, including room and board and other institutional services, which are provided to an individual, whether disabled or not, primarily to assist him in the activities of daily living. Such services and supplies are custodial care without regard to the practitioner or provider by whom or by which they are prescribed, recommended or performed.
Room and board and skilled nursing services, when provided to an individual in a hospital or other institution, for which coverage is specifically provided under a Title of Article II, shall not be custodial care when such services must be combined with other necessary therapeutic services and supplies in accordance with generally accepted medical standards to establish a program of medical treatment which can reasonably be expected to contribute substantially to the improvement of the individual's medical condition.
While Mrs. Hrebec was a patient at Firmin Desloge, Aetna paid full benefits under the policy, totalling about $30,000. Aetna did not receive the first billing from St. Louis County Hospital until December, 1974, and at that time, its medical consultants determined that care after July, 1974 at St. Louis County's Extended Care Facility was "custodial" in nature. Therefore, Aetna's position was that it was not liable for custodial care expenses after that date except for certain drug and miscellaneous items to which the "custodial care" exclusion did not apply. At trial, after Dr. Schuessler testified that Mrs. Hrebec showed improvement through December, 1974, Aetna agreed to pay the St. Louis County treatment expense through that date. Additionally, the trial judge found that Aetna owed the Hrebecs for the remainder of Mrs. Hrebec's stay at County Hospital because of certain representations made to Mr. Hrebec. Aetna did not appeal this finding. Payments under the policy to date total about $50,000, with the policy having an aggregate limit of $250,000.
The trial court determined that the evidence clearly showed that St. Sophia Geriatric Center is a nursing home and not a hospital as defined in the policy. Therefore, room and board charges at St. Sophia were not a "Covered Medical Expense" within the "Hospital Room and Board" category. The court also found that the list of charges that were considered "Other Medical Expenses" was exclusive, and, because this list did not mention room and board charges at a nursing home, St. Sophia's fee was not an expense covered by the policy.
*670 Moreover, the court resolved that the care that Mrs. Hrebec receives at St. Sophia is "custodial care" as that term is defined in the policy and is specifically excluded from coverage in any event.
We are presented with the following questions for review: (1) whether Aetna waived its policy defenses of exclusion of "custodial care" and "nursing home" charges by not asserting them at the earliest available time and because of in-court admissions; (2) whether the listing of medical services in the policy under the heading "Other Medical Expenses" is an exclusive description of the expenses covered by that section; (3) whether the trial court properly construed the term "custodial care" as used in the policy, and if Aetna satisfied its burden of demonstrating that Mrs. Hrebec was in fact receiving "custodial care".
The substance of Aetna's defense is that St. Sophia is not a "hospital". Thus, it is not covered under the hospital expenses provision. It also maintains that the care received at St. Sophia is "custodial" and falls within the "custodial care" exclusion.
Contrary to the Hrebec's contention, the evidence supports the trial court's conclusion that Aetna was timely in asserting its defenses. Mr. Hrebec was advised of the custodial care exclusion and that room and board at a nursing home were not covered expenses prior to placing Mrs. Hrebec in St. Sophia. It declared the defenses at the time the St. Sophia claims were denied and affirmed them in its answer to plaintiffs' petition. Therefore, we are not confronted with the instance of denial of coverage on a stated ground and a later, different assertion of liability disclaimer. See Hounihan v. Farm Bureau Mutual Ins. Co. of Mo., 523 S.W.2d 173 (Mo.App.1975).
Nor can we find any waiver of Aetna's denial of liability for St. Sophia expenses by its agreement to pay for the St. Louis County Extended Care Facility treatment subsequent to Dr. Schuessler's testimony that Mrs. Hrebec showed improvement through December 1974. It has been Aetna's position that the County care had been custodial from July 1, 1974. The agreement to continue payments through December was only a modification of the "custodial care" date.
Any failure on the part of Aetna to assert that the Extended Care Facility of the St. Louis County Hospital was not within the policy definition of "hospital" cannot be reasonably construed to flow to St. Sophia Geriatric Center, although St. Sophia and the Extended Care Facility are licensed similarly as "skilled nursing" institutions. It is manifest from the record that the St. Sophia services area is well within the "custodial care" policy definition and well without the "hospital" definition. See McManus v. Equitable Life Assurance Society, 583 S.W.2d 271 (Mo.App.1979). See also, e. g., Waak v. National Bankers Life Ins. Co., 180 Neb. 129, 141 N.W.2d 454 (1966) (insurance coverage for convalescent "annex" of a hospital despite policy exclusion for nursing and convalescent homes). But see: Zimmerman v. National Home Life Assurance Co., 517 S.W.2d 842 (Tex.Civ.App.1974) (extended care "skilled nursing facility" not covered though part of a complex including a hospital). While the Extended Care Facility is part of a hospital complex, St. Sophia is not, nor is it a hospital. McManus v. Equitable Life Assurance Society, 583 S.W.2d at 272-73. Under the circumstances, it would be reasonable for Aetna to waive the hospital defense for the County's Extended Care Facility yet not do so with regard to St. Sophia.
The Hrebecs' second point on appeal urges that the trial court too narrowly interpreted the "Other Medical Expenses" provision of the policy. The trial court determined that the four specific categories of medical services listed under "Other Medical Services" comprised a complete and exclusive description of the services covered by that provision. The Hrebecs, however, focus on the word "considered" in the clause "The following charges are considered `Other Medical Expenses' . . ." and contend that this indicates that the services listed are merely examples of the kinds of medical services covered by the policy.
*671 In interpreting the provisions of an insurance policy, there are certain established rules of construction we must apply. First, the interpretation of the unambiguous terms of an insurance policy is a question of law, and, as such, we are not required to defer to the findings of the trial court. And as with any other contract, we must reasonably construe the policy consonant with the apparent objective and intent of the parties. State Farm Mut. Auto. Ins. Co. v. Thomas, 549 S.W.2d 616 (Mo.App.1977). Additionally, where the policy provision is clear and unambiguous, it is the court's obligation to enforce the policy as written, even though it may appear to operate harshly or inequitably as to one of the parties. Moskowitz v. Equitable Life Assurance Society, 544 S.W.2d 13 (Mo. banc 1976).
Plaintiffs' contention that the "Other Medical Expenses" clause merely lists examples of covered expenses is not a reasonable construction of the policy. In context, the word "considered" appears to be used synonymously with "deemed". The four enumerated categories describe what is covered; it is not necessary to state further what is not covered under that provision. "When one states that an apple is red, he need not add that it is not green, brown, blue or any other color besides red." Moskowitz v. Equitable Life Assurance Society, 544 S.W.2d at 16.
This interpretation is bolstered by the existence of a "Special Conditions" section, immediately following the definition of "Other Medical Expenses", which lists items that the policy will cover, although they would not fit into any of the categories previously listed under "Other Medical Expenses". This supports the view that "Other Medical Expenses" gives an exclusive listing of benefits-the "Special Conditions" being the only exceptions to that exclusivity. Accordingly, room and board expense at St. Sophia is not a "Covered Medical Expense", because St. Sophia is not a hospital. A fortiori, it is not covered under "Hospital Room and Board Expenses". Nor are room and board at a nursing facility within any of the listed categories under "Other Medical Expenses"; neither are they mentioned in the "Special Conditions".
The final point we must consider is whether the trial court correctly interpreted the term "custodial care" and whether Aetna satisfied its burden of proof of demonstrating that Mrs. Hrebec has been receiving "custodial care" during her stay at St. Sophia. The policy provides a blanket exclusion of benefits for otherwise covered expenses if the insured is receiving merely "custodial care" as defined in the policy (policy definition set out above). Although we have already determined that plaintiffs are not entitled to reimbursement for room and board expense at St. Sophia, coverage for other expenses may still be at stake. For example, paragraph (3) under "Other Medical Expenses" states that the "charges of a registered graduate nurse" are covered, without any requirement that the nurse's services be performed in a hospital or any other specific location. Therefore, as long as the services were not rendered for "custodial care", the charges of a registered nurse for services performed at St. Sophia, or elsewhere, would be compensable under the policy.
The basic facts concerning Mrs. Hrebec's care and condition are not in dispute; therefore, whether Mrs. Hrebec has been receiving "custodial care" or not is a question of law for our determination. McManus v. Equitable Life Assurance Society, 583 S.W.2d at 273. Ambiguities in an insurance contract are to be resolved in favor of the insured, especially when dealing with exclusions from coverage. Kyte v. Fireman's Fund American Ins. Cos., 549 S.W.2d 366, 368 (Mo.App.1977); Kay v. Metropolitan Life Ins. Co., 548 S.W.2d 629, 631 (Mo.App.1977). Ordinarily, if a term is defined in the policy, we look there and nowhere else for the definition, for the definition is a part of the contract. McManus v. Equitable Life Assurance Society, 583 S.W.2d at 272. However, the definition itself must be clear and unambiguous or else we again are free to give a reasonable construction to the term, applying general contract principles, *672 with doubts resolved in favor of the insured.
There are two paragraphs in the policy that attempt to define "custodial care". The first one basically provides that "`custodial care' means care . . . primarily to assist [the insured] in the activities of daily living. . . ." The purpose of this paragraph appears to be to define what custodial care is. The second paragraph's purpose is not quite as clear. It states in pertinent part: "Room and board and skilled nursing services . . . shall not be custodial care when such services must be combined with other necessary therapeutic services and supplies . . . to establish a program of medical treatment which can reasonably be expected to contribute substantially to the improvement of the individual's medical condition." This paragraph's purpose may be reasonably viewed as either to clarify what is and is not "custodial care", or to exempt from the exclusion certain services which are custodial care" as defined by the first paragraph.
In its brief, Aetna takes a somewhat oracular view of the role of this second paragraph. At one point, it asserts that custodial care "is care that is not expected to bring about medical or physical improvement of the patient's condition"-the second paragraph here being used to clarify what constitutes "custodial care". But Aetna also refers to the second paragraph as an "exception" to the custodial care exclusion, quoting the first paragraph as the definition of "custodial care" and then stating that the "only exception is when the `treatment can be reasonably expected to contribute substantially to the improvement of the individual's medical condition'".
Because of the uncertainty, we choose to view the second paragraph as an exception (the interpretation favorable to the insured), so that the care in question first must be found to be "custodial", under the definition in the first paragraph, and then the terms of the second paragraph come into play to determine if this "custodial care" is excepted from the exclusion from coverage.
"Custodial care" is defined in the policy as care that is primarily intended to assist in the "activities of daily living". However, the phrase "activities of daily living" is open to varying reasonable interpretations and gives little substance to the term "custodial care". Therefore, we resort to extrinsic sources to search for a reasonable interpretation of "custodial care", while affording the insureds the benefit of any ambiguity.
Neither brief on appeal cites any cases dealing with "custodial care". Our research has uncovered a number of federal cases which construe "custodial care" as used in the Social Security Act (SSA). While we recognize that we are dealing with a private insurance policy, not the SSA, and that we are not bound by those interpretations of federal law, they do illustrate a reasonable approach to the construction of the term.
As in the Hrebecs' policy with Aetna, the SSA provides for an exclusion from coverage for "custodial care". 42 U.S.C.A. § 1395y(a)(9). But the SSA does not attempt any further definition of the term. Hence, the courts have taken a common-sense approach and generally agree that "custodial care" connotes "a level of routine maintenance or supportive care which need not be provided in an institutional setting by skilled professional personnel." Hayner v. Weinberger, 382 F. Supp. 762, 766 (E.D.N.Y.1974); accord Ridgley v. Secretary of HEW, 475 F.2d 1222, 1223 n.3 (4th Cir. 1973); Rendzio v. Secretary of HEW, 403 F. Supp. 917, 920 (E.D.Mich.1975); Sokoloff v. Richardson, 383 F. Supp. 234, 237 (E.D.N.Y.1973). Additionally, "custodial care" has been characterized as: "[C]are designed essentially to assist an individual to meet the activities of daily living. Such activities include assistance in bathing, feeding, and supervision of medication which can usually be self-administered. These services do not require the continuing attention of trained medical or paramedical personnel." Whitman v. Weinberger, 382 F. Supp. 256, 260 (E.D.Va.1974).
*673 In Sokoloff, the plaintiff was 75 years old, and was placed in the nursing home because she lived alone and was "suffering from the afflictions of old age, including senility." 383 F.Supp. at 238. The care provided her was determined to be merely custodial because there was no evidence of the rendering of any services which might be viewed as skilled. The nurses' duties essentially comprised "supervision of plaintiff due to her confused and disoriented condition." Id.
Westgard v. Weinberger, 391 F. Supp. 1011 (D.N.D.1975), reported this view of "custodial care":
It is care that could be administered by any layman, without any possible harm to the health of the one in custody. . . . This view of "custodial care" is also in agreement with the definition of "custodial" as found in Webster's Third New International Dictionary (1967 ed.) i. e., "related to or marked by guardianship or maintaining safely." Thus mere "custodial care" refers quite simply to guardianship for convenience that has no significant relation to medical care of any type.
Id. at 1019-20 (emphasis omitted) (quoting Samuels v. Weinberger, 379 F. Supp. 120, 123 (S.D.Ohio 1973)). The court found that the claimant's physical therapy entailed the attention of skilled medical personnel and ordered that benefits be paid. Id.
A case with some factual similarities to the one sub judice is Hayner v. Weinberger allowing recovery of benefits for a terminal cancer patient. In Hayner, after determining that there was little hope for recovery of his 83 year old patient, the treating physician recommended that Mrs. Hayner be transferred to an extended care facility. She required the weekly change and daily irrigation of a Foley catheter, which called for "skilled professional care" and received daily visits from a doctor. The court held that more than mere "custodial care" was received. Cf. Coe v. Secretary of HEW, 502 F.2d 1337 (4th Cir. 1974) (certain aspects of treatment in nursing home required skilled care).
Mrs. Hrebec's continued helpless condition necessitates that she be fed through nasal tubes and that an indwelling catheter be in place. Aetna has not argued that such equipment does not require the attention of trained and skilled medical personnel. The available evidence indicates that the servicing of nasal feeding tubes and catheters qualifies as "skilled nursing services". In fact, the federal regulations applicable to the SSA specifically list those services as skilled. 42 C.F.R. § 405.127(c)(2)(ii), (iv). In any event, Aetna did not adduce any evidence to the effect that such services could have been carried out by a lay person after initial explanation by a medical professional. See Rendzio v. Secretary of HEW, 403 F.Supp. at 920.
An error of law occurred when the "custodial care" exclusion was interpreted to preclude recovery for any of the expenses at St. Sophia. We hold instead that the Hrebecs are entitled to recover the expenses of any treatment by trained and skilled medical personnel which must be provided in an institutional setting-provided it is an expense that is listed in the four categories of "Other Medical Expenses". Specifically listed are physician's fees and the charges of a registered graduate nurse. Because St. Sophia's invoices did not reflect an itemized charge for the services of a registered nurse, it is impossible to determine what amount plaintiffs are entitled to recover. Thus, we remand to the trial court for additional findings of fact on the registered nurse cost item.
Our inquiry cannot end there, however.[1] Mrs. Hrebec is receiving many different services, and some of them are clearly "custodial", not requiring the attention *674 of a skilled professional in an institutional environment. The policy exclusion for "custodial care" (see above) and the second paragraph of the definition of "custodial care" indicate that services which are primarily custodial are not reimbursable merely because they are rendered in conjunction with other covered services. The exception formulated in paragraph two states that coincidental custodial services will be covered only "when such services must be combined with other necessary therapeutic services and supplies . . . to establish a program of medical treatment which can reasonably be expected to contribute substantially to the improvement of the individual's medical condition." Therefore, we must decide whether or not Mrs. Hrebec is under a program of medical treatment expected to improve her medical condition.
The trial court determined that because all the medical testimony clearly indicated that there was no reasonable hope for Mrs. Hrebec's recovery, she was not under a program of treatment to improve her medical condition. The Hrebecs, however, submit that this policy provision is ambiguous and should be construed against the insurer. They argue that "improvement of medical condition" does not necessarily mean an improvement towards the eventual cure of the patient; they urge that it can mean an improvement over what the individual's condition would be if she had not received the treatment. They syllogize that as the evidence indicated Mrs. Hrebec would die without the care she has been receiving, her current comatose state is an improvement over what her condition would be without such care.
The latter is an unreasonable interpretation of the policy. This is a policy which requires an "injury" or "disease" to trigger coverage. The triggering injury or disease, in this case was the rupture of a cerebral aneurysm resulting in brain damage. The policy, when it mentions "medical condition" in this context, clearly refers to the benefit-triggering injury or disease. The evidence shows that Mrs. Hrebec's doctors have given up all hope for her recovery. Her "medical condition", the brain damage, is not being administered to; she merely is being kept alive. Therefore, the Hrebecs may not recover for purely custodial expenses which may be required in conjunction with the maintenance of Mrs. Hrebec's life, at least so long as her underlying medical condition remains untreatable.
The judgment for plaintiffs in the amount of $13,410.73 is affirmed. The denial of recovery for nurses' services requiring trained and skilled medical care is reversed; the cause is remanded for further findings of fact in that regard.[2]
Judgment affirmed in part and reversed and remanded in part.
SNYDER and PUDLOWSKI, JJ., concur.
NOTES
[1] If the particular facts of this case should arise under the SSA, however, the analysis might indeed end there. The previously cited cases indicate that the federal courts probably would not label Mrs. Hrebec's total care plan as "custodial" in nature. And under the SSA's remedially broad interpretation, her total expenses, including those for incidental services which are purely custodial in nature (such as bathing or changing her position in bed periodically), could conceivably be covered. See Sokoloff v. Richardson, 383 F.Supp. at 237.
[2] Aetna does not deny its liability under the policy for the cost of physicians' services and medical services and supplies referred to in the policy. It has and will continue to make payment for those expenses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624074/ | 603 S.W.2d 716 (1980)
EDMONDSON MANAGEMENT SERVICE, INC., Plaintiff-Appellant,
v.
Jayne Ann WOODS, Commissioner of Revenue, Defendant-Appellee.
Supreme Court of Tennessee.
August 18, 1980.
Wayne S. Taylor, Union City, for plaintiff-appellant.
David S. Weed, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen., Nashville, for defendant-appellee.
OPINION
BROCK, Chief Justice.
The plaintiff operates the Ramada Inn Central in Chattanooga and sells alcoholic beverages for consumption on the premises in its bar located there. T.C.A., § 57-4-301, levies a tax equal to 15 percent of the sales price of all alcoholic beverages sold for consumption on the premises. Plaintiff alleges that it paid the taxes thus imposed but that the Commissioner disputed the amount of taxes due and through her agents conducted an audit of the sales of alcoholic beverages on the premises of the Ramada Inn Central and determined that an additional amount of $14,257.81 in taxes, interest and penalty was owed by the taxpayer and made an assessment, accordingly, for that amount. The taxpayer paid this additional assessment under protest and brings this action to recover the same.[1]
Following a trial on the merits, the trial judge held that the plaintiff had failed to prove its case and accordingly dismissed the complaint.
T.C.A., § 57-4-301(c) provides:
"In addition to the privilege taxes levied in (b)(1) above, there is further levied a tax equal to the rate of fifteen percent (15%) of the sales price of all alcoholic beverages sold for consumption on the premises, said tax to be computed on the *717 gross sales of alcoholic beverages for consumption on the premises for the purpose of remitting the tax due the state, and to include each and every retail thereof."
T.C.A., § 57-4-302, in pertinent part, provides:
"The commissioner of revenue of the state of Tennessee is charged with the responsibility of collecting all taxes set out herein due to the said state, and in addition to the requirements set out herein, is authorized to promulgate such rules and regulations as will further implement the full collection of all taxes herein imposed."
Pursuant to this authority, the Department of Revenue developed and implemented by regulation an "average percentage markup audit procedure" as a means of verifying the gross sales of alcoholic beverages of taxpayers and to determine their proper tax liability. This procedure is explained in the record.
The fact that the taxpayer charges different prices for its drinks at different periods of the day is taken into consideration in making the calculations and an allowance is also made for spillage, breakage, etc. Once the average percentage markup per the price schedule filed with the Commissioner by the taxpayer is obtained, it is compared with a percentage markup obtained from the taxpayer's books and records.
If the discrepancy between the two markups is significant, as it was in this case in which the liquor markup per the taxpayer's records was 522.29% as opposed to a price schedule markup of 643.69%, after allowing a 15% deviation for spillage, etc., the Department of Revenue rejects the taxpayer's records on the ground that they do not truly reflect his gross sales. The taxpayer's verified purchases are then marked up by the markup per price schedule to obtain the basis for the tax assessment. This was the method employed by the Commissioner and the Department of Revenue in making the deficiency assessment in this case.
The burden of proof is upon the taxpayer to prove that the assessment made is incorrect and to prove its right to recovery by clear and convincing evidence. This Court in Howard v. United States, Tenn., 566 S.W.2d 521, 528 (1978) held:
"There is a presumption that tax assessments are valid and the burden is on the taxpayer to prove that they are erroneous."
Again, in Ford v. Dixie Oil Company, 170 Tenn. 464, 95 S.W.2d 931 (1936) the Court made the following statement:
"The presumption is that the commissioner of finance and taxation (now the Commissioner of Revenue) has done his duty in making his investigation and his findings as to the amount of taxes due the state...." 170 Tenn. at 467, 95 S.W.2d at 932.
See also, McKinnon and Co. v. State, 174 Tenn. 619, 130 S.W.2d 91 (1939) wherein the taxpayer questioned its liability for a gasoline privilege tax assessment and the Court found the tax assessment to be valid, observing:
"The burden was on complainant to make out its case in accord with the general rule that the complainant must establish the right to the relief sought." 174 Tenn. at 622, 130 S.W.2d at 92.
In the instant case, there is further authority for this rule in the form of Rule 1320-2-1-.43(g)(h) of the Department's rules and regulations which provides:
"(g) Assessment as Evidence. An assessment, either estimated or supplemental, made pursuant to this authority shall be binding as if made upon the sworn statement, report or return of the person liable for the payment of any such tax, license or fee; and any such assessment which is lawfully made against such person shall be presumed accurate unless records are submitted evidencing otherwise.
"(h) Extent of Assessment. The terms `public tax, license or fee,' as used herein, shall include interest, penalties and any additional amounts or additions to the taxes that may be assessable."
This rule clearly places the burden upon the taxpayer to disprove the result of the *718 assessment made by the Department of Revenue.
The reason and policy supporting this rule are well stated in United States v. Rexach, 482 F.2d 10 (1st Cir.1973) as follows:
"This rule for taxpayer-initiated suits is premised on several factors other than the normal evidentiary rule imposing proof obligations on the moving party: the relevant prior Supreme Court precedent indicative, if not determinative of the issue. [Citation omitted.]; the presumption of administrative regularity; the likelihood that the taxpayer will have access to the relevant information; and the desirability of bolstering the record-keeping requirements of the Code." 482 F.2d at 16.
Vague allegations by the taxpayer to the effect that the Department's method of ascertaining the taxes due from him was incorrect are not sufficient to carry the taxpayer's burden. He must show by a preponderance of evidence that he not only has overpaid his taxes, but, also, the amount of such overpayment. Baker v. Bullock, Tex.Civ.App., 529 S.W.2d 279 (1975).
See also, Smith v. State, Tex.Civ.App., 418 S.W.2d 893 (1967) in which the taxpayer contended that an assessment constituted an estimate based, in part, on a computation and was not in fact the actual amount due, a contention which the court rejected because the taxpayer had offered no evidence of the amount of taxes owed and, thus, had not rebutted the State's audit.
We hold that the taxpayer in this case has failed to carry its burden of proof. It has failed to produce an audit, actual books and records, or summaries thereof, or other evidence to establish that it owes less taxes than the amount assessed by the Department of Revenue. The taxpayer has done no more than to make allegations to the effect that the State's audit method was incorrect, inapplicable or constitutes only an estimate; this is wholly insufficient to support a judgment in favor of the taxpayer.
The record shows that this assessment was based upon an audit made by the Department of Revenue according to established rules and regulations of the Department and that logical and recognized accounting procedures appropriate for the circumstances shown in this case were employed. If there be any inaccuracies in this method, they have not been shown by evidence, as taxpayer was bound to do.
The judgment of the trial court dismissing the complaint on the merits is in all things affirmed and costs are assessed against the appellant.
FONES, COOPER and HARBISON, JJ., concur.
NOTES
[1] There is a second action, involving the same Ramada Inn and the same audit by the Commissioner, with respect to the sales tax of 6% on the above mentioned alcoholic beverages sold for consumption on the premises, imposed by T.C.A., § 67-3001. The parties have stipulated that proof would be heard only upon the complaint with respect to the 15 percent tax and that the result in this case would be binding in the second. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624073/ | 15 So. 3d 1223 (2009)
Dezeray FREDERICK, Plaintiff-Appellee
v.
Dennis R. BUCKINGHAM, Defendant-Appellant.
No. 44,458-CA.
Court of Appeal of Louisiana, Second Circuit.
June 24, 2009.
*1224 Washington & Wells, by Alex J. Washington, Shreveport, for Appellant.
Samuel P. Love, Jr., Shreveport, for Appellee.
Before BROWN, CARAWAY and LOLLEY, JJ.
CARAWAY, J.
In this case, the father of the infant child appeals the trial court's determination of the basic child support obligation and its assessment to him of a medical expense for the child. All of the issues raised by appellant concern the discretion of the trial court in insuring the proper support for the child. Finding no abuse of the trial court's judgment, we affirm.
Facts and Procedural History
Dezeray Frederick ("Frederick") and Dennis R. Buckingham ("Buckingham") *1225 are the parents of an infant child, C.D.F., who was born on December 25, 2007. In January 2008, Frederick sought an order designating her as the domiciliary parent and fixing child support. She also requested that Buckingham be ordered to submit to paternity testing as the parties were not married. Frederick also requested that C.D.F. be included on Buckingham's employer-provided health insurance benefits.
An initial hearing occurred on February 19, 2008. The minute entry stated the following:
Regularly taken up on rule. Plaintiff present with counsel, .... defendant present in proper person. Both parties acknowledged that [Buckingham] is the biological father of the child. DNA testing results filed. By agreement an interim order was issued for [Buckingham] to carry the child on his insurance and pay plaintiff child support in the amount of $400.00 per month. Case continued ... for further proceedings.
The matter was taken up again the following week, on February 26, 2008. Frederick was present with her same counsel. Buckingham was present in proper person. The minute entry stated, "[b]y agreement judgment rendered awarding plaintiff sole custody of the minor child with visitation to the defendant to be decided between the parties. Plaintiff is awarded $300.00 per month child support and he is to maintain medical insurance on the child."
Almost immediately after the February 26 hearing, Frederick hired different counsel. On March 5, 2008, new counsel enrolled and filed a motion for new trial alleging:
Mover shows that her attorney, in Open Court, reached an agreement with the defendant for him to pay $300.00 per month child support and that Mover did not acquiesce and agree to this amount of child support to be paid by the defendant.
On March 7, the trial court signed an order granting Frederick's motion for a new trial which set aside the February 26, 2008 consent decree. The present dispute concerns the new trial on the issue of child support.
In presenting her new claim for child support, Frederick described monthly daycare expenses in the amount of $541.00/month. Interrogatories were propounded to Buckingham concerning his sources of employment and income. Buckingham's answers to interrogatories indicated that his total monthly income was approximately $3,900.00 per month, and that he had received a "one time $20,000.00 sign on bonus" from the United States Navy. Buckingham was employed by the City of Shreveport as a City Marshal and drove an employer-provided "take-home vehicle."
Before the trial, Frederick filed a supplemental rule to recover certain sums paid for C.D.F.'s expenses:
First enrollment fee daycare $ 25.00
One-half second enrollment fee daycare 50.00
Paternity test 100.00
One-half cost of circumcision 202.50
One-half co-pay medical 37.50
________
TOTAL $415.00
The matter was retried on July 31, 2008. After hearing testimony and receiving the child support obligation worksheet into evidence, the trial court took the matter under advisement. On September 16, 2008, the trial court issued its ruling and written reasons therefor. It found that Buckingham's monthly income was stipulated to be $3,900.00 per month at trial. Frederick's monthly income was determined to be $327.00 per month, based on her part-time employment and status as a college student. Therefore, the combined monthly income of the parties was $4,227.00 per month, resulting in a basic child support obligation of $609.70. The trial court also found that Frederick's child *1226 care costs were $333.67. This amount was added to the basic child support obligation, for a total sum of $943.37. The trial court multiplied this sum by 92.25% (Buckingham's share of the income) to arrive at Buckingham's monthly child support obligation of $870.39. Finally, Buckingham was ordered to reimburse Frederick $202.50 for the circumcision of the child and $37.50 for the medical co-payment, representing one-half of the total charges for those medical expenses.
Buckingham appeals the judgment, first urging that the trial court erred in determining Frederick's income for the purpose of computing the basic child support obligation. In particular, Buckingham argues that the trial court should have valued in the computation of income the "recurring financial gifts" Frederick received from her aunt.[1] In his next assignment, Buckingham asserts as error the trial court's failure to consider his financial support of two other children. Finally, appellant argues that the portion of the judgment ordering him to pay one-half of C.D.F.'s circumcision should be set aside.
Discussion
The trial court is vested with much discretion in fixing awards of child support. The court's reasonable determinations shall not be disturbed unless there is a clear abuse of discretion. State, Dep't of Social Services v. Neathery, 39,796 (La. App. 2d Cir.7/29/05), 909 So. 2d 40; State, ex rel. Wilson v. Wilson, 37,674 (La.App. 2d Cir.9/24/03), 855 So. 2d 913, writ denied, 03-2970 (La.1/16/04), 864 So. 2d 633. The child support guidelines (the "Guidelines") set forth in La. R.S. 9:315, et seq., are to be used in any proceeding to establish or modify child support. La. R.S. 9:315.1(A); Harper v. Harper, 33,452 (La.App. 2d Cir.6/21/00), 764 So. 2d 1186.
In contesting the trial court's determination of Frederick's income, Buckingham cites two definitions set forth under the Guidelines in La. R.S. 9:315(C). In the definition for "gross income" is included the party's receipt of "recurring monetary gifts." La. R.S. 9:315(C)(3)(a). Also, regarding income, "[t]he court may also consider as income the benefits a party derives from expense-sharing." La. R.S. 9:315(C)(5)(c).
Frederick testified that she had always lived with her aunt and that her aunt and mother had aided her with college expenses. She had over 30 hours of college credit and was enrolled in Bossier Parish Community College. She stated that her automobile was a gift from her aunt, who had been paying the loan on the vehicle since Frederick was in high school. The other expenses and housing provided by Frederick's aunt were obviously in aid of Frederick's needs immediately after the birth of the child and while Frederick was seeking higher education. Under these circumstances, the trial court did not abuse its discretion in considering that this family aid would not be considered as recurring monetary gifts so as to amount to Frederick's income under the Guidelines.
Likewise, we find no merit in Buckingham's contention that his $300 support *1227 payments for his fifteen-year-old daughter in South Carolina and his sole custody of his three-year-old son require a reduction in his basic child support obligation for C.D.F. as determined under the Guidelines. The application of the Guideline provision allowing for deviation for such children states:
C. In determining whether to deviate from the guidelines, the court's considerations may include:
* * *
(2) The legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party's household.
La. R.S. 9:315.1(C)(2). In this case, Buckingham provided inadequate proof for an obligation of support for the South Carolina child and that child was not in his "household" as stated in the Guidelines. Even regarding the three-year-old child in his household, any downward deviation from the basic support obligation is expressly discretionary under La. R.S. 9:315.1(C), and we find no abuse of discretion in the trial court's ruling.
Finally, under the circumstances of C.D.F.'s birth when the child was not covered by Buckingham's health insurance, the medical expense for the child's circumcision which Frederick incurred was appropriately apportioned to the child's father by the trial court. See Laprarie v. King, 575 So. 2d 921 (La.App. 2 Cir.), writ denied, 578 So. 2d 140 (La.1991), which sanctioned child support award including reimbursement by father of premature birth expenses and Debetaz v. Debetaz, 421 So. 2d 379 (La.App. 1st Cir.1982), which allowed award of one-half of birth expenses against father. Buckingham's last assignment of error is without merit.
Conclusion
For the above reasons, the decision of the trial court is affirmed. Costs of this appeal are assessed to appellant.
AFFIRMED.
NOTES
[1] Counsel for appellant conceded at oral argument that an additional assignment of error concerning Frederick's employment status and earning capacity fell within the provisions of La. R.S. 9:315.11(A). Also, during oral argument, Buckingham disputed the trial court's finding which added $333.67 for child care costs to the basic child support obligation in accordance with La. R.S. 9:315.3. See Campbell v. Campbell, 682 So. 2d 312 (La.App. 1st Cir. 10/10/96), 682 So. 2d 312. This matter was neither assigned as error nor argued in brief, and therefore we consider that it is not before us on appeal. U.R.C.A. Rule 2-12.4; Goodliffe v. State, through Dep't of Transp. & Dev., 29,948 (La.App. 2d Cir. 10/29/97), 702 So. 2d 36. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624059/ | 15 So. 3d 827 (2009)
Melinda RAMIREZ, Appellant,
v.
STATE of Florida, Appellee.
No. 2D07-5808.
District Court of Appeal of Florida, Second District.
July 24, 2009.
*828 Jackson S. Flyte, Regional Counsel, Second District, and Christine A. Trakas, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
DAVIS, Judge.
Melinda Ramirez appeals the denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which she alleged eight claims of ineffective assistance of counsel. The postconviction court summarily denied six of Ramirez's claims and denied the remaining two after an evidentiary hearing. While we reverse the summary denial of claim one, we affirm the denial of the remaining seven claims without comment.
Ramirez was convicted of trafficking in methamphetamine and sentenced to twenty years' prison with a fifteen-year minimum mandatory. Her charges stemmed from a traffic stop that occurred while she was driving away from Lakeland Square Mall. The investigating officer who testified at trial indicated that he had received a tip from a confidential informant (CI) that Ramirez would be at the mall in a white car and would be in possession of a one-half-pound bag of methamphetamine. The officer proceeded to the mall and located *829 a white car in the parking lot. He waited in the mall parking lot until he observed a Hispanic female exit the mall and enter the white car. The officer radioed additional officers, who stopped Ramirez on a side street after she had left the mall parking lot. The officers searched the car, and a one-half-pound bag of methamphetamine was found under the driver's seat.
In her rule 3.850 motion, Ramirez alleged that her trial counsel was ineffective for failing to seek to suppress the drugs and contraband seized, as well as her resulting confession, because the evidence was the result of an illegal stop and a warrantless search. She further claimed that had her counsel sought the suppression, the evidence would have been excluded and she would not have been convicted.
In summarily denying this claim, the postconviction court concluded that Ramirez's trial counsel was not ineffective, reasoning that even if counsel had filed the motion to suppress, the trial court would have denied it because the officers had probable cause to stop Ramirez and perform the search of the car. The postconviction court based this conclusion on its finding that the stop was made in reliance on an anonymous tip that was corroborated by independent police observation. The postconviction court attached portions of the transcripts of the investigating officer's deposition and trial testimony to demonstrate that the record conclusively refuted Ramirez's claim. The court also noted that an independent basis for the stop existed because the officers performed a "traffic stop" on Ramirez.
Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to establish ineffectiveness of counsel, a defendant must establish (1) that his or her attorney acted unreasonably according to prevailing professional norms and (2) that the defendant was prejudiced by his or her attorney's deficient performance. "[O]n an ineffectiveness claim ... [t]he appellate court must defer to the trial court's findings on factual issues but must review the court's ultimate conclusions on the deficiency and prejudice prongs de novo." Bruno v. State, 807 So. 2d 55, 61-62 (Fla.2001). Furthermore, if the postconviction court denies a claim without an evidentiary hearing, it must attach to its order portions of the record that conclusively refute the claim. Fla. R.Crim. P. 3.850(d).
Here, the postconviction court's attachments do not conclusively refute Ramirez's claim that counsel was ineffective for failing to file a motion to suppress. As such, the postconviction court erred in summarily denying this claim. See id.
The investigating officer's testimony was that the CI had provided information to the police on two prior occasions but that no arrests had been made based on the information provided. In the instant case, the CI had advised that he had previously purchased trafficking amounts of methamphetamine from Ramirez. Although the CI had previously attempted to set up a controlled buy with Ramirez, he had been unsuccessful. The officer testified that on the day of the arrest, the CI called and advised that Ramirez had possession of a quantity of methamphetamine that she was going to sell and that she was at Lakeland Square Mall driving a white car. The officer testified that he went to the mall parking lot and located a white car. He further testified: "A short time later I observed a Hispanic female approaching the vehicle. The Hispanic female matched the description of Melinda Ramirez." He then called on other officers to initiate a "traffic stop." Soon after the other officers stopped Ramirez, the investigating officer arrived and immediately searched *830 the vehicle, finding the drugs. The officer testified that the vehicle was a rental car and that he did not know in whose name the car had been rented.
The record before us indicates that the police may have had probable cause to stop the vehicle either based on a traffic stop or the CI's tip. However, the record does not conclusively show that the stop was a legal traffic stop. Although the attached transcripts do indicate that the officers performed a traffic stop, the record does not identify the basis for the stop. This might suggest that Ramirez committed a traffic violation, but that is not clearly stated. The portion of the record regarding the traffic stop that the postconviction court attached to its order does not conclusively rebut Ramirez's claim that the stop was illegal. Further, even if a traffic stop was properly executed, there is no indication that the stop gave the officers a basis to conduct a search. See generally Tinson v. State, 650 So. 2d 189, 190 (Fla. 2d DCA 1995) ("[F]ounded suspicion to stop a vehicle does not carry with it authority to search the vehicle or its occupants.").
Because the record does not conclusively establish that the stop was proper for a traffic violation, if the postconviction court's summary denial of the claim is to be affirmed, the record must demonstrate that the CI's tip, in and of itself, was sufficient to justify the stop and search. A CI's tip, along with the corroborating circumstances surrounding it, can provide sufficient probable cause for the police to effectuate a stop and search of a vehicle or person. See State v. Butler, 655 So. 2d 1123, 1131 (Fla.1995); State v. Walker, 898 So. 2d 198, 200 (Fla. 2d DCA 2005). Had Ramirez's trial counsel challenged the probable cause of the officers to initiate the stop or to conduct the warrantless search, the trial court would have reviewed the motion to suppress to determine whether under "the totality of the circumstances," which includes the basis of the CI's veracity and knowledge, the information provided by the CI gave rise to the necessary probable cause. See Walker, 898 So.2d at 200; Mitchell v. State, 787 So. 2d 224, 226 (Fla. 2d DCA 2001).
Accordingly, to summarily deny this claim, the postconviction court would have been required to find that specific facts in the record establish that the CI's tip provided a sufficient basis for the stop and subsequent search. See Perez v. State, 851 So. 2d 849, 850-51 (Fla. 2d DCA 2003) (noting that while officers may have probable cause to stop and search a vehicle based on information provided by a CI, the postconviction court would be required to substantiate the summary denial with specific facts about the CI and record attachments supporting the determination). Therefore, the record must contain sufficient details to provide a basis for the postconviction court to determine that the trial court would necessarily have denied the motion to suppress.
There is nothing in the instant record to suggest that the trial court would have denied the motion to suppress based on the reliability of this CI's past information. See Mitchell, 787 So.2d at 227. In fact, the only information provided by the record would tend to show that although the CI had attempted to set up a buy the previous week, he had been unsuccessful and that information supplied by this CI in other cases had not led to any arrests. Similarly, the record fails to show anything more than general information that could be used to establish "veracity by showing that the information leading to the arrest in the current case was both sufficiently detailed and verifiable." Id. at 227-28 ("[T]he C.I.'s information lacked sufficient detail .... [where] [t]he only verifiable information was ... readily *831 available because the [defendant was] in an open public place.... Without more evidence suggestive of criminal activity, the very generalized description in this case could apply to many innocent persons."). Based on the record before us, the only facts that the officer could have relied on to verify the CI's tip prior to the stop of Ramirez were that a Hispanic woman would exit the mall and that she would then get into a white car.
Although the officer testified during deposition that Ramirez fit the description of the person referred to by the CI, the record does not provide any details as to what distinguished Ramirez from any other Hispanic female. The fact that the CI said that the person would be driving a white car at Lakeland Square Mall is similarly vague considering the size of the mall parking lot and the number of white cars that might be present within the lot at any given time. Additionally, since the white car was a rental, it does not appear that prior to the stop, the officer was able to verify through vehicle information that the woman was Ramirez.
In other words, the record does not include many of the details that would have to be considered by the postconviction court in order for it to determine whether the totality of the circumstances shows that the trial court would have denied a motion to suppress had counsel filed it. Based on the lack of details included in this record, the postconviction court erred in finding that the record conclusively refutes Ramirez's claim. We recognize that such details might exist in portions of the record not provided to this court. Furthermore, testimony at an evidentiary hearing on the claim could provide sufficient details to show that, based on a totality of the circumstances, a motion to suppress would have been denied and show that Ramirez's claim of ineffectiveness is thereby conclusively refuted.
Accordingly, we reverse the summary denial of claim one of Ramirez's rule 3.850 motion and remand for the postconviction court to either provide additional record support for the summary conclusion that counsel was not ineffective for failing to file a motion to suppress or hold an evidentiary hearing on this claim. See Perez, 851 So.2d at 851.
Affirmed in part, reversed in part, and remanded.
WALLACE and CRENSHAW, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624054/ | 15 So. 3d 786 (2009)
Raymond H. GOFORTH, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-196.
District Court of Appeal of Florida, Fifth District.
July 17, 2009.
*787 Raymond H. Goforth, Malone, pro se.
Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
SAWAYA, J.
We review an order denying a motion for postconviction relief filed by Raymond Goforth pursuant to rule 3.850, Florida Rules of Criminal Procedure. The motion contained fifteen grounds alleging ineffective assistance of counsel. Two were denied after an evidentiary hearing, and the remainder were summarily denied. Of the numerous assertions of error raised by Goforth,[1] we believe that only one warrants reversal and remand for an evidentiary hearing. That error concerns the trial court's summary denial of Goforth's claim of ineffective assistance of trial counsel based on counsel's failure to move for a mistrial when a State's witness unexpectedly presented testimony to the jury that Goforth had recently been released from prison.
The record reveals that prior to his current criminal entanglements, Goforth was no stranger to the criminal justice system, having previously served time in prison. The underlying offenses that have led Goforth to his present postconviction filings burglary of a dwelling, grand theft of electronic equipment, and grand theft of a motorcyclewere apparently committed a very short time after Goforth was released from confinement. The case proceeded to trial, where an individual named Edward Sloan testified for the defense. He told the jury that he and Goforth's brother-in-law, John Towner, had committed all three charged offenses. Sloan explained that he was admitting his actions because he did not want to see an innocent man convicted. After the defense rested, the prosecutor called John Towner's father, Thomas Towner, to testify as a rebuttal witness. *788 Thomas Towner testified that about a week and a half after Goforth got out of jail, a man came by the house looking for his motorcycle. Goforth talked to the man and then came into the house where he told Thomas Towner that he had been speaking with the man from whom he had obtained the motorcycle. Thomas Towner described Goforth as "upset." Goforth's counsel then cross-examined Towner as to why Goforth was upset, and Towner explained that Goforth
had just gotten out of prison and was working and trying to go straight and this is what he got for it. It's kind of like he got a complex. You know, he felt like he had been done in or something, you know.
Q. Because he didn't know the bike was stolen when the guy gave it to him?
A. Right. And he hadn't done nothing, but here he was a good chance of going back to jail or something, you know
Q. Thank you.
A. for something he didn't do.
Goforth alleges that this was the last testimony the jury heard. His trial counsel did not seek a curative instruction or ask for a mistrial.
The trial concluded, a judgment of acquittal was granted as to the count charging grand theft of the electronics, and the jury found Goforth guilty as charged of the burglary and grand theft of the motorcycle. His direct appeal resulted in a per curiam affirmance. Goforth v. State, 905 So. 2d 146 (Fla. 5th DCA 2005). Goforth filed the instant Amended Motion for Post-Conviction Relief wherein he claims that his trial counsel rendered ineffective assistance when he failed to move for a mistrial after the improper testimony was presented to the jury. The trial court summarily denied this claim.
To prove a claim of ineffective assistance of counsel, the defendant must establish that: (1) "counsel's performance was deficient" in that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment"; and (2) "the deficient performance prejudiced the defense" because "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The standard of appellate review when an appellate court reviews a summary denial of a rule 3.850 claim requires that "the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant's factual allegations to the extent they are not refuted by the record." Peede v. State, 748 So. 2d 253, 257 (Fla. 1999) (citations omitted).
It is clear that the revelation of Goforth's prison sentence was unexpected and unintended, and the parties do not contend otherwise. The decision in Czubak v. State, 570 So. 2d 925 (Fla.1990), is analogous, with the only distinguishing feature being that, unlike the instant case, defense counsel in Czubak did move for a mistrial, albeit unsuccessfully. The court in Czubak explained:
On cross-examination defense counsel was attempting, with some difficulty, to elicit from Schultz whether she suspected that Czubak killed Peterson before Detective Pierce suggested it to her. Counsel could not have anticipated that Schultz would respond by stating that Czubak was an escaped convict. The response was volunteered and totally irrelevant to the question posed.*
* We reject the state's argument that Czubak was required to ask for a curative instruction. A curative instruction *789 would not have overcome the error here.
The state claims that Schultz's testimony was harmless error. We do not agree. Erroneous admission of collateral crimes evidence is presumptively harmful. Castro [v. State], 547 So.2d [111] 116 [(Fla.1989)]; Straight v. State, 397 So. 2d 903, 908 (Fla.), cert. denied, 454 U.S. 1022, 102 S. Ct. 556, 70 L. Ed. 2d 418 (1981). Error is harmless only "if it can be said beyond a reasonable doubt that the verdict could not have been affected by the error." Ciccarelli v. State, 531 So. 2d 129, 132 (Fla. 1988). In view of the fact that the case against Czubak was largely circumstantial, we cannot say beyond a reasonable doubt that the verdict was not affected by the revelation that he was an escaped convict. Accordingly, we reverse and remand for a new trial.
Id. at 928. Similarly, in McGuire v. State, 584 So. 2d 89, 89 (Fla. 5th DCA 1991), we explained:
The only issue on appeal is whether defendant was entitled to a mistrial because, during cross-examination, a witness for the state blurted out that the defendant had been "doing time in Georgia" and that "he was on a fifteen year sentence up in Georgia." The Georgia conviction was unrelated to the current charges.
We agree that the admission of this testimony was reversible error. § 90.404(2)(a), Fla. Stat. (1990).
Id. at 89; see also Glancy v. State, 941 So. 2d 1201, 1203 (Fla. 2d DCA 2006); Jackson v. State, 627 So. 2d 70, 70-71 (Fla. 5th DCA 1993); Ward v. State, 559 So. 2d 450 (Fla. 1st DCA 1990).
Here, the jury learned that Goforth was a convicted felon who had just been released from prison and thus had a propensity to commit bad acts. Goforth claims that the failure to cure this error by moving for a mistrial constitutes deficient performance by his trial counsel that deprived him of a fair trial. Goforth asks for an evidentiary hearing to resolve this claim. The State asserts that Goforth's counsel made "a reasonable strategic decision" not to attempt to remedy the harm presented by this testimony. Certainly, the failure to move for a mistrial may constitute a reasonable trial tactic that does not justify a finding of ineffective assistance of counsel. See Suggs v. State, 923 So. 2d 419 (Fla. 2005) (upholding trial court's conclusion after evidentiary hearing that failure to move for mistrial was reasonable trial strategy); Gorby v. State, 819 So. 2d 664, 678 (Fla.2002) ("Reasoned trial tactics do not amount to ineffective assistance of counsel."); Anderson v. State, 467 So. 2d 781, 787 (Fla. 3d DCA 1985) ("In addition, counsel must weigh whether a mistrial at this point would be in the client's best interests given his assessment of the likelihood of an acquittal."); see also Peterka v. State, 890 So. 2d 219, 233 (Fla.2004) ("`Whether to object is a matter of trial tactics which are left to the discretion of the attorney so long as his performance is within the range of what is expected of reasonably competent counsel.'") (quoting Stevens v. State, 552 So. 2d 1082, 1084 (Fla. 1989)); Brown v. State, 846 So. 2d 1114, 1122 (Fla.2003); Kenon v. State, 855 So. 2d 654, 656 (Fla. 1st DCA 2003) ("Absent extraordinary circumstances, strategic or tactical decisions by trial counsel are not grounds for ineffective assistance of counsel claims."), review denied, 868 So. 2d 523 (Fla.2004).
We do not know why Goforth's trial counsel did not move for a mistrial because the trial court did not conduct an evidentiary hearing, and the record attachments provided by the trial court do not adequately refute Goforth's claim. Perhaps it *790 was a tactical decision not to seek a mistrial because a witness actually confessed to the crimes Goforth was charged with committing and counsel did not want to jeopardize a trial he thought would likely result in an acquittal. On the other hand, counsel may have failed to appreciate the impact such testimony would have on the jury. We conclude, based on the circumstances of the instant case, that Goforth has raised a meritorious claim that requires an evidentiary hearing to resolve. See Fla. R.App. P. 9.141(b)(2)(D) ("On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief."); Ford v. State, 825 So. 2d 358 (Fla.2002); Hamilton v. State, 860 So. 2d 1028, 1029 (Fla. 5th DCA 2003).
Accordingly, we reverse the trial court's summary denial of this claim and remand for an evidentiary hearing. We affirm as to the other issues raised by Goforth.
REVERSED and REMANDED.
ORFINGER, J., concurs.
LAWSON, J., dissents without opinion.
NOTES
[1] Goforth argues that: (1) the court erred by denying his request for counsel to represent him at the hearing on his rule 3.850 motion; (2) the court erred in denying him relief on the two claims raised at the evidentiary hearing; and (3) the court erred by summarily denying relief on grounds V, VIII, and IX. The error we address in this opinion is designated ground number IX in Goforth's motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624052/ | 121 S.W.3d 891 (2003)
In the Interest of M.C.F.
No. 2-03-062-CV.
Court of Appeals of Texas, Fort Worth.
December 4, 2003.
Rehearing Overruled January 8, 2004.
*893 Cindy Stormer, Gainesville, for Appellant.
Belvin R. Harris, Gainesville, for Appellee.
PANEL B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
OPINION
TERRIE LIVINGSTON, Justice.
Appellant, Stephanie Ford, appeals from the order of the trial court granting the name change of her child M.C.F. In four points, appellant complains that the trial court erred by changing the child's name to the father's surname because there was no evidence that the name change was in the child's best interest; the name change was a violation of the mother's constitutional rights; the evidence was legally insufficient to support the name change; and the evidence was factually insufficient to support the name change. We reverse the portion of the trial court's order granting the name change and render judgment that the child shall hereinafter be named Morgan Clay Ford.
FACTS
Appellant met Kerry Wayne Estes, appellee, in the state of Georgia during June 2001. They began a romantic relationship and, shortly thereafter, moved in together during August of 2001. In October 2001, the couple discovered that appellant was pregnant. Appellant decided that she wanted the baby to be born in Texas where they would be nearer to her mother. Thus, in January 2002 the couple moved to Gainesville, Texas to live with appellant's mother and stepfather. After the couple lived there a week, they argued and broke up. Appellant's mother and stepfather told appellee that appellant never wanted to see him again and that he should collect his clothes from the house.
Appellant did not speak to appellee until she went to Georgia to close out the old apartment and collect her things. While in Georgia, the couple spoke and decided to go to counseling. However, after returning to Texas appellee attempted to contact appellant and her stepfather told him that she would not be attending counseling with him and that appellee was not allowed to speak to her. At the time of trial, appellee had not spoken to appellant since August 2002.
The child was born on June 12, 2002. Appellee filed a petition to establish paternity on July 1, 2002 wherein he requested that the court change the child's surname from Ford to Estes. After the child was born appellee attempted to contact appellant, but was denied access to the child. Although appellee contended at trial that he had attempted to contribute to the child financially, he conceded that in actuality he had not contributed anything. During his testimony, appellee never presented any reasons to support the proposition that changing the child's name to Estes would be in the child's best interest.
Appellant testified at trial that she was worried about appellee's ability to care for the child. Appellant also feared for the child's safety because of appellee's violent temper. During her testimony, appellant *894 requested that the court not change the child's name to Estes.
Appellee testified that he was charged with lewd indecency in the presence of a minor arising from an allegation of exposure in Florida in June of 1992. The Florida court dismissed the charge and disposed of it through a process called "pretrial diversion." Appellee was required to call a probation officer once a month for a year, but he did not have to pay a fine or plead guilty. Additionally, appellee was arrested for DUI in 1986 and was found guilty.
The court entered an order establishing paternity, setting supervised visitation, ordering a psychological evaluation of appellee, ordering appellee to pay child support, and changing the child's name from Morgan Clay Ford to Morgan Clay Estes. Appellee never testified at trial, or at the hearing on the motion for new trial regarding his request that the child's name be changed. However, the trial court entered findings of fact and conclusions of law stating that it was in the best interest of the child to change his surname to that of his biological father. Shortly thereafter, the trial court amended its conclusions of law to reflect that the case was brought under chapter 160 of the family code, rather than chapter 45. The amended conclusions of law state that the court granted the name change because appellee requested the name change in his petition and showed good cause for it. Appellee contends section 45.004(a), which states that the court may order that the name of a child be changed if the change is in the best interest of the child, does not apply, and the applicable statute is section 160.636(e), which states that the court may order the name of the child changed if good cause is shown. Tex. Fam.Code Ann. §§ 45.004(a), 160.636(e) (Vernon 2002).
Appellant filed a motion for new trial on the issue of the name change and the court conducted a hearing on March 31, 2003. During the hearing, appellant testified that the child had lived with her and her parents for his entire life (nine months). In support of her motion, appellant testified that she would not change her maiden name (Ford) if she were to marry in the future. Moreover, the doctor's records and birth certificate list the child's name as Ford. Appellee did not appear at the motion for new trial and appellant was the only witness to testify at the hearing. The court denied appellant's motion for new trial.
ANALYSIS
In appellant's first point she complains that the trial court erred by changing the name of Morgan Clay Ford to Morgan Clay Estes because changing the name was not in the child's best interest. In appellant's third point she complains that the evidence was legally insufficient to support the trial court's decision to change the child's name.
Appellant contends that family code section 45.004(a) applies. This subchapter is entitled "Change Of Name Of Child" and is contained in the chapter entitled "Change of Name." Under section 45.004, the court may order that the name of a child be changed if the change is in the best interest of the child. Id. § 45.004(a).
Appellee contends that family code section 160.636(e) applies. This subchapter is entitled "Proceeding to Adjudicate Parentage" and is contained within the "Uniform Parentage Act." See id. §§ 160.001-.763 (Vernon 2002 & Supp.2004). Under a chapter 160 suit to establish paternity, the child's name may be changed on request of a party and for good cause shown. Id. § 160.636(e). Section 160.002 contains a conflicts provision requiring that this subchapter will control if there is a conflict with another provision of the family code. *895 Id. § 160.002. Thus, we agree with appellee that he was required to show good cause to justify the name change.
However, because the family code instructs us that the best interest of the child is always a factor in any suit affecting the parent-child relationship, we believe that the appellee should have also shown how the change of name would be in the child's best interest. See id. § 153.002 (stating that "[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child"); In re C.H., 89 S.W.3d 17, 28-29 (Tex.2002). Under this statute, it is the child's best interest, and not the interest of the biological father, which must be served by legitimation. Travis County Child Welfare Unit v. Vance, 566 S.W.2d 112, 114 (Tex.Civ.App.-Austin 1978, no writ).
While we recognize that a name change in connection with a paternity action under chapter 160 is not the same as a name change under chapter 45, we believe that the chapter 45 cases may be looked to in determining a child's best interest regarding the name change in a paternity action. Newman v. King, 433 S.W.2d 420, 423 (Tex.1968); In re Guthrie, 45 S.W.3d 719, 724 (Tex.App.-Dallas 2001, pet. denied); Bennett v. Northcutt, 544 S.W.2d 703, 708 (Tex.Civ.App.-Dallas 1976, no writ). Thus, when reviewing the decision of a trial court to determine whether good cause was shown for changing a child's name in a proceeding to establish paternity under chapter 160, we conclude that the trial court must then also consider whether the change is in the best interest of the child. See C.H., 89 S.W.3d at 28-29; Newman, 433 S.W.2d at 423; Guthrie, 45 S.W.3d at 724; In re M.L.P., 621 S.W.2d 430, 431 (Tex.Civ.App.-San Antonio 1981, writ dism'd); Bennett, 544 S.W.2d at 708.
Standard of Review
We review the trial court's granting of a name change for a minor child under an abuse of discretion standard. Guthrie, 45 S.W.3d at 723. The abuse of discretion standard in a family law case overlaps the traditional sufficiency standard of review. In re C.R.O., 96 S.W.3d 442, 447 (Tex.App.-Amarillo 2002, pet. denied). However, under an abuse of discretion standard a legal sufficiency challenge is a relevant factor in assessing whether a trial court abused its discretion. C.H., 89 S.W.3d at 28-29.
Thus, in applying the abuse of discretion standard, an appellate court must apply a two prong analysis: (1) whether the trial court had sufficient evidence upon which to exercise its discretion; and (2) whether the trial court erred in applying its discretion. Id.; Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex.App.-Dallas 1999, no pet.). The legal sufficiency review is the first inquiry. Then a determination is made as to whether the trial court's decision was arbitrary and unreasonable. D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex.App.-Forh Worth 1995) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990)).
In determining a "no-evidence" issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). A "no-evidence" issue may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla *896 of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998) (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960)), cert. denied, 526 U.S. 1040, 119 S. Ct. 1336, 143 L. Ed. 2d 500 (1999).
Good Cause
We found no appellate decisions that addressed the definition of good cause in the context of the paternity section 160.636 of the Texas Family Code. "Good cause" is defined in Black's Law Dictionary as a "legally sufficient reason." Black's Law Dictionary 213 (7th ed.1999). The definition also states that "[g]ood cause is often the burden placed upon a litigant ... to show why a request should be granted or an action excused." Id. In the present case, appellee did not present any reason why the child's name should be changed, much less a legally sufficient reason.
Although we found no paternity cases defining "good cause" under chapter 160 of the family code, other types of cases provide some examples. In the context of a trial court's ruling on a motion for leave to file a late summary judgment, the Texas Supreme Court said that while it had not specifically defined "good cause," it had previously "held that an inadvertent failure to supplement responses was insufficient to establish good cause, even if admitting the evidence would not be unfair to the opposing party." Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex.2002). In the employment law context, good cause for discharging an employee is defined as the employee's failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. Tave v. Alanis, 109 S.W.3d 890, 893 (Tex.App.-Dallas 2003, no pet.); Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 580 (Tex.App.-Houston [1st Dist.] 1992, no writ). With regard to discovery, the good cause exception permits a trial court to excuse a failure to comply with discovery in difficult or impossible circumstances. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex.1992) (op. on reh'g) (explaining that counsel should not be excused from the requirements of the rule without a strict showing of good cause). However, the following factors standing alone do not constitute good cause: inadvertence of counsel, lack of surprise, or uniqueness of the excluded evidence. Id. In addition, the trial court has discretion to determine good cause, and the determination can only be set aside if that discretion was abused. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986).
Other states have dealt with good cause in the family law context. An Oklahoma court of appeals looked at good cause with regard to its statute on adoptive preferential placement. In re Adoption of Baby Girl B., 2003 OK CIV APP 24, 67 P.3d 359, 370-72 (Okla.Ct.App.2003). The statute at issue stated that preference for placement of an Indian child under the Indian Child Welfare Act shall be given "in the absence of good cause to the contrary" to the Indian child's extended family. Id. The court held that the best interest of the child is a criterion to consider, along with other factors, when determining good cause. Id. at 372. The Hawaii Supreme Court stated that as a general rule, "good cause" means a substantial reason; one that affords a legal excuse. Doe v. Doe, 98 Hawai'i 144, 44 P.3d 1085, 1095 (Haw.2002) (dealing with good cause in a paternity action, but with respect to a motion for new trial). In a North Dakota child support case, the state supreme court stated that good cause not to require immediate income withholding must be based upon an explanation of why immediate withholding would not be *897 in the child's best interest. Collins v. Collins, 495 N.W.2d 293, 297 (N.D.1993).
In contrast to appellant's testimony, appellee presented no evidence to show good cause to justify changing the child's name. Appellee made only a bare request to change the child's name in his petition. After a review of the evidence in the record we hold that there was a complete absence of evidence of a vital fact to support the trial court's conclusion that there was good cause to change the child's name to Estes or that it would be in his best interest.
In light of the above, we hold that appellee did not meet his burden with respect to showing good cause for changing the name of the child from Ford to Estes. In fact, he presented no evidence whatsoever. Moreover, in its findings of fact and conclusions of law, the trial court failed to state its basis for finding good cause to change the child's name. Therefore, we hold that the evidence was not legally sufficient to support the trial court's finding of good cause and sustain appellant's third point.
Best Interest
Generally, courts will reluctantly exercise the power to change a child's name and do so only when the substantial welfare of the child requires it. Newman, 433 S.W.2d at 423; Guthrie, 45 S.W.3d at 724; Bennett, 544 S.W.2d at 707. In a legitimation proceeding brought by an alleged natural father, the Texas Supreme Court held that the appellate court had discretion to determine whether the person who would assume parental rights and responsibilities was fit to do so and that a decree declaring the parent-child relationship between the natural father and child, should be made only if it was in the best interest of child. In re K, 535 S.W.2d 168 (Tex.), cert. denied, 429 U.S. 907, 97 S. Ct. 273, 50 L. Ed. 2d 189 (1976).
Texas does not grant an express right to name a child to either parent. Guthrie, 45 S.W.3d at 724. Even so, the name given to a child by one parent will not be changed unless the complaining parent can show good reason for the change. Id. (requiring a showing that a name change is in the child's best interest in a voluntary paternity proceeding); M.L.P., 621 S.W.2d at 431 (requiring a good reason to change the child's name in a divorce proceeding).
There are several factors we consider in determining whether the name change is in the best interest of the child. First we look to whether the changed name or the original name would best avoid embarrassment, inconvenience, or confusion for the custodial parent. Newman, 433 S.W.2d at 423-24; Guthrie, 45 S.W.3d. at 725. In the case at bar, appellant showed that as the custodial parent she would be inconvenienced by having a child with a different name than her own. Ford is the name listed on the child's birth certificate. Doctors' records, health insurance, life insurance, and Medicaid records all list the child as Ford. Additionally, the child's social security number and day care registration list the child as Ford. Thus, appellant would be forced to change school, medical, and other official records to reflect a new name and could encounter problems managing her child's estate, education, and medical treatment in the future if his name is different than hers.
Next we look at whether the changed name or original name would best help identify the child with the family unit. Newman, 433 S.W.2d at 423-24; Guthrie, 45 S.W.3d at 725. Clearly, the interests of the child will be best served if he has the same surname as the family he lives with. Additionally, we look at the length of time that the child has carried the original name. Newman, 433 S.W.2d at 423-24; *898 Guthrie, 45 S.W.3d at 725. The child in this case has only been alive since 2002, so he likely does not identify with the last name of Ford. Even so, his family, friends, doctors, insurers, and the government all have records of the child under the name Ford.
Appellee also failed to adequately support the child financially during the birth and during the early stages of his childhood. Specifically, appellee failed to contribute any money to payment of expenses related to the child's birth, which was paid by Medicaid. He argues that any financial help that he offered was refused; however, appellee's statement that he attempted to send money through his mother conflicts with appellant's testimony. Appellant also testified at the hearing on the motion for new trial that appellee was currently delinquent in his child support payments.
The court should also look at the degree of respect in the community associated with the original and changed names. Newman, 433 S.W.2d at 423-24; Guthrie, 45 S.W.3d at 725. Appellant's family has strong ties to the community where the child's primary residence is, whereas the appellee is not from Texas, lives in a different county, and has no family or community ties in the area. Moreover, appellant did not want the child to be associated with the name Estes because appellee has a criminal record in two states (indecency with a child in Florida, disposed of by pretrial diversion, and a DUI conviction in Georgia). The child would be better served with a name that is positively associated with the community and the name should positively affect the bond between the parents and families. Considering that the child will be living in a community where the Ford family is located, the child would be better served with their surname. Furthermore, we see no reason why the child cannot maintain a positive relationship with his natural father without the benefit of his last name.
As we noted above, appellee did not testify at trial regarding his request for the child's name to be changed. Moreover, he did not appear at the hearing on appellant's motion for new trial regarding the court's decision to change the child's name. In contrast, appellant presented evidence both at trial and at the hearing on the motion for new trial to show why the child's name should not be changed.
Appellee and appellant were never married, nor did they share a last name. Appellant testified that if she married, she would keep her maiden name. The child and appellant both live with the Ford family and have for the entire life of the child. Appellant is the sole managing conservator of the child. As such, she has the right to establish the primary residence of the child, consent to medical treatment, receive support payments, manage the estate of the child, and make decisions concerning his education. Appellee presented no evidence of how or why the name change would be in the child's best interest. Therefore we conclude that there is legally insufficient evidence to support a conclusion that changing the child's name would be in his best interest. We sustain appellant's first point.
Abuse of Discretion
Because we determined that no evidence existed to support the decision of the trial court we must now consider that factor in determining whether the court abused its discretion in changing the child's name. To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. See Carpenter, 98 S.W.3d at 687; Downer v. *899 Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 241-42.
An abuse of discretion does not occur where the trial court bases its decisions on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); see also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). Furthermore, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court's decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002); Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied).
As we noted above, appellee presented no evidence at trial regarding the child's name change. Moreover, appellee did not appear to testify on the subject during the hearing on the motion for new trial. Appellee presented no evidence upon which the trial court could have based its conclusion of best interest or that good cause existed to change the child's name.
Because we have determined that the evidence was legally insufficient to support the trial court's conclusion that good cause existed for the name change or that a change would be in the child's best interest, and that the trial court acted without reference to any guiding rules or principles with regard to the name change, we sustain appellant's first and third points. Accordingly, we hold that the court abused its discretion in changing the child's name from Ford to Estes. See Tex.R.App. P. 43.3. Because we sustain appellant's points one and three, we need not discuss her remaining points. See Tex.R.App. P. 47.1.
Appellee's counterpoint complains that appellant's appeal is frivolous and that this court should sanction her by ordering her to pay appellee's attorney's fees. Having sustained appellant's first and third points, we disagree with appellee. Accordingly, we award costs to appellant as the prevailing party and overrule appellee's counterpoint. See Tex.R.App. P. 43.4.
We reverse that portion of the trial court's "Final Order in Suit to Establish Parentage" that changes the child's name. We render judgment that the child shall hereinafter be named Morgan Clay Ford. See Tex.R.App. P. 43.3; Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex.1986) (quoting Nat'l Life & Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969)). In all other respects, the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624110/ | 522 So. 2d 850 (1987)
Johnny Lee ALLEN, Appellant,
v.
STATE of Florida, Appellee.
No. 4-86-1650.
District Court of Appeal of Florida, Fourth District.
June 17, 1987.
Richard L. Jorandby, Public Defender, and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Noel A. Pelella, Asst. Atty. Gen., West Palm Beach, for appellee.
ON MOTION FOR REHEARING
PER CURIAM.
We grant appellee's motion for rehearing and substitute the following corrected opinion:
The defendant appeals his sentence to twenty-five years in prison and 50.3 hours of community service for robbery with use *851 of a deadly weapon and battery, and contends that the trial court erred in departing from the recommended guideline sentence of seven to nine years in prison.
The trial court's written reasons for departure were:
a. The Defendant utilized unnecessary and excessive force when committing this offense.
b. The Defendant caused extreme psychological and emotional trauma to the victim as a result of being left a quadriplegic.
c. The Defendant deprived the victim of his livelihood causing him to have severe financial hardships. The victim is now completely disabled and dependent on social security.
d. The Defendant struck the victim while he was asleep and therefore particularly vulnerable.
e. The Defendant's actions have caused severe economic, physical, and mental hardships on the victim's family who must tend to his every need.
f. The Defendant has served a prior prison term and does not appear to be capable of being rehabilitated.
g. The Defendant is a cocaine addict who supplied his habit from the robbery proceeds.
First, written reasons a. through f. are valid reasons for departure from the recommended guideline sentence: Harris v. State, 482 So. 2d 548, 549 (Fla. 4th DCA 1986) (excessive use of force is valid reason for departure); Head v. State, 473 So. 2d 18, 19 (Fla. 3d DCA 1985), approved, 485 So. 2d 1285 (Fla. 1986) (psychological impact on crime victim of being paralyzed as a result of defendant's act is a valid reason for departure); although economic hardship on victim can never constitute valid reason for departure, Hankey v. State, 485 So. 2d 827, 828 (Fla. 1986), loss of livelihood as a result of injury from act of defendant is valid reason for departure; although injury inflicted upon sleeping victim as a factor alone is not valid reason for departure, in this case, there are other factors supporting departure; although emotional and financial suffering of victim's family is not valid reason for departure in murder or sexual battery crimes, Carter v. State, 485 So. 2d 1292, 1295 (Fla. 4th DCA), rev. denied, 494 So. 2d 1149 (Fla. 1986), Connell v. State, 502 So. 2d 1272 (Fla. 2d DCA 1987), in this case the emotional hardship and destruction of the family unit are not inherent components of the crime of robbery, as they are in the crimes of murder and sexual battery, thus, it is a valid reason for departure; Leath v. State, 487 So. 2d 384, 385 (Fla. 4th DCA 1986) (failure of attempts to rehabilitate is a valid reason for departure).
However, the defendant's cocaine addiction is not a valid reason for departure. Barbera v. State, 505 So. 2d 413 (Fla. 1987); Bauza v. State, 491 So. 2d 323 (Fla. 3d DCA 1986); Vickers v. State, 490 So. 2d 231 (Fla. 5th DCA 1986); Degroat v. State, 489 So. 2d 1163 (Fla. 5th DCA), rev. denied, 496 So. 2d 142 (Fla. 1986). Furthermore, there is no evidence in the record to support the trial court's finding that the defendant supplied his cocaine habit from the robbery proceeds.
Since six out of the seven reasons for departure are valid, the state, in the instant case, has shown beyond a reasonable doubt that the trial judge would have departed from the recommended guideline sentence even without the invalid reason. Albritton v. State, 476 So. 2d 158 (Fla. 1985).
Second, the trial court was correct in scoring twenty-one points for severe victim injury. However, on remand the trial court, at its discretion, may re-score victim injury taking into account the fact that the jury found the defendant not guilty of aggravated battery. The Florida Rules of Criminal Procedure 3.701(d)(7) provide that victim injury shall be scored when it is an element of any offense at conviction. Although victim injury is not an element of robbery with the use of a deadly weapon, Wright v. State, 487 So. 2d 1176, 1177 (Fla. 1st DCA 1986), it is an element of battery. § 784.03(1)(b), Fla. Stat.
Third, the trial court erred in imposing community service pursuant to section *852 27.3455, Florida Statutes (1985). The offense committed by appellant occurred July 7, 1984, almost a year before the effective date of the statute, thus violating the prohibition against ex post facto laws. State v. Yost, 507 So. 2d 1099 (Fla. 1987). In the instant case, we conclude the trial court improperly ordered community service in violation of the ex post facto laws.
REVERSED IN PART AND REMANDED FOR RESENTENCING.
HERSEY, C.J., and DELL and GUNTHER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624119/ | 603 S.W.2d 780 (1980)
LIFE INSURANCE COMPANY OF the SOUTHWEST, Petitioner,
v.
Jacquei Mae OVERSTREET, Respondent.
No. B-8549.
Supreme Court of Texas.
June 25, 1980.
Rehearing Denied September 24, 1980.
Brown, Herman, Scott, Dean & Miles, Richard E. Miles and J. Shelby Sharpe, Fort Worth, for petitioner.
Herrick & Waltrip, John W. Herrick, Fort Worth, for respondent.
POPE, Justice.
Plaintiff, Jacquei Mae Overstreet, sued Life Insurance Company of the Southwest to recover $100,000 as the beneficiary of a life insurance policy on the life of her husband, Maxie Overstreet. The trial court and the court of civil appeals have held that the policy was in force at the time of Overstreet's *781 death. 580 S.W.2d 929. The insurer appeals and urges that the policy had lapsed because Overstreet had failed to pay the annual premium either on the due date or within a thirty-one-day grace period. We hold that the policy had lapsed. We accordingly reverse the judgments of the courts below and render judgment that plaintiff take nothing.
Maxie Overstreet, the insured, died on April 24, 1974, at which time he had not paid the 1974 annual premium on the policy. Life Insurance Company says that by the date of death, the policy had lapsed because the premium had fallen due on March 15, 1974, the thirty-one-day grace period had expired on April 15, and the insured's death on April 24 had occurred nine days after the grace period's termination. Jacquei Mae Overstreet says, and the courts below have held, that the premium payment date was April 18 rather than March 15, that non-payment of the annual premium on April 18 did not end the policy until thirty-one more days, and that Overstreet's death on April 24 was well within the grace period.
The trial court and the majority of the court of civil appeals have held that Maxie Overstreet made his first annual premium payment on April 18, 1972, and that each subsequent annual premium fell due on April 18. That date, which does not appear anywhere in the policy, was determined in this manner:
In February, 1972, Overstreet submitted his application to Life Insurance Company of the Southwest to convert a five-year term life policy to a life insurance policy with endowment at age ninety. The earlier policy provided that it would lapse on March 15, 1972. To effect the conversion of the term policy to the policy at issue, Overstreet, on March 6, 1972, delivered his premium check to insurer. It was returned because of insufficient funds. Overstreet then wrote a second check which was also returned for insufficient funds. His third check cleared the bank on April 18, 1972.
The insurer treated March 15 as the date annual premiums were due and sent notices to Overstreet on that basis. On March 6, 1973, insurer sent a notice to Overstreet advising him that his annual premium was due on March 15. After he failed to make his payment on that date, the insurer, on April 5, sent him another notice advising that the grace period for late payment would expire April 15. Overstreet still made no payment. The insurer, on April 15, sent him a further notice advising that the premium was past due and that the policy had been terminated. The notice offered, however, to reinstate the policy if Overstreet paid the premium within ten days. On April 25, the last day of the ten-day period, Overstreet paid the premium, which was for the 1973 insurance year. That premium payment was the last that Overstreet ever made. He did not pay his 1974 premium, and he died on April 24 of that year.
The holdings below and the contentions of the beneficiary are that the provisions of Overstreet's application for the policy were a part of the policy and that the policy did not become effective and was not in force until it was issued and delivered upon the payment of the full first premium. Because that payment was not made until April 18, 1972, the argument is that each annual premium thereafter became due on that date. The application contained this paragraph:
3. Any insurance approved by the Company for issuance as a result of this application, unless effective prior to policy delivery in the manner specified in the receipt attached hereto, shall be considered in force only when a policy shall have been issued by the Company and said policy manually received and accepted by the Applicant and the full first premium paid thereon, in the case of life insurance, during the good health of the Proposed Insureds . . ..
The policy, however, contains other relevant provisions. We shall now examine them. The first thing that a reader sees upon reading the policy is a plastic window at the top of the first page. Words that were typed and printed at the top of the second page appear through the window. *782 The information thus disclosed is the name of the insured, the policy number, the name of the owner of the policy, the amount of the insurance, which was $100,000, the insurance plan, and what the policy calls the "Effective Date." Opposite the "Effective Date" are the words, "March 15, 1972."
The next relevant part of the policy is found in the third paragraph on the first page and below the window. It says that the first premium was payable on the "Effective Date," which, as the policy had already stated, was March 15, 1972. The same paragraph states that subsequent premiums would be payable in periodic installments "thereafter." The word, "thereafter," refers to the Effective Date, or March 15, 1972. This third paragraph provides:
The consideration for this Policy is the application therefor and the payment of premiums as herein provided. The first premium in the amount specified in the Insurance Schedule is payable on the Effective Date and subsequent premiums are payable in periodic instalments thereafter until premiums have been paid for the period specified in the Insurance Schedule or until the prior death of the Insured. [Emphasis added.]
On the third page, there is a paragraph which requires the insured to pay his premiums annually in advance. A provision of that paragraph says that the premiums "shall fall due on the same day of the month on which the first premium is due," and that the failure to pay the premium when due or within the grace period will end the policy except as it otherwise provides. All premiums were thus due on the day on which the first premium was due. The first premium, as we have seen from the paragraph on the first page, was due on the "Effective Date"; and that date, as the policy stated at the outset, was March 15. This is the paragraph concerning premium payments:
PREMIUM PAYMENTS. Any premium hereon is payable in advance at the Home Office of the Company, or to an authorized agent of the Company, in exchange for the Company's official receipt signed by the President or Secretary and countersigned by the agent. Premiums may be paid in periodic instalments at the instalment rates specified in the Premium Schedule but premiums may be changed to a monthly basis only if the amount of the monthly premium is stated in the Premium Schedule. The payment, of an annual, semi-annual, quarter-annual or monthly premium will maintain this Policy in force for one year, six months, three months or one month, respectively. Such periods will be deemed to expire and the next premium shall fall due on the same day of the month on which the first premium is due. Failure to pay any premium when due or within the period of grace provided shall cause this Policy immediately to become void except as otherwise provided herein.
This court by several earlier decisions has adopted the rule of the majority of jurisdictions in this country. That rule is that a definite statement in the policy of the date on which annual premiums will be due is the due date. Such a statement of the due date controls even over a provision stating that a policy will not be in force until it is initially delivered and the first premium is paid during the good health of the insured. Once the policy comes in force, all of the terms of the policy become operative including its provision about the "Effective Date." Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660 (1949); Great Southern Life Ins. Co. v. Peddy, 139 Tex. 245, 162 S.W.2d 652 (1942); Kurth v. National Life & Accident Ins. Co., Inc., 79 S.W.2d 338 (Tex.Civ.App. San Antonio 1935, writ ref'd); 1 Appleman, Insurance Law and Practice § 105 (1965). This court's decision in Peddy, supra, reversed the judgment of the court of civil appeals and rejected the reasoning that there was an inconsistency and ambiguity in a policy which provided that although it would be in force upon its delivery, the premiums would be due at an earlier stated date. Great Southern Life Ins. Co. v. Peddy, 151 S.W.2d 346, 351-52 (Tex.Civ.App. Beaumont 1941), rev'd, 139 Tex. 245, 162 S.W.2d 652 (1942); 7 Williston on Contracts § 905 (3d ed. 1963); see Annot., 44 A.L.R. 2d 472 (1952).
*783 The policy before us expressly fixes the Effective Date at March 15, 1972. The policy provides that "The first premium... is payable on the Effective Date," that is, on March 15, 1972; that "subsequent premiums are payable in periodic instalments thereafter"; and that "The payment of an annual premium will maintain this Policy in force for one year ...." This one-year period, according to the policy, "will be deemed to expire and the next premium shall fall due on the same day of the month on which the first premium is due." In this case, as was also the case in Vela, Peddy, and Kurth, supra, the premium was not paid on the day it was "due." Although the first premium was not in fact paid on the Effective Date, March 15, it was clearly "due" on that date; it was "payable" then. In Peddy, this court wrote:
The great weight of current decisions sustains the rule that when a policy specifically provides for the payment of premiums, and expressly specifies the date from which the premium period is to be computed, and makes that date the day on which recurring premiums are due and payable, such date will control, irrespective of the date on which the policy is delivered.
162 S.W.2d at 653.
By its decision in Vela, supra, this court also settled the rule that the contract is enforceable as written notwithstanding the fact that the first premium is paid late, that is, after it is "due" and "payable." This is the rule even though the insured obtains less than a full year's coverage for the first year's premium. The court in Vela wrote:
No public policy is violated by a contract between an insurance company and an insured whereby premiums are to be paid from the effective date of the policy rather than the date of its delivery, even though the effect thereof is to charge a premium for a period when the insured has no protection.
217 S.W.2d at 663.
Stating a definite "Effective Date," as this policy does, is important for reasons expressed in Vela, Peddy, and Kurth, supra. A definite time is essential to such determinations as the insured's age at the "Effective Date" and the resulting premium rate, cash surrender value, loan value, paid-up insurance benefits, incontestible period, Acme Life Ins. Co. v. White, 99 S.W.2d 1059 (Tex.Civ.App. Eastland 1930, writ ref'd), and grace period.
The premium was due and payable on the effective date. It was paid neither by that date nor within the grace period that followed.
The judgments of the courts below are reversed, and judgment is here rendered that plaintiff take nothing.
Dissenting Opinion by BARROW, J., in which McGEE, CAMPBELL and SPEARS, JJ., join.
BARROW, Justice, dissenting.
I respectfully dissent.
I do not believe that the majority has followed the rule laid down by this Court in Great Southern Life Ins. Co. v. Peddy, 139 Tex. 245, 162 S.W.2d 652 (1942), which is the rule in nearly all jurisdictions. In Peddy we stated:
"The great weight of current decisions sustains the rule that when a policy specifically provides for the payment of premiums, and expressly specifies the date from which the premium period is to be computed, and makes that date the day on which recurring premiums are due and payable, such date will control, irrespective of the date on which the policy is delivered." (Emphasis Added)
The critical requirement of this rule is that the policy must clearly set forth a specific and certain date for the payment of future premiums if that date is to be any earlier than the date the policy becomes in force and effect. This critical requirement is also stated in Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660 (1949). In Peddy, the specific date clearly set out in the contract was November 25. In Vela, premiums were expressly payable on the *784 18th day of September, December, March and June. In Kurth v. National Life & Accident Ins. Co., 79 S.W.2d 338 (Tex.Civ. App. San Antonio 1935, writ ref'd), the policy expressly provided that the premium was payable on December 10 and on the 10th day of December of each year thereafter.
This critical requirement is illustrated by the holding in Jefferson Standard Life Ins. Co. v. Myers, 284 S.W. 216 (Tex.Com.App. 1926, judgment adopted). There the policy was dated September 7, 1921, but expressly provided that it was not to become effective until payment of the first annual premium which was paid on October 4, 1921. The policy provided that the premiums should be payable on each anniversary of such policy. The court held that the premiums were payable on the latter date when the policy became effective. It said:
"In other words, the company, in the absence of a contract to the contrary, has no right to collect a premium for almost a month before the insured has any protection under the policy. The premium is for a year. Every provision of the policy shows this beyond a doubt. Of course, where the insured contracts definitely that the premium shall be payable on a certain date, even though less than a year, we have a different question. Some of the courts uphold such a provision upon the theory that the insured can contract to suit himself and waive his natural rights. But this policy contained no such agreement...."
Here it was undoubtedly contemplated that the policy would become effective on March 15, 1972, but it did not. Under the terms of the insurance contract, the policy in question came into force on April 18, 1972 at which time the insurer received the first annual premium. The contract provides that the payment of an annual premium would maintain this policy in force for one year. It further provides that "[s]uch periods will be deemed to expire and the next premium shall fall due on the same day of the month on which the first premium is due." Under the majority holding, the insured received only eleven months coverage for his annual premium contrary to the express provision of the policy. I cannot agree that there is a clear and definite provision in the policy requiring this result.
The policy does not expressly provide that the annual premiums are payable on March 15 or any other specific date. Rather, on the third page of the policy it is provided that the twelve months (paid for by the annual premium) "will be deemed to expire and the next premium shall fall due on the same day of the month on which the first premium is due." To determine the date the "first premium is due," one must turn back to the first page wherein it is provided that the first premium "is payable on the Effective Date." On the second page, but under a clear plastic window so as to be visible from the first page, there is written:
MARCH 15, 1972 Effective Date
It is noted that the policy provision relative to when the next premium shall fall due not only does not refer to a specific date, but also does not refer to the term "Effective Date."
I do not believe that the three step process the insured is required to undertake under this contract to reach the result mandated by the majority opinion complies with our previous requirement that the policy "expressly specify the date from which the premium period is to be computed." Consequently, it cannot be said that the contract demonstrates a clear agreement by the parties that the annual premiums were to be due and payable on March 15 irrespective of the date that the policy actually comes into force and effect. This date, one of critical importance to both parties, was left uncertain in this case. It is the insurer that is in the position to realize this importance; it is the insurer that is in the position to avoid this uncertainty by properly preparing the contract, and it is the insurer that should bear the loss when the contract is left unclear.
The rule adopted by this Court in Peddy in 1942, which is followed by a majority of *785 other jurisdictions,[1] is clear and easy to follow. Despite this, the policy here does not contain a specific and certain date when the annual premiums are due. Although the insurer undoubtedly conducted the subsequent correspondence with insured on the basis that the annual premium was due each March 15, there is nothing in the record to show that insured accepted or agreed to this date. To the contrary, the second annual premium was paid and accepted by insurer on April 25, 1973.
I would affirm the judgment of the Court of Civil Appeals.
McGEE, CAMPBELL and SPEARS, JJ., join in this dissent.
NOTES
[1] See: Farr v. Sun Life Assurance Co. of Canada, 351 F. Supp. 299 (D.Miss.), approved and affirmed, 469 F.2d 1392 (5th Cir. 1972); Prudential Insurance Co. v. Romero, 28 Colo. App. 337, 472 P.2d 772 (1970); Lentin v. Continental Assur. Co., 412 Ill. 158, 105 N.E.2d 735 (1952); Reid v. Bankers Life Co., 148 Neb. 604, 28 N.W.2d 542 (1947); Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 161 A.2d 717 (1960); 14 Appleman, Insurance Law and Practice § 7953; 43 Am.Jur.2d Insurance §§ 544-546; Annot., 44 A.L.R. 2d 472; Contra: Duerksen v. Brookings International Life & Cas. Co., 84 S.D. 20, 166 N.W.2d 567 (1969). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624147/ | 522 So. 2d 177 (1988)
TWENTY-FOURTH JUDICIAL DISTRICT INDIGENT DEFENDER BOARD
v.
Honorable John J. MOLAISON, Parish Judge, 2nd Parish Court Division "A", Honorable Herbert G. Gautreaux, Parish Judge, 2nd Parish Court Division "B", Honorable J. Bruce Naccari, Parish Judge, 1st Parish Court Division "A", Honorable James M. Lockhart, Jr., Parish Judge, 1st Parish Court Division "A", Honorable George Giacobbe, Magistrate, City Court, City of Kenner, Honorable Calvin Hotard, Magistrate, City Court, City of Westwego, Honorable Gary Bougere, Magistrate, City Court, City of Harahan, Parish of Jefferson, State of Louisiana.
No. 88-CA-15.
Court of Appeal of Louisiana, Fifth Circuit.
March 14, 1988.
Rehearing Denied April 6, 1988.
Writ Denied May 12, 1988.
Samuel S. Dalton, Jefferson, for plaintiff-appellant.
Robert T. Garrity, Jr., Harahan, for defendants-appellees.
Before KLIEBERT, GRISBAUM and GOTHARD, JJ.
KLIEBERT, Judge.
The Twenty-fourth Judicial District Indigent Defender Board (The Board) filed a petition for a writ of mandamus directing the judges and magistrates of the parish and city courts within the Twenty-fourth Judicial District to increase indigent defender *178 fund assessments on defendants convicted of traffic and misdemeanor offenses to $12.00 and $17.50 respectively, as recommended by The Board and approved by a majority of the judges and magistrates in the judicial district. LSA-R.S. 15:146.
The Honorable Cleveland J. Marcel, Sr., judge ad hoc,[1] held La.C.Cr.P. Article 887 grants city and parish court judges the unbridled discretion to suspend "court" costs and thus removes the assessment of such costs from the realm of a purely ministerial duty as necessary for the issuance of a writ of mandamus. Accordingly, he denied the request for the writ. The Board appealed.
Initially, this court, acting en banc, sought to transfer the case directly to the supreme court because it was felt the subject matter of the suit might place the matter outside the perimeter of this court's appellate jurisdiction. The transfer was refused and we were directed to consider the case on an expedited hearing. Pending the hearing the plaintiff filed a motion to strike the defendant's argument urging the unconstitutionality of R.S. 15:146. We referred the motion for hearing with the merits. Having now held the hearing, for the reasons which follow, we reverse the judgment of the trial court.
We decline to consider defendant's contention that R.S. 15:146 is unconstitutional. The constitutionality of a statute must be specially pleaded in the trial court, and the record does not reveal defendants advanced an assertion of unconstitutionality prior to the brief filed in this court. Lemire v. New Orleans Public Service, Inc., 458 So. 2d 1308 (La.1984); State in the Interest of J.B., 499 So. 2d 611 (5th Cir. 1986).
On the merits of the appeal The Board contends that the portion of C.Cr.P. Article 887 granting authority to the sentencing court to waive costs applies only to prosecution costs; hence, it has no application to the special cost mandatorily required to be imposed by R.S. 15:146. Ergo, as the cost assessment provisions of R.S. 15:146 are mandatory, the imposition and collection of the special cost is a ministerial duty, the performance of which can and should have been compelled by the issuance of a writ of mandamus.
In our view the trial judge properly concluded a writ of mandamus may be directed to a public officer, including a sentencing judge, to compel the performance of a ministerial duty but will not be where an element of discretion is left to the public officer. See Felix v. St. Paul Fire and Marine Ins. Co., 477 So. 2d 676 (La. 1985). However, we believe he erred in holding the sentencing judge had, by virtue of C.Cr.P. Article 887, the authority to waive the imposition and collection of the cost assessed by R.S. 15:146.
We review first the historical basis for the assessment of the charge.
LSA-Constitution of 1974, Article I, Section 13, provides in part" * * * The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents." Pursuant to this constitutional directive the legislature enacted LSA-R.S. 15:141, et seq to provide for an administrative organization and finance of indigent defender systems at both the state and local levels. Sections 141 through 143, which provided for a state indigent defender board, were repealed by Acts 1981, No. 873. Section 144 provides for the establishment of an indigent defender board in each judicial district, and Section 145 sets forth the powers and duties of the boards. By Acts 1976, No. 653 § 1, Section 146 was added to create an indigent defender fund for each judicial district:
"A. There is hereby created within each judicial district an indigent defender fund which shall be administered by the district board and composed of funds provided for by this Section and such funds as may be appropriated or otherwise made available to it.
*179 B. (1) Every court of original criminal jurisdiction, except in the town of Jonesville and in mayors' courts in municipalities having a population of less than four thousand, shall remit the following special costs to the district indigent defender fund for the following violations, under state statute as well as under parish or municipal ordinance. The following costs shall be assessed in cases in which a defendant is convicted after a trial, a plea of guilty or nolo contendere, or after forfeiting bond, and shall be in addition to all other fines, costs, or forfeitures imposed:
(a) Not less than the sum of four and one-half dollars for each misdemeanor except a parking violation. Upon recommendation of the district board and by a majority vote of the judges of courts of original criminal jurisdiction in the district, this sum may be increased to not more than seventeen dollars and fifty cents.
(b) Not less than the sum of ten dollars for each felony. Upon recommendation of the district board and by a majority vote of the judges of courts of original criminal jurisdiction in the district, this sum may be increased to not more than seventeen dollars and fifty cents.
(c) In the Twenty-Seventh Judicial District, the sum of seventeen dollars and fifty cents for each felony and each misdemeanor, except a parking violation. Such sum shall be remitted to the fund until the indigent defender board certifies to the court that sufficient amounts are in the fund to pay timely the volunteer counsel appointed by the court to represent indigent defendants. After such certification, the court of the Twenty-Seventh Judicial District shall have the authority, from time to time as the needs of the fund require, to decrease and increase again the amount of special costs authorized by this Section. The amount of such costs shall not exceed seventeen dollars and fifty cents for each felony and for each misdemeanor, except a parking violation, and shall be not less than four dollars and fifty cents for each misdemeanor, except a parking violation, and not less than ten dollars for each felony.
(2) Such amounts shall be remitted by the respective recipients thereof to the judicial district indigent defender fund monthly by the tenth day of the succeeding month.
C. In addition to the funds provided for in Subsection B hereof the state shall pay to each district indigent defender board, on the warrant of its chairman, the sum of ten thousand dollars per annum.
D. The funds provided for in this Section and all interest or other income earned from the investment of such funds shall be used and administered by the district board. Added by Acts 1976, No. 653, § 1. Amended by Acts 1977, No. 362, § 1; Acts 1980, No. 458, § 1; Acts 1980, No. 530, § 1; Acts 1981, No. 141, § 1; Acts 1981, No. 177, § 1; Acts 1981, No. 281, § 1; Acts 1983, No. 240, § 1; Acts 1983, No. 649, § 1, eff. July 20, 1983; Acts 1984, No. 379, § 1; Acts 1985, No. 764, § 1."
R.S. 15:146 by its clear terms requires all municipal magistrates and judges within the Twenty-fourth Judicial District to assess the cost schedule adopted by the majority of the judges of the courts of original criminal jurisdiction in the district. These costs "shall" be assessed, "shall" be remitted. As used in the revised statutes the word "shall" is mandatory. LSA-R.S. 1:3. R.S. 15:146 does not provide for the suspension of indigent defender fund assessments. Had the legislature intended that such costs be suspended at the discretion of the sentencing court, such intent would have best been reflected by a reference in the statute.
Defendants contend La.C.Cr.P. Article 887, which provides for the suspension of "court costs," must be read in para materia with R.S. 15:146 and the statutes must be construed with reference to each other.
*180 La.C.C. Article 13.[2] C.Cr.P. Article 887 provides:
"Defendant's liability for costs; suspension of costs; no advance costs
A. A defendant who is convicted of an offense or is the person owing a duty of support in a support proceeding shall be liable for all costs of the prosecution or proceeding, whether or not costs are assessed by the court, and such costs are recoverable by the party or parties who incurred the expense. However, such defendant or person shall not be liable for costs if acquitted or if the prosecution or proceeding is dismissed. In addition, any judge of a district court, parish court, city court, traffic court, juvenile court, or family court within the state shall be authorized to suspend court costs.
B. All processes of the court shall issue without the payment of advance costs.
C. In addition to the costs provided in Paragraph A, a person convicted of a violation of R.S. 14:98 or of any municipal or parochial ordinance defining the offense of operating a motor vehicle under the influence of alcohol or drugs, who was subjected to a blood, breath, or urine analysis for alcohol, marijuana, morphine, or cocaine presence shall be assessed an additional fifty dollars as special costs. Such costs shall be paid to the state, parish, or local governing authority whose law enforcement agency performed the analysis. If the office of state police performed the analysis, the costs shall be forwarded for disposition in accordance with R.S. 40:1379.7. In the event the person is unable to pay the fine when assessed, the court may allow payment within certain time limits, based on the person's ability to pay such costs.
D. In addition to the costs provided in Paragraphs A and C, a person convicted of a violation of R.S. 14:98 or of any municipal or parochial ordinance defining the offense of operating a motor vehicle while under the influence of alcohol or drugs, shall be assessed an additional fifty dollars as special costs to be used to defray expenses of administering conditions of probation or of incarceration. If the offender is incarcerated, such costs shall be paid to the sheriff or other custodian of the facility in which the offender is incarcerated. If the offender is placed on probation as provided in R.S. 14:98(B) or (C), the court may order the apportionment and payment of all or a part of such costs to the agencies or persons responsible for administering the prescribed substance abuse program, driver improvement program, or community service activities. In addition, the person convicted of a violation of R.S. 14:98 or of any such municipal or parochial ordinance shall be assessed costs of the witness fee provided by R.S. 15:255(F).
E. In addition to the costs provided in Paragraphs A, C, and D, a person convicted of a felony, a misdemeanor, or ordinance of any local government shall be assessed an additional two dollars as special costs. Such special costs shall be used for the purpose of training law enforcement officers as directed by the council on peace officer standards and training. The proceeds of the special costs shall be paid to the Louisiana Commission on Law Enforcement and Administration of Criminal Justice to be used to train law enforcement officers and to provide assistance to local law enforcement agencies.
Amended by Acts 1970, No. 435, § 1; Acts 1980, No. 764, § 6; Acts 1981, No. 681, § 1; Acts 1981, Ex.Sess., No. 36, § 11, eff. Nov. 19, 1981; Acts 1983, 1st Ex.Sess., No. 57, § 1; Acts 1986, No. 263, § 2; Acts 1986, No. 562, § 1; Acts 1987, No. 265, § 1; Acts 1987, No. 331, § 1."
The 1970 amendment inserted "suspension of costs" in the article heading and inserted the third sentence in paragraph A. Paragraphs C, D, and E were added in 1981, 1983, and 1987 respectively.
*181 Defendants contend the reference to suspension of "court costs" in paragraph A encompasses the assessment of indigent defender fund costs. We disagree. Paragraph A addresses a defendant's liability for actual costs of prosecution or support proceedings; these are the "court costs" which may be suspended at the discretion of the trial court. The special assessment for the indigent defender fund is not based on actual costs incurred in the prosecution of a case against a particular defendant, but rather are "special costs" imposed on all defendants regardless of whether they used the system or the special costs fund.
The most effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the legislature to enact it. La.C.C. Article 10;[3]F.W.F. Co., Inc. v. City of Gretna, 508 So. 2d 897 (5th Cir.1987). When the reason and spirit of R.S. 15:146 are considered, an interpretation of the statute in para materia with La.C.Cr.P. Article 887 in such a manner as to subject the funding of the indigent defender system to the whim and caprice of individual judges is negated. Had the legislature intended that such assessment could be suspended in the trial court's discretion, such intent would have best been reflected by reference in the statutes. Article 887 cannot be construed as to permit abandonment of the substantive procedures prescribed in R.S. 15:146.
For the foregoing reasons the judgment of the trial court is reversed and the matter remanded to the trial court with instructions to issue a writ of mandamus directing all sentencing judges to impose and collect the charges set and agreed upon by a majority of the judges and magistrates in the Twenty-fourth Judicial District.
REVERSED AND REMANDED.
NOTES
[1] The judges of the Twenty-fourth Judicial District Court were recused from the case because of their interest in the outcome.
[2] By Acts 1987, No. 124, § 1, effective January 1, 1988, former C.C. Art. 17 was repealed. The substance of Article 17 was reproduced under Article 13.
[3] Former Article 18. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624154/ | 603 S.W.2d 874 (1980)
Elizabeth Y. CRAWFORD, Appellant,
v.
The STATE of Texas, Appellee.
No. 58952.
Court of Criminal Appeals of Texas, Panel No. 2.
July 9, 1980.
Rehearing Denied September 17, 1980.
*875 Tom Bankhead, Carthage, for appellant.
William S. Warren, Jr., Dist. Atty., Center, Robert Huttash, State's Atty., Austin, for the State.
Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
OPINION
PHILLIPS, Judge.
This is an appeal from a conviction for murder. Punishment was assessed at imprisonment for 75 years.
In her fourth ground of error, appellant contends that the trial court erred in denying her motion for a mistrial when the prosecutor elicited hearsay testimony concerning an extraneous offense. Appellant maintains that this testimony was so inflammatory and prejudicial that the trial court's instruction to disregard was insufficient to cure the error. We agree with appellant's contention and reverse.
The indictment alleged that appellant intentionally or knowingly killed her husband by shooting him with a gun. At trial the evidence raised the issues that appellant may have acted either in self-defense or under circumstances constituting voluntary manslaughter. There were no eyewitnesses to the shooting, and the issue of appellant's mental state was closely contested.
On redirect examination of James Crawford, the son of appellant and the deceased, the State elicited hearsay testimony that before the shooting appellant had attempted to poison the deceased:
Q Did you and your father ever have an occasion to discuss an attempt on your mother's part to poison him?
A Yes, sir.
MR. BANKHEAD: Your Honor, that would be hearsay and we would object to it and ask the Court to strike the answer and also to instruct the jury not to consider it for any purpose.
THE COURT: Sustained at this time. You are instructed, Ladies and Gentlemen, that the answer and question is withdrawn from your consideration.
In spite of the trial court's action in sustaining the objection and instructing the jury to disregard, the prosecutor persisted in eliciting improper testimony about the alleged poisoning attempt:
Q Mr. Crawford, can you identify the time and the place that conversation occurred?
A The place was at the home in Beckville, the time, day wise, I cannot.
Defense counsel moved for a mistrial, which was denied. The jury was then excused, and the prosecutor took the witness on voir dire in an attempt to establish that his testimony fell within an exception to the hearsay rule. This voir dire examination showed that the witness's testimony was inadmissible hearsay. The trial court prohibited the witness from further testifying about the alleged poisoning attempt, but overruled defense counsel's renewed motion for a mistrial.
Although it is not completely clear from the initial question and answer that the witness's testimony was hearsay, the record as a whole plainly demonstrates its hearsay nature. The whiskey bottle involved in the alleged poisoning attempt was the subject of appellant's motion to suppress, and at a pretrial hearing on this motion the witness testified about his discussions with the deceased and his knowledge of a poisoning attempt. It is clear from his testimony that he had no firsthand knowledge of such an attempt and that his testimony concerning the matter was inadmissible hearsay.
*876 As a general rule, any error in admitting improper testimony may be cured by the trial court's withdrawal of the evidence and its instruction to the jury to disregard. Cavender v. State, 547 S.W.2d 601 (Tex.Cr.App.1977); Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974). But in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds, the error of admission is not cured by the instruction. Cavender, supra; Edmiston v. State, 520 S.W.2d 386 (Tex.Cr.App.1975); Boyde, supra; 1 R. Ray, Texas Evidence § 29 (3d ed. 1980); see Bray v. State, 478 S.W.2d 89 (Tex.Cr.App.1972); Jackson v. State, 363 S.W.2d 947 (Tex.Cr.App.1963).
In the present case the prosecutor's question assumed that appellant actually had attempted to poison the deceased. When appellant's son affirmatively answered the prosecutor's question, the jury was left with a clear impression that such an attempt had occurred. In the circumstances of this case, it cannot be seriously argued that the trial court's instruction to disregard was sufficient to remove this impression from the minds of the jurors. Furthermore, the error in the admission of this evidence was compounded when the prosecutor refused to accept the trial court's ruling, and persisted in eliciting further testimony along the same line. Sanchez v. State, 591 S.W.2d 500 (Tex.Cr.App.1979); DeRamus v. State, 396 S.W.2d 383 (Tex.Cr. App.1965); Jupe v. State, 86 Tex. Crim. 573, 217 S.W. 1041 (1920).
After carefully reviewing the entire record, we cannot conclude that the error in admitting this evidence was harmless. The State's case relied primarily on circumstantial evidence. The evidence that appellant committed murder, rather than acting in self-defense or under circumstances constituting voluntary manslaughter, was extremely weak. The testimony of appellant's son that his mother previously attempted to poison the deceased was critical to the State's case, and highly prejudicial to appellant. We hold that the trial court erred in overruling appellant's motion for a mistrial.
We pause briefly to discuss the State's contention that appellant "opened the door" by introducing evidence of other conversations between James Crawford and the deceased. None of these other conversations concerned the same subject. See Article 38.24, V.A.C.C.P. The State's contention is without merit.
The judgment is reversed and the cause remanded.
W. C. DAVIS, J., concurs in the result.
DOUGLAS, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624423/ | 522 So.2d 275 (1988)
Michael Shane COLLIER and Russell Collier
v.
Chris NECAISE.
86-1146.
Supreme Court of Alabama.
March 11, 1988.
Marc E. Bradley, Mobile, for appellants.
E. Elliott Barker of Nettles, Barker, Janecky & Copeland, Mobile, for appellee.
BEATTY, Justice.
Appeal by plaintiffs, Michael Shane Collier and Russell Collier, from summary judgment for the defendant, Chris Necaise, *276 in plaintiffs' action to recover damages for Shane Collier's personal injuries. We affirm.
The facts are not in dispute. Defendant Necaise is the owner of a convenience store near Bayou La Batre. On September 3, 1985, as Hurricane Elena threatened the Gulf Coast, Necaise loaded the stock of his store onto two trucks owned by a friend, plaintiff Russell Collier (Shane's father), and moved with his family to the Collier home to wait out the storm. The following day, the Collier and Necaise families returned to restock the store. Among those helping was plaintiff Shane Collier, who was one day short of his tenth birthday. Although the building was intact, debris from the storm was strewn across the property, including numerous boards from a wooden fence that the storm had destroyed. Nails protruded from many of the boards.
After unloading the two trucks, Necaise and Russell Collier decided to go inspect some other property. Before leaving, they spoke to their sons, Chrissy Necaise and Shane Collier, each man warning his own son to watch out for the nails in the boards. The restocking was close to completion, and neither father had asked the boys to do anything further. After the fathers left, Shane stepped on a nail in one of the fence boards; the nail punctured his tennis shoe and entered his foot. Later, his foot required medical treatment when it became infected.
On July 25, 1986, the plaintiffs filed this action. The Colliers contend that Necaise negligently or wantonly failed to warn Shane of a dangerous condition on Necaise's property and that he was injured as a result. In due course, Necaise filed a motion for summary judgment, supported by excerpts from the depositions of the parties. The plaintiffs filed no response to this motion, and the trial court granted summary judgment for Necaise. This appeal followed.
The plaintiffs argue that the trial court committed reversible error in granting the defendant's motion for summary judgment. The following standard is well established:
"In order for summary judgment to be proper, the trial court must conclude that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law." Berry v. South Carolina Ins. Co., 495 So.2d 511, 512 (Ala.1985).
Once a motion for summary judgment has been made and supported as required by Rule 56(e), A.R.Civ.P., the motion is due to be granted unless the moving party "makes an evidentiary or factual showing in opposition to show that there is a genuine issue of fact for trial." Butler v. Michigan Mutual Ins. Co., 402 So.2d at 949, 951 (1981). Summary judgment is erroneous if the nonmoving party provides a scintilla of evidence in its favor. Staples v. Jenkins Builders, Inc., 447 So.2d 779 (Ala. Civ.App.1984).
"The nonmoving party cannot, however, rely on the denials or allegations of the pleadings, where the moving party has offered affidavits or other supporting evidence.... When the moving party offers proof of no genuine issue of material fact, it then becomes incumbent upon the nonmoving party to submit counteraffidavits to show such an issue does exist."
(Citations omitted.) Bishop v. Leavell Banking Co., 464 So.2d 106, 107 (Ala.Civ. App.1985).
The Colliers did not attempt to make any evidentiary or factual showing in opposition to Necaise's motion.
"When no evidence is offered to contradict that presented by the movant, the court has no alternative but to consider the evidence uncontradicted; and summary judgment, if warranted by such evidence, may be entered against the nonmoving party. ..."
Bishop, 464 So.2d at 107. Thus, the trial court was correct in concluding that the evidence offered by Necaise was uncontroverted. The question remaining is whether such evidence warranted a judgment for Necaise as a matter of law.
In answering this question, we must first ascertain the extent of the duty of care that Necaise, as an occupier of land, owed *277 to Shane under these circumstances. This duty is dependent on Shane's "status" as either a licensee, an invitee, or a trespasser on Necaise's property. Frederick v. Reed, 410 So.2d 95 (Ala.Civ.App.1982). Necaise's duty is further delineated by the fact that Shane was a nine-year-old child.
The plaintiffs contend that Shane should be accorded the status of an "invitee," since his purpose in coming onto Necaise's property was to help in the restocking of the defendant's convenience store. Although we recognize the Collier family's actions in helping Necaise during the storm as neighborly gestures of goodwill, there is no question that Necaise received a benefit that was commercial as well as personal in nature. It is well settled that "[t]he relationship of invitor-invitee arises when an invited person enters upon the land of another for purposes which would be of a material or commercial benefit to the invitor." Frederick, 410 So.2d at 97.
Nevertheless, Necaise contends that Shane merely had the status of a licensee, since, at the time of the accident, Necaise had not asked Shane for any further help in restocking the store. However, the facts show that Shane was still unloading items from one of the trucks when he stepped on the nail. Since we are obligated to draw from the facts those inferences most favorable to the nonmovant, we find evidence that Shane had retained his status as an invitee when the accident occurred.
Having determined that there was evidence of Shane's status as an invitee, we must now establish the extent of the duty of care that the defendant, as an occupier of land, owed to a child invitee. While there are numerous Alabama cases setting out the duty that an occupier of land owes to an invitee, there has never been a clear distinction between the duty of care applicable to invitees who are adults and the duty applicable to those that are children. In order to clarify this issue, the plaintiffs urge the Court to extend the principles stated in Restatement (Second) of Torts, § 339 (1965) (pertaining to artificial conditions on land that cause injury to trespassing children) to cases involving injuries to child invitees. In Motes v. Matthews, 497 So.2d 1121 (Ala.1986), we established that § 339, Restatement (Second) of Torts, properly stated the duty that an occupier of property owes to a trespassing child with regard to artificial conditions on the land: "`A possessor [occupier] of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if "`(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
"`(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
"`(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
"`(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
"`(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.' [Emphasis added in Motes.]"
Furthermore, Restatement (Second) of Torts envisioned the extension of § 339 to those cases involving child invitees. Section 343B provides: "In any case where a possessor of land would be subject to liability to a child for physical harm caused by a condition on the land if the child were a trespasser, the possessor is subject to liability if the child is a licensee or an invitee." The plaintiffs recommend that we adopt § 343B (and, by reference, § 339) as the appropriate test for determining the liability for an occupier of land with regard to child licensees and invitees injured by a dangerous condition on the land.[1]
*278 However, this Court's adoption of § 343B would not augment the duties that an occupier of land owes to children who are licensees or invitees. An occupier of land owes to licensees and invitees a heightened duty of care relative to the duty that he would owe to a trespasser. It is clear, in any case where an occupier of land would be liable to a trespassing child for physical harm caused by a dangerous condition on the land, that, a fortiori, he would be subject to liability if that child was a licensee or an invitee. Indeed, Restatement (Second) of Torts, § 343B, recognizes that "[b]ecause of his status as a licensee or an invitee, the child may be entitled to greater protection than that afforded to a trespasser. This Section [343B] is intended to say only that he is entitled to at least as much." Therefore, we acknowledge that Restatement (Second) of Torts, § 343B, accurately reflects our existing law on premises liability, but that an occupier of land may owe a higher duty depending on the specific law regarding licensees and invitees.
Having found evidence that Shane was an invitee, we now examine those standards applicable to all invitees, regardless of whether they are adults or children. In Quillen v. Quillen, 388 So.2d 985 (Ala. 1980), we restated the duty owed by a landowner to an invitee:
"`This court is firmly committed to the proposition that the occupant of premises is bound to use reasonable care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his invitation, expressed or implied, for the transaction of business, or for any other purpose beneficial to him; or, if his premises are in any respect dangerous, he must give such visitors sufficient warning of the danger to enable them, by the use of ordinary care, to avoid it. [Citation omitted.]
"`This rule ... includes (a) the duty to warn an invitee of danger, of which he knows, or ought to know, and of which the invitee is ignorant; and (b) the duty to use reasonable care to have the premises to which he is invited in a reasonably safe condition for such contemplated uses, and within the contemplated invitation.'"
388 So.2d at 989, quoting Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 63, 173 So. 388, 391 (1937).
Therefore, an invitor is not liable for injuries to an invitee resulting from a dangerous condition that is known to the invitee, or resulting from one that the invitee should have recognized in the exercise of reasonable care. Edwards v. Hammond, 510 So.2d 234 (Ala.1987).
"The entire basis of an invitor's liability rests upon his superior knowledge of the danger which causes the invitee's injuries. Gray v. Mobile Greyhound Park, Ltd., 370 So.2d 1384 (Ala.1979); Tice v. Tice, 361 So.2d 1051 (Ala.1978). Therefore, if that superior knowledge is lacking, as when the danger is obvious, the invitor cannot be held liable."
Quillen, 388 So.2d at 989.
There is no reason why these same standards cannot apply to cases in which the invitee is a child. Nevertheless, an invitee's peculiar status as a child may alter the degree of "reasonable care and diligence" required on the part of the occupier of land. Indeed, the court recognized this possibility in City of Birmingham v. Whitfield, 29 Ala.App. 454, 197 So. 666 (1940):
"[T]he degree of caution which is necessary to reach the required standard of reasonable care to be exercised may vary according to the capacity of the person with respect to whom such duty exists and ... those upon whom the duty rests of exercising reasonable care toward children must calculate upon the fact that *279 children are expected to act according to their known characteristics and childish impulses. ..."
29 Ala.App. at 458, 197 So. at 670. Surely, one may postulate many cases in which a child invitee might not be able to appreciate the perils presented by a dangerous condition that would appear "open and obvious" to an adult. The child's ignorance of the danger in such a case would trigger the duty to warn on the part of the occupier of the land, even though there might be no duty to warn an adult in the same position. Each of these cases must be examined individually, taking into account the child's age, experience, and maturity in determining whether the child invitee is "ignorant" of the danger so that the duty to warn remains extant. With these principles in mind, we find that our established standards of care with regard to invitees are well-suited to cases in which the invitee is a child.
In reviewing the circumstances surrounding the case sub judice, we are mindful of the fact that we must view all of the reasonable inferences most favorably to the plaintiffs. First, even taking the most favorable view of the evidence, we must conclude that Necaise did not have the "superior knowledge" of the dangerous condition that would be required in order to hold him liable. In his deposition, Shane, the child, testified as follows:
"Q. You knew ... that there were boards with nails blown down from the fence and debris and stuff around; is that right?
"A. Yes, sir.
". . .
"Q. If you had been looking where you were going you could have seen the board and you could have seen the nail in it; is that correct?
"A. Yes, sir.
". . .
"Q. Were there other boards with nails in them around there?
"A. Yes, sir.
"Q. Had you seen those?
"A. Yes, sir.
"Q. Had you avoided them and been careful not to step on them?
"A. Yes, sir.
"Q. And you understood that there were nails in boards laying on the ground back there; is that correct?
"A. Yes, sir."
The record also reveals that Shane had suffered a similar injury by stepping on a nail at an earlier time in his childhood. Thus, after carefully reviewing the record, we hold that Shane had a sufficient knowledge and appreciation of the dangerous condition of the fence boards to obviate Necaise's duty to warn him of that condition.[2] Even though there was no duty to warn in this case, Shane did receive the benefit of receiving a warning from his father, and hearing the warning that Necaise gave to his son, Chrissy. In his deposition, Shane was questioned about these warnings:
"Q. What do you recall Mr. Necaise saying to you and Chrissy before he left?
"A. He didn't say nothing to me. He said, told Chrissy to watch out for nails.
"Q. What exactly did he say?
"A. He said, Chrissy, watch out for nails.
"Q. Were you standing there when he said that to Chrissy?
"A. Yes, sir.
"Q. And you heard him say it?
"A. Yes, sir.
". . .
"Q. What did your dad say to you?
"A. He told me if I stuck a nail in my foot he was going to beat my butt."
Thus, although Shane was already fully aware of the danger presented by the boards, these warnings, each quite specific in nature, clearly called his attention to the dangerous condition. It is immaterial that Necaise did not directly warn Shane, since Shane admits to having heard both of the *280 warnings, either of which were sufficient to call his attention to the protruding nails.
Because there is a complete lack of evidence tending to establish a breach of any duty owed to the plaintiffs by the defendant, the trial court's summary judgment was proper under Rule 56, A.R.Civ.P. Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, ALMON and HOUSTON, JJ., concur.
NOTES
[1] Section 343B applies to both natural and artificial conditions that cause physical harm to a trespassing child. While Restatement (Second) of Torts, § 339, is directed only to artificial conditions, the duty of care that an occupier of land owes to trespassing children with regard to natural conditions on the land remains the conventional duty: i.e., not to willfully or wantonly injure them or put traps or pitfalls in their way, to warn them of danger actually known by the occupier to exist on the premises after he has knowledge of their presence, and to use due care after discovering their peril. Motes, supra.
[2] Incidentally, due to this finding, Necaise cannot be subject to liability for injuries to the child invitee under § 343B (and § 339), since Shane was aware of the dangerous condition and realized "the risk involved in intermeddling with it." Restatement (Second) of Torts, § 339(c). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624135/ | 564 N.W.2d 505 (1997)
222 Mich. App. 220
222 Mich. App. 801
Charles GOLDEN, Plaintiff-Appellee,
v.
Michael BAGHDOIAN, M.D. and Orthopedic Associates, P.C., Defendants-Appellants.
Docket No. 193775.
Court of Appeals of Michigan.
Submitted September 3, 1996, at Detroit.
Decided March 11, 1997, at 9:00 a.m.
Released for Publication May 22, 1997.
*506 Lakin, Worsham & Victor, P.C. by Sanford N. Lakin and Ron S. Kirsch, Southfield, for plaintiff-appellee.
Plunkett & Cooney, P.C. by Robert G. Kamenec, Detroit, for defendants-appellants.
Before WAHLS, P.J., and SAAD and YOUNG, JJ.
YOUNG, Judge.
Defendants seek leave to appeal a pretrial ruling of the Wayne Circuit Court, declaring § 2169(1)(a) of the Revised Judicature Act, M.C.L. § 600.2169(1)(a); M.S.A. § 27A.2169(1)(a), as amended in 1993[1] to be in conflict with MRE 702 and therefore violative of the Michigan Supreme Court's exclusive rule-making power under Const. 1963, art. 6, § 5. In light of the importance of this issue, both to our jurisprudence and to our constitutional scheme of state government, Const. 1963, art. 3, § 2, in lieu of granting or denying leave we have opted to issue this peremptory opinion. Herron v. Biggies Wolf Den, Inc., 201 Mich.App. 599, 600, 506 N.W.2d 906 (1993); Kerby v. Judges' Retirement *507 Bd. of Michigan, 166 Mich.App. 302, 303, 420 N.W.2d 195 (1988).[2]
In this medical malpractice action, defendant Baghdoian is a board-certified orthopedic surgeon. Notwithstanding the fact that this action concerns the care provided by an orthopedic surgeon, plaintiff proposes to use infectious-disease specialists, i.e., physicians who are not board-certified in orthopedic surgery, whom plaintiff advised the trial court would testify concerning the relevant standard of care.[3] The statute at issue would preclude expert testimony concerning the standard of care by other than a board-certified orthopedic surgeon. See M.C.L. § 600.2169(1)(a); M.S.A. § 27A.2169(1)(a). The rule of evidence promulgated by the Supreme Court, however, allows the trial court to consider whether these witnesses could qualify as experts regarding defendant Baghdoian's standard of care, if it finds that they were qualified on the basis of their "knowledge, skill, experience, training, or education." MRE 702.
Defendants brought a motion to strike plaintiff's proposed experts, arguing that they were unqualified to testify regarding the appropriate standard of care pursuant to RJA § 2169(1)(a). Plaintiff responded that the procedure for qualifying a witness under MRE 702 prevailed over the procedure contemplated by RJA § 2169 because the Supreme Court's rule-making authority in matters of practice and procedure is superior to that of the Legislature, Const. 1963, art. 6, § 5. In a written opinion, the trial court agreed, holding that RJA § 2169 is unconstitutional. Defendants now challenge the court's ruling concerning the constitutionality of RJA § 2169.
The same constitutional argument advanced by plaintiff and accepted by the trial court was recently addressed by this Court in McDougall v. Eliuk, 218 Mich.App. 501, 554 N.W.2d 56 (1996).[4] On the basis of McDougall, we affirm the decision of the trial court in the case at bar, but only by virtue of our obligation, under Administrative *508 Order No. 1996-4, which continues in effect Administrative No. Order 1994-4, to follow a prior published decision of another panel of this Court issued after November 1, 1990.
Were we writing on a clean slate, we would adopt the reasoning of Judge Clifford Taylor, set forth in his dissent in McDougall, supra at 509-519, 554 N.W.2d 56. As noted in Judge Taylor's dissent, the rule-making power conferred on the Michigan Supreme Court by Const. 1963, art. 6, § 5 properly trumps legislatively engendered rules of evidence only when "`no clear legislative policy reflecting considerations other than judicial dispatch of litigation can be identified.'" Id. at 515, n. 6, 554 N.W.2d 56; Kirby v. Larson, 400 Mich. 585, 598, 256 N.W.2d 400 (1977) (Williams, J., Kavanagh, C.J., and Levin J., concurring), quoting 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 404.[5] Judge Taylor's dissent identifies the sundry legislative policies underlying RJA § 2169, none of which involve judicial dispatch of litigation, but rather all of which reflect considerations of public policy peculiarly within the legislative sphere and the legislative competence, and equally outside the sphere and competence of the judicial authority. Indeed, the McDougall majority did not even attempt to respond to Judge Taylor's argument that RJA § 2169 is a substantive rule of law, as opposed to a purely procedural piece of legislation. We conclude, as did Judge Taylor, that RJA § 2169 is an enactment of substantive law. McDougall, supra, at 516-519, 554 N.W.2d 56.
Failure to recognize the distinction between procedural rules of evidence and evidentiary rules of substantive law underlain by carefully balanced political considerations appertaining exclusively to the Legislature, Const. 1963, art. 4, § 1, has led the majority in McDougall to a contrary and incorrect conclusion concerning the allocation of authority between the judicial and legislative branches of our government.
But for Administrative Order No. 1996-4, we would reverse the decision of the trial court in this cause and remand with instructions that plaintiff's expert witnesses could not testify regarding the applicable standard of care.
Affirmed.
SAAD, J., concurs.
WAHLS, Presiding Judge (concurring in part and dissenting in part).
Because I would deny leave to appeal, I write separately. First, I believe that McDougall v. Eliuk, 218 Mich.App. 501, 554 N.W.2d 56 (1996), was correctly decided. See Cicola v. Rosenthal, unpublished opinion per curiam of the Court of Appeals, issued November 8, 1996 (Docket No. 185594). Second, I believe that the McDougall Court gave thorough consideration to the underlying constitutional issue. Accordingly, I find it unnecessary to issue a peremptory opinion in order to resolve this issue. With an application for leave to appeal in McDougall pending before the Supreme Court, I believe that a decision on the merits of this issue is properly before the Supreme Court.
In addition, when granting a motion for leave to appeal, I believe that it is preferable to grant the motion and allow the appeal to proceed. See MCR 7.205(D)(3). Although the issuing of a peremptory opinion appears to be permitted under MCR 7.205(D)(2), such a procedure prevents oral argument and hinders full development of the underlying issues.
ORDER ENTERED MARCH 20, 1997
Golden v. Baghdoian, Docket No. 193775. The judges of this Court having been polled pursuant to Administrative Order No. 1996-4, and the result of the poll being a majority of the judges opposed convening a special panel, it is ordered that a special panel shall not be convened.
NOTES
[1] M.C.L. § 600.2169(1); M.S.A. § 27A.2169(1) provides:
In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria:
(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.
[2] Ordinarily, before addressing the constitutionality of the statute, we would be duty-bound to examine alternative nonconstitutional grounds of adjudication that might obviate the necessity of deciding a constitutional question. United States v. Int'l Union, UAW-CIO, 352 U.S. 567, 77 S. Ct. 529, 1 L. Ed. 2d 563 (1957); Lisee v. Secretary of State, 388 Mich. 32, 40-41, 199 N.W.2d 188 (1972); Consolidation Coal Co. v. Dep't of Treasury, 141 Mich.App. 43, 53, 366 N.W.2d 587 (1985). However, we are precluded from doing so in this case for two reasons.
First, the trial court expressly stated that, because the dispute could be resolved on a constitutional basis, it had no reason to consider other nonconstitutional aspects of the issue. Consequently, the trial court's action limited the record available for review. We disapprove generally of any refusal by a trial court to allow a party to make a record that would facilitate appellate review and specifically of a trial court's action limiting the record in cases involving constitutional issues without reflecting on the central principle that constitutional adjudication is a last resort. However, we are faced in this case with an appellant seeking review of an adverse ruling, and he is entitled to have this Court address the issue on the basis of the record as it exists.
Second, although counsel for appellee has now advanced an argument suggesting that the constitutional issue need not be reached, this argument depends on facts not of recorda problem attributable to the trial court's mishandling of the constitutional issue. Nonetheless, in the absence of a motion by appellee to amend the record, MCR 7.216(A)(4), we must consider the actual record and cannot evaluate material that is not of record. In re Norris Estate, 151 Mich.App. 502, 507, 391 N.W.2d 391 (1986); Spartan Asphalt Paving Co. v. Tri-Cities Constr. Co., 68 Mich.App. 305, 309, 242 N.W.2d 565 (1976).
[3] Plaintiff, in fact, attached to his complaint an affidavit by one of his infectious-disease specialists opining on the standard of care. Plaintiff's intention to evade the requirements of RJA § 2169 is quite evident in the record. Plaintiff's counsel argued to the trial court that "there are issues and maladies that are involved that would be dealt with by multiple disciplines. For example, I used the example of a common cold could [sic] be treated by a family practitioner, a general practitioner, a gynecologist, a number of physicians." (Emphasis supplied.)
[4] In 1993, the Legislature amended the statute at issue in McDougall, adding, inter alia, the following requirement: if the party against whom testimony is offered, is a board-certified specialist, the proposed expert must also be board-certified in the same specialty. M.C.L. § 600.2169(1)(a); M.S.A. § 27A.2169(1)(a); see also McDougall, supra at 505, n. 3, 554 N.W.2d 56. This amendment does not materially alter the analysis of the McDougall majority or the binding effect of its opinion. Were we to conclude otherwise, the bar of Administrative Order No. 1996-4 would not apply, and we would summarily reverse the decision of the trial court.
[5] The remaining justices expressed no opinion concerning this issue. See Kirby, supra, 400 Mich. at 658-659, 256 N.W.2d 400. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624159/ | 15 So. 3d 583 (2009)
McDUFFIE
v.
STATE.
No. 1D08-921.
District Court of Appeal of Florida, First District.
September 2, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624176/ | 522 So. 2d 328 (1988)
William Lewis ROWE
v.
STATE.
5 Div. 312.
Court of Criminal Appeals of Alabama.
February 18, 1988.
Rehearing Denied March 22, 1988.
Charles R. Gillenwaters, Alexander City, for appellant.
Don Siegelman, Atty. Gen., and Kenneth S. Nunnelley, Asst. Atty. Gen., for appellee.
BOWEN, Presiding Judge.
William Lewis Rowe was convicted for first degree burglary and first degree rape. He was sentenced to two concurrent terms of life imprisonment as a habitual offender. On this appeal from those convictions, Rowe argues that evidence of his prior *329 convictions was improperly admitted at trial.
Immediately before the State called its last witness in its case in chief, a hearing was held, outside the presence of the jury, to determine the admissibility of the defendant's prior convictions. The trial court held that "all of the prior rape convictions and sex related convictions of the defendant are admissible in evidence" based on that part of the case of Oglen v. State, 440 So. 2d 1172, (Ala.Cr.App.), cert. denied, Ex parte Oglen, 440 So. 2d 1177 (Ala.1983), which he interpreted as holding that "prior convictions would be admissible evidence on the issue of consent."
The State then called the Circuit Clerk of Tallapoosa County and introduced State's Exhibits Number 2, 3, and 4, identified only as "documents from the Superior Court of Fulton County." Although admitted into evidence, these exhibits have not been included in the record on appeal. Reference to the arguments concerning the admissibility of these exhibits at trial only discloses that the exhibits were identified as "two charges from January of 1972 where he was convicted of ... aggravated assault with intent to rape" and "plea transcripts from the two 1979 convictions."
The record contains no further mention of the defendant's prior convictions until the defendant himself took the witness stand and testified in his own defense. On direct examination of the defendant by his own attorney, the following occurred:
"Q. Let me show you these State's Exhibits here showing where you had been convicted in Fulton County, Georgia, in 1972 and 1979. That is you; is that not correct?
"A. Correct.
"Q. Now, you pled guilty to those charges; is that not correct?
"A. Correct."
On cross-examination of the defendant by the assistant district attorney, the following transpired:
"Q. Mr. Rowe, were you convicted of burglary in Fulton County, Georgia on June 12th, 1984?
"A. Yes, I was.
"Q. And were you also convicted of larceny of an automobile and receiving stolen property in Fulton County, Georgia on December the 12th of 1966?
"A. Yes.
"Q. And were you convicted of larceny excuse me. Were you convicted of burglary in Fulton County, Georgia on August the 23rd, 1970?
"A. I believe I was.
"Q. And were you convicted of rape in Fulton County, Georgia on January 31st, 1972?
"A. Yes.
"Q. And were you convicted of aggravated assault with intent to rape on January the 31st, 1972 in Fulton County, Georgia?
"A. That was the same question you just asked me?
"Q. Okay. And were you convicted of aggravated assault with intent to rape in Fulton County, Georgia on July the 24th, 1979?
"A. Yes.
"Q. And were you convicted of aggravated sodomy on July the 24th, 1979 in Fulton County, Georgia[?]
"A. That was all the same case."
* * * * * *
"Q. And you're presently serving time in the penitentiary for possession of a forged instrument?
"A. Correct."
There was no objection to this testimony.
This Court has considerable doubt about the propriety of the admission of the defendant's prior convictions. Anonymous v. State, 507 So. 2d 972 (Ala.1987), and Ex parte Cofer, 440 So. 2d 1121 (Ala.1983); Phillips v. State, 505 So. 2d 1075, 1078-79 (Ala.Cr.App.1986); C. Gamble, McElroy's Alabama Evidence § 70.01(22) (3rd ed. 1977). The case of Oglen, supra, is factually distinguishable. However, we need not reach that issue.
Once the defendant took the witness stand, those prior convictions were admissible for purposes of impeachment. McElroy at § 145.01. Any error in the admission *330 of the prior convictions as part of the State's case in chief was reduced to harmless error when the defendant testified, without objection, on his own behalf and admitted those prior convictions. Ex parte Williams, 484 So. 2d 503 (Ala.1986). "A defendant cannot complain of the admission of improper evidence when he himself has testified to the same facts." Lewis v. State ex rel. Evans, 387 So. 2d 795, 807 (Ala.1980). It is of no "consequence that this testimony may have been incompetent at the time it was offered, if it was subsequently rendered [competent]." Hanners v. State, 147 Ala. 27, 41 So. 973, 975 (1906). "[W]hile, ordinarily, in the introduction of evidence, it should be competent at the time when offered, still, if rendered competent by the subsequent introduction of other evidence, this is sufficient to correct and cure any error that might otherwise have existed in the admission of the evidence first offered." Collins v. State, 138 Ala. 57, 34 So. 993, 994 (1903).
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624180/ | 15 So. 3d 859 (2009)
JACKSONVILLE SHERIFF'S OFFICE, Appellant,
v.
Robert SHACKLETT, Appellee.
No. 1D09-0456.
District Court of Appeal of Florida, First District.
July 29, 2009.
Michael J. Arrington, Assistant General Counsel, Jacksonville, for Appellant.
Jonathan Israel, Jacksonville, for Appellee.
PER CURIAM.
In this appeal, the Employer challenges the finding of the Judge of Compensation Claims (JCC) that Claimant was entitled to the presumption afforded by section 112.18, Florida Statutes (2007). The Employer alleges the JCC committed two errors: 1) finding Claimant's "essential hypertension" was of a type covered by the statute; and 2) finding Claimant satisfied the statute's disability requirement. We affirm as to the first issue because the argument was not preserved. For the reasons explained below, we reverse as to the second issue.
Background
Claimant was employed by the Employer as a law enforcement officer. On July 17, 2007, while engaged in a training exercise in hot weather, Claimant began feeling ill. He then began to experience chest pains, and his partner recommended seeking medical treatment. Claimant first had his blood pressure taken by a firefighter, who informed Claimant his pressure was elevated. Claimant reported to an urgent care center where his blood pressure was taken again, and he underwent cardiac diagnostic testing. The medical notes from that date indicate the cardiac tests were negative. Claimant was also, however, diagnosed with hypertension, prescribed medication to treat this condition, and told to follow up with his primary care physician.
Claimant testified the doctor at the urgent care center informed him of the hypertension *860 diagnosis, and advised him to refrain from working or exercise until being cleared by a cardiologist. Claimant further testified he informed his supervisor of this, and the Employer allowed Claimant to remain off work pending the cardiac evaluation. A First Report of Injury was prepared, and the Employer agreed to provide benefits subject to the "pay and investigate" provisions in section 440.20(4), Florida Statutes (2007).
For reasons not clear from the record, approximately three weeks elapsed before Claimant underwent the cardiac evaluation. During that period, Claimant returned to the urgent care center twice for scheduled follow-up visits. The notes from each visit reiterate the hypertension diagnosis and the instruction that Claimant follow up with his primary doctor if he developed any complaints. Claimant saw his primary doctor on July 31, 2007. The notes from that office visit indicate Claimant reported the chest pain incident, hypertension and elevated cholesterol diagnoses, and that he was taking medication to address the latter two conditions. Claimant also reported he had experienced no chest pain since July 17, 2007. The doctor's assessment was "benign essential hypertension," and the "plan" was for Claimant to see a cardiologist.
Claimant saw a cardiologist on August 6, 2007. The report from that office visit indicates the Employer sent Claimant for a cardiovascular evaluation, acknowledges Claimant's prior diagnosis of "mild hypertension," and notes the fact that Claimant had been out of work the preceding three weeks. The cardiologist opined Claimant had no evidence of "significant heart disease," and that Claimant's prior chest pain was not cardiac-related. The doctor released Claimant to resume his "full normal duties," with no functional limitations or restrictions.
Based on this report, the Employer denied Claimant's hypertension claim, and the matter went to a final hearing. The sole evidence before the JCC consisted of the medical records described above, and live testimony from Claimant and a claims adjuster. Claimant stipulated there was no written documentation establishing he was taken out of work due to hypertension, and a number of the days he missed during the three weeks in question were regularly-scheduled days off. The JCC found the parties stipulated that the Employer had no evidence Claimant had hypertension before commencing his employment with the Employer, and that Claimant "now has hypertension."
Based on the foregoing, the JCC found the remaining issue for resolution was whether Claimant satisfied the disability requirement of section 112.18(1), Florida Statutes (2007). The JCC noted Claimant's testimony that, "upon reporting the diagnosis of hypertension, he was told to refrain from work until being cleared to return to work by" a cardiologist, as well as Claimant's testimony that he informed his supervisors of this and was given the time off without any trouble. The JCC found the cardiologist's office note of August 6, 2007, corroborated Claimant's "testimony insofar as it indicate[d] a history of `no work' for the three weeks prior to the visit." The JCC also found this note indicated the "plan" was for Claimant to "return back to full normal activities." Thus, the JCC found, Claimant "met his burden by satisfying the three prong test sufficiently to invoke the presumption," and that the Employer "failed to present any evidence of a non-work related cause."
Analysis
The presumption afforded by section 112.18 is "only available when a claimant's... hypertension result[s] in total or partial disability or death." Bivens v. City *861 of Lakeland, 993 So. 2d 1100, 1102 (Fla. 1st DCA 2008). This court has interpreted "disability" as occurring "`only when [a claimant] becomes actually incapacitated, partially or totally, from performing his employment.'" Id. (quoting City of Mary Esther v. McArtor, 902 So. 2d 942, 944 (Fla. 1st DCA 2005)). Here, the evidence upon which the JCC relied to find Claimant satisfied these requirements was Claimant's testimony and the cardiologist's office note. This was error.
This court has held that missing several days of work due to medical appointments is not sufficient to demonstrate disability. See Bivens, 993 So.2d at 1103. Nothing in the record establishes Claimant was in any way incapacitated as a result of his hypertension. Although Claimant testified the urgent care doctor told him he had hypertension and should refrain from work or exercise until cleared by a cardiologist, he also testified it was only his understanding that the latter advice was due to his hypertension. Yet, in each of the reports from the urgent care center where Claimant's hypertension is discussed, he is instructed to see his primary care physician if he had any complaints. The records are silent as to whether Claimant's hypertension, as opposed to, for example, his recent report of chest pain, was the reason he was told not to return to work until being cleared by a cardiologist.
Furthermore, the cardiologist's report itself makes only a passing reference to Claimant's hypertension (which had apparently been brought under control by medication), and focuses instead on whether Claimant had heart disease. Although the report also notes Claimant had been out of work for the previous three weeks, it is silent as to whether this was because Claimant was unable to work due to his hypertension, or because this was how long it took to arrange for Claimant to see a cardiologist. What is clear, however, is that the doctor released Claimant with no restrictions.
Nothing in the record specifically addresses whether Claimant was unable, at any time, to perform his job, at least partially, due to his hypertension.
Detection of a condition always requires testing, medical evaluations, or some type of treatment, and "[t]hese measures, by themselves, do not demonstrate disability." Bivens, 993 So.2d at 1103. The claimant in Bivens "missed work only so his condition could be diagnosed, not because it was a debilitating physical ailment." Id. This, we explained, did not establish disability as the claimant's injury did not prevent him from performing his job responsibilities. Id. Likewise, here, because Claimant was thrice advised to see his primary doctor if he had any hypertension-related complaints, and he was released by the cardiologist with no restrictions, the most that can reasonably be said of Claimant's no-work status pending a cardiac evaluation is that it was for purely precautionary reasons unrelated to his hypertension. This is not sufficient to establish disability for purposes of section 112.18(1), Florida Statutes (2007).
CONCLUSION
Because no competent substantial evidence supports the JCC's finding that Claimant was disabled by his hypertension as required by section 112.18(1), Florida Statutes (2007), the JCC erred in finding Claimant was entitled to operation of the presumption afforded by the statute. Accordingly, we REVERSE the order on appeal.
ALLEN, PADOVANO, and BROWNING, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624181/ | 522 So. 2d 1257 (1988)
Charlene PUGH
v.
Peter GONDRELLA, Gina Gondrella, State Farm Insurance Company, and Allstate Insurance Company.
No. CA-8492.
Court of Appeal of Louisiana, Fourth Circuit.
March 10, 1988.
David W. Oestreicher, II, Oestreicher, Whalen & Hackett, New Orleans, for plaintiff-appellant.
Kevin P. Lohan, Law Offices of Richard E. Britson, Jr., New Orleans, for defendant-appellee.
Before BARRY, KLEES and PLOTKIN, JJ.
PLOTKIN, Judge.
The res nova issue in this case is what amount of legal interest an uninsured motorist (UM) insurance carrier owes to the plaintiff, when the plaintiff has compromised with the tortfeasor and his primary liability insurance carrier prior to trial and the verdict equals or exceeds both the primary and UM insurance policy limits.
*1258 Appellant Charlene Pugh suffered injuries when the car which she was driving was rear-ended by a vehicle owned by Peter Gondrella and driven by Gina Gondrella. Pugh settled with State Farm Insurance Co., the Gondrellas' liability insurer, for the policy limit of $50,000, then sought the $10,000 policy limit from her UM insurance carrier, Allstate Insurance Co. Allstate refused Pugh's demand, but offered to settle for $1,000. The case went to trial when Pugh refused the settlement offer. The jury found that Pugh had suffered $60,000 total damages. The trial judge issued a judgment for $10,000 plus interest against Allstate. Pugh filed a motion for clarification of judgment, seeking payment of interest on the entire $60,000 damages from Allstate. The motion was denied. This appeal followed.
Pugh asserts that Allstate should be liable for interest on the entire $60,000 jury verdict because a number of Louisiana cases have held that UM insurance carriers are solidarily liable with tortfeasors under facts similar to those in the instant case. See Burton v. Foret, 498 So. 2d 706, 712 (La.1986); Hoefly v. Government Employees Ins. Co., 418 So. 2d 575 (La.1982); Jones v. American Fire-Indemnity Ins. Co., 442 So. 2d 772, 776 (La.App. 2d Cir.1983). Pugh reasons that since either the UM carrier or the tortfeasor could be liable for the whole judgment, either could be liable for interest on the entire judgment.
Allstate argues that the trial judge correctly assessed the interest only on the $10,000 it owed under the UM policy. It cites Louisiana's law on the method of calculating interest on judicial judgments set out in LSA-R.S. 13:4203, which states as follows:
Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, "ex delicto", which may be rendered by any of the courts.
Allstate argues that since the statute requires interest only on judgments, it can only owe interest on the $10,000 judgment issued by the trial judge.
Neither side's argument controls the matter at issue in this case. Although the appellant is correct that Allstate, as the UM carrier, is solidarily liable with the tortfeasor for the damages sustained, the cases cited do not require that the UM carrier pay the interest on the entire jury verdict simply because of that solidarity. The Hoefly, supra; Burton, supra, and Jones, supra, cases simply establish the principle that a UM insurer, like a principal insurer, is liable for interest on the portion of the judgment for which it is responsible from the date of judicial demand, not just from the date the judgment is entered.
The appellee's position that interest is owed only on the amount of the judgment under LSA-R.S. 13:4203 is correct; however, the trial judge's styling of the judgment in this case was in error. The judgment should have reflected the $60,000 jury verdict, then given a credit for the $50,000 paid by State Farm in settlement prior to trial, thereafter casting Allstate liable for $10,000 plus interest and costs.
Despite the fact the judgment should reflect the entire jury verdict, Allstate is not required to pay interest on the entire $60,000 under Louisiana law. We base this decision on the legal principles discussed below.
As La.R.S. 13:4203, quoted above, indicates, the general rule in Louisiana is that interest is due on all judgments from the date of judicial demand until the date payment is tendered. An exception to that rule has been developed in cases involving defendant insurers whose policy limits are less than the judgment. In such cases, it is abundantly clear an insurer is liable for legal interest only on the amount of its applicable policy limits from the date of judicial demand until the date of signing of the judgment, although thereafter the insurer is liable for interest on the amount of the judgment, including that which exceeds its applicable policy limits from date of judgment until the insurer pays or tenders the full amount which it owes.
Glazer v. Louisiana Trailer Sales Inc., 313 So. 2d 266, 271 (La.App. 4th Cir.1975). Therefore, Allstate can be liable for interest *1259 only on its $10,000 policy limit from the date of judicial demand until the date the judgment was rendered.
Additionally, Allstate is not required to pay interest on the entire $60,000 jury verdict from the date the judgment was rendered until the date payment was tendered because of the provisions of La.C.C. art. 2925, which states as follows:
The release of the principal, without any reserve as to interest, raises the presumption that it also has been paid, and operates a release of it.
The appellant's brief indicates that the plaintiff entered a "limited release" with State Farm for the limits on the tortfeasor's liability policy before the case ever went to trial. The release is not filed in the record, but it is assumed that it did not contain a reservation concerning interest since Pugh did not argue that point. Therefore, under the provisions of La.C.C. art. 2925, it can be presumed that the appellant waived any right to interest on the $50,000 paid by State Farm. Therefore, even though the trial judge's judgment was improperly styled, the result was correct.
In conclusion, regardless of the legal analysis, all the applicable principles of law relating to legal interest restrict the liability of the UM insurer in this case to interest on its policy limits from the date of judicial demand until the date the payment is tendered to the plaintiff. First, the jurisprudence establishes that all insurers are liable for interest only on the limits of their policies from the date of judicial demand until the date the judgment is signed. Glazer, supra. Second, under the provisions of La.C.C. art. 2925, the plaintiff waived interest on the $50,000 paid by State Farm when it entered the settlement agreement. Therefore, Allstate is responsible for interest only on the $10,000 it owed even after the judgment was signed.
The plaintiff argues in brief that Allstate should be held liable for penalties and attorneys fees because it was allegedly arbitrary and capricious in refusing her demand for payment of the policy limits. That request is denied because a good faith dispute concerning a legal issue existed, justifying the insurer's denial of payment.
The judgment of the trial court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624193/ | 15 So. 3d 926 (2009)
Edgar Ivan GIL, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-3192.
District Court of Appeal of Florida, Fifth District.
August 7, 2009.
James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
GRIFFIN, J.
Edgar Ivan Gil ["Gil"] appeals his convictions and sentences for trafficking in cocaine, conspiracy to traffic in cocaine, unlawful use of a two-way communication device, and resisting a law enforcement officer without violence. On appeal, Gil argues that the trial court erred by denying his motion to dismiss the information. He contends that law enforcement officer William Powell's ["Officer Powell"] act of notarizing two affidavits that had been signed by a confidential informant using a fictitious name, amounted to a violation of his due process rights, justifying dismissal of the prosecution.
The trial court conducted a hearing on Gil's motion to dismiss, during which it heard testimony from Officer Powell. Officer Powell testified that he was a narcotics agent in the Orlando Police Department's Metropolitan Bureau of Investigation ["MBI"] and that he became involved in an investigation of Gil and Jose Pereda ["Pereda"] as a result of information provided by a confidential informant named Stephen Bator. He testified that *927 both Gil and Pereda were arrested after he and the confidential informant made an "undercover purchase of trafficking amounts of cocaine" from Gil and Pereda.
Officer Powell testified that Stephen Bator had entered into a substantial assistance agreement and had chosen the pseudonym, Shaun Alexander, which was reflected on a MBI Source Profile Sheet. When asked about the MBI Source Profile Sheet, Officer Powell explained:
When I was get a subject that signs up for substantial agreement, it's usually a person that's trying to right a wrong. He he he was a drug trafficker, he did wrong and now he's trying to come over and make up for his wrongs. We sign him up as a confidential informant.
The form that he signs usually stays with MBI. It has his name, his address, other pertinent information that that we would like to keep protected.
On the second page we will have him sign his real signature. Under that is a pseudo signature that we will try to use to protect his identity until ordered to bring his real identity when we get an individual, he usually has 60 days to complete his substantial assistance agreement. If in the first week we go out and the confidential informant makes a case, usually these cases he is doing is with a small circle that he's dealt with in the past.
What we're trying to do for obvious reasons is keep his name from getting out there as being a confidential informant right off the bat. If so, it it will compromise not only his ability to make future cases, it will compromise his safety and also my safety, because a lot of times I will go undercover with him. And if the word gets out that this individual is working as a confidential informant, it will put us in jeopardy. So therefore we with this sheet, we will have him sign his correct name and then under that, his pseudo name that he will use for a signature on his statement.
When asked whether there was "any intent to defraud or cheat people or any evil motive associated with [his] work on [the handwritten] document that [was] signed Shaun Alexander," Officer Powell answered:
There was not, sir. It was just as I explained in the very beginning, we did not want his name out there. This is public record immediately, so with a pseudo with a pseudo name on there, the confidential informant's name does not get out onto the street as working with the police until hopefully 60 days after his once his contract is up within 60 days.
Finally, when asked "what should have been [done] to clarify that Shaun Alexander was a pseudo signature as opposed to a real signature," Officer Powell responded: "What's being done now, is again in big block letters, off to the side off to the side of the signature I will put alias, highlight that, so there's no misunderstanding."
The trial court entered an order denying Gil's motion to dismiss the information, stating in pertinent part:
[D]efense counsel argues [] the case should be dismissed because of the outrageous conduct of law enforcement. Having given this matter much thought, the court respectfully disagrees. Law enforcement's efforts in this matter, however misdirected, were based upon an effort to conceal the identity of the confidential informant. This is both for future use of the same informant, as well as for a legitimate concern about the safety of the confidential informant. While I share counsel's concern that this practice should not be continued, it does not fall into the category of conduct which is so outrageous that it violates the core sense of fairness and justice. *928 See State v. Williams, 623 So. 2d 462 (Fla.1993).
Gil then entered pleas of nolo contendere as charged, reserving the right to appeal this issue.
On appeal, Gil relies upon State v. Williams, 623 So. 2d 462 (Fla.1993) and State v. Glosson, 462 So. 2d 1082 (Fla.1985). In each of these cases, the Florida Supreme Court found that law enforcement's conduct violated the defendant's right to due process. In Williams, law enforcement had manufactured crack cocaine in order to use it in a reverse-sting operation; and in Glosson, law enforcement had entered into a contingency fee arrangement with a confidential informant wherein the confidential informant "had to testify and cooperate in criminal prosecutions in order to receive his contingent fee from the connected civil forfeitures." Williams, 623 So.2d at 467; Glosson, 462 So.2d at 1085. Here, Officer Powell's conduct in the prosecution of Gil does not rise to that same level and does not cause offense to a court's sense of justice or fairness. See Williams, 623 So.2d at 467. During the hearing on Gil's motion to dismiss, Officer Powell testified that (1) use of the pseudonym was for purposes of protection, (2) he erred but did not intend to commit a fraud when he notarized the two affidavits, (3) he disclosed the actual name of the confidential informant during his deposition, and (4) he learned from his mistake and now includes the term "alias" on an affidavit when a confidential informant signs using a pseudonym.
We find no error in the trial court's denial of Gil's motion to dismiss.
AFFIRMED.
TORPY and LAWSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624190/ | 15 So. 3d 951 (2008)
Frances Orlando wife of/and Nicholas REGGIO
v.
E.T.I., ABC Inc. and City of New Orleans through New Orleans Aviation Board.
No. 2007-C-1433.
Supreme Court of Louisiana.
December 12, 2008.
*952 Daigle, Fisse & Kessenich, Michael David Fisse, Jonathan Harold Sandoz, Patrick Edward Moore, Covington, for applicant.
Goins Aaron Law Corporation, William David Aaron, Jr., Leola M. Anderson, DeWayne L. Williams, Mark Christopher Carver, New Orleans, Bruce Henry Lizana, Metairie, for respondent.
JOHNSON, Justice.
We granted this writ application to address whether a third party claim for indemnity, which was filed three years after the main demand was served, is prescribed. The lower courts held that because the City of New Orleans (New Orleans Aviation Board) filed its third party demand three years after the principal demand was filed, its demand was prescribed under both LSA-C.C.P. art. 1067 and LSA-C.C. art. 3492. However, it is well settled that prescription does not commence on a claim for indemnity or contribution until the party seeking it has sustained a loss, either through payment, settlement or an enforceable judgment. For the following reasons, we reverse the rulings of the lower courts and remand the matter for further proceedings.
FACTS AND PROCEDURAL HISTORY
This matter arrived in this Court in a pre-trial posture; therefore, the facts have been extrapolated from the various pleadings. On June 6, 2001, Exceptional Temporaries Inc., ("ETI") entered into a contract with the City of New Orleans Aviation Board ("NOAB") to provide sound-deadening insulation to residences in close proximity to Louis Armstrong Airport as part of the Airport Capital Improvements Program. On October 8, 2001, plaintiffs, Frances Orlando and Nicholas Reggio, contracted with NOAB to have their Kenner residence insulated. The work actually began on or about March 23, 2002. In the process of renovating the house, ETI allegedly broke a window's glass, then failed to remove some pieces of the broken glass. Frances Orlando alleged that she stepped on the glass and cut her foot on April 21, 2002, causing severe bodily injuries. On March 7, 2003, she and her husband filed suit against ETI and *953 NOAB alleging negligence on the part of NOAB in contracting with ETI to perform the repairs, and negligence on the part of ETI in performing "shoddy work in violation of LSA-C.C. art. 2762."[1] NOAB was served with the petition on March 26, 2003. ETI was never served with the original petition.
On February 27, 2006, NOAB filed a Third Party Demand against ETI, seeking contribution and/or indemnity for damages arising out of the plaintiffs' tort claim. Particularly, NOAB argued that it "is entitled to complete indemnity and/or contribution from ... ETI to the degree that the accident sued upon was caused ... by the negligence and/or strict liability of ETI." ETI filed an exception of prescription based on LSA-C.C.P. art. 1067, which the trial court maintained, dismissing NOAB's third party demand.
The trial court noted that NOAB filed its third party demand almost three years after the main demand was filed and served. Although NOAB alleged a cause of action in contract, pursuant to an indemnity provision, the trial court determined that the contract between ETI and NOAB contains no such provision. The court held that NOAB's cause of action sounded in tort, and concluded that because NOAB brought suit against ETI more than 90 days after service of the main demand, pursuant to LSA-C.C.P. art. 1067, NOAB's third party demand was prescribed.
In affirming the trial court's ruling, the court of appeal found that the main demand clearly alleged a claim in tort, with a one year prescriptive period, although NOAB argued that a quasi contract existed between the parties. Reggio v. E.T.I., 07-0049 (La.App. 4 Cir. 6/13/07), 961 So. 2d 1269. The court of appeal also concluded that there was no specific indemnity provision included in the contract between the NOAB and ETI; therefore, the NOAB's only redress was in tort, and the cause of action was prescribed pursuant to LSA-C.C. art. 3492.[2] In finding no contract of indemnity, the court noted:
"A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms." Soverign Ins. Co. v. Texas Pipe Line Co., 488 So. 2d 982 (La.1986); Polozola v. Garlock, 343 So. 2d 1000 (La.1977); Berry v. Orleans Parish School Bd., XXXX-XXXX (La.5/21/02), 830 So. 2d 283.
The court of appeal held, as well, that the NOAB had ninety (90) days from service of the main demand to seek indemnification, and failed to do so; thus, NOAB's third party demand was prescribed. NOAB applied for a writ of certiorari, alleging error in the lower courts' application of LSA-C.C.P. art. 1067 to an incidental demand for indemnification, and this Court granted NOAB's writ of certiorari. Reggio v. ETI, 07-1433 (La.10/12/07), 966 So. 2d 536.
*954 DISCUSSION
The standard controlling review of a peremptory exception of prescription requires that this Court strictly construe the statute against prescription, and in favor of the claim that is said to be extinguished. Louisiana Health Service and Indemnity Company v. Tarver, 93-2449, pp. 11-12 (La.4/11/94), 635 So. 2d 1090, 1098; Fontaine v. Roman Catholic Church of Archdiocese of New Orleans, 625 So. 2d 548, 551 (La.App. 4th Cir.1993), writ denied, 93-2719 (La.1/28/94), 630 So. 2d 787.
When an exception of prescription is filed, ordinarily, the burden of proof is on the party pleading prescription. However, when prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Alex Spott v. Otis Elevator Company, 601 So. 2d 1355 (La.1992); Eastin v. Entergy Corp., 03-1030 (La.2/6/04), 865 So. 2d 49.
In the present case, the plaintiffs' Petition for Damages was filed on March 3, 2003, while NOAB's Third Party Demand was filed on February 27, 2006, nearly three years after the original Petition was filed. ETI contends that NOAB's Third Party Demand is prescribed on its face, arguing that the one year prescriptive period, provided for in LSA-C.C. art. 3492, expired on March 3, 2004. Additionally, ETI argues that the Third Party Demand is prescribed on its face, pursuant to LSA-C.C.P. art. 1067.
Since NOAB's third party demand is seeking indemnification pursuant to the terms of a contract, we must examine the basic law of indemnity to better understand the potential cause of action.
Indemnity
NOAB argues first that the contract between the City of New Orleans and ETI includes indemnity language in favor of NOAB, and points to the clause where St. Paul Fire and Marine Insurance Company appears as surety. The record shows that St. Paul Fire and Marine Insurance Company intervened in the contract as Surety for the faithful performance of all work, and to fully secure and protect the City of New Orleans from all losses arising from failure or neglect on the part of ETI.[3]
*955 An action for indemnity is a separate substantive cause of action, arising at a different time, independent of the underlying tort, with its own prescriptive period. This Court defined "indemnity" in Nassif v. Sunrise Homes, Inc.,[4] 98-3193, pp. 2-3 (La.6/29/99), 739 So. 2d 183, 185:
Indemnity ... means reimbursement, and may lie when one party discharges a liability which another rightfully should have assumed.... It is based on the principle that everyone is responsible for his own wrongdoing, and if another person has been compelled to pay a judgment which ought to have been paid by the wrongdoer, then the loss should be shifted to the party whose negligence or tortious act caused the loss. [Citations omitted].
At oral argument in this Court, NOAB suggested that the contract between ETI and NOAB clearly sets forth the parties' intent to provide indemnity for "... all loss or expense of any kinds, including all costs of Court and attorneys' fees, made necessary or arising from the failure, refusal or neglect of the aforesaid ETI, Contractor, to comply with all of the obligations assumed by it."
While NOAB makes the argument here, the record shows that NOAB conceded in the lower courts that there was no contractual indemnity. In NOAB's Memorandum In Support of Motion to Reconsider Judgment, it acknowledged in its conclusion that "no express contract provision exists that specifically provides for indemnity." After reviewing the four corners of the contract, we conclude, as well, that there is no express language to support contractual indemnity between ETI and NOAB. Thus, there is no express contractual indemnity.
Third Party Demands
A third party demand is an incidental demand allowed by the Louisiana Code of Civil Procedure. "Incidental demands are reconvention, crossclaim, intervention, and the demands against third parties." LSA-C.C.P. art. 1031(B). LSA-C.C.P. art. 1067 provides that:
An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of the main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.
This Court has determined that "Article 1067 was initially added to protect defendants from being lulled into the loss of their right to assert actions and defenses through reconvention by plaintiffs' guile and delay in bringing forward their ultimate and true demands. Act 472 of 1970." Moore v. Gencorp, Inc., 93-0814 (La.3/22/94), 633 So. 2d 1268, 1272. In Moore, we determined that the fundamental purpose of prescription statutes is "to afford a defendant security of mind and affairs" if the claim is filed untimely and "to protect him from stale claims and the loss or nonpreservation of relevant proof." Id.
Professor Frank Maraist and Justice Harry T. Lemmon (retired) explained in Chapter 7 of the Louisiana Civil Law Treatise, entitled "Incidental Actions," 1 La. Civ. L. Treatise, Civil Procedure § 7.2(2008), that:
Article 1067 has utility in avoiding unnecessary lawsuits. When two claims arise out of the same occurrence, one person may decide not to pursue his or *956 her claim as long as the other person also forgoes that claim. However, a claimant who would otherwise forgo his or her claim may not learn until after the claim has prescribed that the other party filed an "eleventh hour" suit. Faced with this prospect, such a claimant would be likely to file a protective suit. Article 1067 eliminates the dilemma that would prompt a protective, and sometimes unnecessary, suit by allowing the forebearing claimant a ninety-day grace period. The period has been described as an exemption period, and not an extension of prescription.
[Footnotes omitted.]
LSA-C.C.P. art. 1067 is an exemption, rather than a prescriptive statute, which exempts the incidental demand from any applicable prescriptive statute whose prescriptive period would accrue during the 90 day period from the date of service of the main demand. Traylor v. Reliance Insurance Co., 98-1379 (La.App. 4 Cir. 7/1/98), 715 So. 2d 1253. Article 1067 was promulgated to permit additional opportunities for filing reconventional demands on which prescription would normally have run, but within 90 days of the filing of the main demand. Id. Subsequently, Act 86 of 1974 amended Article 1067 to expand its scope to encompass reconventional demands and "all prescribed incidental or third party demands." Id.
Some appellate courts have held that a defendant's third party demand, not filed within one year of the allegedly tortious conduct, or within 90 days of plaintiff's amended petition, is prescribed pursuant to LSA-C.C.P. art. 1067. See, Thibaut v. Thibaut, 607 So. 2d 587 (La.App. 1 Cir. 1992); Keller v. Townsley, 462 So. 2d 264, 365 (La.App. 1 Cir.1984); State Farm v. Smith, 448 So. 2d 209 (La.App. 1 Cir.1984); Hildebrand v. Schnell, 441 So. 2d 395 (La. App. 4th Cir.1983). See also, Lawyer v. Succession of Kountz, 00-1888 (La.App. 4th Cir.1/8/02), 806 So. 2d 867, writ denied, 02-253 (La.3/28/02), 812 So. 2d 632, where a buyer sued the seller for rescission of the sale after discovering termite damage in the house. Three years later, the Succession filed a third party demand against the termite inspector. In that case, the termite inspector filed an exception of prescription, which the lower courts granted and dismissed the Succession's incidental demand. The court held that the Succession's incidental demands against Rid-A-Pest had prescribed since the third party demand was filed almost three years after the original petition was served. It was not served within the 90 day delay period provided by LSA-C.C.P. art. 1067; in fact more than one year had elapsed since the expiration of the 90 day period.
Next, we must determine when the cause of action accrued in order to decide whether NOAB's claim for indemnification has expired since it was clearly filed three years after the main demand.
Prescription
In Louisiana, there are three elements necessary for a negligence cause of action to accrue: fault, causation, and damages. Austin v. Abney Mills, Inc., 01-1598, n. 7 (La.9/4/02), 824 So. 2d 1137, 1150. Before prescription can run, or be suspended, these three elements must exist. Id. To determine whether a claim is prescribed, a court looks to the time when a plaintiff knew or should have known that a cause of action arose or existed. However, to decide what substantive law to apply, a court must look to when the cause of action accrued, i.e. when the injury or insult to the plaintiff first occurred. Cole v. Celotex, 599 So. 2d 1058 (La.1992).
In this case, we find that NOAB's demand sounds in tort; thus, the one-year prescriptive period would apply. It is clear from our review of the original petition and the third party demand that *957 NOAB asserts a negligence (tortious) cause of action, which has a one year prescription period attached. See, LSA-C.C. art. 3492.
Louisiana courts have found that in a claim for indemnification based on a tortious act, prescription begins to run when the indemnity claimant suffers the loss or damage, at the time of the payment of the underlying claim, payment of a judgment thereon, or payment of a settlement thereof by the party seeking indemnity, i.e., when the judgment has been cast. Wiggins v. State Through Dept. Of Transportation and Development, 97-0432 (La. App. 1 Cir. 5/15/98), 712 So. 2d 1006, 1011, writ not considered, 98-1652 (La.9/25/98), 726 So. 2d 6; Carpenter v. Lafayette Woodworks, Inc., 504 So. 2d 179 (La.App. 3rd Cir.1987).
In Bergeron v. Amerada Hess Corp., 478 So. 2d 1308, 1310 (La.App. 5th Cir.1985), the plaintiffs filed suit to recover damages as a result of the death of Perry Bergeron, who was the passenger in a boat which collided with an oil well. The suit was filed against owner, insurer, and several employees of the oil well within the applicable one year prescriptive period. The owner of the oil well then filed a third-party demand seeking contribution against the operator of the boat. However, the third-party demand was not filed until four months after the principal action would have prescribed. Bergeron, 478 So.2d at 1309.
The third-party defendant, the boat operator, filed a peremptory exception of prescription alleging that pursuant to LSA-C.C.P. art. 1067, the third party plaintiff, the owner of the oil well, only had ninety days from service of the main demand to file the claim. The trial court upheld the peremptory exception of prescription. However, the appellate court found that since the action was for contribution and/or indemnity, prescription could not begin to run until defendant was cast in judgment. Therefore, the time periods set forth in LSA-C.C.P. art. 1067 were not applicable. Bergeron, 478 So.2d at 1309.
The court recognized that LSA-C.C.P. art. 1067 is an exemption rather than a prescriptive statute. Thus, if the action had not or could not have prescribed because the cause of action had not yet accrued, the time limitations of article 1067 would not apply. Bergeron, 478 So.2d at 1309-1310. The court noted that in a claim for indemnity or contribution, prescription does not begin to run until the right vests. Bergeron, 478 So.2d at 1310.
In Wiggins, the plaintiff filed suit against the Department of Transportation and Development (DOTD), on July 30, 1994, seeking damages on behalf of a minor pedestrian struck by a truck driver. DOTD filed its reconventional demand, on December 22, 1995, seeking indemnity from the minor's mother for her negligence in failing to properly supervise her child, and in allowing him to play near the highway. DOTD's claim was filed more than ninety days after service of process of the original petition. The court held that based on Bergeron, the limitations set forth in Article 1067 were not applicable, as DOTD's indemnity claim had not accrued. The court concluded that prescription did not begin to run on DOTD's claim until the cause of action matured, which would have been at the time of judgment and payment by DOTD in excess of its virile portion of the damages.
In Bailey v. Khoury, 04-0620 (La.1/20/05), 891 So. 2d 1268, this Court held that "[p]rescription cannot run against a cause of action that has not accrued or while that cause of action cannot be exercised." (citing Wilkinson v. Wilkinson, 323 So. 2d 120, 125 (La.1975)). Because prescription does not commence on a claim for indemnity until a party has *958 sustained a loss, either through payment, settlement, or an enforceable judgment, we hold that the indemnity claim is not time barred. See Wiggins, 712 So.2d at 1011, (claim for indemnity not governed by or time-barred by the provisions of LSA-C.C.P. art. 1067).
We find, as well, that while NOAB may have a potential claim for indemnity, we conclude that indemnity is not available at this time because NOAB has not suffered any loss or damages, i.e., the cause of action has not yet accrued. Thus, there is no need for contribution or indemnification. In sum, we find that the prescriptive period on a claim for indemnity does not begin to run until NOAB is cast in judgment, regardless of the applicable theory of indemnity. Thus, we expressly overrule the holding of Lawyer v. Succession of Kountz, supra.
An action for indemnity is a separate substantive cause of action, independent of the underlying tort. The action for indemnity does not accrue until the City of New Orleans is responsible for a judgment, or actually discharges a liability for which NOAB is responsible. Thus, NOAB's action against ETI is neither premature nor prescribed. See, Article 1805.
An action is premature when the "right of action" is the right to claim contribution. This right matures by operation of law, when parties are cast as solidary obligors. Therefore, when the plaintiffs named both E.T.I. and NOAB, as defendants, a "right of action" in subrogation was created by operation of law.
This Court has spoken on this issue in at least two cases.
A party sued on an obligation that would be solidary if it exists may seek to enforce contribution against any solidary co-obligor by making him a third party defendant according to the rules of procedure, whether or not that third party has been initially sued, and whether the party seeking to enforce contribution admits or denies liability on the obligation alleged by plaintiff.
Perkins v. Scaffolding Rental and Erection Service, Inc., et al, 568 So. 2d 549 at 551, (La.1990).
This Court further explained that "[t]he source of the right to claim contribution is subrogation to the plaintiff's rights against the remaining tortfeasors. Contribution rights are enforced/created by joining potential solidary obligors as third-party defendants." Farbe v. Casualty Reciprocal Exchange, XXXX-XXXX, p. 4 (La.7/6/00), 765 So. 2d 994, 996.
In Glass v. Alton Ochsner Medical Foundation, et al., 02-0412 (La.App. 4th Cir.11/6/02), 832 So. 2d 403 at 409, the Fourth Circuit, when examining the right to bring two suits for indemnity arising from the same facts, stated that:
The Supreme Court .... did not create requirements for tortfeasors to fulfill in order to file their Third Party Demand. The nonexistence of this requirement allows tortfeasors to proceed against [defendants] where the original plaintiffs are precluded.
In Mercantile, III, Inc., et al v. Glaser, M.D., 01-2101 (La.App. 4th Cir.1/9/02), 806 So. 2d 906, 908, the Fourth Circuit explained that:
The predecessor to article 1805, article 2103 of the civil code of 1870, was amended in 1960 to overrule legislatively Kahn v. Urania Lumber Co., 103 So. 2d 476, 478 (La.App. 2d Cir.1958), which stood for the proposition that "there is no right of contribution between joint tort-feasors unless and until they have been condemned in a judgment in solido, and then only in favor of the joint tort-feasors who has paid the damages awarded." The article thus changed the time when a demand for contribution could be asserted and allowed a defendant *959 to seek contribution against a co-obligor who had not already been cast in judgment.
For these reasons, the lower courts erred in granting ETI's Exception of Prescription and dismissing NOAB's third party demand. The lower courts' rulings are hereby reversed, and the case remanded for further proceedings.
REVERSED and REMANDED.
KIMBALL and KNOLL, JJ., concur.
VICTORY, J., concurs in part and dissents in part and assigns reasons.
TRAYLOR, J., concurs in part and dissents in part for reasons assigned by VICTORY, J.
WEIMER, J., concurs and assigns reasons.
VICTORY, J., concurring in part and dissenting in part.
I concur in the portion of the majority opinion holding that indemnity is a separate substantive cause of action, independent of the underlying tort, and that prescription on an implied indemnity claim does not commence until a party has sustained a loss, either through payment, settlement, or an enforceable judgment. At 958. In this case, NOAB has not suffered any loss because it has not been cast in judgment, thus any indemnity claim it may have has not prescribed.
However, I dissent from the portion of the majority opinion which seemingly concludes that if NOAB is cast in judgment for damages against the plaintiffs, then NOAB automatically has an implied indemnity claim. While our courts have applied the concept of implied indemnity in construction cases, see Bewley Furniture Co., Inc. v. Maryland Cas. Co., 285 So. 2d 216 (La.1973), before implied indemnity can be applied, certain requirements must be met. As former Justice Marcus explained in Nassif v. Sunrise Homes, Inc., 98-3193 (La.6/29/99), 739 So. 2d 183:
An implied contract of indemnity arises only where the liability of the person seeking indemnification is solely constructive or derivative and only against one who, because of his act, has caused such constructive liability to be imposed. Thus, because the party seeking indemnification must be without fault, a weighing of the relative fault of tortfeasors has no place in the concept of indemnity.
See also Bewley Furniture, supra ("This indemnity, or recovery over, has been allowed a contractor from his subcontractor and/or supplier, so long as the exclusive fault producing liability has been that of such subcontractor and/or supplier.")
In this case, the plaintiffs alleged the direct negligence of NOAB in contracting with ETI to perform the work and the direct negligence of ETI is performing shoddy work. Thus, the issue to be determined as far as indemnity is concerned is whether NOAB is independently liable to plaintiffs, in which case indemnity cannot apply, or whether, in spite of this claim, NOAB is found to be only constructively or derivatively liable to plaintiffs, in which case indemnity can apply. This issue cannot be determined until after trial and if NOAB is found to be independently liable to plaintiffs, then it has no claim for indemnity and its third party demand will have prescribed.
WEIMER, J., concurring.
I concur in the result only. Because prescription does not commence on a claim for indemnity until a party has sustained a loss, either through payment, settlement, or an enforceable judgment, I would hold the indemnity claim is not time barred. See Wiggins v. State, Department of Transportation and Development, 97-0432, p. 7 (La.App. 1 Cir. 5/15/98, 712 So. 2d 1006, 1011), writ not considered, 98-1652 *960 (La.9/25/98), 726 So. 2d 6 (claim for indemnity not governed by or time-barred by the provisions of LSA-C.C.P. art. 1067).
Further, there is a distinction between the right to "claim" indemnity and the right to "collect" indemnity. Generally, a person cannot exercise his right of action until the corresponding cause of action accrues. However, a solidary obligor may exercise his right of action for indemnity before the cause of action accrues. LSA-C.C. art. 1805. Subrogation is the source of indemnification, and "[s]ubrogation takes place by operation of law ... [i]n favor of an obligor who pays a debt he owes with others or for others and who has recourse against those others as a result of the payment." LSA-C.C. art. 1829(3); Wiggins, supra.
Thus, NOAB's action against ETI is neither premature nor prescribed.
NOTES
[1] LSA-C.C. art. 2762, entitled "Liability of contractor for damages due to badness of workmanship," provides that:
If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.
[2] LSA-C.C. art. 3492 provides, in pertinent part, that "[d]elictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damages is sustained."
[3] The contract specifically provides, in pertinent part, that:
The said ETI ... [is] hereby bound to perform this contract ... strictly in accordance with said plans and specifications, to observe and comply with all conditions and stipulations therein contained....
And the City of New Orleans binds and obligates itself to pay to, on the proper completion of its contract, the amount as set forth in its bid.
And now to these presents personally came and intervened St. Paul Fire & Marine Insurance Company, as Surety.
Who ... hereby bind itself as surety for the faithful performance of all work called for in the said contract by the said contractor... and does further bind and obligate itself as surety for the payment ... of all payments to be made by the said contractor under the contract, ... each of the said bonds given herein to be considered separate and distinct, and no payment made by the surety under either shall in any way reduce the obligations of the surety under the other.
NOW THE CONDITION, of this obligation is such that if the said ETI ... shall... perform all ... obligations assumed by it in the aforesaid contract, ... and shall fully secure and protect the said City of New Orleans ... from all loss or expense of any kind, including premises, and from all loss or expense of any kind, including all costs of Court and attorneys' fees, made necessary or arising from the failure, refusal or neglect of the aforesaid ETI ... to comply with all of the obligations assumed by it; ans likewise to promptly deliver all the work called for by said contract to the City of New Orleans, free from any and all such claims, liens and expenses, then this said bond shall become null and void, otherwise to remain in full force and effect.
[4] In Nassif, the Court made clear that an action for indemnity is a separate substantive cause of action, independent of the underlying wrong. Id. at 186. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624210/ | 522 So. 2d 979 (1988)
Joseph E. WARREN, Ronald D. Green and Ronald D. Green, As Personal Representative of the Estate of Lantice Green, Deceased, Appellants,
v.
SOUTHEASTERN LEISURE SYSTEMS, INC., a Corporation, Appellee.
Nos. BS-424, 87-102.
District Court of Appeal of Florida, First District.
March 23, 1988.
*980 Richard J. Geisert, Miami Beach and Joseph E. Warren, Jacksonville, for appellants.
Frederick R. Brock of Gartner and Phillips, Jacksonville, for appellee.
BARFIELD, Judge.
Appellants seek interlocutory review of an order directing them to answer an impleader complaint in proceedings supplementary under section 56.29, Florida Statutes (1985). Appellants contend that the order constitutes a determination of personal jurisdiction, which is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i). We disagree, finding this is a nonappealable, non-final order which determines subject matter jurisdiction and not personal jurisdiction over appellants.
Appellee obtained a judgment against a corporation in which appellants the Greens were principals and appellant Warren was the corporation's attorney. When appellee was unable to satisfy the judgment out of corporate assets, it moved to implead appellants on a contention that appellants had wrongfully received corporate funds and assets. Upon the trial court's granting of the motion to implead, appellee served its verified complaint in impleader on appellants.
Appellants then filed motions to quash and dismiss the complaint in impleader. The motions contended the complaint was jurisdictionally defective as appellee had failed to follow the steps in section 56.29 for proceedings supplementary.[1] Appellants also asked that the complaint be dismissed for failing to state a cause of action. The trial court denied the motions to quash or to dismiss.
For interlocutory review under Rule 9.130(a)(3)(C)(i), an order must determine "jurisdiction of the person." The term "jurisdiction of the person" refers to service of process or to the applicability of the long arm statute to nonresidents. Page v. Ezell, 452 So. 2d 582 (Fla. 3d DCA 1984); National Lake Developments, Inc. v. Lake Tippecanoe Owners Ass'n, 395 So. 2d 592 (Fla. 2d DCA 1981), approved, 417 So. 2d 655 (Fla. 1982); American Health Ass'n v. Helprin, 357 So. 2d 204 (Fla. 4th DCA 1978). The order appealed is one that determines appellee's right to proceed with the impleader action, National Lake Developments, Inc. v. Lake Tippecanoe Owners Ass'n, 417 So. 2d 655 (Fla. 1982)[2], and there is no suggestion by appellants, either here or below, of any defect in the means by which they were served with the complaint or were otherwise brought within the trial *981 court's jurisdiction, Page, 452 So.2d at 582. The order appellants want this Court to review relates to the adequacy of the steps appellee took precedent to invoking the trial court's subject matter jurisdiction over proceedings supplementary and to impleading appellants, which is not properly reviewable as an interlocutory order. See Florida Power & Light Co. v. Canal Authority, 423 So. 2d 421 (Fla. 5th DCA 1982), review denied, 434 So. 2d 887 (Fla. 1983).
The objection appellants raise is to the invocation of subject matter jurisdiction, and not of personal jurisdiction, and thus they are not entitled to review at this stage of the proceedings. We decline to take up appellants' suggestion that this appeal alternatively be treated as one for extraordinary relief, apparently resting on certiorari review. We do not find that the procedure followed by the trial court in granting the motion to implead departed from the dictates of fair play and procedural due process, Wieczoreck v. H & H Builders, Inc., 450 So. 2d 867 (Fla. 5th DCA 1984), certified question answered, 475 So. 2d 227 (Fla. 1985); Robert B. Ehmann, Inc. v. Bergh, 363 So. 2d 613 (Fla. 1st DCA 1978), so as to say that it departed from the essential requirements of law, Stel-Den of America, Inc. v. Roof Structures, Inc., 438 So. 2d 882 (Fla. 4th DCA 1983), review denied, 450 So. 2d 488 (Fla. 1984).
Therefore, this appeal is dismissed for lack of jurisdiction in this Court. Appellants may raise this issue in any further appeal as we do not pass upon the merits.
MILLS and WENTWORTH, JJ., concur.
NOTES
[1] Appellants contended appellee failed to file an affidavit under section 56.29(1) stating the judgment was unsatisfied, failed to file an unsatisfied writ of execution, failed to provide a complaint in impleader, failed to provide sufficient testimony to prove a prima facie basis for relief and made no showing that appellants were liable to the judgment-debtor corporation. (Prior to entry of the order appealed, the appellee filed copies of the unsatisfied execution and an affidavit by its president stating the judgment remained unsatisfied.)
[2] See also State Road Dept. v. Brill, 171 So. 2d 229 (Fla. 1st DCA 1964) (order denying dismissal of suit as barred by sovereign immunity nonappealable non-final order) and Dyer v. Battle, 168 So. 2d 175 (Fla. 2d DCA 1964) (orders abating one action and denying dismissal of second action not reviewable interlocutory orders). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624227/ | 522 So. 2d 477 (1988)
Wayne Barden KNOWLES, Appellant,
v.
Jerry June KNOWLES, Appellee.
No. 87-1405.
District Court of Appeal of Florida, Fifth District.
March 17, 1988.
*478 Edward E. Hedstom, Palatka, for appellant.
No appearance for appellee.
COWART, Judge.
This case involves civil contempt and "present ability" to pay support.
When the parties' marriage was dissolved on August 15, 1986, and at all times since, appellant husband was disabled by a heart condition and received $302.40 per month social security disability income. He was ordered to pay the wife $75.00 per month rehabilitative alimony for 24 months but failed to do so. At an enforcement hearing in January, 1987, the husband was given the opportunity to show cause why he should not be held in contempt of court; the husband presented evidence that he had suffered another heart attack which caused his disability to worsen and, being unable to work, could not pay the $750.00 alimony arrearage. The trial court continued the case for one month to give the husband an opportunity to show his "good faith" by making the next scheduled monthly payment, warning that if the husband failed, he would be held in contempt. At the hearing one month later, the husband testified that although he had received his $306.00 social security check just three days before the hearing, he could not, or would not, pay the $75.00 (plus costs) payment. The husband was held in willful contempt and ordered incarcerated for 30 days subject to being permitted to purge himself at any time by paying the $75.00 plus costs. He appeals. We affirm.
*479 The husband first contends that the trial court erred in holding him in contempt of court, as he was unable to pay either the monthly alimony payments, or the arrearages, due to his post-dissolution heart attack. It is generally accepted law that a person cannot be held in contempt for failure to pay money as ordered unless the court makes a finding that the defendant has the present ability to pay and willfully refuses to do so. It is also generally accepted that a person who has been ordered by the court to pay money and who has had the ability to pay but who thereafter has intentionally divested himself of that ability with intent to avoid payment of the money as ordered can also be held in contempt of court. See Faircloth v. Faircloth, 339 So. 2d 650 (Fla. 1976). These rules were reaffirmed in Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985). There, the court also held that a prior judgment establishing the amount of alimony or support to be paid creates a presumption that the defaulting party has the ability to pay that amount. Id. at 1280.
Under Bowen, the final judgment in this case created a presumption that the husband has the ability to pay the wife $75 per month in rehabilitative alimony. The burden then shifted to the husband to demonstrate that, due to circumstances beyond his control which intervened since the final judgment of dissolution was entered, he no longer has the ability to make these payments. This the husband was unable to demonstrate. The record indicates that the husband's income, composed solely of his monthly social security payments, is exactly the same as when the final judgment of dissolution was entered and before the husband suffered his post-dissolution heart attack.[1] Therefore, the trial court did not err in finding the husband to be in contempt.
The husband also contends that the trial judge erred in ordering him incarcerated. He relies upon language from Bowen to the effect that if incarceration for civil contempt is deemed appropriate, the court must make a "separate, affirmative finding that the contemner possesses the present ability to comply with the purge conditions set forth in the contempt order." Id. at 1279. The problem in this case is that the trial court's finding of present ability was stated in the alternative with language indicating a finding that the husband did have the ability but willfully divested himself of that ability.[2] The husband urges that this fails to make the unqualified finding of "present ability" required by Bowen.
The appellant is somewhat correct. To incarcerate a person for civil contempt for failure to pay money as ordered, a court must not only provide for a purge condition but must also find that the person has the ability to purge himself of civil contempt. Even a person who has willfully or negligently divested himself of the ability to pay money as ordered cannot be incarcerated for civil contempt because he then does not have the ability to purge himself.[3] Therefore, the alternative language in the trial court's order is inappropriate, inapplicable, and should not be there. Nevertheless, because the record in this case so clearly shows that the appellant had the present ability to pay the $75.00 and costs in question, yet willfully refused to do so, we disregard the improper alternative language in the trial court's finding in this case but urge its omission in civil contempt proceedings. The Order of *480 Contempt, including the Order of Incarceration, is therefore
AFFIRMED.
COBB and DANIEL, JJ., concur.
NOTES
[1] The husband's new financial affidavit, submitted at this hearing, shows that while he remarried after the dissolution, his financial position remained approximately the same as it was at the time of the dissolution.
[2] The contempt order states that:
The Court finds that Respondent [husband] has the present ability to pay and willfully refuses to do so (or previously had the ability to pay but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the Orders of the Court); ...
[3] A person who willfully disables himself to obey a court order to pay money in order to frustrate the intent of the court order can be held in criminal contempt for such willful act. A purge provision is not a necessary condition for incarceration for criminal contempt. However, criminal contempt requires a special procedure (See Fla.R.Crim.P. 3.830 and 3.840), and it is obvious that this case involves civil contempt and not criminal contempt. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624214/ | MICHAEL THIBODEAUX
v.
JAMES M. FIELD AND LAWRENCE C. ST. BLANC
No. 2009 CA 0241
Court of Appeals of Louisiana, First Circuit.
July 27, 2009.
Not Designated for Publication
R. DAVID BROWN, Counsel for Plaintiff/Appellant Michael Thibodeaux
AMANDA H. SMITH, Counsel for Defendant/Appellee Louisiana Public Service Commission James Field and Lawrence St. Blanc
BEFORE: KUHN, GUIDRY, DOWNING, GAIDRY, AND HUGHES, JJ.
GUIDRY, J.
We consider on appeal whether the trial court erred in dismissing a claim for attorney's fees and court costs pursuant to La. R.S. 44:35, an enforcement provision of the Louisiana Public Records Act, La. R.S. 44:1-56, filed by plaintiff, Michael Thibodeaux. The trial court granted a motion for summary judgment filed by defendants, James M. Field and Lawrence C. St. Blanc, dismissing plaintiffs suit with prejudice. We reverse in part and remand.
FACTS AND PROCEDURAL HISTORY
On June 23, 2006, Thibodeaux submitted a public records request to the Louisiana Public Service Commission ("the Commission"). Therein, Thibodeaux requested a copy of the Commission's record in Docket U-29526, which pertained to the "Letter Application of Cleco Power, LLC for limited exemption from lower of cost or market pricing and competitive bidding rules for affiliate transactions, in connection with purchases of economy and emergency power from Acadia Power Station" and one copy of "all information and correspondences that the Commission relied upon for their determination." Approximately, three days later, the Commission responded to Thibodeaux's request via e-mail correspondence, stating that all information filed in Docket U-29526 was available to the public, free of charge, online in the Commission's Document Access System. Thibodeaux emailed a reply to the Commission stating that the Commission's response to his public records request was "not agreeable" and requested the "exact cost" of the copies to fulfill his request. The Commission notified Thibodeaux of the cost for providing copies of the records he requested in a letter dated June 27, 2006. The parties do not dispute that Thibodeaux paid the cost, in person, at the Commission's office on July 12, 2006.
On August 2, 2006, Thibodeaux filed suit against Field, individually and in his official capacity as the chairman of the Commission, and St. Blanc, individually and in his official capacity as the executive secretary of the Commission, asserting that the defendants had failed to comply with a public records request in accordance with La. R.S. 44:1 et seq. Thibodeaux sought an order that defendants promptly provide the available requested public records, and he further sought reasonable attorney's fees and costs in accordance with La. R.S. 44:35.
The record establishes that Thibodeaux received the requested public records on August 10, 2006. The Commission asserted it did not promptly provide the documents solely as a result of a clerical oversight, and in its answer, filed on behalf of the defendants, prayed for the dismissal of Thibodeaux's suit at his sole expense. In October 2006, the Commission filed a motion to dismiss based on mootness and, in the alternative, a motion for summary judgment. The trial court granted the motion to dismiss based on mootness and dismissed Thibodeaux's suit.[1] Thibodeaux appealed that judgment, and this court affirmed the trial court's judgment "insofar as it dismisse[d] ... Thibodeaux's claim for injunctive and/or mandamus relief." This court otherwise reversed the judgment and remanded the matter to the trial court so that it could consider Thibodeaux's claim for monetary relief pursuant to La. R.S. 44:35. This court did not address the merits of the claim for such relief. See Thibodeaux v. Field, 07-1418, p. 6 (La. App. 1st Cir. 5/2/08)(unpublished opinion).
On remand, by a judgment dated November 7, 2008, the trial court granted the Commission's motion for summary judgment and dismissed Thibodeaux's suit with prejudice. Thibodeaux appealed, alleging that the trial court erred in granting the Commission's motion for summary judgment and in further finding that he was not entitled to any relief under the Public Records Act absent a finding that the Commission arbitrarily and capriciously withheld the public records requested.
DISCUSSION
When an appellate court reviews a trial court judgment on a motion for summary judgment, it applies the de novo standard of review, "using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law." Gray v. American National Property & Casualty Company, 07-1670, p. 6 (La. 2/26/08), 977 So. 2d 839, 844; See La. C.C.P. art. 966(B). In reviewing this judgment, we must apply the burden of proof imposed upon a movant in a motion for summary judgment, which is set forth as follows in La. C.C.P. art. 966(C)(2):
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
Material facts are those that potentially insure or preclude recovery, affect the litigant's success, or determine the outcome of a legal dispute. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Populis v. Home Depot, Inc., 07-2449, p. 3 (La. App. 1st Cir. 5/2/08), 991 So. 2d 23, 25, writ denied, 08-1155 (La. 9/19/08), 992 So. 2d 943.
The appointive or elective office of a custodian and his employees have the duty and responsibility to provide access to public records. La. R.S. 44:31A.[2] Except as otherwise provided by law, any person of the age of majority may inspect, copy, or reproduce any public record. La. R.S. 44:31B(1). The custodian of public records of state agencies has the duty to provide copies to persons so requesting. La. R.S. 44:32C(2).[3]
Further, La. R.S. 44:35 provides, in pertinent part:
A. Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney's fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.
B. In any suit filed under Subsection A above, the court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld from the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action....
...
D. If a person seeking the right to inspect or to receive a copy of a public record prevails in such suit, he shall be awarded reasonable attorney's fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney's fees or an appropriate portion thereof.
E. (1) If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.
(2) The custodian shall be personally liable for the payment of any such damages, and shall be liable in solido with the public body for the payment of the requester's attorney fees and other costs of litigation, except where the custodian has withheld or denied production of the requested record or records on advice of the legal counsel representing the public body in which the office of such custodian is located, and in the event the custodian retains private legal counsel for his defense or for bringing suit against the requester in connection with the request for records, the court may award attorney fees to the custodian.
Thibodeaux asserts he is entitled to an award of attorney's fees and costs, because the Commission did not provide copies of the documents requested until after he filed his lawsuit. We agree that Thibodeaux is entitled to attorney fees.[4]
As outlined in La. R.S. 44:35A, the remedies provided to "[a]ny person who has been denied the right to inspect or copy a record" under the provisions of the Public Records Act, include not only mandamus or injunctive relief, but also declaratory relief, together with attorney's fees, costs and damages as provided for in La. R.S. 44:35. It is undisputed that the defendants did not provide copies of the information requested, or a final written determination that the information requested was not public records, within "the passage of five days" after Thibodeaux made the request as provided in La. R.S. 44:35A.
In order to receive attorney fees, La. R.S. 44:35D states that a person must prevail, at least in part, in the suit brought to enforce his right to inspect or to receive a copy of a public record. As previously acknowledged by this court, Thibodeaux did not prevail on his claim for injunctive and/or mandamus relief (i.e., his request that the trial court order the Commission "to promptly provide the requested public records"), because the Commission provided the records prior to the trial court hearing that part of his claim and thus that part of his claim was rendered moot. Nevertheless, Thibodeaux did establish, and the defendants do not dispute, that the Commission violated La. R.S. 44:35A, and therefore Thibodeaux did prevail on this part of his claim. To the extent that the trial court's granting of the Commission's motion for summary judgment can be construed as a finding that Thibodeaux did not prevail in establishing that the Commission violated La. R.S. 44:35A, we reverse. See also Heath v. City of Alexandria, 09-28 (La. App. 3d Cir. 5/6/09), ___ So. 2d ___.
As for civil damages, La. R.S. 44:35E states that a requester of public records may be awarded "civil penalties" or "actual damages proven by him to have resulted from the actions of the custodian," if the trial court finds that the custodian arbitrarily and capriciously withheld a requested record or unreasonably or arbitrarily failed to respond to a records request as required by La. R.S. 44:32. Thibodeaux presented no evidence to show that he would be able to satisfy his evidentiary burden of proving that the Commission arbitrarily and capriciously withheld or unreasonably failed to respond to his records request subsequent to his payment of the applicable copying costs or proving that he had incurred any actual damages as a result thereof. Accordingly, we find no error in the trial court's granting summary judgment relative to any claim for actual damages or civil penalties.[5] See La. C.C.P. art. 966(C)(2).
CONCLUSION
Accordingly, the summary judgment is reversed in part and this matter is remanded to the trial court for further proceedings consistent with this opinion. Appeal costs are assessed against defendants, James M. Field and Lawrence C. St. Blanc, in their official capacities with the Louisiana Public Service Commission.
REVERSED IN PART AND REMANDED.
Kuhn, J., dissenting in part.
I dissent from that portion of the majority opinion that reverses in part the summary judgment in favor of the defendants, James M. Field, individually and in his official capacity of the Louisiana Public Service Commission, and Lawrence C. St.Blanc, individually and in his official capacity as executive secretary of the Commission. Plaintiff, Michael Thibodeaux, asserts he is entitled to an award of attorneys' fees, although he did not obtain a favorable judgment in the proceedings below. Although the defendants did not provide the public records within "the passage of five days" after Thibodeaux requested them as referenced in La. R.S. 44:35A, the fact remains that Thibodeaux did not prevail in this suit, whether in whole or in part, within the meaning of La. R.S. 44:35D. The statutory language requiring that the litigant "prevails in such suit," is a legislative requirement that the person obtain a favorable ruling in the suit regarding access to public records as a prerequisite for the recovery of "attorney's fees and other costs of litigation" under Section D. The trial court did not reach the issue of whether Thibodeaux was entitled to have access to the records because the issue was moot by the time the initial hearing on the motion to dismiss was held. If we were to accept Thibodeaux's interpretation of Section D, this court would be rewriting legislation rather than applying it as written. Accordingly, I would affirm the trial court's summary judgment in favor of defendants.
HUGHES, J., dissenting in part
I respectfully disagree with the decision not to award court costs. While Thibodeaux may be successful in only "part" of his lawsuit, I am of the opinion that he is totally successful in his claim under L.R.S. 44:35 and thus "prevails" in the object of the litigation, 100%. Injunctive and mandamus relief are merely procedural means to an end; we should not let the tail wag the dog.
NOTES
[1] The trial court's judgment followed a January 22, 2007 hearing, but was inadvertently dated January 22, 2006.
[2] Louisiana Revised Statutes 44:lA(2)(a) provides:
All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are "public records", except as otherwise provided in this Chapter or the Constitution of Louisiana.
[3] Fees for copying such records shall be charged in accordance with a uniform fee schedule adopted by the commissioner of administration, as provided by La. R.S. 39:241.
[4] Because this court previously found that Thibodeaux's claims for injunctive and mandamus relief were rendered moot when the Commission fulfilled Thibodeaux's public records request and for additional reasons discussed later in this opinion, Thibodeaux can be found to have prevailed only "in part" in his suit. Therefore, in accordance to La. R.S. 44:35(D), Thibodeaux can only seek a discretionary award of "reasonable attorney's fees or an appropriate portion thereof."
[5] We further observe that on appeal, Thibodeaux does not ask this court to reverse and remand so that the trial court can consider a claim for civil penalties. Rather Thibodeaux urges on appeal, "[t]he burden of proving arbitrary and capricious withholding only applies when a citizen-plaintiff seeks the one-hundred dollar per day civil penalties as per La. R.S. 44:35(E)(1)." Thibodeaux further states, "[t]he relief which is sought ... and which can indeed be granted by this court is for attorney's fees and costs." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624223/ | 603 S.W.2d 766 (1980)
TEXAS ALARM AND SIGNAL ASSOCIATION, Appellant,
v.
The PUBLIC UTILITY COMMISSION of Texas et al., Appellees.
No. B-8620.
Supreme Court of Texas.
March 26, 1980.
Rehearing Denied April 30, 1980.
*767 McGinnis, Lochridge & Kilgore, Earnest Casstevens, Austin, for appellant.
Mark White, Atty. Gen., Stuart Fryer, Asst. Atty. Gen., Austin, Jon Dee Lawrence and Rebecca S. Bain, Dallas, for appellees.
STEAKLEY, Justice.
This is a rate structure case reaching us by direct appeal. See Tex.Rev.Civ.Stat. Ann. art. 1738a; Tex.R.Civ.P. 499a. The case originated in a petition filed by Southwestern Bell Telephone Company with the Public Utility Commission for authority to adjust and increase its rates.[1] Texas Alarm and Signal Association, appellant in this direct appeal, intervened and participated in the Commission proceedings. In due time after conducting extensive public hearings, the Commission authorized Bell to increase its overall revenues by $124,539,000 and to adjust its rate structure accordingly. Texas Alarm and Signal Association then filed suit in the district court against the Commission and sought to set aside the Commission's order. Bell intervened in the district court. The district court sustained the Commission's order and Texas Alarm and Signal Association has brought this direct appeal. We affirm the judgment of the district court.
Texas Alarm and Signal Association (TASA) is an incorporated association of individual alarm companies which provide alarm services to individuals and businesses. To provide this alarm service, these companies place detection devices on the protected premises. These detection devices transmit signals to the alarm companies' monitoring stations. The signals from the detection device to the monitoring stations are transmitted over Bell's facilities. In their rate structure, Bell classifies this type of service as private line and these tariffs were increased by the order of Public Utility Commission.
The question to be decided in this direct appeal does not concern the overall revenue requirements of Bell, i. e., whether the Commission used the proper rate base as was the issue in Southwestern Bell Telephone Co. v. Public Utility Commission, 571 S.W.2d 503 (Tex.1978); or whether the Commission has allowed a reasonable rate of return. The rate structure authorized by the order of the Commission is the subject of TASA's complaint.
In the Commission proceedings, Bell sought an increase in overall revenues totaling $214,317,000. Bell distributed this increase in revenue requirement among the *768 various services.[2] Bell projected that the proposed rate structure would generate increased revenues from each class as follows:
Long Distance $ 0
WATS 0
Coin 0
Directory Assistance Charging 0
Service Connection Moves &
Changes 25,232,000
Key Telephone 17,939,000
Miscellaneous Equipment 13,534,000
Private Branch Exchange (PBX) 13,641,000
Centrex 10,348,000
Private Line 19,069,000
Touch-Tone (R) (647,000)
Other 5,014,000
Local Gross Receipts Charge 33,728,000
Local Exchange 76,459,000
____________
TOTAL $214,317,000
The Commission determined that Bell was entitled to $124,539,000 in increased revenue and the Commission's rate structure resulted in the following projected increase from each service:
Long Distance $ 0
WATS 0
Coin 0
Directory Assistance Charging 0
Service Connection Moves &
Changes 25,232,000
Key Telephone 17,930,000
Miscellaneous Equipment 13,524,000
Private Branch Exchange (PBX) 6,600,000
Centrex 6,488,000
Private Line 19,078,000
Touch-Tone (R) (647,000)
Other 4,598,000
Local Gross Receipts Charge
Tariffs 31,736,000
Local Exchange 0
____________
TOTAL $124,539,000
The Commission concluded that "[t]he rate design as set out in the Findings of Fact herein is reasonable and is not unreasonably discriminatory, prejudicial, or preferential and shall be adopted by this Order." Finding of Fact 30 discloses the Commission's rate structure and it states in part:
Rate Structure. In general the rate structure proposed by SWB are based on sound ratemaking principles and are compatible with the rate design philosophy adopted by the Commission in earlier cases, and such rate structures are sufficient, equitable, consistent in application to each class of customers, are not unreasonable, preferential, prejudicial, or discriminatory, and will produce the proportionate part of the required revenues to eliminate SWB's revenue deficit. The value of service concept in the telephone industry is a historical concept widely accepted as a proper pattern for rate design and should not be discarded by the Commission without concrete cost data to support such change at this time. The value of service concept contemplates that universal telephone service is desirable and that the basic local residential and business rates should be kept at a minimum level consistent with the concept that the company earn a fair rate of return on its invested capital; therefore, the Commission adopts the residual ratemaking principles proposed by the company except as changed herein.
a. After due consideration of the cost studies submitted by the company, the evidence and testimony of the staff and each of the intervenors, and the impact of rate changes in each class of customers, the Commission finds that the following revenue allocation is reasonable and equitable and will produce $124,539,000 in additional revenues . . ..
In the Commission's proceedings, witnesses for the Commission staff, and intervenors such as TASA testified about Bell's proposed tariff. Among other criticisms of *769 the private line tariff, these witnesses argued that the rates for private line should remain distance sensitive. That is, rather than charge a flat rate for the service, as Bell proposed, Bell should charge a rate based on the distance between the two points being serviced. With regard to this distance sensitive rate, these witnesses stated that rates should be in quarter mile increments and any fraction of a mile should be rounded to the next quarter mile. Witnesses also pointed out that Bell's proposed rates gave Bell the right to realign the boundaries of its serving offices without Commission approval and allowed Bell to offer Type 102 private line service "by either metallic channels or by other means at the telephone company's option." Each of these tariffs and powers affected the private line users, and their witnesses testified that Bell should not be given these options. As a result the Commission required the following changes in the tariff:
g. The private line tariff proposed by the company shall be adopted with the following exceptions:
(1) The charge for a local channel between the serving office and the customer facility shall not be flat-rated as proposed in the tariff but instead shall be distance-sensitive. The rate shall be applied in quarter mile increments and the specific charge per increment should be determined by SWB with the approval of the Commission. These rates should generate an amount of revenue equal to that generated by the flat rates proposed by the company.
(2) SWB shall not be allowed to consider fractional miles as full miles in determining the distance between any two serving offices. The company shall revise the proposed tariff to allow for the rounding of mileage calculations to the next highest quarter mile.
(3) It is in the public interest that prior to realigning the boundaries of serving offices, SWB shall notify the Commission at least sixty (60) days in advance of such realignment. The Commission staff shall have the option of requesting a public hearing on such realignments, at which the Commission may approve or disapprove such. If no objection is indicated by the staff within twenty (20) days after the proposed realignment is reported, no hearing or Commission order shall be deemed necessary.
(4) The company's proposed tariff states that Type 102 service "may be implemented by either metallic channels or by other means at the telephone company's option." While realizing the economic necessity for SWB to add or convert to carrier facilities, the Commission also recognizes the customers' need for an adequate planning horizon. SWB shall make available, at the Commission, information concerning the availability of facilities and shall notify customers for such services at least one year in advance of those facilities not being available.
Public utility regulation is a legislative function. Railroad Comm'n v. Houston Natural Gas Corp., 155 Tex. 502, 289 S.W.2d 559 (1956). In 1975, the Texas Legislature passed the Public Utility Regulatory Act.[3] That Act created the Public Utility Commission and authorized the Commission to "fix and regulate rates of public utilities, including rules and regulations for determining the classification of customers and services and for determining the applicability of rates." PURA § 37.
The Attorney General argues that rate making is a legislative function and the Legislature has delegated that function to the Public Utility Commission. It is contended that the Commission has wide discretion when setting rates and is not required to accept a particular method of rate design. And, finally, the Attorney General argues that the rate structure in this case is supported by cost studies, by the universal *770 service concept and by the value of service principle.
Bell also argues that the Commission has discretion in setting rates and contends that because pricing involves many subjective factors and requires a judgmental decision, the Commission is given broad discretion that allows it to consider universal service objectives, value of service concepts, and residual rate making practices. In addition to those concepts, Bell emphasizes that the Commission's increase in private line rates is justified by cost studies that show that private line service is unprofitable.
The universal service objective, value of service principle, and residual pricing method advocated by the Attorney General and Bell are historic concepts that the Commission recognized as support for its conclusions. The universal service objective originated in the Communications Act of 1934. 47 U.S.C. § 151 et seq.[4] Related to this objective is the residual pricing policy and the value of service principle. Basically, the universal service objective is founded on the concept that all subscribers to a telephone company's basic service network benefit when another person joins that network. Therefore, the entire network is more valuable because of the addition of the new subscriber. This universal service objective is achieved by residual pricing. Once an overall revenue increase is approved for the telephone utility, the revenue requirement will be distributed among the various services in a rate structure. Each service will absorb a part of the revenue increase; however, to insure that many persons will use the basic service, the rates for basic service are kept lower. This is accomplished by distributing as much of the revenue increase as possible to non-basic services before increasing the rates for basic service. Therefore, the basic rates are increased only by the residual amount. The value of service principle is related to the universal service objective because that principle determines where a majority of a revenue increase is distributed in the rate structure. Those services that have the most inelastic demand (least sensitive to price changes) will absorb most of the revenue increase. Therefore, the consumers who place a higher value on telephone service will absorb more of the increase. Because these inelastic demand services absorb most of the revenue increase, the basic services can remain at a lower price thus furthering the universal service objective. The economic theory behind these concepts are explained by Professor John T. Wenders who testified in the Public Utility Commission's hearings below.
Finally, prices should depart from marginal cost for those services that confer benefits which do not pass via an exchange process. The nature of these so-called external benefits can be seen in the following way. Suppose someone is trying to decide whether or not he should become a subscriber to the telephone network. Presumably he will make his decision by weighing the costs and benefits to him of having a telephone. However, one important element in this decision will be missing in his decision process, since not all the benefits of his having a telephone will accrue to him. Specifically, the whole telephone network will become more valuable to any subscriber the more subscribers there are on that network. When a subscriber comes on the network, he makes the whole network somewhat more valuable to all others on the network they benefit from the presence of an additional subscriber. Thus, not all of the social benefits of being on the telephone network will be weighed by the individual subscriber in deciding whether or not to join the network, and some may decide not to join because the costs exceed the benefits to them, when in fact the total benefits, including the benefits that flow to others, may exceed *771 the costs. The way to correct for this possible distortion is to lower (or subsidize) the access price below marginal cost to account for the external benefit of having a new subscriber on the telephone network. This is the economic reason for the universal service objectives which most telephone companies achieve by residual pricing.
Against this, TASA argues that all rates must be just, reasonable, and not unreasonably discriminatory, and that the Commission is required by statute to ascertain the cost of each service and the adjusted value of invested capital used in providing each service. Accordingly, TASA argues that rate structures are governed by PURA § 40(a) which states:
The regulatory authority shall not prescribe any rate which will yield more than a fair return upon the adjusted value of the invested capital used and useful in rendering service to the public.
PURA § 40(a). TASA contends that the Commission must determine the return on adjusted value of invested capital used in rendering each service for which a rate is charged. TASA's argument would thus require Bell and the Commission to compute the adjusted value of invested capital used in each particular service.[5] We disagree.[6]
This Court has previously rejected a similar argument in Railroad Commission v. Weld & Neville, 96 Tex. 394, 73 S.W. 529 (1903). In Weld & Neville, the plaintiffs alleged that railroad freight rates were discriminatory. The plaintiffs baled cotton using the "Lowry" system which compressed cotton more densely than other methods of baling. The plaintiffs argued that due to the Lowry system, a railroad could ship more Lowry bales per car than other bales; therefore, the railroads derived greater profits by shipping Lowry bales and thus discriminated against users of the Lowry system. This Court rejected that argument and said,
In truth, if such a rule was adopted as that proposed by the plaintiffs in this case, the commission's work could not possibly be sustained in any court, for it might, by comparison between rates on different articles, and by showing a difference in profits derived from the transportation of one over the other, destroy any schedule of rates that could be prepared.
73 S.W. at 534. See also, Caldwell v. City of Abilene, 260 S.W.2d 712 (Tex.Civ.App. 1953, writ ref'd), where the court held that *772 rates were not required to be based on costs.
TASA, like Weld & Neville, would require a comparison of profits and rates of return between services. This would deprive the Commission of much needed discretion. To determine the rate of return for each service, Bell would need to determine the expenses of each service and determine the adjusted value of property used in each service. Such a proposal assumes the existence of a structured world with only black and white and no gray. TASA's proposal assumes that an invariable, inflexible system of accounting exists and that the adjusted value of property could be allocated in an unquestionably uniform manner. However, in reality TASA's system would require arbitrary allocations based on a multitude of assumptions. Such assumptions would be subjective and not universally accepted. The proposal would yield no more accurate results than other less costly means.[7]
In designing a rate structure, the relevant section of PURA is § 38 which states in part:
It shall be the duty of the regulatory authority to insure that every rate made, demanded, or received by any public utility, or by any two or more public utilities jointly, shall be just and reasonable. Rates shall not be unreasonably preferential, prejudicial, or discriminatory, but shall be sufficient, equitable, and consistent in application to each class of consumers.
PURA § 38. In general, § 38 requires rate structures to be just, reasonable, and not unreasonably discriminatory. This broad standard allows the Public Utility Commission discretion to determine the method of rate design. It also gives the Commission the discretion to consider factors other than cost and adjusted values of property. Rate design is a complex problem that involves many factors. In Caldwell v. City of Abilene, supra, the court rejected the argument that discrimination in rates must be based on cost. The court recognized that rate classifications could be based on factors as "the cost of service, the purpose for which the service or product is received, the quantity or amount received, the different character of the service furnished, the time of its use or any other matter which presents a substantial difference as a ground of distinction." Id. at 714. In Ford v. Rio Grande Valley Gas Co., 141 Tex. 525, 174 S.W.2d 479 (1943), the Court recognized quantity used, time of use, manner of service, and cost as factors. In Texas Power and Light v. Doering Hotel Co., 147 S.W.2d 897 (Tex.Civ.App.1941) aff'd 139 Tex. 351, 162 S.W.2d 938 (1942), the Court cited other factors such as "similarity, from the standpoint of the utility, of the service rendered, such, for example, as the volume of the current required, the cost to the company furnishing it, when the peak of the load occurs, the constancy and regularity of the use made by the consumer, and other similar circumstances." Id. at 902.[8] Each of these factors, including value of service[9] are proper for Commission consideration.
*773 Although we hold that the Commission has discretion to determine the factors relevant to rate design, including the three historic concepts discussed above, there are two overriding considerations. The first consideration is consistency. Bell continually comes before the Commission for rate increases. There are many factors to consider and different factors can yield different results. Therefore, the Commission should take caution not to allow a utility to arbitrarily alter factors considered relevant. Utilities are to be consistent in their applications and may not, without supporting evidence, vary their mathematical formulas or relevant factors so as to fit their alleged needs.[10] The second overriding consideration is the burden of proof which is placed on the the utility by § 40(b). We have previously recognized Bell's size and how it creates an "aura of self-evaluation" in Commission proceedings. State v. Southwestern Bell Telephone Co., 526 S.W.2d 526, 532 (Tex.1975). We also recognize that Bell has the data and expertise required to design rate structures. Therefore, to justify their rate structure, Bell must present its data and produce additional information that is reasonably requested by the Commission or intervenors. In summary, the Commission has discretion to determine relevant factors in a rate design problem; those factors must address whether the resulting rate structure is just, reasonable, and not unreasonably discriminatory; the utility must be consistent in proceedings; and the burden of proof of the utility includes the obligation to produce relevant information.
The judgment of the District Court is affirmed.
GARWOOD, J., not sitting.
NOTES
[1] The petition was a part of a rate filing package that consisted of a statement of intent, of proposed revised tariffs, and of prefiled testimony and exhibits which supported Bell's position.
[2] The distribution of the revenue requirements among the various services is called rate design. Ordinarily a utility will determine its overall revenue requirements and will then set the tariff or price for each class at a level which will achieve a fraction of the revenue requirements. The resulting price schedule is called the rate structure or rate schedule. The rate structure as a whole is intended to produce the overall revenue requirements of the utility. See Garfield and Lovejoy, Public Utility Economics at 45 (1964); Rate Design, 28 Baylor L.Rev. 1083 (1976).
[3] Tex.Rev.Civ.Stat.Ann. art. 1446c (herein referred to as PURA). Unless otherwise noted, citations to sections are to PURA sections.
[4] 47 U.S.C. § 151 states in part.
"For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, ..."
[5] Section 40(a) refers to the adjusted value of invested capital. Section 41 defines adjusted value of invested capital as follows:
(a) Adjusted Value of Invested Capital. Utility rates shall be based upon the adjusted value of property used by and useful to the public utility in providing service including where necessary to the financial integrity of the utility construction work in progress at cost as recorded on the books of the utility. The adjusted value of such property shall be a reasonable balance between original cost less depreciation and current cost less an adjustment for both present age and condition. The regulatory authority shall have the discretion to determine a reasonable balance that reflects not less than 60% nor more than 75% original cost, that is, the actual money cost, or the actual money value of any consideration paid other than money, of the property at the time it shall have been dedicated to public use, whether by the utility which is the present owner or by a predecessor, less depreciation, and not less than 25% nor more than 40% current cost less an adjustment for both present age and condition. The regulatory authority may consider inflation, deflation, quality of service being provided, the growth rate of the service area, and the need for the public utility to attract new capital in determining a reasonable balance.
[6] Although § 40 states that "[t]he regulatory authority shall not prescribe any rate ..." (emphasis added), § 40 refers to the overall rate and not to rate structures. The language in § 40 was once in article 1119. 1931 Tex.Gen. Laws, ch. 226, at 380. Article 1119 stated in part, "[t]he governing body shall not prescribe any rate or compensation which will yield more than a fair return upon the fair value of the property used and useful in rendering its service ...." (Emphasis added.) (Article 1119 was repealed by PURA.) Article 1119 authorized General Law Cities to regulate utilities within their borders; however, it did not prohibit the cities from classifying customers and charging different rates to each class, nor did it require that rate schedules be based on profit. See City of Wink v. Wink Gas Co., 115 S.W.2d 973 (Tex.Civ.App.1938, writ ref'd).
[7] The accounting procedures required by TASA would also cost more and such costs would be passed to consumers. This is a factor that the Commission should consider. See General Telephone Co. of S. W. v. City of Garland, 509 S.W.2d 927, 931 (Tex.Civ.App.1974, writ ref'd n. r. e.). See generally, Bonbright, Principles of Public Utility Rates at 296-301 (1961).
[8] Because each utility industry may have a unique characteristic that requires other factors to be given more weight, these factors may vary from one utility industry to another. In Ford, a gas utility was involved and cost was cited as a principle factor. The telephone industry is different because of the universal service objective, therefore, cost may not be the overriding factor in that industry. These various considerations illustrate the need for Commission discretion.
[9] The Wisconsin Public Service Commission recognized the value of service principle as long ago as 1937. In Re: Wisconsin Telephone Co., 22 PUR 220 (Wis.Pub.Serv. Comm'n, 1937), value of service justified a decrease in rural telephone rates and the Commission stated, "[t]he value of service must be considered as well as the cost of service. Under some circumstances, indeed, and perhaps especially in rural telephone service, the value of the service may be entitled to more weight than an estimate of the cost of service which necessarily involves many allocations on a more or less arbitrary basis. This has consistently been recognized by both utility managements and by Commissions as applying notably to differentials in rates for various classes of telephone service. It must be remembered that telephone service involves communication between two persons and if the opportunities for talking with the desired persons are limited, the service becomes less valuable." Id. at 221.
[10] We note that the Commission ordered Bell to "track" the rates which are based on long range incremental analysis. Such an order will require consistency in Bell's mathematical formula and we approve this requirement. The suggestion that these rates be tracked was made by a witness for the Commission staff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624228/ | 603 S.W.2d 918 (1980)
HUMANA, INC., Appellant,
v.
John FAIRCHILD, Appellee.
Court of Appeals of Kentucky.
February 29, 1980.
Rehearing Denied April 25, 1980.
Discretionary Review Denied September 16, 1980.
*919 Frank P. Doheny, Jr., Bradley R. Hume, Woodward, Hobson & Fulton, Louisville, Ky., for appellant.
Charles W. Brooks, Jr., Louisville, Ky., for appellee.
Before COOPER, GUDGEL and LESTER, JJ.
COOPER, Judge.
This is an appeal from a judgment for the appellee/employee against the appellant/employer in an action for breach of contract. The issues are whether the evidence warranted such a finding, and whether the trial court committed numerous errors prejudicial to the appellant.
In September of 1975, the appellee, John Fairchild, entered into an agreement with the appellant, Humana, Inc., whereby he was to act as director of personnel at St. Joseph's Infirmary, a hospital owned and operated by the appellant. Under the agreement, the appellee was to begin working for the appellant on October 6, 1975. The exact nature of the contract, whether it was a contract for a fixed term of one year or a contract terminable at will, is disputed by the parties. On January 6, 1976, the appellant asked the appellee to resign. Again, the evidence is disputed as to whether such resignation was voluntary or procured under duress. Such is the substantive basis for the appellee's action against the appellant.
Specifically, he alleged that his contract with the appellant was for a fixed term of one year, and the actions of the appellant clearly breached the contract. Furthermore, he alleged that his resignation was not voluntary, but procured under duress. This action was tried and judgment entered by the trial court pursuant to a jury verdict on November 21, 1978. The appellant was found to have breached the contract and damages were awarded to the appellee. It is from this judgment that the appellant appeals.
Firstly, the appellant argues that the evidence failed to show that a contract for a *920 fixed term was entered into. In effect, it argues that the contract was terminable at will by either side. The only written evidence pertaining to the contract's existence was a letter of September 25, 1975, to the appellee from an agent for the appellant setting forth various conditions and terms of the contract. The letter stated, in part, that the appellee's salary was to be $18,500 per annum. Notwithstanding the ruling of the Court of Appeals in Putnam v. Producers' Live Stock Marketing Ass'n, 256 Ky. 196, 75 S.W.2d 1075 (1934), the appellant argues that stating a salary in terms of a specific amount "per year" or "per annum" should not raise the presumption that a one year contract has been entered into. Effectively, it urges this Court to overrule Putnam. We reject this argument, finding it unnecessary to reach the question of whether Putnam is valid in the light of modern employment practice.
Here, there was no instruction on the part of the trial court that a salary stated in terms of an amount per year or per annum would raise a presumption that a one year contract existed. On the contrary, there was ample evidence presented that an oral agreement had been reached between the appellee and the appellant's agent that there was to be a definite one year contract with a specified amount. Part of this evidence was the fact that the appellee had rejected an offer at the last minute from another corporation to assume his position with the appellant. It seems highly unlikely that the appellee would have been induced to reject a previous offer had not the appellant's offer included at least a one year commitment. Such is the substance of the appellee's testimony. Consequently, there was sufficient evidence for the trier of fact, here the jury, to believe that the contract entered into was for the fixed term of one year.
Secondly, the appellant argues that the appellee's resignation was voluntary. It contends that the hospital administrator's threat made to the appellee to the effect that if he did not resign he would be fired was not duress as a matter of law. It relies on the ruling of the Court of Appeals in Redmon v. McDaniel, Ky., 540 S.W.2d 870 (1976). Specifically, it cites the language that in the area of contractual agreement "it is not duress to threaten to do what one has a legal right to do, nor is it duress to threaten to take any measure authorized by law and the circumstances of the case." Id. at 872.
Admittedly, a mere threat by an employer to fire an employee unless the employee resigns is not, on its face, duress. Here however, the appellee testified that more than a mere threat was involved: he testified the hospital's administrator informed him that if he did not resign, bad references would be given to any future employer. Appellant denies that such statements were made. Therefore, this was a question of fact for the jury. Assuming the truthfulness of the appellee's stated facts, the Redmon case is clearly distinguishable. There, Redmon wrote the resignation letter and submitted it to his employer. He sought to resign rather than be fired in light of his own admission of misconduct. The only threat was to fire Redmon if he did not resign. Here, the duress did not arise from the threat to fire the appellee, but rather arose from the threat to furnish bad references. The substance of the testimony indicated the appellee was anything but an incompetent or "bad" employee. On the contrary, there was substantial evidence that the appellee was perhaps too efficient and too competent for his superiors.
The appellant argues that if such threats were made, the appellee should have refused to resign and sought an adequate remedy at law. Ordinarily, a threat to breach a contract does not constitute duress unless there is no adequate remedy at law. See 25 Am.Jur.2d, Duress and Undue Influence, § 19. Here, there was substantial evidence that had the appellee refused to resign, he would have suffered irreparable harm. The evidence established that even with his resignation and the threat of bad references removed, the appellee had extreme difficulty in securing *921 another job. Whether duress was involved in the appellee's resignation was a question of fact to be determined by the jury. For although the Redmon, supra, decision establishes the principle that a mere threat to exercise a legal right is neither duress nor coercion, it also further establishes the principle that such a threat must be made in good faith. The Redmon court defined a threat made in good faith as one "made in the honest belief that valid grounds exist to justify the action threatened." Redmon, supra, at p. 872. Accordingly, the jury had the right to determine whether the alleged threats made by the hospital's administrator were made in good or bad faith.
The remaining issues raised by the appellant relate to numerous rulings by the trial court during the trial and at the submission of the case to the jury. Firstly, the appellant argues that it was prejudicial error for the trial court to allow the jury to rehear a part of the appellee's direct testimony concerning the oral statements and agreements entered into regarding the length and terms of his employment. Appellant's argument is twofold: it contends that if such direct testimony were replayed for the jury, then the court was obligated to play the cross-examination testimony as well.
Secondly, appellant argues that as KRS 29.304 was repealed by the legislature effective January 2, 1978, the trial court had no authority to replay any portion of the testimony for the jury. With respect to the second argument, it is axiomatic to state that absent a statute forbidding such action, it is within the discretion of the court to permit such rereading of testimony. Evidently, KRS 29.304 codified the existing common law rule giving the trial court such discretion. In re-enacting Chapter 29 as 29A, the legislature evidently neglected to re-enact 29.304. This was apparently in anticipation of the Supreme Court of Kentucky promulgating rules regarding the rereading of testimony. In any event, we feel the trial court had sufficient authority under the common law to allow such rereading, even in the absence of a specific statute. See 76 Am.Jur.2d, Trial, § 1042; also see Jarvis v. Commonwealth, 245 Ky. 790, 54 S.W.2d 307 (1932). Appellant argues that the refusal of the trial court to allow the rereading of the cross-examination testimony unduly prejudiced it since such testimony revealed a conflict in the appellee's testimony. We reject such an argument. Taken as a whole and in context, we find no evidence of any conflict. More significantly, the jury did not request a rereading of the cross-examination. To require it to hear such testimony would be clearly prejudicial to the appellee's interest, as there would be an undue emphasis placed upon it by the trial court. Consequently, the trial court acted correctly.
The remaining issues raised by the appellant will be briefly touched on. Appellant argues that the trial court erred in refusing to allow testimony relating to the nature of employment contracts between itself and other employees. The unusual facts surrounding the appellee's employment, specifically the fact that he had rejected one job offer to accept employment with the appellant, makes his employment contract unique. The evidence presented establishes the fact that the appellee felt himself to be in a unique bargaining position vis-a-vis the appellant. Accordingly, he demanded a specific salary as well as a contract for a fixed term of one year. Therefore, we see no prejudice in the trial court's actions. Clearly, the appellee was in a unique situation. Evidence relating to other contracts would have been irrelevant and confusing.
Appellant further argues that it was prejudicial error for the trial court to refuse to require the appellee to answer interrogatories with respect to the name and place of his current employer. It contends that such information, if not admissible as evidence, would lead to the discovery of other admissible evidence under CR 26.02(1). The trial court rejected this argument as does this Court. The appellee and the appellant stipulated that the question of damages would only relate to the time the appellant had left his employ with the appellant until he had secured another job. *922 There was no question of punitive damages or damages relating to the appellee's reputation. There was only a question of compensatory damages. Therefore, the trial court acted correctly in not requiring the appellee to answer such interrogatories as this would have been an invasion of his privacy. Where the appellee currently works is irrelevant. It has been a long-recognized principle, with regard to discovery proceedings, that such proceedings must be kept within reasonable bounds and restricted to questions having substantial and material relevancy. Carpenter v. Wells, Ky., 358 S.W.2d 524 (1962).
Finally, appellant argues that in its instructions to the jury, the trial court erred in failing to define "contract terminable at will" and "good cause." We reject both arguments on their face. A review of this portion of the trial court's instructions reveals no evidence of ambiguity or lack of intelligibility. On the contrary, such instructions were clear and intelligible. In any event, as is argued by the appellee, the trial court's function herein is only to set forth the essentials for the jury. It is the respective counsel's duty to see to it that the jury clearly understands what such instructions mean, or do not mean. See Collins v. Galbraith, Ky., 494 S.W.2d 527 (1973). Accordingly, we find that the trial court did not err in this area.
As a court of judicial review, this Court cannot substitute its judgment for that of a jury. The evidence was conflicting as to the facts, yet the jury chose to believe the appellee and return a judgment for him. We find no error in any of the issues raised by the appellant.
Accordingly, the judgment of the trial court is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624239/ | 15 So. 3d 790 (2009)
John F. KRAMER, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-2015.
District Court of Appeal of Florida, Fifth District.
July 17, 2009.
*791 James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
EVANDER, J.
Kramer appeals from his conviction for tampering with physical evidence,[1] and resisting without violence.[2] He contends that the State's evidence failed to establish that he was aware that a law enforcement investigation was about to commence when he allegedly swallowed a piece of crack cocaine. We find it unnecessary to address this issue because the trial court should have granted Kramer's motion for judgment of acquittal where the arresting officer's testimony established: 1) that the State's evidence was obtained as the result of an unlawful investigatory stop; and 2) that the officer was not engaged in a lawful duty at the time of Kramer's alleged resistance.
The State's only witness was Deputy Dan Lyons. Lyons testified that on the evening in question, he was on patrol in a "well-known and well-documented drug area" when he observed Kramer walking on the side of the road. Lyons told Kramer he wanted to talk to him. Kramer was "actively chewing, ..., like he was chewing gum or something to that effect." Subsequently, Lyons asked Kramer if he could look in Kramer's mouth to see what Kramer was chewing. According to Lyons, Kramer did not respond, but continued chewing. Deputy Lyons then instructed Kramer "just show me what you are chewing on." Kramer partially opened his mouth and Lyons observed an "off-white, rock-like substance ... and then there's like a white paste on his tongue." Lyons believed the white substance was crack cocaine. He ordered Kramer to spit it out while trying unsuccessfully to prevent Kramer from swallowing the substance. Kramer was then arrested. Throughout the deputy's testimony, defense counsel objected on the grounds that Lyon's observations of the substance in Kramer's mouth were the result of an illegal search and seizure. He again raised this issue in support of his motion for judgment of acquittal.
The initial contact between Lyons and Kramer constituted a consensual encounter. However, when Deputy Lyons ordered Kramer to open his mouth, the consensual encounter was transformed into an investigatory stop. See Popple v. State, 626 So. 2d 185 (Fla.1993); Parsons v. State, 825 So. 2d 406 (Fla. 2d DCA 2002). To justify an investigatory stop of a citizen *792 the officer must have a reasonable suspicion that the individual has committed, is committing, or is about to commit a crime. Popple, 626 So.2d at 186. Kramer's mere act of "actively chewing," while walking late at night in a high-crime area, did not give Deputy Lyons a reasonable suspicion to believe that Kramer was engaged in criminal activity.
We acknowledge that this issue was not raised on appeal.[3] However, ineffective assistance of appellate counsel may be considered during direct appellate proceedings where the ineffectiveness is apparent on the face of the record, and it would be a waste of judicial resources to require the trial court to address the issue. Sims v. State, 998 So. 2d 494 (Fla.2008).
Defendant's convictions are hereby REVERSED.
ORFINGER and COHEN JJ., concur.
NOTES
[1] § 918.13(1)(a), Fla. Stat. (2008).
[2] § 843.02, Fla. Stat. (2008).
[3] The State was afforded the opportunity to file a supplemental brief addressing the Fourth Amendment issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624237/ | 211 Wis. 2d 1 (1997)
564 N.W.2d 712
John S. BERGMANN, Petitioner-Respondent,
v.
Gary R. MCCAUGHTRY, Respondent-Appellant-Petitioner.
No. 95-2108.
Supreme Court of Wisconsin.
Oral argument May 30, 1997.
Decided June 20, 1997.
*2 For the respondent-appellant-petitioner the cause was argued by Charles D. Hoornstra, assistant attorney general with whom on the briefs was James E. Doyle, attorney general.
*3 For the petitioner-respondent there was a brief and oral argument by Howard B. Eisenberg, Milwaukee.
¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.
This is a review of an unpublished decision of the court of appeals affirming an order of the Circuit Court for Dodge County, Joseph E. Schultz, Reserve Judge.[1] The circuit court vacated the prison disciplinary findings of four major conduct violations by John S. Bergmann, an inmate at the Waupun Correctional Institution, unless the Department of Corrections (the Department) could show that written notice was given Bergmann as required by Wis. Adm. Code § DOC 303.81 (June, 1994).[2] The court of appeals concluded that the Department was required to provide Bergmann with notice of the disciplinary hearing as required by § DOC 303.81. The Department conceded in this court that no such notice was given. Because the Department failed to provide Bergmann with written notice of the disciplinary hearing in compliance with department regulation § DOC 303.81, we affirm the decision of the court of appeals; the prison disciplinary findings are therefore vacated.
*4 I.
¶ 2. The facts are not in dispute for purposes of this review. Department staff at Waupun Correctional Institution alleged that Bergmann violated previous direct orders of the Department by attempting to communicate with his young son.[3] Four violations were alleged.
¶ 3. On May 9, 1994, Bergmann was notified of the first allegation and the fact of an upcoming disciplinary hearing by a "NOTICE OF MAJOR DISCIPLINARY HEARING RIGHTS AND WAIVER OF MAJOR HEARING AND WAIVER OF TIME" (Form DOC-71, hereafter "notice of hearing rights") and an "ADULT CONDUCT REPORT" (Form DOC-9, hereafter "conduct report"). With regard to the time of the upcoming hearing, the notice of hearing rights notified Bergmann as follows: "The Hearing Officer or designee will notify you and your staff advocate of the date, time and place of the hearing. The hearing shall be held not sooner than 2 days and not more than 21 days after the date you were given a copy of the above referenced conduct report." Bergmann signed the notice of hearing rights, indicating that he had read and understood his hearing rights; he did not sign the waiver of a formal hearing or of the time limits for a hearing.
¶ 4. On May 10 Bergmann requested in writing that the hearing on the first conduct report be held on May 26, as he needed time to obtain an affidavit from a *5 person outside the prison. On May 18 Bergmann received three sets of notices of hearing rights and conduct reports, one for each of the other three alleged violations.
¶ 5. Bergmann received no other written notice of a hearing or hearings. On May 26 an adjustment committee held a hearing on all four violations. The record indicates that Bergmann did not attend the hearing.[4] Bergmann was found guilty of each of the violations. The Department affirmed the determinations of guilt.
¶ 6. On certiorari review the circuit court held that the Department had not furnished Bergmann with notice of the hearing as required by § DOC 303.81(9). Accordingly, the circuit court remanded to the adjustment committee to supplement the record to show compliance with § DOC 303.81(9), if possible. The circuit court further ruled that were the committee unable to show compliance, the decision of the committee would be vacated. The Department made no submission supplementing the record. Rather, the Department appealed the circuit court's decision and order to the court of appeals.
¶ 7. The court of appeals affirmed the order of the circuit court, concluding that the circuit court properly ruled that the Department had failed to give Bergmann the notice required by § DOC 303.81(9). The court of appeals concluded that "the notice of the hearing must also inform the inmate which charges will be heard at the specified time." Bergmann v. McCaughtry, No. 95-2108, unpublished slip op. at 4 (Wis. Ct. App. Dec. 12, 1996).
*6 II.
¶ 8. A single issue was raised by the Department in its petition for review: Did the Department comply with the notice requirement of Wis. Admin. Code § DOC 303.81(9)? Bergmann raised an additional issue in his brief to the court: If the Department complied with the notice regulation, does the notice regulation provide due process of law? Because our resolution of the first issue is dispositive, we need not and do not address the second, constitutional issue.
¶ 9. It is undisputed by the parties, and we agree, that the notices of hearing rights and conduct reports which Bergmann received (Forms DOC-71 and DOC-9) complied with § DOC 303.76.[5] We must determine whether an inmate is entitled to a second written notice by virtue of § DOC 303.81. Sections DOC 303.81(7) and DOC 303.81(9) provide in relevant part as follows:
DOC 303.81 Due process hearing: witnesses.
....
*7 (7) After determining which witnesses will be called for the accused, the hearing officer shall notify the inmate of the decision in writing and schedule a time for a hearing when [witnesses and others] can be present....
....
(9) The hearing officer shall prepare notice of the hearing and give it to the accused, the advocate for the accused (if any), the committee and all witnesses, including the staff member who wrote the conduct report.
[1]
¶ 10. The Department's counsel, in response to questions at oral argument, conceded that the regulations require that two written notices be given to an inmateone under § DOC 303.76 and the other under § DOC 303.81. Interpretation of a regulation is a question of law. Grohmann v. Grohmann, 189 Wis. 2d 532, 535-36, 525 N.W.2d 261 (1995). A party's concession of law does not bind the court. Fletcher v. Eagle River Mem'l Hosp., Inc., 156 Wis. 2d 165, 168, 456 N.W.2d 788 (1990) (only concessions of fact, not law, are proper subject of judicial admissions).
[2]
¶ 11. In this case, the concession is by an attorney representing the agency that promulgated the regulations being interpreted. The court ordinarily accords deference to a state agency's interpretation and application of its own administrative regulations unless the interpretation is inconsistent with the language of the regulation or is clearly erroneous.[6] The *8 record in the present case indicates no settled department interpretation of the regulations at issue. Moreover, the commentary to the regulations sheds no light on the question before the court.[7] In any event, we need not decide whether counsel's concession becomes an administrative interpretation to which we might give deference. Our independent analysis, benefiting from the analyses of the circuit court and court of appeals, leads us to agree with the Department's counsel, and Bergmann, that a second written notice is required under § DOC 303.81.
¶ 12. The text of the regulations requires a second written notice after the written notice under § DOC 303.76 is given. Section DOC 303.76(3) specifies that "[a] due process hearing shall be held no sooner than 2 working days or later than 21 days after the inmate receives a copy of the conduct report and hearing notice." Section DOC 303.81(7) requires that "[a]fter determining which witnesses will be called for the accused, the hearing officer shall notify the inmate of the decision in writing and schedule a time for a hearing...." Section DOC 303.81(9) requires that "[t]he hearing officer shall prepare notice of the hearing and give it to the accused...." These three subsections, when read together, require that written *9 notice of the hearing be given to the accused after the initial notice under § DOC 303.76 is given.
[3]
¶ 13. We agree with the parties that the notice of hearing rights (Form DOC-71) does not supply the notice required by DOC § 303.81; it supplies the notice required by DOC § 303.76. Nor does Form DOC-71 meet the requirements for a notice under DOC § 303.81. The notice required under DOC § 303.81 is to come from a hearing officer; Form DOC-71 is signed by a correctional officer, not a hearing officer. Furthermore, Form DOC-71 cannot comply with the § DOC 303.81(9) requirement that notice be given to the staff advocate, the committee and all witnesses. When Form DOC-71 is given to the inmate, an advocate has not yet been appointed, the witnesses are unknown and even the committee members may not be known. We therefore conclude that Form DOC-71 was meant to comply with § DOC 303.76, not with the notice of hearing requirement in § DOC 303.81.
[4]
¶ 14. The parties agree that only one written notice was given to Bergmann and that the second written notice required by § DOC 303.81 was never provided to him. This defect in notice of proceedings was never rectified and the Department's failure to comply with its own regulations providing a basic procedural right such as notice invalidates the proceedings conducted in the present case.
¶ 15. Our inquiry, for purposes of this case, ends here. We need not, and do not, address other issues involving the second written notice, such as what information the second written notice must contain. The Department explained at oral argument that its primary objective in bringing this case to this court was to *10 clarify the court of appeals' language that "the notice of the hearing must also inform the inmate which charges will be heard at the specified time." Bergmann, unpublished slip op. at 4 (emphasis added). This sentence in the court of appeals decision was apparently intended to paraphrase language in Irby v. Macht, 184 Wis. 2d 831, 845, 522 N.W.2d 9, cert. denied, 513 U.S. 1022 (1994), which cited § DOC 303.81(9) as providing that "inmates must be given notice of the hearing's time." Irby, 184 Wis. 2d at 845, quoted in Bergmann, op. at 4 (emphasis added by court of appeals).
¶ 16. The Department has not made clear the basis for its dissatisfaction with Irby or with the court of appeals decision in Bergmann relying on Irby. The Department appears to view these decisions as requiring it to provide inmates with notice of the precise hour of the hearing with no allowance for deviation from the specified time. The Department does not explain why it views either the Irby decision or the court of appeals decision in Bergmann as requiring that the precise hour of the hearing be provided or that a postponement for cause, and without prejudice to an inmate's ability to defend against the charges, would not be in compliance with the regulations.[8]
¶ 17. The Department asserts that the written notices need provide no more notice of time than that the hearing will be held no sooner than two and no *11 more than twenty-one days from the time the inmate is given the written conduct report and notice of hearing rights. In short, the Department asks us to reconsider or clarify Irby. We decline to reconsider Irby or to further construe the degree of specificity required by the regulations with regard to notice of the time of the hearing. As Bergmann's brief properly points out, neither inquiry is necessary to a resolution of the controversy presented in this case. The inquiry the Department asks the court to undertake must await a case in which it is squarely presented as the basis for an actual controversy.
[5]
¶ 18. We conclude that Wis. Adm. Code §§ DOC 303.76 and 303.81 require that an inmate be given two written notices of a hearing to adjudicate an allegation of a major conduct violation. Because Bergmann was not given the second written notice, we affirm the decision of the court of appeals. The prison disciplinary findings are vacated.
By the Court.The decision of the court of appeals is affirmed.
NOTES
[1] Bergmann v. McCaughtry, No. 95-2108, unpublished slip op. (Wis. Ct. App. Dec. 12, 1996).
Gary R. McCaughtry is the warden of the Waupun Correctional Institution. Hereafter he will be referred to as the Department.
[2] All references to the administrative code are to the June 1994 publication.
[3] In an unpublished order a federal court had previously ruled that the Department's order not to write his son did not violate Bergmann's First Amendment rights. Bergmann v. McCaughtry, 93-C-0244-C (W.D. Wis., Dec. 27, 1993), aff'd mem., 48 F.3d 1221 (7th Cir. 1995).
[4] The Department asserts that Bergmann declined to attend the hearing; Bergmann does not dispute this assertion.
[5] Section 303.76 provides in relevant part as follows:
DOC 303.76 Hearing procedure for major violations. (1)
NOTICE. When an inmate is alleged to have committed a major violation ... a copy of the approved conduct report shall be given to the inmate within 2 working days after its approval. The conduct report shall inform the inmate of the rules which he or she is alleged to have violated, ... that he or she may exercise the right to a due process hearing ... that if a formal due process hearing is chosen, the inmate may present oral, written, documentary and physical evidence....
....
(3) TIME LIMITS. A due process hearing shall be held no sooner than 2 working days or later than 21 days after the inmate receives a copy of the conduct report and hearing notice.
[6] Pfeiffer v. Board of Regents, 110 Wis. 2d 146, 154-55, 328 N.W.2d 279 (1983); Beal v. First Fed. Sav. & Loan Ass'n of Madison, 90 Wis. 2d 171, 182-83, 279 N.W.2d 693 (1979).
[7] Bergmann argues that the statement in the notice of hearing rights that "[t]he Hearing Officer or designee will notify you and your staff advocate of the date, time and place of the hearing," provides a conclusive department interpretation of § DOC 303.81 and as such is entitled to deference by a reviewing court. Because we conclude that even on an independent review of the regulations and this record Bergmann's interpretation is correct, we decline to consider whether a department form notice may be considered an agency interpretation of its regulation which may be entitled to deference.
[8] Both parties call the court's attention to Saenz v. Murphy, 153 Wis. 2d 660, 451 N.W.2d 780 (Ct. App. 1989), reversed on other grounds, 162 Wis. 2d 54, 469 N.W.2d 611 (1991). The effect of a court of appeals decision that has been reviewed by the court and resolved on a different issue has not been definitively answered. In any event, the court of appeals did not consider in Saenz the issue which forms the basis of the decision in the present case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624261/ | 522 So. 2d 69 (1988)
Charles R. POWELL, Appellant,
v.
RIVER RANCH PROPERTY OWNERS ASSOCIATION, INC., and William J. Page, Appellees.
No. 87-1188.
District Court of Appeal of Florida, Second District.
February 19, 1988.
Rehearing Denied March 24, 1988.
*70 David A. Monaco of Cobb & Cole, Daytona Beach, for appellant.
John W. Frost, II and Loula M. Fuller of Frost & Purcell, P.A., Bartow, for Appellee River Ranch Property Owners Ass'n, Inc.
No appearance by William J. Page.
HALL, Judge.
The appellant, Charles R. Powell, seeks review of an order of the circuit court dismissing with prejudice the class action counts of his amended complaint.
The appellant contends that the allegations of his amended complaint if taken as true are sufficient to establish the elements necessary under Florida Rule of Civil Procedure 1.220 to maintain a class action. We agree.
Powell alleges that he represents a group of 3200 absentee land owners who own property within an unrecorded subdivision in Polk County, consisting of approximately 55,000 acres. The subject property is known as River Ranch Acres. Powell alleges that the appellee, River Ranch Property Owners Association, consisting of 4000 members, is basically a hunt club open to membership of any property owner of River Ranch Acres and that the appellee has fenced the property, thereby limiting its use to the club members, allowing trespass upon nonmembers' property and denying access to property owners unless they are members of the association.
The appellee contends that a class action suit cannot properly be maintained because the facts involved in each land owner's claim vary with regard to each parcel of property.
Florida Rule of Civil Procedure 1.220 sets forth the prerequisites for maintenance of a class action. That rule was completely revised in 1980 to bring it in line with modern practice and is based on Rule 23 of the Federal Rules of Civil Procedure. We follow the federal construction and application where appropriate. Lingelbach's Bavarian Restaurants, Inc. v. Del Bello, 467 So. 2d 476 (Fla. 2d DCA), review denied, 476 So. 2d 674 (Fla. 1985).
Federal Rule 23 and, by analogy, Florida Rule 1.220, do not require that class certification be denied merely because the claim of one or more class representatives arises in a factual context that varies somewhat from that of other plaintiffs. Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir.1986), cert. denied, ___ U.S. ___, 107 S. Ct. 274, 93 L. Ed. 2d 250 (1986). The court's primary concern in considering the typicality and commonality of claims should be whether the representative's claim arises from the same practice or course of conduct that gave rise to the remaining claims and whether the claims are based on the same legal theory. Morgan v. Laborers Pension Trust Fund for Northern California, 81 F.R.D. 669 (N.D. Cal. 1979); Donaldson v. Pillsbury Co., 554 F.2d 825 (8th Cir.1977), cert. denied, 434 U.S. 856, 98 S. Ct. 177, 54 L. Ed. 2d 128 (1977).
If we take as true the appellant's allegations in his amended complaint, as the trial judge is required to do, we find that those allegations satisfy the prerequisites for maintaining a class action. Therefore, the trial court erred in dismissing the amended complaint with prejudice, and we remand to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
RYDER, A.C.J., and FRANK, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624256/ | 522 So. 2d 1010 (1988)
Emory CURRY, Appellant,
v.
MIAMI DOLPHINS, LTD., INA/Aetna, and Division of Workers' Compensation, Appellees.
No. BR-5.
District Court of Appeal of Florida, First District.
March 30, 1988.
Rehearing Denied April 28, 1988.
Howard L. Silverstein, Miami, for appellant.
Karen M. Gilmartin of Adams, Kelley & Kronenberg, Miami, for appellees.
NIMMONS, Judge.
Claimant appeals from an order denying his claim for wage-loss benefits. We affirm.
Claimant, while working as a custodian at the Orange Bowl Stadium on November 14, 1983, sustained a compensable industrial accident when he slipped on some grease and fell to the floor. Claimant sustained injuries to his head and lower back as well as a hearing loss in his right ear and a loss of his sense of smell and taste. Temporary total disability benefits were paid from November 15, 1983 to March 17, 1984, and wage-loss benefits were paid from March 19, 1984 to June 30, 1984.
Appellant subsequently filed a claim for wage-loss benefits for the period of May through October 1986. In the appealed order, the deputy commissioner denied appellant's claim for wage-loss benefits based upon his findings that the claimant (1) had no permanent physical impairment and (2) had failed to conduct an adequate job search.
In support of his finding of no permanent impairment, the deputy relied solely on the testimony of Dr. Wayne Tobin, an *1011 examining physician. Dr. Tobin, a neurologist, saw the claimant in January, February and March of 1986. Dr. Tobin found no objective evidence to support either a neurological injury or the claimant's complaints of dizziness, back pain and loss of sense of smell and taste. Dr. Tobin opined that the claimant would not be left with a permanent physical impairment and would not be restricted in any way.
Three other physicians, however, testified that claimant would in fact be left with a permanent impairment and these physicians imposed medical restrictions. Dr. Fields, an ear, nose and throat specialist, testified that he saw the claimant once in August 1986. Dr. Fields conducted a hearing test which indicated that the claimant had a hearing loss in the high frequency range. The doctor was not able to rule out a relationship between the hearing loss and the industrial injury. Dr. Fields opined that the claimant was unrestricted, except that the claimant would experience problems with dizziness if he were forced to turn his head around too quickly. It was Dr. Fields' opinion that maximum medical improvement was achieved sometime before he saw claimant and that claimant would be left with a 1% impairment of the whole man strictly for the hearing loss.
Dr. Victor Barredo, an unauthorized neurologist, saw the claimant on five separate occasions between February and October 1986. Dr. Barredo testified that the claimant would be left with an 8 to 10% impairment of the whole man based on the A.M.A. Guides due to the claimant's vertigo problem as well as the loss of his sense of smell and taste. Dr. Barredo restricted the claimant from working as a driver, working around high places or heavy machinery, or working eight hours per day in sunlight or around noise. Claimant was also restricted from lifting above twenty-five pounds. Dr. Barredo indicated that the claimant would not be precluded from returning to his original employment as a custodian, provided it did not involve a lot of heavy lifting.
Dr. Steven Kobetz, claimant's treating physician, also a neurologist, first saw the claimant on November 28, 1983, and last saw him on November 14, 1985. Dr. Kobetz opined that maximum medical improvement was attained on July 9, 1984, with a 5% whole man impairment under the A.M.A. Guides. He restricted the claimant from engaging in any occupation which would require him to do a lot of turning or climbing. Dr. Kobetz, like Dr. Barredo, also restricted claimant from being employed as a driver. Such activities, according to Dr. Kobetz, could precipitate episodes of vertigo.
Appellant maintains that the deputy erred in accepting the testimony of Dr. Tobin over the testimony of the other physicians without setting forth in his order his reasons for doing so. We find that, under the facts of this case, appellant's argument has merit.
It is well established that in the determination of claims for workers' compensation, it is the deputy's function to determine credibility and resolve conflicts in the evidence, and he may accept the testimony of one physician over that of several others. Jefferson Stores, Inc. v. Rosenfeld, 386 So. 2d 865 (Fla. 1st DCA 1980) and S and S Stove Repair, Inc. v. Dumas, 465 So. 2d 644 (Fla. 1st DCA 1985). Moreover, a deputy generally need not explain when he accepts the testimony of one doctor and rejects the testimony of another. Buro v. Dino's Southland Meats, 354 So. 2d 874 (Fla. 1978). Nevertheless, a deputy's discretion in this area is not unbridled. A deputy is still responsible for making "such findings of ultimate material fact upon which he relies, as are sufficient justification to show the basis of an award or a denial of the claim." Pierce v. Piper Aircraft Corporation, 279 So. 2d 281 (Fla. 1973); see also Vargas v. Americana of Bal Harbour, 345 So. 2d 1052 (Fla. 1976). This responsibility is thwarted when the order is "so deficient as to impede review when measured against the record facts." Glades County Sugar Growers v. Gonzales, 388 So. 2d 333 (Fla. 1st DCA 1980). It has therefore been established that the failure to state reasons for accepting one doctor's opinion over others is error where (1) the reason for the finding in the order is *1012 not apparent from the record, or (2) it appears that the deputy commissioner has overlooked or ignored evidence in the record. Allied Parcel Delivery v. Dixon, 466 So. 2d 439 (Fla. 1st DCA 1985); Nicholson v. Sammons Enterprises, Inc., 457 So. 2d 513 (Fla. 1st DCA 1984); Poorman v. Munsey & Bartle Painting, 433 So. 2d 1371 (Fla. 1st DCA 1983); and Rouse v. Wildwood Tropical Nursery, 392 So. 2d 370 (Fla. 1st DCA 1981).
Under the facts of this case, it was necessary for the deputy to explain in his order why he accepted the testimony of Dr. Tobin over the testimony of the other three physicians. While it is apparent from the deputy's final order that he did not overlook or ignore the testimony of the other three physicians, it is not apparent from the record why the deputy accepted Dr. Tobin's testimony over the testimony of the other doctors. There is no indication that Dr. Tobin was more qualified than the other physicians. Moreover, Drs. Barredo and Kobetz, also neurologists, had a longer history of examining the claimant than Dr. Tobin. Dr. Barredo examined claimant on five occasions in 1986. Dr. Kobetz, claimant's treating physician, examined and treated claimant on at least thirteen occasions between September 1983 and November 1985. Dr. Tobin only saw claimant on three occasions in 1986.
The order is therefore deficient in failing to articulate the deputy's reasons for accepting Dr. Tobin's opinion over the other physicians' opinions. If the deputy's denial of wage loss were based solely upon Dr. Tobin's opinion of no permanent impairment, we would reverse and remand. However, the deputy's denial of the claim because of the claimant's failure to conduct an adequate work search is supported by competent substantial evidence. The job search forms that had been filed by the claimant merely consisted of copies of newspaper clippings. Although claimant testified that he remembered that he visited some of the places listed in the clippings, he could not recall which ones or when he visited them. Accordingly, the final order denying appellant's claim for wage-loss benefits is
AFFIRMED.
WENTWORTH and ZEHMER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624267/ | 522 So. 2d 1323 (1988)
Denise Gale DAUGHERTY, Plaintiff-Appellant,
v.
CASUALTY RECIPROCAL EXCHANGE INSURANCE COMPANY, et al, Defendants-Appellees.
No. 19364-CA.
Court of Appeal of Louisiana, Second Circuit.
March 30, 1988.
Rogers and White by David L. White, Bossier City, for plaintiff-appellant.
Bodenheimer, Jones, Klotz & Simmons by G.M. Bodenheimer, Shreveport, for defendants-appellees.
Before MARVIN, SEXTON and LINDSAY, JJ.
MARVIN, Judge.
The assumption of risk defense does not totally bar recovery by a plaintiff-guest passenger who, jointly with her driver, was using various drugs for several hours before and during a 300-mile automobile trip on which the driver negligently lost control of the car which crashed off the highway *1324 when both the driver and the passenger were "high" on drugs. Murray v. Ramada Inns, Inc., 521 So. 2d 1123 (La.1988).
We reverse the trial court judgment, based on a jury verdict, that rejected the passenger's demands.
We find the passenger was equally at fault with the driver because each was obviously high from their joint participation in drug use over several hours and because the driver, at a stop within an hour of the accident, told the passenger she was very tired and wanted the passenger to drive the car to their destination. Gravois v. Succession of Trauth, 498 So. 2d 140 (La.App. 5th Cir.1986), writ denied 500 So. 2d 422 (La. 1987); Townley v. Manuel, 509 So. 2d 515 (La.App. 3d Cir.1987).
Accordingly and applying La.C.C. Art. 2323, we award personal injury damages to the passenger.
FACTS
The passenger, Denise Daugherty, and her driver, Linda Woolum, each about 24 years old, shared an apartment and worked as waitresses in a cocktail lounge in Shreveport. A male friend who was an attorney allowed them the use of the apartment and loaned his sports car to them. According to the driver, she and her passenger were both high on cocaine at the apartment when they left on the trip about 3:30-4:00 a.m., intending to spend the Memorial Day weekend in Galveston. The passenger knew that the driver had worked the 6:00 p.m. to 2:00 a.m. shift immediately before their departure and had not slept "in days." Their purses contained cocaine and marijuana which they procured and planned to use on the trip and the weekend. They shared several joints of marijuana while traveling and stopped two or three times to sniff cocaine.
At the last stop before the accident the driver remarked that she was tired and asked plaintiff to drive the car. Plaintiff declined, explaining that she did not know how to drive the sports car with a manual shift.
The accident occurred about four or five hours from Shreveport after daylight when the driver went to sleep and the car left the road in San Jacinto County, Texas. Plaintiff's screams awakened the driver when the car left the road, thereafter rolling over one or more times, seriously injuring its occupants, especially plaintiff.
The jury obviously gave no credence to plaintiff's version that neither she nor her driver were using drugs at any time and that she went to sleep shortly after they left Shreveport and waked up only twice, the last time being when the car left the roadway. Plaintiff's general credibility and her specific denial of habitual drug use during the months before the accident was demonstrably impeached before the jury.
Plaintiff sustained compound fractures of the left wrist and forearm and underwent eight surgical reduction procedures and bone and skin grafts. She was hospitalized 24 days and incurred $29,469 in medical and related expenses. Plaintiff seeks $70,000 general damages and lost wages for the year that she contends she was unable to work.
QUANTUM
Courts of appeal may award damages where the trier of fact erroneously fails to do so, and where the record contains sufficient proof of damages. Fussell v. Louisiana Bus. College of Monroe, 519 So. 2d 384 (La.App. 2d Cir.1988).
Plaintiff's injury was characterized as severe by the several orthopedic surgeons which treated her. Her compound fracture was "grade three," the most severe classification. Among the eight surgical procedures plaintiff underwent were operations to remove dead tendons and tissue, multiple skin grafts, the application of a Hoffman device (a type of metal brace designed to hold fractured bones together), and an open reduction internal fixation procedure to straighten the bones and fix them in place with metal plates and pins. The bone and skin grafts required the removal of bone and skin from "donor sites" on the plaintiff's body. The donor sites are extremely painful for about a week.
*1325 During her recovery, plaintiff at one time had only 25 percent normal motion in her wrist. One orthopedic surgeon said he then believed a "great deal of future disability" was inevitable. By the time plaintiff was released from care, however, and over two years after the accident, plaintiff's recovery and rehabilitation left her with very little, if any, permanent residual effect.
The only evidence that reflects plaintiff's condition when she was released from care is the deposition of Dr. Haynie, an orthopedic surgeon. He said:
When we released her she was not having any pain in her arm or her hand. She had a nearoh, she had a very functional range of motion. It was not completely normal like her other side but the range of motion that she had I would say would not cause her any disability.
Q. ... In your opinion, Ms. Daugherty has no functional disability of her left hand?
A. Correct.
Q. And in your opinion she has a good hand now?
A. Yes, she haswhen you say no functional disability, if it was my hand I could operate with it, I could play baseball with it, I could go fishing with it, I could do things and it wouldn't take any adjustment. But it's never going to look like her other hand when it moves because it won't be able to move as far as her other hand in a few directions which I don't consider significant.
Dr. Haynie also stated that the left hand of this right-handed plaintiff was significantly impaired for a period of about a year to 18 months during her recovery. This conclusion supports plaintiff's contention that she was unable to work as a waitress and bartender for about a year following the accident. Plaintiff made about $190 a week in wages and tips before the accident.
Plaintiff experienced much pain as a result of her injuries and the many surgical procedures she underwent for two years. No medical expert, however, assigned any significant permanent disability.
In support of her demand for $70,000 general damages, plaintiff cites several cases, all of which involve permanent disability and future pain and suffering. See e.g., Lewis v. Exxon Corp, 451 So. 2d 24 (La.App. 1st Cir.1984), where the left-handed plaintiff suffered a compound fracture of the left humerus and was permanently disabled to the extent that he could not resume his occupation as a welder. He was awarded $80,000 by the court of appeal for his past and future pain and suffering. See also Morgan v. Willis-Knighton Medical Center, 456 So. 2d 650 (La. App. 2d Cir.1984), where plaintiff suffered a 27 percent disability of the right arm, was hindered in his occupation, and had to abandon his 30-year avocation of repairing and building clocks. Morgan was awarded $50,000 in general damages.
Compare, on the other hand, the award in Derouen v. City of New Iberia, 415 So. 2d 596 (La.App. 3d Cir.1982), in which the 65-year-old plaintiff fractured her left radius, underwent internal reduction surgery in which a metal plate and six screws were inserted, underwent a bone graft, was assigned a 15 percent residual disability. She was awarded $25,000 in general damages by the appellate court. See also Dobard v. Skate Country, Inc., 451 So. 2d 1231 (La.App. 4th Cir.1984), where the plaintiff suffered a comminuted fracture of the ulnar bone in her left forearm, underwent realignment surgery to have a metal plate and screws installed, and was assigned a residual disability of one percent. Dobard was awarded $35,000 in general damages by the trial court.
Considering the extent of this plaintiff's injuries, temporary disability, slight permanent disability, and her age and recovery, we deem the following awards to constitute just reparation:
Past medical expenses $29,469.
Lost wages 9,880.
General damages 35,000.
________
Total damages: $74,349.
APPORTIONMENT OF FAULT
The factors we are to compare and consider in allocating negligence under C.C. Art. 2323 are set forth in Watson v. State *1326 Farm Fire and Cas. Ins. Co., 469 So. 2d 967 (La.1985).
1. Whether the conduct resulted from inadvertence or involved an awareness of the danger;
2. How great a risk was created by the conduct;
3. The significance of what was sought by the conduct;
4. The capacities of the actor, whether superior or inferior; and
5. Any extenuating circumstances which might require the actor to proceed in haste, without proper thought.
469 So.2d at 974.
The plaintiff and driver were roommates and coworkers. We must conclude that each was fully aware of the other's self-destructive lifestyle. The testimony of the driver and other evidence clearly establishes that the two habitually shared drugs. According to the driver, not only was plaintiff aware of the driver's heavy drug use before and during the trip, but, as well, supplied the cocaine, helped procure the marijuana, joined with the driver in using drugs during the trip, and was acutely aware that the driver had not slept recently and was tired.
Plaintiff chose to depart on a lengthy trip at 3:30-4:00 a.m. with a driver who had just finished an eight-hour shift, who had not slept "in days," and who was under the influence of cocaine and marijuana. In this respect, the jury's implied conclusion is supported. Plaintiff was grossly negligent and utterly disregarded her own safety in the face of obvious danger.
Applying the Watson factors, we find that plaintiff was aware of the danger. The risk was great that the driver would lose control. The significance of what was sought by the two roommates was nothing more than self gratification. Plaintiff had the opportunity to control whether the fatigued and "high" driver continued behind the wheel, whether plaintiff would drive, or whether both would "rest." No extenuating circumstances are suggested to us and we find none.
Plaintiff is as culpable as the driver. Both were equally negligent. Plaintiff's damages shall therefore be reduced by one-half.
CONCLUSION
We reverse and render judgment in favor of plaintiff and against defendant-appellees for $37,174.50, with legal interest from judicial demand, and at the cost of defendant-appellees.
REVERSED AND RENDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624370/ | 522 So. 2d 845 (1988)
James H. LOHR, Etc., et al., Petitioners,
v.
Hattie Mae BYRD, Respondent.
No. 68836.
Supreme Court of Florida.
April 14, 1988.
Richard A. Sherman and Rosemary B. Wilder of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, for petitioners.
Roy B. Dalton, Jr. of Dalton & Provencher, P.A., Orlando, and Marcia K. Lippincott of the Law Offices of Marcia K. Lippincott, P.A., Orlando, for respondent.
Russell S. Bohn of the Law Offices of Edna L. Caruso, P.A., West Palm Beach, amicus curiae for Academy of Florida Trial Lawyers.
OVERTON, Justice.
This is a petition to review Byrd v. Lohr, reported at 488 So. 2d 138 (Fla. 5th DCA 1986), in which the Fifth District Court of Appeal held that punitive damages may be charged against a tortfeasor's estate. The district court expressed concern with its holding and certified the following question as one of great public importance:
MAY PUNITIVE DAMAGES BE AWARDED AGAINST A DECEASED TORTFEASOR'S ESTATE?
*846 488 So.2d at 140. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the question in the negative and hold that a decedent's innocent heirs should not be punished when the wrongdoer is unavailable because of death. In so holding, we join the majority of jurisdictions in this country that have considered this issue.
The relevant facts reflect that Robert Lohr caused an automobile accident in which he was killed and the plaintiff, Byrd, was injured. Robert Lohr was intoxicated at the time of the accident, and Byrd sued Lohr's estate, seeking compensatory and punitive damages for injuries sustained in the accident. At trial, the defense unsuccessfully moved for a directed verdict on the question of punitive damages. Subsequently, the jury returned a verdict in favor of Byrd for $31,000 in compensatory and $25,000 in punitive damages. The trial court granted Lohr's estate's motion for remittitur of the punitive damages and reduced the damages to $9,000 in order to avoid dissipation of the estate's assets. Byrd rejected the offer of remittitur, and the trial court entered an order granting a new trial on damages. Byrd appealed, challenging the remittitur, and Lohr cross-appealed, challenging the allowance of the award of punitive damages against the estate.
The Fifth District Court of Appeal determined it was bound by our decision in Atlas Properties, Inc. v. Didich, 226 So. 2d 684 (Fla. 1969). In Atlas Properties, this Court was considering the right of an estate of a decedent who was killed in an accident to recover punitive damages from the living tortfeasor. We were interpreting our survival statute in existence at that time, which is now included in section 46.021, Florida Statutes (1985). In holding that the estate could recover punitive damages from the living tortfeasor, we stated that the "clear language" of the survival statute indicating that "[n]o ... action shall die with the person" was intended to preserve an individual's right to full compensation for injuries after the injured person's death. Id. at 689. In so holding, we stated:
It appears that logic and common sense indicate that this Court should now ... allow the recovery of punitive damages under [the survival statute]. This appears to be true regardless of whether it is the tortfeasor or the injured party who dies. Certainly, this logic is more apposite when it is the injured party who dies (as we have here) rather than the actual tortfeasor.
Id. at 688 (emphasis supplied).
Although it felt bound by our decision in Atlas Properties, the Fifth District Court of Appeal determined it was unreasonable to impose punitive damages in these circumstances. The court stated:
The punishment actually is inflicted upon his heirs. Separation of the "punitive" and "exemplary" aspects of such awards is unjustified because general deterrence logically depends upon the perception of punishment suffered by the wrongdoer. When that punishment is diffused and unjustly inflicted upon the innocent, through a doctrine analogous to attainder, the deterrent effect is frustrated. It is unrealistic to suppose that such awards deter other prospective tortfeasors, especially if the criminal laws fail to do so.
Byrd v. Lohr, 488 So. 2d 138, 139 (Fla. 5th DCA 1986) (emphasis added). We agree. The statement relied on by the Fifth District in Atlas Properties is dicta. Collecting punitive damages from a tortfeasor's estate was clearly not an issue in that case, and the respective arguments and public policy ramifications were never presented to this Court for resolution.
The majority of jurisdictions in this country have rejected imposing punitive damages under these circumstances. See, e.g., In the Matter of GAC Corp., 681 F.2d 1295 (11th Cir.1982); Barnes v. Smith, 305 F.2d 226 (10th Cir.1962); Thompson v. Petroff's Estate, 319 N.W.2d 400 (Minn. 1982); Allen v. Anderson, 93 Nev. 204, 562 P.2d 487 (1977).
First, it must be understood that the plaintiffs have already been compensated for their injuries and are now seeking damages solely as punishment for the decedent's *847 misconduct. The plaintiff below, Byrd, recognizes the absence of anyone to punish, but justifies imposing punitive damages on a deterrence rationale, seeking our approval for the reasoning stated in Stephens v. Rohde, 478 So. 2d 862, 863 (Fla. 1st DCA 1985), which says:
[I]f a potential tortfeasor realizes that his estate is liable to diminishment by punitive damages awards, as is his own purse while he lives, this provides an additional incentive to avoid tortious conduct.
Accepting this argument would result in our adopting a principle that would allow a decedent's widow and children to be placed on welfare for the decedent's wrong. Additionally, the view expressed in that opinion would also punish innocent creditors of a decedent's estate. Further, this view would be totally inconsistent with our holding in Mercury Motors Express, Inc. v. Smith, 393 So. 2d 545 (Fla. 1981). We stated in Mercury Motors:
Punitive damages, however, go beyond the actual damages suffered by an injured party and are imposed only as a punishment of the defendant and as a deterrent to others... . Before an employer may be held vicariously liable for punitive damages under the doctrine of respondeat superior, there must be some fault on his part.
Id. at 549 (emphasis added). Recognizing that we are speaking about damages over and above compensatory damages, it appears that if the reasoning in Mercury Motors applies to an innocent employer who is not at fault, that same reasoning should also apply to innocent heirs who are not at fault.[*]
In Carraway v. Revell, 116 So. 2d 16 (Fla. 1959), we discussed punitive damages and stated they had "as a basic purpose the punishment of the offender ... not as compensation to the injured party but as punishment." Id. at 20 (emphasis added). If deterrence is justified in this instance, it would also be justified to require a decedent's family to pay a fine or be imprisoned for the decedent's criminal conduct. With the wrongdoer dead, there is no one to punish, and to punish the innocent ignores our basic philosophy of justice.
We find that logic, common sense, and justice dictate that this Court follow the majority of jurisdictions in this country and reject the imposition of punitive damages upon innocent heirs or creditors of a decedent's estate.
Accordingly, we answer the certified question in the negative, quash the district court's decision, and remand for further proceedings in accordance with the views expressed herein.
It is so ordered.
McDONALD, C.J., and EHRLICH and SHAW, JJ., concur.
GRIMES, J., dissents with an opinion, in which BARKETT and KOGAN, JJ., concur.
GRIMES, Justice, dissenting.
While there has been some abuse in the imposition of punitive damages, as long as Florida recognizes them, I cannot see why their recovery should be prohibited simply *848 because of the fortuity that the tortfeasor has died.
In interpreting the survival statute in Atlas Properties, Inc. v. Didich, 226 So. 2d 684 (Fla. 1969), this Court said:
It appears that logic and common sense indicate that this Court should now ... allow the recovery of punitive damages under [the survival statute]. This appears to be true regardless of whether it is the tortfeasor or the injured party who dies. Certainly, this logic is more apposite when it is the injured party who dies (as we have here) rather than the actual tortfeasor.
Id. at 688 (emphasis supplied).
Thus, it is clear that we previously spoke on the issue before us, albeit in dictum. In addition to the court below, two other district courts of appeal have also squarely ruled the same way. Stephens v. Rohde, 478 So. 2d 862 (Fla. 1st DCA 1985), review denied, 488 So. 2d 832 (Fla. 1986); Johnson v. Rinesmith, 238 So. 2d 659 (Fla. 2d DCA 1969), cert. denied, 241 So. 2d 857 (Fla. 1970). The majority of other jurisdictions do not permit the recovery of punitive damages upon the death of the tortfeasor. However, most of them have done so on the basis of a statute which explicitly precludes such recovery or on premises which do not involve the interpretation of a survival statute. See Hofer v. Lavender, 679 S.W.2d 470 (Tex. 1984), in which the Texas Supreme Court made a comprehensive analysis of the positions of the various states and opted for the rule that punitive damages could be recovered against a deceased tortfeasor's estate. Accord Perry v. Melton, 299 S.E.2d 8 (W. Va. 1982); National Bank v. Norfolk & Western Ry., 73 Ill. 2d 160, 23 Ill. Dec. 48, 383 N.E.2d 919 (1978).
Under English common law, no damages of any kind were recoverable against a tortfeasor's estate. Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780 (1931). However, by the 1930's, Florida's earlier survival statute had been interpreted to mean that compensatory damages could be recovered from the estate of the tortfeasor. See Atlas Properties. The language of the current survival statute[*] makes it even clearer that the death of the tortfeasor does not preclude the recovery of damages from his estate. Since the recovery of punitive damages has long been permitted in Florida and because the survival statute makes no distinction between compensatory and punitive damages, the strict wording of the statute leads to the conclusion that punitive damages may be recovered from the tortfeasor's estate.
The argument against imposing punitive damages against the estate of a deceased tortfeasor is grounded on the proposition that if the tortfeasor is dead, he is no longer subject to punishment. However, the justification for punitive damages is not only to punish the wrongdoer but also to serve as an example which will deter others from engaging in similar conduct. Campbell v. Government Employees Insurance Co., 306 So. 2d 525 (Fla. 1974). While the punishment may be less when the wrongdoer dies, it nonetheless exists because his estate is reduced as a result of his misconduct. The deterrence to others is totally unaffected by the death of the wrongdoer. In fact, the warning may be greater if one knows that even his death will not serve to insulate his estate from liability for his misconduct. Thus, "if a potential tortfeasor realizes that his estate is liable to diminishment by punitive damages awards, as is his own purse while he lives, this provides an additional incentive to avoid tortious conduct." 478 So.2d at 863.
The suggestion that our ruling penalizes the heirs of the deceased tortfeasor is beside the point because it is based on the artificial notion that it makes a difference when the tortfeasor dies. If he dies the day after a judgment for punitive damages is entered against him, his heirs are surely *849 penalized. Why should it be different if he dies the day before the judgment? Awards of punitive damages are limited to cases involving outrageous conduct of a wilful and wanton nature. American Cyanamid Co. v. Roy, 498 So. 2d 859 (Fla. 1986). However, when such conduct occurs, the recovery of punitive damages should not be precluded because of the untimely death of the tortfeasor.
I respectfully dissent.
BARKETT and KOGAN, JJ., concur.
NOTES
[*] A law review note on the Fifth District's decision in Byrd v. Lohr, 488 So. 2d 138 (Fla. 5th DCA 1986), also rejects punitive damages in these circumstances and comes to this conclusion:
Traditionally, Florida courts have allowed punitive damages to be assessed in cases where a punitive award will deter future tortious conduct or punish a wrongdoer. Neither of these goals is furthered by a punitive award in the case of Byrd where the tortfeasor cannot be punished beyond his death. Nor is a punitive sanction like that in Byrd likely to deter others from wrong conduct if they are unaware that the sanction exists or are unable to control or modify their conduct. If the Florida Supreme Court permits a punitive damage award in Byrd, then the court should buttress its holding with a justification more cogent than either punishment or deterrence. Not only will these rationales not support a punitive award against a deceased tortfeasor's estate, they will only serve as a disguise for the court's real reasons for granting an award that saddles innocent heirs with an unjust penalty and the public with higher insurance premiums.
Note, "The Florida Supreme Court Is Asked to Decide Whether Punitive Damages May Be Awarded Against a Deceased Tortfeasor's Estate Byrd v. Lohr, 488 So. 2d 138 (Fla. 5th DCA)," 15 Fla.St.U.L.Rev. 375, 387 (1987).
[*] Actions; surviving death of party. No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law. (Emphasis added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624450/ | 522 So. 2d 183 (1988)
Vincent J. ROLLO and Frances Antoinette Dottolo Rollo
v.
Albert J. LOUSTEAU, III and Cynthia Swenson Lousteau.
No. 87-CA-681.
Court of Appeal of Louisiana, Fifth Circuit.
March 14, 1988.
Rehearing Denied April 15, 1988.
*184 John M. Crum, Jr., Thomas F. Daley, LaPlace, for plaintiffs/appellees.
Benjamin B. Blanchet, Guy E. Wall, Steven W. Copley, Gordon, Arata, McCollam, Stuart & Duplantis, New Orleans, for defendants/appellants.
Before BOWES, GAUDIN and WICKER, JJ.
WICKER, Judge.
First Financial of Louisiana Savings and Loan Association, intervenor in this foreclosure action, appeals the award of attorney's fees. We affirm as amended.
The original plaintiffs, Vincent J. and Frances Antoinette Dottolo Rollo (ROLLO), were the holders of a first mortgage on property owned by the defendants, Albert J. Lousteau, III and his wife, Cynthia Swenson Lousteau (LOUSTEAU). First Financial was the holder of a second mortgage on this same immovable property. Lousteau defaulted on the payment of the mortgage on February 1, 1987; and Rollo, through his attorney, brought executory proceedings to have the property seized and sold. First Financial intervened in the foreclosure proceeding to oppose the award of excessive attorney's fees.
Lousteau owed Rollo $155,843.92, and the costs involved in the sheriff's sale were $5,390.00. The trial judge awarded $30,866.18[1] in attorney's fees to Rollo, with the result that there was no money left over from the $193,000.00 sale to pay the $136,505.53 that Lousteau owed First Financial.
The only issue is the reasonableness of the attorney fee award. First Financial argues that the trial judge erred in failing to apply the appropriate guidelines for reasonableness; in relying on testimony of unexplained, unrecorded, and undocumented attorney time; in considering the time spent in maximizing the fee; and in considering attorney time expended prior to a default in the obligation.
The promissory note stipulated that
... in the event that this note or any installment thereof or any portion of any installment thereof, or the interest thereon, is not paid when due and according to its tenor, is placed in the hands of an attorney at law for collection, or is sued on, twenty-five per cent (25%) additional on the amount of principal and interest due as attorney's fees.
The law is clear, however, that a stipulation for attorney's fees in a note does not foreclose inquiry into the reasonableness of those fees. Leenerts Farms, Inc. v. Rogers, 421 So. 2d 216 (La.1982); Oubre v. Bank of St. Charles and Trust Company, 499 So. 2d 602 (La.App. 5th Cir.1987), writ den. 503 So. 2d 20 (La.1987). The Code of Professional Responsibility, DR2-106(B), provides that a "fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee." The Code enumerates the factors which determine reasonableness:
*185 (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
Code of Professional Responsibility, Disciplinary Rule 2-106(B).
The record contains no reasons for judgment, so we do not know how the trial judge applied the factors enumerated in DR2-106(B). We are empowered to review the record ourselves to determine reasonableness. Oubre v. Bank of St. Charles and Trust Co., supra.
To enforce Lousteau's obligation, Rollo's attorneys filed a petition for executory process and a rule to release funds from the sheriff's sale. The attorneys were required to obtain a judgment lifting the automatic stay in bankruptcy necessitated by Lousteau's filing for bankruptcy twelve days after Rollo filed foreclosure proceedings. Two hearings were required for the rules relating to the distribution of funds. All this is reflected in the record of the proceedings below. In addition, Thomas F. Daley, one of Rollo's attorneys, introduced into evidence his itemized statement for fees and costs, reflecting forty-five hours expended in reviewing the file, drafting pleadings in this and the bankruptcy proceeding, travel time to and from Edgard and New Orleans, telephone calls and conferences, correspondence, a hearing at the bankruptcy court, attendance at the foreclosure sale, and trial preparation billed at an hourly rate of $85.00. The total itemized statement for fees is $3,825.00, and an additional $370.00 in costs is claimed.
The only other evidence of the value of the legal services rendered to Rollo in this matter is contained in the testimony of Rollo and his attorneys, Daley and John Crum, his law partner and district attorney for St. John the Baptist Parish.
VINCENT ROLLO
Rollo retained Crum during the summer of 1986 to foreclose on the mortgage, if necessary, for the twenty-five percent stipulated fee. Crum brought Daley in to assist him; and Rollo and his attorneys spent one hundred to one hundred twenty hours discussing the case, about forty of them prior to the initiation of legal proceedings. The case was complicated by Lousteau's bankruptcy and the presence of First Financial's second mortgage. Many of the meetings took place before Lousteau actually missed a payment because Rollo was concerned about Lousteau's financial problems and First Financial's suit against Lousteau. Rollo and his attorneys met two or three times a week during 1986 for at least an hour each time. No notes or calendar entries were made evidencing these meetings. Had there been no foreclosure, Rollo and his attorneys would have worked something out with regard to the fee.
GUY WALL
Wall, the attorney for First Financial, stipulated that his client prayed for attorney's fees of twenty-five percent in First Financial's suit against Lousteau.
TOM DALEY
Daley's itemized statement was prepared as a summary of his calendar. Crum brought him into the case when Lousteau missed a payment and requested his assistance in preparing the foreclosure documents. The statement does not reflect consultations with Crum and Rollo but only office and court time. He first met with Crum and Rollo in the summer of 1986 since First Financial had begun proceedings against Lousteau and Rollo was concerned about his security. He could not recall a specific discussion about the fee; *186 but his expectation was that there would be no fee if there had been no foreclosure. He recalled only two meetings with Rollo prior to Lousteau's missed payment. He estimated an additional fifteen or twenty hours of time spent on the case in addition to what was itemized in his statement.
JOHN M. CRUM, JR.
Crum, an attorney since 1972, was the district attorney and practiced civil law to some extent. His basic involvement in the case was that he and Rollo were friends and had had an attorney-client relationship since 1972. He felt that Lousteau had jeopardized Rollo's security by allowing First Financial to file proceedings against him and by filing for bankruptcy; and he considered this a default even before Lousteau missed a payment on his note.[2] Rollo was worried about his security interest and discussed it with Crum two or three times a week beginning in the summer of 1986. Crum felt part of his job was maintaining the sanity of his client. The basic fee arrangement was for the twenty-five percent stipulated in the note, but the fee to be earned in the event there was no foreclosure was never discussed. He felt sure that foreclosure would ultimately be necessary. Since he worked on this case on a percentage basis, he did not keep time records. He recalled spending in excess of one hundred hours on the case "with Mr. Rollo specifically on this either talking to him in court somewhere, going somewhere, doing something about it." His normal hourly rate is $85.00.
The evidence shows that Daley billed $3,825.00 in fees and expended an additional fifteen or twenty hours at $85.00 per hour. This supports an hourly fee of $5,100.00, plus costs of $370.00. Crum spent a maximum of one hundred to one hundred twenty hours working on the case after the default. Using his customary hourly rate of $85.00, this supports a fee of $8,500.00. While written records and time sheets would have been preferable proof of the time expended by the attorneys on this case, we certainly cannot disregard the unrebutted testimony of these attorneys which was apparently accepted by the trial court.
In applying the provisions of DR2-106(B) to the evidence, we find the following:
(1) The attorneys spent one hundred sixty hours, most of it undocumented, working on this case, which was neither novel nor especially difficult.
(2) There was no evidence that handling this case precluded other work by the attorneys. In fact, it is obvious that Crum still maintained his position as district attorney for the parish.
(3) The evidence supported a finding that $85.00 per hour is customary in St. John the Baptist Parish and that First Financial, in filing suit against Lousteau, prayed for an award of twenty-five percent of the amount owed.
(4) The amount of money involved was considerable and the results obtained were excellent. Rollo was able to recover all that he was owed, despite Lousteau's bankruptcy proceedings and First Financial's suit against Lousteau.
(5) No particular time limitations are indicated by the record or the testimony.
(6) Crum had a long-standing professional relationship with Rollo, but Daley had no prior professional relationship.
(7) There is little evidence of Daley's experience, reputation, or ability one way or the other. Crum apparently practiced civil law only part time.
(8) The fee was a contingent one.
*187 This evidence does not support the award of $30,866.18 in attorney's fees. The total amount awarded should have been $13,600.00 in fees and $370.00 costs, and we amend the judgment to reflect this finding. We assess the costs of this appeal equally between First Financial and Rollo.
REVISED AND, AS REVISED, AFFIRMED.
NOTES
[1] This is 19.8% of the principal and interest due.
[2] This appears to be a legitimate interpretation of the first mortgage contract between Rollo and Lousteau, which reads:
.... The property conveyed shall not be sold, alienated, or encumbered to the prejudice of this mortgage.... IF BUYER [Lousteau] shall become insolvent, or apply to a bankruptcy court to be adjudged a voluntary bankrupt, or proceedings be instituted to have BUYER adjudged an involuntary bankrupt, or proceedings be taken against BUYER looking to the appointment of a receiver or syndic, or any proceedings be instituted for the seizure or sale of the property herein mortgaged by judicial process, or in case BUYER should fail to pay the note ... promptly when due ... all the indebtedness shall ipso facto, and without any demand or putting in default, become immediately due and exibible.... | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624444/ | 522 So. 2d 1023 (1988)
STATE of Florida, Appellant,
v.
Imanese MOISE, Appellee.
No. 87-1138.
District Court of Appeal of Florida, Fifth District.
March 31, 1988.
*1024 Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellant.
James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellee.
COBB, Judge.
The issue in this appeal is whether the trial court properly granted Imanese Moise's motion to suppress evidence based on a deficient search warrant.
Moise was charged with possession of cocaine stemming from the search of an apartment on February 5, 1987, which turned up eight pieces of rock cocaine. The search was conducted with a warrant issued on January 29, 1987, based on an affidavit prepared the same date by Officer Robert Mundy of the Orlando Police Department.
In the affidavit, Mundy described the premises and recited the facts of two controlled buys at the apartment. The first occurred on January 14, 1987, and the second on January 20, 1987. Both sales were conducted by sending two different confidential informants into the apartment to buy cocaine. Each purchased a piece of rock cocaine from the apartment and returned to the police. The affidavit further asserted Mundy's belief that cocaine was being kept and sold in the specified apartment.
Moise filed a motion to suppress, alleging that the affidavit giving rise to the search warrant was deficient in that there was no evidence that contraband continued to be present at the apartment. At the hearing on the motion to suppress, Mundy testified that he obtained a third controlled buy from the apartment just 30 minutes prior to the search warrant's being served. Munday said that when the warrant was executed he believed in good faith that it was valid, and that when he prepared the affidavit he believed in good faith that there were drugs kept on the premises. The trial court granted the motion to suppress, noting at the hearing:
THE COURT: The affidavit supporting a search warrant in this case sets forth in some detail two very well conducted controlled buys. There is nothing in this affidavit that indicates why this particular location was selected, anything to indicate great amounts of cocaine being held here. And the distance between these two, there is six days between the two controlled buys and nine days from the last controlled buy before the actual search warrant was issued.
The third controlled buy where he cannot be considered by this Court to supplement the affidavit in this matter.
The duty of the reviewing Court is to insure that the issuing magistrate had a substantial basis for concluding that there was probable cause that the premises contained contraband, given the totality of the circumstances. I cannot do so. I grant the motion to suppress.
In Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), the United States Supreme Court set forth the following standard to be used in determining whether probable cause exists:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to insure that the magistrate had a `substantial basis for ... conclud[ing] that probable cause existed.'
Id. at 238-39, 103 S.Ct. at 2332; see also State v. Cohen, 442 So. 2d 346 (Fla. 5th DCA 1983); Smigiel v. State, 439 So. 2d 239 (Fla. 5th DCA 1983), petition for review *1025 denied, 447 So. 2d 888 (Fla. 1984); State v. Jacobs, 437 So. 2d 166 (Fla. 5th DCA), petition for review dismissed, 441 So. 2d 632 (Fla. 1983).
The length of time between the events relied upon to obtain a warrant and the date of issuance bears upon probable cause, with the likelihood that the items sought to be seized will be found on the premises decreasing as time passes. Smith v. State, 438 So. 2d 896 (Fla. 2d DCA 1983) (search upheld based on affidavit showing prior controlled buys, with last buy occurring 36 days before warrant issued). In the instant case, the affidavit discloses two controlled buys, one occurring fifteen days prior to the issuance of the warrant, and one occurring nine days prior to its issuance. Applying Gates, the totality of the circumstances shows sufficient probable cause to allow for the warrant to be properly issued. Thus, the lower court ruled incorrectly in suppressing the evidence. See also State v. Gieseke, 328 So. 2d 16 (Fla. 1976).
Additionally, the warrant affidavit is sufficient under United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), to allow for the application of the good-faith exception.[1]See State v. Garcia, 503 So. 2d 347 (Fla. 5th DCA), review denied, 511 So. 2d 298 (Fla. 1987); State v. Wildes, 468 So. 2d 550 (Fla. 5th DCA 1985).
Accordingly, the order of suppression entered below is reversed and the cause remanded for further proceedings in accordance with this opinion.
REVERSED and REMANDED.
ORFINGER and DANIEL, JJ., concur.
NOTES
[1] In Leon, the Court held that the good faith exception would not apply in the following circumstances:
Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit `so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.' Brown v. Illinois, 422 U.S. 590 at 610-611, 95 S.Ct. [2254] at 2265-2266 [45 L. Ed. 2d 416 (1975)] (POWELL, J., concurring in part); see Illinois v. Gates, supra, 462 U.S. 213 at 263-264, 103 S.Ct. [2317] at 2345-2346 (WHITE, J., concurring in the judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient i.e., in failing to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v. Sheppard, 468 U.S., at 988-991, 104 S.Ct., at 3428-3430.
Id. at 928, 104 S.Ct. at 3421.
The dates of the controlled drug buys are clearly spelled out in the affidavit herein. This distinguishes the instant case from Dixon v. State, 511 So. 2d 1094 (Fla. 2d DCA 1987), relied on by the defendant in support of her claim that Leon is inapplicable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624456/ | 522 So. 2d 1078 (1988)
MANHATTAN NATIONAL LIFE INSURANCE COMPANY, Petitioner,
v.
Penelope R. KUJAWA, As Beneficiary of John A. Kujawa, Deceased, Respondent.
No. 87-1513.
District Court of Appeal of Florida, Fourth District.
April 13, 1988.
*1079 Maxine M. Long, Brenton Ver Ploeg and Phillip D. Parrish of Shutts & Bowen, Miami, for petitioner.
Steven A. Edelstein of Ress, Gomez, Rosenberg, Howland & Mintz, P.A., North Miami, for respondent.
OWEN, WILLIAM C., Jr. (Retired), Associate Judge.
Petitioner seeks certiorari review of a non-final order which required it to produce for inspection its legal department's file over its objection of work product immunity and attorney-client privilege. We grant certiorari and quash the order on the authority of Allstate Insurance Company v. Podhurst, 491 So. 2d 1222 (Fla. 4th DCA 1986), United States Fire Insurance Company v. Clearwater Oaks Bank, 421 So. 2d 783 (Fla. 2d DCA 1982), Travelers Insurance Company v. Habelow, 405 So. 2d 1361 (Fla. 5th DCA 1981), and Agri-Business, Inc. v. Bridges, 397 So. 2d 394 (Fla. 1st DCA 1981).
Petitioner, a life insurance company, issued a policy to John A. Kujawa, in which the respondent, Penelope R. Kujawa, was the named beneficiary. Upon John's death respondent submitted a claim under the policy. When it appeared that petitioner was delaying payment unduly, respondent filed this suit. The complaint, as amended, was in two counts. Count one was a claim on the policy. Count two was a bad faith claim under section 624.155(1)(b)(1), Florida Statutes. Thereafter, petitioner paid the face amount of the policy together with interest and agreed attorney's fees. Respondent then dismissed count one, and is now proceeding only on count two.
Respondent served a request to produce seeking production of "all separate files created after a claim was made in this cause pertaining to the handling of this claim whether or not the defendant has titled said files as a `claim file.'" In response, petitioner stated that it had already produced to the respondent copies of its underwriting and claims files with respect to the policy itself, and that the only other files it maintained were its legal department files and a file containing correspondence and documents relating to the Florida Department of Insurance. As to the latter file no objection was made to production. As to the legal department files, objection was made on the basis of attorney-client privilege and work product immunity. Following a hearing on the objections to the request to produce, the court entered its order overruling the objections, but without stating any reasons and without undertaking an in camera inspection as requested by petitioner. However, it is apparent from the record that (1) the issue presented to the trial court was whether all of an insurance company's files must be produced where a bad faith cause of action is brought pursuant to section 624.155(1)(b)(1), Florida Statutes, and (2) the trial court, in resolving this issue, viewed Stone v. Travelers Insurance Company, 326 So. 2d 241 (Fla. 3d DCA 1976) as authority entitling respondent to the disclosure sought.
The Stone case held that in an action for bad faith against an insurance company for failure to settle a claim within policy limits, all materials, including documents, memoranda and letters, contained in the insurance company's file, up to and including date of judgment in the original litigation, should be produced. In explaining its rationale, the court stated, "[w]e reach this holding because of the very nature of a bad faith action and the posture of the parties involved. In defending personal injury litigation, an insurance company participates not only on behalf of itself, but also on behalf of its insured." The court went on to state that the liability insurer, undertaking defense of its insured, was in a fiduciary relationship with the insured. Accord Koken v. American Service Mutual Insurance Company, 330 So. 2d 805 (Fla. 3d DCA 1976). But that holding has been adequately distinguished in Agri-Business, Inc. v. Bridges, supra, and United States *1080 Fire Insurance Company v. Clearwater Oaks Bank, supra, from the cases such as the one now before us where a first party claim is made, i.e., a claim between an insurer and its insured not involving a fiduciary relationship between them.
Our decision conflicts[1] with a recent decision of the Third District Court of Appeal, Fidelity and Casualty Insurance Company of New York v. Taylor, 13 F.L.W. 24 (Fla. 3d DCA Dec. 29, 1987), which holds that in a first-party action against an insurer under section 624.155(1)(b) the insurer's claim file is subject to a request to produce just as in "the familiar [action for] `bad faith' failure to settle ... a third-party's action against a liability carrier's insured." We would note only that (1) the rationale of the Taylor opinion appears to be the sameness of the issues in both types of "bad faith" insurance cases and the difficulty of otherwise obtaining relevant facts, (matters which, in any event, would not affect the attorney-client privilege) and (2) the opinion does not treat that which heretofore had been held a valid distinction between the "first-party" and "third-party" bad faith cases, i.e., the existence or lack of a fiduciary relationship between insurer and its insured.
The issue before us is not whether section 624.155, Florida Statutes (1985), extends to an insured a cause of action against his or her insurer for bad faith refusal to settle, nor whether the proof necessary to sustain such action is in any degree different from the proof required to sustain a third party action for bad faith failure to settle. Rather, the issue is whether an insured asserting such a statutory cause of action is somehow entitled, by the nature of the action alone, to have work product immunity and the statutory attorney-client privilege summarily swept aside. We see nothing in the statute (creating this cause of action) which evidences a legislative intent to abolish either work product immunity or the attorney-client privilege. Furthermore, except for the Taylor case, supra, we find no case authority that would justify such a conclusion. We hold that an insurer which is not in a fiduciary relationship to its insured and against which a cause of action is brought under section 624.155 is entitled to protection against production of its legal department file (and its claim file by whatever name) on the basis of both work product immunity and attorney-client privilege to the same extent as any other litigant.
Whether all or a portion of the matter sought to be discovered is protected by work product immunity, see Airocar, Inc. v. Goldman, 474 So. 2d 269 (Fla. 4th DCA 1985), or by the attorney-client privilege, and, if protected by work product immunity but not the attorney-client privilege, whether the appropriate showing under rule 1.280(b)(2), Florida Rules of Civil Procedure, can be made, see Hartford Accident & Indemnity Company v. U.S.C.P. Co., 515 So. 2d 998 (Fla. 4th DCA 1987), are matters which remain for the trial court's determination.
The order under review is quashed and this cause remanded for further proceedings consistent herewith.
LETTS and GLICKSTEIN, JJ., concur.
NOTES
[1] Although the instant case involves the production of the insurer's legal department file rather than its claim file, we think that is too fine a distinction upon which to avoid recognizing a conflict with the Taylor case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624820/ | 522 So. 2d 941 (1988)
Desmond B. LARMER, Petitioner,
v.
STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
No. 87-1408.
District Court of Appeal of Florida, Fourth District.
March 16, 1988.
Rehearing Denied April 28, 1988.
*942 Mark King Leban of Law Offices of Mark King Leban, P.A., and James H. Woodard, Miami, for petitioner.
Enoch J. Whitney, General Counsel, and R.W. Evans, Asst. General Counsel, Dept. of Highway Safety and Motor Vehicles, Tallahassee, for respondent.
GLICKSTEIN, Judge.
This is a petition for certiorari of the Circuit Court's order denying review there, by certiorari, of the County Court's order which suspended petitioner's driver's license. We grant the petition, quash the order and remand with direction to proceed in accordance herewith.
The order of the County Court Judge has been very helpful because of its completeness and specificity. Its material parts are as follows:
The defendant was arrested for driving under the influence on December 24, 1986 and promptly taken to the Batmobile, where Officer John P. Collins, Broward Sheriff's deputy, fully advised the defendant of Florida's Implied Consent Law, and asked the defendant if he would take a Breathalyzer test. The officer advised the defendant that he would lose his license for one year if he refused the test. The defendant stated that he would not take the test until he could speak with his employer or an attorney. Officer Collins construed this response as a refusal to take the test and turned off the videotaping equipment which had, thus far, recorded events at the police station. Within one or two minutes after turning off the machine, the defendant was permitted to place a telephone call to his employer who advised the defendant to request permission to take the Breathalyzer test. Officer Collins refused to allow the defendant to take the test.
It was within a few minutes of the defendant's initial refusal to take the test and his telephone call to his employer that his request to take the test was refused.
The Court concludes that (1) The Implied Consent Law does not provide a driver with a pre-breathalyzer test right to counsel, State v. Hoch, 500 So. 2d 597 (Fla. 3d DCA 1986); (2) Once the defendant refused to take the test unless he could consult with his employer or counsel, he did not thereafter have the right to retract or withdraw that refusal; (3) The defendant refused at the moment of truth and could not recant his refusal moments later.
This court has written a number of times about highway carnage; and because such continues, the subject will doubtless be addressed appropriately again in the future. Concern for public safety, however, cannot sweep away legitimate arguments which militate against the enforcement of a wooden rule. The previous holding of this court that one arrested for DUI cannot refuse a breathalyzer test because of a right to counsel, Nelson v. State, 508 So. 2d 48 (Fla. 4th DCA 1987), is not dispositive of this case. What is involved here is whether that individual, after refusing to take the test, can rescind that decision and avoid the penalty for refusal; and if so, upon what conditions.
On these issues respondent is silent, arguing instead (a) that the state, not the Department, is the proper respondent, and (b) certiorari is not the proper remedy. We reject respondent's arguments.
*943 The heart of the petition, which we find persuasive, begins with the holding in Lund v. Hjelle, 224 N.W.2d 552, 557 (N.D. 1974):
Since the accuracy of a chemical test under [the Implied Consent Law] does not depend upon its being administered immediately after an arrest, accident or other event, and thus a delay for a reasonable period of time while an arrested person considers or reconsiders a decision whether or not to submit to a chemical test will not frustrate the object of the legislature in enacting [the Implied Consent Law], we hold that where, as here, one who is arrested for driving while under the influence of intoxicating liquor first refuse[s] to submit to a chemical test to determine the alcoholic content of his blood and later changes his mind and requests a chemical blood test, the subsequent consent to take the test cures the prior first refusal when the request to take the test is made within a reasonable time after the prior first refusal; when such a test administered upon the subsequent consent would still be accurate; when testing equipment or facilities are still readily available; when honoring a request for a test, following a prior first refusal, will result in no substantial inconvenience or expense to the police; and when the individual requesting the test has been in police custody and under observation for the whole time since his arrest.
(emphasis added).
In State v. Moore, 62 Haw. 301, 614 P.2d 931, 935 (1980), Hawaii aligned itself with those jurisdictions holding that an initial refusal to be tested could be withdrawn and rescinded, rejecting any "rule of law which would rigidly and unreasonably bind an arrested person to his first words spoken, no matter how quickly and under what circumstances those words are withdrawn." The court in Moore found "the better rule to be one which takes into consideration the fairness to all parties of permitting an arrested person later to change his mind" and that the defendant's retraction of his initial refusal "was made within thirteen minutes of his refusal to sign the Implied Consent Form." Id. The court there held that "unless a delay would materially affect the test results or prove substantially inconvenient to administer, a subsequent consent may cure a prior refusal to be tested." Id.
Similarly, the court in Zahtila v. Motor Vehicle Division, Department of Revenue, 39 Colo. App. 8, 560 P.2d 847, 848-49 (1977), implied that a delay of twenty-five minutes between the initial refusal and the retraction of the refusal would not necessarily materially affect the result of any such test permitted after the retraction; and it remanded for a determination of whether the twenty-five minute delay would affect the test results. The court held:
While a motorist has no right under the statute to confer with counsel prior to deciding whether he will consent to a test ..., where, as here, he is permitted to do so, thereafter consents to the test, and the officer is available to see that the test is administered, the primary purpose of the statute is fulfilled unless the delay will materially affect the result of the test.
39 Colo. App. at 10, 560 P.2d at 849. (citations omitted).
The court in Gaunt v. Motor Vehicle Division, Department of Transportation, State of Arizona, 136 Ariz. 424, 666 P.2d 524 (Ct.App. 1983), adopted the "flexible rule that subsequent consent cures the prior refusal unless the delay would materially affect the test result, or would substantially inconvenience the police." 666 P.2d at 527. The court found that an "absolute rule" prohibiting a subsequent consent after an initial refusal
could lead to unnecessarily harsh and self-defeating results. It is not hard to imagine circumstances where the defendant, soon after declining to take the breath test, has second thoughts. If the test results would remain valid, and if no material inconvenience is caused to the police, we fail to see the harm in permitting the defendant to subsequently consent to take the test.
... By approving a flexible rule we believe that this important evidence *944 will be more frequently available and therefore the prophylactic purpose of the implied consent law will be achieved.
Id. (emphasis added). Accord Noland v. State, Dept. of Transp., 151 Ariz. 466, 728 P.2d 685 (Ct.App. 1986). See also Sedlacek v. Pearson, 204 Neb. 625, 284 N.W.2d 556 (1979) (initial refusal followed by consultation with counsel who advised defendant to take the breath test, held not a refusal despite the fact that the licensee had no right to confer with counsel; license ordered returned); Stone v. McCullion, 27 Ohio App. 3d 112, 500 N.E.2d 326 (1985) (delay of fifteen minutes between defendant's initial refusal until his attorney told him to take tests was not unreasonable and lower court's order upholding suspension of driver's license for one year based on a refusal was reversed); Fleckenstein v. Bureau of Motor Vehicles, 44 Ohio Misc. 1, 335 N.E.2d 756 (Mun.Ct. 1975) (no refusal found where defendant's change of mind came eight minutes after initial refusal); and Peterson v. Dorius, 547 P.2d 693 (Utah 1976) (one hour delay not a refusal).
Here, as in the cited cases, petitioner's retraction of his initial refusal came moments after that refusal, while petitioner was continuously in the presence of the police officers, and in circumstances where no inconvenience would result by permitting him immediately thereafter to take the test that would produce the evidence that is the object and intent of Florida's Implied Consent Law.
ANSTEAD, J., concurs.
LETTS, J., dissents with opinion.
LETTS, Judge, dissenting.
While I am in sympathy with Judge Glickstein's analysis, I do not feel that either the trial court or the reviewing court departed from the essential requirements of the law or permitted a violation of due process. As a consequence, I would deny certiorari. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624825/ | 522 So. 2d 993 (1988)
MASERATI AUTOMOBILES INCORPORATED and Alfieri Maserati, S.P.A., Appellants/Cross-Appellees,
v.
Robert CAPLAN, Appellee/Cross-Appellant.
Nos. 87-1163, 87-1635.
District Court of Appeal of Florida, Third District.
March 29, 1988.
*994 Yelen & Yelen and Jan Yelen, Coral Gables, for appellants/cross-appellees.
Young, Stern & Tannenbaum and Barry S. Franklin and Jeremy Koss, North Miami Beach, for appellee/cross-appellant.
Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
BASKIN, Judge.
Maserati Automobiles, Inc., and Alfieri Maserati [Maserati] appeal a final judgment entered pursuant to a jury verdict in Robert Caplan's favor. Caplan cross-appeals the attorney's fee award in an action he brought against Maserati predicated on its alleged sale to him of a defective car.
The jury awarded Caplan damages of $33,176.00 under the Motor Vehicle Warranty Enforcement Act (Lemon Law), Chapter 681, Fla. Stat. (1983), or the Magnuson-Moss Warranty Act, 15 U.S.C.A. §§ 2301-12 (1982), $17,000 on his negligence claim, and $17,000 on the breach of implied warranty of merchantability claim. The court entered a final judgment for $50,176.00, the total of $33,176 and one of the alternative recoveries of $17,000. The court granted Caplan $38,624.60 attorney's fees.
In this appeal, Maserati first contends that the trial court erred in denying its motion for directed verdict as to the *995 breach of implied warranty and negligence counts based on its assertion that Caplan failed to present evidence of the vehicle's value and rental value. Holding that Caplan presented sufficient evidence as to the value of the car, we affirm the trial court's ruling. Under the Lemon Law, Caplan is entitled to recover the purchase price of the car, including all reasonably incurred collateral charges, upon proof that Maserati is unable to bring the car into conformity with its express warranty. § 681.104(2)(a)2, Fla. Stat. (1983). In addition, Caplan is entitled to damages for loss of the vehicle's use. See Hampton-Chrysler-Plymouth-Dodge, Inc. v. White, 448 So. 2d 87 (Fla. 1st DCA 1984) (warranty action); Miles v. Kavanaugh, 350 So. 2d 1090 (Fla. 3d DCA 1977) (same); Meakin v. Dreier, 209 So. 2d 252 (Fla. 2d DCA 1968) (negligence); Wajay Bakery v. Carolina Freight Carriers Corp., 177 So. 2d 544 (Fla. 3d DCA 1965) (same); Airtech Serv., Inc. v. MacDonald Constr. Co., 150 So. 2d 465 (Fla. 3d DCA 1963) (same). See also Annot., Buyer's Incidental and Consequential Damages from Seller's Breach under U.C.C. § 2-715, 96 A.L.R. 3d 299 (1979).
At trial, Caplan testified as to the purchase price of the car; he corroborated his testimony by entering the bill of sale into evidence. In addition, an expert witness testified that the car was "totally undriveable or unusable ... [and] [y]ou cannot start it, run it, drive it... . [or] ... do anything with it." Caplan also testified that the car was completely inoperable. Thus, substantial competent evidence supports the jury's finding that Maserati did not bring the car into conformity with its express warranty; that the condition of the car rendered it valueless to Caplan; and that Caplan was entitled to recover damages.
Furthermore, Maserati argues that there was no basis for the jury's award of damages for loss of use of the vehicle. On this point, the court, without objection, instructed the jury that if it found that Caplan lost the use of the vehicle, it should award him damages in the amount necessary to rent a vehicle, even though another vehicle was not rented. Caplan presented expert testimony establishing the actual cost of the car at $34.32 per day.[1] The expert determined that Caplan was deprived of the use of his vehicle on 618 days. She concluded that the loss of the use of the car amounted to $21,209.52. Her testimony refutes Maserati's arguments.
In Meakin, the court stated that "[t]he measure of damage is `loss of use' not rental value. Rental value is merely indicative of `loss of use' value." Meakin, 209 So.2d at 254. Thus, although Caplan's expert testified only as to the per diem cost of the car during the time it was inoperable rather than the actual cost of a rental car, her testimony is evidence of the value of loss of use. Accordingly, we hold that the jury reached its decision through competent evidence.
Next, Maserati argues that the trial court erred in failing to require Caplan to make an election of remedies.[2] Maserati *996 maintains that, because Caplan recovered the purchase price and collateral charges (insurance payments, rental car receipts, repair and hotel bills), an award of damages for loss of use constitutes double recovery. We reject its assertion.
The doctrine of election of remedies seeks "to prevent a double recovery for the same wrong... . only where the remedies in question are coexistent and inconsistent." Barbe v. Villeneuve, 505 So. 2d 1331, 1332 (Fla. 1987) (citations omitted). If the remedies are not inconsistent and "to the extent that any damage [is] not remedied by the judgment ..., [defendant] should be liable therefor." Armbruster v. Alvin, 437 So. 2d 725, 727 (Fla. 3d DCA 1983) (citation and footnote omitted), review denied, 450 So. 2d 485 (Fla. 1984).
In the cause before us, the final judgment entered pursuant to a general jury verdict awarded Caplan $50,176.[3] Recovery of the purchase price and collateral charges under the Lemon Law does not fully compensate Caplan; he is not foreclosed from recovering damages for loss of use of the car under his other claims. Because the remedies serve different functions in recompensing Caplan for his damages, no double recovery exists.[4]
Next, Maserati argues that the court correctly determined that Caplan was entitled to attorney's fees only when authorized by the Lemon Law and the Magnuson-Moss Act. Maserati asserts that counsel fees should be reduced by the time spent preparing non-statutory claims. The trial court incorrectly based the award on its own recollection of the case rather than on evidence presented by the parties. Maserati presented evidence that a reasonable fee was $7,500-$10,000 for the time spent on the Lemon Law and Magnuson-Moss claims. Asserting that the time expended on these claims could not be determined, Caplan presented expert testimony that a reasonable fee for the entire case was between $51,250 and $61,500. Recognizing that "the claims involved a common core of facts and were based on related legal theories," Chrysler Corp. v. Weinstein, 522 So. 2d 894 (Fla. 3d DCA 1988), and therefore, that the majority of time spent by counsel could not be separated as to the various claims, see Chrysler Corp.; State Farm Fire & Casualty Co. v. Becraft, 501 So. 2d 1316 (Fla. 4th DCA 1986), the court endeavored to separate easily discernible fee bases. Instead of awarding Caplan a fee for the entire case, the trial court awarded Caplan attorney's fees of $38,624.60 for time spent preparing statutory claims and reduced the fee by reviewing his motion calendar and the case file to assess time spent on non-fee claims.
In our view, the trial court's recollection of the case does not serve as an appropriate predicate for determining reasonable attorney's fees. We reverse and remand for an evidentiary hearing to determine reasonable attorney's fees for preparing statutory claims against Maserati. See Folta v. Bolton, 493 So. 2d 440 (Fla. 1986); Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); Caplan v. 1616 East Sunrise Motors, Inc., 522 So. 2d 920 *997 (Fla. 3d DCA 1988); Skidmore, Owings & Merrill v. Volpe Constr. Co., Inc., 511 So. 2d 642, 645 (Fla. 3d DCA 1987); see also Hamilton v. Palm Chevrolet-Oldsmobile, Inc., 388 So. 2d 638 (Fla. 2d DCA 1980); United Servs. Auto. Ass'n v. Kiibler, 364 So. 2d 57 (Fla. 3d DCA 1978).
Finally, we address Caplan's cross-appeal. Caplan contends that the trial court erred in finding that it did not have authority to award an attorney's fee in excess of the contract between Caplan and his attorney. We agree. Caplan had a fixed-fee agreement with his counsel to pay an initial fee of $125.00 per hour.[5] The trial court stated that Rowe and Disciplinary Rule 2-106(B) of the Florida Bar Code of Professional Responsibility limit the amount of the fee to the contract provisions. This ruling constituted error. The directive in Rowe that court-awarded fees should never exceed the fee agreement is applicable only to contingent fee agreements. See Ronlee, Inc. v. Arvida Corp., 515 So. 2d 372 (Fla. 4th DCA 1987); Alston v. Sundeck Prod., Inc., 498 So. 2d 493 (Fla. 4th DCA 1986).
Additionally, we find error in the trial court's failure to provide specific findings in accordance with Rowe. "In determining the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors, the trial court must set forth specific findings." Rowe, 472 So.2d at 1151. On remand, the trial court should reevaluate the attorney's fee award pursuant to the formula set forth in Rowe, without limiting the fee to Caplan's initial agreement.
Affirmed in part, reversed in part and remanded with directions.
NOTES
[1] The expert testified that this was not the actual cost of renting a Maserati. She stated that "[t]he $34.00 a day is based upon actual depreciation using special Internal Revenue Code regulations and actual interest that was paid and actual insurance Mr. Caplan paid." The expert also testified that the cost of renting a Maserati at the time of trial was $165.00 per day. Caplan submitted receipts totaling $661.22 for renting a car on approximately 43 days.
[2] Relying on Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526 (Fla. 3d DCA), cert. denied, 298 So. 2d 416, 419 (Fla. 1974), Maserati contends that rescission and damages are inconsistent remedies so that Caplan cannot recover the purchase price plus loss of use damages. We reject this contention. First, rescission and damages are not necessarily inconsistent remedies. See Armbruster, 437 So.2d at 727 ("Rescission of the escrowed transaction and recovery of damages against the escrowee are not necessarily inconsistent remedies."). Second, § 672.608 (comment 1), Fla. Stat. (1983), states that "the buyer is no longer required to elect between revocation of acceptance and recovery of damages for breach. Both are now available to him... . The remedy under this section is instead referred to simply as `revocation of acceptance' of goods tendered under a contract for sale and involves no suggestion of `elections' of any sort." Cf. Swindel v. General Finance Corp., 265 So. 2d 393 (Fla. 1st DCA 1972). See generally Encore v. Olivetti Corp., 326 So. 2d 161, 165 n. 2 (Fla. 1976); D. Dobbs, Remedies § 12.17, at 879 (1973) ("the buyer need not `elect' between getting his money back and getting damages for breach of warranty; he may, and quite appropriately, get both, since recovery of the price paid is no longer pinned to the theory of rescission."). Finally, § 681.104(2)(a)2, Fla. Stat. (1983), specifically provides for damages in addition to the purchase price of the car.
[3] Although the jury awarded $33,176.00 in damages under the Lemon Law/Magnuson-Moss claim and $17,000 under the warranty and negligence counts, it did not separately designate the damages allocated to loss of use. We assume that the jury followed the court's instructions, and the $33,176.00 award under the Lemon Law/Magnuson-Moss claim included the purchase price plus collateral charges. Consequently, we conclude that the jury intended the $17,000 as damages for loss of use.
[4] We note that in response to Maserati's motion to compel election of remedies the trial court entered an order directing Caplan to return the vehicle upon satisfaction of the judgment. We agree with the trial court that this order correctly resolves the election of remedies issue. To permit Caplan to retain the car as well as the purchase price would constitute a double recovery. Furthermore, although the jury verdict awarded Caplan $17,000 on the negligence count and $17,000 on the breach of implied warranty count, the trial court correctly included only one award.
[5] The fee agreement letter also stated that "[i]f litigation becomes necessary, then we will have to revisit our fee arrangement to include a retainer." The trial court found that the parties did not attempt to modify this agreement until after the court entered judgment in favor of Caplan; therefore, it refused to consider the modification. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624529/ | 522 So. 2d 71 (1988)
Phillip NEWMAN, Appellant,
v.
STATE of Florida, Appellee.
No. 4-86-2574.
District Court of Appeal of Florida, Fourth District.
February 24, 1988.
Rehearing Denied April 6, 1988.
Richard L. Jorandby, Public Defender, and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Diane Leeds, Asst. Atty. Gen., West Palm Beach, for appellee.
PER CURIAM.
Defendant was convicted of conspiracy to traffic in cocaine and trafficking in cocaine by delivery. We affirm.
We opt to discuss only what occurred on the day of the alleged delivery, not on the days prior thereto; as we shall discuss only the charge of "delivery," not conspiracy.
On the morning in question, Glen Taylor informed undercover detective Daniel Losey that he was going to use a connection to get cocaine. After some postponements Taylor informed Losey that the supply had arrived, and the two met at Taylor's residence in Lauderhill.
When the two entered the house, Taylor introduced Losey to David Acosta, Vincent Medina and appellant. Appellant indicated that next time Losey could just call and everything could be ready.
Losey said he wanted to look at the cocaine and then he would call the person with the money. Medina went out and returned with a paper bag, which he placed on the kitchen table. Acosta took a white package out of the bag. Medina and appellant cut a small opening in the package, exposing a white powder. Losey said he would call his money man. He telephoned Detective Adderley and told him to come over.
Medina put the package back in the paper bag and left with it. Losey objected that the goods were being removed. Appellant told him the package was being placed in the car. Medina subsequently returned to the house.
When Adderley arrived, he said he would not bring the money in until the cocaine was also there. Adderley testified that Taylor then told him if he entered he would get the "stuff." Adderley entered and Medina brought in two brown paper bags, placing them on the kitchen table. Acosta opened them and placed on the table two packages like the one Losey had been shown earlier. Adderley took a small amount of the substance and rubbed it in his hand. He said he would bring in the money.
*72 Adderley and Taylor went out. Taylor was placed under arrest in Adderley's car by surveillance officers. A group of these officers followed Adderley to the townhouse and after a struggle between Adderley and appellant at the door, entered and arrested the remaining subjects, including appellant.
Trafficking in cocaine by delivery occurs when there is an actual, constructive or attempted transfer of the controlled substance from one person to another. § 893.02(5), Fla. Stat. (1985). Appellant argues the cocaine quite deliberately remained in the possession of Acosta and Medina throughout the episode in which appellant was an actor, and therefore there was not so much as even an attempted transfer.
We conclude that a jury could find that there was a delivery. The deal was done. The contraband, which had been sampled, was on the table. All that remained was the physical transfer of the funds. At the very least this was a constructive delivery. See State v. Vinson, 298 So. 2d 505 (Fla. 2d DCA 1974), appeal after remand (on other grounds), 320 So. 2d 50 (Fla. 2d DCA 1975), affirmed, 345 So. 2d 711 (Fla. 1977). There was no reason for the officers to continue the charade. We therefore affirm the judgment and sentence.
GLICKSTEIN, GUNTHER, and STONE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1624518/ | 522 So. 2d 1100 (1988)
STATE of Louisiana
v.
Michael Ray CARTER.
No. KA 87 0766.
Court of Appeal of Louisiana, First Circuit.
February 23, 1988.
*1102 Bryan Bush, Dist. Atty., Baton Rouge by Louis Daniel, Asst. Dist. Atty., for plaintiff/appellee.
Office of the Public Defender, Baton Rouge, for defendant/appellant.
Before COVINGTON, C.J., and SAVOIE and LeBLANC, JJ.
COVINGTON, Chief Judge.
Michael Ray Carter was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. He was tried by a jury which convicted him as charged; and he was subsequently sentenced to imprisonment for a term of sixty years at hard labor without benefit of parole, probation or suspension of sentence. He has appealed, urging seven assignments of error, to wit:
1. The trial court erred by denying defendant's motion to quash the jury panel and his motion for a mistrial.
2. The trial court erred by denying defense counsel's objection to an irrelevant question.
3. The trial court erred by overruling defense counsel's objection to statements made by the prosecutor during the state's closing rebuttal argument.
4. The trial court erred by overruling defense counsel's objection to statements made by the prosecutor during the state's closing rebuttal argument.
5. The trial court erred by denying defendant's request for a limiting jury instruction.
6. The trial court erred by imposing an excessive sentence and failing to follow the sentencing guidelines provided in LSA-C.Cr.P. art. 894.1.
7. The verdict is contrary to the law and/or the evidence.
Assignment of error number two was not briefed on appeal and, therefore, is considered abandoned. Uniform Rules Courts of Appeal, Rule 2-12.4.
The instant offense pertains to the armed robbery of First Federal Savings and Loan Association (hereinafter referred to as First Federal) in East Baton Rouge Parish. The crime was committed on August 15, 1986.
At about 10:00 a.m. on the day in question, Tyressa Decuir (a teller) was working at her teller station; and Leander Percy Winfield, III, a First Federal assistant vice-president and Loan Administration Manager, was getting a money order at another teller's station, approximately two stations away from Decuir. A man walked up to the counter at Decuir's teller station. Decuir asked the man if she could help him. He responded, in a stuttering voice, that he wanted to withdraw some money from his savings account. Decuir told him he would have to fill out a withdrawal slip. After completing a transaction for another First Federal employee, Decuir observed that the man was still standing at the counter. She repeated to him that he needed to complete a withdrawal slip in order to make a withdrawal. The man then slid a note across the counter to Decuir. Decuir testified that the note was written on what appeared to be a blue check. While she read the note, the man pulled out a white pillowcase from inside his pants. He also pulled out a small silver pistol which he pointed at her. Decuir then realized that a "hold-up" was in progress.
In the meantime, Winfield noticed that Decuir was "shaking a pillowcase out." Winfield looked at the robber who told him: "Yes, it's a robbery and don't you move." For about onetwo minutes, Winfield merely continued to stand where he was and look at the robbery.
Decuir testified that she complied with the instructions in the robber's note, which specifically forbade her to activate any *1103 alarm and stated that otherwise "you're dead." She removed all the money from her drawer, approximately three thousand dollars, put it inside the pillowcase and handed it to the robber. The robber then took the pillowcase and walked out the front door of First Federal, leaving the note he had used on the counter.
Decuir and Winfield testified that the robber wore a pair of sunglasses and a "sailor's cap" which was "turned down" and that the robber had a mustache. The testimony of Decuir and Winfield revealed that both had recently attended a security training class approximately two days before the robbery. Winfield testified that while he was looking at the robber he thought that he would later be asked to make an identification and that he paid attention to the robber. Similarly, Decuir testified that, because she had attended the security class, she realized that she might be later asked to identify the robber. Decuir also testified that she got a "good look" at the robber, that she was face-to-face with the robber and that the lighting inside First Federal was "normal."
After the robber left First Federal, the police were summoned to the scene. Investigating officers discerned that the note used by the robber, had been written on a printed check form of Freddie Samuel Williams who was then incarcerated in the downtown jail. The police talked to Williams that same day; and, later that evening at about 9:00 p.m., defendant was arrested at the Universal Motel when he apparently returned to his room there. Sgt. Greg Phares of the Baton Rouge City Police Department testified that, after defendant's arrest, defendant signed a form consenting to a search of his motel room. Phares noted that, in talking to the police, defendant stuttered. The actual search was conducted between approximately midnight and 1:00 a.m. the morning after defendant's arrest. According to Phares, the search revealed only that the pillowcase was missing from the bed in defendant's motel room.
On the evening following defendant's arrest, Phares conducted separate photographic lineups with Decuir and Winfield. The lineups consisted of six photographs, one of which was defendant's. Decuir and Winfield each selected defendant's photograph as positively depicting the robber. On August 20, both Decuir and Winfield identified defendant as the robber at a six man physical lineup held at the parish prison. Decuir stated that she was positive in making her selection at the physical lineup. Furthermore, at trial, both Decuir and Winfield made positive in-court identifications of defendant as the robber.
Additionally, the testimony of Winfield and Norbert Rayford (the chairman of the board of directors and president of First Federal) revealed that four cameras were operating in First Federal on the day of the robbery and that the robbery was recorded on video tape. The state introduced into evidence the video tape, and the jury was allowed to view the pertinent portion of the tape. Also introduced into evidence were a series of photographs of the person depicted on the tape. The photographs were taken by George Robert Skaluba, an audio-visual specialist, employed at the Laboratory Division of the FBI in Washington, D.C. Some of the photographs introduced into evidence had been enhanced by Skaluba.
ASSIGNMENT OF ERROR NO. ONE:
By means of this assignment, defendant contends that the trial court erred by denying his motion to quash the jury panel and his motion for a mistrial. He argues that, because he is a member of the black race, the trial court should have granted either one or the other of his motions on the basis of the prosecutor's use of peremptory challenges to exclude black prospective jurors.
A peremptory challenge by the state shall not be based solely upon the race of the juror. LSA-C.Cr.P. art. 795(B). In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the United States Supreme Court held that the Equal Protection Clause forbids the state from using its peremptory challenges to strike potential jurors of the defendant's race solely on account of their race or the assumption that jurors of the defendant's *1104 race will be unable to impartially consider the state's case against the defendant.
In Batson, supra, the United States Supreme Court held that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. In regard to the establishment of such a prima facie case, the Supreme Court stated the following:
To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, supra, 430 U.S. [482], at 494, 97 S.Ct. [1272], at 1280 [51 L. Ed. 2d 498 (1977) ], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits `those to discriminate who are of a mind to discriminate.' Avery v. Georgia, supra, 345 U.S. [559], at 562, 73 S.Ct. [891], at 892 [97 L. Ed. 1244 (1953) ]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a `pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors.
Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. * * * The trial court then will have the duty to determine if the defendant has established purposeful discrimination.21
* * * * * *
21 In a recent Title VII sex discrimination case, we stated that `a finding of intentional discrimination is a finding of fact' entitled to appropriate deference by a reviewing court. Anderson v. Bessemer City, 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985). Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference. Id., at 575, 105 S.Ct., at 1512.
106 S.Ct. at 1723-1724.
The record reflects that the trial court employed a procedure during voir dire whereby the prosecutor and defense counsel each separately but simultaneously submitted in writing (on a form provided by the court) the names of any prospective juror(s) they wanted to peremptorily challenge. In this case, the prosecutor used only nine of the twelve peremptory challenges available to the state, and eight of those used were to exclude black prospective jurors, viz, Ms. Margery Williams, Ms. Sandra Daniels, Ms. Mary E. Lee, Ms. Marian Tennart, Ms. Carla Kennison, Mr. Eugene Hulbert, Ms. Bridget Burton, Ms. Vennolia Perkins. At the conclusion of voir dire and after the entire twelve person jury was sworn and seated, defense counsel objected to the state's use of its peremptory challenges, alleging that the challenges had been exercised on the basis of race. He asked in the alternative that the court grant a motion to quash the jury panel and a motion for mistrial. In overruling defense counsel's objection and denying the requested relief, the trial court stated that three of the twelve persons comprising the jury were of the black race, that the prosecutor had given the court written reasons for the peremptory challenges he used and that there had been no *1105 systematic exclusion of blacks from the jury in this case.
The written reasons, which the prosecutor gave to the trial court, for peremptorily challenging the black prospective jurors in this case, were as follows: (1) Ms. Williams was employed with the Office of Family Security and she seemed to be very strong willed and might not be open-minded during jury deliberations. (2) Ms. Daniels was employed as a teacher in the Head Start Program. (3) Ms. Tennart had recently been convicted of theft. (4) Ms. Kennison was peremptorily challenged because her area of study in college was social work. (5) Mr. Hulbert stated, during questioning by the prosecutor, that he could not follow the law as to the state's burden of proof. (6) Ms. Burton did not seem to understand "what was going on." (7) Ms. Perkins had previously served on a jury.
After careful review of the entire voir dire proceedings, we conclude that the black prospective jurors peremptorily challenged by the state were challenged on the basis of clearly justifiable reasons and stemmed from factors unrelated to race. We note that the record does not indicate that the prosecutor's acceptance of any of the persons who actually served on the jury was inconsistent or contrary to any of the reasons and stated bases he gave for peremptorily challenging black prospective jurors in this case. Additionally, the record shows that three members of the twelve person jury were black and that the state had unused peremptory challenges available to exclude those blacks had discrimination been its intention. See State v. Brown, 507 So. 2d 304 (La.App. 3rd Cir. 1987). Hence, defendant failed to establish that there was purposeful discrimination in this case. We find that there was no Batson discrimination in the selection of the jury.
This assignment lacks merit.
ASSIGNMENTS OF ERROR NOS. THREEFIVE:
By means of these assignments, defendant contends that the trial court erred by overruling defense counsel's objections to statements made by the prosecutor during the state's closing argument in rebuttal and by denying defense counsel's requested jury admonition. Defendant argues that the prosecutor's statements exceeded the scope of permissible argument as set forth in LSA-C.Cr.P. art. 774. Defendant's argument appears to rest upon a single premise, i.e., his assertion that the prosecutor's statements tended to mislead the jury into thinking that defendant did not meet his burden of proof when in fact the burden of proof was that of the state. He concludes that the prosecutorial statements prejudiced his case.
During the prosecutor's closing argument in rebuttal to the jury, the following colloquy occurred:
Mr. Price mentioned that there's a note here, a note, which we don't have any handwriting analysis. That could have sewn the case up! Not necessarily. State is not required to prove that Michael Carter is the one that wrote the note, anyone could have written that note. The fact is, the State proved Michael Carter used that note. He's the one that pushed it across to Tyressa Decuir. I don't know whether Michael Carter wrote that note or not. And, no, the F.B.I. did not analyze it for handwriting. And what do you get when you do analyze something for handwriting? You get someone who compares, looks, and says this is similar, this is not similar. In my opinion, the same person wrote it because it's similar. Or, in my opinion, the same person didn't write it because it's not similar. But if that is so all-powered important, the Defense had access to that note, too. That's
MR. PRICE: Judge, I'm going to have to object to that. That's not true. And I think he is getting into making the argument that I should have proven something there, when I had no burden of proof here.
MR. DANIEL: Judge, he's the one that brought up what was done and what was not done with the evidence, and I think it's fair for the State to argue what could have been done with the evidence, just like he argued it.
*1106 THE COURT: Objection is overruled.
MR. PRICE: Judge, I'd like the jury instructed that I did not have access to that item, as well. And I'd like a jury instruction that I had no obligation to prove anything.
THE COURT: Objection is overruled.
MR. PRICE: I'll assign error to the court's ruling.
THE COURT: Objection is noted.
Thereupon, the prosecutor continued his closing argument and noted that the "[d]efense could have had that note analyzed, with exemplars," prompting defense counsel to repeat his previous objection. Again, the trial court overruled the objection; and, in so doing, the trial court noted that defense counsel had opened the door, during his closing argument, to the argument made by the prosecutor on rebuttal and that an admonition was not necessary unless the prosecutor exceeded what the court felt appropriate to rebut the argument defense counsel had made.
Thereafter, the prosecutor continued his closing argument, in pertinent part, as follows:
I was tellingarguing to you that the laws in the state of Louisiana provide discovery in a case, where things aren't surprise, especially the physical items of evidence, discovery and inspection. That applies to that note, too, that hold-up note. They did not have that note analyzed, the F.B.I. did not. That note was available, also, for defense to inspect. They could have had that note analyzed. There was nothing preventing it. But it wasn't done. Could have taken it to a handwriting expert of their choosing. Handwriting experts will examine it. They have a service, just like lawyers are paid for their services. Handwriting experts are paid for their services, and they will give their opinion, for what it is worth. That argument works both ways. I don't care whether that handwriting matches Michael Carter or not. I don't care whether he wrote it or he had somebody write it for him. I don't care. The fact is that Michael Carter, according to the eyewitnesses, the ones who got the close look at him, Michael Carter is the one that presented that note, whoever wrote it.
LSA-C.Cr.P. art. 774 provides, as follows:
The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state's rebuttal shall be confined to answering the argument of the defendant.
We observe that defendant did not request, as part of his designation of the appellate record, that defense counsel's closing argument be transcribed and that, accordingly, the record does not include a transcription of that portion of the trial. During arguments before the trial court pertaining to defense counsel's objections, the prosecutor argued that during closing argument for the defense, the defendant had questioned the state's failure to subject the note to handwriting analysis, and that the state was merely answering that argument in its closing argument in rebuttal. Because the defense did not refute or even contest the prosecutor's position, particularly after the trial court ruled that the prosecutor's statements constituted appropriate rebuttal to defense counsel's closing argument, we find that the state's rebuttal was a permissible response to defense counsel's closing argument. Hence, we conclude that the prosecutor's statements were within the scope of LSA-C.Cr.P. art. 774; and, accordingly, the trial court properly denied defendant's objections, motions and requested admonition to the jury. Contrary to defendant's assertions, the prosecutor's statements do not suggest that defendant had the burden of proving his innocence or that the state did not have to prove all the elements of the charged offense beyond a reasonable doubt. See State v. Stovall, 439 So. 2d 618 (La.App. 1st Cir.1983). Cf State v. Smith, 433 So.2d *1107 688 (La.1983); State v. Stephenson, 412 So. 2d 553 (La.1982).
These assignments are without merit.
ASSIGNMENT OF ERROR NO. SIX:
By means of this assignment, defendant contends that the trial court erred by imposing an excessive sentence and failing to comply with the sentencing guidelines provided in LSA-C.Cr.P. art. 894.1.
Article I, § 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Excessiveness of a sentence is a question of law which is reviewable. See State v. Sepulvado, 367 So. 2d 762 (La.1979). A sentence may be excessive either by reason of its length or because the circumstances warrant a less onerous sentencing alternative. State v. Telsee, 425 So. 2d 1251 (La.1983). In other words, a sentence may be both within the statutory limits and constitutionally excessive. State v. Sepulvado, supra. A sentence is excessive when it is grossly out of proportion to the severity of the offense or nothing more than the needless and purposeless imposition of pain and suffering. To determine whether a penalty is grossly disproportionate to the crime, the court considers the punishment and the crime in light of the harm to society and whether the penalty is so disproportionate as to shock our sense of justice. State v. Bonanno, 384 So. 2d 355 (La.1980). Because of the wide discretion afforded the trial court in imposing sentence, a sentence within statutory limits will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Abercrumbia, 412 So. 2d 1027 (La.1982).
A trial court's reasons in imposing sentence, as required by LSA-C.Cr.P. art. 894.1, are an important aid to this Court when reviewing a sentence alleged to be excessive. State v. Christy, 509 So. 2d 829 (La.App. 1st Cir.), writ denied, 513 So. 2d 296 (La.1987). The trial court need not recite the entire checklist found in LSA-C.Cr.P. art. 894.1. However, the record must reflect that the court adequately considered the guidelines. State v. Davis, 448 So. 2d 645 (La.1984). Even when the trial court has not complied with LSA-C.Cr.P. art. 894.1, this Court need not remand the case for resentencing, unless the sentence imposed is apparently severe in relation to the particular offender or the offense committed. State v. Davis, supra.
Armed robbery is punishable by imprisonment at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:64(B). Herein, defendant was sentenced to imprisonment for a term of sixty years at hard labor, without benefit of parole, probation or suspension of sentence.
In its initial comments at sentencing, the trial court stated that it had ordered and received a presentence investigation report in this case and that it had reviewed the report. The trial court noted that, according to the report, defendant made a statement which "indicated that he was lied on and he is innocent." However, the trial court noted that Tyressa Decuir's statement (in the presentence investigation report) was consistent with her trial testimony that defendant was extremely nervous and that he stuttered continuously at the time of the commission of the instant offense. Thereupon, the trial court stated that:
The Probation Department has indicated, also, that when they interviewed you in the Parish Jail that you were nervous and that you stuttered continuously. I note also here this morning, here in court this morning, that you have stuttered. Of course, this does not mean that you're an individual that committed this offense, but, certainly, is a piece of circumstantial evidence, which tends to discredit your statement that you were lied on and are innocent. And, of course, the jury found otherwise.
On the basis of the statement quoted above, defendant contends that the trial court based his sentence on an impermissible factor, i.e., his speech impediment. In State v. Quebedeaux, 424 So. 2d 1009, 1014 (La.1982), the Supreme Court noted that the sentencing record should reflect that the trial court considered "not only the *1108 seriousness of the crime and the past criminal history of the defendant, but also defendant's personal history (age, mental status, dependents, family ties, employment record, emotional and physical health) and his potential for rehabilitation." However, a trial court's opinion as to a defendant's credibility is not in and of itself an acceptable basis on which to sentence a defendant. See State v. Quebedeaux, supra; State v. Smith, 407 So. 2d 652 (La.1981). Accordingly, we conclude that the trial court articulated an unacceptable basis for sentencing only insofar as it cited defendant's stuttering as being circumstantial evidence tending to discredit defendant's statement that others had lied and that he was innocent. Nonetheless, we do not find that the trial court gave undue weight to or placed undue reliance on its improperly expressed opinion as to defendant's credibility, in rendering sentence in this case. We base our finding on the entire sentencing record which shows that the trial court adequately complied with the sentencing guidelines contained in LSA-C.Cr.P. art. 894.1 and, hence, that defendant's sentence was predicated on sentencing factors properly considered under LSA-C.Cr.P. art. 894.1.
In articulating its reasons for sentencing, the trial court noted that defendant had been arrested on April 15, 1981, on charges of aggravated burglary and armed robbery of a bank and that defendant was convicted of the armed robbery and sentenced to five years imprisonment at hard labor for the offense. The trial court observed that defendant was arrested for the instant offense, another armed robbery, less than two years after being discharged from prison. The trial court noted that as a second felony offender defendant was not eligible for a probated sentence and that the judge who sentenced defendant for his first armed robbery conviction had showed leniency by imposing the minimum sentence of five years imprisonment. In additional reasons for its sentencing choice, the trial court stated the following:
I have reviewed your social history, or I should say `a lack of a social history', showing that you were born in New Orleans, Louisiana. You had nine brothers and sisters. Shortly thereafter, you moved to Baton Rouge and lived your entire life in the Baton Rouge area. You attended Scotlandville Senior High School where you completed the eleventh grade. You indicated you quit school for no good reason. You indicate that you were an average student, also attended adult education, working towards your G.E.D. You appear to be in good physical and mental condition. You deny any alcohol or drug abuse problems. You indicated that you only experienced the normal childhood diseases. As I've indicated, you do have a stuttering problem, and you indicate this occurs when you are nervous and excited. You have absolutely no past employment record. You indicate no interest of any kind, and no hobbies of any kind, no prior military experience, no assets, no resources.
In imposing sentence, the trial court made specific reference to LSA-C.Cr.P. art. 894.1. The court stated that, in relation to the number of years of imprisonment it intended to impose, defendant's conduct in this case could have caused and did threaten serious bodily harm to everyone at the scene of the armed robbery, because defendant was armed with a dangerous weapon (a gun). The court opined that defendant certainly contemplated that his criminal conduct could cause serious harm. The court noted that there was no provocation in this case tending to excuse or justify defendant's conduct and that certainly the victim did nothing to induce or facilitate the commission of the offense. The court stated that defendant's criminal conduct was the result of circumstances likely to recur, because the instant conviction was defendant's second for armed robbery. The court noted that there was nothing in defendant's character or attitude to indicate that defendant had changed in any way. In reference to whether or not imprisonment would entail excessive hardship to defendant or members of his family, the trial court stated that there was nothing in defendant's social history to show that defendant had ever done anything to support *1109 himself or any family members. In imposing the instant sentence, the court stated that a lesser sentence would deprecate the seriousness of the offense and that defendant was in need of a correctional or custodial environment that can be provided most effectively by long-term commitment to a correctional institution.
We find that the sentence imposed is not excessive under the circumstances of this case. The trial court fully considered the range of sentencing alternatives and individualized the sentence to the particular defendant for the particular crime involved.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. SEVEN:
By means of this assignment, defendant contends that the verdict is contrary to the law and/or the evidence. In support of his contention, defendant argues that the eyewitnesses were extremely nervous during the robbery making it impossible for them to be certain as to what they saw, that the note the robber used was written on a check of another person, that there was no handwriting analysis to verify that he wrote the note, that the police never found the hat, pillowcase or the gun used in the robbery and that his fingerprints were not found on the premises of First Federal. Defendant contends that, in light of the stated factors, his conviction cannot be upheld.
The constitutional standard for testing the sufficiency of evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. State v. Garcia, 483 So. 2d 953 (La. 1986).
As defined in LSA-R.S. 14:64, armed robbery consists of the following elements: (1) the "taking" (2) "of anything of value belonging to another" (3) "from the person of another or that is in the immediate control of another," (4) "by use of force or intimidation," (5) "while armed with a dangerous weapon."
Where the key issue is the accused's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Long, 408 So. 2d 1221 (La.1982); State v. Richardson, 459 So. 2d 31 (La.App. 1st Cir. 1984).
The testimony of the victim is sufficient to establish the elements of an offense. State v. Walder, 504 So. 2d 991 (La.App. 1st Cir.), writ denied, 506 So. 2d 1223 (La.1987). Herein, the testimony of Decuir and Winfield is sufficient to establish the elements of the instant offense and defendant's identity as the perpetrator.
Aside from the video tape of the armed robbery and the photographs made therefrom which were introduced into evidence, the testimony of Decuir and Winfield established that defendant gave Decuir a note which included a threat to her life if she activated any alarm system; that, while she was reading the note, defendant gave her a pillowcase and pointed a gun at her; that defendant told Winfield that "it's a robbery" and for him not to move; that Decuir placed about three thousand dollars inside the pillowcase; and that defendant left the premises carrying the pillowcase with the money inside it. Thereafter, on the day of the robbery, both Decuir and Winfield identified defendant as the robber in separate photographic lineups; and a few days later, on August 20, each of them again separately identified defendant at a physical lineup. Additionally, at trial, Decuir and Winfield made positive in-court identifications of defendant as the perpetrator of the offense.
This assignment is meritless.
CONVICTION AND SENTENCE AFFIRMED. | 01-03-2023 | 10-30-2013 |
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